DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 148 of 05.06.2007<br /> Decided on : 13-12-2007 <br /> <br /> Pawan Kumar S/o Bhagwan Dass R/o Near Truck Union, Talwandi Road, Ward No. 10, Raman Mandi, District Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.The Oriental Insurance Co. Ltd., Bank Bazar, Bathinda through its Divisional Manager.<br /> 2.Sundram Finance Ltd., Ahluwalia Complex, Near HDFC Standard Life Insurance, Guru Kashi Marg, Bathinda through its Manager/Incharge.<br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Naresh Garg, Advocate.<br /> For the Opposite parties : Sh. Sunder Gupta, Advocate for opposite party No.1.<br /> Opposite party No. 2 exparte. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Complainant is the owner of Truck No. RJ-31-G-4268 Model 2000. It was hypothecated with opposite party No. 2 as it had financed it. On 2.6.06 there was no incumberence on it. This vehicle was comprehensively insured with opposite party No. 1 vide Cover Note No. 897949 dated 1.6.06. Opposite party No. 1 did not supply the complete policy with terms and conditions. This vehicle had met with an accident with Truck No. PB-03J-4956 on 2.6.06 at 6.15 p.m. in the revenue limits of Police Station Lunaksar. Truck No. RJ-31-G4268 was totally damaged. Case with FIR No. 104 dated 2.6.06 was got registered at Police Station Lunaksar by cleaner of this vehicle. Drivers of both the trucks died in the accident. Intimation of the accident was immediately given by the complainant to opposite party No. 1 . Er. Suboth Sobat was deputed by opposite party No. 1 as spot surveyor. A sum of Rs. 1766/- was charged from the complainant and he gave his report. After that, opposite party No. 1 had deputed Er. Dinesh Goyal of Bathinda as final surveyor as vehicle was badly damaged. After spot survey, truck was shifted to Raman Mandi with the help of another Truck No. PB-03G-7817 under the instructions of opposite party No. 1 for which he paid Rs. 5,000/-. It is alleged that original receipt regarding payment of this amount is in possession of opposite party No. 1. Under the instructions of final surveyor, vehicle was got repaired. A sum of Rs. 2,77,584/- has been spent by him. Final surveyor had obtained his signatures on different 5-6 papers and blank vouchers at the time of survey with the assurance that full claim would be paid immediately after receiving the bills. It is added by him (complainant) that he withdraws all the papers and signed vouchers. According to him surveyor is under the thumb of the Insurance Company and cannot afford to disoblige his master. He alleges that opposite party No. 1 did not send copies of the spot survey and final survey reports to him. He demanded his claim of Rs. 2,77,584/- on the basis of the bills already submitted by him and survey fee of Rs. 1766/- but no reply has been given nor claim has been paid. Act and conduct of opposite party No. 1 has caused him mental tension, agony, pains and sufferings as more than one year has elapsed from the date of loss but opposite party No. 1 has not paid any heed to his request. There is deficiency in service on the part of opposite party No. 1. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by the complainant seeking direction from this Forum to opposite party No. 1 to pay Rs. 2,79,350/- alongwith interest @18% P.A, Rs. 25,000/- on account of mental agony and pains and Rs. 10,000/- as litigation expenses.<br /> 2. Opposite party No. 1 filed its version taking legal objections that complainant has mis-represented and concealed true and material facts; he has not come with clean hands; complicated questions of law and facts are involved which require voluminous evidence and as such this Forum has got no jurisdiction to entertain and try the complaint; there is no privity of contract between it and the complainant; neither any premium was received nor premium was deposited by opposite party no. 2 or the complainant on 1.6.06; complaint is pre-mature; complainant has no locus standi to file the complaint and complaint is false and frivolous. It does not deny the fact that complainant is the owner of Truck No. RJ-31-G-4268 and it was hypothecated with opposite party No. 2. which had financed it and that at the time of accident there was no encumberence on it. It admits that truck had met with an accident on 2.6.06. Intimation regarding accident was first given to Divisional Office Bikaner on 8.6.06. Thereafter Sh. Subodh Sobat was deputed for spot survey. Intimation was given to it at Bathinda on 10.6.06. Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor was deputed for final survey. It denies that a sum of Rs. 5,000/- was paid for bringing the truck in question to Raman Mandi. No receipt of Rs. 5,000/- was submitted to it or Sh. Dinesh Kumar Goyal who had inspected the vehicle at Raman Mandi. Complainant had submitted some estimates regarding its repairs. Complainant did not get the vehicle repaired in the presence of Sh. Dinesh Kumar Goyal. He did not follow his instructions in the form of informing him before dismantling the vehicle. He did not inform him from where he got the vehicle repaired. Surveyor has learnt from opposite party No. 2 that vehicle has been got repaired from Moga. Despite repeated requests and reminders, complainant has not produced required documents. Sh. Dinesh Kumar Goyal wrote letters dated 20.6.06 and 22.1.07 to the complainant to supply the required documents such as registration certificate of the vehicle, driving licence and other documents, but he did not bother. He did not produce the vehicle for final survey. Hence, Sh. Dinesh Kumar Goyal was left with no other option except to submit his report as per his visits at Raman Mandi. His report is dated 27.2.07 in which he has assessed net loss to the vehicle to the tune of Rs. 94,136/- subject to proof of non-violation of terms and conditions of the policy. Complainant has failed to produce the driving licence and its liability is subject to proof of non-violation of terms and conditions and subject to the proof that deceased driver of the truck was holding valid driving licence, claim could not be settled till today. Copies of the spot survey or final survey reports are not required to be sent to the complainant. Complainant has concealed the fact that Truck bearing Registration No. RJ-31-G-4268 had met with an accident at Lunaksar before he obtained Cover Note No. 897949 effective from 2.6.06 to 1.6.07 from opposite party No. 2. Cover Note was obtained by him in-connivance with opposite party No. 2 as vehicle was financed by it and hyphothecated with it. He has played fraud with it in-connivance with opposite party No. 2 by mis-representing that truck was previously insured with New India Assurance Company Limited vide Policy No. 360608/31/05/05487 although no such Cover Note/Insurance Policy was issued by New India Assurance Company Limited. On investigation, it was found that truck was previously insured vide Policy No. 360600/31/04/0100001569 effective from 2.8.04 to 1.8.05 and before that vide Policy No. 360600/31/02/0100005487 effective from 24.3.03 to 23.3.04 from New India Assurance Company Limited. This vehicle was not insured with any Insurance Company after 1.8.05. Complainant in-connivance with opposite party No. 2 has played fraud with replying opposite party by producing photocopy of Policy in which digits of the Policy No. 360600/31/02/0100005487 effective from 24.3.03 to 23.3.04 have been changed to 360608/31/05/010000/5487. Complainant in-connivance with opposite party No. 2 has succeeded in getting his vehicle insured vide Cover Note No. 897949 without disclosing the fact to opposite party No. 2 that aforesaid vehicle was not insured with any Insurance Company after 1.8.05. Alleged accident had occurred on 2.6.06 at 6.15 p.m. in the area of Police Station Lukansar (Bikaner-Rajasthan) and complainant had obtained cover note after accident in collusion with opposite party No. 2. Insurance Cover Note was issued in the previous date i.e. 1.6.06 although neither vehicle was at Bathinda on the alleged date of accident nor the same was inspected by opposite party No. 2 before its issuance. As per precedent, physical verification of the vehicle has to be done before issuing the Cover Note which has not been done in this case. Harchand