STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 09.03.2018
Date of final hearing: 08.01.2024
Date of pronouncement: 19.02.2024
First Appeal No.299 of 2018
IN THE MATTER OF:-
1. The New India Assurance Company Limited, Branch Office G.T. Road, Shahbad, Distt. Kurukshetra, through the Manager (Legal) Regional Office SCO No.36-37, Sector 17-A, Chandigarh.
2. The New India Assurance Company Limited, Registered and Head Office, New India Assurance Building, 87 M.G.Road, Fort, Mumbai through Manager (Legal) Regional Office SCO No.36-37, Sector 17-A, Chandigarh.
....Appellants
Ram Rati W/o Late Roshan Lal S/o Phool Chand, R/o VPO Saral Sukhi, Tehsil Thanesar, Kurukshetra.
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Brigadier (Retired) B.S.Taunque, Advocate for appellant.
None for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Delay of 30 days in filing of this appeal stand condoned for the reasons stated in the application.
2. Challenge in this Appeal No.299 of 2018 of appellants/OPshave been invited to the legality of order dated 04.01.2018 passed by District Consumer Disputes Redressal Forum, Kurukshetra, District Kurukshetra (In short “District Consumer Commission”) in complaint case No.93 of 2016, vide which complainant’s complaint has been allowed.
3. Factual matrix:Roshan Lal-husband of complainant was owner of vehicle No.HR 65/5436. He got it insured from opposite parties (In short “OPs”)/appellants and period of insurance was from 27.12.2012 to 26.12.2013 and sum assured was Rs.2,27,500/-. On 14.05.2013 this vehicle, being driver by Sultan Singh and in which Roshan Lal was also travelling by sitting on seat, adjacent to driver seat, met with an accident, when it struck against Safeda Tree in process to save stray cow which come in its front. The vehicle was badly damaged. Sultan Singh and Roshan Lal died in the said accident which occurred on Deeg to Pundri road. Regarding accident, G.D. entry No.19 (A) dated 14.05.2013 was entered in Police Station-Pundri, Distt. Kaithal. Information regarding accident was also given to OP No.1(insurer). Complainant- the wife of deceased Roshan Lal and also being his legal heir; applied for claim of damaged vehicle and deposited all the requisite documents as demanded by OP No.1, who assured to release the insured claim as soon as possible. OP No.1 postponed the matter on one pretext or the other and finally refused to release the amount, without any satisfactory reason, which as per plea amounted to deficiency in service on insurer’s part, leading to filing of complainant by complainant.
4. OPs- appellants resisted the complaint. In their defence, it is pleaded that complaint is not maintainable; complainant has not come with clean hands and supressed true and material facts. It is admitted that the vehicle met with an accident on 14.05.2013. It is also admitted that vehicle was insured with the OPs-appellants and intimation regarding damage to it was received by OPs-appellants and some documents were submitted by complainant. It is pleaded that Ravi Kumar Gupta-surveyor who is qualified and licensed person, was deputed to assess loss and he submitted report. Complainant’s claim was repudiated by competent authority after considering all facts and intimation in this regard was given to complainant. There was no deficiency in service of OPs-appellants; dismissal of complaint has been prayed. It is pleaded that: although claim is not payable at all, even then, if court comes to conclusion that claim is payable to complainant, in that eventuality, insurer is not liable to pay more than Rs.1,23,314/- as assessed by surveyor on account of damages.
4. On critically examining rival pleas, evidence; learned District Consumer Commission-Kurukshetravide order dated 04.01.2018 has allowed the complaint thereby directing OPsto pay Rs.2,27,500/- to complainant within a period of 60 days, failing which, complainant would be entitled to simple interest @ 6% per annum on this amount from the date of order, till its payment.
