Before the District Consumer Disputes Redressal Forum Barnala.
Complaint No. : 43/2015
Instituted on : 27.2.2015
Date of Decision : 10.07.2015
Gurchet Singh son of Sh. Zora Singh , resident of Village & Post Office Thulewal, District Barnala.
…Complainant
Versus
1. The New India Assurance Company Ltd., through its Branch Manager, Barnala.
2. Branch Manager, The New India Assurance Company Ltd., Branch Barnala.
…Opposite Parties.
Complaint under Consumer Protection Act.
Present : Sh. Hardev Singh counsel for complainant.
Sh. Vinay Kumar Jindal Counsel for opposite parties.
Quorum:
1. Shri S.K. Goel : President
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(By Ms. Vandna Sidhu Member):
This complaint No. 43/2015 has been filed by the complainant along with affidavit and documents. Brief facts of the case are that the complainant purchased a truck, by this way he is owner of truck no. PB-19-H-9705. The complainant become insured of opposite parties by getting the services of insurance of truck. And Gurmeet Singh s/o Charan Singh, resident of Sehbajpur, District Ludhiana was driver on the above said truck. On 24.8.2014, when said truck was about 15 KMs away from Bikaner during the journey of Barnala to Bikaner, the said truck met with an accident to save the life of a cow, at that time truck was badly damaged. Information was given about accident to the office of insurance company situated at Hanumangarh. The surveyor named Er. Raj Kumar Jain did survey, who was appointed by the opposite parties on same day. Second surveyor named Sh. Laxmi Narayan Vyas was appointed as Surveyor & Assessor and during the repair of the damaged truck, it was lying for repair at M/s. Bansal Motors Hanumangarh, he conducted the spot estimate for the repair of said truck, which was prepared to the tune of Rs. 7,13,052.20, labour and taxes were included in it. The surveyor submitted his report that the body shell or cabin is repairable but as per complaint the same was not repairable because of its cabin foundation frame fully damaged/cracked fitted in the bottom of the body. And cabin is the main part of the body in which other parts of the vehicle are fitted. Both sides of cabin inner frame damaged which is not repairable. Wind shield glass frame was also not repairable and they stated that they cannot repair this body shell as per company dimension for proper fitment of sheet metal and other parts in the body shell. Thus the body shell cabin was also changed. In case cabin would have not been changed it may cause due to non proper alignment. Thus, it was not in the interest of company and the complainant to get the said cabin repaired. The said old cabin is lying at Bansal Motors, Hanumangarh and the opposite party can collect the same from there. The complainant has paid the sum of Rs. 5,99,887/- to Bansal Motors, Hanumangarh, Rs. 16500/- to Ashoka Motors Store, Dhanaula Road, Barnala for purchase of tyre tube, vide Bill No. 7611 dated 8.9.2014 and Rs. 16,000/- to Mistri Jasbir Singh of Hanumangarh, Rs. 7,500/- to Kuldip Electric Works, GT Road, Moga vide bill dated 8.9.2014 for purchase of battery, Rs. 9,000/- paid for getting crane service of Hanumangarh. The complainant has paid the sum of Rs. 6,48,887/- on the repair of above said truck. Inspite of repeated requests to opposite parties to pay the amount of claim they delayed the claim with one pretext or other. So, there is clear deficiency in service on the part of the opposite parties and they have adopted unfair trade practice. Thus with these allegations the complainant prayed to this Forum to allow the instant complaint and direct the opposite parties;-
1) To pay the sum of Rs. 6,48,887/- along with interest at the rate of 18% per annum from the date of accident, till the final realization of the amount and to pay Rs. 2,00,000/-as damages on account of financial loss suffered by the complainant and for mental agony and harassment caused to the complainant and to pay Rs. 25000/- as litigation expenses and counsel fee.
