1.       The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 09.12.2015 of the State Consumer Disputes Redressal Commission, Himachal Pradesh, Shimla (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.196/2015 in which order dated 22.09.2015, District Consumer Disputes Redressal Forum, Mandi, H.P. (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 58/2014 was challenged, inter alia praying to set aside the order passed by the State Commission.

2.       While the Revision Petitioner(s) (hereinafter also referred to as OPs) were Respondents and the Respondent (hereinafter also referred to as Complainant) was Appellant in the said FA/196/2015 before the State Commission, the Revision Petitioner(s) were OPs and Respondent was Complainant before the District Forum in the CC/58/2014.

3.       Notice was issued to the Respondent. On account of non-appearance of the respondent despite service respondent was proceeded ex-parte. Petitioners filed Written Arguments/Synopsis on 24.12.2020 and Respondent did not file any submissions.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

The complainant's/Respondent’s Fiat Grande Punto car, insured by the OP/Petitioner, faced extensive damage in an accident on 02.12.2013. The complainant asserted it was a total loss situation due to repair cost estimates exceeding the insured amount. The complainant notified the OP about the accident. A Surveyor appointed by the OP submitted a report on 21.06.2014, stating a net loss of Rs. 1,89,000/-. However, before the surveyor's report reached the OP, the complainant filed a complaint with the District Forum, claiming complete vehicle damage and demanding payment equal to the sum insured, plus interest, compensation, and litigation expenses. The OP contested the complaint, citing that the accident wasn't intimated within fourteen days as per policy terms. Additionally, they mentioned their surveyor assessed the loss at Rs. 1,89,000/-, advising the complainant to repair the vehicle. As the repairs were not executed, they contended against liability for payment.

5.       Vide Order dated 22.09.2015, in the CC no. 58/2014 the District Forum has dismissed the complaint.  

6.       Aggrieved by the said Order dated 22.09.2015 of District Forum, Respondent/Complainant appealed in State Commission and the State Commission vide order dated 09.12.2015 in FA No.196/2015 has set aside the District Forum’s order and allowed the appeal; directed OPs to pay a sum of Rs. 3,68,400/- to the complainant with 9% interest p.a. on account of insurance claim; to pay Rs. 20,000/- as compensation and Rs. 10,000/- on litigation expense to the complainant.

7.       Petitioner(s) have challenged the said Order dated 09.12.2015 of the State Commission mainly/inter alia on following grounds:

1. An IRDA licensed surveyor assessed the loss, and the petitioner/OP authorized repairs based on this assessment. These actions were in strict accordance with the policy's terms and conditions, demonstrating no fault on the OP's part. The respondent's/complainant’s demand for considering the vehicle as a total loss was unwarranted. As per policy terms, a vehicle is labeled a Constructive Total Loss (CTL) only if the aggregate cost of retrieval or repair exceeds 75% of the Insured Declared Value (IDV). In this instance, the assessed loss amounted to Rs. 1,89,000/-, nearly 50% of the IDV (Rs. 3,68,460/-), thus qualifying solely for repairs as per the policy. The State Commission overlooked the District Forum's findings and incorrectly assessed certain parts not approved in the survey report, inflating the repair cost.

2. The State Commission erred in its observations regarding depreciation deductions. The insurance policy clearly outlines depreciation deductions for various parts based on their type and the vehicle's age, contrary to the State Commission's assumptions. The State Commission failed to acknowledge that depreciation aligns with the principle of indemnity in insurance contracts. The observed depreciation by the surveyor is in compliance with the policy provisions. It's incorrect to assume that a vehicle insured at a depreciated IDV wouldn't be subject to further depreciation in calculating repair costs. The District Forum correctly highlighted that estimated repair costs without actual repairs or bills are insufficient evidence. The complainant's conduct, refraining from repair despite surveyor's request, suggests an unjustified pursuit of a total loss claim. The complainant's approach lacked transparency, impacting the claim validity.

