ORDER

Shri A.K.Patra,President:

1. The captioned consumer complaint is filed by the complainant named above interalia alleging deficiency in service & unfair trade practice on the part of O.ps for repudiation of insurance claim under policy No.2311204300740200 of the O.P which was effective as on date of loss.
2. Peruse the material on record. We have our thoughtful consideration      on the submission of complainant and  learned counsel for the opposite party.
3.  The complainant Sri Manish Sabar, seeks  for  an order  directing the O.P :- to release insurance benefit of Rs.1,45,519/- and compensation of Rs.2,00,000/- towards mental agony & physical suffering along with litigation cost of Rs. 1,00,000/-And  prayed for all other relief /reliefs as the Hon’ble  Commission may deemed fit and proper .
4. The facts as stated in the complaint and documents attached there with are as follows:-that, the complainant  is the  registered Owner of the vehicle Hyundai Verna Car  bearing registration No.OD 07E5099  and got it insured with OP /HDFC ERGO General Insurance Co. Ltd vide policy No.2311 2043 0074 0200 for a period of one year i.e from 16.09.2021 to 15.09.2022 ,unfortunately said  vehicle met with an accident on dt.13.11.2021 at about 6.15 pm near village Chhatrang of Bongomunda P.S of Bolangir District ,matter of which was reported to the  nearby police station by the driver Khusiram Patel but it was not accepted as no third party property /person sustained loss ,however, Station Diary No 011 dt.21.11.21 was registered after intervention of the S .P Bolangir .It was also averred that, the matter of accident was immediately informed to the insurance agent from whom the alleged insurance policy was purchased ,who assured to convey the message to the concerned authority of the insurance company /OP accordingly, a claim was registered vide No. C230021323010.The damaged vehicle was sent to Sonu Motor   ,Bolingir (the authorized service center of op/insurer) for repairing . Being instructed by the op/insurer, the alleged vehicle was inspected by the investigator Nirakara Das who submitted his report to the op/insurer & assured the complainant that, his claim will be settled at an earliest  and on being asked ,the complainant along with his driver Sri.Khusiram Patel were reported to the op in person on 23/11/2021 where the statement of the driver was taken ,so also on 30/11/2021 the preliminary Quotation /Estimate for repairing of the damaged vehicle was submitted to the insurer .However ,on 27/02/2022 the insurance claim of the complainant is rejected by the op/insurer vide their letter dt.27/02/2021 on the ground quoted below :- “During survey it has been observed that the damages as per estimate copy claimed in the alleged accident are unrelated to the cause of accident as reported in the claim form . The damages do not commensurate with the cause of loss as mentioned by you in the claim Form .These damage are multiple and accumulated in nature. Hence , it is a violation of the Motor Package Policy Condition No. 1 and also tantamount to misrepresentation of material facts” .Being aggrieved upon  such repudiation this complaint is filed against the OP alleging deficient service & unfair trade practice on the grounds  that ,one Nirakar Das  was the investigator being deputed by the O.P had inspect the vehicle in presence of the insured/complainant but a repudiation letter transcribed the name of Rabi Narayan Tripathy as surveyor who had never been visited the damage vehicle for inspection,. It is further alleged that, there is a conspiracy made against the complainant in order to avoid the liability of the O.P hence this complaint. As per the principle of promissory estoppels and in view of the insurance agreement the ops are duty bound to pay service to the consumer/complainant and denial of insurance benefit caused financial loss & mental agony to the complainant need to be adequately compensated by the ops . 
5. The O.P appeared through their Learned counsel Sri.  D.R Bohidar and file their written version denying the complaint allegation on all its material particular. However, valid insurance was valid at the time of accident, alleged accident caused damage to the vehicle not disputed rather liability of the insurer to reimburse the insurance benefit under the said insurance policy is disputed for the reason that, the nature of damage as per the estimate copy submitted  by the complainant are unrelated to the cause of the accident as reported in the claim Form. It is pleaded that, the damage does not commensurate with the cause of loss as mentioned by the complainant in his claim Form. The O.P placing reliance on the surveyor  report dt.19.12.2023 of the independent surveyor Rabi Narayan Tripathy pleaded that there is misrepresentation of material fact on the part of the complainant. It is further submitted that, the  complainant has deliberately delayed  in giving intonation  of the accident to the op/insurer and also delayed in lodging information (FIR/SDE )in the Police Station only to avoid the spot inspection of the alleged vehicle immediately after the loss which is a clear violation of policy condition accordingly, the insurer has repudiated the claim of the complainant though the surveyor Si Rabi Narayan Tripathy  has  assessed the loss net liability of Rs.66.716.94/- of the alleged insured vehicle.
