DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

1.                 Sh. Raj Kumar Bansal s/o Sh. Suresh Chand r/o being husband and LR of Sunita Bansal r/o H.No.185, Shivalik Enclave, NAC Manimajra, Chandigarh.

2.                 Prateek Bansal s/o Sunita Bansal through his natural guardian and father Sh. Raj Kumar Bansal being minor.

3.                 Shannel Bansal d/o Sunita Bansal through his natural guardian and father Sh. Raj Kumar Bansal being unsound mind.

                                      ---Complainants.

Versus

1.                 ICICI Lombard General Insurance Co. Ltd., Quite Office No.10, 1^st & 2^nd Floor, Sector 40-B, Chandigarh 160036 through its Manager (Claims)

2.                 ICICI Lombard General Insurance Co. Ltd., Zenith House, Keshavrao Khade Marg, Landmark Opp. Racecourse, Mahalaxmi, Mumbai 400034 through its Manager.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

Argued by: Sh. Varun Chawla, Adv. for the complainants

                        Sh. Sandeep Suri, Adv. for the OPs

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Raj Kumar Bansal has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :-

“i)      to settle the claim of the insured vehicle on Total loss basis i.e. to the tune of Rs.9,13,750/- alongwith interest 18% from the date of loss i.e. 26.12.2009 till its realization.

ii)               to settle and pay the claim of Rs.2,00,000/- on account of Personal Accident Cover extended to the owner/driver of the insured vehicle alongwith interest 18% from the date of loss i.e. 26.12.2009 till its realization.  (Given up)

iii)            To pay Rs.1,00,000/- as compensation for mental torture and physical harassment etc.

iv)              To pay Rs.5500/- as costs of litigation.”

2.                           In brief, the case of the complainant is that his wife, Mrs. Sunita Bansal, purchased a Toyota Innova (2.5 GX 7STR) car from Globe Toyota, Mohali.  She got the same comprehensively insured from the opposite parties for the period 21.12.2009 to 20.12.2010.  Its Insured Declared Value (IDV) was Rs.9,13,750/-. 

                   It has been pleaded by the complainant that on 26.12.209, the said car met with an accident and was damaged beyond repairs.  The complainant intimated the police about the said accident on the same day for which F.I.R. No.165 dated 26.12.2009 was also registered at P.S. Khamano. Smt. Sunita Bansal received serious injuries in the said accident and later on she succumbed to the injuries.

It has further been pleaded that information was also given to the opposite parties regarding the accident and claim was lodged.  The opposite parties appointed one Mr. Gaurav Sood, Surveyor and loss assessor who inspected the vehicle and assessed the loss. However, the report submitted by the said surveyor was not made available to the complainant nor the opposite parties took any action on the basis of the said report.  The opposite parties kept silent and did not settle the claim despite repeated requests.

                   The complainant wrote letters dated 23.3.2010 and 15.4.2010 requesting the opposite parties to settle the claim at the earliest.  In response, the opposite parties requested the complainant to visit their office for settling the claim.  When he visited their office, the opposite parties started pressurizing him for settling the claim at less value.  He refused to settle the dispute on lesser amount.  He vide letter dated 30.4.2010 requested for settlement of the claim but to no effect.

According to the complainant thereafter he received a letter from the workshop either to get the vehicle repaired or to remove the same.  The owner of the workshop also started demanding Rs.200/- per day as parking charges.  It has further been pleaded that as the opposites were not settling the dispute and were not intimating the complainant about the report of the surveyor, so he had no option but to approach some independent surveyor to get the loss assessed. In these circumstances, he approached Mr. Kailash Chandra, an IRDA approved and licensed independent surveyor.  He inspected the vehicle and assessed the loss and gave his report dated 5.7.2010 (Annexure C-10).  Ultimately the complainant served a legal notice upon the opposite parties but to no effect. 

