Haryana

Yamunanagar

CC/1160/2012

Sanjay Kumar S/o Surinder Kumar - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Pawan Mago

09 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1160 of 2012

                                                                                    Date of institution: 30.10.2012

                                                                                    Date of decision: 09.06.2016.

Sanjay Kumar aged about 45 years son of Shri Surinder Kumar, R/o H. No. 172, Model Colony, Yamuna Nagar.                           

                                         …Complainant.

                                                     Versus

Oriental Insurance Company Ltd. Opp. Hindu Girls College, Ist Floor, Court Road, Jagadhri 135003 through its Manager.

                                                                                                                             …Respondent.                                       

 

 

Before: SH. ASHOK KUMAR GARG…………….. PRESIDENT.

            SH. S.C.SHARMA………………………….MEMBER.

 

Present:    Sh. Pawan Mago, Advocate, counsel for complainant.  

                 Sh. P.K.Gupta, Advocate, counsel for respondent.           

 

 

ORDER

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act praying therein that respondent (hereinafter referred as OP) be directed to make the payment of Rs. 72,987/- on account of repair and purchasing of spare parts of vehicle Mahindra Bolero and also to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the vehicle Mahindera Bolero bearing registration No. PB02AP-7133 owned and possessed by the complainant which was insured with the OP Insurance Company vide its Insurance Policy bearing No. 261701/31/2011/4464 valid from 31.08.2010 to 30.08.2011 met with an accident on 17.07.2011 and was badly damaged. A claim was lodged with the OP Insurance Company and Surveyor & Loss Assessor was deputed by the Op Insurance Company. The complainant repaired his vehicle from Om motor Garage Sawanpuri Chhoti Line, Jagadhri and paid a sum of Rs. 63500/- and further he purchased the spare parts from M/s K.K. Traders and also paid Rs. 2660/-. Some spare parts were also purchased from Goyal Auto Spare Parts to the tune of Rs. 6827/-. All the original bills were submitted with the Op Insurance Company and complainant visited so many times to the office of the OP Insurance Company to settle the claim of the complainant but the OP Insurance Company did not pay any heed. Ultimately, the complainant issued a legal notice dated 28.09.2012 which was duly served but not replied. So, there is deficiency in service on the part of OP Insurance Company. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable as fault lies with the complainant himself as he gave wrong account No. 200917127846 and Bank IFSC Code No. MAHB0001309 Maharashtra Bank, Yamuna Nagar in his own handwriting and when the settled amount was transferred through NEFT of the OP Bank i.e. Bank of India Jagadhri to the account of the complainant but the same return back on 10.09.2012 and again on the request of the complainant, the said amount was again transferred in the said account but with the same fate the same returned back to the account of the OP Insurance Company on 20.10.2012. The complainant was asked through the reply of legal notice to supply the cancelled cheque leaf and photo copy of first page of pass book alongwith correct bank account and IFSC Code enabling the OP Insurance Company to transfer the fund to the complainant account but instead of providing the same the complainant filed the present false complaint; no locus standi to file the present complaint; no cause of action; complainant has not come to this Forum with clean hands and on merit it has been admitted that Insurance policy in question was issued in the name of Sanjay Kumar Marwa in respect of vehicle registration No. PB02AP-7133 which was valid w.e.f. 31.08.2010 to 30.08.2011. Further it has been admitted that Sh. M.L.Garg an independent Surveyor and Loss Assessor was appointed who gave his fact finding detailed report dated 21.09.2011 assessing the net loss of Rs. 18100/- but the same returned back to the said bank twicely due to wrong account number given by the complainant. It has been further admitted that a legal notice was received by the OP Insurance Company which was duly replied on 08.11.2012. Rest contents of the complaint have been denied being false and concocted. Lastly, prayed for dismissal of complaint as there was no deficiency in service or unfair trade practice on the part of OP Insurance Company.  

