STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 01.07.2020
Date of final hearing: 10.09.2024
Date of pronouncement: 22.11.2024
First Appeal No.290 of 2020
IN THE MATTER OF:-
National Insurance Company Ltd., 10/94, Dhanwant Building, Opp. Bus Stand, G.T. Road, Karnal through its Branch Manager, Now through its authorized signatory of Regional Office, SCO No. 332-334, Sector-34-A, Chandigarh.
....Appellant
Versus
Smt. Sudesh Kumari W/o Sh. Parveen Kumar, R/o H. No.251, Dayanand Colony, Model Town, Karnal.
...Respondent
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member
Argued by:- Mr. R.C. Gupta with Mr. Sudhir Gupta, counsel for appellant.
Mr. Kaushal Kamboj with Mr. Mohit Sharma, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 9 days in filing of present appeal stands condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this Appeal No.290 of 2020 filed by appellant/insurer has been invited to legality of order dated 16.03.2020 passed by District Consumer Disputes Redressal Forum-Karnal (In short “District Consumer Commission”) in complaint case No.220 of 2019. Complainant’s complaint has been allowed.
3. Factual matrix: Complainant is registered owner of car No. HR-05AC-2900-Swift Dezire. She got it insured with OP vide policy valid from 09.02.2018 to 08.02.2019. IDV of vehicle was declared therein as Rs.2,30,416/-. On 31.03.2018, at about 9.00 p.m., son of complainant was driving said car at moderate speed on his due left hand side after observing traffic rules. Suddenly a stray cow came in front of car and its driver (complainant’s son) lost control over it and car turned turtle in ditches near Jaat Dharamshala, Sector-12, Urban Estate-Karnal. It was badly damaged. One Mohit Sharma S/o Sh. Vinod Sharma who was present at spot rescued the driver of car. Complainant’s son-driver was having valid driving licence and on 01.04.2018 and she reported matter to P.S., Civil Lines-Karnal. DDR No.13231053071800210 dated 01.04.2018 was recorded. On next day of accident; she intimated insurer about the accident. On instructions of its surveyor; she took damaged car by towing it at Karnal Automobiles-Karnal for carrying repairs. OP/insurer advised her to park her car with Kamboj Automobiles for repairs and insurer deputed its surveyor after period of 20 days, who inspected the car and advised her to get it repaired. Kamboj Automobiles has/had given estimate of Rs.4,45,852/- which is more than the insured value and it is not beneficial for OP to pay repair charges. Technical Engineer of Kamboj Automobiles informed her that even after repairs; car would not be safe for driving as its body is also damaged and while driving it; any tragedy can take place. On this, complainant requested OP to appoint technical engineer to verify said facts, but OP has/had not deputed any technical engineer for verification. As per plea; M/s Kamboj Automobiles is charging Rs.200/- per day as garage charges and she is being unnecessarily burdened. Since then car is lying parked with Karnal Automobiles. She received notice dated 19.07.2018 from surveyor and same was replied. Relevant documents were also supplied to OP. Thereafter, she visited office of OP for settlement of claim but its officials postponed the matter on one pretext or the other and lastly repudiated her claim on false and frivolous ground. By pleading deficiency in service on part of OP; she has filed complaint.
4. OP/appellant/insurer raised contest. In its defense; it is pleaded in preliminary objections that complainant has no locus standi; complaint is not maintainable; there arises no cause of action and she has suppressed material facts. It is pleaded that registered letter dated 20.05.2019 was sent to complainant regarding her claim. Surveyor submitted its independent report regarding claim, as per which, vehicle is repairable. No clarification has been received by insurer from insured about repair on vehicle and she was asked to submit repair bills, else the claim would be treated as “No Claim”. It is pleaded that there is no deficiency in service on the part of OP and complaint deserves dismissal.
5. Parties to this lis led evidence, oral as well as documentary.
6. On analyzing the same; learned District Consumer Commission-Karnal has allowed the complaint vide order dated 16.03.2020 and directed OP/insurer to pay Rs.2,30,416/- which is IDV of subject vehicle to complainant with interest @9% p.a. from date of repudiation of claim, till its realization and to pay her Rs.20,000/- on account of mental agony and harassment and also to pay her Rs.5500/- for litigation expenses. Complainant has been directed to get the RC transferred in the name of insurance company.