In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3.                           The opposite parties in their written statement admitted that the car in question was insured with them and that it met with an accident. However, it has been denied that the vehicle was damaged beyond repairs.  It has been averred that the claim was surveyed and as per the surveyor’s report, claim to the tune of Rs.4,84,421/- was allowed.  It has further been averred that the complainant was specifically required to give his consent/documents for repair for which even letter dated 23.4.2010 was also written.  However, it has been pleaded, that the complainant failed to do so, therefore, the vehicle could not be repaired.  It has been denied that the report of the surveyor was not shared with the complainant or that there was any delay on the part of the opposite parties.

                   According to opposite parties, there is no deficiency in service on their part and the complaint deserves dismissal.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           At the outset it would be relevant to mention here that on 23.8.2012, Counsel for the complainant gave a statement that he does not press his relief No.(ii). 

6.                           It is an admitted case of the parties that the vehicle in question was insured with the opposite parties and that it met with an accident.

7.                           The case of the complainant is that the vehicle was badly damaged and that it is irreparable.  So, the complainant is entitled to the IDV of the vehicle.  On the other hand, the case of the opposite parties is that as per the report of the surveyor, the complainant is entitled to a sum of Rs.4,84,421/- in case he gets the car repaired from some authorised dealer.

8.                           It is pertinent to mention here that as per record, the vehicle was assessed for the first time by the surveyor and loss assessor engaged by the complainant himself as by that time the opposite parties had failed to settle the dispute and had not shared any information regarding the loss assessed by them.  As per the report (Annexure C-10) of Sh. Kailash Chandra, Surveyor and Loss Assessor, engaged by the complainant, the assessed loss was Rs.8,14,929.75 on repair basis and Rs.9,12,750/- on total loss basis.  According to the said report, the insurers (opposite parties) were bound to consider the vehicle as total loss as the retrieval cost and/or repair of the vehicle, subject to terms and conditions of the policy, exceeded 75% of the IDV of the vehicle. 

9.                           On the other hand, reliance has been placed by the opposite parties on the assessment report dated 25.10.2010 submitted by Er. Ajay K. Kanwar, who is the surveyor and loss assessor appointed by the opposite parties.  As per the said report, the vehicle is repairable and the assessed loss is of Rs.4,84,421/-.  As per the said report, the surveyor was appointed on 1.1.2010 and he submitted his report on 25.10.2010.  However, the surveyor has failed to furnish any explanation for delay of  around 10 months in assessing the loss and submitting the report despite clear guidelines in this regard in chapter IV under the heading ‘Duties and responsibilities of a surveyor and Loss Assessor’ of Insurance Surveyors and Loss Assessors (Licensing, Professional Requirement and Code of Conduct) Regulations, 2000 wherein it has been mentioned that the surveyor or loss assessor shall submit his report to the insurer as expeditiously as possible, but not later than 30 days of his appointment provided that in exceptional cases, the aforementioned period can be extended with the consent of the insured and the insurer.  

10.                       The case of the complainant is that there is total loss of the car and his allegations stand corroborated by the report of the surveyor engaged by the complainant himself who assessed that the car was badly damaged and was beyond repairs.

11.                       As there were divergent opinions of the surveyors, in such circumstances, The Works Manager, Haryana Roadways, Chandigarh was appointed as an expert by this Forum vide order dated 2.1.2012 to ascertain as to whether the vehicle in question is repairable or not?  Sh. Ashok Kaushik, Works Manager, Haryana Roadways, Chandigarh submitted his report dated 4.6.2012, operative part of which reads as follows :-

“Front portion and body shell of the vehicle is almost completely damaged which is comprising of cooling system, steering system, brake system, exhaust system, suspension system, front axle & fuel system. All the electrical system & main electrical harness of the vehicle is badly damaged.   Chassis is the main part & base of the vehicle which is bend from front side.  If chassis of any vehicle is once bend or damaged, can’t be repaired.  All tyres are completely damaged in current condition.  As per record, the vehicle is off road since December, 2009, so it is not advisable to repair the vehicle.  Claimant’s wife also died in this major accident as per record.”