3. The complainant failed to challenge the survey report's assessment with tangible evidence, contrary to established precedents, making the challenge insufficient and untenable. The complainant breached policy condition no. 1 requiring immediate written accident notice. The intimation was belatedly provided, violating the policy terms. The State Commission's assessment diverged from legal and policy directives, overlooking the violation's significance. The State Commission misinterpreted the OP's statement about the accident intimation, deviating from the policy's immediate notice requirement. The OP's acknowledgment of the delayed intimation aligns with the violation of Condition no. 1 of the policy. The State Commission's order allegedly alters the contract's terms and conditions, which is impermissible and necessitates reconsideration.

8.       Heard counsel for petitioner. Respondent was proceeded ex-parte.  Contentions/pleas of the petitioner, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. The counsel for petitioner/OP argued that the insured vehicle's accident was intimated to the OP with a delay, violating the policy's immediate intimation clause. The complainant/respondent failed to arrange a spot survey and did not lodge a police report. The vehicle was taken for repairs without following proper procedures and the repair work was halted as per the complainant's instructions, despite the surveyor's advice against declaring it a total loss due to repair costs being well below 75% of the IDV. The District Forum dismissed the complaint, noting the complainant's attempt to distort facts and manipulate the case towards a total loss claim. The State Commission's decision to award the IDV without considering depreciation, salvage value, and specific parts costs is inconsistent with the policy terms and conditions. The surveyor's assessment allowed repairs, as per policy terms, and the assessed loss was below the threshold for a total loss claim.

2. The State Commission disregarded the assessment in accordance with the policy terms. Moreover, the addition of certain unallowable parts to inflate repair costs was erroneous. Despite this, the assessment remains within 75% of the vehicle's IDV. As per policy stipulations, unless repair charges, post deductions, exceed Rs. 2,76,345/-, a Constructive Total Loss (CTL) case cannot be established. Therefore, the claim ought to be settled based on repair assessment. The State Commission's assertion that no depreciation should be deducted for replaced parts in an older vehicle contradicts the principle of indemnity. Insurance on IDV represents the depreciated value, and offering new parts instead of accounting for depreciation distorts this principle.

3. The counsel further argued that the insurance policy explicitly outlines depreciation rates for different parts, aiming to maintain the principle of indemnity. Depreciation is an integral part of the insurance contract and is essential for upholding the principle of indemnity. The State Commission failed to acknowledge that challenging the surveyor's report requires tangible evidence from the complainant. Furthermore, the complainant did not challenge the depreciation on replaced parts. The complainant breached policy condition no. 1 by not providing immediate written notice of the accident. The State Commission's interpretation, suggesting compliance based on the deployment of a final surveyor, contradicts both policy requirements and established legal precedents. The State Commission's order effectively alters the contractual terms, which is neither legally permissible nor justified.

4. The counsel for Petitioner/OP relied on following judgements:-

1. In Suryachem Industries vs. Oriental Insurance Co. Ltd. I (2007) CPJ 278 (NC), it was held by the National Commission that the report of surveyor could be challenged only by producing tangible evidence by the complainant.

2.  In General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644, the Hon’ble Supreme Court held that:-

“11. …..In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves…..”

9.       We have carefully gone through the orders of the State Commission, District Forum and other relevant records. Before the State Commission, as the petitioner herein did not appear despite service of notice, they were proceeded ex-parte.

10.   In this regard, extract of relevant paras of State Commission order is reproduced below:-

“6. Respondents did not dispute that appellant's vehicle was insured with them, vide policy Annexure R1. Though, they stated that intimation of the accident had not been given to them, within fourteen days, the report of Surveyor, which is Annexure R2, shows that they instructed their Final Surveyor on 17.12.2013 to inspect the vehicle and assess the loss. It is matter of common knowledge that Final Surveyor is deputed only when survey is done by a Spot Surveyor. In any case, when instructions were given to the Final Surveyor on 17.12.2013 and the accident had taken place on 02.12.2013, it cannot be said that intimation of the accident was not given within the prescribed time limit of fourteen days. This apart, respondents did not lead any evidence in support of the plea, while the appellant, in his affidavit, stated that accident had been reported to the respondents forthwith.

7. ……..He has not included such items in the assessed loss nor has he given any reason for ignoring those items. Such items are bearing worth Rs 1164.84/-, instrument penal costing Rs. 4746.37/-, silencer catelized worth Rs. 23,084.84/- and injection pump worth Rs. 20,240.88/-. Total cost of these omitted items comes to Rs. 49,237/-. Surveyor has not said anything about these items, leave alone, specifically mentioning that these items were not damaged or did not require replacement.

