DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Complaint  Case No.: 688 OF 2010

Date  of  Institution  :   19.10.2010

Date   of   Decision  :   12.07.2011

Jagir Singh, Resident of House N0.52, Sham Nagar, Babyal Ambala Cantt.

                                                                                    ---Complainant.

V E R S U S

1]          Oriental Insurnace Co. Ltd., through its Manager, SCO No.109-10-111, Sector 17-D, Chandigarh.

2]       Joshi Auto Zone, through its Manager, Plot No.84-85, Industrial Area, Phase-II, Chandigarh.

---Opposite Parties

BEFORE:            SHRI LAKSHMAN SHARMA                   PRESIDENT

                        SMT. MADHU MUTNEJA                              MEMBER

Argued By:            Sh. N.S.Jagdeva, Adv. for the complainant.

Ms.Madhu Sharma, Adv. for OP-1.

Sh.Rajesh Verma, Adv. for OP-2.

PER MADHU MUTNEJA, MEMBER

1]             The instant complaint has been filed by Sh.Jagir Singh against Oriental Insurance Company & another for illegal repudiation of the claim for his damaged car.

                Briefly stated, the complainant is the registered owner of Tata Indigo Dicor Car bearing Regd. No.HR-01-X-1977, which was duly insured with OP-1 from 30.3.2010 to 29.3.2011. 

                The car of the complainant met with a drowning accident on 6.7.2010 at 9.30 A.M. near Zirakpur Highway when water came into the car due to settling down of soil on the road.  When the car came out of the water, the engine stopped working.  At the time of accident, the car was being driven by the son of the complainant, who possessed a valid driving licence.

                The complainant immediately contacted OP-2 to arrange for towing of the vehicle to their service station.  When OP-2 did not provide the service, the complainant on his own arranged for the towing of vehicle and took it to OP No.2.  The complainant and OP No.2 immediately informed the Insurance Company.  Sh.Juglesh Sood, was appointed as Surveyor by OP-1 to assess the loss.  The said Surveyor after calculating the loss to the tune of Rs.82,143.97 (Ann.C-4A), assessed and allowed the claim for Rs.58,060/- (Ann.C-4) and permitted OP No.2 to start repairs.

                The car was repaired and the complainant submitted the repair bill for Rs.88,523/-, dated 21.7.2010 to the Surveyor.  As the car was insured against the cashless policy, the complainant was surprised to know that OP-2 did not give the cashless benefit to him.  The complainant visited the office of OP-1 a number of times to settle his claim so that the vehicle could be handed over to him but no step was taken by OP-1 to make payment.  Ultimately, on 26.8.2010 the complainant made the payment of the bill to OP-2 from his own pocket and took back the vehicle. 

                Meanwhile, the complainant came to know that OP-1 had deputed a Second Surveyor, who also inspected the vehicle and gave his report on 10.8.2010 (Ann.C-6).  As per the report of second Surveyor, all major parts, which had been allowed by the first Surveyor, were disallowed. Hence, only Rs.15,160/- was allowed and the rest was disallowed. This report, as per the complainant, is much after the repair of the car on 20.7.2010. The damaged parts as per the complainant had already been replaced by OP-2 by this time, which included the fuel injector and fuel rail assembly.  The complainant has alleged that the appointment of second Surveyor by the OP-1 was with the sole intention of dis-allowing a genuine claim.  The complainant requested OP No.1 many time to clear his claim.  He has submitted that he was even called for discussion by the OPs where 50% of the cost of parts was offered to him.  Since he insisted on full claim, the OP-1 repudiated his claim without any justification.  The complainant has also made complaints to IRDA, TATA Motors and Joshi Auto Zone(OP-2) in this regard.  

                The complainant has thus filed the instant complaint alleging the action of the OPs as illegal, arbitrary and unfair trade practice.  He has prayed for allowing the claim of the accident to the tune of Rs.49,587.89 along with interest, compensation and cost of litigation etc.

2]             After admission, notices were sent to the OPs.

                OP No.1 in their reply has admitted the insurance of the vehicle and also the fact that Sh.Juglesh Sood, Surveyor was appointed for assessing the loss to the vehicle in question.  The report of Sh.Juglesh Sood, has been annexed with the reply.  This report has a specific observation under the head:

   REMARKS: “Our assessment is subject to technical opinion.”

Relying on this remark, OP-1 appointed Sh.R.S.Gill as Second Surveyor to assess the claim. Admitting the repairs on the accidented vehicle, the OP-1 relying on the report of the second Surveyor has passed the claim for cashless facility to the extent of Rs.15,610/-, which according to them was directly paid to OP-2.  The balance amount, if any, was hence to be paid by the complainant only.

