Delhi

West Delhi

CC/15/317

DEVINDER KHOSLA - Complainant(s)

Versus

TATA AIG INSURANCE - Opp.Party(s)

02 May 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   317/2015

In re:-

Shri Devender Khosla

s/o Late Shri D.S.Khosla

r/o V-44, Rajouri Garden

New Delhi-110019                                                 ………..Complainant

 

VERSUS

TATA AIG Insurance Co. Ltd.

Zonal Office at A-2, Second floor

Main Najafgarh Road, near Kalra Hospital

Kirti Nagar, New Delhi-110015                                     .............   Opposite Party

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution:21/5/15

Judgment reserved on:6/4/22

                                              Date of Decision::2/5/22

 

Order by – RICHA JINDAL (Member)

 

ORDER

 

1. That the complainant being a consumer as defined under section 2(c) of the consumer protection act, 1986, has filed the present complaint. Brief facts presented before the hon’ble forum are as follows:-

1. The complainant had taken up a car insurance policy package, from the Opposite Party Insurance Company, to comprehensively insure his private passenger vehicle vide policy no. 0100721278 in the name of the complainant from the Kirti Nagar, New Delhi zonal office by an agent, namely Smt. Pooja Khurana, representing the Opposite Party, under agent/broker license code no. 8724197. The said policy was renewed w.e.f. 07.02.2014) retrospectively, in terms of a separate renewal endorsement letter dated 14.02.2014, issued by the Opposite Party to the complainant upon processing a policy renewal response form initiated by the above-named agent.
2. On 30.05.2014, a major cyclonic hailstorm storm struck Delhi and NCR. Due to the heavy debris and other milieu material propelled by strong, incessant winds spawned by the dense storm, the aforesaid insured vehicle sustained severe damages to its body work and illumination. Subsequently, on 31.05.2014 ie, on the very next day, the abovementioned vehicle was sent by the complainant for necessary repairs to the workshop, duly authorized by operating in the name and style of M/s Bird Automotive Private Limited, Gurgaon. The damages sustained by the abovementioned insured vehicle were duly inspected by the designated work floor repair representative, namely Mr Rizwaan Ahmed, upon its arrival registration at the abovementioned workshop.
3. Thereafter, upon a comprehensive assessment of damages sustained by the insured vehicle by the work-floor repair representative, a claim for damages was preferred against the aforementioned policy which was since identified by Claim No.620789806, dated-31.05.2014. However, despite the institution of a detailed claim, against the abovementioned policy, no surveyor was appointed by the Opposite Party Insurance Company, to assess the damages sustained by the insured vehicle.
4. Due to prolonged laxity on the part of the Opposite Party in appointing a surveyor for the comprehensive appraisal of damages. endured by the abovementioned vehicle, the complainant was constrained to register his consequential grievance with the Opposite Party Insurance Company by way of making several telephonic complaints by repeatedly calling the 24x7 Helpline No. mentioned at the backside of the policy document.
5. In pursuance of the complaints and several follow-up reminders made by the complainant and also the abovenamed authorised work-floor representative, a surveyor was appointed by the Opposite Party. However, despite the appointment of a surveyor for the appraisal of the claimed damages, repair work did not commence upon the abovementioned insured vehicle till 09.06.2014 since the above named claim-assessment representative did not give his approval for the satisfaction of the claimed amount on the part of the parent Insurance Company,
6. Subsequently, the authorized work-floor representative, namely Mr Rizwaan Ahmed, even fixed up a courteous meeting with Mr Dayapreet Singh for finalizing the assessment and processing of the claimed amount. However, despite fixing a motivating meeting with the above named work-floor representative, Mr Daya Preet Singh never visited the workshop to meet Mr Rizwaan Ahmed and instead, deputized Mr Joshi to appraise the damages sustained by the abovementioned vehicle and process the claim(s) arising therefrom. Subsequently, upon conducting a precise survey of the abovementioned insured vehicle and inspecting the damages sustained by it, the abovenamed surveyofficial, deployed by Mr Dayapreet Singh, gave astute positive assurances to the shop-floor manager in charge of the abovementioned works garage that the claims preferred against the abovementioned policy shall be processed exhaustively by the Opposite Party Insurance Company,
7. However, to the dismayed perplexity of the abovenamed complainant, the Opposite Party Insurance Company, even after conveying positive assurances to exhaustively process the claim amount in its entirety, apart from causing unnecessary hardships and posing procedural obstacles in the assessment of bonafide claims preferred against the above-enumerated policy, also did not indemnify the complainant to the satisfaction of the amount claimed in accordance with the item-wise repair estimate drawn by the abovementioned authorized workshop. The total consolidated claimed amount arising out of the repairs necessitated upon the abovementioned insured vehicle was INR 3,54,506.00/- (Rupees Three Lakh Fifty-Four Thousand Five Hundred and Six Only) in terms of the detailed billing estimate drawn by the authorized workshop. However, even after admitting its liability, the Opposite Party Insurance Company evasively indemnified the complainant only to the confines of INR 3,08,994 (Rupees Three Lakh Eight Thousand Nine Hundred and Ninety Four Only)
8. In other words, even when the damages, sustained by the abovementioned insured vehicle, were comprehensively covered by the aforementioned policy package, Mr Dayapreet Singh approved a DO amount of only INR. 3,08,994- (Rupees Three Lakh Eight Thousand Nine Hundred and Ninety Four Only) i.e. INR 45,512.00- (Rupees Forty-Five Thousand Five Hundred and Twelve Only) less than the abovementioned claimed amount.