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of registered AD legal notice dated 28.09.2012 as Annexure C-1, Photo copy of acknowledgement as Annexure C-2, Photo copy of Bills as Annexure C-3 to C-5 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP Insurance Company tendered into evidence affidavit of Abhas Toppe, Official of OIC, Yamuna Nagar as Annexure RW/A and affidavit of Sh. M.L.Garg, Surveyor & Loss Assessor as Annexure RW/B and documents such as Photo copy of insurance policy as Annexure R-1 & R-2, Photo copy of letter dated 08.11.2012 alongwith account statement demanding correct bank account number and photo copy of cancel cheque as Annexure R-3, Photo copy of claim form as Annexure R-4, Photo copy of Surveyor report as Annexure R-5 and Photo copy of Discharge Voucher as Annexure R-5/A and closed the evidence on behalf of OP Insurance Company.       

6                      We have heard the counsel of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

7                      It is not disputed that the vehicle Mahindra Bolero bearing registration No. PB-02AP-7133 was insured with the OP Insurance Company vide its policy bearing No. 261701/31/2011/4464 and during the currency of insurance policy in question met with an accident on 17.07.2011 and a Surveyor & Loss Assessor was deputed who submitted his report (Annexure R-5) and assessed the amount of Rs. 18750/-. Learned counsel for the complainant argued at length that the complainant has spent Rs. 72,987/- on the repair of his vehicle and draw our attention towards the repair and labour bills Annexure C-3 to C-5 and argued that OP Insurance Company has settled the claim of the complainant on lower side which was even not paid by the OP Insurance Company despite so many requests and visits. Learned counsel for the complainant further draw our attention towards the surveyor report in which the surveyor has assessed the total loss of Rs. 18750/- and argued that no explanation has been given by the OP Insurance Company that why they were paying an amount of Rs. 18100/- to the complainant when the Surveyor and Loss Assessor has assessed the loss of Rs. 18750/-.  

8.                     On the other hand, counsel for the Op Insurance Company argued that claim of the complainant has been rightly settled by the Op Insurance Company and Insurance Company has tried his best to transfer the said amount in the account of the complainant through NEFT but due to wrong account number given by the complainant the transaction could not be effected. Hence, there was no deficiency in service or unfair trade practice on the part of OP Insurance Company.

9.                     After hearing both the parties, we are of the considered view that there is a deficiency in service on the part of the OP Insurance Company and the complainant is entitled to get some relief. We have perused the surveyor report Annexure R-5 from which it is evident that Sh. M.L.Garg, Surveyor & Loss Assessor has assessed the loss to the tune of Rs. 18750/- after deducting the depreciation as well as excess clause etc. vide his report dated 21.09.2011 the same was wrongly withheld for near about 1years by the OP Insurance Company as the OP Insurance Company, firstly tried on 10.09.2012 and secondly on 20.10.2012 to transfer the same as is admitted in the written statement by the OP Insurance Company. Further no explanation has been given by the OP Insurance Company that why the said amount was not sent through cheque or DD to the complainant. Even, the Op Insurance Company has not explained in his reply/W.S. that on what account an amount of Rs. 650/- has been deducted from the surveyor report as the Op Insurance Company is trying to transfer an amount of Rs. 18100/- instead of Rs. 18750/- as assessed by the surveyor in his report which is evident from Annexure R-3,so, we are of the view that amount assessed by the surveyor has been illegally withheld by the OPs Insurance Company due to reason best known to them which constitute deficiency in service on the part of OP Insurance Company.

10                    Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent Rs. 72,987/- on account of damage to the vehicle is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same whereas on the other hand, loss has been assessed by the Surveyor and Loss Assessor to the tune of Rs. 18750/- on net loss basis vide his report (Annexure R-5) and it is settled proposition of the law, held by the Hon’ble National Commission as well as State Commission in various cases, that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

11.                   In the circumstances noted above, we are of the considered view that the OP Insurance Company has failed to make the payment of settled amount of Rs. 18750/- to the complainant within a stipulated period and withheld the amount without any reason and cause for more than 1 year, even, today the settled amount is lying with the Op Insurance Company. Hence, we have not option except to partly allow the complaint of complainant.

12.                   Resultantly, we partly allow the complaint of complainant and direct the OP Insurance Company to pay assessed amount of Rs. 18750/- to the complainant alongwith interest at the rate of 9% per annum from the date of 21.09.2011 when the surveyor submitted his report till its actual realization and further to pay Rs. 8000/- as compensation for mental agony and harassment as well as Rs. 2000/- as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court 09.06.2016.           

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                   

 

                                                                                    (S.C.SHARMA )

                                                                                    MEMBER.