Singh alleged driver of this Truck No. RJ-31-G-4268 was not holding a valid and effective driving licence at the time of alleged accident. Truck was being plied for commercial purposes and as such, complainant is not consumer and this Forum has got no jurisdiction to entertain and try the complaint. Complainant was not having valid registration certificate, fitness certificate and route permit. Truck was overloaded at the time of alleged accident due to which deceased driver could not control it and accident had occurred. In this manner, insured has violated the terms and conditions of the policy. It denies the remaining averments in the complaint and the deficiency in service on its part.<br /> 3. Opposite party No. 2 was served. No-one came present on its behalf. Accordingly, it has been proceeded against exparte.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence his two affidavits (Ex. C-1 & Ex. C-7), photocopy of Insurance Cover Note No. 897949 (Ex. C-2), photocopy of driving licence of Sh. Harchand Singh (Ex. C-3), photocopy of R.C. of vehicle No. RJ-31-G/4268 (Ex. C-4), photocopy of FIR No. 104 (Ex. C-5), photocopy of payment receipt of Er. Subodh Sobat (Ex. C-6), affidavit of Sh. Rajesh Kumar (Ex. C-8), photocopy of Death Certificate of Bhagwant Dass (Ex. C-9), photocopy of Survey report of Er. Subodh Sobat (Ex. C-10), photocopy of survey fee bill (Ex. C-11), photocopy of survey report (Ex. C-12), photocopies of photographs (Ex. C-13 to Ex. C-17), photocopies of Estimates (Ex. C-18 to Ex. C-24), photocopy of Intimation letter (Ex. C-25), photocopy of Cover Note No. 897949 (Ex. C-26), photocopy of Goods Carrier permit (Ex. C-27 & Ex. C-28), photocopy of letter dated 7.12.06 (Ex. C-29), photocopies of bills (Ex. C-30 to Ex. C-36), photocopy of account statement (Ex. C-37), photocopy of Cover Note No. 673411 (Ex. C-38) and original Cover Note No. 897949.<br /> 5. In rebuttal, on behalf of opposite party No. 1 photocopies of Insurance Policies (Ex. R-1 & Ex. R-2), photocopy of cover note No. 897949 (Ex. R-3), affidavit of Sh. R L Baleen, Divisional Manager (Ex. R-4), affidavit of Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor (Ex. R-5), photocopy of G R No. 938 dated 30.5.06 (Ex. R-6), photocopy of bill dated 5/06 (Ex. R-7), photocopy of receipt of premium (Ex. R-8) and photocopy of post mortem report (Ex. R-9) have been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant and opposite party No. 1.<br /> 7. Opposite party No. 1 does not deny the fact that complainant is the owner of Truck No. RJ-31-G-4268 Model 2000. Similarly there is no specific denial that at the time of accident, there was no finance on the truck. Opposite party No. 1 in its own way admits that Cover Note No. 897949 was effective from 2.6.06 to 1.6.07. There is admission on its part that Truck had met with an accident on 2.6.06. Er. Subodh Sobat was deputed for spot survey on the basis of information dated 8.6.06, copy of which is Ex. C-25. Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor was deputed for final survey and he has submitted his report dated 27.2.07 assessing net loss to the tune of Rs. 94,136/- subject to proof of non-violation of terms and conditions of the policy. Claim has not so far been settled.<br /> 8. Mr. Gupta, learned counsel for opposite party No. 1 argued that complainant has failed to submit the required documents to Mr. Dinesh Kumar Goyal despite his repeated requests and reminders and this fact is evident from affidavit Ex. R-5. After considering this submission, we do not feel ourselves inclined to agree with the learned counsel for opposite party No. 1 as no letter or reminder from Mr. Dinesh Kumar Goyal to the complainant is on the record.