Haryana

Yamunanagar

CC/943/2012

Mohit Garg S/o Sudhir Kumar - Complainant(s)

Versus

OIC Ltd. - Opp.Party(s)

Rohit arya

16 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                               Complaint No. 943 of  2012.

                                                               Date of institution: 05.09.2012.

                                                               Date of decision: 16.08.2017.

 

Mohit Garg son of Sh. Sudhir Kumar 1268, Canal Rest House Road, Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                                                              …Complainant.

                                Versus

1. The Oriental Insurance Co. Ltd. Jagadhri, Tehsil Jagadhri, District Yamuna Nagar through Branch Manager.
2. Globe Automobiles Pvt. Ltd., Globe Toyota Village Sadhopur, Opp. Springfield School, NH 22, Baldev Nagar Ambala.

 

…. Respondents.

                  

BEFORE      SH. DHARAMPAL, PRESIDENT

                     SH. S.C.SHARMA, MEMBER.

                     SMT. VEENA RANI SHEOKAND, MEMBER.          

 

Present            Sh. Rohit Arya, Advocate, counsel for complainant.   

                        Sh. Sushil Garg, Advocate, counsel for OP No. 1.       

Sh. Sarvjeet Singh, Sandhu Advocate, counsel for the OP No. 2.   

 

ORDER      (DHARAMPAL PRESIDENT)

 

1.                Complainant Mohit Garg has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date. (hereinafter the respondents shall be referred as opposite parties) 

2.                Brief facts of the complaint, as alleged by the complainant, are that the complainant has insured his car bearing registration No. CH-03L-0595 with the OP No. 1 at Jagadhri (Yamuna Nagar). On 06-11-2011 in Dehradun the complainant met with an accident in which the car of the complainant bearing registration No. CH-03L-0595 was badly damaged and was totally left unusable. The car was taken in tempo in local Toyota Dealer at Dehradun who called his surveyor, who told that it is a total loss case but surveyor of Toyota, Dehradun company asked the complainant to take car to Jagadhri for necessary action because the car is insured by Jagadhri Branch but the complainant retaliated that this is a nationalized company but still they persisted to take car to Jagadhri/Yamunanagar. In the tempo, car was brought to the Jagadhri/Yamuna Nagar at expenses of the complainant and OP No. 1 asked the complainant to take car to the Toyota Dealer at Ambala i.e. OP No. 2. The car was surveyed and it was told by the dealer that it is a case of total loss but the surveyor of the OP No. 1 asked the dealer to prepare an estimate but he stated that it is a total loss case. Later on it was told by the OP No. 1 that although it is a case of total loss but still estimate has to be prepared as per rules. The OP No. 2 prepared a survey wherein on 14-06-2012 it was given to complainant and was told that estimate of repair is Rs. 3,55,392/- besides taxes and other charges and it was told that once case is opened other charges shall also be there. It is further submitted that the value of the car as per the Insurance Company is only Rs. 2,00,000/- and the estimate of repair is Rs. 3,55,392/- besides taxes and other charges. The OPs are insisting the complainant to get the vehicle repaired and in this regard they have told the complainant that due to depreciation etc. an amount of Rs. 2,00,000/- approximately shall have to be paid by the complainant. The OP No. 1 is pressing hard and is not giving the total loss of the car and still at the same time the OPs also admit that car cannot be even then made road worthy as its main is damaged. The car is insured by Op No. 1 for Rs. 2,50,000/- and it is a 2003 model and the fact that it is a total loss is clear because even rough estimate of OP No. 2 is much more i.e. Rs. 3,55,392 plus taxes which clearly shows the same. The surveyor of OP No. 1 namely Mr. Ravi for personal gains is interested in repairs from Ambala dealer. The complainant visited the surveyor/officials of the Ops many times but in vain. The complainant even got served the OP No. 1 a registered notice dated 05-07-2012 but till date the OP has not even bothered to reply the same. In this way, the Ops by rendering highly defective and deficient services have rendered themselves liable to compensation to the complainant. As such, the complainant prayed that his complaint may kindly be accepted and OPs be directed to pay the insured amount of the car being the total loss of the car and further to pay a sum of Rs. 5,00,000/- as compensation on account of mental tension, harassment, agony, to the complainant.    

 3.               Upon notice, OPs appeared and filed their written statement separately vide which OP No. 1 has taken some preliminary objections such as complaint is not maintainable and there is concealment of the facts. It is submitted that survey of the damaged vehicle, conducted by the surveyor duly appointed by the OP No. 1 on 15-11-2011, at repair shop at the instance of the complainant who assessed a sum of Rs. 1,43,381-85 ps., the damages on repair basis as per the terms of the policy but the complainant insisted to claim on total loss basis which is not admissible and permissible under the terms of the policy. The vehicle bearing No. CH-03L-0595 Toyota Corolla HI was being ply with by the driver-complainant who having no valid and effective driving licence to run the said vehicle. It is further submitted that the OP No. 1 never asked the complainant to take car to the Toyota Dealer at Ambala. It is specifically denied that the dealer assessed the loss on total basis. The surveyor assessed the damage loss to the tune of Rs. 1,43,381-85 ps. on repair basis and this fact has been concealed by the complainant. The complainant is only entitled, if so, a sum of Rs. 1,43,381.85/- assessed by the surveyor on repair basis, subject to completion of formalities and in strict terms of the policy. Rest of the averments made by the complainant are wrong hence, denied. Lastly, prayed for dismissal of complaint qua the OP No. 1.

                   OP No. 2 has also taken preliminary objection such as complaint is not maintainable and there is concealment of the facts. It is submitted that the vehicle in dispute was brought to the dealership of the OP No. 2 at Ambala on 03-12-2011 in the damaged condition. The OP No. 2 provided the complainant full assistance as the same day they got opened the job order bearing No. BP J11-00271 also provided him the rough estimate bearing No.BPE11-00277 for Rs. 3,45,160/-. On 14-06-2012, the complainant along with representative of the OP No. 1 approached the OP No. 2 and requested to provide him another revised estimate of repair. Accordingly, as per the request of the complainant, the OP No. 2 prepared another revised estimate and handed over the same to the complainant. It is further submitted that the OP No. 2 made various telephonic call to the complainant for giving his approval for repair of the aforesaid vehicle or else take back his vehicle after making the payment of parking charges at the rate of 100 per day with effect from 03-12-2011 till the actual date of taking back of the vehicle. Upon this, complainant told the OP No 2 that he would take the issue with the insurance company and accordingly give the necessary instruction. Despite the assurance of the complainant neither any instructions was given to the OP No. 2 nor the vehicle was taken back. It is further submitted that the complainant was always promptly attended so there was never any sort of deficiency of service on the part of OP No. 2.  Lastly, prayed for dismissal of complaint qua the OP No. 2.

4.                To prove his case, counsel for the complainant tendered into evidence complainant’s affidavit as Annexure CW/A and documents such as photocopy of Insurance Policy as Annexure C-1, photocopy of estimate amounting to Rs. 3,55,392.00/- as Annexure C-2, photocopy of letter written by the complainant to OP as Annexure C-3, photocopy of acknowledgement as Annexure C-4, photocopy of insurance claim intimation letter as Annexure C-5, photocopy of claim form as Annexure C-6, photocopy of registration certification of vehicle in question as Annexure C-7, photocopy of driving licence as Annexure C-8, photocopy of schedule of premium as Annexure C-9 and closed the evidence on behalf of complainant.

5.                On the other hand, counsel for the OP No. 1 Insurance Company tendered into evidence affidavit of Sh. Surinder Kumar Goel, Branch Manager, Oriental Insurance Company Ltd as Annexure R1/A and affidavit of Ravi Gupta, Surveyor & Loss Assessors as Annexure R1/B and documents such as photocopy of Motor (Final) Survey Report as Annexure R1/1, photocopy of verification of DL as Annexure R1/2, Policy as Annexure R1/3, private car package policy as Annexure R1/4

and closed the evidence on behalf of OP No. 1.  

                   On the other hand, counsel for the OP No. 2 tendered into evidence affidavit of Mr. Vivek Dutta, Authorized Signatory Globe Automobiles Pvt. Ltd. Ambala as Annexure R2/A and closed the evidence on behalf of OP No. 2.   

