STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Gifts and Cards, Shop No.13, Sector 22-D, Chandigarh through its Proprietor Shrimati Chitra Rani w/o Sh.Krishan Kumar.

……Appellant/complainant

V E R S U S

Oriental Insurance Company Ltd., SCO No.109-110-111, Surindra Building, Sector 17-D, Chandigarh.

              ....Respondent/OP

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Krishan Kumar, husband of Smt. Chitra Rani, Prop. of  appellant.

                Sh. D.C. Kumar, Adv. for the respondent.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   This is complainant’s appeal, against the order dated 8.4.2011, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which the compensation of Rs.3,000/- allowed by the OP/respondent was held to be proper and no deficiency in service was found.

2.                      Briefly stated, on 20.7.2010 the car of the complainant, which was comprehensively insured with the OP, met with an accident and suffered dents on both sides.  The OP, when informed, deputed their Surveyor Sh. Sudhir Malhotra who assessed the cost of repair to the vehicle at Rs.3,000/- only whereas the complainant incurred an expenditure of Rs.16,800/-. She served a legal notice dated 16.9.2010 on the OP, but to no avail.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The OP, in its reply, submitted that immediately on receipt of intimation they deputed their surveyor and upon receipt of his report and as per policy conditions, a decision was taken to pay Rs.3,000/- to the complainant, which was intimated to him alongwith the copy of the Surveyor’s Report vide letter dated 30.8.2010. However, the amount remained unpaid due to non-compliance of formalities by the complainant.  Remaining averments were denied, being wrong. Pleading that there was no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint was made

4.                      After hearing the authorized agent of the appellant, ld. Counsel for the OP and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

5.                      Feeling aggrieved, the instant appeal has been filed by the appellant/complainant for enhancement.

6.                      We have heard representative/husband of the appellant, ld. Counsel for the respondent and have gone through the evidence on record of the case carefully.

7.                      The contention of the representative of the complainant is that when the car was damaged, he took the same to Shankar Motor Workshop, Chandigarh who prepared an estimate for Rs.16,800/-, copy of which is Annexure C-3. An intimation was given to the surveyor, who visited the car in the said workshop on 30.7.2010 but wanted that the vehicle should be got repaired from the workshop of his choice to which the complainant did not agree, due to which the surveyor got offended and instead of allowing the compensation of Rs.16,800/-, paid by him to the workshop vide Annexure C-6, only a sum of Rs.3,000/- was allowed.  He has referred to the complaint (Annexure C-9) which was moved on 14.8.2010 upon which the explanation of the surveyor was called.  The surveyor submitted his comments dated 20.8.2010 denying the allegation and this fact was intimated to the complainant vide Annexure C-4.  However, in the meantime, i.e. after receipt of the complaint from the complainant, the surveyor gave this report dated 17.8.2010 declining to recommend the payment of more than Rs.3,000/- to the complainant.   Since a complaint about the misbehaviour of the surveyor had already been made by the complainant to the OP, the surveyor was not expected to act fairly. 

8.                      In response to the complaint Annexure C-9 dated 14.8.2010, the surveyor vide his explanation dated 20.8.2010 mentioned that the complainant had earlier to that reported the matter in the hub to Mr. Rajwant and the surveyor had told the officer concerned that only fenders and door were covered as per the claim form as the other damage was very old in nature as was evident from the photos taken by him on 30.7.2010.  The surveyor has filed his affidavit before the ld. District Forum mentioning therein that the damage which was old and did not match the history of accident was disallowed.  The contention of the ld. Counsel for the OP is that the complainant was entitled to the compensation reported by him and not to the old accidents in which the vehicle was damaged.  On the other hand, the complainant’s representative has denied if there was any scratch over the shell of the car prior to the incident reported by him.  The vehicle was insured vide policy (Annexure C-2).  There is no mention in this policy if the car was damaged.  The contention of the complainant is that in fact she is getting the car insured from the OP for the last 10 years and had never claimed any compensation.  The surveyor’s report (Annexure R-2) nowhere mentions if there were any dents and scratches prior to the date of the accident.  Rather under clause (IV) of para 12 of the surveyor’s report, it was mentioned as follows :-

                   iv)      “The damage observed can be attributed to the accident in nature and is in accordance with the said history of the accident as allowed.”

The surveyor in his report (Annexure R-2) has not given any reasons as to why he was allowing Rs.3,000/- only as compensation as against Rs.16,800/-.  The report of the surveyor is totally arbitrary and is not based on any reasoning.  There is no mention in this report also if there was earlier damage to the vehicle or any of the photographs taken by him showed that the scratches existed which were prior to the date of the accident in question.   Rather in clause (III) of para 12 of his report, he has mentioned that the labour charges for assembly/disassembly, denting and painting were not agreed upon with the repairer.  How he assessed the amount of Rs.3,000/- is only a guess work and a whimsical decision of the surveyor which, in our opinion, is only due to the reason that the complainant did not get the repair work done from the workshop favoured by the surveyor.  We are, therefore, of the opinion that this ground has been coined by the surveyor, and consequently by the OP now, in order to justify their arbitrary action in disallowing the claim of the complainant, without any basis or reasons therefor.

9.                      Had there been any damage to the vehicle prior to the accident in question and if the same had come to the knowledge of the surveyor, as claimed by him through his affidavit, there is no reason why he had not mentioned the same in his report Annexure R-2.  In that eventuality he would have given reasons in para 7 of his report relating to the summary of assessment as to why the amount of Rs.3,000/- alone was being given and not the remaining one.  In that situation, he would have mentioned this fact in clause (IV) of para 12 of his report and would not have mentioned that the damage observed can be attributed to the accident in nature and is in accordance with the said history of the accident as allowed. He would have given the reasons as to why and how he arrived at the conclusion to refuse the remaining amount of Rs.13,800/-. It is, therefore, clear that the report (Annexure R-2) is not based on any sound reasoning and is a result of arbitrariness, presumably due to the reason that the complainant did not accede to the request of the surveyor to get the vehicle repaired from the man of the surveyor. 

10.                   The next question would be whether such a report should be accepted as correct.  In support of his argument the learned counsel for the OP/respondent has referred to   the case Sikka Papers Ltd. Vs. National Insurance Co. Ltd. & Ors.-2010 ACJ 291.  in which case, the claim of the insured related to the replacement of several parts not affected by the incident but to prolong the life of the engine and reimbursement of cost of parts which were subject to wear and tear in constant use.  It was held that the said request for compensation cannot be allowed as the same were not covered by the terms of the policy.  It is not so in the present case because no such part is being replaced to prolong the life of the car.  He has also referred to case Manmandir Synthetics Pvt. Ltd. Vs. New India Assurance Co. Ltd.-IV (2005) CPJ 6 (NC), in which  case also the surveyor’s report was accepted.  However, a reference may be made to para 19 of the judgment in which it is mentioned that as per the report of the surveyor he has taken pains to explain at page 44 of the paper book the ground for arriving at the figure of loss of 8500 kgs.  All the details of break-up were given by the surveyor but, in the present case, it is a cryptic report giving no reasons or grounds to come to the figure of Rs.3,000/-.  No doubt, now after filing of the complainant reasons have been coined that the complainant was asking for compensation of an earlier accident.  There is no evidence adduced by the OP if the car had earlier met with an accident.  There is, therefore, no evidence to prove this contention.  Both these authorities cited by the ld. Counsel for the OP are on different facts and are not helpful to his case.

11.         As against it, the representative of complainant/appellant has referred to the case New India Assurance Co. Ltd. Vs. Pradeep Kumar-IV (2009) CPJ 46 (SC),  in which it was held as under :-

“…………..In other words although the assessment of loss by the approved Surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but Surveyor’s report is not the last and final word.  It is not that sacrosanct that it cannot be departed from; it is not conclusive.  The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

In another case Dharmendra Goel Vs. Oriental Insurance Co. Ltd.-2008(4) RCR (Civil) 108, the Hon’ble Supreme Court held as follows :-

                   “………..It is, therefore, obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they are called upon to pay compensation.  This ‘take it or leave it’ attitude is clearly unwarranted not only as being bad in law but ethically indefensible…”

The report of the surveyor therefore, could not be made the basis to reject the claim of the complainant.

12.                   As per the estimate (Annexure C-3), the car could be repaired by spending a sum of Rs.16,800/-.  It was got repaired by the complainant from Shankar Motor Workshop and he paid a sum of Rs.16,800/- vide cash memo (Annexure C-6). The complainant would be entitled to this amount.

13.                   The OPs have unnecessarily harassed the complainant and withheld the amount at the asking of the surveyor with whom the complainant had proved bias.  They did not make the payment of compensation to which the complainant was entitled and compelled him to file the present complaint.  We are, therefore, of the opinion that the complaint was liable to succeed. The appeal is therefore, liable to be allowed with litigation costs of Rs.5000/-

14.                   In view of the above discussion we are of the opinion that the present appeal succeeds and the same is allowed with costs.  The OP are directed to pay to the complainant a sum of Rs.16,800/- alongwith interest @ 12% per annum w.e.f. 17.9.2010 (one month after the report, Annexure R-2, of the surveyor), till the amount is actually paid to the complainant.  If the compensation amount and the litigation costs are not paid by the OP, within a period of thirty days from the date of receipt of copy of the order, then they shall be liable to pay the same alongwith penal interest @ 18% per annum w.e.f. today till the amount is paid to the complainant.

15.                   Since the entire litigation has been generated due to the wrong report made by the surveyor, the OP would be free to recover the amount of interest and litigation costs etc. from Mr. Sudhir Malhotra, surveyor, in accordance with law.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

29^th August, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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