So it is recommended to consider it as Total Loss because the vehicle is beyond repair.  In other words, if we go for repair, the total cost of repair is approximately equal to cost of new vehicle.”

12.                       From the above report it is apparent that the vehicle is beyond repairs. The ld. Counsel for the opposite parties has failed to draw our attention to any infirmity in the said report.  In such circumstances, we have no option but to disbelieve the assessment made by Er. Ajay K. Kanwar, surveyor and loss assessor of the opposite parties.  Admittedly the body shell/chassis of the car is damaged and cannot be repaired.  So, the assessment made by Er. Ajay K. Kanwar is wrong and cannot be accepted. 

13.                       Thus, from the above said discussion, it has been duly proved that the car is beyond repairs, so the complainant is entitled to the IDV of the car.

14.                       Faced with this situation, it was argued vehemently by the ld. Counsel for the opposite parties that the opposite parties are bound to indemnify the complainant in terms of the surveyor report appointed by them.  In support of his contention he has relied upon the order dated 28.3.2008 passed by the Hon'ble National Commission in case Champalal Verma Vs. Oriental Insurance Co. Ltd. However, the proviso to sub-section (ii)2 of Section 64 UM, as reproduced in the said order, clearly mentions that nothing in the sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor and loss assessor.  So, the insurer can differ with the report and is not bound to indemnify the complainant as per the report submitted by the surveyor. 

15.                             Otherwise also, the Hon'ble National Commission in case Sumit Kumar Agarwal Vs. Oriental Insurance Co. Ltd.- II (2012) CPJ 73 (NC) has held as under :-

“………………..There is no doubt that the report submitted by the surveyor is an important piece of evidence and has to be given due weight but as observed by the Apex Court in New India Assurance Co. Ltd. Vs. Pradeep Kumar, IV (2009) CPJ 46 (SC)=IX (2009) SLT 17=IV (2009) ACC 356 (SC)=(2009) 7 SCC 787, the same is not sacrosanct and can be displaced by the Complainant by leading cogent and trustworthy evidence to the contrary. In the present case, District Forum was not satisfied with the recommendation made by the surveyor that the vehicle can be repaired and appointed an expert to report the extent of damage and as to whether the vehicle was in a repairable condition. The independent expert came to the conclusion that the vehicle could not be repaired because of the damage caused to the chassis, front axle and steering. According to the expert, the chassis in future could bend or go weak as and when the tyres wear out. Surveyor has submitted that the vehicle was extensively damaged but recommended the claim to be settled “on repair” basis without giving any reason. Perusal of the findings recorded by the Surveyor regarding the extent of damage caused to the car leaves no doubt in our mind that the car could not be repaired and that too with a paltry sum of Rs.63,713. We are of the opinion that the vehicle was extensively damaged and could not be repaired. District Forum had rightly accepted the report of the independent expert appointed by it and awarded the compensation on “total loss” basis. State Commission erred in reversing the finding recorded by the District Forum.”

16.                       We are of the opinion that the order passed by the Hon'ble National Commission in Sumit Kumar Agarwal’s case (supra) is fully applicable to the present case.  In the present case also, the independent expert appointed by this Forum after examining the vehicle recommended to consider the vehicle as total loss because the same was beyond repair and the total cost of repair of the vehicle was approximately equal to the cost of the new vehicle.

17.                       Thus from the evidence placed on record, it has been duly proved that the car is beyond repairs, therefore, the opposite parties are liable to pay the IDV of the car to the complainant.  Failure on the part of the opposite parties to pay the IDV of the car amounts to deficiency in service. 

18.                       In view of the above discussion, the present complaint is allowed and the opposite parties are directed :-

i)                   to pay the IDV of the car i.e. Rs.9,13,750/- to the complainants and take salvage of the car at their own cost.

ii)                to pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainants;

iii)              To pay Rs.7,000/- as costs of litigation.

19.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(i) and (ii) shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.

20.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30.08.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER