Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that he purchased a car Ertiga VXI CNG 1.5L MT Make of Maruti Company on 03.09.2021 and the said car was got insured, vide policy no.901748177/SR14883558 for the period 27.08.2023 to 29.08.2024 for a sum of Rs.14562/- from Opposite Party No.1, through Opposite Party No.3. On dated 25.04.2024, when complainant went to market for some urgent work, suddenly he met with an accident near Big Ben, G.T. Road, Moga and got some dents and scratches on the car and front mirror of the car and back light also breaks down in the said accident. As the vehicle was duly insured with Opposite Party No.1, through Opposite Party No.3, so the complainant on 25.04.2024 approached to Opposite Party No.3 and requested it for repair or replace of the parts which are covered under the policy. As per the directions of Opposite Party No.3, their advisor prepared the bill of loss of Rs.1,12,525/- after inspection of the car. After few days complainant received a message from the advisor namely Arshdeep Singh, who prepared the estimated bill and he refer the same to surveyor of the company for passing the claim. Thereafter surveyor namely Gurwinder Singh told the complainant that only Vehicle’s front windshield is approved. Opposite Party No.2 never gave any sufficient reason for rejection of the partly claim. The complainant again and again contacted the Opposite Parties and requested them to cover all the loss/damage of his car under the above said policy, because he paid full amount policy, but the representative of insurance company totally ignored the request of the complainant. Alleged that Opposite Parties also threatened the complainant to give consent to start the job/repair of the vehicle or collect the vehicle otherwise complainant has to pay Rs.500/- per day parking charges from 10.05.2024. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay an amount of Rs.1,12,525/- as cost of estimated loss of the vehicle.
b) To pay a sum of Rs.1,50,000/- as compensation on account of mental tension, harassment and for deficient services.
c) To pay Rs.35,000/- as litigation expenses.
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 No.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is not tenable as there is no deficiency in service or unfair trade practice on the part of answering Opposite Party; the answering Opposite Party has not erred in offering service to the complainant under the settled business practices of insurance industry and terms and conditions of the policy. There is no consumer dispute existing; the complainant has failed to produce any evidence or specific averments worth its salt to prove its claim admissible under the terms and conditions of the insurance policy; the instant complaint is gross abuse of the process of law and the complainant has approached this Commission with unclean hands and has suppressed the material facts; the intricate question 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; the complainant has concealed material facts and documents from this Commission as well as the answering Opposite Party. The complainant has concealed the fact that the answering Opposite Party on receipt of claim, deputed Gurwinder Singh Patheja, Surveyor and Loss Assessor who conducted the survey, inspected the vehicle on 30.04.2024 and upon inspection of the said vehicle, it was observed that as per claim history and as per the cause of loss mentioned in the claim form, it is not concurrent with the damages to the vehicle as these damages were multiple and also found old/rusted and could not have been occurred on the date mentioned in the claim form. Only damages to front glass have been allowed as only this damage co-related with the mentioned cause of loss. The surveyor gave report and loss was assessed at R.10,718/- and has accordingly been paid to Opposite Party No.3 on 21.05.2024 vide UTR No.318829463. Averred further that there is no locus standi or no cause of action in favour of the complainant against the answering Opposite Party; the complainant is not the consumer of answering Opposite Party; the complaint is not maintainable in the present form. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Upon service of notice, Opposite Party No.2 appeared through counsel, but despite taking sufficient opportunities, it failed to file written reply within stipulated period of 45 days as envisaged under Section 38 (2) of the Consumer Protection Act, 2019. Hence defence of Opposite Party No.2 was struck of vide order dated 29.07.2024.
