BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KINNAUR AT RECONGPEO H.P ( Camp at Rampur)
.
Complaint No. 3/2011
Presented On: 30.6.2011
Decided On: 23.3.2015
………………………………………………………………………....
Sh. Sant Ram, S/o Sh. Vidya Lal, R/o Village & Post Office Chansu, Tehsil
Sangla, District Kinnaur, H.P.
…..Complainant
Versus
1. The Oriental Insurance Company Limited Through its Branch
Manager, Branch Office at Kothi No.4 Opp Petrol Pump, Kaithu
Shimla, H.P-171003.
2. Sh. Manoj Kumar Kukreja, Surveyor and Loss Assessor# 813Sector 11
Panchkula, Haryana.
…..Opposite parties
………………………………………………………………………………..
CORAM
Sh. K.S.Chandel, President
Sh. Vijay Kumar Negi, Member
………………………………………………………………………………..
For the complainant: Sh. Nasib Negi, Advocate
For the Opposite Party: Sh. Rajesh Sharma, Advocate
No.1
OP-2 is ex-parte.
…………………………………………………………………………..
ORDER:.
K.S.CHANDEL,( District Judge) President
The complainant Sant Ram has preferred this complaint
under section 11 & 12 of Consumer Protection Act, 1986 against the
opposite parties (hereinafter referred as OPs for short) claiming
deficiency in service as well as unfair trade practice by the OPs. The
complainant has pleaded and claimed to be the owner of vehicle
bearing No. HP-63-1591 which has been insured with the OP for the
period w.e.f. 8.10.2009 to 7.10.2010. The complainant has claimed
that the vehicle met with an accident on 14.11.2009 and the
intimation was sent to the OP about the accident and loss thereof to
the vehicle for which the surveyor was appointed by the OP who


visited the spot. The complainant has further claimed that as per
advise of the surveyor the vehicle was taken to Chandigarh and
assessment of loss and damages as assessed were submitted to
surveyor for final survey and the claim was also submitted to the OPs
along with documents. The complainant has further claimed that Rs.
1,38,983.74p the cost of repair whereas the surveyor has assessed the
loss and damage to the vehicle to Rs. 23,664/- which has been
pleaded and claimed to be wrong and illegal and, as such, the
complainant has sought the claim of Rs. 1,38,983.74p along with
interest and further damages for harassment including litigation
expenses. The complaint is duly supported with an affidavit of the
complainant.
2. In reply the OP-1 has taken preliminary objections claiming that
neither there is any deficiency in service nor unfair trade practice as
pleaded and claimed by the complainant since, the loss of the
complainant was assessed by the surveyor and approved vide letter
dated 26.3.2010 Annexure R-1. The OP has also taken preliminary
objections that the surveyor has assessed the loss as per terms and
conditions Annexure R-2 to Rs. 23,664/- as per survey report Annexure
R-3. The OP has also taken preliminary objections that the complainant
had represented vide Annexure R-4 pertaining to the dissatisfaction for
the assessment of loss by the surveyor and the matter was further taken
up with the surveyor vide letter Annexure R-5 and the surveyor in
pursuance thereof vide Annexure R-6 clarified the assessment along
with written confirmation of the repair in original Annexure R-7
including re-inspection photographs Annexure R-8 to R-18 which
was duly conveyed to the complainant vide letter dated 13.4.2010
Annexure R-19. On merits, the OP has pleaded and claimed that the
surveyor was appointed who has assessed the loss though the
complainant has failed to complete the codal formalities of settlement
of claim despite reminder Annexure R-20 dated 17.5.2010 . The OP has
further claimed that assessment of repairs as submitted by the
complainant Annexure R-22 to Annexure R-35 amounts to Rs.


