A.K.Mehta President

1        The complainant Sh. Anil Kumar Gupta filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Branch Manager, Oriental Insurance Company, Amritsar road Tarn Taran (Opposite Party) on the allegations of deficiency in service and unfair trade practice with further prayer to direct the Opposite Party- Insurance Company to make payment of Rs. 52,349/- to the complainant besides Rs. 20,000/- as compensation for harassment and mental agony and Rs. 10,000/- as litigation expenses.

2        The case of the complainant in brief is that complainant is owner of car in question make Wagan R having registration No. PB 46 D 0110 and complainant got the said car insured from Opposite Party- Insurance Company; that on 27.5.2015 Mr. Sanjay Gupta Advocate, brother of the complainant alongwith his clerk Harpreet Singh was returning from Beas to Tarn Taran on the car in question and when they reached near Petrol Pump Jandiala Guru at about 1.30 P.M. then the car suddenly over turned and the body of the car as well as the engine of the car were badly damaged due to overturning of the car many times but both the occupants of the car sustained only minor injuries; that the car in question was brought to Singh Motors, Goindwal Bye-pass, Tarn Taran with the help of crane at the costs of Rs. 2,500/- and car was left at Singh Motors for repair; that Rs. 15,459/-  was spent for purchase of spare parts from Bharat Motors Amritsar vide bill dated 25.8.2015 for repair of the engine and replacement of damaged parts of the engine; that another amount of Rs. 36,890/- was paid to Singh Motors, Tarn Taran vide bill dated 15.8.2015 on account of denting and painting and other repairs and as such complainant spent total amount of Rs. 52,349/- on repair of car; that complainant informed the Opposite Party- Insurance Company immediately telephonically as well as verbally at the branch office of the Opposite Party- Insurance Company and surveyor of the Opposite Party- Insurance Company inspected the damaged car at workshop and was fully satisfied that the car was extensively damaged in the body and engine and assured the complainant that total  cost of the repair will be paid by the Opposite Party- Insurance Company as the car is having full insurance policy; that the surveyor obtained the signatures of complainant on various blank papers on the assurance that these are routine official matter and does not in any manner effect the amount of claim  raised by the complainant and complainant also put his signatures in good faith and believing the surveyor but it seems that signatures were obtained with malafide intention and now it appears that same had been misused by Opposite Party- Insurance Company to defeat the genuine claim of the complainant; that the bills dated 28.5.2015 and 15.8.2015 were handed over to Opposite Party- Insurance Company as and when these were received by the complainant; that complainant spent amount of Rs. 52,349/- on the repair of the car but Opposite Party- Insurance Company without assigning any reason, credited the amount of Rs. 15,270/- in the account of complainant in Oriental Bank of Commerce Tarn Taran on 21.11.2015; that complainant approached the Opposite Party- Insurance Company  many times but the Opposite Party- Insurance Company only gave evasive and unsatisfactory reply; that Opposite Party- Insurance Company was requested to give the reason for declining the claim of the complainant in writing but Opposite Party- Insurance Company did not care and it caused mental harassment and agony to the complainant and as such, complainant is entitled to amount of Rs. 52,349/- spent on repair of car alongwith damages and litigation expenses. Hence complaint was filed.

3        After formal admission of the complaint, notice was issued to Opposite Party- Insurance Company and Opposite Party- Insurance Company appeared through counsel and filed written version contesting the complaint on the preliminary objections that complainant is estopped from filing the present complaint as complainant has already received Rs. 15,270/- as full and final payment pertaining to the damaged vehicle in question; that as per report dated 2.8.2015 of Engineer Inderjit Singh surveyor and Accessor, the liability of the Opposite Party- Insurance Company was assessed as Rs. 15,570/- and as such, amount of Rs. 15,270/- was paid to the complainant after deducting Rs. 300/- as salvage and as such, claim of the complainant has been paid as fully satisfied and complainant has no cause of action to file the complaint;  that loss assessed by the surveyor is best piece of evidence and same is liable to be taken as correct unless other party produce any cogent evidence to show that loss assessed by the surveyor is incorrect; that complainant has not come to the Forum with clean hands and has tried to conceal the material facts; that claim file of the complainant has been closed as fully satisfied by competent authority and as such no consumer dispute survives and complainant is not entitled for relief sought in the complaint; that as claim of the complainant has already been paid as full and final payment and as such, there is no question of any delay or deficiency in service on the part of Opposite Party- Insurance Company and relief of damages, interest and costs is not payable in the case in hand. On merits, it was admitted that complainant obtained insurance policy from Opposite Party- Insurance Company but the parties are governed by terms and conditions of contract of insurance and exclusion clauses of the policy and terms and conditions are to be interpreted as it is and no wider meaning can be given.  It was asserted that after receiving intimation from the complainant regarding the accident in question, the Opposite Party- Insurance Company deputed the Engineer Inderjit Singh, Surveyor & Loss Assessor to access the loss who assessed the loss payable to the extent of Rs. 15,570/- and after deducting Rs. 300/- as salvage, remaining amount of Rs. 15,270/- was paid to the complainant and claim of the complainant has been duly satisfied and now no cause of action survives. All other allegations mentioned in the complaint were denied being wrong and incorrect and a prayer was made for dismissal of the complaint with costs.

