STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. M/s Future Generali India Insurance Company Ltd., through its Branch Manager, SCO No.78-79, 2^nd  and 3^rd Floor, Sector 17-C, Chandigarh

2. M/s Future Generali India Insurance Company Ltd., Corporate and Registered Branch Office, 001, Dalta Plaza, 415, Veer Savarkar Marg, Prabha Devi, Mumbai -400025

……Appellants/Opposite Parties

V e r s u s

Rakesh Mehta son of Sh.Som Dutt Mehta, r/o H.No.4590, Janta Chowk, Kharar, Distt. Mohali (Punjab) 140301 

              .... Cross Objector /Respondent /Complainant

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

Argued by:  Sh.Rajesh Verma, Advocate for the appellants/                 Opposite Parties.

              Ms.Pooja Sharma, Advocate for the cross objector/            respondent /complainant.

1.           M/s Future Generali India Insurance Company Ltd., through its Branch Manager, SCO No.78-79, 2^nd  and 3^rd Floor, Sector 17-C, Chandigarh

2.           M/s Future Generali India Insurance Company Ltd., Corporate and Registered Branch Office, 001, Dalta Plaza, 415, Veer Savarkar Marg, Prabha Devi, Mumbai -400025

……Non-objectors/respondents

V e r s u s

Rakesh Mehta son of Sh.Som Dutt Mehta, r/o H.No.4590, Janta Chowk, Kharar, Distt. Mohali (Punjab) 140301 

              .... Cross Objector/appellant

Cross Objections under Order 41 Rule 22, 32 and 33 of the Code of Civil Procedure.

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

Argued by:  Ms.Pooja Sharma, Advocate for the cross objector/            appellant in Cross Appeal.

              Sh.Rajesh Verma, Advocate for the non-objector/   

              respondents in Cross Appeal.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.           This order shall dispose of the aforementioned First Appeal no.292 of 2011, titled as M/s Future Generali India Insurance Company Ltd. Vs. Rakesh Mehta, filed by the appellants/Opposite Parties and the Cross objections/ First Cross Appeal no.359 of 2011, titled as M/s Future Generali India Insurance Company Ltd., Vs. Rakesh Mehta, filed by the cross objector/respondent/complainant (appellant in Cross appeal and respondent in First Appeal no.292 of 2011), against the order dated 07.09.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which,  it accepted the complaint, and directed the Opposite Parties (now appellants,  in first appeal no.292 of 2011 and respondents in Cross Appeal no.359 of 2011), as under:-

“Hence, we deem it appropriate to dispose of this complaint with directions to the OPs to consider the report of Sh.Kailash Chandra, Surveyor & Loss Assessor and accordingly decide the claim of the complainant for the damaged vehicle as per his assessment at Ann.P-1. Payment be made to the complainant accordingly.  This assessment be made and payment be released to the complainant within a period of 30 days from the date of receipt of copy of this order, failing which the OPs will be liable to pay the assessed amount along with interest @12% p.a. from the date of this order till the date of actual payment.       

The OPs will also pay Rs.50,000/- to the complainant as compensation for the deficiency in service and harassment caused to the complainant by taking the plea of non-appointment of a competent Surveyor by taking the plea of non-authorization, and thereby not settling the claim;, as also for not adhering to the Guidelines of I.R.D.A. for Protection of Policy Holder’s Interest.

The OPs will further pay Rs.7000/- as cost of litigation to the complainant”. 

