Chandigarh

DF-I

CC/186/2024

SANJU - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD THROUGH ITS ZONAL MANAGER - Opp.Party(s)

DEEPAK AGGARWAL

09 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/186/2024
Date of Institution	:	01.04.2024
Date of Decision	:	09/09/2024

Sajnu s/o Sh. Amar Chand resident of House no. 898, Sector-2, Panchkula, Haryana.

…..Complainant

Versus

1.     The New India Assurance Co. Ltd. through its Zonal Manager, having office SCO 36-37, Sector 17-A, Chandigarh-160017.

 

2.     Auto Vogue Showroom & Workshop, 388, Industrial Are, Phase- 1, Panchkula- 134113 (Haryana), through its Partner/Proprietor/Authorized Signatory.

 

...Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh.Inderjeet Singh, Advocate for complainant
	:	Sh.Harpreet Singh, Advocate for OP No.1
		OP No.2 exparte.

Per Pawanjit Singh, President

1.         The present consumer complaint has been filed by complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the complainant is the registered owner of Vitara Brezza car bearing registration No.HR-26S-0028 (hereinafter referred to as “subject car”) and the same was got insured with OP No.1, vide policy (hereinafter referred to as “subject policy”) which was valid from 03.10.2022 to 02.10.2023 (Annexure C-2). A copy of the RC of the vehicle is Annexure C-1.  On 01.04.2023 at Morni, when the subject car was being driven by the complainant and his friend Smt.Girja Devi was also accompanied him, the same met with an accident as stray dogs suddenly appeared in front of the subject car and the same was badly damaged. The photographs of the damaged subject car are Annexure C-3 (Colly.).  Immediately after the accident, the complainant informed OP No.1 and the police but before the arrival of the police on the spot, the driver of the offending vehicle had already left. Thereafter, the driver/owner of the vehicle was traced and the police had put pressure upon the complainant for compromise and under the pressure, the compromise was entered into between the driver/owner of the offending vehicle and the complainant at Police Chowki, Amravati and an amount of ₹30,000/- was paid by the owner of the offending vehicle in cash to the complainant on account of non-insurance accessories. Thereafter, OP No.1 had deputed the surveyor and on behest of the surveyor the subject car was towed initially from the place of the accident to Amrawati and thereafter from Amravati to Panchkula in the workshop of OP No.2 and the towing bills are Annexures C-4 & C-5. The surveyor Mr.Sanjeev Manocha inspected the subject car, clicked the photographs and did other formalities. Thereafter, the surveyor informed the complainant that OP No.1 had appointed Krish investigator for further investigation. The investigator also visited the spot in the month of May, 2023 and also visited the Police Chowki, Amravati and got the signatures of the complainant on certain blank papers. The investigator has not given any investigation report to the complainant and rather informed him that on the date of accident the subject car was being driven by a lady and not by the complainant. The investigator asked the complainant to provide D.L. of Smt.Girja Devi which was also provided by the complainant to the investigator. A copy of the D.L. is Annexure C-6. While assessing the loss to the subject car, OP No.1 wrongly deducted sum of ₹30,000/- which was received by the complainant from the third party towards non-insurance accessories from the total claim payable and has also wrongly deducted 10% by stating that the complainant had mis-represented the facts by stating that subject car was being driven by him despite of the fact that the same was being driven by his friend Smt.Girja Devi. In this manner, OP No.1 has wrongly deducted a sum of ₹30,622/-, which was conveyed to the complainant through e-mail dated 07.02.2024 (Annexure C-7). The complainant had spent ₹3,45,006/- for the repair of the subject car vide tax invoice dated 31.10.2023 (Annexure C-8) and the copy of payment receipt is Annexure C-9.  As the complainant was asked by OP No.1 to pay the difference amount of the net liability amount of the insurance company i.e. ₹2,75,603/-, the complainant was compelled to pay an amount of ₹70,342/- under protest to OP No.2 which is clear from payment receipt (Annexure C-9). However, when the subject car was taken by the complainant from OP No.2, the block of the same got burst and resultantly, the same was again taken to workshop of OP No.2 for repairs and the aforesaid loss to the block of the subject car was caused only due to unsatisfactory work done by OP No.2. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OP No.1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, estoppel, cause of action and concealment of facts.  It is stated that on receipt of the claim, the answering OP deputed Mr.Sanjeev Manocha as a Surveyor for survey of the subject car and in absence of any DDR/FIR or any medical record of injury to the driver, the surveyor requested for an investigation of the case. Accordingly, on his request,  Krish Associates were deputed to investigate the claim of the complainant who submitted the investigation Report on 20-06-2023 in which the surveyor highlighted various contradictions about the driving of the subject car at the time of the accident and also with respect to the striking of the subject car against the scorpio  vehicle bearing registration No.HR-03-Z-8140, coming from the opposite side were pointed out. During investigation, it was also found that another lady namely Ms.Girja Devi was accompanying the complainant at the time of accident and she was driving the vehicle and not the complainant and later on the complainant entered into compromise (Annexure R-1) with the owner/driver of Scorpio vehicle and the complainant received Rs.30,000/- as a full and final payment from the other party. The copies of statement of the witness of the complainant and complainant dated 01-05-2023 is Annexures R-2 and R-3. Thereafter, on finding that the complainant had concealed material facts, a letter dated 12.12.2023 (Annexure R-4) was issued to him to clarify the aforesaid facts, followed by another letter dated 21.12.2023 (Annexure R-5) but he had failed to clarify the said facts and therefore, the claim of the complainant was rightly repudiated vide letter dated 27.12.2023 (Annexure R-6). Thereafter, the complainant again made a request through e-mail dated 30.01.2024 to reconsider his claim and by taking sympathetic view, the net liability of the answering OP was assessed to ₹2,75,603/- by making deduction of ₹30,000/- already paid by third party on account of damage to the subject car and 10% of the total liability to the tune of ₹30,622/- on account of sub-standard basis and the same was approved and paid to the complainant. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. In rejoinder to the written version of OP No.1, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
   4. OP No.2 was properly served and when OP No.2 did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 30.05.2024.
2.        In order to prove their respective claims the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject car and the same was insured with OP No.1 vide subject policy, which was valid w.e.f. 03.10.2022 to 02.10.2023, as is also evident from the copy of policy (Ex.C-2) and the subject car was badly damaged in the accident and was repaired by OP No.2 and the loss to the subject car was assessed by the surveyor deputed by OP No.1 to the tune of ₹3,37,725/-, as is also evident from Annexure R-10 out of which OP No.1 has already paid an amount of ₹2,75,603/- by making deduction of ₹62,122/- (i.e. ₹30,000/- on account of the amount paid by third party to the complainant by way of compromise and ₹30,622/-  being 10% on account of sub-standard basis),  the case is reduced to a narrow compass as it is to be determined if OP No.1 is unjustified in partially repudiating the claim of the complainant and the complainant is entitled to the claim as prayed for, as is the case of the complainant or if OP No.1 is justified in partially repudiating he claim of the complainant and the complaint of the complainant, being false and frivolous, is not maintainable and is liable to be dismissed,  as is the defence of OP No.1.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the investigation report (Annexure R-9) given by the investigator deputed by OP No.1 along with the approval e-mail/letter (Annexure R-8) vide which the claim of the complainant was partially allowed by making certain deductions and the same are required to be scanned carefully
   3. Perusal of the Investigation Report (Annexure R-9) clearly indicates that the investigator has found certain contradictions in the statement of the complainant with respect to the fact that he was alone in the subject car or was accompanied with his friend Ms.Girja Devi and that the subject car was not being driven by the complainant, rather the same was driven by Ms.Girja Devi. However, the investigation report is silent if the investigator had collected any cogent and convincing evidence on the basis of which he had come to the conclusion that the subject car was being driven Ms.Girja Devi at the time of the accident. Moreover when it has come on record that both the complainant and even at the worst the subject car was being driven by Ms.Girja Devi, she was also possessing valid D.L., the same is not going to make accident suspicious especially when the investigator has concluded in the last paras of his report that the insured car met with an accident on the relevant date, time and place and also mentioned that both Ms.Girja Devi and the insured-Mr.Sajnu were holding driving licenses and the relevant portion of the same is reproduced as under:-