4          Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The ld. counsel for the complainant tendered in to evidence the affidavit of complainant Ex. C-1 alongwith documents Ex. C-2 to C-6 and closed the evidence and thereafter Ld. Counsel for the Opposite Parties tendered in to evidence, affidavit of Gurdeep Singh Divisional Manager Ex. OP/1 alongwith document Ex. OP/2 and closed the evidence.

5        We have heard the Ld. Counsel for parties and also gone through the evidence and documents produced by the parties.

6        Ld. Counsel for the complainant argued the case on the same allegations as were taken in the complaint. It was asserted that accident of the car in question took place on 27.5.2015 at about 1.30 P.M. and car was extensively damaged and was taken to Singh Motors Tarn Taran for repair with the help of crane and complainant paid Rs. 2,500/- for this purpose vide receipt Ex. C-3. He contended that amount of Rs. 15,459/- was spent for purchase of spare parts for repair of car in question vide receipt dated 25.8.2015 Ex. C-4 and amount of Rs. 36,490/- was spent on denting, painting and labour charges vide receipt dated 15.8.2015 Ex. C-5. He contended that complainant spent total amount of Rs. 52,349/- on the repair of car and complainant also intimated about accident to the Opposite Party- Insurance Company and Opposite Party- Insurance Company deputed its surveyor to inspect the car in question and to access the loss. He contended that later on Opposite Party- Insurance Company credited the amount of Rs. 15,270/- in the bank account of the complainant without the consent of the complainant, whereas complainant spent amount of Rs. 52,349/-. He contended that complainant visited the office of Opposite Party- Insurance Company many times for payment of remaining amount of repair charges but with no effect and this conduct of Opposite Party- Insurance Company caused harassment and mental agony to the complainant who is Bank Manager and complainant ultimately had to file this complaint and as such, complaint is required to be accepted and Opposite Party- Insurance Company is required to be directed to pay the remaining amount of claim alongwith compensation and litigation expenses as mentioned in the complaint. The Ld. counsel for the complainant supported his case with case titled M/s Shobika Attire-Appellant Versus New India Assurance Co. Ltd and Anr –Respondents (SC) 2006(4) CPJ 3 and case titled Dharmendra Goel-Appellant Versus Oriental Insurance Co. Ltd- Respondents (SC) 2008(3) CPJ 63.

7        Ld. counsel for Opposite Party- Insurance Company contended that Opposite Party- Insurance Company deputed a surveyor who inspected the car in question and assessed the loss and after repair of the car, the surveyor filed survey report Ex. OP/2 and assessed loss at Rs. 16,570/- and after deducting excess clause of Rs. 1,000/-, net loss was calculated at Rs. 15,570/- and Rs. 300/- were deducted as salvage and remaining amount of Rs. 15,270/- was paid in the bank account of the complainant. He contended that there is no reason on the file nor any evidence has been brought by the complainant to show that the surveyor report is not correct and is to be ignored. He contended that surveyor is an expert witness and his report is to be followed unless there are sound reasons to depart from it which the complainant has failed to prove on the file. He also contended that the receipt of spare parts and receipt of denting painting and labour charges also causes doubt in the case of complainant because Spare parts were purchased on 25.8.2015 as is clear from the receipt Ex. C-4, whereas car was repaired and its denting painting was completed before 15.8.2015 because the labour charges of Rs. 36,890/- were paid on 15.8.2015 as is clear from the receipt
Ex. C-5 and it causes doubt in the case of the complainant. He contended that complaint is false and frivolous and is liable to be dismissed with costs.

