Punjab

StateCommission

A/12/23

Jatinder Singh - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Pavit Singh Mattewal

11 Mar 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.23 of 2012

 

                                                          Date of Institution: 06.01.2012  

                                                          Date of Decision : 11.03.2015

 

 

Jatinder Singh aged about 25 years son of Sh.Lakhbir Singh, resident of Village Sidhupur Kalan, Tehsil Khamanoon, District Fatehgarh Sahib.

.

 

                                                          …..Appellant/Complainant

         

                                      Versus

1.       The Oriental Insurance Company Limited, branch at Opposite Grain     Market, Chandigarh Road, Khamanon, Tehsil Khamanon, District          Fatehgarh Sahib, through its Branch Manager.

2.       Oriental Insurance Company Limited, having its Registered and           Head Office at A-25/27, Asaf Ali Road, New Delhi 110002 through     its Manager/Authorized Person.

 

 

                                                          ….Respondents/Opposite parties

 

         

First Appeal against order dated 16.11.2011 passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellant              :         Sh.Pushpinder Singh, Advocate

          For the respondents        :         Sh.Swatantar Kapoor, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now the appellant.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he obtained the insurance policy bearing No.233693/31/2010/7863 dated 22.2.2010 for his Tata Indica Car,  bearing registration No.PB-49A/3350 from the OPs against the insured amount of Rs.2,62,000/- by paying the premium of Rs.8397/-.The insurance policy was operative for the above car of the complainant from 23.02.2010 to 22.2.2011. That the car of the complainant met with an accident on 7.6.2010 and complainant lodged  DDR No.20 dated 9.6.2010 at Police Station Khamanon  about this accident, in as much as a stray-cow suddenly appeared before the above car. The complainant also reported the matter to the insurance company and submitted the request for insurance claim with complete documents by fulfilling the formalities therefore. That OPs have not released the claimed amount of the accident of the repair of the car of Rs.1,25,875/- as incurred by the complainant, despite the request and visits of the complainant to OPs on a number of times. The complainant has also served the legal notice on 11.2.2011 to the OPs, but to no effect. The complainant has filed the instant complaint against the Ops and, thus, prayed that the OPs be directed to pay Rs.2,26,000/- along with @18% interest and compensation of Rs.1 lac for his mental harassment.

3.      Upon notice, Ops appeared and filed written reply raising preliminary objections that complaint is not maintainable and any deficiency in service on the part of the OPs was vehemently denied. That the complainant has no cause of action to file the present complaint. On merits, the OPs admitted that complainant took above insurance policy for the period from 23.2.2010 to 22.2.2011 from the OPs of the above referred Toyata Car. It was further pleaded that the DDR was lodged on 09.06.2010, whereas the accident in question took place on 07.06.2010. That statement of Gurpreet Singh driver was not recorded before Sh.K.S Chandhok, Investigator, who was deputed by the OPs to find the genuineness of the claim of the complainant.  Gurpreet Singh had not joined the proceedings before investigator. It was further averred that intimation of loss was made to Ops by the complainant on 30.6.2010 after gap of 23 days from the date of the accident. It was further pleaded that insured neither arranged the spot survey nor produced the photographs of the place of the accident. The OPs further pleaded that the representative of the complainant Jatinder Singh intimated about the alleged occurrence on 30.6.2010 through Dada Motors Private Ltd to OPs. That on receipt of this intimation, the OPs deputed Yogesh Kochhar, Surveyor and Loss Assessor for survey of the loss. That Yogesh Kochhar deputed by the Ops to inspect the vehicle and he submitted report and he assessed the loss on the basis of the information provided in the claim form and his report dated is 1.10.2010. That OPs doubted  the genuineness of the claim of the complainant and appointed Sh.K.S Chandhok, Investigator and Surveyor and Loss Assessor Patiala on 30.03.2011 to look into the matter, who submitted report regarding this fake incident. On the basis of that report of the investigator and surveyor Sh.K.S Chandhok, the insurance claim of the complainant was not allowed by the OPs. The OPs controverted the other averments of the complaint and prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence affidavit of Jatinder Singh Ex.CW1/A, copy of Insurance certificate-cum-policy schedule Ex.C-1, copy of DDR dated 9.6.10 Ex.C-2, copy of registered post from office of Sanjeev Kapoor, Advocate Ex.C-3, copies of postal receipts Ex.C-3 and Ex.C-4,copy of tax invoice Ex.C-5. To counter this affidavit, the OP tendered in evidence affidavit of A.K.Sehgal, Sr.Divisional Manager, Oriental Insurance Company Limited Ex.RW-1/A, copy of policy schedule Ex.R-1, copy of survey report Ex.R-2, copy of oriental insurance company ltd Ex.R-3, copy of certificate Ex.R-4, copy of survey report of Sh.K.S Chandhok Ex.R-5, copy of investigation of vehicle by Sh.K.S Chandhok Ex.R-6, copy of letter dated 3.5.2011 from Oriental Insurance Company to complainant Jatinder Singh Ex.R-7, affidavit of Yogesh Kochhar, Surveyor and Loss Assessor Ex.RW-2, affidavit of Er.K.S Chandhok, Investigator Surveyor and Loss Assessor Ex.RW-3. On conclusion of evidence and arguments, the District Forum Fathegarh Sahib, dismissed the complaint of the complainant, by virtue of order dated 16.11.2011. Dissatisfied with this order dated 16.11.2011 District Forum, Fatehgarh Sahib, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and also examined the record of the case.   We have examined the pleadings of the parties and evidence placed on record by the parties in support of their respective pleadings on the record. Ex.C-1 is copy of the policy document, Ex.C-2 is copy of DDR No.20 dated 9.6.2010 lodged at Police Station Khamanoo by Gurpreet Singh, it is recorded in it that while he was driving the car in the area of the village Jatawa, a stray-cow suddenly appeared before the car, while running and he swerved the car to one side to avoid the accident and the cow struck with car and caused this accident. Ex.C-3 registered notice sent to the OPs, Ex.C-3 and Ex.C-4 are postal receipts thereof, Ex.C-5 tax invoice of the Dada Motors Pvt. Ltd regarding repair of the car. It has proved that amount of Rs.1,25,875/-, as expenses incurred by complainant on the repair of the car, are recorded in the bill Ex.C-5 by the Dada Motors Ludhiana, the authorized survey centre of the OPs.