“On the basis of the claim documents / claim form/ witnesses / written & oral statements/ photographs/above explained facts / circumstantial evidences gathered during the course of investigation, we are of the opinion that:

1.     It is genuinely reported that on 01.04.2023 around 06:30 p.m. insured car no. HR-26-S-0028 Brezza Car met with an accident at near Burj Kotia, Morni Road.

2      There are variances in the statements given by the insured Mr. Sajnu so far as driver of the vehicle is concerned.

3.     Mr. Sajnu (insured) and Ms Girja Devi (reportedly driver at the time of accident) both are holding Driving Licenses”.

 

Thus, when it stands proved on record that the subject car met with an accident as a result of which it was badly damaged and the same was being driven by a person who was possessing a valid driving license, the claim of the complainant being fully covered under the subject policy for any accidental loss, it is safe to hold that the complainant is entitled for the amount as assessed by the surveyor especially when the complainant has failed to show any documentary evidence that the survey report (Annexure R-10) suffers from any defect or that it cannot be believed.

4. It is pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

        “38.  A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”

 

Further, the Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

        “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

5. Perusal of the final survey report (Annexure R-10) clearly indicates that the surveyor had assessed the loss including the towing charges to the tune of ₹3,37,725/-. In fact, the complainant is aggrieved by the deductions made by OP No.1 i.e. ₹30,000/- having been paid by the owner/driver of the scorpio car by way of compromise to the complainant and ₹30,622/- on account of sub-standard basis because of mis-representation of the facts by the complainant as mentioned in the approval email(Annexure R-8). The relevant portion of the said approval email is reproduced as under:-

“Amount assessed by Surveyor Rs. 3,36,225/-

Less compensation received by you from third party vehicle involved in the accident Rs.30,000/-

Net Assessed amount Rs. 3.06.225/-

Less 10% towards sub standard because of  misrepresentation of facts as stated above Rs.30.6221-

Net Liability of Insurance Company = Rs.2,75,603/-“

 

6. However as it is clear from the terms and conditions of the subject policy are silent that in case any amount is paid by the third party to the complainant in the accident, OP No.1 is permitted to make deduction to that extent and also that in case of mis-representation of facts, 10% on account of sub-standard basis can be made, therefore, it is safe to hold that OP No.1 has wrongly made the aforesaid deduction of ₹60,622/- from the total assessed loss by the surveyor in his final survey report (Annexure R-10) and the complainant is, thus, entitled to that amount including ₹1500/- on account of towing charges.  
7. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4.        In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP No.1 is directed as under :-
   1. to pay ₹62,122/- to the complainant alongwith interest @ 9% per annum (simple) from the date of approval e-mail i.e. 07.02.2024 onwards
   2. to pay ₹7,500/- to the complainant as compensation for causing mental agony and harassment;
   3. to pay ₹7,500/- to the complainant as costs of litigation.
5.        This order be complied with by the OP No.1 within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6.        However, the consumer complaint against OP-2 stands dismissed with no order as to costs as no cause of action has been proved against it.
7.        Pending miscellaneous application(s), if any, also stands disposed off.
8.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

09/09/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Suresh Kumar Sardana] Member

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