8. ……Vehicle was insured in the sum of Rs. 3,68,400/- on IDV basis and therefore, no cut was required to be made on account of deprecation, because in the case of an old vehicle, where insurance is done on IDV, the amount of money, for which the vehicle insured, represents the depreciated value of the vehicle. The cost of the parts, which according to the Surveyor require replacement, works out at Rs. 2,27,517/-. To this amount, the amount representing the cost of left out four items. referred to hereinabove which is Rs. 49,237/-, is also required to be added and by this addition, value of the parts alone, which require replacement, works out at Rs. 2,76,754/-. According to the Surveyor's own assessment a sum of Rs. 28,230/-, is required on account of labour charges, though the appellant claimed Rs. 67,416/-, on this count as per estimate submitted by him. And if, we add this amount of Rs. 28,230/-, as assessed by the Surveyor, to the cost of spare parts, the total amount of money, required for repair of the vehicle works out at Rs. 3,04,984/-, and this amount being more than 75% of the sum assured, the case is required to be treated as one of total loss.”

11.   Extract of relevant paras of order of District Forum is also reproduced below.

“7. ….. It is the case of the complainant that his vehicle sustained loss to the tune of Rs. 3,70,499/- so it was a case of "total loss", but the opposite parties did not settle his claim on the basis of "total loss". In support of his contention, the complainant has filed his affidavit as well as Annexure C-3 details of estimated costs Issued by M/s Ram Hari motors. Annexure C-5 is the bill of crane service charges to the tune of Rs. 11,000/- which was spent by the complainant to bring his vehicle to premises of Ram Hari motors. Annexure C-6(i) to C-6(iv) are the copies of correspondence between the parties. We are of the opinion that the bills of estimate costs of loss Annexure C-3 to the tune of Rs. 3,70,499/- is not sufficient proof in support of the prayer advanced by the complainant as it is only bill of estimate and the complainant has not repaired his vehicle and did not spend actual amount or did not establish what would be the actual amount of repair of the vehicle. Only on the basis of estimated costs, the opposite parties cannot be directed to pay the entire amount to the complainant irrespective of the fact that accident took place during the currency of the Insurance policy. There is no affidavit on behalf of M/s Ram Harl Motors to the effect that" Rs. 3,70,499/- would be required for repairing the vehicle of the complainant.

8. On the other hand, the opposite parties have placed on record Surveyor report Annexure R-5 revealing that net loss assessed was to the tune of Rs. 1,89,000/- which is certainly not more than 75 % of the insured declared value of the vehicle. Copy of insurance policy Annexure R-1 is revealing that insured declared value of the vehicle is Rs. 3,68,460/- and 75% of the insured declared value would come to Rs. 2,76,345/-. Thus, the loss assessed by the surveyor to the tune of Rs. 1,89,000/- is certainly less than 75% of the insured declared value. Hence we are in agreement with the plea taken by the opposite party that it is not a case of total loss.

9. The report Annexure C-2 is revealing that the opposite party appointed Sh. Rajinder Kumar Sharma, Mechanical Engineer as surveyor and Annexure R-3 and R-4 are copies of the letters issued by Sh. Rajinder Kumar Sharma to the complainant requesting to start the repair work of his vehicle. These letters are revealing that despite request of Sh. Rajinder Kumar Sharma, surveyor, the complainant did not ask Ram Hari motors to start the repair work but he requested not to repair the vehicle as he was pressing hard for the claim on total loss basis. This conduct of the complainant is not justified. He should have repaired his vehicle and should have obtained the bills regarding the amount which would have been actually spent by him and only then his claim could be settled but it appears to us that the complainant himself is not interested in repairing the vehicle and for the same the opposite parties cannot be held liable.”

12.  After careful consideration of entire facts of the case, we are of the considered view that State Commission after taking due note of all the aspects of the case, have given a well-reasoned order, duly addressing the contentions of Petitioner herein and we don’t find any reason to interfere with its findings. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.” We find no illegality or material irregularity or jurisdictional error in the order of the State Commission; hence the same is upheld. Accordingly the RP is dismissed.

13.     The pending IAs in the case, if any, also stand disposed off.