6.      The stand of the OPs now respondents in this appeal is that they found the claim of the complainant as fake and on the basis of the report of Sh.K.S Chandhok Surveyor and Investigator, the claim of the complainant was not approved. Affidavit of Sh.A.K Sehgal, Sr. Divisional Manager, Oriental Insurance Company Limited Ex.RW-1/A is on the record to this effect. Ex.R-1 is the copy of the policy, Ex.R-2 is report of the first surveyor Yogesh Kochhar deputed by the OPs to conduct the survey and he assessed the loss, vide his report Ex.R-2 as well as his affidavit Ex.RW-2/B on the record and has proved that he submitted his report on 01.10.2010. He examined the vehicle and found the loss after deductions as Rs.93642/- as per the report of the Yogesh Kochhar, the first surveyor deputed by the OPs. The loss to the vehicle was caused to the extent of Rs.93642/-and this amount was spent by the complainant for the repair of the vehicle with Dada Motors the authorized service station of the OPs, vide their bill Ex.C-5 on the record.

7.      The OPs repudiated the claim of the complainant on the ground that they subsequently appointed Sh.K.S Chandhok Surveyor and Investigator to look into the matter. That Sh.K.S Chandhok submitted his report Ex.R-5 dated 27.5.2011 finding the insurance claim of the complainant as fake. The letter of Sh.K.S. Chandhok addressed to the complainant is Ex.R-6 and letter of OPs addressed to the complainant is Ex.R-7 holding insurance claim being not genuine. Affidavit of Sh.K.S. Chandhok Ex.RW-3/C is also on the record.