 

1. No specific reason was disclosed by the official of the Opposite Party for sanctioning a DO amount which falls short by more than Forty-Five Thousand Rupees of the amount claimed, in accordance with the estimated repair bill drawn by the aforementioned workshop.
10. Since the entire claimed amount was not sanctioned by the abovenamed official acting on behalf of the Opposite Party; the complainant, yet again, had to undergo the agony of making several telephonic complaints to the Opposite Party by repeatedly calling the 24 x 7 Helpline No. mentioned at the back of the policy document. Each call made by the complainant was met with a redundant response that his grievance would be resolved without delay. However, even after several complaints, the Opposite Party neither explained the reason for not processing the entire claimed amount; nor took any steps towards discharging its obligation to fully indemnify the damages sustained by the vehicle insured.
11. Under the incorrigible circumstances created by the Opposite Party, the complainant. was constrained to make a payment of INR 41,612/- (Rupees Forty One Thousand Six Hundred and Twelve Only) towards the repair of damages sustained by his private car, due to the eventuality that was comprehensively covered by the abovementioned Insurance Policy. The payment of the aforementioned amount was made by the complainant, on 25.06.2014 through his credit card, to get his car discharged from the workshop.
12. Despite the assurance, the Opposite Party failed to fully indemnify the complainant against the damage sustained by the vehicle insured, during the tenure periodical of the abovementioned policy; the complainant was constrained to issue a LegalNotice, dated 20.08.2014, to the Opposite Party Insurance Company, calling upon it to indemnify the complainant by the making an obligatory payment of a total consolidated amount of Rs. 45,512.00/- (Rupees Forty-Five Thousand Five Hundred and Twelve Only) being the amount already paid by the complainant towards the repairs necessitated upon the abovementioned vehicle; due to the covered damage sustained by it during the subsistence of the abovementioned private car comprehensive insurance policy package, along with 18% interest per annum. However, an amount of INR.41,612/- (Rupees Forty One Thousand Six Hundred and Twelve Only) was paid by the complainant through his credit card to setoff an amount of INR 45,512.00/- (Rupees Forty Five Thousand Five Hundred and Twelve Only) being the difference between the amount claimed and the DO amount sanctioned by the Opposite Party. However, owing to miscommunication between the complainant and his Counsel, the amount paid by the complainant was inadvertently mentioned as INR 45,512.00/- (Rupees Forty Five Thousand Five Hundred and Twelve Only) in the abovementioned Legal Notice.
13. The Opposite Party Insurance Company, acting through its agents and assigns, kept on giving positive assurances that the un-indemnified balance amount paid by the complainant, towards the repairs necessitated upon the abovementioned vehicle, shall be duly compensated in the first week of March 2015, before the closing of the financial year 2014-2015. However, despite giving redundant positive assurances to compensate the complainant for the abovementioned amount expended him, the Opposite Party Insurance Company neither indemnified the complainant for the differential balance amount nor replied to the abovementioned LegalNotice. Therefore, the complainant was constrained to seek redressal of his grievance by the virtue of the Present Complaint inter alia prayed that the complainant is entitled to the un-indemnified amount of INR.41,612/- (Rupees Forty One Thousand Six Hundred and Twelve Only) being the set-off amount already paid by the complainant towards the repairs necessitated upon the abovementioned insured vehicle due to the covered damage sustained by it during the subsistence of the abovementioned private car comprehensive insurance policy packagealongwith compensation and cost and litigation.

