Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 (as amended upto date) on the allegations that he insured his vehicle Mahindra & Bolero Camper bearing RC No.PB-04AC-9319 with Opposite Parties vide policy no.36070831210300000226 commencing from 28.06.2021. Further alleges that the vehicle in question met with an accident on 04.10.2021 and FIR No. 113 dated 5.10.2021 was registered with P.S.Lohian, District Jalandhar and the Opposite Parties were duly informed in this regard. Thereafter, as per the instructions of the Opposite Parties, the insured accidental vehicle was handed over to Brar Auto Wheels, Ferozepur for repair and they prepared a quotation of Rs.9,56,365/- for repair of the insured vehicle. After receiving the quotation, the Opposite Parties declared the insured vehicle as 100% damage and assured that the amount of the vehicle will be paid within 7 days. Thereafter, the complainant also completed all the formalities and submitted the required documents to the Opposite Parties, but till today, the Opposite Parties has not settled the claim of the complainant and now the Opposite Parties want to grab the genuine claim of the complainant and tried to linger on the matter and intentionally harassing the complainant with one pretext or the other. However, more document i.e. copy of challan/ report u/s 173 Cr.P.C, if any whatever required to the Opposite Parties are not within the custody of the complainant, and the said document can not be handed over to the Opposite Party and it is matter of court which is pending. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to pay the insurance claim of Rs.7.50 lakhs and Rs.2 lakhs on account of compensation due to mental tension and harassment caused by the complainant.
b) And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complainant has not come to this District Consumer Commission with clean hands. The complainant has lodged the claim with the Opposite Parties regarding the damage of his insured vehicle and immediately on receipt of the claim, it was duly registered, entertained and processed. Mr.Charanjit Garg, Surveyor and Loss Assessor was deputed for spot survey and he submitted his spot survey report dated 23.11.2021 alongwith documents. Thereafter, Mr.Baldev Kumar, Surveyor and Loss Assessor was deputed for survey and assessment of the loss who assessed the loss of Rs.4,96,000/- on net salvage basis keeping in view the IDV and considering the wreck value with registration book. After receipt of the survey report, the Opposite Parties asked the complainant to submit the copy of challan issued by the police, but the complainant did not supply the same despite repeated reminders and requests. Said copy of the challan/ report u/s 173 Cr.P.C. is important piece of document for deciding the fate of the case, but the complainant did not supply the same and hence, the case of the complainant could not be processed and as such, there is no deficiency in service on the part of the Opposite Parties. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections and prays for dismissal of the complaint.
3. In order to prove his case, the complainant has placed on record his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C9 and closed the evidence on behalf of the complainant.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Smt.Sunita Mahajan, Sr.Divisional Manager Ex.OP1/A, affidavit of Baldev Kumar Ex.Op1/B, affidavit of Charanjit Garg, surveyor Ex.OP1/C alongwith copies of documents Ex.R1 to Ex.R41 and closed the evidence.
5. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of the parties and also gone through the record on file.
7. It is not denial of the Opposite Parties-Insurance Company that the complainant has purchased the policy in question and during the policy period, the insured vehicle of the complainant met with an accident and the Opposite Parties were duly informed in this regard. Thereafter, as per the instructions of the Opposite Parties, the insured accidental vehicle was handed over to Brar Auto Wheels, Ferozepur for repair and they prepared a quotation of Rs.9,56,365/- for repair of the insured vehicle. After receiving the quotation, the Opposite Parties declared the insured vehicle as 100% damage and assured that the amount of the vehicle will be paid within 7 days. Thereafter, the complainant also completed all the formalities and submitted the required documents to the Opposite Parties, but till today, the Opposite Parties has not settled the claim of the complainant. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Mr.Baldev Kumar, Surveyor and Loss Assessor was deputed for survey and assessment of the loss who assessed the loss of Rs.4,96,000/- on net salvage basis keeping in view the IDV and considering the wreck value with registration book. After receipt of the survey report, the Opposite Parties asked the complainant to submit the copy of challan issued by the police, but the complainant did not supply the same despite repeated reminders and requests. Said copy of the challan/ report u/s 173 Cr.P.C. is important piece of document for deciding the fate of the case, but the complainant did not supply the same and hence, the case of the complainant could not be processed and as such, there is no deficiency in service on the part of the Opposite Parties. The only ground for not making the claim to the complainant by the Opposite Parties is that the complainant has not submitted the copy of the challan/ report u/s 173 Cr.P.C and due to this reason, the Opposite Parties closed the case of the complainant as ‘no claim’. Opposite Party was not justified in closing the case of the complainant as ‘no claim’ only on the ground that complainant could not furnish copy of challan under section 173 Cr.P.C duly accepted by Ilaqa Magistrate. It has been held by Hon’ble National Commission, New Delhi in case M/s.Delkon (India) Pvt.Ltd Vs. The Oriental Insurance Company Limited III(1993) CPJ 313 (NC) that the complainant can not be denied his claim on the ground that final report was not forthcoming. It was further held that when complainant had lodged FIR immediately but has not received the final report from the police, there is no contractual obligation under the policy of insurance for the insured to produce final investigation report from the police. The same view has been taken by Hon’ble Andhra Pradesh State Commission in case New India Assurance Company Limited Vs. Yadvalli Gangadevi I(2004) CPJ 263 as well as by Hon’ble Delhi State Commission in case Ridhi Gupta Vs. National Insurance Company Ltd. III(2008) CPJ 459. In view of the above discussions, we are of the opinion that Opposite Parties are not justified in closing the case of the complainant as ‘no claim’ and the complainant was forced to file the present complaint. All this amounts to deficiency of service on the part of the Opposite Party qua the complainant.