8.      The OPs submitted that Gurpreet Singh, who lodged the DDR was not present at the spot nor complainant was present. That the insurance claim was submitted with them with long delay to the OPs and it has caused prejudice them. Even second Surveyor and Investigator Sh.K.S Chandhok found the case of the complainant to be fake one hence OPs declined the insurance claim of the complainant. We find that there are two surveyors appointed by the OPs in this case, one is Yogesh Kochhar and other is Sh.K.S Chandhok. The counsel for OPs tried to persuade this Commission by submitting that the second surveyor was, in fact, the investigator in this case. Even from the documents of the OPs, it is recorded in it that they appointed Sh.K.S. Chandhok Surveyor and Investigator to look into the matter. The counsel for the OPs referred to law laid down by Hon'ble High Court in FAO No.4522 of 2012 decided on 19.05.2014  in case titled as Harmesh Kumar @ Ramesh Kumar Versus… Inderjit Singh and others. We find that this authority has been delivered in Motor Vehicle Accident case, where elementary proof of negligence is essential. The instant case is own damage case of the vehicle by the insured and hence the cited authority is distinguishable on this count because this Commission is not to determine any rash and negligent driving in this complaint in this case. The counsel for the OP then referred to law laid down in case titled as Jang Bahadur Singh Versus… Union of India and others reported in 2008 AIR (Patna) 91, it has been held in this authority that where the repudiation of the claim is on the basis of report of surveyor, it is held not improper. The insurer has to apply independent mind to the claim and adverse material be disclosed to insured before repudiating the claim. The Counsel for the OP referred to law laid down in case titled as M/s Shree Ram Swara Center Versus… State of Bihar and others reported in 2007 AIR (Patna) 97 that report of the surveyor is not binding on the surveyor. On the other hand, counsel for complainant now appellant argued that the OPs appointed first Surveyor Yogesh Kochhar in this case, who submitted his report to the OPs that he found loss to the vehicle and also assessed the payable loss to the complainant. That Rajasthan High Court has held on this point in case titled as M/s Nand Construction Company Versus… Regional Manager, Oriental Insurance Company and another reported in 2002 AIR (Rajasthan) 272 that "once the claim of the petitioner is processed and surveyors appointed by the insurance company, the insurance company would be estopped from repudiating the claim."  The counsel for the appellant has also referred to case law laid down in case titled as New India Assurance Company Limited Versus…  Pradeep Kumar reported in 2009(7) SCC 787 that the surveyor appointed under Section 64-UM of Insurance Act 1938, although report of the surveyor is not conclusive, yet when the report is supported by the original voucher, the order of the District Forum awarding the compensation was not interfered with by the Apex Court in this authority. The counsel for the appellant also referred to case law in Dharmendra Goel Versus.. Oriental Insurance Company Ltd  reported in 2008(8) Supreme Court Cases 279 that claim of the insurer should not be denied on higher technical pleas, the court is to take a realistic view. We find that the appointment of the second surveyor Sh.K.S. Chandhok is unjustified without any strong reason to the contrary. The counsel for the OPs could not point out as to why the report of the first surveyor Sh.Yogesh Kochhar should be discarded. The surveyor is statutorily appointed and his report carries weightage. Generally report of the first surveyor is to be followed unless there are strong reason to the contrary on this point. State Commission Chandigarh also held in case Vijay Kumar Jindal Versus.. National Insurance Company Limited and Another reported in 1999(2) CPC page 569-570 that report of the first surveyor to prevail over the second report. The Hon'ble National Commission has also held in case titled as Gammon India Ltd… Versus.. New India Assurance Company Limited reported in 2003(1) CPC Page 116-117 that first surveyor assessed the loss, which was not accepted. The insurance company was accordingly directed to accept the report of the first surveyor and to pay the amount of Rs.10,000/-. The Hon'ble National Commission also gave primacy to the report of the first surveyor by holding that second surveyor cannot be appointed as a matter of course.

9.      We are further fortified in this regard by law laid down by the Hon'ble National Commission in case titled as Shri.Krishna Woolen Mills Pvt.Ltd  Versus…. United India Insurance Company Ltd reported in 2006(1) CPC Page 624 that loss could be easily assessed on the basis of the report given by the previous surveyor. The contention was not accepted by the National Commission on the point that report of the subsequent surveyor be believed. We also find from the facts and circumstances of the case that first surveyor was appointed by the OPs in this case on receipt of the intimation of the accident. Sh.Yogesh Kochhar was first surveyor, his affidavit Ex.RW-2/B is on the record that he visited the Dada Motor for survey and assessment of the vehicle in  question, where the vehicle was parked. He immediately found the loss after the accident in this case. Subsequently, simply on the ground that there is more delay in reporting the matter to the Ops by the complainant, the OPs appointed second surveyor styled as investigator later on 30.3.2011. We do not find any valid reason, why the OPs appointed second surveyor styled as investigator on 30.3.2011, when much of the evidence has already been rendered  non-existent with the efflux of time. Consequently, we do not place any reliance on the report of  Sh.K.S Chandhok second surveyor styled as investigator by the OPs, which is just to wriggle out of the rigour of law by not justifying the appointment of the second surveyor by the OPs. We cannot discard the claim of the complainant simply on the ground of the delay in intimation, when the repair bill of accidented car by the Dada Motors Pvt. Ltd the authorized center of the OPs is on the record. The photostat copies of the damaged car are also on the record. We find that second surveyor  was appointed after lapse of more than 8-9 months and hence his report cannot be relied upon in this case.

10.    We find that order of the District Forum is not sustainable in this appeal. The District Forum rejected the claim of the complainant on unsustainable grounds. The order of the District Forum cannot be affirmed in this appeal. The order of the District Forum under appeal in this case is ordered to be reversed.

11.    In the light of our above discussion, we hereby accept the appeal of the appellant and by setting aside the order of the District Forum dated 16.11.2011, we hereby accept the complaint of the complainant and direct the OPs to release the amount of the insurance claim to the complainant in accordance with the report of the first surveyor Sh.Yogesh Kochhar, vide which, he assessed the loss of the vehicle of the complainant to the extent of Rs.93642/-. The complainant is further held to be entitled to interest @ 9% p. a from the date of accident till the actual payment over the amount of Rs.93642/-. We also award the amount of Rs.15,000/- as compensation for mental harassment to the complainant, Rs.5,000/- as costs of the litigation.  

12.     Arguments in this appeal were heard on 03.03.2015 and the order was reserved. Now the order be communicated to the parties.

13.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

March 11   2015.                                                            

(ravi)