1,10,940/- and the surveyor has taken into consideration this amount
vide Annexure R-3 after physical and actual inspection/ examination
and thereby has assessed the loss taking into consideration the
photographs Annexure R-6 to R-18. The OP has denied the loss as
pleaded and claimed by the complainant to Rs. 1,38,983/- and thereby
has sought for the dismissal of the complaint. The reply is also
accompanied by an affidavit of Divisional Manager of the OP.
3. The complainant in its rejoinder to the reply of the OP-1 has
denied preliminary objections taken by the OP and on merits the plea
of the OP has been denied and the contents of the complaint have
been reiterated .
4. We have heard the ld. Counsel for the parties and considered
the record carefully.
5. The vehicle of the complainant has been insured with the
OP which fact has not been disputed and this vehicle met with an
accident as the complainant has pleaded and claimed the loss to the
extent of Rs. 1,38,983.74p. The OP has assessed the loss to Rs.
23,663.52p as per final survey report Annexure R-3. The complainant
has based his claim for loss to the assessment vide Annexure C-6 to
Annexure C-25 out of which Annexure C-6 to C-8 are quotations,
Annexure C-9 estimate and Annexure C-12 is estimate/ bill,
Annexure C-13 bill memo, Annexure C-14 is estimate , Annexure C-
16 cash/ credit memo like Annexure C-17, Annexure C-18 estimate/
bill, Annexure C-19 bill/ cash memo, Annexure C-21 bill memo,
Annexure C-22 cash memo, Annexure C-23 to 25 are also cash memo.
The survey report which has been supplied to the complainant under
RTI Annexure C-29 has taken into consideration the estimate to the
extent of Rs. 1,19,270/- and thereby has assessed the loss Rs. 23,663/-
The surveyor has also taken into consideration the photographs
Annexure C-30 to Annexure C-39. The complainant has also been
supplied interim survey report Annexure C-40 to the complainant
under RTI along with photographs Annexure C-41 and C-42.


6. The OP has relied upon the final survey report Annexure R-
3 vide which the estimate amounting to Rs. 1,19,270/- has been
taken into consideration and the loss has been assessed to Rs.
23,663/- as per report Annexure R-3 which is the same as
supplied to the complainant vide Annexure C-29. The OP has also
sought the clarification on the representation of the complainant
Annexure R-4 for loss of assessment from the surveyor vide
letter Annexure R-5 and the surveyor vide his clarification
Annexure R-6 accompanied consent vide Annexure R-7 and
photographs Annexure R-8 to Annexure R-18 has endorsed his
final survey report which was duly intimated to the complainant
by the OP vide letter Annexure R-9. The OP has also relied upon
the interim survey report Annexure R-21, Photographs Annexure
R-22 to R-25 and the estimate of repairs submitted by the
complainant Annexure R-26 to R-35. The complainant in addition
to his affidavit in support of his claim has filed an affidavit of
one Parkash Proprietor of M/s Parkash Auto mobiles,
Manimajra Chandigarh who has claimed that the complainant has
paid the full and final payment to the parts and repairs ( labour
works) and the surveyor has never inspected the vehicle . The OP
has relied upon the affidavit of Senior Divisional Manager
accompanied by an affidavit of surveyor cum loss assessor
Manoj Kukereja who has claimed in his affidavit that he visited
the spot and assessed the loss caused to the vehicle to Rs.
23,664/- after taking into consideration all documents supplied by
the complainant and thereby asserted his final survey report
Annexure R-3 to be true and correct version of the loss assessed .
Therefore, when the surveyor and loss assessor who was duly
appointed to assess the loss to the vehicle of the complainant and
after taking into consideration the claim of the complainant as per
estimate for Rs. 1,19,270/- he has assessed the loss to the extent
of Rs. 23,663/- based on physical inspection of the vehicle
including repair thereof and assessment of loss is supported by an


affidavit of Manoj Kukereja surveyor cum loss assessor who has
asserted in his affidavit that he has physically inspected the
vehicle including the documents submitted by the complainant
and thereby assessed the loss to Rs. 23,664/- based on facts
though the complainant has filed an affidavit of one Sh. Parkash
Proprietor of M/s Parkash Auto mobiles, Manimajra Chandigarh
who has claimed that the complainant has paid the full and final
payment of parts/ repairs ( labour works) and he has further
claimed that Manoj Kukereja surveyor never inspected the
vehicle , but, since in the affidavit of Parkash Proprietor of M/s
Parkash Auto mobiles, Manimajra Chandigarh there is no
mention about his bills and mode of payments thereof so as to find
out the actual repair carried out and the parts replaced including
labour work which was required and, as such, the assessment by
the surveyor cum loss assessor is to be taken as actual loss to the
vehicle and as such, the complainant is entitled for loss of Rs.
23,664/- with interest @ 9% from the date of filing of the
complaint i.e. 30.6.2011 till realization . The complainant is also
entitled for damages for harassment including litigation expenses
of Rs. 25,000/- .The OP is directed to pay this amount within 45
days from the receipt to the copy of the order. Hence, the present
complaint is partly allowed. Copy of this order be supplied to the
parties free of cost as per rules.
Announced on this 23rd day of March ,2015
( K.S.Chandel)
President
(Vijay Kumar Negi)
Member
(Mahajan)