6.  Parties lead their evidence and filed their affidavit evidence. The complainant has filed the affidavit of the complainant Manish Sabar and evidence affidavit of one Khusiram patel , the driver of the vehicle at the time of alleged accident . The insurance company has filed the affidavit evidence of one Bhubaneswari Das , the Deputy manager legal claim , HDFC EGRO General Insurance Co. Ltd.
7. The complainant in his affidavit prove the complaint averment and the affidavit of the driver Khusiram Patel justify the delay in registration of Station diary before the concern Police Station though the complainant has inform the matter immediately to the insurer through its agent form whom insurance policy was purchased remain unchallenged.
8. The OP/ Insurance company in its affidavit evidence submitted through of Bhubaneswari Das ,the Deputy manager legal claim , proved the averment of the written version and other documents such as i.e. policy scheduled, claim form ,repudiation letter and observation of surveyor  report dt.19.12.2021 against the claim of the complainant quantifying the loss net liability at   Rs66,7016.94/- against the claim of Rs.1,45,519/- of the complainant .
9. Parties are furnishing their written synopsis. We have heard the argument and peruse the relevant material on record.
10.  The admitted facts of the case are that the complainant had insured the alleged vehicle with the O.ps. During the existence of the policy, insured vehicle got accident resulting loss to the complainant. Matter was reported in the Bangomunda Ps though in delayed. Delay in lodging is GD vides  S D.E No . 011  dt .21. 11.2021 is properly explained remain unchallenged /un reputed.  On receiving of the intimation of accident a surveyor was appointed by the insurer. Surveyor submitted his report assessing the loss net liability of Rs.66,716.94/- under the said insurance policy.
11. It is the contention of the insurance company that, the nature of damage sustain to the vehicle shall not be caused due to such a nature of accident as narrated by the complainant in his claim form. Learned counsel for the OP submitted that, said station Diary Entry is based upon the version  of the complainant only ,the police authority bhas not investigated the alleged accident as such cannot be  taken in to consideration. On the other hand, the Complainant has disputed the surveyor report on the ground that, surveyor name Rabinarayan Tripathy was never been to the complainant for verification of the damage vehicle rather one Nirakara Das was attended the vehicle and verified the damaged details caused to the vehicle in the alleged accident. In his complaint averment para 6 (six) supported by an affidavit so also in the para 6(six) of his evidence affidavit, the complainant has prove this facts remain un-rebutted as no iota of evidence is adduced by the O.P/insurer what so ever that, surveyor Er Rabinaray Tripathy was appointed as surveyor for inspection of the damaged cause to the alleged vehicle at any point of time though the complainant has disputed the facts of appointment of surveyor.
12. The learned counsel for the insurance company argued that, admittedly the complainant has delayed in intimating the matter of accident to the insurer, so also delayed in reporting to the police station for which   ,the insurance company has rightly repudiate the claim of the complainant as per the terms of the insurance policy .
13. The Learned counsel for the complainant draw our attention over the surveyor report upon which the O.ps /insurer have relied specifically for repudiation of the claim of the complainant. It is seen that, the copy of the surveyor report dt.19.12.2021 as filed by the O.P as per their list of document dt.23.11.2022, copy of which is duly served to the complainant who receive the same with objection and the copy of surveyor report filed on dt.02.03.2023 as per the list of document dt.02.03.2023 along with the affidavit evidence  of Mr Bhubaneswari Das, copy of which is duely served to the complainant , whereon  Learned Counsel for the complainant made an objection against the documents SL No.3(copy of surveyor report submitted by Er. Rabi Narayan Tripathy )  & 5 (Copy of repudiation letter dt.27.02.2022) , disputing the contention of said documents.
14. Law is well settled that, report submitted by the surveyor is an important piece of evidence and has to be given due weight, though it is not sacrosanct and can be ignore, provided there is cogent evidence otherwise.
