Date of filing :23-06-2009 Date of order :04-02-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC. No. 139/09 Dated this, the 4th day of February 2010. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Abdul Rahiman.E.K, S/o.Ibrahim Haji, “Ibrahim Manzil”, } Complainant Kottikulam, Bekal.Po. Kasaragod.Dt. 671318 (Adv. George John Palmootil, Kasaragod) The Manager, The New India Assurance Co.Ltd, } Opposite party 92, East Coast Chambers, Ist floor,G.N. Chetty Road, T.Nagar, Chennai.17. (Adv.C.Damodaran, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT In this complaint the question posed before us is whether the survey report is an unsurpassable one that it cannot be overlooked by the insurer if the survey report is incomplete with respect to the actual damages sustained? 1. Facts of the complaint The Maruti Alto car bearing Reg.No.KL-14/E 4647 belongs to the complainant involved in an accident on 31-01-2007. The accident was duly intimated to the insurer/opposite party. According to their instruction the vehicle was taken to Ajith auto care for repair. Though a surveyor was deputed he did not go with the complainant to assess the loss. Later after a few months the surveyor inspected the vehicle without intimating the complainant. Though the complainant requested for a copy of the survey report, the surveyor stated that the survey report will be submitted only to the insurer. Though the complainant incurred Rs.81,012/- towards the repair of the vehicle. The insured/opposite party issued a loss voucher for Rs.29,200/- without accepting the said amount the complainant filed this complaint claiming the actual amount he spent for repairing the vehicle. 2. Version of opposite party The insurance of the car is admitted. The surveyor has correctly assessed the accident damages and the opposite party has offered the amount as per survey report. The allegation against the surveyor is made with ulterior motive to make illegal gains. The complainant was free to engage another surveyor of his choice in case if he was having any grievance as regards the loss assessment. The opposite party cannot by pass the survey report in settling the claim. The amount claimed by the complainant is excessive. There is no deficiency in service on the part of opposite party. 3. Evidence In this matter complainant filed affidavit in lieu of examination-in-chief as PW1 and faced cross- examination by the counsel for opposite party. Exts A1 to A3 marked. On the side of opposite party the surveyor who conducted the survey was examined as DW1 and Exts. B1 to B5 marked. Both sides heard and the documents scrutinized carefully. 4. Ext.A1 series are 10 in numbers are the photocopies of the bills of spare parts and repair charges. The date of the bills varies from 24-12-2007 to 06-05-2008. The total of the bill comes to Rs.95,113/-. Ext.A2 is the unfilled settlement intimation voucher sent by the opposite party to the complainant for the settlement of claim for Rs.29,200/-. 5. The case of the complainant is that the surveyor has inspected the vehicle without any intimation to him and he has acted arbitrarily and his report is incomplete pertaining to the assessment of damages and therefore the amount offered by the opposite party is insufficient to indemnify the loss sustained. The learned counsel for complainant Adv. George John Plamoottil invited our attention to Ext.B2, the surveyors report. In Ext.B2 the surveyor reported that he could not assess the internal loss if any since the repairer had not started the repair works and his report is prepared on the basis of external examinations of the vehicle at the workshop. Therefore according to the counsel for complainant the survey report is incomplete as it did not find any assessment with respect to the internal damages. 6. The surveyor E.T. Jayaraj who conducted the survey has been examined as DW1. He stated that the complainant was not present at the time of inspection. Hence he sent notice to complainant and Ext.B3 is the copy of the said notice. Thereafter he filed an interim report before the Divisional Manager of opposite party. The said report is Ext.B4. Complainant has not sent any reply to Ext.B3. Ext.B5 is the estimate prepared by the repairer. The said estimate is prepared before dismantling the vehicle. 7. According to the complainant he has not received Ext.B3 notice. Exts B3 and B4 are concocted documents prepared for the case to suit the situation. According to him, he was never intimated about the survey. 8. From the version of DW1 it is clear that he has inspected the vehicle before repair in the absence of complainant or his representative. What prompted him to inspect the vehicle without notice to complainant is quite unknown. So his version supports the case of the complainant that the surveyor acted prejudicial to his interest. 9. Whether such a report is binding on the insured? Certainly not. There is no hard and fast rule which provides that surveyor report is an unsurpassable one for the insurer to indemnify the actual loss sustained to the insurer if it is found that the report is incomplete with respect to the assessment of damages. The Hon’ble Supreme Court in the case of New India Assurance Co. Ltd V. Pradeep Kumar reported in 2009 CTJ 599 (Supreme Court)(CP) has held: “Although the assessment of loss by surveyor is a pre-requisite for settlement of insurance claim of Rs.20,000/- or more the surveyor’s report is not the last and final word.” It is not a sacrosanct that it cannot be departed from. It is not conclusive. The approved surveyors report may be basis of foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured.” Therefore we are of the view that in this matter the insured opposite party has evaded their liability to indemnify the actual loss sustained to the complainant taking shelter on a partially assessed survey report and it amounts to deficiency in service. 10. Reliefs & Costs:. The case of the complainant is that as against his actual loss of Rs.81,012/- towards the repair of the vehicle the opposite party has offered only Rs.29,200/-. But the Ext.A1 series copies of bills of spare parts and repair charges shows that a sum of Rs.95,113/- is seen spent by the complainant. Ext.B5 is the estimate prepared by the repairer for Rs.32,250/-. In Ext.B5 also the repairer has noted that the estimate is prepared only by an outer look of the damaged vehicle and on dismantling the requirement of parts and repair charges will be claimed additionally. So Ext.B5 is also incomplete with respect to the repair charges. 11. Considering the facts and circumstances the case we are of the view that the opposite party has not prepared to indemnify the loss sustained to the complainant adequately. Though we do not have any accurate method to mete the compensation, on an over all appraisal we feel that Rs.60,000/- would suffice to indemnify the loss sustained to the complainant. In the result complaint is allowed and the opposite party is directed to pay Rs.60,000/- to the complainant with a cost of Rs.2000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which the said amount of Rs.60,000/- will carry interest @ 9% from the date of complaint till payment. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. Series (10 in Nos.) Bills A2. Settlement voucher. A3. Photocopy of the policy issued by the opposite party B1.11-6-08 letter sent by complainant to OP B2.Survey Report B3. 29-06-09 letter sent by Surveyor to complainant. B4. 29-06-07 letter sent by Divisional Manager to complainant B5. 23-3-07Estimate of Ajith Auto care PW1.Abdul Rahiman.E.K. DW1.E.T.Jayaraj. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq
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