In regard of jurisdiction the office of opposite parties is situated at Barnala and vehicle was got insured at Barnala i.e. why the above stated Forum has the jurisdiction to try this complaint. It is submitted by the complainant that vehicle is used for personal use to earn livelihood. Moreover complainant has no objection to make H.D.F.C. Bank Moga as a party in this case though it is not a necessary party in this complaint. As per pleadings, terms and conditions were not supplied to the complainant. Surveyor was appointed by opposite party and being paid by the opposite party he gave wrong report at the instance of opposite parties about the cabin of vehicle is repairable. In fact the cabin of said vehicle is not repairable. The complainant was wrongly asked to give duly signed discharge voucher. The documents were shown to surveyor. The opposite party has wrongly assessed the loss to the tune of Rs. 2,39,500/-. When the opposite party failed to settle the dispute and was putting of the matter with one pretext or the other, then legal notice was served upon the opposite party. Vague reply of the said notice was sent by the opposite party. During arguments and as per written arguments filed by the complainant It is also submitted that opposite parties have wrongly mentioned in the affidavit of M. Dhawal, Sr. Divisional Manager that Bansal Motors have not given in writing that body shell or cabin of the vehicle is not repairable. Rather the same was given in writing i. e. Ex.C-13. Further, it is pertinent to mention here that, as per Ex.C-13 i.e. report by Bansal Motors that this body shell or cabin not repairable because of it foundation frame fully damaged/cracked fitted in the bottom of the body shell or cabin or we can say that this was the main part of the cabin on which the other parts fitted of the body shell, both side of cabin inner frame damaged not repairable, wind shelf glass frame also not repairable and we cannot repair this body shell as per company dimension for proper fitment of sheet metal and other parts in the body shell. Moreover, Sh. Raj Kumar, Er. Laxmi Narayan and Sh. Rajinder Kumar were appointed Surveyors and Loss Assessors by the opposite parties. In this complaint here is no plea of fraud or connivance with the surveyor and thus no second or third surveyor was necessary as per law. The report of Surveyor is illegal and prepared for self purpose.
In prayer clause complainant claimed that as per law complaint be allowed in favour of complainant.
2. After sending notice to opposite parties, both parties appeared and submitted version. In preliminary objections it is submitted that complainant has no locus standi to file the present complaint, complaint is not maintainable. Complainant has not come to this forum with clean hands. Further, it is also submitted that it is a frivolous complaint and filed by complainant with an ulterior motive of extracting money from the opposite parties. Moreover complainant did not make party to H.D. F.C. bank, branch Moga because truck no. PB-19-H-9705 in question is financed by the above said bank. So, the complaint is bad for non joinder of necessary party. That the disputes and issues raised in this complaint involves intricate question of law and facts and matter involves, is complicated one, which requires lengthy evidence and same cannot be decided in the summary proceedings before this Forum.