 

2. Accordingly, on 26/07/2017 after hearing arguments on admission, notice was issued to OPs returnable on 03/10/2017. OP No.1 appeared before the forum on 3-10-2017 and took time for filing a reply, accordingly again court notice was again issued to OP no. 2 and OP no. 3 returnable on 22/11/2017. On 22/11/2017 OP no.1 submitted a reply to the complaint. The matter adjourned to 7/2/2018 for filing a reply on behalf of OP No.2 and OP No.3. Brief facts of the reply on behalf of OP No.1 are as follows:-

 

1. The Opposite Party was intimated by the Complainant about the alleged accident of the vehicle on 02.06.2014. The Opposite party upon receipt of the claim registered the same as claim No. 620789806 dated 02.06.2014 and appointed an IRDA Licensed Surveyor to assess the loss.
2. The surveyor inspected the subject vehicle at M/s Bird Automotive on 04.06.2014 and assessed the loss in respect of the clause of loss as stated by the complainant in the claim form which states “ Car was parked outside the Mall, constructions were going on, suddenly a storm came, due to this teen sheets and pipes fall down the car and car got damaged:  that accordingly, based on the surveyor report the answering Opposite party promptly acted upon and approved the claim of loss which were consonance with the cause of the accident and issued direction to the workshop under intimation to the complainant to carry out necessary repairs in the said vehicle.  It may be noted that the necessary deductions were made on account of damage, consumables and labour cost on the parts which did not result from the present accident.  The following parts were not allowed and not considered in the claim -
3. Painting to left door
4. Carrier Bumper
5. Guide
6. Plug
7. Hex box
8. Adapter

 

3. On receipt of intimation of completing the repair from the workshop, the surveyor again visited the workshop and re-inspected the subject vehicle at M/s Bird Automotive Pvt Ltd on 20.06.2014. accordingly, the Opposite party made payment. It is denied that the complainant was entitled to payment of the entire bill amount of Rs. 3,54,506/- to the complainant. It is further vehemently denied that the complainant is entitled to Rs.45,512/-(rupees forty-five Thousand five Hundred Twelve only) or any other amount towards the balance claim amount of repair of the subject vehicle.

 

4. The opposite party is liable to pay a claim for those damages to the vehicle which are payable in terms of the policy and arises out of an accident and a claim of the same is made immediately on the occurrence of damage in terms and the policy. However, the Opposite Party is not liable to make payment of those damages that had occurred in past and no claim had been filed against the same or as a result of wear and tear. Further, the Opposite Party is not liable to make payment for damaged external accessories which are not insured under the policy. It is respectfully submitted that in the instant matter the cause of certain damages to the vehicle was not corroborating/ correlating with the cause of the accident and therefore, the complainant was not entitled to claim against those pre-existing damages of the vehicle and accordingly, the complainant is not entitled to the claim of those other repairs and answering opposite party rightly did not pay the same.

