ORDER                                 Dated:  17-10-2016

Mohd. Anwar Alam, President



1.     This complaint was filed on 05.07.2012 wherein complainant
alleged that his vehicle no. HR-56-7195 was insured with the OP
w.e.f. 31.12.2010 to 30.12.2011. On 23.5.2011, driver Suresh Kumar had
driven the vehicle from Ghaziabad to Uttaranchal and met with an
accident at 11.30 pm. So FIR was registered in P.S. Meerut, UP.
Complainant informed OP1 who appointed surveyor.  Complainant filed
his claim with OP1  but till the filing of this complaint claim  was
not paid to the complainant.  It was further stated that  the alleged
vehicle was insured for a sum of of Rs. 3,25,000/- and the damage in
the vehicle was for Rs. 1,49,766/-. Hence, it is prayed   that OP1 be
directed to pay Rs. 1,49,676/- and Rs. 2,00,000/- as  compensation
for mental harassment  along with interest  @ 24% and cost of
litigation.

2.     Due to non appearance of OP2 , the matter was proceeded
ex-parte against OP2 on 29.11.2013

3.     In reply, OP1 did not deny complainant’s  insurance policy of
the vehicle with OP1 and accident of the insured vehicle on 23.05.2010
at 11.30 pm and its FIR in PS Meerut UP.  OP1 also admitted that
information of the accident was given to OP1 after a delay of 7 days
of the occurrence and duly authorized surveyor inspected the vehicle
in question and assessed the loss of Rs. 24,920/-.  It was further
stated that the OP1 considered the claim and try to settle the claim
at its level best and offered Rs. 105000/- less wreck value as per
survey report.    Hence , there is no deficiency in service on the
part of the OP1.  OP1 is trying to settle the claim , as per the
survey report ,OP1 also objected that the vehicle of the complainant
is a commercial so complainant is not a consumer. OP1 prayed that
complaint be dismissed with cost.

4.     The complainant   has filed rejoinder to the reply and
explained that the objections filed by OP1 are baseless. In support of
his complaint complainant filed his own affidavit along with documents
copy of registration certificate (Ex. C-1), copy of insurance policy
(Ex. C-2),
copy of FIR (Ex. C-3), certified copy of technical survey( Ex C4) ,
Copy of application (Ex. C5) , photographs (Ex. C-6/A to Ex. C6/H) ,
copy of bills (Ex. C-7 to C-11) , copy of repudiation letter (Ex.
C-12. ). Mr. Narender (mechanic and owner of the  shop) also filed
affidavit in favour of the complainant.

5.      In support of reply, OP1 filed affidavits of Sh. Lovkesh Goel
(Senior Officer Legal) and Sh. Vishal Gupta (Assistant Manager Legal).

6.     Both the parties filed their written arguments.

7.     We have heard the arguments and considered the evidence led by
the parties and their written and oral arguments.  In this case points
to be considered are as under:-

(a) Whether complainant is a consumer?

(b) Whether there is any deficiency in service on the part of the OP1?

(c ) Relief?

8.     Looking to the admission of the OP1 in his reply that the
vehicle of the complainant was insured with OP1.  As this vehicle was
insured to indemnify the loss to the complainant, therefore, as per
established law complainant is a consumer.

9.     Letter of the OP sent to the complainant (Ex. C12) is undated
and this letter clarify that complainant had not given a opportunity
to inspect the vehicle to OP1 and  complainant  dismantle his vehicle
prior to the final survey. As the vehicle of the complainant was not
in possession of the complainant but it was at the accident site ,
therefore, the intimation given by this above letter to the
complainant is unjustified and on this basis inability to pay the
claim by the OP1 is also unjustified.

10.                          Looking to the admission of the OP1 in
its reply , the vehicle of the complainant was insured  for Rs
3,25,000/-.It is also admitted that the OP1 considered the claim and
tried to settle the claim at its level best and offered Rs. 105000/-
less wreck value as per surveyor report. Soon after accident , spot
survey was made by Sh.  Girish Kumar Goel on 27.05.2011 and in his
report he observed that cabin assembly detached from the vehicle,  its
center bonnet deshaped, Root deshaped, W/s glass broken, Back wall
pressed/ deshapped,Cabin foundations broken,  Load body was badly
deshaped, it’s left side panel and front panel deshaped,Floor
deshaped, Right side panel also found affected,Engine assembly also
found deatchached from the chassis, its chamber broken, pulley broken,
water body found affected, alternator damaged, engine foundations
broken , internal damages to the engine may be viewed at the time of
that survey. Gear box also hanging between the chassis, propeller
shaft also appearing affected, to be checked.  Front road springs were
dechambered, front axle misalign, chasis frame bent, its both long
members bent, diesel tank pressed/deshaped, radiator inner core dash
with fan blade, other attachments to be checked, turbo housing bracket
broken and as per the reply of OP1 the surveyor gave the estimated
cost to the tune of  Rs. 1,11,200/-. It is very important report which
cannot be denied. Thereafter , the subsequent surveyor report dated
15.11.2011 by Sh. Lovkesh Goel wherein he has reduced the estimated
cost from 1,11,200/- to Rs. 20,950/- which is not  justified and
cannot be relied. Hence estimated loss to the vehicle was
Rs.1,11,200/-.

11.                          Looking to the above facts and
circumstances of the case, the cheque issued by the OP1 on 28.09.2015
amounting to Rs. 18690/- is also not justified. As complainant is
entitled to the estimated damage of his vehicle for Rs. 1,11,200/-
mentioned in the surveyor report dated 15.11.2011 by Sh. Lovkesh Goel
(Surveyor) ,therefore, we direct OP1 as under:-

1.     To pay Rs. 1,11,200/-  against the damage of the vehicle to the
complainant.  Amount of cheque dated 28.09.2015 for Rs. 18,690/- will
be adjusted if paid to the complainant.

2.      To pay Rs. 40,000/-  as compensation to the complainant for
mental harassment.

3.     To pay Rs 8000/- to the complainant as cost of litigation.

12.                           This amount will be paid within a period
of 60 days from the date of order
failing which an interest  of 18% p.a. will be payable on this entire
amount.

13.                           Copy of the order be made available to
the parties as per law. File be consigned to record room.

Announced on ……….