5. Feeling aggrieved; OPshave filed this appeal.
6. In the proceedings of this appeal; since 20.05.2022 nobody has represented complainant-respondent.Arguments on behalf of appellants were heard on 08.01.2024 and even on that day; nobody appeared on behalf of complainant-respondent. Appellants have also placed on record written arguments. Orally, learned counsel has urged that order dated 04.01.2018 is grossly erroneous. The District Consumer Commission, Kurukshetra has travelled beyond the ambit and scope of legal parameters, while allowing complaint and fastening liability upon insurer-appellants to the extent of Rs.2,27,500/-, which as per insurance policy was the insured value of his vehicle No. HR-65-5436. It is urged that surveyor of the appellants has assessed the loss at Rs.1,23,314/- vide his report. This, as per contention, should have been the liability upon insurer-appellants in any case, and not the liability of full insured value of vehicle as per policy. Learned counsel has contended that due to damage to vehicle,it was not a case of total loss, it was repairable and Surveyorhas also specified estimated amount of loss at Rs.2,29,724/-. Surveyor has given a detailed assessment, after considering terms and conditions of policy, depreciation on account of damage to metallic parts and rubber parts of vehicle and his report should have been accepted by learned District Consumer Commission. Since this has not been done, therefore, as per contention, appellants have suffered gross, obvious and manifest injustice. On these submissions, acceptance of appeal has been urged.
7. Admittedly, Roshan Lal was owner of vehicle No.HR-65-5436. Admittedly, appellant is insurer of this vehicle as per insurance policy Ex.R-1 and insured value of vehicle as per policy is Rs.2,27,500/-. Admittedly, this vehicle met with an accident on 14.05.2013, during the currency of insurance period viz. 27.12.2012 to 26.12.2013. Surveyor of the appellant has given report Ex.R-2 dated 22.09.2014 and assessed net loss at Rs.1,23,314/-, while simultaneously assessing estimate amount of loss at Rs.2,29,724/-.
8. At legal pedestal, surveyor’s report of insurer carries enough evidentiary value. Of course, it is subject to rebuttal, but in present case, there is no evidence, worth the name, led by complainant in order to rebut the integral part of said report of surveyor dated 22.09.2014-Ex. R-2, in order to justify her claim to the extent of total insured value which is Rs.2,27,500/- qua damaged vehicle. While observing so, on above mentioned legal adage; this Commission derives strength on judgments in cases viz. New India Assurance Company Ltd. and others Vs. M/s Mudit Roadways, Civil Appeal No. 339 of 2023 decided on 24.11.2023 (2023 INSC 1022) and New India Assurance Company Ltd. Vs.Pardeep Kumar 2009 (7) SCC 787. Surveyor has assessed the net loss at Rs.1,23,314/- payable to complainant, vide his detailed report dated 22.09.2014 Ex.R-2. Glance at this report explicitly reflects that surveyor has assessed specific amount for metal parts, rubber parts, fiber parts and glass parts by applying admissible depreciation, as per the policy. There is no reason before this commission to blush aside this report Ex.R-2, which undoubtedly has formed a formidable and acceptable base. Of course, learned District Consumer Commission has held that loss assessed by surveyor to the tune of Rs.1,23,314.05/- is wrong, illegal and arbitrary but no reason has been quoted in support of that finding. Reason to support any finding has be there. Hon’ble National Commission in case titled as Iffco Tokio Gen. Ins. Col Ltd. Vs. Beena Raghav III (2015) CPJ 75 (NC) has held under para 7 “that surveyor was an independent professional engaged by petitioner to assess loss suffered by respondent with respect to respondent’s car and property. Report prepared by surveyor was significant and evidentiary value cannot be ignored and dismissed as such by saying that ‘assessed loss’, cannot be considered trustworthy without giving valid reason for coming to this conclusion.” Above being settled legal position this Commission has no justifiable reason to overlook the surveyor’s report dated 22.09.2014-Ex.R-2 and thus endorse the same. Consequently, impugned order dated 04.01.2018 passed by learned District Consumer Commission, Kurukshetra to the extent of fastening liability upon insurer/appellants to pay Rs.2,27,500/- to insured (being the value of damaged car as per policy), is held as erroneous and unsustainable. Instead, it is proved that liability of insurer-appellants would be Rs.1,23,314.05/- only as per surveyor’s report dated 22.09.2014-Ex.R2. The appeal of insurer-appellants is allowed to this extent and impugned order dated 04.01.2018 is modified, by now holding that complainant is entitled to Rs.1,23,314.05/- as per surveyor’s report and this amount would be paid by insurer-appellants to complainant, with interest (6% p.a.), as awarded by learned District Consumer Commission, Kurukshetra. This Commission vide order dated 24.04.2018 has stayed recovery beyond Rs.1,23,314.05 (amount assessed by surveyor). As per legal implications; this order dated 24.04.2018, is now made absolute through present order. As a corollary so flowing, this appeal is partly allowed with above modification.
- Statutory amount of Rs.25,000/- deposited by appellants at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
- Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
11. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
12. File be consigned to record room.
Date of pronouncement: 19th February, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-III