 

5. The Opposite Party acted promptly according to the terms and conditions of the policy. Without any delay and/or negligence. Thus, no act of answering the Opposite Party amounts to deficiency in rendering services to the complainant and the present complaint deserves dismissal on this ground alone.

 

6. The complainant has approached this Hon’ble Forum with unclean hands and has suppressed the material facts of certain damages which were pre-existing and did not agree with the cause and nature of the accident as stated by the complainant in the present complaint and therefore, the present complaint is liable to be dismissed at the threshold.

 

7. The complainant has filed the present complaint with his ill and malafideintentions to get undue benefit out of the same and therefore, on this ground alone the present complaint is not maintainable and liable to be dismissed at the threshold.

 

8. The present complaint is barred under Section 26 of the Consumer Protection Act 1986 and therefore, the same is not maintainable and liable to be dismissed at the threshold.

 

3. That a rejoinder was submitted by the complainant to the reply of OP No.1 on 10-11-2016. On the very same day, the complainant also filed his evidence by way of the affidavit affirming the facts alleged in the complaint on 24/07/2018. The complainant has filed his evidence as CW1/PW1 by way of his affidavit along with documents exhibit CW-1/1 to CW- 1/5 and he has proved the documents

 

4. Thereafter OP No.1 through Mohd. AzharWasi, head claims North Zone filed an affidavit by way of evidence on 5/04/2017. Thereafter matte adjourned for filing of written arguments on behalf of both parties.

 

5. Accordingly both the parties filed their written submissions on 25.09.2017. Finally, oral arguments were heard on 06-04-2022. We have carefully gone through the record of the case and have heard submissions of the complainant.

 

6. It is the case of the complainant, that the Opposite Party, has not only failed to discharge its obligation to indemnify the insured for the estimated cost of the repairs necessitated due to eventualities forming a part of the contract but, has also acted contrary to the specific guidelines laid down by the I.R.D.A. (Insurance Regulatory and Development Authority) with respect to the loss or damage to the vehicle(s) comprehensively insured. Therefore, the non-indemnification of the estimated costs of repairs to the reckoning of INR 45,512.00/- (Rupees Forty Five Thousand Five Hundred and Twelve Only) by the Opposite Party, is illegal, arbitrary and without any justification. Moreover, the alleged amount of DO as quantified by the Opposite Party, for the subjected claim and for which the abridged recoup has been made by the Opposite Party; in indemnification of the estimated cost of repairs necessitated upon the insured vehicle, due to the damages sustained by it during the tenure of subsistence of the abovementioned policy; is imaginary and perverse to the agreed terms and conditions as elaborated in the policy document.
7. Whereas the opposite party argued that The Opposite Party was intimated by the Complainant about the alleged accident of the vehicle on 02.06.2014. The Opposite party upon receipt of the claim registered the same as claim No. 620789806 dated 02.06.2014 and appointed an IRDA Licensed Surveyor to assess the loss. The said surveyor inspected the said vehicle at M/s Bird Automotive Pvt. Ltd, Gurgaon and assessed the loss which agreed with the cause of the accident as mentioned in the Claim Form to the tune of Rs. 3,08,994/- (Rupees Three Lacs Eight thousand Nine hundred ninety-four only) which was included of Rs. 1,03,062/- towards depreciation reimbursement and after deducting Rs. 2000/- towards compulsory excess clause as per the terms and conditions of the policy. Since the Opposite party has settled the claim in full and final and paid the entire amount in terms of the Insurance policy, no other or further amount is payable to the complainant and therefore the present complaint is not maintainable and liable to be dismissed.
8. The Opposite Party relied on the following judgements passed by the Hon’ble National Commission:

-Ashish Kumar Jaiswal vs ICICI Lombard General Insurance Co. Limited decided on 19/01/2017 in RP No. 627/2011 = I (2017) CPJ 529

- Ashu Textiles vs New India Assurance Company Ltd. Decided on 15/05/2009 in RP No. 1429/2009 = III (2009) CPJ 272 (NC)

 

9. The Hon'ble National Commission’s decision was rendered in the case of Ashu Textiles Vs. New India Assurance Company and another; III (2009) CPJ 272 (NC), have observed that the surveyor's report should be taken into consideration for determining the compensation, as the surveyor's report has to be given more weightage than the report submitted by anybody else or any private agency.