8        It is admitted fact that complainant is owner of car in question and he got the same insured from Opposite Party- Insurance Company. It is also admitted fact that during the period of insurance, the car in question met with accident and was damaged. It is also admitted fact that complainant intimated the Opposite Party- Insurance Company about the accident and Opposite Party- Insurance Company deputed surveyor who inspected the car and assessed the damage and loss to the car. The dispute between the parties is only that the complainant contends that he spent Rs. 15,459/- on purchase of spare parts for repair of car in question and spent Rs. 36,890 on denting, painting and labour charges of the repair i.e. total spent Rs. 52,349/- but the surveyor assessed the total net loss as Rs. 15,270/- and the said amount was deposited in the bank account of the complainant without any pretest and in full and final satisfaction of the claim. The contention of the complainant is that he was not informed when the amount was transferred in his bank account and as such, he could not raise any pretest against payment of loss. The complainant proved receipt dated 25.8.2015 Ex. C-4 for purchase of spare parts for the repair of car in question and also proved receipt dated 15.8.2015 Ex. C.5 as labour charges for repair of the car. However these receipts causes doubt in the case of the complainant because spare parts were purchased on 25.8.2015 whereas the car was repaired and labour charges were paid on 15.8.2015 which appears illogical as the spare parts were purchased after car was repaired and repair charges were paid.  Otherwise also the surveyor has filed the survey report Ex. OP/2 which is quite in detail and has been prepared in accordance with terms and conditions of the insurance policy. Otherwise also complainant has not produced any evidence on the file in order to justify that the surveyor report should be ignored. Otherwise, the surveyor report cannot be ignored lightly unless some sound and logic reasons are on the file to depart from it. In case titled “Sikka Papers Ltd. Vs National Insurance Co. Ltd. & Ors” 2009 Volume 3 Consumer Law Today, Page 417, the Hon’ble Supreme Court of India observed that surveyor report is not the last word but then there must be legitimate reason for departing from such report. As discussed above, the complainant has not produced any evidence on the file to prove that the surveyor report is incorrect and is not based on facts and is liable to be ignored. Otherwise, the case law produced by the complainant in support of his case is not applicable to the case in hand because facts of the referred cases are quite distinguishable from the facts of the case in hand.  In case titled M/s Shobika Attire Vs New India Assurance Co. Ltd. and Anr. (Supra), the complainant claimed that he had stock of more than Rs. 2 Crores whereas surveyor passed the claim for Rs. 1,02,38,738/- and there was no reason on the file as how the surveyor has assessed this loss on account of stock whereas the complainant produced the evidence of the bank who stated that at no point of time, the stock of the complainant was less than Rs. 2 Crores  and complainant was then granted the remaining amount of Rs. 97,83,827/-. In other case titled Dharmendra Goel Versus Oriental Insurance Co. Ltd (Supra) relied by the Ld. counsel for the complainant, the vehicle was insured and in accident there was total loss to the vehicle and the insured declared value of the vehicle was Rs.  3,54,000/- but surveyor assessed the loss at Rs. 1,80,000/- on the ground that insurance policy was 7 months old and during 7 months, the value of the vehicle depreciated to Rs. 1,80,000/- from Rs. 3,54,000/-  but there was no sound reason on the part of the surveyor to come to this conclusion and due to this reason, the surveyor report was ignored. However, as discussed above, the complainant has not produced any evidence on the file to show that the surveyor report is not based on sound reason and should be ignored. Otherwise, surveyor report is quite in detail and all spare parts requires to be changed and labour charges have been discussed in detail and as such, there is no reason on the file to ignore the survey report. Moreover, the complainant has accepted the amount credited by Opposite Party- Insurance Company without any pretest. It is correct that amount has been directly credited in the account of complainant but even thereafter complainant could write to the Opposite Party- Insurance Company pretesting that the claim passed by Opposite Party- Insurance Company is not correct and he does not agree with the same, but no such pretest was given by the complainant to the Opposite Party- Insurance Company. Rather directly file this complaint and even no notice was given to the Opposite Party- Insurance Company. As such, the claim passed by Opposite Party- Insurance Company is not liable to be modified. The complainant has failed to prove his case on the file.