3. Further, they also submitted in their version that this complaint does not fall under consumer protection Act. On merits opposite parties submitted their version that the alleged truck was insured under commercial vehicle package policy only and the policy No. is 36130131130100001305 and terms and conditions of the policy starts from 29.9.2013 to 28.9.2014. The terms and conditions were also supplied to the complainant along with insurance policy. The date of accident is denied for want of knowledge. After getting knowledge about accident Er, Raj Kumar Jain visited the spot on the same day and after inspecting he submitted his detailed report on 29.8.2014 to the opposite parties along with photographs. For assessing loss Er. Laxmi Narayan Vyas Surveyor and Loss Assessor appointed by opposite parties for final survey of the vehicle who assessed the loss of truck as Rs.2,39,881/- on repair basis after deducting Rs. 15000/- on account of salvage and also deduct deprecation for metallic 5% and 50% for rubber parts and allow Rs.2500/- as towing charges as per terms and conditions of Insurance policy. The loss of Rs.2,39,881/- was allowed by the final surveyor Er. Laxmi Narayan subject to completion of usual formalities and production of original documents/bills. The opposite party also sent regd. Letter dated 15.1.2015 to the complainant and asked him to provide bills receipt of towing charges, discharge voucher stamped and duly signed, any bill pending/lying with the complainant and bank account detail with IFSC code and account number. The opposite party has also enclosed blank discharge voucher along with the above letter dated 15.01.2015. Cabin of truck in question was repairable because now a days Tata Motors is supplying each and every part of cabin separately. But the complainant was adamant to replace the cabin with new one and illegally pressurizing the surveyor of opposite party to replace the cabin with new one. The said surveyor mentioned about it in his survey report dated 30.9.2014. The complainant did not show any original document to surveyor and the said surveyor has wrote down about it in his survey report. Surveyor also issued letter dated 2.9.2014 to the complainant and intimated him that cabin of vehicle is repairable. After that opposite party has also deputed Er. Rajinder Kumar Surveyor and loss assessor for re-inspection of the alleged vehicle carefully on 08.09.2014 at Bansal Motor, Hanumangarh and he took photographs of the same and submitted his detailed report dated 9.10.2014 to the opposite party. The surveyor Rajinder Kumar has also mentioned in his report that at the time of inspection complainant already replaced all the damaged parts of the vehicle with new one and the vehicle was in good condition as well in road worthy condition. The opposite party finally approved the claims of the complainant for Rs. 2,39,500/-. The above said claim was approved by opposite party subject to completion of documents and other usual formalities like production of towing receipt, bank account number and bills if pending with complainant and collection of salvage. But the complainant neither sent any document to opposite party nor completed the formalities which were necessary. So, inspite of sending documents complainant sent legal notice on 12.1.2015 to the opposite parties. Opposite parties requested the complainant to withdraw legal notice. The complainant did not elaborate the fact of issuance of legal notice to opposite parties .The complainant did not mention receiving of letter dated 15.1.2015 which was sent to opposite party and letter dated 2.9.2015 issued by surveyor Laxmi Narayan Vyas. The complainant has concealed the above said facts intentionally and did not come to the Forum with clean hands and wants to get relief by concealment of the above fact. Truck was empty at the time of accident. So, the surveyor rightly submitted his report. The complainant cannot compel to the opposite party to pay any amount more than assessed as the surveyor is the best person to assess the loss and survey report has to be accepted unless there are cogent reasons for rejecting the same. The complainant is bound by the terms and conditions of insurance policy and the claim of the complainant is assessed as per surveyor report under the terms and conditions of the policy. Complainant has violated the terms and conditions of the policy and has not completed the above mentioned formalities of the policy. So, the complaint is liable to be dismissed with costs.
4. In support of his pleadings complainant tendered documents as Ex. C-1 i.e. affidavit of Gurchet Singh , Ex.C-2 affidavit of Gurmeet Singh, Ex.C-3 copy of legal notice, Ex.C-4 is copy of postal receipt, Ex.C-5 is copy of RC, copy of driving license as Ex. C-6, copy of policy schedule cum certificate of insurance as Ex. C-7, Ex.C-8 is copy of estimate, copies of bills as Ex.C-9 to Ex.C-12, copy of letter as Ex.C-13, copy of bill of Bansal Motors Ex.C-14 .