 

10. The Hon'ble National Commission in another decision rendered in the case of Ashish Kumar Jaiswal vs ICICI Lombard General Insurance Co. Limited; I (2017) CPJ 529, has observed that in the present case no specific shortcoming is pointed out in the surveyor's report and it has not been specifically challenged before the District Forum or the State Commission, surveyor's report is the only reliable document which is to be considered for settling the insurance claim. We find that the petitioner has failed to put forward any cogent reasons to dispute the surveyor's report, hence, there is no reason to reject it. Both the fora below have accepted the surveyor's report and have allowed the insurance claim on that basis. We find no ground to interfere with the orders of the fora below.

 

11.  It is the general practice that the dealer generally inflates the estimate of repairs for the accidental vehicles to earn more profits.  If the estimate was for numerous items, it does not mean that all items were necessary.  Surveyors appointed by the Insurance Company are qualified loss assessors, who examine damaged vehicles and then assess which parts are required to be changed or repaired.  Moreover, there are certain items like all the rubber casing etc. where 100% value is not allowed and in some items, only 25 to 50% value is allowed.  Hence, the surveyor's assessment is the correct estimate of repair. Otherwise, also, the surveyors are appointed under the Insurance Act, 1938 and there are numerous judgments of the Hon'ble Supreme Court as well as the National Commission that the surveyor report cannot be brushed aside until there are cogent reasons for doing so.

 

12. Hon'ble Supreme Court in the case of Export Credit Guarantee Corpn. Of India Ltd., vs Garg Sons International - 2013 (1) Scale 410 decided on 17.01.2013 has held that:

"The insured cannot claim anything more than what is covered by the insurance policy. "....the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely". The clauses of an insurance policy have to be read as they are..... Consequently, the terms of the insurance policy, that fix the responsibility of the insurance company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in the case of a commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon."

13. Learned counsel has further contended that the report of the surveyor is an important document on which the insurance claim is decided. The report of the surveyor cannot be rejected without any cogent reasons. The complainant has not given any cogent reason for the rejection of the surveyor's report. Based on the estimate given by a private company, the surveyor's report cannot be disbelieved. In support of his argument, the learned counsel referred to the judgment of this Commission in the case of National Insurance Company Ltd., vs Manjit Singh and 2 Ors. (in RP No. 2443 of 2015) decided on 23.05.2017 wherein this Commission has held the following:

"8.       A perusal of the order passed by the State Commission reveals that they have based their conclusion on the estimate given by M/s. Alliance Motors Service of ₹5,60,653/-, saying that since the estimate exceeds IDV of the vehicle as stated in the insurance policy, it was a case of a total loss, as the damage to the vehicle was more than 75%.  The complaint should, therefore, be given the IDV of the vehicle, i.e., a sum of ₹4,81,534/- alongwith interest @9% p.a.  On the other hand, the District Forum stated that the surveyor M.L. Mehta and Co. were qualified mechanical engineers and experts in the relevant field.  They had given a well-reasoned, detailed report which was self-explanatory and there was no reason to disbelieve the said report in the absence of any evidence to the contrary. “

 

14. We are of the view that Surveyors are professionals who assess the loss or damage and serve as a link between the insurer and the insured. They usually function only in the non-life business. Their job is to assess the actual loss and avoid false claims. Surveyors like agents, are not employees but are independent professionals hired by the insurance company. The insurance company will appoint a surveyor to assess the loss in the accident. The surveyors will then go and assess the extent of the loss. Based on the report submitted by the surveyor, the insurance company will liable to settle the claim of insurance.