<br /> 9. Next submission of Mr. Gupta, learned counsel for opposite party No. 1 is that opposite party No. 2 was not authorised to issue Cover Note Ex. C-39, copies of which are Ex. C-2 & Ex. C-26 and physical verification of the truck was necessary before issuing Cover Note as is evident from the statement of Sh. Sham Sunder Goyal recorded on 3.10.07 by this Forum. Insurance is valid from 2.6.06 to 1.6.07. As per GR No. 438 dated 30.5.06 and copy of bill Ex. R-7, truck was in Rajasthan and had met with an accident on 2.6.06. This argument cuts no ice. Opposite party No. 2 which issued the Insurance Cover Note pertaining to this Truck No. RJ-31G-4268 is the agent of opposite party No. 1. Opposite party No. 1 being principal is bound by the acts of its agent. No doubt, Sh. Sham Sunder Goyal, Sr. Assistant, New India Assurance Co. Ltd., in his statement dated 3.10.07 has stated that inspection of the vehicle otherwise is mandatory. Further he has made clear that it is the discretion of the Insurance Company to inspect the vehicle or not before issuing the Cover Note. When opposite party No. 2 was the agent of opposite party No. 1, it does not lie in its mouth that opposite party No. 2 was not authorised to issue the cover Note. In this view of the matter, we get support from the observations of the Hon'ble National Commission in the case of New India Assurance Company Limited Vs. Satish Kumar II(2007) CPJ 187 (NC). In that case report was showing that administrative norms were not followed by the Development Officer before issuing Cover Note and opposite party had failed to prove that Cover Note was issued subsequent to the accident. Hon'ble State Commission had allowed amount of Rs. 70,380/- with interest as claim amount. Revision petition against that order preferred by New India Assurance Company Limited was dismissed.<br /> 10. One of the pleas of the opposite party No. 1 is that vehicle was financed by opposite party No. 2 and after receipt of information regarding above said accident, complainant in-connivance with it got issued Cover Note copy of which is Ex. C-2. As mentioned above, opposite party No. 1 has not specifically stated in the reply of the complaint that at the time of accident there was finance on the truck. Moreover, position becomes crystal clear from the document Ex. C-37 which falsifies this stance of opposite party No. 1.A perusal of Ex. C-37 reveals that this truck of the complainant was financed with opposite party No. 2 vide Agreement dated 17.9.03. Last installment regarding loan amount was due on 1.8.05. On 1.10.05 a sum of Rs. 5,000/- was deposited. Thereafter small amount of Rs. 1054/- was outstanding as on 14.5.07 which was deposited and the debit closing balance came to Nil. In such a situation, what was the necessity for opposite party No. 2 to connive with the complainant when particularly its meagre amount was due towards the complainant.<br /> 11. Learned counsel for opposite party No. 1 argued that complainant in connivance with opposite party No. 2 got issued Cover Note, copy of which is Ex. C-2 on 1.6.06 effective from 2.6.06 by forging policy of New India Assurance Company Limited in which Insurance Policy No. 360608/31/05/05487 effective from 2.8.05 to 1.6.06 has been shown. Mr. Sham Sunder Goyal has admitted that Cover Note Ex. C-38 regarding above said truck was effective from 2.8.04 to 1.8.05 and it was issued by New India Assurance Company Limited. Since as per Ex. C-38 and Ex. R-2 truck was insured from 2.8.04 to 1.8.05, complainant might have produced the insurance particulars for its insurance from 2.8.05 to 1.8.06. Complainant has succeeded in getting the Cover Note Ex. C-39 in-connivance with opposite party No. 2 effective from 2.6.06 to 1.6.07. If the truck was insured vide Cover Note Ex. C-38 then the same would have been renewed from 2.8.05 to 1.8.06 and there was no occasion for the complainant to get his vehicle insured from opposite party No. 1 w.e.f. 2.6.06 because atleast two months more time would have been there on the previous policy of the truck which clearly proves that complainant has played fraud with opposite party No. 1 in obtaining Cover Note Ex. C-39 from opposite party No. 2. Truck was previously insured vide Insurance Policy No. 360608/31/05/05487 with New India Assurance Company Limited although no such Cover Note/Insurance Policy was issued by New India Assurance Company Limited. Complainant in-connivance with opposite party No. 2 has played fraud with opposite party No. 1 by producing copy of the policy Mark 'A' in which digits of the policy 360600/31/02/010000/5487 effective from 24.3.03 to 23.3.04 have been changed to 360608/31/05/010000/5487.