BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 560 of 2015
Date of Institution: 08.05.2015
Date of Decision: 30.06.2016
Sethi Tents, through its partner S.Dalbir Singh Sethi, Shop No. 22B, New Market, Outside Ram Bagh, Tehsil & District Amritsar.
Complainant
Versus
- The Branch Manager, Shri Ram Transport Finance Company Limited, 55-F, City Centre, Near Bus Stand, Amritsar.
- Shri Ram General Insurance Company Limited, having its office at SRS Tower, Opposite Joshi Motors, 100 Feet Road, Amritsar, through its Branch Manager/ Person Over All Incharge.
Opposite Parties
Complaint under section 11, 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant: Sh.Deepinder Singh, Advocate
For Opposite Party No.1: Sh.Munish Mennon, Advocate
For Opposite Party No.2: Sh.R.P.Singh, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. M/s.Sethi Tents, through its partner S.Dalbir Singh Sethi, has brought the instant complaint under section 11, 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant got financed his vehicle i.e. TATA 709 bearing registration No.PB-02-BN-9617 from Opposite Party No.1 and the same was got insured with Opposite Party No.2 vide policy No.10003/31/12/493023 covering the risk period w.e.f. 31.01.2012 to 30.1.2013 and as such, the complainant hired the services of Opposite Parties for valuable consideration, therefore, the complainant is ‘consumer’ of Opposite Parties as defined under Consumer Protection Act. It is pertinent to mention that only schedule of policy was provided and no other document setting its terms and conditions was ever supplied by Opposite Party No.2 to the complainant. As ill luck would have it aforementioned vehicle of the complainant was met with an accident and in this regard, matter was immediately reported to Opposite Party No.2 and the complainant also lodged claim before Opposite Party No.2. As per the instructions and demands of Opposite Parties , the complainant completed all the formalities for getting the claim for damage of his vehicle and the claim was pending before the Opposite Party and all the requisite docduments as required by Opposite Party have been supplied by the complainant, but the Opposite Parties and inspite of serving earlier legal notice dated 5.2.2013, Opposite Party did not bother to give any reply to the same and even not decided the claim of the complainant intentionally and deliberately. The vehicle of the complainant was not in a running condition and on account of this fact, the complainant suffered great loss every day due to non cooperation on the part of Opposite Party and besides monetary losses the reputation of the complainant has also been lowered down as the complainant is known for providing best services, but due to lack of running vehicle he was not able to provide best services to his customers. However, despite of this fact, the complainant was regularly making installments to Opposite Party No.1. the complainant has also served another legal notice dated 21.2.2013 upon Opposite Party for settlement of the claim. Rather the Opposite Party was putting the matter on one pretext or the other inspite of repeated visits of complainant in the office of Opposite Party from time to time and also inspite of receipt of legal notice dated 21.2.2013 served by the complainant upon Opposite Party. Thereafter, the complainant had filed a complaint before this Forum against Opposite Parties and said complaint was accepted by this Forum vide order dated 3.6.2014 and the directions were given to the complainant to get his car repaired as per the directions of Opposite Party No.2 and submit the bills and Opposite Party No.2 shall decide the claim case of the complainant after the repair of the vehicle on repair basis as per terms and conditions of the policy. In compliance of said order, the complainant got repaired his vehicle/ car and spent amount of Rs.3,35,000/- and thereafter, submitted the bills to Opposite Party, but they have given only Rs.2,20,000/- to the complainant and the remaining amount of Rs.1,15,000/- and vehicle of complainant was confined in the garage for 24 months on account of which complainant has also suffered loss of Rs.5 lacs approximately and as such, the Opposite Parties are liable to pay Rs.6,15,000/- in all, on account of loss suffered by the complainant due to above said wrongful acts of Opposite Parties. Hence, this complaint.
