BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Wednesday the 26th day of November, 2008
C.C.No. 75/08
Between:
M. Maddileti, S/o. M. Maddileti,
21/109, Kondapeta, Dhone, Kurnool District. … Complainant
Versus
The Divisional Manager, New India Assurance Company Limited,
40/526, 1st Floor, HDCT Complex, R.S.Road, Kurnool. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate, for the complainant, and Sri.Md.Ishaq, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As Per Smt. C.Preethi, Lady Member)
C.C.No.75/08
1. This consumer complaint of the complainant is filed U/S 11 and 12 of C.P.Act , 1986 seeking a direction on opposite parties to pay an amount of Rs.1,71,000/- with 24% interest p.a., Rs.50,000/- towards mental agony , cost of the complaint and any other relief or reliefs , which the complainant is entitled in the circumstances of the case.
2. The gist of the complaint of the complainant is that the complainant is the owner of the Brand New Lorry bearing No.AP 21 1029 purchased on 06-07-2005 for eaking his livelihood purely on self employment basis .The complainant insured the said lorry with opposite party vide policy No.611500/ 31/50/01/956 for a period from 06-07-2005 to 05-07-2006. On 03-08-2005 at about 10.30 hours the said lorry was proceeding towards Kadapa within the out skirts of Allagadda , village, the driver of the said lorry last control and dashed against another lorry coming from opposite party side, as a result the complainants lorry completely damaged and the case was registered under 367 IPC in Cr.No.101/05 of Allagadda , Police Station . The complainant informed the said accident to the opposite parties and opposite party deputed , a surveyor to assess the loss and who assessed the loss to Rs. 3 lakhs and submitted his report to opposite party . Though, the loss was assessed to Rs. 3 lakhs the opposite parties settle the claim to Rs. 1,29,000/- only. To prove his case the complainant submitted all connected bills to the opposite party to the tune of Rs. 3 lakhs ,but the opposite party settled to a meager amount of Rs. 1,25,000/- only. In this regard the complainant met with opposite party and requested to settle the full claim, but the opposite parties paid a deaf ear to the complainant’s request. Hence, the complainant resorted to the forum for reliefs.
3. In support of his case the complainant relied on the following documents viz., (1) tourist permit to vehicle bearing No. AP 21 X 1029 , (2) Xerox copy of receipt dated 28-09-2005 as to the receipt of Rs.2,19,287/-
from complainant by Meru automobiles , (3) a bunch of 14 bills , (4) payment receipt dated 23-01-2006 as to the payment of Rs.1,29,000/- and (5) office copy of legal notice dated19-11-2007 along with postal acknowledgement, besides to the sworn affidavit of the complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 to A5 for its appreciation in this case and replies to the interrogatories exchanged.
4. In pursuance to the notice of this forum as to this case of the complainant the opposite party appeared through their standing counsel and contested the case by filling written version.
5. The written version of opposite parties denies the complaint as not maintainable either in law or on facts but admits that they have deputed a surveyor, on the information by the complainant about the accident, but denies that the said surveyor did not assess the loss for Rs. 3 lakhs , the said surveyor P.S. Mahaboob Basha made spot survey and submitted his report on 08-08-2005. The opposite party also deputed another surveyor Sri. MR. Srinivasan to conduct the final survey of the vehicle and submitted his report on 09-11-2005 , he estimated the loss of Rs.1,36,500/- . Thereafter, the opposite party did post report inspection of complainants vehicle by P. Narendra Kishore surveyor who submitted his report dated 23-11-2005 . As per the said report some replaced part were not produced by the complainant in view of the said report the opposite party settle the claim to Rs.1,29,000/- as full and final settlement and cheque for Rs.1,29, 000/- dated 23-01-2006 was issued to the complainant and the same was received by the complainant on 23-01-2006 . Hence, there is absolutely no deficiency of service on part of opposite party and the compensation of Rs.50,000/- claimed by the complainant is on higher side and lastly seeks for the dismissal of complaint with cost.
6. In support of their case the opposite party relied on the following documents viz., (1) commercial vehicle terms and conditions , (2) goods carrying commercial vehicle open policy B for a period 06-07-2005 to 05-07-2006 , (3) survey report dated 08-08-2005 along with photos and negatives , (4) final report dated 09-11-2005 with photos and negatives , (5) addendum to survey report dated 18-01-2005 , (6) post repair inspection dated 23-11-2005 , (7) claim disbursement voucher dated 23-01-2006 ,and (8) settlement intimation voucher , besides to the sworn affidavit of the opposite party in reiteration of his written version averments and the above documents are marked as Ex.B1 to B8 for its appreciation in this case and replies to the interrogatories exchanged.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite parties .