<br /> 12. Mr. Garg, learned counsel for the complainant argued that complainant did not get the truck insured after 1.8.05 and truck was got insured on 1.6.06 effective from 2.6.06 till 1.6.07 from opposite party No. 1 through opposite party No. 2. There can be said to be no connivance of the complainant with opposite party No. 2 in getting issued Cover Note Ex. C-39.<br /> 13. After giving our due consideration to the rival contention, we find considerable force in the submission of the learned counsel for the complainant. Date of issuance of Original Insurance Cover Note Ex. C-39 is 1.6.06 and it is effective from 2.6.06 to 1.6.07. As mentioned above, opposite party No. 2 is the agent of opposite party No. 1. It has issued it. Premium amount in cash has been shown to have been received on 1.6.06. Its copy produced by opposite party No. 1 is Ex. R-3. For the purpose of establishing that Insurance Policy No. 360608/31/05/05487 was shown at the time of obtaining Cover Note No. 897949, opposite party No. 1 is relying on mark 'A' and the addition R-3/A on Ex. R-3. Complainant is not owning the Insurance Policy, copy of which is mark 'A'. Mark 'A' cannot be read in evidence as it has not been proved. Moreover, application moved by opposite party No. 1 for additional evidence was allowed regarding insurance policy mentioned in his application subject to its producing legible copy. Despite this, legible copy has not been produced. Mark 'A' which is not properly legible has been brought on record. Ex. R-1 & Ex. R-2 are the copies of the Insurance Certificates of the Truck for the period from 24.3.03 to 23.3.04 and 2.8.04 to 1.8.05 respectively. Opposite party No. 1 intends to convey that after making cutting in the figures of Ex. R-1, mark 'A' has been created and Insurance Certificate No. 360608 has been made which was shown while getting issued the Cover Note Ex. C-39. Firstly mark 'A' cannot be read in evidence. Moreover being not legible, it cannot be said with certainity that it bears No. 360608. There is no addition on the original Cover Note Ex. C-39. No doubt Sh. Sham Sunder Goyal has stated that Code No. 360608 does not pertain to any Divisional Office of New India Assurance Company Limited throughout India. He has further stated that in case any cutting is made on the Insurance Cover note, the same is done by the issuing authority with his initial on the original. It being so, the only conclusion which is arrived at is that additions Ex. R-3/A on Ex. R-3 have been made by opposite party No. 1 particularly when the addition concerning Insurance Policy No. 360608/31/5/05487 is not on the original Insurance Cover Note Ex. C-39. Opposite party No. 1 alleges that this truck was insured for the previous period i.e. 2.8.05 to 1.6.06. It is not the case of the complainant that truck was insured after 1.8.05 till 1.6.06. Column No. 8 of Ex. C-39 regarding previous insurance particulars and the name of the Insurance Company and Policy Number is lying blank. This indicates that truck was not insured immediately prior to 1.6.06. Had the Insurance Policy for the previous period been shown while getting Insurance Cover Note Ex. C-39, opposite party No. 1 must have issued the confirmation letter to The New India Assurance Company Limited regarding mark 'A'. Sh. Sham Sunder Goyal has stated that in case vehicle is insured for the previous period by some other office of the same company or by any other Company, then confirmation letter is written for confirmation of the policy and No Claim Bonus, if any. He further stated that in this case, no letter was received from opposite party No. 1 about confirmation of the policy for the previous period. In case document, copy of which is mark 'A' was shown while obtaining Ex. C-39, opposite party No. 1 must have written letter of confirmation to The New India Assurance Company Limited. This complaint was filed on 5.6.07. Opposite party No. 1 did not issue any letter to the complainant that in fact incorrect copy of the Insurance Policy was shown while obtaining Insurance Cover Note. There is nothing