DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAS NAGAR (MOHALI)

                              Consumer Complaint No.1023 of 2020

                                                Date of institution:  10.07.2020

                                                Date of decision:     01.02.2023                                              
Regional Spinal Injuries Centre (RSIC), Sector 70, SAS Nagar Mohali through its Project Director Professor Raj Bahadur son of Shri Krishan Dev.

…….Complainant

Versus

New India Insurance Co. Ltd. through its Division Manager, SCO No.46-47, Ist Floor, Phase-2, SAS Nagar (Mohali) Punjab.

                                                …..Opposite Party

Complaint under Consumer Protection Act.

Quorum:   Shri Sanjiv Dutt Sharma, President,

                Ms. Gagandeep Gosal, Member

                Ms. Paramjeet Kaur, Member.

Present:    Ms. Madhu Puri, authorized representative of the complainant.  

                Shri Kapil Gupta, counsel for the OP

Order dictated by :-  Shri Sanjiv Dutt Sharma, President.

Order

               The present order of ours will dispose of the above mentioned complaint under the Consumer Protection Act, filed by the complainant (hereinafter referred to as ‘the CC’ for short) against the Opposite Party (hereinafter referred to as ‘the OP’ for short) with the prayer that the OP may be directed to reimburse the repair charges of vehicle No.PB-65-V-2829, Tata Winger to the tune of Rs.1,42,380/- + Rs.2,200/- as towing charges alongwith interest and with compensation etc. It is averred that the CC is a Project Director of Regional Spinal Injuries Centre, Sector 70, Mohali, which is a rehabilitation centre and is exempted from the income tax. At the time of purchase of the vehicle, the vehicle was given a temporary number, which was PB-65-K (T) 8560.  The OP had insured the vehicle of the CC. Later on the vehicle was given regular registration No.PB-65-V-2829. In the papers of the vehicle, the Project Director is the registered owner. It is specifically averred that the vehicle was donated by the Deputy Commissioner, Mohali, to be used as ambulance and is being specifically used for the purpose of ambulance services by the hospital of the CC. It is averred that Govt. of India already has a rate contract with the Tata Motors, Mumbai for supply of Tata Winger as ambulances to the various Govt. hospitals. The Deputy Commissioner, Mohali has also given a donation for the purchase of above said vehicle. It is averred that on 27.04.2018 the above said vehicle met with an accident and one Shri Ajay died in the accident. The vehicle was badly damaged and the OP was duly informed about the accident and the damaged vehicle in the accident. It is averred that one Maya Devi and Ramesh, parents of the deceased Ajay, filed a claim petition under section 166 of the Motor Vehicles Act and the OP had disbursed the awarded amount in favour of the claimants. The vehicle was sent for repairs on 28.05.2018. The surveyor of the OP Company also visited Tata Motors, who assessed the loss of damage of the vehicle. The OP allowed the repairs from the Tata Motors Company and assured that the payment of the repair charges will be made by the OP. It is further averred that Tata Motors raised a bill to the tune of Rs.1,42,380/- for repair of the vehicle and accordingly request was made to the OP for payment of repair charges, but the OP did not release the payment and kept on delaying the matter. However, at one stage the OP offered 75% of the total claim, but the same was not acceptable to the CC. Under compelling circumstances, the CC had to make payment of Rs.1,42,380/- to the company vide cheque No.829282 dated 01.06.2018, so that the vehicle could be used as ambulance. The CC also paid towing charges to the tune of Rs.2200/-, but the same were not refunded by the OP. Despite several visits of the administrative staff and the CC to the office of the OP, nothing was done by the OP in this regard.

                Thus, alleging deficiency in service on the part of the OP, the CC has sought direction to the OP to make payment of Rs.1,42,380/- plus Rs.2,200/- alongwith interest @ 18% per annum from the date of payment to the CC till realisation.  The CC has also sought consolidated amount of compensation to the tune of Rs.1,00,000/-  for mental agony, harassment as well as cost of litigation. The complaint of the CC is duly signed and verified. Further the same is also supported by affidavit.

2.             In reply, the OP has raised a number of objections on the ground that the complaint is false and frivolous. Even the maintainability of the complaint is also challenged.  It is also alleged that the complaint is time barred and there is no cause of action for the CC to file the present complaint. However, registration of the vehicle is admitted by the OP. Even subscription of the policy bearing No.35230031170100014826, valid from 13.03.2018 to 12.03.2019, is admitted.  It is also admitted that on 27.04.2018 vehicle met with an accident and suffered damages. It is stated that the OP deputed Shri Raj Rishi Sharma, Surveyor and Loss Assessor, who conducted the survey and submitted the report on 15.06.2018 and assessed the loss to the tune of Rs.67,812.43 and recommended the loss assessed above to the underwriters for their consideration as the vehicle was registered as LMV Car, whereas the insurance policy is issued for commercial purpose. The RC of the vehicle was also verified by the investigator of the OP Shri S.K. Jain, who submitted the verification report and verified the same from the office of Regional Transport Authority, SAS Nagar. The claim of the CC was processed and it was observed that as per verification report, the class of the vehicle was Motor Car (LMV-NT), whereas the vehicle is insured as commercial vehicle. Upon this, on 23.08.2018 the OP wrote a letter to the CC to ensure incorporation of word ‘ambulance’ in the RC and send its copy after rectification, but the CC did not bother to do the needful or give any reply to this letter. Even reminders were sent, but the CC failed to get the needful done, as such the OP left with no other option except to settle/consider the claim of the CC on sub standard basis i.e. 75% of the assessed amount. The OP is still ready to pay the claim if the CC gives his consent to the same. Thus, alleging no deficiency in service on its part, the OP has prayed for dismissal of the complaint.

