STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

Amit Gawri s/o Amar Gawri aged 31 years R/o H.No.71, NAC, Shivalik Enclave, Chandigarh.

                                                .…Appellant/Complainant

                                Vs.

The New India Assurance Co. Ltd. Divisional Office-IV, SCO 58, Sector 26-C, Chandigarh, through its Senior Divisional Manager.

                                        …. Respondent/Opposite Party

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by:  Sh.Rajesh Verma, Advocate for the appellant.

MRS. NEENA SANDHU, MEMBER

1.                    This appeal is directed against the order dated 9.1.2012 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant (now appellant).

2.                    The facts, in brief, are that the complainant got his vehicle No.CH04C-4014 insured with the Opposite Party (now appellant) vide Package Insurance Policy for the period from 18.1.2009 to 17.1.2010 (Annexure C-2). It was stated that the said vehicle met with an accident on 8.3.2009 near Karnal. The same was toed to the workshop of M/s Toyota Pioneer Toyota, at Chandigarh, and the Opposite Party was, accordingly, informed. It was further stated that M/s Gopal Krishan & Associates were appointed, as surveyor, which submitted its report dated 31.3.2009, regarding the loss caused to the vehicle. It was further stated that, as per the invoice dated 31.3.2009, an amount of Rs.1,52,831/- was claimed, out of which an amount of Rs.29,500/-was paid by the complainant. It was further stated that when the vehicle was ready for delivery, it came to light that the surveyor did not assess the loss, caused to the engine of the vehicle, in the accident. It was further stated that the complainant visited the office of the Opposite Party a number of times, but to no effect. It was further stated that the complainant was left with no option, but to pay Rs.1,24,915 for the repair of the damage caused to the engine of the vehicle.  It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In their written reply, the Opposite Party, stated that the repairer was having a tie up agreement, with it, for providing cashless facility, to its customers. It was further stated that where the dealer was providing the cashless facility and the insured was to pay depreciation amount in accordance with the loss, as assessed by the surveyor. The  excess clause as per the cubic capacity of the vehicle was to be paid by the insured from his own pocket, and rest of the amount, was to be directly paid to the dealer by the Insurance Company. The insured was not required to pay any other amount, to the repairer. It was further stated that the complainant paid only the difference of amount to the repairer and the payment of Rs.1,17,375/- vide cheque No.5576, dated 25.9.2009 favoring M/s Emm Pee Motors Pvt. Ltd. was made by the Opposite Party. It was further stated that when the vehicle, in question, was ready after carrying out the repairs, the Opposite Party, deputed Mr.Sanjeev Sethi to conduct the re-inspection of the same, who recommended that the value of the salvage was to be deducted, as per tie-up agreement. It was further stated that the cubic capacity of the vehicle was more than 1500 C.C, so an amount of Rs.1000/- was deducted as a compulsory excess clause, as per the terms and conditions of the Insurance Policy.  It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

4.                    The Parties led evidence, in support of their case.

5.                    After hearing the Counsel for the parties and on going through the evidence and record of the case, the District Forum, dismissed  the complaint. 

6.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.                    We have heard the Counsel for the appellant and, have gone through the evidence and record of the case, carefully. 

8.                    Admittedly, the Opposite Party paid an amount of Rs.1,17,375/-  vide discharge voucher (Annexure R-2) to the repairer i.e. M/s Emm Pee Motors Ltd, Chandigarh, as assessed by the surveyor, as per the terms and conditions of the Insurance Policy. On the contrary, the Counsel for the appellant/complainant submitted that as there was damage to the engine of the car, therefore, the complainant was also entitled to be indemnified in the sum of Rs.1,24,915/- , which was paid by him vide Annexure C-7 and the same was duly stamped and sealed by  M/s Emm Pee Motors Ltd, Chandigarh. However, the perusal of Annexure R-7 dated 09.03.2009 i.e. service estimate, provided by the complainant,  to the surveyor, shows that there is no mention therein, regarding the loss caused to the engine of the car. This fact has been further corroborated by the affidavits of the Surveyors and Loss Assessors namely Sh.Gopal Krishan and Sh.Sanjeev Sethi who specifically deposed in their respective affidavits that the there was no loss to the engine of the vehicle, due to the impact of the accident, which took place on 08.03.2009. Even the affidavits of the surveyors, produced by the Opposite Party, had not been rebutted/controverted by the complainant before the District Forum.  Therefore, there was no occasion, for this Commission, to discard the affidavits of the surveyors, produced by the Opposite Party, who assessed the loss, on the basis of the documents, provided by the complainant. Keeping all these facts into consideration, we cannot ignore the report of the surveyor, R-1 as it is a settled proposition of law, that the report of the surveyor is an important document, and cannot be brushed aside without any cogent evidence to the contrary. Although the complainant had placed on record the pre-invoice bill dated 29.4.2009 Annexure C-6 and Annexure C-7 dated 30.5.2009, wherein, cost of repair of the engine was mentioned but at the same time, in the service estimate dated 9.3.2009, Annexure R-7, which was submitted by the complainant to the surveyor, there was no mention regarding the cost of repair of the engine.  In this situation, the invoices/bills (Annexure C-6 and C-7) produced by the complainant could not be taken into consideration firstly because these had been placed by the complainant, after the submission of service estimate 9.3.2009. Secondly, the complainant had failed to adduce any evidence, by way of affidavit of the repairer, who allegedly repaired the engine of the car and charged a sum of Rs.1,24,915/-, as alleged by him. In the absence of the same, we are of the considered opinion that the District Forum was right in holding that the loss was indemnified, on the basis of surveyor report, by placing reliance upon Pardeep Kumar Sharma Versus National Insurance Company-III (2008)   CPJ 158 (NC). The order of the District Forum, being legal and valid, is liable to be upheld.

9.                    The order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.

10.                 For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed in limine, with no order, as to costs. The order of the District Forum is upheld.

11.                  Certified Copies of this order be sent to the parties, free of charge.

12.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                                      Sd/-

20.04.2012                                        [JUSTICE SHAM SUNDER]

                                                                                 PRESIDENT         

cmg

                                                                                                                        sd/-                                                                                               [NEENA SANDHU]

                                                                                                MEMBER