8. Now come to the quantum of compensation. The case of the complainant is that as per the instructions of the Opposite Parties, the insured accidental vehicle was handed over to Brar Auto Wheels, Ferozepur for repair and they prepared a quotation of Rs.9,56,365/- for repair of the insured vehicle But however, as per the policy document Ex.C2, the IDV of the insured vehicle was Rs.7,50,000/- and the complainant can not claim the amount on account of repair charges more than the insured value of Rs.7,50,000/-, But on the other hand, Mr.Baldev Kumar, Surveyor and Loss Assessor was deputed for survey and assessment of the loss who assessed the loss of Rs.4,96,000/- on net salvage basis keeping in view the IDV and considering the wreck value with registration book. Copy of the surveyor report is placed on record as Ex.R6. It has been settled by the Hon’ble Supreme Court of India that the report of the Surveyor cannot be brushed aside without valid reasons. In this context, reference may be made to the judgment of the Hon’ble Supreme Court reported as “Sri Venkateshwara Syndicate v. Oriental Insurance Company Limited, II (2010) CPJ 1 (SC)” in which it was held by the Hon’ble Supreme Court that the report of the Surveyor is to be given due importance and weight. Hon’ble National Commission in case cited as PRADEEP KUMAR SHARMA versus NATIONAL INSURANCE COMPANY, III(2008) CPJ 158 (NC), has been held that “Surveyor Report is an important document and cannot be brushed aside without any compelling evidence to the contrary”. Further in case New Horizon Sugar Mills Ltd. v. United India Insurance Co. Ltd. & Ors, 2003(3) CPR 136 (NC), the Hon’ble National Commission, New Delhi has observed that “report of Surveyor appointed under the provisions of Insurance Act has to be given greater importance.” In M/s Natain Cold Storage & Allied Industries Ltd. v . Oriental Insurance Co Ltd. 2003(3) CPR 114 (NC) it has been observed “surveyor’s report in the insurance claim is an important document which cannot be brushed aside easily.” Same view has been taken by the Hon’ble National Commission in case of Bhawana Kumar versus General Manager Varun Webres Ltd. & Anr, 2008(4) CPR 82 (NC). Not only this, recently Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case National Insurance Company Limited Vs. M/s.Kiran Collector & Boutique 2019 (1) CLT 384 (NC), decided on 24th July, 2018 has held that “General rule is that the surveyors are appointed under the Insurance Act, 1938 and their reports are to be considered for settlement of insurance claims- The reports can not be brushed aside without any cogent reasons.” Hon’ble National Commission in the case of Ankur Surana v. United India Insurance Co. Ltd., reported in I (2013) CPJ 440 (NC), wherein it has been observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence."
9. Keeping in view the aforesaid facts and circumstances and replying upon the judgements of Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi (supra) we are of the view that the instant complaint is to be decided on the basis of unrebutted surveyor report.
10. In such a situation the non payment of the assessed amount by the surveyor till date by Opposite Party regarding genuine claim of the complainant appears to have been unwarranted. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
11. In view of the aforesaid facts and circumstances of the case, the instant complaint is partly allowed and the Opposite Parties are directed to make the payment of claim of Rs.4,96,000/- (Rupees Four Lakh Ninety Six Thousands only) to the complainant on account of repair charges of the insured vehicle in question, on the basis of surveyor’s report. The compliance of this order be made by Opposite Parties-Insurance Company within 60 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
