BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No : 1369 of  2009

Date of Institution:    08.10.2009

Date of Decision  :    01.11.2010

Harnek Singh son of Sh.Parsina Singh, R/o Vill. & Post Office – Zirakpur, Tehsil Dera Basi, Distt. Mohali.

……Complainant

V E R S U S

New India Assurance Company Limited, Branch Office 35036, Jeevan Parkash Building, Near U.T.I, Sector 17-B, Chandigarh, through its Regional Manager/Branch Head.

.…..Opposite Party

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.Deepak Aggarwal, Advocate for the complainant.

Sh.B.S.Taunque (Retd.), Advocate for OPs.

PER MADHU MUTNEJA, MEMBER

                The instant complaint have been filed by Sh. Harnek Singh son of Sh. Parsina Singh under Section 12 of the Consumer Protection Act, 1986.  The Complainant has alleged deficiency in service against the OP, because they failed to make complete payment of his insurance claim.

1]             The facts of the case are as under:-

                The Complainant purchased a Scooter from M/s Hind Motors Limited in 2002. The vehicle was regularly insured with the OP from time to time.

                On 22.07.2009, the Scooter was damaged in an accident and the chassis of the vehicle was totally damaged. The Complainant also received multiple injuries and was hospitalized.

                The Complainant reported the matter to the authorized dealer of Bajaj Scooter on 11.8.2009 and requested for an estimate for repairs.  The estimate has been placed at Annexure C-3 to the complaint.  The Complainant also intimated the OP about the accident. A surveyor was appointed by the OP, who gave his report in respect of the damaged vehicle, which has been placed at Annexure C-4. The Complainant has alleged that the letter of the Surveyor was not satisfactory and totally based on surmises and conjectures. The letter dated 5.9.2009 from the Surveyor to the Complainant and also part of the complaint reads as under:-

“In compliance of the instructions received from M/s New India Assurance Co. Ltd., claim Hub to carry out the survey of the above said Scooter, the said Scooter was inspected by the under signed at the repairer premises M/s Hind Motors Indl. Area, Chandigarh for the repair/ accident claim in your presence. In this regard you are informed that claim of chassis frame asked by you is not payable. The cause of accidents mentioned by you in the claim from does not prove the damage of chassis has been caused in this accident. The damages on chassis depicted in the photographs shows that it is corroded and the cut has ripped apart from does not coincide with the cause. It appears that damage to chassis is caused due to mishandling and wear and tear only. Other damages o Mudguard, T-nose and Engine cowl appears to be fresh. Regarding the fork damages this has to be checked after dismantling, apparently it looks alright.

You are requested to clarify the matter at the earliest.”

                The Complainant has alleged that he is not satisfied with the report and the above letter of the Surveyor, and the refusal of the OP to pay him the claim for damages, along with charges for the chassis.

                The Complainant has further alleged that he was paying regular annual premium to the OP since the date of purchase of vehicle. Now, when the vehicle has suffered an accident, the refusal by the OP to pay the amount for the damaged vehicle by blaming the Complainant for damage to the chassis and other parts of the vehicle, is totally wrong. The Complainant feels cheated by the OP, due to this act. The Complainant has, thus, filed the instant complaint, with a prayer that the OP be directed to pay Rs.6672.88/- on account of damages sustained in the accident of the Scooter, as well as pay compensation of Rs.25000/- for damages on account of harassment and Rs.5500/- as cost of litigation.

2]             After admission of the complaint, notice was sent to the OP.

                The OP in their reply have submitted that in the preliminary objection that the Complainant has suppressed material facts, which are essential for the proper & judicious adjudication of the instant complaint.  After assessment by the surveyor, the insurance company had informed the Complainant that his claim was approved for payment of Rs.1560/-. The Complainant had been asked to submit relevant bills and cash memo of repair, so that the payment could be released. The Complainant has not placed on record any documents or letters issued by the insurance, whereby his claim has been repudiated. They have placed reliance on certain judgments of the Hon’ble National Commission and Hon’ble Supreme Court of India, wherein misleading statements and false affidavits would lead to punitive damages against the deponents.

