Delay of 48 days in filing the Revision Petition is condoned.

          Complainant/respondent purchased a Toyota Corolla car on 12.10.2007, the ex-showroom price of which was Rs.10,04,639/-.  She got the car insured from the petitioner which was valid from 28.2.2008 to 28.2.2009.  The vehicle met with an accident on 08.4.2008 when it was being driven by the respondent’s husband Sikander Singh between Shahbad and Kurukshetra, consequent to

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which the vehicle was extensively damaged.  Due information was given by the respondent to the petitioner.  On advice received, the vehicle was taken to Pioneer Toyota, authorized dealer for Toyota, at Industrial Area, Chandigarh.  A Surveyor was appointed.  Respondent requested the petitioner to declare the vehicle to be total loss as the repair was not possible.  Petitioner preferred to get the car repaired rather than declaring to be total loss.  An estimate amounting to Rs.7,18,983/- including taxes was prepared.  The car was got repaired and on delivery, the respondent found that the car was not in a running condition.  Aggrieved by this, she filed the complaint before the District Forum.

          District Forum dismissed the complaint, aggrieved against which the respondent filed the appeal before the State Commission.

          The State Commission by the impugned order has allowed the appeal and held that the Insured Declared Value (IDV) of the car was Rs.8.50 Lacs and the repair costs came to Rs.6,94,357/- which was more than 75% of Rs.8.5 Lacs, i.e., the Insured Declared Value of the car.  Relying upon GR 8 of the Indian Motor Tariff Act wherein under column ‘Insured Declared Value’, it is stated that a vehicle will be

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considered a case of ‘total loss’ where the aggregate costs of repairs of the vehicle exceed 75% of the IDV.  The State Commission has given the following reasons for allowing the appeal.

“12.        The main question raised by the complainant in his complaint is that the car had suffered an extensive damage and therefore, it was a case of total loss whereas as per OP No.1, the accident was minor and the damage caused to the car was repairable.  The sole dependence of learned counsel for OP No.1 was on the survey report wherein the extent of indemnification had been stated to be Rs.5,44,729.07 Ps which was payable to the complainant.  A critical perusal of the surveyor’s report indicates that in all, the car had suffered a damage as assessed initially in the first part of the survey report to the tune of Rs.5,47,097.19 Ps under the following heads:-

     a)      Cost of Metallic Parts Rs.2,46,147.75 Ps

     b)      Cost of Rubber Parts Rs.2,45,641.50 Ps

     c)      Cost of Glass Parts     Rs.    7,105.50 Ps

     d)      Cost of Labour             Rs.  48,202.44 Ps

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13.         In the subsequent part of the survey report, based on the supplementary estimate dated 12.7.2008, the surveyor has further assessed the total repair cost of the car amounting to Rs.1,47,260/- as under:

(a)          Cost of Metallic Parts           Rs.93,645.00Ps

(b)          Cost of Rubber Parts            Rs.53,615.25Ps

14.                 Thus the total cost of repairs as assessed by the surveyor himself without excluding the depreciation applied on the rubber parts to the extent of 50% comes to Rs.6,94,357.00 [Rs.5,47,097.00 + Rs.1,47,260.00].  It is clear from this that the car, which had an IDV of Rs.8.50 Lacs had suffered a damage, the cost of repair of which amounted to Rs.7 Lacs approximately.  OP No.1 in the written statement has stated that the car had met with a minor accident.  By no stretch of imagination, such a huge damage to the car could be termed as minor.  At the face of it, it was a fit case for declaring the car as a total loss.  However, as has been stated and is clear from the report of the surveyor, the surveyor still found the car to be in a repairable condition.  This action of the surveyor itself smacks of malafide particularly in view of GR-8 of Indian Motor Tariff wherein under Column ‘Insured Declared Value (IDV)”, it has been stated that a vehicle will be considered to be a case of CLT where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV.  In this particular case, admittedly, the IDV of the car was only Rs.850 Lacs and the cost of repair as indicated earlier amounted to Rs.6,94,357.00.  OPs have not placed the copy of the policy on record nor have they indicated any term or condition of the policy vide which this provisions of GR-8 of Indian Motor Tariff is excluded.  Therefore, we find merit in the contention that the damage to the car should have been treated as total loss for the purpose of indemnification.  In this context, we are also guided by the order of Hon’ble Supreme Court in the case of New India Assurance Company Limited Vs. Pardeep Kumar reported as (2009) 7 Supreme Court Cases 787 wherein it has been clearly held by the Hon’ble Apex Court that the report of a licensed surveyor/loss assessor is not final and binding on the parties.  Though, it is settled law that the surveyor’s report cannot be ordinarily brushed aside being an important document, the law is also settled that in case such a report is malafide or incorrect then the same is not binding.  Thus, in view of above observations, we find that the surveyor’s report cannot be made binding in the present case based on its facts and circumstances as apparently, the report has been prepared with malafide intentions to help the Insurance Company to evade its full liability to indemnify the complainant for the loss suffered.

15.                 In view of the foregoing discussion, in our considered opinion, the impugned order does not stand legal scrutiny and therefore, cannot be sustained.  Consequently, the complaint as well as the appeal are allowed and the impugned order is set aside.  OP No.1 – Insurance Company is directed to indemnify the complainant to the extent of Rs.8.50 Lacs i.e. the IDV of the car in question and this amount is directed to be paid by OP No.1 to the complainant along with interest @ 9% per annum from the date two months after the submission of the surveyor’s report till realization.  OP No.1 is further directed to pay the complainant a sum of Rs.5,100/- which we quantify as costs of litigation.  Since, admittedly the car in question is lying with OP No.1, the same can be collected by OP No.1 after paying the amount of indemnification to the complaint.  The complainant is also directed to handover the required documents to OP No.1 for further disposal of the car in question.  The above directions be complied with within a period of one month from the date of receipt of certified copy of this order.”

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          We agree with the view taken by the State Commission.  In this case, as per the estimate prepared by the dealer, which was duly approved by the Surveyor of the petitioner, the costs of repairs came to Rs.6,94,357/- which was more than 75% of the IDV of the car.          GR 8 of Indian Motor Tariff Act is binding on the petitioner and the petitioner failed to act in accordance with that.  The State Commission has rightly directed the petitioner to pay the insured amount.  No merits.  Dismissed.

          On payment of awarded amount, the petitioner would be entitled to take possession of the car which is lying in the showroom of the dealer.