 

15. The Insurance Act, 1938 even while assigning an important role tothe surveyorcasts an obligation on him under sub­section section 64UM6(1A) to comply withthe code of conduct in respect of hisduties, responsibilities and other 

 

• professional requirements as specifiedby  the regulations made under the Act.
•  

          This provisionreads as follows:

“(1A) Every surveyor and loss assessor shall comply with thecode of conduct in respect of their duties, responsibilities and other professional requirements as 

maybe specified by the regulations made by the Authority.”

 

16. Reliance is placed on Hon’ble Supreme Court judgment in a case titled “ M/S Khatema Fibres Ltd vs New India Assurance Co. Ltd in CIVIL APPEAL NO.

9050 OF 2018 decided on 28^th September 2021, which states that

• “Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

17. The Hon'ble Supreme Court in the case of Sri Venkateswara Syndicate vs. Oriental Insurance Company Limited &Anr., (2009) 8 SCC 507, has observed the following:-

"The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as a loss surveyor, is deputed and assesses the loss and issues a report known as a surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for the settlement of a claim by the insurer in respect of the loss suffered by the insured.

There is no disputing the fact that the surveyor/surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. We also add, that, under this Section, the insurance company cannot go on appointing surveyors one after another to get a tailor-made report to the satisfaction of the officer concerned of the insurance company; if for any reason, the report of the surveyors is not acceptable, the insurer has to give a valid reason for not accepting the report."

18. Hon'ble Supreme Court in Sikka Papers Limited Vs. National Insurance Company Limited and Ors., (2009) 7 SCC 777, has observed that:-

"Insurance Act, 1938,- S. 64-UM- Surveyor/Loss assessor's report- Weightage to be given- Held, Though not the last word, there must be a legitimate reason for departing from the report- No infirmity found in surveyor's report and therefore held, Insurance Company rightly admitted claim as per the report."

19. Further NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in a case titled Shiv Villas Resorts Pvt. Ltd. vs United India Insurance Co. Ltd. decided on 13 November 2017 in FIRST APPEAL NO. 53 OF 2014

“The facts and analysis mentioned and recommendations made by the surveyor in his report and until this is done, the surveyor's reports remain a very important document on which the insurance claim could be finalized.

 

20. In Devendra Malhotra Vs. United India Insurance Co. Ltd. &Anr. 2016 (3) CLT 525 (NC), Hon'ble National Commission, has observed thus:-

        "Consumer Protection Act, 1986, Sections 2 (1)(g), 19 & 21 (a) (ii)- Insurance claim Surveyor report Held It is an established legal proposition that the report made by the surveyor, who is a professional in his field, cannot disbelieve unless there are cogent and convincing reasons to do so."

21. In Oriental Insurance Co. Ltd. Vs. Pavan Enterprises &Anr. I (2016) CPJ 503 (NC), Hon'ble National Commission has observed thus:-

"I see no reason to discard the report of the Surveyor. He appears to be a guideless witness. No motive was ever attributed to him. There must be some reasonable ground or doubt to reject his report.”

22.   The report of the Surveyor carries infinite significance as was held in Roshan Lal Oil Mills Ltd. &Ors., (2000) 10 Supreme Court Cases 19 and in D.N. Badoni v. Oriental Insurance Co. Ltd., I (2012) C.P.J. 272 (NC)."

23.   In New India Assurance Co. Ltd., vs. Pave Infrastructures Pvt. Ltd., 2015 (3) CPR 577 (NC), Hon'ble National Commission has observed that "Loss of assessment by approved Surveyor can be discarded only on cogent reasons".

24. Moreover, no specific objections have been raised on the report of the surveyor by the complainants. In such a situation, the report of the surveyor cannot be rejected. Admittedly the report of the surveyor is an important document on which the insurance claim is decided. The report of the surveyor cannot be rejected without any cogent reasons. The complainant has not given any cogent reason for the rejection of the surveyor's report.

       

25. In view of the aforesaid discussions, done and legal position explained we are of the considered view that

26. We further hold that there is no deficiency on the part of the OP The complaint is dismissed accordingly.

27.   Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations.

28.   File be consigned to record room.

29.   Announced on ____02/05/2022___. 

 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President