4. Opposite Party No.3 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is an abuse of the process of law qua the answering Opposite Party; the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of merits; the complainant has utterly failed to prove any fault on the part of answering Opposite Party. Averred that mere on the basis of the bald averments in the body of the complaint, no case is made out against the answering Opposite Party and the complainant cannot seek any relief from this Commission. Averred further that the answering Opposite Party No.3 repaired the vehicle in question as per the directions of Opposite Party No.1 and the complainant only. After completion of repair, the vehicle in question returned to the complainant in running condition. Since then, the vehicle in question is in the exclusive possession of the complainant and he is using the same. The answering Opposite Party cannot repair any vehicle beyond the permission granted by the insurance company. Averred further that the present complaint under reply is not maintainable either on facts or in the eyes of law against Opposite Party No.3. The complainant has not come before this Commission with clean hands and has concealed vital and material facts from this Commission. The complainant has presented an incorrect and wrong version of the facts before this Commission, thereby attempted to misguide & mislead this Commission; no cause of action, either wholly or in part, has ever arisen in favour of the complainant and against Opposite Party No.3. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
5. In order to prove the case, complainant has placed on record his affidavit as Ex.CW1/A alongwith copies of documents Ex.C2 to Ex.C25.
6. On the other hand, Opposite Parties have placed on record affidavit of Sh.Jitendra Dhabhai, Manager Legal & Authorized Signatory as OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP4 and affidavit of Er.Gurwinder Singh Patheja as Ex.OP1/5. Whereas, Opposite Party No.3 has placed on record affidavit of Sh.Amit Singh Brar, Managing Director, Remira Motors Pvt. Ltd. as OP3/1 alongwith copies of documents Ex.OP3/2 to Ex.OP3/5.
7. We have heard the ld. counsel for both the parties and also gone through the record.
8. It is admitted and proved on record that the complainant is the owner of a Car Ertiga VXI CNG 1.5 L 5 MT make of Maruti company bearing registration no.PB05-AP-1313, which was duly insured with Opposite Party No.1 vide policy no.901748177/SR14883558 for the period 30.08.2023 to 29.08.2024 and during the policy coverage, the vehicle of the complainant met with an accident near Big Ben, G.T. Road, Moga. It is not disputed that the complainant lodged the claim with Opposite Party No.1 regarding the said accident and got prepared the estimate of the loss to the tune of Rs.1,12,525/-. Thereafter, Opposite Party No.1 appointed Gurwinder Singh Patheja, Surveyor and Loss Assessor to assess the loss to the tune of Rs.10,718/-. The only dispute between the parties is regarding the assessment of loss. The complainant alleged that loss caused to the vehicle in question to the tune of Rs.1,12,525/-, but against the said amount Opposite Party No.1 only allowed an amount of Rs.10,718.98/-.
9. Now, we have to see whether the loss assessed by Opposite Party No.1 is genuine or not?
10. Perusal of the record reveals that the complainant has placed on record copy of the estimate of loss as Ex.C22 amounting to Rs.1,12,525/-, but he has not placed on record any document revealing that extensive damage has been occurred to the vehicle in question justifying the said estimate. Moreover, perusal of the photographs of the vehicle placed on record by the complainant nowhere reveals that any extensive damage has been occurred to the vehicle in question. We have perused the detailed ‘Final Survey Repot’ (Ex.OP1/3) of Gurwinder Singh Patheja, Surveyor, in which he assessed the loss to the tune of Rs.10,718.98 after considering each and every fact with regard to the said accident. Further it is evident on record that Opposite Party No.3/Remira Motors repaired the vehicle of the complainant as per the report of the surveyor and prepared the Job Card (Ex.OP3/3) amounting to Rs.11,783/-, from which, an amount of Rs.1020/- was deducted and thereafter an amount of Rs.10,720/- has been approved by Opposite Party No.1, vide Ex.OP3/5.
However on the other hand, the complainant has not placed on record any document/bill showing that after getting repaired the vehicle from Opposite Party No.3, he ever got repaired his vehicle from another workshop against the estimate (Ex.C22) in order to prove that his vehicle actually suffered extensive loss. From the above facts and circumstances, we found no ingenuinenity in the report of the surveyor. Moreover, 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”. 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. In view the discussion above, we found no deficiency in service on the part of Opposite Parties. Hence, the instant complaint is hereby dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. The pending application(s), if any also stands disposed of. Copy of the order be supplied to the parties free of costs. File be consigned to record room.
Announced in Open Commission
