DISTRICT CONSUMER DISPUTES REDRESSAL FORUM;BHADRAK

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C.D.Case No.9 of 2014

Sri Ajaya Kumar Mandal, aged about 40 years

S/o: Anam Mandal, At:Kanjikhia,

PO: Ertal, PS: Basudevpur,

Dist:Bhadrak

                                            ………………………Complainant

           (Vrs.)

The Legal Manager,

M/s.Royal Sundaram Alliance Insurance Co.Ltd.,

At:Subharamanium Building,

2^nd Floor No.1, Club House Road,

Chennai-600002

                                            ………………………….Opp.Party

Order No.27 dt.22.06.2016:

            The case of the Complainant is that he is the owner of one Mahindra Maximo Mini Van bearing Regn.No.OD-22-0736 .  He had purchased the said vehicle for the purpose of earning and maintaining his livelihood. The said vehicle was insured with O.P. vide Policy No.00110585000100 for the period from 22.09.2012 to 21.09.2013. During subsistence of the policy, the said vehicle dashed with another tractor bearing No.OR-22D/6972 on 02.08.2013 evening at about 8 PM on the road of Bhadrak-Chandbali, near Haladidiha bypass, Bhadrak. After accident, the IIC of Purunabazar PS registered PS Case No.76, u/s.279, 337 and 338 of IPC against the driver of Mahindra Maximo Van bearing No.OR-22D/6972.  Due to accident the said Maximo Van was severely damaged and it was investigated by the Agent of O.P.. The Complainant spent Rs.1,51,434.42 towards repairing of the said vehicle. But the O.P. paid only Rs.48,249/- to the Complainant towards damage of the vehicle. In spite of Complainant’s repeated request when the O.P. did not pay the rest amount of Rs.1,03,185.42, the Complainant filed this case on 27.01.2014 praying for a direction to O.P. to pay the said amount along with compensation.

            O.P.-Insurance Company filed written version pleading inter-alia that the Complainant is not a consumer and that the case is not maintainable under the provisions of the C.P.Act as there is arbitration clause in the issued policy. According to O.P., on receipt of claim intimation from the Complainant on 07.08.2013 the O.P. immediately  deputed statutory surveyor Mr. Binit Pattanaik as per Section 64UM of Insurance Act to assess the liability on account of the accidental damages suffered by the Complainant’s vehicle. The IRDA licensed surveyor gave a statutory survey report stating that the vehicle is in a repairable condition and that the net liability upon repairing the vehicle would not exceed Rs.49,000/-. After completion of repair, the surveyor re-inspected that vehicle on 08.11.2013 and found that the Complainant’s vehicle was brought to road-worthy condition and pursuant to the same a claim of the Complainant was settled for a sum of Rs.48,249/- as the assessment made by the statutory surveyor. The allegation of the Complainant that the claim has to be considered based on the repair estimate is a misconceived thought.  Policy terms clearly stipulate for depreciation at the rate of 50% for all rubber, nylon, plastic parts, tyres, tubes, batteries and air bags. Further, for glass the depreciation is charged 30% and therefore the baseless averments made by the Complainant are totally misconceived and baseless. Moreover, as per settled law the report of the surveyor is an important document which cannot be brushed aside.  As such, the claim by the Complainant for additional amount of Rs.1,03,185/- is baseless and untenable under the policy issued to Complainant.

            We have gone through the record and perused the documents filed by both sides. It is not disputed that a sum of Rs.48,249/- paid by O.P. through cheque No.71774 dt.22.09.2013 has been received by the Complainant. According to Complainant he spent Rs.1,51,434.42 towards repairing of the vehicle i.e. Mahindra Maximo Mini Van bearing Regn.No.OD-22-0736 due to such accident occurred on 02.08.2013 but the O.Ps paid only Rs.48,249/- to him. As such, the Complainant is entitled to rest amount of Rs.1,03,185.42 from the O.P. According to O.P., the claim of Complainant has been settled as per assessment report prepared by the statutory surveyor u/s.66UM of the Insurance Act,1938.  The report of the surveyor is an important document which cannot be brushed aside easily without any valid justification or any report to the contrary. Under the above circumstances, the only question that needs for consideration is whether the Complainant is entitled to rest amount of Rs.1,03,185.42 from the O.P. towards repairing charges of his vehicle?

            It is no doubt true that the Surveyor’s report is an important document and the basis or foundation for settlement of a claim and it cannot be brushed aside unless there is specific reason to do so or some malafide on the part of the surveyor is established. Undoubtedly, the assessment of loss by the approved surveyor is a prerequisite for payment or settlement of claim by insurer, but surveyor’s report is not the last and final word and binding upon the insurer or insured. It is the settled principle of law that survey report has to be prepared on the basis of bills and vouchers of expenditure incurred on repairs. But in the instant case the surveyor has assessed the loss without taking into consideration the bills and vouchers of expenditure incurred on repairs by the Complainant. The Complainant has filed Xerox copy of bills and vouchers showing payment made towards repairing of his vehicle as follows, the original of which have been received by the engaged surveyor:

                                                                                        Total=        Rs.1,51,434=08

As against the bills and vouchers for Rs.1,51,434/- submitted by the Complainant, the Surveryor has assessed net loss of the Complainant to the tune of  Rs.48,249/-. As such, there is shortfall of Rs.1,03,185/- which the Complainant  claims from O.P.-Insurance Company. On perusal of record, it is found that the Complainant had paid premium of Rs.17,500/-to O.P. against total insured declared value of the vehicle for Rs.3,35,700/- commencing from the period from 22.09.2012 to 21.09.2013. The said vehicle was first registered before the RTO, Bhadrak on 28.09.2012 and the accident took place on 02.08.2013 i.e. within 1 year from the date of registration. The severity of the accident of the vehicle is evident from copy of the photographs available in the record. On perusal of  Office Note and Liability Summary dt.17.12.2013 filed by the O.P. in this case, it is found the Complainant has paid Rs.35,000/- towards denting, Rs.25,000/- towards painting etc. all totaling to  Rs.73,000/- to M.M.Bhadrak Workshop against invoice No.125  but the surveyor has assessed Rs.23,500/- towards labour charges for payment. Similarly, other payments made to different parties have not been categorically mentioned in the survey report. The surveyor has not filed the preliminary survey report nor the details of estimate submitted by the Complainant. Thus the report of the surveyor is   perverse or arbitrary and based on mere inferences.  It is true when the Surveyor is appointed by the insurance Company; he must somehow look after the interest of the Insurance Company that does not mean the surveyor shall completely ignore the interest of insured. This has been happened in this case. The Surveyor has not mentioned the details of bills and vouchers submitted by the Complainant in the survey report basing on which assessment was made. So some malafide on the part of the surveyor is established and the O.P. insurance Company hurriedly made payment of mere amount of Rs.48,249/- to Complainant on dt.22.09.2013 through cheque No.71774 for which the Complainant protested it. As such, deficiency of service on the part of O.P. is established. Accordingly, it is ordered:

                                                     O R D E R

            In the result, the complaint is allowed in part against the O.P. The O.P. is directed to pay rest amount of Rs.1,03,185/- within a period of 30 days of receipt of this order along with litigation cost of Rs.2,000/- to the Complainant.