on the record that surveyor of opposite party No. 1 or its Officer raised any objection in this respect. Opposite party No. 1 in the legal objection No. 2 in the reply of the complaint has pleaded that on investigation, it was found that truck was previously insured from 2.8.04 to 1.8.05 and that opposite party No. 2 in connivance with the complainant has played fraud with it by producing photocopy of the policy in which digits of the policy 360600/31/05/010000/5487 have been changed to 360608/31/5/010000/5487. No investigation report to this effect is on the record. Moreover, complainant has not availed No Claim Bonus for the policy alleged by opposite party No. 1 after 2.8.05 till 1.6.06. In these circumstances, if it is presumed for arguments sake although we do not subscribe to it that mark 'A' came into existence even then, it does not advance the cause of opposite party No. 1. Hence the stance of opposite party No. 1 that photocopy of policy with digits 360608/31/05/010000/5487 was produced for obtaining the cover note is unfounded and baseless. Opposite party No. 1 is presuming that when truck was insured vide Cover Note Ex. C-38, then the insurance would have been renewed from 2.8.05 to 1.8.06. Complainant is not claiming that he had got the insurance of truck renewed from 2.8.05 onwards before getting the Cover Note in question effective from 2.6.06. In the circumstances, the question of duping opposite party No. 1 for getting the Insurance Cover Note No. 897949 does not arise.<br /> 14. Another leg of the arguments on behalf of opposite party No. 1 is that in fact truck had met with an accident on 1.6.06 and after receipt of information about the accident, complainant got issued Cover Note Ex. C-39 in-connivance with opposite party No. 2 and this is proved from the post mortem report copy of which is Ex. R-9 according to which dead body of Harchand Singh was subjected to post mortem examination at 4.45 p.m. on 2.6.06 and the death has been shown within 24 hours before post mortem examination. Hence, there is no privity of contract between the complainant and opposite party No. 1. On the basis of evidence on record, we find no substance in this contention of learned counsel for opposite party No. 1. Doctor has given probable time as 24 hours between the time of death and post mortem examination. It is not the exact time given by him. Moreover, matter stands clinched from copy of the FIR which is Ex. C-5. Case regarding the accident of the truck in question was registered under Sections 279, 337, 304-A IPC. In this document, time of accident has been recorded as 6.15 a.m. on 2.6.06. Matter was reported to the police by one Iqbal Singh at 2.15 p.m. on 2.6.06. Admittedly Er. Subodh Sobat inspected the spot on 8.6.06. His spot survey report is dated 10.6.06, copy of which is Ex. C-11. He has also confirmed in it the date and time of accident as 2.6.06 at about 6.15 a.m. No time of commencement of insurance has been given in Ex. C-39. Hence cover note became effective from midnight in between 1.6.06 to 2.6.06 in view of the authority National Insurance Company Limited Vs. Smt. Sobina Iakai & Others 2007(3) RCR (Civil) page 582. When it is so, opposite party No.1 cannot say that there is no privity of contract between the complainant and opposite party No. 1. <br /> 15. It is in the written arguments of opposite party No. 1 that premium of Cover Note No.897949 has been deposited by opposite party No. 2 with opposite party No. 1 on 2.6.06 vide receipt copy of which is Ex. R-8 which proves the connivance of the complainant with opposite party No. 2. This argument is devoid of merits. At the risk of repetition it is again mentioned that opposite party No. 2 was the agent of opposite party No. 1. Opposite party No. 2 received the premium in cash from the complainant on 1.6.06 at 10.00 a.m. as is clear from Ex. C-39. If the agent deposited this amount with opposite party No. 1 on 2.6.06, complainant cannot be penalised. Moreover , Ex. R-8 cannot be said to be authenticated document as in it date 31.8.07 under Bank Code has been recorded. Moreover accident had taken place on 2.6.06 at 6.15 a.m. Policy became effective from the midnight between 1.6.06 and 2.6.06.