Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by complainant M/s T.R. Gupta & Sons through its Prop. Bhpinder Kumar Gupta against opposite party i.e. New India Assurance Company Ltd. D.C. Chowk, Jalandhar road, Kapurthala through its Manager seeking direction against the opposite party to pay amount of Rs.91340/- spent on the repair of pelting machine alongwith interest and also for monetary compensation on account of deficiency in service on the part of opposite party.<br /> 2. Brief facts of the complaint are that complainant took a Machinery Break Down policy of their pelting machine fitting in their factory premises for Rs.2,00,000/- w.e.f. 23/10/2007 to 22/10/2008 vide cover note No. 400593 dated 23/10/2007 from the opposite party. It is averred that said Machinery Break Down policy was issued to the complainant by the opposite party after getting the pelting machine in question valuated and pre-inspected by the surveyor appointed by the opposite party.. It is further alleged that suddenly in March, 2008 the pelting machine in question broke down and opposite party was informed about break down of the pelting machine with the request to depute their surveyor to assess the loss of the pelting machine . It is further averred that he spent Rs.91340/- on the repair of the pelting machine which included labour charges and the invoices bearing NO.3 and 4 dated 10/4/2008 issued by Kapurthala Engineering Works, Sultanpur road, Kapurthala.He requested Insurance Company to settle jos genuine insurance claim but was disappointed to receive letter dated 9/6/2008 whereby claim was repudiated on the flimsy ground that Salvage not submitted. Hence the file is closed as no claim which is illegal and unjustified which amounts to deficiency in service on the part of opposite party.<br /> 3. Opposite party appeared, controverted the allegations of the complainant and resisted his claim. Certain preliminary objections have been raised that no cause of action has accrued to the complainant as complainant has not come to the Forum with clean hands. On merits factum of insurance of pelting machine fitted in the factory premises of the complainant vide cover note No. 400593 dated 23/10/2007 valid from 23/10/2007 to 22/10/2008 for Rs.2,00,000/- is not disputed. This fact is also not disputed that insured pelting machine broke down and after receiving intimation, opposite party Insurance Co. deputed surveyor to assess the loss /damage caused to the machine in question . He submitted surveuyor report to the Company vide letter dated 25/3/2008. Insurance Company has denied the charge of deficiency in service on its part because after receipt of report of surveyor, Company had informed the complainant to deposit salvage with the Company and sent registered letter dated 25/9/2008 but he failed to do so. It is denied that complainant spent Rs.20419/- on repair of the machine in question.<br /> 4. In support of its version complainant has produced in evidence affidavit Ex.C1 and documents Ex.C2 to C5.<br /> 5. On the other hand opposite party produced in evidence affidavits and documents Ex.R1 to R6. <br /> 6. We have heard arguments of learned counsel for the parties and have perused ocular as well as documentary evidence on the record. . Apropos the insurance of one pelting machine fitted in the factory premises of the complainant, same is admitted vide Ex.C2 with the remarks that as per pre-inspection report. No doubt, complainant has reiterated the avernments nade in the compla9nt vide his affidavit Ex.C1 that he had spent Rs.91,340/- on the repair of the pelting machine vide invoice No.3 and 4 dated 10/4/2008. On the other hand opposite party Insurance Company filed surveyor & Loss assessor report Ex.R3 dated 25/3/2008 in which he extensively dealt with the assessment ti the damaged pelting machine whih was limited at Rs.80,000/- and after complying principle of depreciation , average clause and excess clause, he has estimated net loss at Rs.18425/- subject to return of salvage amounting to Rs.20,419/- and intimation was also sent to the complainant vide Ex.R4. Much has been urged by learned counsel for complainant that assessment of loss is arbitrary with regard to depreciation and average clause and excess clause. We have gone through the surveyor report and also policy Ex.R2/1. The basis of indemnity is governed under clause 2 read Tariff Guide for depreciation of New India Assurance Co. in chapter IV of the policy in which it is clearly mentioned in clause b that Company will pay actual value of the item immediately before cocurrence of the loss including cost for ordinary freight etc......... such actual value to be calculated by deducting proper depreciation from the replacement value of the item. Since the complainant has not been able to rebut authenticity of the surveyor report duly licensed as per policy condition and to which evidentiary value and admissibility is attached as per ratio of the case reported as S.A. Bhagwan Shetty vs. New India Assurance Company 2006 CTJ 652 so we do not find any inherent infirmity in the said report. Mere production of bills Ex.C3 and C4 about value of the parts is not suffice to conclude that complainant is entitled to replacement of these parts. Accordingly we uphold the report of the surveyor and in terms thereof direct the opposite party Insurance Company to pay amount of Rs.18,425/- with Rs.3000/- as cost of litigation payable by the opposite party within one month from the receipt of copy of this order.<br /> <br /> <br /> Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced : ( Gulshan Prashar ) ( A.K. Sharma )<br /> 10.11.2008 Member President.