3.             The CC in support of complaint has tendered in evidence affidavit Ex.CW-1/1 and document Ex.C-1 to Ex.C-12. The counsel for the OP tendered in evidence affidavit Ex.RW-1/A of Kamlesh Aggarwal, Sr. Divisional Manager and Ex.RW-2/A of Shri Raj Rishi Sharma, Surveyor & Loss Assessors and documents Ex.R-1 to Ex.R-10.

4.             We, have heard authorized representative of the complainant and counsel for the OP and have gone through the file.

5.             It is an admitted fact that the vehicle is registered as PB-65-V-2829 with the RTA, Mohali. It is also proved on file that the CC subscribed the policy of the vehicle bearing No.35230031170100014826 which was valid from 13.03.2018 to 12.03.2019. However, it is alleged by the OP that the policy was subscribed subject to certain terms and conditions. It is also admitted fact that on 27.04.2018, the aforesaid vehicle met with an accident and regarding this intimation was received by the OP on 03.05.2018 and also about the loss caused to the vehicle. It is also not in dispute that the surveyor namely Shri Raj Rishi Sharma was deputed by the OP, who according to his knowledge and experience, assessed the loss and submitted survey report with the OP on 15.06.2018. It is alleged by the OP that their own surveyor assessed the damage to the vehicle to the tune of Rs.67,812.43.

6.             It is pertinent to mention here that the OP has rejected the claim of the CC and has refused to pay the same mainly on the ground that the vehicle was registered as LMV Car whereas the insurance policy was issued for commercial vehicle. We are really surprised on this specific contention raised by the OP. A specific question was asked to the counsel for the OP that as and when the insurance of the vehicle was done, is not it the duty of the OP to ensure that for which purpose the vehicle is going to be used or whether to inquire that the LMV car was a commercial vehicle or not. It is specifically averred by the authorized representative of the complainant that the vehicle in question was donated by the Deputy Commissioner, Mohali to the hospital of the CC, which is a Govt. hospital, for the purpose of ambulance. The CC in this regard has produced document Ex.C-4. It is specifically stated that the Tata Winger vehicle is used for the purpose of ambulance only. The CC has specifically pleaded that the Govt. of India is already having rate contract with TATA Motors for supply of Tata Winger vehicle as ambulance to various Govt. hospitals. We feel, that the vehicle of the CC was definitely used for the purpose of ambulance only. It is pertinent to mention here that Maya Devi and Ramesh, parents of Ajay, who died in the accident, were also given claim by the Motor Accident Claims Tribunal, Mohali, which was duly paid by the OP.  It is also important to mention here that license of the driver is not in dispute.  The OP has simply denied the claim on the point that the CC should approach the RTA, SAS Nagar (Mohali) and seek insertion of word ‘ambulance’ in the RC and get this rectification done, so that it may become easier for the OP to give the claim, as the vehicle has been insured as commercial vehicle by the OP at the time of subscription of the policy. We feel, that this is no ground to reject the genuine claim of the CC, who is running the vehicle for the purpose of ambulance, which was donated by the Deputy Commissioner, SAS Nagar (Mohali).

7.             It is also admitted fact that the CC had to pay Rs.1,42,380/- for the repair of the vehicle alongwith Rs.2,200/- as towing charges and has sought this particular amount from the OP. On the other hand, the OP has got assessed the loss through its surveyor to the tune of Rs.67,812.43. We have perused the evidence submitted by the OP in the shape of affidavit of Shri Raj Rishi Sharma, the surveyor and loss assessor.  The CC has not submitted any report contrary to the report of surveyor and loss assessor and in that event we have no alternative except to believe the report of Shri Raj Rishi Sharma, Surveyor and Loss Assessor. It is pertinent to mention here that in the policy subscribed by the OP, it is clearly mentioned in front of column of body of the vehicle as ‘ambulance’, which clearly proves that the CC subscribed the policy for the purpose of running the vehicle as ambulance and the stand taken by the OP is absolutely fake and fabricasted.

8.             No doubt the surveyor is an essential professional link between the insured and the insurer. At the same time, to become Surveyor and Loss Assessor, one must have qualifications in Mechanical or Automobile Engineering. It is also settled principle of law that the report of surveyor is not binding on the insurer in case the insurer is not satisfied by his report. We further feel, that there are some duties and responsibilities of the surveyor, which are mandatory in nature. First of all we feel that it is the duty of every surveyor to conduct the spot inspection and then inspect the vehicle in question, which suffered loss. The surveyor is also supposed to give reasons for the deduction in the amount and explain them properly. In case he is deducting certain amounts, which are not within his knowledge, he must take expert opinion. Further the surveyor must give detailed comments on salvage and its disposal. Whenever necessary, he must give detailed comments how the amount regarding plastic parts was deducted. Further he must give a declaration that he has got no interest in the subject matter in question or whether it pertains to any of his relative’s business partner.

9.             However, the report of the surveyor is unrebutted and unchallenged as such we have no alternative but to believe the same.

9.             In view of our above discussion, the present complaint is allowed and the OP is directed to pay to the CC amount to the tune of Rs.67,812.43 alongwith interest @ 9% per annum from the date of accident of the vehicle till the payment is done. The OP is further directed to pay to the complainant consolidated amount of compensation to the tune of Rs.25,000/- towards mental agony, harassment and costs of litigation. Compliance of this order be made within 30 days from the date of receipt of free certified copy of this order. Free certified copies of this order be sent to the parties as per rules.  File be indexed and consigned to record room.

Announced

February 01, 2023

                                                                (Sanjiv Dutt Sharma)

                                                                President

                                                       I agree.

(Ms. Gagandeep Gosal)

Member

I agree.

(Paramjeet Kaur)

Member