2. Upon notice, both the Opposite Parties appeared and filed their separate written statement to contest the claim of the complainant. In its written reply, Opposite Party No.1 took certain preliminary objections therein inter alia that no cause of action has arisen to the complainant to file the present suit against the replying Opposite Party more so when no negligence or deficiency in services has been attributed to the replying Opposite Party and the dispute of the complainant is only with Opposite Party No.2 which has no concern whatsoever with the replying Opposite Party. As such, the present complaint against replying Opposite Party is liable to be dismissed; that as stated above, the complainant had availed the loan facility from Shri Ram Transport Finance Company Limited, for the purchase of one TATA 709. Said vehicle was got insured by the complainant from Opposite Party No.2 which is a separate legal entity. It is worth mentioning here that the replying Opposite Party has no concern with Opposite Party No.2. Both the companies are working independent of each other and have no interference with the business of each other. As such, one company can not be held responsible for the acts done by other company or its employees. Further, no complaint is made out either against the replying Opposite Party in the present complaint. As such, the present complaint is liable to be dismissed. On merits, the facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with costs was made.
3. In its written reply, Opposite Party No.2 took certain preliminary objections therein inter alia that the present complaint is the second complaint filed by the complainant on same cause of action. Earlier the complainant filed a complaint bearing No. 391/2013 on 30.5.2013 on the same cause of action and the same was disposed of by this Forum on 3.6.2014 with the directions to the complainant to get the car repaired as per the directions of Opposite Party No.2 and submit the bills and Opposite Party No.2 shall decide the claim of the complainant after the repair of the vehicle on repair basis as per terms and conditions of the policy. In this case, the complainant repaired the vehicle and submitted the bills and as per the investigation report of Sh.Avinash Chander Vyas, the claim was passed and the same was paid to the complainant in the execution filed by him. The claim was decided on the assessment of the independent surveyor under the terms and conditions of the policy, therefore, the present complaint is liable to be dismissed on this short ground; that as the complainant has not challenged the authenticity of the survey report and has also not mentioned on what point the surveyor has wrongly assessed the claim or any point has been left by the surveyor, therefore, the present complaint is not maintainable; that the complainant has not come to the court with clean hands and has concealed the material facts from this Forum, therefore, the complainant is not entitled to any relief as claimed; that it is worthwhile to mention here that the complainant intentionally kept the vehicle unrepaired and even after order of this Forum, the vehicle was got repaired by him and submitted the bills and the independent surveyor assessed the loss as per the terms and conditions of the policy; that the complainant is estopped by his own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action, therefore, the complainant is not entitled to any relief claimed for. On merits, it is specifically denied that the terms and conditions of the policy were not supplied to the complainant. As admitted by the complainant that the schedule of the policy was provided, it is worthwhile to mention here that always replying Opposite Party with regard to non-supplying of the terms and conditions and never demanded the same and now at this stage, with an ulterior motive, the complainant has stated that the has not received the terms and conditions of the policy in question, whereas it was duly supplied. It is submitted that after receiving the intimation from the complainant, a surveyor was appointed to assess the loss, but the complainant did not cooperate and did not get the repair work started, therefore, the surveyor has to submit its report before starting repair of the vehicle. Remaining facts narrated in the complaint are specifically denied and a prayer for dismissal of the complaint with costs was made.
4. In his bid to prove the case, complainant filed his duly sworn affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copy of order of this Forum Ex.C2, copy of legal notice Ex.C3, copy of tax invoice Ex.C4, copy of bill Ex.C5 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.Sumit Kumar Ex.OP1/A.
6. Opposite Party No.2 tendered into evidence the affidavit of Sh.Rajindra Sharma Ex.OP2/1, affidavit of Er.Avinash Chander Vyas Ex.OP2/2, copy of surveyor report Ex.OP2/3, copy of policy alongwith terms and conditions Ex.OP2/4 and closed the evidence.
7. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
8. Ld.counsel for the Opposite Parties has vehemently contended that it is not disputed that vehicle of the complainant was insured with Opposite Party No.2 vide insurance policy, copy whereof is Ex.OP2/4 on record valid w.e.f. 31.01.2012 to 30.01.2013. It is also not disputed that the vehicle in dispute met with an accident on 3.12.2012 and the surveyor was appointed by Opposite Party No.2 namely Sh.Avinash Chander Vyas, who after inspecting the vehicle in dispute, submitted his survey report, copy whereof is Ex.OP2/3. It is also not disputed that the complainant earlier filed a complaint in this regard which was disposed of by this Forum vide order dated 3.6.2014 and “the complainant was directed to get his car repaired as per the directions of Opposite Party No.2 and submit the bills and Opposite Party No.2 shall decide the claim case of the complainant after the repair of the vehicle on repair basis as per terms and conditions of the policy”. After repair of the car in dispute, the complainant filed claim with Opposite Party No.2 and claim to the extent of Rs.2,20,000/- was allowed to the complainant while remaining claim to the tune of Rs.1,15,000/- was declined on the basis of survey report. The complainant has filed the instant complaint without finding any fault in the report of the surveyor. It is settled law that report of the surveyor can not be thrown away without any reasonable cause and the report of the surveyor has to be relied upon by the court in assessing the compensation. Reliance in this connection can be placed of case: Sri Venkateshwar Syndicate Vs. Oriental Insurance Company Limited, II(2010) CPJ 1 (SC). Ld.counsel for Opposite Party No.2 has further contended that the complaint is without any merit and the same has been filed just to harass Opposite Party No.2 without any reasonable cause, therefore, the complaint may be dismissed with costs.
9. But however, from the appraisal of the facts and circumstances of the case, it becomes evident that the claim of the complainant has been disposed of by Opposite Parties in a hasty manner. The surveyor did not inspect the vehicle in question after its repair which was required to be done on the basis of order passed by this District Forum, on 3.6.2014. In this case the surveyor inspected the vehicle in dispute on 20.03.2013 only & he did not inspect the vehicle either during the period, the repairs were being undertaken or thereafter even. As per order passed by District Forum, Amritsar dated 3.6.2014, the surveyor was supposed to assess the loss on the basis of actual repair/spare parts expenses regarding which the complainant has submitted the bills. No such inspection was made by the surveyor for the reasons best known to him. In such a situation, the surveyor report can not be relied upon for assessing the compensation/ insurance claim, submitted by the complainant. Reliance in this respect can be had on New India Assurance Company Limited Vs. Pardeep Kumar (2009) CPJ 46 (SC), wherein it has been laid down that Surveyor’s report is not the last and final word. It is not that sacrosanct that it can not be departed from; it is not conclusive. The 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 authority supra is applicable to the facts of the present case. Since the report of the surveyor is of dated 20.03.2013, whereas the repair of the vehicle in question was conducted on 30.09.2014, the surveyor did not inspect the vehicle after its repair nor he actually assessed the costs of the repair/ spare parts subsequently and report submitted by the surveyor ,much prior to the actual repair, has been relied upon by Opposite Party No.2 for assessing the loss on estimate basis only which is not acceptable as per the ruling supra. The complainant has submitted bill Ex.C-5 regarding expenditure incurred by him on the repair of the vehicle in dispute, which comes to Rs. 3,35,000/- in all. Out of which only a sum of Rs. 2,20,000/- have been paid by the opposite parties while claim to the tune of Rs. 1,15,000/- have been rejected on the basis of surveyor report, which in our opinion, could not have been relied upon for assessing the claim of the complainant. In our considered opinion, the complainant is entitled to insurance claim in full and as such balance claim amount of Rs. 1,15,000/- be paid to the complainant alongwith interest @ 9% per annum from the date of passing of the order until full and final recovery. The complainant is also awarded litigation expenses to the tune of Rs.2,000/-. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 30.06.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
hrg