                On merits, the OP has submitted that as per the motor claim form filled by the Complainant, the accident occurred when a dog suddenly came in front of the Scooter and inspite of application of brakes, the Scooter hit a truck. Neither the number of the truck, nor any particulars have been given to conclude the occurrence of the accident. The intimation of occurrence of accident was also given to the OPs 20 days after the accident. The surveyor appointed in the case was a qualified automobile engineer and his observations and opinion could be treated as an expert opinion. The surveyor considered the damage to the chassis due to mishandling by the Complainant and normal wear & tear.

                Further, the OP has alleged that the Complainant did not give his clarification as requested by the surveyor. He also did not respond to the letter dated 5.9.2009. Consequently, the surveyor finalized his report.

                The OP has also submitted that a perusal of the photographs of the chassis, taken by the surveyor, clearly shows that the chassis was corroded and cracked. The OP has submitted the recording of the surveyor as under:-

“The undersigned inspected the said Scooter whose chassis frame is damaged having cut (sheard) at the middle of the centre beam near the paddle connections. It is an old damage which has caused due to mishandling in my opinion the claim of this damage is not payable. It has been described by the owner of the scooter, earlier this scooter chassis frame was damaged in an accident and same got it repaired from the unauthorized workshop by stretching the chassis with the jack, it seems this frame must have got cracked during the repair. Regarding the clarification about the damage of chassis frame I sent a letter by registered post on 7.9.09, but as the address of the insured has been changed hence, I received back undelivered. Again, after confirming the new address of the insured from him. I dispatched the same letter again at the new address on 12.9.2009. But after waiting for the reply for about 9 days, I sent a registered reminder on 21.9.2009 but till date no reply has been received hence I am submitting the independent Survey report for the damages other than the chassis frame.”

                After this report, the OPs could not definitely pass a claim beyond what was recommended by the Surveyor, especially since the Complainant did not submit any objections to the surveyor report.  As a follow-up of the surveyor report Rs.1560/- was approved as claim payable to the Complainant, subject to submission of bills and cash memos of repairs.  However, the Complainant has not yet submitted these before the OPs. Denying all other allegations made in the complaint, they have prayed for dismissal of the complaint.

3]             We have heard the ld.Counsel for the parties and have also perused the evidence & documents led by the parties in support of their contentions.

4]             The Complainant has filed the complaint because the OP has not paid his claim for the accidented Scooter, despite his having paid annual premiums for the vehicle regularly. He has alleged that this act of the OP in refusing to make payment is a clear unfair trade practice and deficiency in service. However, he has not attached any actual bills incurred on the repair. He has only attached an estimate of Rs.6672/- by M/s Hind Motors Ltd. 

                The OP, in its reply, has not only attached the Surveyor’s report, but also photographs taken by the Surveyor of the vehicle, which clearly show that the vehicle is corroded and rusted in many places. In such a situation, the claim of the Complainant that the OP should make complete payment as per estimate, does not seem justified, especially when despite the request by the OP and by the Surveyor, the Complainant has not sent them the bills/ cash memos of repair/ replacement, to enable them to release the claim cheque, as per amount approved by the surveyor.

                The OP has also placed on record judgment of the Hon’ble National Commission titled as Anuj Agarwal Versus United India Insurance Co. Ltd, reported as 2005(3) CLT 419, wherein the order of the District Forum was upheld because the Petitioners had not filed any objection assailing the correctness of the surveyor report before the District Forum.

                OP has also attached two more judgments titled as National Insurance Co. Ltd. & Anr. Versus Santosh Kumar & Anr., IV (2006) CPJ 199 (NC) and Bhim Singh Versus National Insurance Co. Ltd., & Anr., I (2009) CPJ 106, wherein the amount assessed by the surveyor only was allowed as insurance claim.

5]             Here also, we feel it appropriate that only the amount assessed by the Surveyor be allowed as insurance claim towards the accident of the vehicle and not the complete amount demanded by the Complainant as per estimate attached to the complaint. Further, he has also not attached any bills, showing the actual payment made.

6]             In view of above, this complaint is disposed off, with the direction to the OP to release payment of Rs1560/- only to the Complainant, according to the estimate of the claim as per the surveyor report.   

7              The aforesaid amount be paid by the OP within 30 days from the date of receipt of certified copy of this order, failing which the OP shall pay aforesaid decretal amount of Rs.1560/- along with interest @12% per annum from the date of the order, till the date of actual payment to the complainant. In the peculiar circumstances of the case, the parties are left to bear their own costs. 

8]             Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

01^st Nov., 2010                                                            Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Dutt’