Order by:
Sh.Mohinder Singh Brar, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant is the owner of the Renault Duster Regd. No.PB-07-AM-3486. The said vehicle is comprehensively insured with Opposite Party vide Insurance Policy No.0000000023201967/ P01310521357850 w.e.f. 31.05.2021 to 30.05.2022 for the IDV of Rs.4,02,850/-. Alleged that on 17.05.2022 the said Duster Car met with an accident near Chandi Mata Temple and IIT Jammu NHW Jagti and at that time the car was being driven by Rajnish Mittal brother of the complainant. Thereafter, the complainant immediately lodged the claim with the Opposite Party, who appointed a surveyor and under the instructions of the Surveyor, the Vehicle was shifted to M/s Jammu Autowheels Pvt. Ltd. at Jammu (Authorized Service Center of Manufacturer). The complainant spent about Rs.2,500/- for crane charges and the original receipt was supplied to the Opposite Party through said surveyor. Thereafter the Opposite Party appointed another surveyor Er. Nitin Manhas for the final assessment of the loss of Vehicle. M/s Jammu Autowheels Pvt. Ltd. at Jammu issued the estimates to the tune of Rs.4,51,764/- against the IDV of Rs.4,02,850/-. Alleged further that the above said estimate is more than the IDV and the Original Estimate was supplied to the Surveyor and Opposite Party assured the complainant that as per GR-8 and Policy Condition the same is total loss. Thereafter the Opposite Party insisted the complainant to repair the vehicle and the complainant requested the Opposite Party that he has no money to repair the vehicle and under the coercion complainant gave the permission to process the claim for Rs.2,68,382/- and demanded the said amount against the IDV of Rs.4,02,850/-, but the complainant also stated that the repair of the vehicle is not repairable and thereafter withdraws his consent. The total repair cost was more than IDV of the vehicle. Alleged that the complainant also supplied all the papers i.e. P. Copies of RC, Insurance, DL, Original Estimates etc. to the Opposite Party within time at the time of survey. The complainant also issued one Regd. Letter Dated 26.09.2022 to the Opposite Party and demanded the claim, but the Opposite Party neither replied the same nor release the payment. The complainant also sent email on 26.09.22 to the Opposite Party, but to no effect. Alleged that due to such act and conduct of the Opposite Party, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay Rs.4,02,850/- i.e. IDV to the complainant on account of total loss of the vehicle, Rs.2500/- Crane Charges, Rs.50,000/- as demanded by authorized repairer for estimation and parking charges, Rs.3000/- per month as Garrage (parking for salvage) charges.
b) To pay Rs.50,000/- as compensation.
c) To pay interest @ 18% p.a. from 17.05.2022 till payment.
d) To pay Rs.40,000/- as cost of complaint.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under C.P. Act and appropriate remedy, if any, lies only in the Civil Court; the complainant has concealed material facts and documents from this Commission as well as the opposite party, therefore, the complainant is not entitled to any relief; the complainant has concealed the fact that the complainant lodged the claim with the opposite party and thereafter the opposite party wrote letters dated 08.08.2022, 15.08.2022 and 22.08.2022 to the complainant with request to get the vehicle repair as per surveyor assessment and produce the same for re-inspection after completion of repair work along with salvage, original repair/ replace bills, FIR copy/Police report, if any, occupants/ third party injury details, if any and cancelled cheque for EFT purpose, but however, the complainant failed to submit the above said documents as such the opposite party closed the claim of complainant vide letter dated 15.11.2022. The opposite party reserves its right to decide the claim as per terms and conditions of the policy as and when the documents are submitted; the complainant is not the consumer of the opposite Party; the complainant has no locus standi or cause of action to file the present complaint against opposite party. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Complainant has also filed replication to the written reply of Opposite Party denying the objections raised by Opposite Party in its written reply.
4. In order to prove his case, complainant has tendered into evidence his affidavit Ex.C1, his additional affidavit Ex.C1/A alongwith copies of documents Ex.C2 to Ex.C11.
5. To rebut the evidence of complainant, the Opposite Party has tendered into evidence copies of documents Ex.OP/1 to Ex.OP/7, affidavit of Sh.Jitendra Dhabhi, Manager Legal and Authorized Signatory, SBI General Insurance Company Ltd. as Ex.OP/8 and affidavit of Sh.Nitin Minhas, Surveyor and Loss Assessor as Ex.OP/9.