                Further, the OP-1 has submitted that there was no malafide intentions in appointing the second Surveyor, who is a Technical Expert (Automobile Engineer), especially when Sh.Juglesh Sood, First Surveyor, has clearly mentioned in the report that his assessment is subject to technical opinion.  Hence replying on the report of second Surveyor at Ann.R-2, the amount of Rs.15,610/- was paid to OP-2 directly.  Denying all other allegation, OP-1 has prayed that only the genuine claim of the complainant was allowed and passed, so the complaint be dismissed accordingly.

                OP-2 initially put in appearance through Sh.Rajesh Verma, Advocate but later on none appeared on its behalf and therefore, OP-2 was proceeded exparte on 19.4.2011.  However, on the date of arguments, Sh.Rajesh Verma, appeared for OP-2 and joined the proceedings.

3]             Parties led evidence in support of their contentions

4]             We have heard the ld.Counsel for the complainant and OPs No.1 & 2 and have also perused the record.

5]             The OPs on receipt of intimation from the complainant about damage to the vehicle, appointed Sh.Juglesh Sood as Surveyor, who has given his report.  As per his report, the claim of Rs.58,060/- was payable to the complainant against estimate repair of Rs.82,143/- to the damaged car.  However, the OPs also appointed a second Surveyor to assess the claim as the first Surveyor had made a remarks in his report that his assessment is ‘subject to technical opinion’.

6]             From the Report/letter head of Sh.Juglesh Sood, first Surveyor, it is clear that he is an IRDA Approved Surveyor & Loss Assessor (Motor, Eng.. & Fire).  It is not clear as to why he has made such a remark in his report, when he himself is qualified to assess the claim in question.  The appointment of a second Surveyor in these circumstances does not seem justified especially when he has reversed the amount allowed by the first Surveyor without giving any reason.

                The complainant has placed on record the following judgments of Hon’ble National Commission:-

i)        NVC Group Farms & Ors. Vs. United India Assurance Company Ltd. & Ors., III(2010) CPJ (N.C.). wherein it has been held:

“Appointment of consecutive Surveyors… – Insurer violated provisions by consulting informal Surveyors and relying on their report after first Surveyor assess loss – Reports by informal Surveyors not based on correct appreciation of facts and circumstances – No physical investigation made – No cogent reasons given to differ from previous Surveyor’s report.” 

ii)       United India Insurance Co. Ltd. Vs. Bharat Zinc Limited, IV(2009) CPJ 90 (NC), wherein it has been held:-

“No cogent reason given for doubting correctness of report of first Surveyor – Surveyor’s report forms firm, independent basis for determining loss, unless it can be challenged on palpably valid grounds – Report of first Surveyor appears to be more sound”

iii)          National Insurance Co. Ltd. & Ors. Vs. Pacific Packers, III(2009) CPJ 270 (N.C.) where it has been held:-

“…second Surveyor cannot be appointed to contradict/rebut report of first Surveyor – Vast difference in assessment of loss made by two Surveyors – No comments obtained regarding difference, no action initiated against first Surveyor for allegedly having colluded with complainant – Report of first Surveyor unjustifiably rejected.”

                Relying on the above judgments, we are also of the opinion that the reason for appointment of second Surveyor by the OPs as well as the reason for preferring the report of the second Surveyor over the first Surveyor, is not clear hence un-justified. 

7]             The car of the complainant was ready for delivery on 21.7.2010 whereas the report of the second surveyor is dated 10.8.2010.  It is obvious from the dates that the car was totally repaired and had become roadworthy by then.  Hence the report of the second Surveyor at that stage could not have given the true picture of the accident/defects in the vehicle.  The report of the first Surveyor only thus should be taken into consideration in processing the claim.

8]             In view of the above discussion, we are of the view that the complaint deserves to be allowed.  Accordingly, we allow the complaint in favour of the complainant and directed the OP-1 to pay the following amount to the complainant:-

i)         Rs.58,060/- as assessed by the first Surveyor after deducting Rs.15,610/- which was directly paid to OP No-2.

ii)        Rs.7,000/- as compensation for delay in processing the claim and harassment caused to the complainant.

iii)       Rs.5000/- as cost of litigation.

                        The order be complied with by the OP-1 within a period of 30 days from the date of receipt of copy of this order, failing which OP-1 shall be liable to pay the awarded amount in (i) & (ii) along with interest at the rate of 12% per annum from the date of filing this complaint i.e. 19.10.2010 till the date of actual payment to the complainant besides paying Rs.5000/- towards cost of litigation.

9]             However, the complaint quo OP-2 stands dismissed as no deficiency is attributed to OP-2. 

                        Certified copies of this order be sent to the parties free of cost.  After compliance, The file be consigned to the Record Room.

Announced

12.07.2011

                                                           (LAKSHMAN SHARMA)

PRESIDENT

(MADHU MUTNEJA)

MEMBER