Delhi

North East

cc/191/2013

Shri Bishamber Dayal - Complainant(s)

Versus

Shri Ram General Insurance Co. Ltd. - Opp.Party(s)

02 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 191/13

 

In the matter of:

 

	Shri Bishamber Dayal R/o 129/D, Pocket – J & K, Dilshad Garden, Jhilmil, Delhi	Complainant
	Versus
1.         2.	Shriram General Insurance Co. Ltd Having its Head office at: E-8, EPIP, RIICO, Sitapura, Jaipur (Raj.) through its General Manager   Shriram General Insurance Co. Ltd 202-203, Suneja Tower-1, District Community Centre, Janakpuri, New Delhi-110058.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

16.07.2013 02.05.2019 02.05.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the facts material for the disposal of the present complaint are that the complainant is owner of a vehicle TATA Truck – 2515TC Model bearing Registration No. HR55-C-4593 and had got the said vehicle insured with OPs vide policy No. 101023/31/11008802 w.e.f. 12.11.2010 to 11.11.2011 on payment of premium of Rs. 13,872/- for a total IDV of                                 Rs. 3,80,000/-. The said vehicle met with an accident at Anthela, near Jaipur on Delhi road on 10.03.2011 and complainant informed OP’s office about the said accident on which information the surveyor was appointed by OP who then visited the workshop at Shahpura (Jaipur) where the subject vehicle was taken after being lifted through crane in accidental condition and inspected the damages therein thoroughly after which the complainant got it repaired and incurred an expenditure of Rs. 1,40,000/- on the same. Thereafter, the complainant lodged a claim vide Claim No. 10000/31/11/C/044777 for the said amount with OPs on submission of all the relevant documents since the said vehicle was duly insured with OPs at the time of accident. However, the complainant was shocked when OPs vide repudiation letters dated 01.08.2011 and 03.05.2012 rejected the claim of the complainant by taking false plea of surveyor not being provided opportunity to inspect the vehicle immediately following the initial survey and vehicle being removed by the complainant from workshop without intimation to the surveyor and repair of the same without approval from surveyor thereby violating Section 1 of the policy Terms and Condition. OPs further objected to complainant not producing any estimate or bills of repair to surveyor for settlement of claim or producing himself in front of surveyor for verification. The complainant on receiving the repudiation letter approached the OPs office several times and vide letter dated 30.09.2012 / 08.10.2012 opposed the repudiation on grounds of having given full opportunity to surveyor to inspect the vehicle which was availed by him and that he was assured of early and reasonable settlement of claim and urged the OPs to release his claim amount cheque of Rs. 1,40,000/-. However OPs failed to act upon the request of the complainant. Lastly the complainant had issued a legal notice to OPs through counsel on 17.01.2013 sent through registered post on 04.02.2013 which was duly served on OPs but OPs did not comply with the demand raised therein. Therefore the complainant was compelled to file the present complaint alleging deficiency of service on the part of OPs and prayed for issuance of directions against the OPs to release Rs. 1,40,000/- spent by the complainant on repairs of the vehicle and also settled by OP’s surveyor alongwith compensation of Rs. 1,00,000/- towards mental pain, agony and harassment and Rs. 22,000/- towards litigation expenses.

Complainant has attached copy of repudiation letters dated 01.08.2011 and 03.05.2012 by OPs to complainant, response thereto by complainant to OPs vide letter dated 30.09.2012 / 08.10.2012 with postal receipt and copy of legal notice dated 17.01.2013 with postal receipt.