8. It is not in dispute that opposite party settled the claim of the complainant to Rs.1,29,000/- and paid the said amount to the complainant vide Ex.B7 and B8 and A4. The only dispute the complainant alleges in this case is that the surveyor appointed by the opposite party assessed the loss above Rs.3 lakhs, but the opposite party settled the claim to Rs.1,29,000/- only.
9. After payment of said amount of Rs.1,29,000/- the complainant got issued legal notice dated 19-11-2007 vide Ex.A5 stating that the opposite party settled the claim to Rs.1,29,000/- only, but in actuality the complainant suffered loss for more then Rs. 3 lakhs and seeks for the payment of balance amount.
10. But the opposite parties in their written version submits that the final surveyor MR.Srinivasan assessed the loss to Rs. 1,36,500/- as per Ex.A4 and A5 and as per Ex.B6 the post repair inspection report of R.Narendra Kishore dated 23-11-2005 some replaced parts are not produced by the complainant and hence they settled the claim to Rs.1,29,000/- only , but to substantiate the said fact that some parts are not produced by the complainant nothing is mentioned in the written version and sworn affidavit or in written arguments what are the parts that are not produced and no material is placed on record to show how the opposite party have reached to the figure of Rs.1,29,000/- and on what basis they have calculated. The opposite party except stating that as per Ex.B6 post repair inspection they have ultimately settled the claim to Rs.1,29,000/- nothing is on record, hence the payment of Rs.1,29,000/- less amount than the surveyors assessed amount of Rs.,136,500/- is definitely amounting to deficiency of service on part of opposite party.
11. The complainant in this case submits that actual loss suffered by the complainant is more than Rs.3 lakhs but the opposite party settled the claim to Rs.1,29,000/- only. The complainant seeks for payment of balance amount of Rs.1,71,000/- .The National Commission in Vatorgard Chemical Private Limited Vs National Insurance Company, reported in II (2005) CPJ Pg 10, where in it was held, that surveyors report is an important piece of evidence can be challenged on the basis of documentary or any specific evidence Order based on surveyor report cannot be questioned.
12. In the present case on hand the complainant failed to satisfy us to take any other view than taken by the surveyor. Surveyor report is supported by finding of the fact based on the material produced before him which is not rebutted by the complainant by placing any record to the contrary , more over it is settled Law that surveyors report is an important piece of document which has to be challenged on the basis of documentary or specific evidence which has not been done in this case.
13. Hence, the opposite parties has to pay to the complainant surveyor assessed amount . In this case the surveyor assessed the loss to Rs.1,36,500/- and the opposite party settled the claim to Rs.,129,000/- to rivert back there is nothing on record and there is no justification for deduction of Rs.7,500/- ( Rs.1,36,500/- - 1,29,000/- ) as salvage amount as per the reasons assigned above, the opposite party has to make good of the said amount to the complainant , as the complainant is entitled to the amount assessed by the surveyor and as the opposite party has already paid to the complainant an amount of Rs.1,29,000/- as per Ex.A4 and there by the difference being the above stated salvage amount which was deducted on the pretext of salvage not produced by the complainant and with out given any particulars of salvage and their value .
14. As the opposite party by its lapsive conduct in paying less amount than assessed by the surveyor not only caused mental agony to the complainant , but also constrained the complainant to seek the forum for redressal of his bonafide consumer grievances, the opposite party is liable to compensate the suffered mental agony of the complainant and cost of this litigation.
15. In the result, the complaint is allowed directing the opposite party to pay to the complainant the unaccounted salvage amount of Rs.7,500/- and an amount of Rs.1,500/- as compensation for suffered mental agony and Rs.1,000/- as costs of this litigation within one month from the date of receipt of this order. In default the opposite party shall pay the above award with 9% interest p.a from the date of default till realization .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 26th day of November, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Tourist permit to vehicle No. AP 21 X 1029.
Ex.A2. Xerox copy of receipt dated 28-09-2005 for receipt of
Rs.2,19,287 from complainant.
Ex.A3. 14 bills.
Ex.A4. Payment receipt dated 23-1-2006.
Ex.A5. Office copy of legal notice dated 19-11-2007 along with postal acknowledgment.
List of exhibits marked for the opposite parties:
Ex.B1. Commercial vehicle terms and conditions.
Ex.B2. Goods carrying commercial vehicle open policy B. packages for the period 6-7-2005 to 5-7-2006.
Ex.B3. Survey report dated 8-8-2005 along with photos and
negatives.
Ex.B4. Final report dated 9-11-2005 with photos and negatives.
Ex.B5. Addendum to survey report dated 18-1-2005.
Ex.B6. Post repair inspection report dated 23-11-2005.
Ex.B7. Claim disbursement voucher dated 23-1-2006.
Ex.B8. Settlement intimation voucher.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
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