7. Feeling aggrieved; insurer/OP has filed this appeal. We have heard learned counsel appearing for parties and also perused the record with their able assistance.
8. Learned counsel for appellant/insurer has urged that impugned order dated 16.03.2020 is wrong, illegal and against actual fact/evidence. It is urged that surveyor of insurer has/had assessed loss to subject vehicle at Rs.62,257/-. No evidence has been led by complainant to rebut surveyor’s report. It is urged that insurer’s surveyor, on physical inspection of subject vehicle has conveyed to complainant that damage caused to car is repairable. Estimates of Rs.4,45,852/- so given to insurer, is contrary to surveyor’s report and observation. It is urged that in view of surveyor’s report burden to prove that subject vehicle was, in fact a case of total loss, lay upon complainant and she has not discharged said burden. As per contention; no amount had actually been spent on repair by her as no repair bill was submitted by her. Accordingly as per contention; mere estimate will not form any substantial base to brand the vehicle as being a case of total loss. It is further urged that vehicle was of Model-2011 and accident took place almost seven years thereafter in 2018. In view of this fact as well; awarding Rs.2,30,416/- to complainant as being the IDV value of the vehicle was an incorrect observation.
9. Per contra, learned counsel for the respondent/complainant has supported the impugned order dated 16.03.2018 by urging that it does not warrant any interference.
10. Nucleus of this case hinges on moot question; as to whether subject vehicle was repairable or not. Of course, the insurer’s surveyor vide report dated 17.03.2019 has assessed loss to vehicle at Rs.62,257/-. This Commission is of view that surveyor’s report dated 17.03.2019 is comprehensive and explicit in itself wherein surveyor has also commented that estimates of accidental car were found to be exaggerated in order to bring it within the parameters of total loss. Law laid down by Hon’ble Apex Court in case titled as Anil Rishi Vs. Gurbax Singh 2006 (2) PLR 775 is squarely applicable on given facts. The Hon’ble Apex court has observed therein as under:-
“there is an essential distinction between the concept ‘burden of proof and onus of proof’. Burden of proof lay upon a person, who has to prove the fact and which never shifts, whereas onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The elementary rule of Section 101 of Evidence Act is inflexible. In terms of Section 102 of the Evidence Act, the initial burden is always on plaintiff. If the plaintiff discharges that onus and makes out a case, which entitles him to relief, then onus shifts upon the defendant to prove those circumstances, which would dis-entitle the plaintiff to the same.”
While applying above ratio of law, to facts of this case, it would decipher that initial burden to prove that subject vehicle was actually a case of total loss beyond repairable, lay upon complainant alone and she has miserably failed to discharge her burden. Once, insurer’s surveyor has assessed loss to subject vehicle at Rs.62,257/- and also commented that estimates submitted qua repairs were of exaggerated amount in order to bring the loss caused to vehicle, within parameters of total loss, then it was all the more reason and cause for complainant to lead evidence in order to rebut above observation of surveyor and to prove that estimates given were actual credible and genuine. Even nobody has stepped into the witness box from Kamboj Automobiles who has given estimates of the amount of Rs.4,45,852/-. Matter does not end here. Even there is no evidence in form of any amount paid by complainant, for carrying out repairs on damaged subject vehicle. Another fact regarding vehicle being continuously parked at workshop since long would also buttress observation of this Commission that there were no repair work done on it. In view of above discussion; mere estimates will not form any formidable and acceptable base. This Commission is of opinion that there is an illegality on the part of learned District Consumer Commission thereby directing the appellant/insurer to pay IDV value (Rs.2,30,416/-) of vehicle. Surveyor’s report has undoubtedly formed a credible base. It has to be relied upon at legal pedestal, as its credentials have not been rebutted by complainant. Accordingly, impugned order dated 16.03.2020 passed by learned District Consumer Commission-Karnal is hereby modified by observing that insurer/appellant would now pay Rs.62,257/- (as being the loss to vehicle, so assessed by its surveyor) to complainant within 45 days from the date of this order. Remaining part of impugned order dated 16.03.2020 regarding grant of compensation and litigation expenses to complainant would remain intact. With these observations and modification, this appeal of insurer/appellant is partly allowed.
11. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
12. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
14. File be consigned to record room.
Date of pronouncement: 22nd November, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