<br /> 16. In Ex. C-39 insured's declared value has been declared as 4.00 Lacs. As mentioned above, this insurance became effective from 2.6.06. In Ex. R-1, the insured's declared value is Rs. 4.50 Lacs and the period of insurance was 24.3.03 to 23.3.04. Ex. R-2 is the Insurance cover note for the period from 2.8.04 to 1.8.05 and insured's declared value is 3.50 Lacs. From this contention of the learned counsel for opposite party No. 1 is that Insurance Cover Note Ex. C-39 has been obtained in-connivance by the complainant with opposite party No. 2. Insurance Cover Note Ex. C-39 was issued by the agent of opposite party No. 1. Several factors are taken into consideration while taking the Insured's declared value. If Insured's declared value for issuing Ex. C-39 was less than 4.00 Lacs, proportionate amount could be returned out of the premium amount by opposite party No. 1. This has not been done. Moreover, it is not a case of total loss of the vehicle and as such, this plea assumes no significance.<br /> 17. Opposite party No. 1 admits that intimation regarding the accident was given on 8.6.06. It has failed to decide the insurance claim within three months. Hence there is deficiency in service on its part. No deficiency in service on the part of opposite party No. 2 is established.<br /> 18. Now question arises as to which relief should be accorded to the complainant. Complainant asserts that he spent Rs.2,77,584/- for repair of the truck and a sum of Rs. 1766/- has been paid as survey fee to the spot surveyor . Copy of the survey fee bill dated 12.6.06 paid to the spot surveyor is Ex. C-11. Ex. C-18 to Ex. C-20 and Ex. C-22 are the copies of the estimates for repairs. Ex. C-21, Ex. C-23, Ex. C-24 and Ex. C-30 to Ex. C-36 are the various bills of repair of the truck from different places. Complainant has not got repaired the truck from authorised work shop. No notice is proved to have been issued to Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor before dismantling the truck for repairs. When it is so, complainant cannot be held entitled to recover Rs. 2,77,584/-. Complainant has himself cited the authority Sadeev Singh Sandhu and Sons Vs United India Insurance Company Limited II(1999)CPJ 118 in which it has been held that Insurance Company is legally bound to pay the amount as assessed by the Surveyor and non-payment of the same amounts to deficiency in rendering service. In this case, Sh. Dinesh Kumar Goyal, Surveyor & Loss Assessor has assessed the net loss to the tune of Rs. 94,136/-. Even in the written arguments, opposite party No. 1 has expressed its willingness to the effect that in case this Forum comes to the conclusion that it is liable to pay compensation, then its liability is limited to Rs. 94,136/- as per report of surveyor Ex. C-12. Hence, we hold that opposite party No. 1 is liable to the amount to this extent. Accordingly direction deserves to be given to opposite party No. 1 to pay this amount alongwith interest @9% P.A. from 9.9.06 onwards till realisation. Besides this, it is liable to pay Rs. 1766/- paid by the complainant to the surveyor on 12.6.06 alongwith interest @9% P.A. till realisation. Complainant is craving for damages to the tune of Rs. 25,000/- on account of mental agony and pains. There is no case to allow it in view of the relief which is going to be accorded as above. Out of interest and compensation one can be allowed.<br /> 19. No other point was urged before us at the time of arguments.<br /> 20. In the result, complaint is allowed against opposite party No. 1 with cost of Rs. 2,000/-. It stands dismissed qua opposite party No. 2. Opposite party No. 1 is directed to do as under :-<br /> i) Pay Rs. 94,136/- to the complainant alongwith interest @9% P.A. from 9.9.06 till realisation. It is further directed to pay Rs. 1766/- to the complainant alongwith interest @ 9% P.A. from 12.6.06 till realisation.<br /> Compliance of this order be made within 30 days from the date of its receipt.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 13-12-2007 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> <br />