Haryana

Kurukshetra

06/2018

Harmandeep Singh - Complainant(s)

Versus

OIC - Opp.Party(s)

Deepak

26 Apr 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.06 of 2018.

                                                     Date of institution: 09.01.2018.

                                                     Date of decision: 26.04.2019.

 

Harmandeep Singh s/o Sh. Jarnail Singh, R/o Dera Nanakpura, VPO. Kirmach, Tehsil Thanesar, District Kurukshetra.

        …Complainant.

                        Versus

1. The Oriental Insurance Co. Ltd. through its Manager, Sabharwal Market, Railway Road, Kurukshetra.
2. The Oriental Insurance Co. Ltd. through its Manager Head Office: Oriental House, A 25/27, Asaf Ali Road, New Delhi- 110002.
3. Kohli Hyundai, KGC Motors, Sanour road, Patiala 147001 Punjab through its Manager.

 

….Opposite parties.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

       

Present:     Sh. Deepak Sandhu, Advocate for complainant.   

                Sh. Gaurav Gupta, Advocate for opposite parties no.1 and 2.

                Opposite party no.3 exparte.

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Harmandeep Singh against the Oriental Insurance Company Ltd. & others, the opposite parties.

2.            It is stated in the complaint that complainant is owner of Hyundai i20 Car bearing No. HR07T-9499 and the said car was insured with ops no.1 and 2 vide policy no.261303/31/2016/3834 which was valid from 21.11.2015 to 20.11.2016. That the said car met with an accident on 26.10.2016 and in this regard, a DDR No.16 dated 27.10.2016 was registered in police station Pehowa, District Kurukshetra. It is further averred that thereafter complainant informed the ops regarding the accident and submitted all relevant documents to the ops within time. Then complainant got repaired the said vehicle from op no.3 and they charged Rs.2,87,055/- on account of repair of the said vehicle which was paid by complainant. That surveyor of the ops also inspected the vehicle and submitted his report to the ops. It is further averred that thereafter complainant lodged a claim for the said amount/ bill but ops have postponed the matter on one pretext or the other and till today have not paid the said amount which amounts to deficiency in service and unfair trade practice on the part of ops. It is further averred that thereafter complainant sent a legal notice dated 15.11.2017 upon ops but to no effect. Hence, this complaint.

3.             On notice, opposite parties no.1 and 2 appeared and filed written statement taking certain preliminary objections that complaint is pre-mature due to delay on the part of complainant as till date complainant has not given his discharge voucher and cancelled cheque, so the claim of complainant has not been paid to complainant. The answering ops also sent registered letter dated 15.12.2017 at given address of complainant for fulfilling the formalities but same was returned back to answering ops. It is further submitted that complainant has suppressed the true and material facts from this Forum. After intimation of the own damage claim lodged by complainant with answering ops, they deputed an IRDA licensed independent Surveyor who inspected the vehicle and submitted his detailed surveyor report. After making necessary deductions and salvage value, total liability of answering ops comes to Rs.2,20,414/-. This fact was communicated to the complainant. Remaining contents of complaint are also denied.

4.             Opposite party no.3 did not appear despite notice sent through registered cover and was proceeded against exparte.

5.             The complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C11. On the other hand, learned counsel for ops no.1 and 2 tendered affidavits Ex.RW1/A and Ex.RW2/A and documents Ex.R1 to Ex.R4.