5. Opposite parties also tendered in evidence Ex. OP-1 i.e. affidavit of M Dhawal DM, Ex. OP-2 affidavit of Luxmi Narayan Vyas, affidavit of Er. Rajinder Kumar surveyor Ex. OP-3, affidavit of Raj Kumar Ex. OP-4, copy of affidavit of Raj Kumar Ex. OP-5, Copy of legal notice Ex. OP-6, copy of reply of legal notice Ex.OP-7, copy of dispatch register Ex.OP-8, copy of postal receipt Ex.OP-9, copy of letter dated 15.1,2015 Ex.OP-10, Ex. OP-11is copy of dispatch register, Ex. OP-12 is copy of postal receipt, Ex. OP-13 is copy of register letter dated 2.9.2014, Ex. OP-14 is copy of letter dated 5.9.2014 Ex. OP-15 is survey report of Laxmi Narayan Vyas, Ex.OP-16 is copy of assessment sheet, photocopies of photographs Ex. OP-17 to Ex. OP-24, Ex. OP-25 is CD, Ex. OP-26 is survey report of Rajinder Kumar, Photocopies of photographs Ex. OP-27to Ex.OP-32, Ex. OP-33 is survey report of Raj Kumar Jain, Ex. OP-34 to Ex.OP- 44 photocopies of photographs, Ex OP-45 is invoice of Bansal motors, Ex. OP-46 is copy of policy, Ex.OP-47 is terms and conditions of policy.
6. After perusing the record and hearing the counsels of both sides that in our opinion complaint is acceptable, for these reasons, it is an admitted fact that the complainant availed the services of the opposite parties by getting insured alleged truck for the period from 29.9.2013 to 28.9.2014 by paying the requisite insurance premium of Rs. 48,800/-, a copy of which is on record as Ex.C-7. On the first page of policy it has been mentioned that Commercial Vehicle package policy Cover note No./ Cover Note issue 897598/29/09/2013 i.e. Ex. C-7. Moreover insurance is for the purpose of indemnification of the loss and here is not an issue regarding policy Commercial Vehicle Package Policy. It is also important fact that as per version complainant failed to submit his documents to the opposite parties. It is also necessary to mention here that first surveyor has specifically mention the damaged condition of the vehicle and photographs of damaged vehicle i.e. Ex.OP-34 to Ex.OP-44 which were taken by spot surveyor Er. Raj Kumar Jain. Surveyors also brought on record Ex.OP-25.
7. In the case Sri Venkateswara Syndicate Versus Oriental Insurance Company LTD. AND ANOTHER II (2010) SLT 664 =II (2010) CP=(2009) 8 Supreme Court Cases 507, wherein the Hon’ble Apex Court held as under.-
“There is no dispute the fact that the surveyor/ surveyors are appointed by the insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them.”
8. In view of the above, no sufficient grounds have been brought on record by the respondent. No other report of any Surveyor is brought on record by the complainant to contradict the reports of the Surveyors No. 1 to 3 which were appointed by the opposite parties. So, Surveyor report is solid and unflappable evidence as per law. It is necessary to elaborate here that Ex. C-13 is only a letter by Bansal Motors to the complainant but it is not a report of any expert or Surveyor in regard of damage to the vehicle. It is also pertinent to mention here that as per Ex.OP-15 Surveyor and Assessor Laxmi Narayan Vyas fully explained insurance particular and vehicle particulars of alleged vehicle and detail of loss of cabin in his report. So, in our view the amount which was assessed Rs. 2,39,500/- which was finally approved by the opposite parties is accurate amount for the above stated damaged vehicle.
9. To face this situation, learned counsel for the insurance company submitted that the insurance company is not liable to pay any amount as except the report of the Surveyor, no other cogent evidence led by the complainant. This contention is untenable. In this regard it is relevant to refer this judgment as New India Assurance Company Limited Versus Smt. Usha Yadav and others 2008 (3) R.C.R.9 CIVIL-111 in which it is held that insurance companies are in the habit to take these type of protections to save themselves from paying insurance claim. The insurance companies are only interested in earning premiums and find ways and means to decline claims.
10. In view of our discussion, we allow the complaint and direct the opposite parties to pay to the complainant an amount of Rs. 2,39,500/- alongwith interest @ 9% per annum from the date of filing the present complaint i.e. 27.2.2015 till realization. We further direct the opposite parties to pay Rs. 3,000/- to the complainant in lieu of consolidated amount of compensation for causing mental tension and harassment. We further direct the opposite parties to pay Rs. 3,000/- to the complainant on account of litigation expenses. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
10th Day of July, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
