DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 72/2015
Date of Institution : 24.04.2015
Date of Decision : 21.08.2015
Jatinder Kumar Proprietor of M/s Jatinder Kumar Rohit Kumar, New Bus Stand Road, Near Y.S. School, Barnala, Tehsil and District Barnala.
…Complainant
Versus
The Senior Divisional Manager, United India Insurance Co. Ltd., Divisional Office Bathinda.
The Branch Manager, United India Insurance Co. Ltd., Barnala.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. S.D. Bansal counsel for the complainant.
Sh. N.K. Singla counsel for the opposite parties.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Jatinder Kumar has filed the present complaint under Consumer Protection Act, 1986 (hereinafter called as Act) against United India Insurance Company Limited Divisional Office Bathinda and United India Insurance Company Limited Barnala, through its Branch Manager (hereinafter called as the opposite parties).
2. The facts emerging from the present complaint are that the complainant is the resident of Barnala and doing the business under the proprietorship of M/s Jatinder Kumar Rohit Kumar, Near Bus Stand Road, New Y.S. School, Barnala for earning livelihood and is a registered owner of i 20 Motor Car No. PB-19-J/1142. He has insured the said vehicle with the opposite party No. 2 vide policy No. 2004053113P107133833 for the period from 1.2.2014 to 31.1.2015.
3. The complainant alleged that the said Motor Car met with an accident on 17.7.2014 in the jurisdiction of Police Station Bakhshiwala District Patiala and the said Car was badly damaged. An FIR No. 71 dated 17.7.2014 U/s 279, 337 and 427 was registered. It is further alleged that the complainant immediately informed the opposite party No. 2 and they appointed surveyor for the inspection of the said damaged Car and directed to make the report. After inspecting the spot of accident, the surveyor advised the complainant to take the Car to Park Hyundai showroom at Sangrur, where the estimate of the loss caused to the said Motor Car assessed to the tune of Rs. 4,98,780-50 paise. The said Car was repaired by the said Park Hyundai showroom at Sangrur. On 30.10.2014 the said Car was handed over to the complainant after repair and an amount of Rs. 4,42,221/- as repair of the said Car and fee of surveyor fixed by the company was paid by the complainant.
4. It is further alleged that after some days, the complainant lodged the claim alongwith bills of the said amount to opposite party No. 2 and he also visited their office many times, but the amount was not paid. Thereafter the complainant served a legal notice through his Advocate dated 31.3.2015 for getting the amount paid by the complainant on the repair of the said damaged Car. But in reply the opposite parties only mentioned that the claim was being paid, but till date no amount was paid by the opposite parties. The second surveyor namely Er. Anand Pal Singh Gurunay appointed by the opposite parties assessed the fewer amount, which is against law and facts. It is further alleged that after receiving the reply of legal notice, the complainant met with the concerned official of the opposite party No. 2 to make the payment. However, the opposite party No. 2 refused to pay the entire amount without any sufficient cause. It was alleged that it is a case of deficiency in service on the part of opposite parties. Hence, the present complaint is filed seeking the following reliefs.
To pay the entire amount of Rs. 4,42,221/- paid by the complainant on the repair of said damaged Car and an amount of Rs. 11,500/- paid to the company on appointing the surveyor alongwith interest at the rate of 18% per annum.
To pay Rs. 50,000/- as compensation and Rs. 11,000/- as litigation expenses.
5. Upon notice of this complaint, the opposite parties appeared and filed joint written version taking legal objections interalia on the grounds of maintainability, no cause of action or locus standi and the complaint has become infructuous etc. On merits, the opposite parties pleaded that after receiving the intimation of the accident the opposite parties appointed Mr. Arvind Bhalla of Patiala as surveyor to inspect the spot of accident and after spot inspection the said Motor Car taken to Park Hyundai showroom at Sangrur. Thereafter the Regional Office of the opposite parties at Chandigarh deputed Er. Anand Pal Singh Gurunay proprietor of Eminent Surveyor, Patiala for survey and assessment of loss caused to the said Car, who inspected the said vehicle and submitted his Motor Survey Report dated 16.3.2015 and assessed the loss to the tune of Rs. 4,03,456-80 paise subject to terms and conditions of the insurance policy. It was further pleaded that the said Car was reinspected by Mr. Rajesh Aggarwal Surveyor and Loss Assessor Sangrur and he submitted his report on 20.3.2015 indicating that the vehicle was found repaired satisfactorily and is in road worthy condition.
6. The opposite parties however denied that estimate of loss amounting to Rs. 4,98,780-50 paise as alleged in the para of complaint was ever prepared by any authority. NCB confirmation regarding the insurance of the said vehicle for the period from 1.2.2013 to 31.1.2014 was also sought by opposite party No. 2 from the previous insurer of the said vehicle and on receipt of the NCB report from the previous insurer opposite party No. 2 has made the payment of Rs. 4,04,949/- to the complainant through NEFT on 1.6.2015 as per the loss assessed by Er. Anand Pal Singh Gurunay proprietor of Eminent Surveyor, Patiala approved surveyor vide his report dated 16.3.2015. As such no amount of the complainant remains outstanding against the opposite parties.
7. However, they have admitted the legal notice sent by the Advocate of the complainant and admitted that the reply to the said legal notice was sent to the Counsel for the complainant. The opposite parties also submitted that the report of said Er. Anand Pal Singh Gurunay is correct and genuine and the opposite parties have paid the amount to the complainant as per said report. They have denied any deficiency in service on their part and finally prayed for the dismissal of complaint.