2. At the admission stage, the Forum observed that the complainant had not filed any supporting documents (pertaining to the vehicle and accident, bills, FIR etc) and therefore issued directions to the complainant to file the same. On filing of the photograph of the accidental truck, copy of FIR and vehicle repair estimate and bills issued by Deepak Automobiles Shahpura and other repairing workshops and crane services alongwith copy of policy schedule cum certificate of insurance cover with OPs, arguments were heard on admission and notice was issued to OPs on 27.11.2013. OPs entered appearance and filed written statement in which while admitting the factum of insurance cover having been extended to the complainant with respect to the subject vehicle and claim No. 10000/31/11/C/044777 of Rs. 1,40,000/- lodged by the complainant with respect to expenses incurred on repairs of the above mentioned accidental vehicle on 12.03.2011 duly insured with OPs, took the preliminary objection of complaint not being maintainable on grounds of territorial jurisdiction since neither the policy issuing office nor the place of accident fell within the jurisdiction of this Forum. OPs resisted the complaint on grounds that the complainant never submitted the estimate and bill of repairs either with the OPs or its surveyor during the survey which would have enabled the OPs to rightly asses the damages and the costing of repairs and analyzing the necessity thereof and therefore for this reason the claim was rightly repudiated by OPs also for the reason that the complainant violated the policy Section 1 clause 4 of terms and conditions by not allowing surveyor to inspect the vehicle for assessing damages thereof. OPs alleged that the complainant intentionally did not allow the surveyor to inspect the vehicle or assess damages to verify the necessity of repairs and charges and also failed to establish most vital aspect of insurance contract i.e. happening of the event covered under insurance policy to entitle complainant to claim compensation and for all the above reason the claim was rightfully repudiated by OPs vide repudiation letter dated 01.08.2011 and the same does not amount to deficiency of service. OPs while admitting the factum of the vehicle having met with an accident on 10.03.2011, contended that surveyor was not allowed to inspect the vehicle thoroughly and properly and neither estimate of repairs nor repair bills were submitted to OP or its surveyor by the complainant and the complainant got the vehicle repaired without the consent of the surveyor. OPs urged that the depreciation on the value of parts could not be calculated without assessment by surveyor, salvage value was not calculated, repairing work was not verified after repairing by surveyor and estimate was not submitted with the surveyor for which reason the claim of the complainant was rejected vide letter dated 01.08.2011 and 03.05.2012 and therefore sending any letter thereafter by the complainant was of no avail since he had violated policy terms and conditions and prayed for dismissal of the complaint  denying any deficiency of service or any harassment caused to the complainant for which relief was claim against the OPs. OPs has attached copy of insurance cum policy schedule with policy terms and conditions, copy of insurance claim intimation filed by the complainant on 10.03.2011, copy of motor insurance claim form dated 12.03.2011 filed by complainant with OPs for seeking insurance claim of the accidental vehicle and copy of surveyor / loss assessor Kamlesh Kishnani’s report dated 14.07.2011.
3. Rejoinder to the written statement was filed by the complainant in rebuttal to defence taken by the OPs in which the complainant submitted that vide judgment of Hon’ble Delhi SCDRC in Holy Family Hospital Vs Amit Kumar II 2010 CPJ 208 decided on 17.03.2010 in FA No. 10/220, Hon’ble Delhi SCDRC had ruled that Delhi being union territory is one district and every district Forum is competent to take cognizance of consumer complaints and therefore this Forum had competent jurisdiction to adjudicate upon the present complaint. Complainant denied the allegation of OPs of not having submitted the estimate or bill of repairs to OPs or its surveyor and submitted that the surveyor had conducted the inspection of vehicle and only thereafter the vehicle was repaired and bills thereof were submitted. Denying the allegations of the OPs of surveyor not having being allowed to inspect the vehicle, the complainant stated that the surveyor had inspected the vehicle at the spot of accident as well as at repair workshop at Shahpura, Jaipur and even after the vehicle was repaired and laid emphasis on the surveyor report filed by OPs and alleged wrongful and malafide repudiation of claim of the complainant in act of total deficiency of service and denied any violation of policy terms and condition and reaffirmed the contents of his complaint.
4. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon / filed as Ex- CW1/1 to EX- CW1/10.
5. Evidence by way of affidavit was filed by OPs sworn by its Assistant Manager Legal exhibiting policy certificate and repudiation letter.
6. Written arguments were filed by both the parties reiterating / reemphasizing their respective grievance / defence.

The matter was reserved for orders by the erstwhile bench on 04.02.2016 but was never passed and the file was relisted on 31.01.2018 due to vacation of previous bench and on reconstitution of new bench on which date till the matter was last heard for arguments on 02.05.2019, no appearance was entered by OPs and therefore arguments were addressed only by the counsel for the complainant and the matter was reserved for orders.

7. We have examined the entire material on record and given our thoughtful consideration to the arguments addressed before us.

Undisputedly, the insured vehicle of the complainant met with an accident / collision with another heavy vehicle on Delhi - Jaipur Highway on 10.03.2011 near Anthela (Rajasthan) and had to be crane lifted to a workshop at Shahpura, Jaipur. The factum of accident was duly intimated by complainant to OPs immediately on occurrence of the same. Thereafter, a surveyor / investigator was appointed by OPs to do the needful with respect to spot inspection of the vehicle and claim for repairs to the tune of Rs. 1,40,000/- was lodged by the complainant with OPs on 12.03.2011. The dispute arose post lodging of claim when OPs vide repudiation letter dated 01.08.2011 rejected the same taking grounds of policy violation and deprivation of opportunity to surveyor to inspect the vehicle properly at the time of accident and after repairs and such other grounds in addition to non submission of repair estimate / bills by complainant. At the advance stage of proceedings i.e. after filing of written arguments in July 2014, the OPs had offered settlement to the tune of Rs. 81,600/- on Non Standard Basis which was rejected by the complainant. On keen scrutiny of the surveyor report dated 14.07.2011, key observations have been made:

1. In Accident Particulars, the Place of Survey is at “spot of accident and again at Shahpura and VKIA, Jaipur”.
2. In Claim Recommendation, for any Breach of Condition, the Comment is “NO”
3. Salvage has been calculated of Rs. 11,440/-.
4. In Payment in Favour of Insured, the Claim recommended for is Rs. 1,36,000/- after deduction of salvage and compulsory excess from gross total sum of Rs. 1,48,940/-.
5. The Surveyor Remarks “insured has not submitted the repairs bill, hence the assessment has been made as per the losses assessed during spot and final survey”.