6. We have heard ld. counsel for the parties and have also gone through the record on file.
7. Ld. counsel for the complainant contended that the complainant is the owner of the Renault Duster Regd. No.PB-07-AM-3486. The said vehicle is insured with Opposite Party w.e.f. 31.05.2021 to 30.05.2022 for the IDV of Rs.4,02,850/- and on 17.05.2022, the said car met with an accident near Chandi Mata Temple and intimation of the said accident was given to Opposite Party. Thereafter the Vehicle was shifted to M/s Jammu Autowheels Pvt. Ltd. at Jammu, which issued the estimates to the tune of Rs.4,51,764/-. Further contended that Opposite Party insisted the complainant to repair the vehicle and the complainant requested the Opposite Party that he has no money to repair the vehicle and under the coercion complainant gave the permission to process the claim for Rs.2,68,382/- and demanded the said amount against the IDV of Rs.4,02,850/-, but the complainant stated that the repair of the vehicle is not repairable and thereafter withdraws his consent. Contended further that the complainant also issued one Regd. Letter Dated 26.09.2022 to the Opposite Party and also sent email on 26.09.22 to the Opposite Party, but to no effect.
8. On the other hand, ld. counsel for the Opposite Parties contended that the complainant lodged the claim with the opposite party and thereafter the opposite party wrote letters dated 08.08.2022, 15.08.2022 and 22.08.2022 to the complainant with request to get the vehicle repair as per surveyor assessment and produce the same for re-inspection after completion of repair work along with salvage, original repair/ replace bills, FIR copy/Police report, if any, occupants/ third party injury details, if any and cancelled cheque for EFT purpose, but however, the complainant failed to submit the above said documents as such the opposite party closed the claim of complainant vide letter dated 15.11.2022.
9. We have perused the rival contentions of ld. counsel for the parties and gone through the record. It is proved on record that despite issuance of letters dated 08.08.2022, 15.08.2022 and 22.08.2022, the complainant failed to get his vehicle repaired from the repairer and also failed to submit the documents demanded by them. It is also proved on record that the complainant has given his consent to Opposite Parties to process his claim for an amount of Rs.2,68,382/-. It is also proved on record that the model of vehicle is 4/2013 and the said vehicle met with an accident on 17.05.2022 meaning thereby that the vehicle is 10 years old and rate for depreciation of parts of the vehicle of the complainant is 50% as per the policy of the Opposite Party. The relevant depreciation chart as per age of the vehicle is mentioned as under:-
Age of Vehicle | % of Depreciation |
Not exceeding 6 months | NIL |
Exceeding 6 months but not exceeding 1 year | 5% |
Exceeding 1 year but not exceeding 2 years | 10% |
Exceeding 2 years but not exceeding 3 years | 15% |
Exceeding 3 years but not exceeding 4 years | 25% |
Exceeding 4 years but not exceeding 5 years | 35% |
Exceeding 5 years but not exceeding 10 years | 40% |
Exceeding 10 years | 50% |
10. Further Bare perusal of the Survey Report- Final, Ex.OP1/7 shows that said surveyor has submitted the detailed report after considering each and every facts calculated the New Claim amount to the tune of Rs.2,24,673.01. The relevant para of said Surveyor report is reproduced as under:-
Assessment Summary
Depreciated part cost including taxes and other levies 167,627.63
Total Labour including taxes 58,045.38
Add Towing 00
Less Excess Clause 1000
Less Voluntary Excess Clause 00
Additional Excess Deductible 00
Less Salvage 00
Less Discounts 00
Net Claim Amount 2,24,673.01
But however, on the other hand, the complainant has not denied the said detailed report by filing any other valid report of some independent surveyor. In view of the facts and circumstances of the case, we are of the concerted view that the complainant is entitled for the amount as assessed above by the surveyor. Further It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports cannot be brushed aside without any cogent reasons.”
11. Keeping in view the aforesaid facts and circumstances and relying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
12. In view of the discussion above, the instant complaint is partly allowed and the Opposite Party is directed to make the payment of Rs.2,24,673/- (Rupees Two Lakhs Twenty Four Thousand Six Hundred Seventy Three only) to the complainant on the basis of report of surveyor, but however the salvage of the vehicle in question will be kept by the complainant. Further Opposite Party is directed to pay compository cost of Rs.10,000/- (Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party is further directed to pay interest @ 8% p.a. on the awarded amount from the date of decision i.e. 22.02.2024 till its actual realization. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