6.             We have heard learned counsel for the parties and have perused the case file carefully.    

7.             Learned counsel for complainant has contended that the car of complainant was insured with ops no.1 and 2 which was valid from 21.11.2015 to 20.11.2016. During the subsistence of the policy, the said car met with an accident on 26.10.2016 and the complainant informed the ops regarding the accident and submitted all the relevant documents to the ops within time. Thereafter, complainant got repaired the said vehicle from op no.3 for an amount of Rs.2,87,055/- which was paid by complainant. He has further contended that despite the fact that surveyor appointed by the ops inspected the vehicle and submitted his report to the ops, the ops have not paid any amount to the complainant. He has also contended that ops the report of the surveyor about total liability of ops to the tune of Rs.2,20,414/- is not correct because the complainant has spent actual amount of Rs.2,87,055/- which fact is proved from bills Ex.C3 to Ex.C7 and non payment of the said amount to the complainant by ops clearly amounts to deficiency in service. He has also placed reliance on the judgment of the Hon’ble Supreme Court in case titled as New India Assurance Company Ltd. Vs. Pradeep Kumar, CA No.3253 of 2002 decided on 9.4.2009.

8.             On the other hand, learned counsel for ops has contended that there is no deficiency in service on the part of ops as the complainant himself has not given his discharge voucher and cancelled cheque despite issuance of letter dated 15.12.2017. He has further contended that report of Surveyor is an important and a valid document. He has cited observations of the Hon’ble Supreme Court in case titled as UIIC Vs. Roshan Lal Oil Mills Ltd. and others, CA No.2339 of 1992 decided on 27.7.1999, Ankur Surana Vs. UIIC, RP No.2031 of 2012 decided on 16.1.2013 (NC) and Keshav Trading Company Vs. UIIC, Petition No.64 of 2005 decided on 1.8.2013.

9.             We have considered the rival contentions of the parties and have gone through the case file carefully.

10.            There is no dispute that complainant is owner of i20 Car bearing registration No.HR07T-9499 and the said car was insured with the ops no.1 and 2 with effect from 21.11.2015 to 20.11.2016. It is also undisputed fact between the parties that the said insured car of complainant met with an accident on 26.10.2016. In this regard, a DDR bearing No.16 dated 27.10.2016 was registered in the police station Pehowa, the copy of which is placed on file by complainant as Ex.C1. The complainant has alleged to have spend an amount of Rs.2,87,055/- on account of repair of the car in question from opposite party no.3 and in this regard complainant has placed on record bills Ex.C3 to Ex.C7 and also receipt of the amount of Rs.2,87,055/- as Ex.C2. Whereas, according to the ops no.1 and 2, the surveyor appointed by them have reported their liability to the tune of Rs.2,20,414/- and have relied upon copy of survey report Ex.R1. However, we see no substance in the plea of the opposite parties because the survey report Ex.R1 itself shows that there was extensive damage to the car in question and as many as 31 major parts of the vehicle were damaged in the accident. From the copies of receipts Ex.C2 and bills Ex.C3 to Ex.C7, it is proved on record that op no.3 has charged an amount of Rs.2,87,055/- from the complainant on account of repair of the vehicle in question and therefore, we are of the considered view that ops are liable to reimburse the said claim amount of Rs.2,87,055/- to the complainant and non payment of the same on lame excuses clearly amounts to deficiency in service. In this regard, we are also fortified with the observations of the Hon’ble Supreme Court in case titled as New India Assurance Company Ltd. Vs. Pradeep Kumar (supra) wherein it has been held as under:-

                Section 64-UM(2) of the Act 1938 reads:

                “No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value on any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1958, shall unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as “approved surveyor or loss assessor”):

                Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor.”

                The objection of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the lost must first be assessed by an approved surveyor (or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

 

11.            The above said authority is fully applicable to the facts and circumstances of the present case. The authorities cited by learned counsel for ops no.1 and 2 are not disputed but same are not applicable in this case.

12.            In view of the above said case law as well as above discussion, we allow the present complaint and direct the opposite parties no.1 and 2 to pay an amount of Rs.2,87,055/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% on the above said amount from the date of order till actual realization. We also direct the ops no.1 and 2 to further pay an amount of Rs.5000/- as compensation for harassment, mental agony and litigation expenses to the complainant. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.

Announced in open Forum:

Dt.: 26.4.2019

                                                                        (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha)            (Neelam)       

        Member                             Member