2.           The facts, in brief, are that the complainant was the owner of a Toyota Qualis Vehicle, which he had purchased for using the same, as a Taxi, for earning his livelihood, by way of self employment.  The said vehicle was duly insured with the Opposite Parties, for the period from 21.10.2009 to 20.10.2010.  The Insured Declared Value of the Vehicle was Rs.3,06,000/-.  The vehicle met with an accident on 18.02.2010. DDR (Annexure C-3), was got registered with the concerned Police Station, and necessary information was given to Opposite Party No.1.  As per the advice of Opposite Party No.1, the complainant, handed over the vehicle, to the authorized workshop i.e. Global Automobile (infact Globe Automobiles)  Pvt.  Ltd., Mohali.  M/s Globe Automobiles Pvt. Ltd, examined the vehicle and prepared an estimate of Rs.7,51,053/-, towards repair of the vehicle. A Surveyor was appointed by the Opposite Parties, for inspection of the vehicle, who assessed the damage/payable amount, to the tune of Rs.1,64,088.85 Ps.  The complainant, thus, visited the office of the Opposite Parties, a number of times, to seek clarification, as to why, such a huge amount had been deducted, from his claim, as there was a marked difference, in the estimate quoted by M/s Globe Automobiles Pvt. Ltd., and the report of the Surveyor appointed by them (Opposite Parties).  However, the Opposite Parties,  did not consider his request. The complainant, even served a legal notice dated 21.05.2010, upon the Opposite Parties, to settle his claim, as he was unemployed because of the accident of the vehicle, but to no avail. It was stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also,  indulgence into unfair trade practice. 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 to be called as the Act only), directing the Opposite Parties, to pay Rs.7,51,053/- alongwith interest @12% p.a. from the date of accident, besides Rs.30,000/- per month towards parking/garage charges, as claimed by M/s Globe Automobiles Pvt. Ltd., Mohali, Rs.25,000/- on account of transportation, mental agony, harassment and litigation expenses and Rs.30,000/- per month, as damages for loss of business, was filed. 

3.               The Opposite Parties, in their written version, pleaded that the complaint was liable to be dismissed, being pre-mature.   It was stated that the complainant did not give his consent, for proper Survey of the vehicle, though a number of letters were written to him. It was further stated that, after receipt of intimation of damage, to the vehicle, the Opposite Parties, got the loss assessed, by appointing Engineer Ajay Kanwar, Surveyor and Loss Assessor, who submitted his Interim Motor Survey Report, dated 7.3.2010 alongwith details of assessment (Annexure R-5).  It was further stated that the estimate of loss to the vehicle was assessed to the tune of Rs.1,64,088.85 Ps. It was further stated that after investigation by Sh.Ajay Kanwar, Surveyor and Loss Assessor, the complainant was required to get the vehicle repaired.  It was further stated that the amount payable, as per the terms and conditions of the insurance policy, and, as assessed by the Surveyor and Loss Assessor, aforesaid, would have been paid to the complainant,  after the repair of the vehicle.  It was denied that the Opposite Parties, were liable to pay Rs.7,51,053/- alongwith interest and the amount towards any consequential loss, caused to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               In the rejoinder, filed by the complainant, it was denied that the loss assessed by Sh.Ajay Kanwar, Surveyor/Loss Assessor, appointed by the Opposite Parties, to the tune of Rs.1,64,088.85 Ps was correct.  The remaining averments, contained in the written version, were denied, being wrong.

5.               The Parties led evidence, in support of their case.

6.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.               Feeling aggrieved, First Appeal No.292 of 2011 was filed by the appellants/Opposite Parties and cross objections/cross-appeal, were filed by the cross objector/respondent/complainant.

8.               We have heard the Counsel for the parties, in the appeal, as well as the cross-objections/cross-appeal, and, have gone through the evidence and record of case, carefully. 

9.               The Counsel for the appellants/Opposite Parties, submitted that, on receipt of intimation, with regard to damage to the vehicle, in question, Sh.Ajay Kanwar, Surveyor and Loss Assessor, was appointed, who assessed the loss to the tune of Rs.1,64,088.85Ps. He further submitted that the letters Annexure R-1 dated 08.05.2010, Annexure R-2 dated 13.04.2010 and Annexure R-3 dated  20.04.2010, were written to the cross objector/respondent/complainant, but he did not give the loss assessor go-ahead, in the matter. He further submitted that the cross objector/respondent/complainant, himself got examined the vehicle, from other Surveyor, and Loss Assessor namely Sh.Kailash Chandra, during the pendency of the complaint and moved an application before the District Forum, for admitting that report, into evidence. He further submitted that reply was filed to the application, opposing the admission of such report into evidence, as the same was made at the back of the Opposite Parties. He further submitted that the District Forum allowed that application, vide order dated 07.09.2011, and on the same day, decided the complaint, on merits. He further submitted that no opportunity was afforded to the Opposite Parties, to lead evidence, in rebuttal, to the report of Sh.Kailash Chandra, Surveyor, and Loss Assessor. He further submitted that there was violation of the principles of natural justice, as the Opposite Parties were condemned unheard. He further stated that, thus,  the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.            On the other hand, the Counsel for the cross- objector/respondent/complainant, submitted that the District Forum adopted the proper procedure, in deciding the complaint on merits. She further submitted that, no doubt, the complaint was decided on merits on 07.09.2011, on which date the report of Sh.Kailash Chandra, Surveyor and Loss Assessor, submitted by the complainant, was admitted, into evidence. She further submitted that the Opposite Parties, very well knew about the report of Sh.Kailash Chandra, aforesaid, and, therefore, it could not be said that they were condemned unheard. She further submitted that the District Forum, while allowing the complaint, was required to grant interest @12% p.a. from 18.02.2010 (the date when the vehicle met with an accident). She further submitted that the complainant was also entitled to Rs.30,000/- per month, on account of loss of business, but the District Forum, fell into a grave error, in not granting the  same.  She further submitted that the appeal filed by the appellants/Opposite Parties, is liable to be dismissed, whereas, the cross objections/ cross appeal, are liable to be accepted.  

