Chandigarh

DF-II

CC/700/2015

Gurcharan Singh - Complainant(s)

Versus

Oriental Insurance Company Limited - Opp.Party(s)

K.S. Baidwan Adv & H.B.S. Baidwan Adv.

14 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	700/2015
Date of Institution	:	08.12.2015
Date of Decision	:	14.06.2016

 

                                                

                                                         

Gurcharan Singh son of Sh.Pritam Singh r/o H.No.3183, Sector 51-D, Chandigarh

                                      ...  Complainant.

Versus

1.       Oriental Insurance Co. Ltd., Srindera Building, Sector 17-D, Chandigarh through its Manager/Authorized Person.

2.       M/s Hind Nissan, 9, Industrial Area, Phase-I, Chandigarh through its Manager/Authorized Person.

…. Opposite Parties.

 

BEFORE:   SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

 

Argued by:Sh.K.S.Baidwan, Adv. for the complainant

                   Sh.J.P.Nahar, Adv. for OP No.1.

                   Sh.Ranjan Lohan, Adv. for OP No2.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that  he got insured his car bearing registration No.CH-01-B-6555 with OP No.1 vide Insurance Policy (Annexure C-1) for the period from 23.02.2015 to 22.02.2015.  On 10.09.2015, the vehicle met with an accident and he took the same to the authorized dealer i.e. OP No.2 who prepared an estimate of Rs.68,000/- towards its repairs. The complainant told OP No.2 that the vehicle was insured under the cashless Insurance Policy. However, OP No.2 told him that OP No.1 had refused to pay the repairs charges and as such he got repaired the vehicle by paying Rs.68,000/- vide bill (Annexure C-2).   It has further been averred that OP No.1 assured him that the repairs charges would be returned to him after the receipt of the surveyor report by OP No.1.  He also got served a legal notice (Annexure C-3) upon OP No.1  but to no effect.  It has further been averred that the claim was illegally rejected.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant complaint.
2.           In its written statement, OP No.1-Insurance Company has admitted that the vehicle in question was insured with it. However, it has been pleaded that a compromise was reached between the complainant and Sh.Joginder Singh who undertook to get the car of the complainant fully repaired from the agency and hence nothing was payable by OP No.1.  It has further been pleaded that if the complainant did not receive any amount from any person towards the repairs of the car   then the repair charges are payable as per the terms and conditions of the Insurance Policy. It has further been pleaded that the surveyor has assessed the loss for Rs.64,350/- and by mistake he took the cost of the lock front RH door as Rs.2,624/- instead of Rs.2,332.24 and then OP No.1 arrived at the amount of Rs.64,021/-after deducting Rs.2,050/- towards the salvage value of the damaged parts and Rs.1,000/- as per excess clause of the policy.  It has further been pleaded that the complainant has already received the payment of Rs.25000/- from Sh.Joginder Singh and how much more has received till now only Sh.Joginder Singh could apprise the Forum. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.           The complainant filed rejoinder to the written reply of OP No.1 controverting its stand and reiterating his own.
4.           OP No.2 in its written statement has pleaded that it has been unnecessarily arrayed as a party as no such allegation has been made against it.  It has been pleaded that it received the vehicle for accidental repairs and thus, it was entitled to charge the repairs charges. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the compliant has been made.
5.           We have heard the learned Counsel for the parties and have gone through the documents on record.
6.           The only plea of the Insurance Company is that a compromise has already been entered into between the complainant and the third party-Sh.Joginder Singh and the complainant has already received a sum of Rs.25,000/- towards the repairs charges and as such they are liable to pay the repair charges after the deducting the said amount from the amount as assessed by the surveyor vide its report dated 08.10.2015.
7.           However, the aforesaid plea of OP No.1 has been vehemently denied by the complainant by filing rejoinder to its written statement.  In the rejoinder, the complainant has specifically pleaded that no compromise has ever been entered between him and Sh.Joginder Singh. It has further been submitted that Sh.Joginder Singh has no liability and authority to bear all the expenses.  Once the allegations made in the written statement have been vehemently denied by the complainant then the burden to prove the same lies upon the Insurance Company. The Insurance Company can prove the same by placing on record the affidavit of Sh.Joginder Singh regarding the alleged payment of Rs.25,000/- in lieu of the compromise but no such evidence has been placed on record. In absence of any cogent and reliable documentary evidence the version of OP No.1 cannot be believed in this regard. Otherwise also, in our considered view, it is the duty of the Insurance Company under the insurance contract to indemnify the insured for the actual loss on account of the damages to the vehicle in the accident, as per terms and conditions of the Insurance Policy and it has nothing to do with the third party.  
8.           It is evident from the surveyor report (Annexure R-3) that the surveyor has not only assessed the liability of the Insurance Company (OP No.1) to the tune of Rs.64,350/- but he has also recommended the claim for approval.  Nonetheless OP No.1 has failed to release the claim to the complainant.  In New India Assurance Co.Ltd. & Anr. Vs. New Good Luck Retrading Works, III (2009) CPJ 262, it was held that the Surveyor’s report cannot be brushed aside easily, without valid justification.
9.           In New India Assurance Co.Ltd., Vs. Febama Agencies, I (2013) CPJ 133 (NC), it was held that report of Surveyor  is  an  important  document and  it  is to be relied upon unless, it is contradicted by more credible evidence.
10.           The Insurance Company is, thus, legally liable to pay the amount as assessed by the surveyor and non-payment of the same after receipt of the surveyor report to the complainant itself amounts to deficiency in service as also indulgence into unfair trade practice on the part of OP No.1.
11.           In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. Opposite Party No.1 is directed as under ;-

1. To pay the amount of Rs.64,350/- as assessed by the surveyor to the complainant.
2. To pay a sum of Rs.7,000/- towards mental agony and physical harassment.
3. To pay a sum of Rs.5,000/- as litigation expenses.

This order be complied with by OP No.1, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) and (ii) shall carry interest @ 9% per annum from the date of this order till actual payment besides payment of litigation costs.

12.           The complaint qua OP No.2 stands dismissed.
13.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

14/06/2016

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER