Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant is the owner of vehicle registration no.PB-03AX-3000 and the said vehicle earlier insured with the Oriental Co. Ltd. and later on the same was insured with opposite parties vide Policy No.36110031210300000528 for the period 17.05.2021 to 16.05.2022 for an IDV of Rs.29 Lac. On 25.03.2022 at about 9.00 AM in Village Saidpur (Anandpur Sahib) when the vehicle (filled with crusher) was going to Bathinda from Chandigarh Stone Crusher Village Saidpur and when it was near the Village Saidpur on a Kacha Road and due to curve in the road a stray animal came in front of the vehicle and while saving the life of said animal the driver turned the vehicle on left side and it fall in the fields due to which vehicle’s trolley portion over turned to left side to link road and tractor portion was lying on the side of main Garh Shankar Anandpur Sahib Road. After the accident, the driver of the said vehicle called the complainant and then the complainant immediately gave information to Opposite Parties, who appointed a spot surveyor namely Er.Shingara Singh who visited at the spot and submitted his report vide motor spot survey report Dt.26.03.2022 and disclosed about the loss of the vehicle and he also took all the documents for pursuing the claim of the complainant and assured that the claim will processed as early as possible. Thereafter the claim was lodged on the instructions of said spot surveyor with opposite parties and the complainant again submitted all the documents including the estimate of loss and the bill regarding filling of crusher on the date of accident along-with other bills. Thereafter, the claim was registered by the opposite parties and further they appointed Opposite Party No.3 as a surveyor to give the final report on the basis of spot survey report. Thereafter vide reminder Dt.09.04.2022 and 18.05.2022 a number of documents were demanded by the Opposite Party No.3, which were submitted by the complainant. The complainant also wrote a letter Dt. 23.05.2022 to Opposite Party No.2 mentioning that Opposite Party No.3 demanded the estimate of loss of trolley, because as per the repairer the same is not repairable and request the Opposite Party No.2 to take the second opinion for the trolley loss and the said letter was duly acknowledged by the concerned officer of the Opposite Party No.2. Thereafter Opposite Party No.3 has made a final survey report only for an amount of Rs.5,34,000/- in lieu of the total claim of Rs.13,63,472/- and thereafter Opposite Parties No.1 & 2 paid an amount of Rs.5,34,000/- only and withheld the remaining amount. Alleged that all the information got by the complainant vide RTI application Dt.05.09.2022 and the information was supplied by the Opposite parties no.1 and 2 vide letter Dt. 27-09-2022. So, in these circumstances, the vehicle was got repaired by the complainant from his own pocket. Due to such act and conduct of the Opposite Parties, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay Rs.8,29,472/- i.e. the balance amount of the repair charges of the insured vehicle in question.
b) To pay Rs.5,00,000/- as compensation on account of mental torture and agony.
c) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the Commission has got no jurisdiction to try and decide the present complaint since there is no deficiency in service or negligence as alleged on the part of answering respondents. The complainant has lodged the claim regarding damage of his vehicle no.PB-03AX-3000 and immediately on receipt of the claim it was duly registered, entertained and processed. Er. Shingara Singh, Surveyor & Loss Assessor was deputed for spot survey and he inspected the vehicle, collected documents and submitted his spot survey report dated 26.03.2022 with the answering respondents. M/s U.P.S. Sachdeva & Co., Surveyor and Loss Assessors was deputed for survey and assessment of the loss. M/s UP.S. Sachdeca & Co., Surveyor and Loss Assessors through its representative inspected the vehicle, collected documents, recorded statement of witnesses and submitted their survey report. M/s U.P.S. Sachdeva & Co., assessed the loss of Rs.5,34,000/- subject to terms and conditions of the policy. After receipt of the survey report alongwith documents, the claim file of the complainant was duly scrutinized in terms of the policy by the competent authority of the answering respondents and settled the claim of the complainant and paid the amount of Rs.5,34,000/- to the complainant as per assessment of the surveyor. Since the answering respondents have already paid the said amount, so there is no deficiency in service on the part of answering respondents. The complainant has already received the said amount and he has no right to file the present complaint. Averred that insurance policy is contract between insured and insurer and both the parties are bound by the terms and conditions of the insurance policy. The insurance policy is a contract based on utmost good faith. As per terms and conditions of the policy, the claim of the complainant has already paid; the present complaint is not maintainable since complicate question of law and facts are involved which required elaborated evidence both oral and documentary and as such only civil court is competent in jurisdiction to try and decide the present complaint; the complainant is estopped by his own act and conduct from filing the present complaint since the complainant has not come to the Commission with clean hands and had concealed the material facts from this Commission and as such he is not entitled to the any discretionary relief from this Commission. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Upon service of notice, none has come present on behalf of Opposite Party No.3, hence Opposite Party No.3 was proceeded against exparte.
4. In order to prove his case, complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8.
5. To rebut the evidence of complainant, Opposite Parties No.1 & 2 have tendered into evidence affidavit of Smt.Sunita Mahajan, Senior Divisional Manager, The New India Assurance Co. Ltd. as Ex.RW-A and affidavit of Sh.Opinder Pal Singh, Chief Executive as Ex.RW-B alongwith copies of documents Ex.R1 to Ex.R33. Whereas, the Opposite Party No.3 did not prefer to contest the complaint.
6. We have heard the ld. counsel for the parties, gone through the written arguments submitted on behalf of all the Opposite Parties No.1 & 2 and also gone through documents placed on record.
7. The complainant has approached this Commission for the relief of Rs.8,29,472/- i.e. the balance amount of the repair charges of the insured vehicle on the basis of facts. In support of his claim complainant has produced on record insurance policy, bills related to repair and proof of payment received to the tune of Rs.5,34,000/- from the Opposite Parties, the payment on account of repair of vehicle/trolley in question.
8. On the other hand payment to the tune of Rs.5,34,000/- under the insurance policy in question by Opposite Parties no.1 & 2 to the complainant is duly admitted. All these facts has been clearly admitted by Opposite Parties No.1 & 2 in their written statement that the claim for the repair for the trolley under the insurance policy in question was made and upon final assessment payment to the tune of Rs.5,34,000/- was paid to the complainant.
9. As emanates from the written reply of Opposite Parties No.1 & 2 that claim of the complainant for whole of the amount to the tune of Rs.13,63,472/- was not accepted after the final assessment report made by Opposite Party No.3 and the said report has been placed on record by Opposite Parties No.1 & 2, but the said final assessment report does not specify any cogent and convincing reasons for not accepting whole of the claim of the complainant. Neither the detailed reason have been specified in the written statement or evidence led by the Opposite Parties nor final assessment report (Complete Survey report), Ex.R26 as well as Ex.C7, details any satisfactory reasons for deduction of the amount of repair and parts of the vehicle in question. For any fault in the report of spot surveyor regarding removal of the horse from the actual site or regarding distance between horse and trolley at the spot does not in any manner prove the falsehood of the claim of the complainant. Similarly, conclusion arrived at in the Motor Final Survey Report Ex.R32 regarding damage to the 5th wheel having not been affected due to the accident is also unreasoned is appears to be without any solid basis. Thus, what was the deficiency in the quality of material of the vehicle was not detailed in Motor Final Survey Report (Ex.R32). Thus, without any justifiable reasons for deductions in the final assessment report Ex.R26 and reasons quoted for reduction in claim in Ex.R32, in the evidence of Opposite Parties, reduction in the actual amount of claim for restoration of the vehicle in question establishes malafide and wrongful act on the part of the Opposite Parties. There are specific allegations of corruption against the surveyor i.e. Opposite Party No.3, who had made the final assessment for payment, by the complainant on oath of malpractice and corruption, but nothing has been explained in written statement/reply or therein evidence by Opposite Parties No.1 & 2. The surveyor i.e. Opposite Party No.3 did not even prefer to contest the complaint, which conveys that he had nothing to say in reply to the allegations made by the complainant against him. There is also nothing on record by Opposite Parties No.1 & 2 in their evidence to rebut the invoices/bills attached as Ex.C4 and Ex.C6 produced by the complainant reflecting the amount spent by the complainant to the tune of Rs.13,63,472/-.
10. As per Final Assessment Report (Ex.R26) placed on record by the Opposite Party, the original estimate is Rs.13,63,472/-. Thus, on the basis of evidence produced on record, the complainant becomes entitle to receive the remaining unpaid amount i.e. Rs.8,29,472/-(Rs.13,63,472/- minus Rs.5,34,000/-) from Opposite Parties no.1 & 2, hence we allow the same.
11. In unconditional wrongful act on the part of the Opposite Party no.3 of making invalid assessment in the final assessment report Ex.R26, Opposite Party No.3 becomes liable to make the payment of compensation to the complainant.
12. Sequel to the above discussion, the present complaint is allowed in part and Opposite Parties no.1 & 2 are directed to make the payment of remaining amount of Rs.8,29,472/-(Rupees Eight Lakhs Twenty Nine Thousand Four Hundred Seventy Two only) (Rs.13,63,472 i.e. original estimate minus Rs.5,34,000/- i.e. already received/paid) to the complainant. Further lump sum compensation of Rs.10,000/-(Rupees Ten Thousand only) will be given by Opposite Party No.3 to the complainant. The pending application(s), if any also stands disposed of. The compliance of the order be made by the Opposite Parties within 40 days from the receipt of the copy of this order, failing which, the Opposite Parties are liable to pay interest @ 8% on the awarded amount respectively from the date of decision i.e. 26.02.2024 till its actual realization. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