6.                We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely & carefully. 

7.                 Admittedly the car bearing registration Number CH-03L-0595 was insured with the OP No. 1 vide insurance policy Annexure R1/3 for the period from 08-04-2011 to 07-04-2012. The vehicle in question met with an accident on 06-11-2011 at Dehradun and the same was brought to the OP No. 2 for repair. OP No. 2 prepared estimate (Annexure C-2) for an amount of Rs. 3,55,392/- . The vehicle was insured by the OP No. 1 and the insured value i.e. IDV was Rs. 2,50,000/-. OP No. 1 appointed Sh. Ravi Kumar Gupta, Surveyor and Loss Assessor to access the loss. On which Surveyor submitted his report dated 22-05-2012 (Annexure R1/1). In his report, he mentioned that :-

          Particulars of Loss/Damages

          “In Accordance with telephonic instructions dated 15-11-2011 from R.O.O.I. Co. Ltd. Ambala, the undersigned proceeded to M/s Globe Automobiles, Ambala City for Survey and Loss Assess the above noted damaged vehicle on 15-11-2012. The vehicle was lying as it was after the accident. I took enclosed photographs of the damaged vehicle and noted the damages. I collected the repair estimate from repairer. I received the claim form duly completed from repairer. The repair estimate was discussed in details with repairer and loss assessed as under :-

          The insured was adamant for total loss as the repair cost does not exceeds 75 % of the I.D.V. I contacted the insured so many times and as well as to repairer the repairer informed me that the insured was adamant for total loss. Now I am releasing the final survey report keeping in view the damages to the vehicle.”  

8.                While assessing the loss, surveyor also considered the estimate prepared by the OP No. 2 and after considering all the aspects, he assessed the net loss to the tune of Rs. 1,43,381.85/-. No short comings have been pointed out by the complainant in the survey report which was supplied to him. The Hon’ble National Commission in case titled as “National Insurance Company Limited vs. Sardar Gurmit Singh, 2004 (III) CPJ 46 (NC)”, wherein it has been held that the surveyors are appointed by the Insurance Company and their reports are to be given due importance and that one should have sufficient grounds to disagree with the assessment made by them. It has been further observed by the Hon’ble National Commission in the said judgment that the Hon’ble Supreme Court in case of “Sri Venkateswara Syndicate vs. Oriental Insurance company Limited & anr, II (2010) SLT 664=II (2010) CPJ (SC)=(2009) 8 SCC 507”, has held that the assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issued report known as surveyor report which forms the basis for the consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

                   It has been further observed that there is no disputing the fact the surveyor/surveyors are appointed by the Insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that under this Section the Insurance Company cannot go on appointing Surveyor one after another so as to get a tailor-made report to the satisfaction of the officer concerned of the Insurance Company; if for any reason, the report of the Surveyors is not acceptable, the insurer has to give valid reason for not accepting the report.”

9.                After attentively hearing of the arguments of both sides, we are of the opinion that in view of the judgment of the Hon’ble Apex Court in the case of Sri Venkateswara Syndicate (Supra) the due importance is to be given to the licensed surveyor appointed by the Insurance Company. When there is a provision in the Insurance Act for appointing Surveyor by the Insurer to assess the loss based upon the circumstances and evidence in the case reliance should not have been placed on the report of a private garage.

10.              In view of the above, the OPs are directed to comply with the following directions :-

1. To pay an amount of Rs. 1,43,381.85/- as per survey report along with interest @ 9% per annum from the date of filing of the complaint i.e. 05-09-2012  till its realization.  
2. To pay Rs. 10,000/- as compensation for mental agony and harassment to the complainant.
3. To pay Rs. 5,000/- as cost of litigation to the complainant. 

                   Order be complied within a period of 30 days. Accordingly, the present complainant is, hereby, disposed of. Copies of this order be supplied to the parties free of cost. File be consigned to the record room after due compliance.

Announced in open court. 16.08.2017

 

 

                                                     ( DHARAMPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI

 

(VEENA RANI SHEOKAND)    (S.C.SHARMA)

MEMBER                                    MEMBER

 

Note: Each and every page of this order has been duly signed by me.

 

( DHARAMPAL)

                                                            PRESIDENT

                                                           D.C.D.R.F.YAMUNA NAGAR

                                                          AT JAGADHRI