Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he is plying the truck bearing RC HR-55-M-9437 for his livelihood and the said vehicle was insured with the Opposite Parties vide policy No. 36030031150100000961 under DAP CAP valid for the period 31.03.2016 to 30.03.2017 against paid up premium of Rs.29,102/- with IDV of Rs.10,80,000/-. Further alleges that the insured vehicle met with an accident on 13.02.2017 when it was being driven by Joginder Singh who was having valid and legal driving licence. The complainant immediately informed the Opposite Parties and lodged his claim and completed all the formalities and thereafter, the Opposite Parties deputed the surveyor namely H.D.Sharma and said surveyor assessed net loss of Rs.8,18,000/- only however, the estimated loss to the vehicle was Rs.16,34,505/-. Thereafter, the complainant made repeated demands and requests to the Opposite Parties to pay the amount of loss upto the extent of IDV of the vehicle, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay the amount of Rs.10,80,000/- on account of loss to the insured vehicle and to pay compensation of Rs.1 lakh on account of mental tension and harassment or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that immediately on the receipt of the claim, it was duly registered, entertained and processed. It is further submitted that admittedly, the truck bearing RC HR-55-M-9437 was insured with the Opposite Parties vide policy No. 36030031150100000961 under DAP CAP valid for the period 31.03.2016 to 30.03.2017 against paid up premium of Rs.29,102/- with IDV of Rs.10,80,000/-. The Opposite Parties deputed H.D.Sharma Surveyor Loss Assessor and Investigator to survey and assess the loss who submitted his report dated 08.03.2017 for a total loss of Rs.8,18,500/- and also submitted another report dated 11.04.2017. In the operative part of the report dated 11.04.2017 it is submitted that at the time of accident the insured vehicle was loaded with general shop material from Alipur to Bilaspur, whereas the weight of the material was 12241 Kgs, vide goods challan No.0128065 dated 09.02.2017 and the name of the driver is mentioned as Mr.Dharam Pal, License No. 73963 Nagaland as per the GR/ Lorry Hire Challan and hence, the claim of the complainant was repudiated as the complainant has breached the terms of the policy in question. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence the affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C33 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavits Ex.RA, Ex.R1 and Ex.R72 and closed the evidence.
6. We have heard the ld.counsel for the parties, perused the written arguments of the Opposite Parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant as well as ld.counsel for the Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is that the complainant is plying the truck bearing RC HR-55-M-9437 for his livelihood and the said vehicle was insured with the Opposite Parties vide policy No. 36030031150100000961 under DAP CAP valid for the period 31.03.2016 to 30.03.2017 against paid up premium of Rs.29,102/- with IDV of Rs.10,80,000/-. Further alleges that the insured vehicle met with an accident on 13.02.2017 when it was being driven by Joginder Singh who was having valid and legal driving license. The complainant immediately informed the Opposite Parties and lodged his claim and completed all the formalities and thereafter, the Opposite Parties deputed the surveyor namely H.D.Sharma and said surveyor assessed net loss of Rs.8,18,000/- only however, the estimated loss to the vehicle was Rs.16,34,505/-. Thereafter, the complainant made repeated demands and requests to the Opposite Parties to pay the amount of loss upto the extent of IDV of the vehicle, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that admittedly, the truck bearing RC HR-55-M-9437 was insured with the Opposite Parties vide policy No. 36030031150100000961 under DAP CAP valid for the period 31.03.2016 to 30.03.2017 against paid up premium of Rs.29,102/- with IDV of Rs.10,80,000/-. The Opposite Parties deputed H.D.Sharma Surveyor Loss Assessor and Investigator to survey and assess the loss who submitted his report dated 08.03.2017 for a total loss of Rs.8,18,500/- and also submitted another report dated 11.04.2017. In the operative part of the report dated 11.04.2017 it is submitted that at the time of accident the insured vehicle was loaded with general shop material from Alipur to Bilaspur, whereas the weight of the material was 12241 Kgs, vide goods challan No.0128065 dated 09.02.2017 and the name of the driver is mentioned as Mr.Dharam Pal, License No. 73963 Nagaland as per the GR/ Lorry Hire Challan and hence, the claim of the complainant was repudiated as the complainant has breached the terms of the policy in question. But we are of the view that on the one side, the Opposite Parties has declining the claim of the complainant due to breach of terms of the policy, and on the other hand, the surveyor of the Opposite Parties has assessed the loss to the insured vehicle by giving his detailed report. In such a situation the repudiation made by Opposite Parties regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
8. Now come to the quantum of compensation. As per the report of Surveyor Mr.H.D.Sharma Ex.R32 produced by Opposite Party itself, said surveyor made detailed report and assessed the Net Amount Payable to Insured to the extent of Rs.8,18,500/- and it has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
9. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant partly and direct the Opposite Parties-Insurance Company to make the payment of Rs.8,18,500/- (Rupees eight lakh eighteen thousands five hundred only) as per the surveyor report as detailed above to the Complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 20.09.2017 till its actual realization. The compliance of this order be made by Opposite Parties within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