8. In order to prove his case the complainant tendered in evidence his own affidavit Ex.C-1, photocopy of insurance policy of Car bearing registration No. PB-19-J/1142 Ex.C-2, photocopy of FIR No. 71 dated 17.7.2014 Ex.C-3, photocopy of bill Ex.C-4, photocopy of receipt issued by Park Hyundai Ex.C-5, photocopy of receipt issued by Surveyor dated 23.8.2014 Ex.C-6, photocopy of receipt of Surveyor Ex.C-7, photocopy of legal notice Ex.C-8, photocopy of postal receipt Ex.C-9, photocopy of reply of legal notice Ex.C-10, photocopy of cover note of insurance policy Ex.C-11, photocopy of RC of vehicle registration No. PB-19-J-1142 Ex.C-12 and closed the evidence.
9. In order to rebut the case of complainant the opposite parties tendered in evidence affidavit of Arvind Bhalla Ex.O.P1.2/1, affidavit of Anand Pal Gurunay Ex.O.P1.2/2, affidavit of Rajesh Aggarwal Ex.O.P1.2/3, copy of report of surveyor dated 20.8.2014 Ex.O.P1.2/4, copy of report dated 16.3.2015 Ex.O.P1.2/5, copies of photographs Ex.O.P1.2/6 to Ex.O.P1.2/8, copy of report dated 20.3.2015 Ex.O.P1.2/9, copy of approval of higher authority Ex.O.P1.2/10, copy of statement of account Ex.O.P1.2/11, copy of insurance policy Ex.O.P1.2/12, copy of NCB report Ex.O.P1.2/13, affidavit of Shal Lal Gupta Ex.O.P1.2/14, copy of claim note Ex.O.P1.2/15 and closed the evidence.
10. We have heard the Ld. Counsels for the parties and have gone through the evidence tendered by both the parties.
11. The pertinent question is to be determined is whether the complainant is entitled to the amount of Rs. 4,42,221/- alongwith surveyor fee of Rs. 11,500/- or the amount of Rs. 4,04,949/- as assessed by the surveyor.
12. In order to prove his case the complainant has specifically stated in his affidavit Ex.C-1 in Para 3 that he immediately informed the opposite party No. 2 about the accident and the opposite party No. 2 appointed surveyor for the inspection of damaged Car and the surveyor advised the complainant to take the Car to Park Hyundai showroom at Sangrur. The said Car was repaired by the said Park Hyundai at Sangrur and an amount of Rs. 4,42,221/-was paid through RTGS/394. In support of this version, the complainant has placed on file the invoice/cash memo of Park Hyundai Ex.C-3, who is the authorized workshop which is a detailed one consisting of five pages showing an expenditure of Rs. 4,42,221/-. Ex.C-5 is receipt dated 30.10.2014, which shows that the complainant has paid Rs. 4,42,221/- to Park Hyundai for repair of damaged vehicle. Ex.C-6 is the receipt dated 30.10.2014 showing payment of fee of Rs. 1,270/- to the surveyor. It is also not disputed by the opposite parties and in Para no. 3 of the written version, the opposite parties admitted the intimation of the accident and also admitted the appointment of Mr. Arvind Bhalla of Patiala as surveyor to inspect the spot of accident and also admitted that the Car was taken to Park Hyundai at Sangrur. Thus, it is inferred that the Car in question was taken to Park Hyundai on the advice of surveyor, which was appointed by the opposite parties. Once the Car was repaired from Park Hyundai at Sangrur at the instance of the opposite parties and the repair made by the said showroom, thereafter cannot be questioned unless there is malafide on the part of said showroom or if it is proved that there is a conspiracy between the said showroom and the complainant for getting the enhanced bill. But there is nothing on record to show that Park Hyundai has acted in a malafidely manner to issue a bogus enhanced bill. Moreover, there is no evidence on record to show that there is any conspiracy between the said showroom and the complainant. Therefore, payment of Rs. 4,42,221/- through RTGS to the said showroom is beyond questionable.
13. Facing this situation the opposite parties have placed on record the surveyor's report of one Mr. Anand Pal Singh Gurunay proprietor of Eminent Surveyor, Patiala Ex.O.P1.2/5 showing the assessed loss of Rs. 4,03,456-80 paise. It is submitted by the Ld. Counsel for the opposite parties that the surveyor's report is a material document and this report cannot be discarded without any reasons.
14. We are of the opinion that the complainant has sent the damaged Car to the Park Hyundai at the instance of opposite parties and the said showroom repaired the vehicle and the payment has been duly paid by the complainant and bill as well as receipt placed on record, therefore the complainant has actually incurred the expenses of Rs. 4,42,221/- and therefore the actual expenses and payment at the same time cannot be ignored.
15. In New India Assurance Company Limited Vs Pradeep Kumar in Civil Appeal No. 3253 of 2002 decided on 9.4.2009 by the Hon'ble Apex Court in Para 22 held that :-
“Although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousands rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. Approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured”.
The Hon'ble Apex Court further held in Para No. 23 :-
“Claim for repair of accidental truck Supported by original voucher, bills and receipts. Considering actual expenses incurred and payment of interest on loan amount District Forum awarded a sum of Rs. 1,58,409/-. Not interfered with”.
16. The present case is squarely covered with the above cited judgment.
17. In view of the above discussion, the present complaint is accepted against the opposite parties and the opposite parties are directed to make the difference of Rs. 4,42,221/- minus Rs. 4,04,949/- (already paid) i.e. Rs. 37,272/- to the complainant alongwith interest @ 10% per annum. The complainant is also entitled to Rs. 5,000/- as compensation and Rs. 2,100/- as litigation expenses from the opposite parties. This order of ours shall be complied within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
21st Day of August, 2015.
(S.K. Goel)
President.
I do agree.
(Karnail Singh)
Member.
(Vandana Sidhu)
Member.