 

The observations and remarks of the surveyor and recommendation made by him are in stark contradiction to the OP’s stand of surveyor not having been accorded opportunity by the complainant for inspection / survey of the vehicle in question or damages therein or that the vehicle was got repaired by the complainant without the consent of surveyor to justify its stand of repudiation of claim of the complainant since none of such allegations / observations feature anywhere in the surveyor report and pertinently NO policy violation has been made out by the surveyor on the part of complainant again falsifying the defence taken by the OPs. Salvage has also been calculated by surveyor.

8. The Hon’ble Supreme Court in Sri Venkateswara Syndicate Vs Oriental Insurance Co. Ltd and Anr. II (2010) CPJ 1 SC observed that the assessment of loss, claim settlement and relevance of surveyor report forms the basis for consideration or otherwise of the claim. Surveyors are appointed under statutory provisions and are a link between insurer and insured and their report becomes basis for settlement of a claim by the insurer in respect of loss suffered by insured and there is no disputing the fact that their reports are to be given due importance. This judgment has been a precedent and has been followed by Hon’ble National Commission in Chanan Preet Singh Vs United India Insurance Co. Ltd and Ors I 2012 CPJ 341 (NC) in which Hon’ble National Commission held that report of surveyor is an important, valuable and reliable document and cannot be brushed aside lightly without any material to the contrary on record. The Hon’ble National Commission in Ashish Kumar Jaiswal Vs ICICI Lombard General Insurance Co. I (2017) CPJ 529 (NC) upheld the order of District Forum Jharkhand allowing the claim to be settled on the basis of surveyor report which was not disputed by the insured even and observed the surveyor’s report to be the only reliable document for the purpose of settling insurance claim and dismissed the revision petition. The Hon’ble National Commission in National Insurance Co. Ltd Vs Ramdeo Modi and Anr. III (2017) CPJ 123 (NC), following Venkateshwara (supra) and Chanan Preet (supra) judgments of Hon’ble Supreme Court, upheld the surveyor’s report as reasonable and as per the accepted norms of survey and policy terms and directed the insurance company / petitioner to pay as per the surveyor recommendation / loss assessed to the insured, thereby modifying orders of District Forum (Koderma) and SCDRC Jharkhand which had granted compensation on IDV basis. Further the Hon’ble National Commission in National Insurance Co. Ltd Vs Manjit Singh and Ors III (2017) CPJ 531 (NC) upheld the order of District Forum (Gurdaspur) which had directed the insurance company to make payment to the dealer / repairer on the basis of the assessment report of the surveyor in a case of the insurance company not settling the claim and against appeal of which order the SCDRC Punjab had issued directions for enhancement of award on the basis of IDV by observing that the order passed by District Forum reflects a clear appreciation of issues involved in the case and that they rightly concluded that the insurance company should make payment as per the report given by the surveyor thereby holding SCDRC observation as erroneous. In a recent judgment of Hon’ble National Commission in Atul Kumar Vs National Insurance Co. Ltd I (2018) CPJ 323 (NC), the Hon’ble National Commission in a similar case where despite surveyor report assessing the loss and approving the claim after deducting salvage charges, the insurance company had refused to pay the claim amount to the insured set aside order of District Forum which had directed OP to pay 75% of the assessed loss on Non Standard Basis and upheld the decision of SCDRC Haryana which had directed that the complainant was entitled to full value of loss as assessed by the surveyor.

In the present case, during the arguments before us, the complainant has not pin pointed or objected to any specific fault in the report dated 14.07.2011 of the surveyor and has rather relied upon the same to validate his stand since the report at various levels only negates the defence taken by the OPs for repudiation of claim in its letters and written statement.

9. In the light of the exhaustive discussion of the settled proposition of law as discussed in the case laws cited above and views taken therein and law laid down by Hon’ble Supreme Court and Hon’ble National Commission in keeping with the assessment made by the surveyor of OPs and importance / sanctity of the said document as held by the higher courts, we are of the considered view that OPs have been grossly deficient in service in not having released the claim amount of Rs. 1,36,000/- as approved / recommended by their own surveyor in favour of the complainant despite report received on 14.07.2011 but instead repudiated the claim 15 days later vide letter dated 01.08.2011. The same is an unfair trade practice and highly deplorable conduct for which the complainant has been suffering the present litigation for last more than five years despite his being a legitimate claim legally approved by OP’s own surveyor way back in July 2011.
10.  We therefore direct OPs to pay the entire assessed amount of  Rs. 1,36,000/- to the complainant. We further direct the OPs to pay a sum of Rs. 20,000/- to the complainant as compensation for mental pain, agony, harassment suffered by complainant due to OP’s deficient services and Rs. 10,000/- towards cost of litigation. Let the order be complied by OPs within 30 days from the date of receipt of copy of this order.                      
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on  02.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member