15.  It is found that,  the Remark No.-1 in  the surveyor report dt 19.12.2021 filed by the O.P as per the list of document dt.02.03.2023 is clear different   as it is found in the Remark Coolum No-1 in the surveyor report of the same surveyor Rabin Narayn Tripaty filed earlier as per the list of document dt.23.11.2022. For reference & clarification we may quote the Remark 1 as there in surveyor report filed by the O.P as per the list of document dt.22.11.2022 as follows:- “Remark .1:-The damages observed are consistent with the cause and nature of accident and liability under the terms & conditions of the Policy arises on the underwriter” On the other hand “Remark .1 of the surveyor report filed by the O.P as per the list of document dt.02.03.2023 is :-“The damages observed on the IV are not consistent with the reported cause and nature of accident. Moreover, discrepancies exist in the pre –insurance photos of IV made available to us with the photos of the IV taken by us during our pre-dismantling survey. Hence and liability under the terms & condition of the Policy may not arise on the underwriter. This two contradictory view has been made by the surveyor in his same report   dt.19.12.2021 filed by the O.P on different date as such we are unable to placed our reliance on the said view of the surveyor in both the reports available on the record hence we are unable to accept it as such discarded the said contradictories views of the surveyor based on which the insurer has repudiated the claim of the complainant vide its letter dt. 27.02.2022, hence the alleged repudiation of insurance claim of the complainant is found to be unauthorized/illegal.
16. Here, we may observe that, insured vehicle got damaged in an accident causing loss to the insured /complainant and insurance as on date of loss was in force is not disputed. In this regard learned counsel for the complainant draw our attention on the settle principle of law that “the occurrence being occurred with  the currency of the policy and there being the report made to the police, the delay in informing the op /insurance company cannot be repudiated to defeat the genuine of the case of the complainant “ as decided in the case of The   National Insurance Co.Ltd Vrs Madhabi Bera & ors , before the Hon’ble SCDRC,  Odisha Cuttack ,reported in 2020(3) CPR 119 Ori) .Here in this case the complainant in his evidence  on affidavit proved the complaint averment. The affidavit evidence of the driver Khusiram Patel  and complainant himself has justified  the delay in registration of Station diary before the concern Police Station. The  complainant has informed  the matter immediately to the insurer through its agent form whom insurance policy was purchased remain unchallenged as such repudiation of the claim of the complainant on the ground of delayed intimation to the insurer /op is not acceptable .
17. The complainant has claimed that one investigator namely Nirakara Dash has verified the damaged vehicle and submitted his report assessing the loss @ Rs. 1,45,519 but no such report is filed by the complainant rather the loss as assessed @ Rs. 66,716.94  in the surveyor report of surveyor Rabin Narayn Tripaty date 19.12. 2021 remain un-rebutted though it is challenged by the complainant.
18. Law is well settled that the surveyor is an expert and its report stand on the footing of expert evidence. Relying  on the judgment of the Hon’ble Supreme Court passed in Sri Vankatesware Syndicate Vrs. Oriental Insurance Company Ltd.(2009)8 SCC 507 and Khatema Fibres Ltd. Vrs. New India Insurance Company Ltd.(2021) SCC  818 ,we are of the opinion that, the surveyor  report dt 19.12.2021 placed on the record to the extent of the facts of the assessment of loss @ Rs. 66,716.94   is to be given due importance.
19. Loss caused to the complainant due to accident of the insured vehicle but insurance benefit is not yet released by the Ops as such there is sufficient cause of action continuing to bring this complaint. Claim of the complainant is repudiated by the ops vide letter dt. 27.02.2022 and this complainant is filed on 07.07.2022 before this Commission within the jurisdiction of which the complainant is residing as such this complaint is found to be in time and well within the jurisdiction of this Commission  maintainable under Consumer Protection Act 2019.
20. Hence, in the light of above said discussion and settled principle of law we are of the considered view  that the complainant is entitled for insurance benefit and the Opposite Parties have neglected for settlement of claim as such we are of the opinion that , the Ops are deficient in service. The complainant in this case  is entitle for the loss as assessed by the surveyor i.e. Rs.  66,716.94 only and further he is entitle for the interest @ 9% per annum over the said amount since i.e 19.12.2021 the date of assessment of loss along with litigation expenses of Rs.10,000/-. Hence it is ordered.

ORDER

This consumer complaint is allowed in part against the ops on contest .the Ops are directed to pay  Rs.  66,716.94 with interest @ 9% p.a only toward insurance benefit since i.e 19.12.2021 and litigation expenses of Rs.10,000/-.to the complainant within four weeks from the date of received of this order failing which the Ops are liable to pay 18% interest over the awarded amount till its realization.

Dictated and corrected by me.

President

I   agree.

    Member                                                         

Pronounced in open Commission today on this   05^th April 2023  under the seal and signature of this Commission. Pending application if any is also stands disposed off.

Copy of this judgment be provided to the parties free of cost .The judgment be uploaded forth with on the website of the Commission for the perusal of the parties.  Ordered  accordingly.

.

Member                                                      President