11.            After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal filed by the appellants/Opposite Parties, deserves to be accepted, and the complaint is liable to be remanded back to the District Forum, for fresh decision, for the reasons to be recorded hereinafter. When an intimation was given, by the complainant/respondent, with regard to the damage caused to the vehicle in the accident, Sh.Ajay Kanwar, Surveyor and Loss Assessor, was appointed by the Opposite Parties, who assessed the loss to the tune of Rs.1,64,088.85 Ps. Letters Annexures R-1 to R-3, referred to above, were written to the complainant, that, in case, he was not satisfied with the report, then he could give a consent for opening the vehicle, for the purpose  of ascertaining the loss properly, but he did not give a go-ahead to Sh.Ajay Kanwar, Surveyor and Loss Assessor. On the other hand, the complainant, himself, got the vehicle inspected from Sh.Kailash Chandra, Surveyor and Loss Assessor, at the back of the Opposite Parties, during the pendency of the complaint and moved an application to the District Forum, for admitting the said report dated 05.04.2011 of Sh.Kailash Chandra, into evidence, when already the parties had closed their evidence. That application was opposed, but the same was allowed,  vide order dated 07.09.2011, on which date the main complaint was also decided, on merits. When the report of Sh.Kailash Chandra, Surveyor and Loss Assessor, was admitted into evidence, by the District Forum, on 7.09.2011, it was required of it, to afford an opportunity to the Opposite Parties, to produce evidence, in rebuttal to the same, if any. However, no such opportunity was granted to the Opposite Parties, to lead evidence, in rebuttal to the report of Sh.Kailash Chandra, Surveyor and Loss Assessor. The Opposite Parties, therefore, had no opportunity whatsoever, to challenge the correctness of the report of Sh.Kailash Chandra, Surveyor and Loss Assessor. Had, an opportunity to rebut the report of Sh.Kailash Chandra, Surveyor and Loss Assessor, been afforded to the Opposite Parties, they might have produced some tangible evidence, to prove that the same was not correct. Under these circumstances, the Opposite Parties, were condemned unheard. There was, therefore, violation of the principles of natural justice. Under these circumstances, the order of the District Forum, is liable, to be set aside.

12.            For the reasons, recorded above, First Appeal no.292 of 2011, titled as M/s Future Generali India Insurance Company Ltd., Vs. Rakesh Mehta, filed by the appellants/Opposite Parties, is accepted, with no order as to costs, and the impugned order of the District Forum, is set aside. The complaint is remanded back to the District Forum, with a direction, to afford an opportunity to the Opposite Parties, to lead evidence, in rebuttal to the report of Mr.Kailash Chandra, Surveyor and Loss Assessor, which was admitted, into evidence, on 07.09.2011 (the date, on which the complaint was decided on merits), and, thereafter, decide the complaint on merits, after hearing the Counsel for the parties.

13.            In view of the decision in First Appeal no.292 of 2011, titled as M/s Future Generali India Insurance Company Ltd., Vs. Rakesh Mehta, filed by the appellants/Opposite Parties, the cross objections/cross-appeal No..359 of 2011, are dismissed, as having been rendered infructuous.

14.            The parties are directed to appear before the District Forum, on 04.04.2012 at 10.30 a.m.

15.            The District Forum record be sent back immediately, alongwith a copy of the order.  

16.            Certified copies of this order, be sent to the parties, free of charge.

17.            The appeal files be consigned to Record Room, after completion

Pronounced.

March 20, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg