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

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Complt.Case No:  1233 of 2009

Date of Institution:   29.09.2009

Date of Decision  :   30.09.2010

Sh.Raj Kumar Aggarwal son of late Shree Ram, r/o H.No.1227-A, Sector 21, Panchkula.

……Complainant

V E R S U S

The New India Assurance Company Limited, SCO No.58, Sector 26-C, Chandigarh, through its Branch Manager.

.…..Opposite Party

CORAM:          SH.LAKSHMAN SHARMA                           PRESIDENT

                    SH.ASHOK RAJ BHANDARI              MEMBER

                    MRS.MADHU MUTNEJA                          MEMBER

PRESENT:      Sh.Neeraj Sharma, Adv. for complainant.

Sh.R.K.Bashamboo, Adv. for OP.

PER MADHU MUTNEJA, MEMBER

                The instant complaint has been filed by Sh.Raj Kumar against New India Assurance Company under Section 12 of the Consumer Protection Act.  

1]             The complainant is a registered owner of Hydraulic Crane bearing Regd. No.HR-68-8700 Model 2007.  The vehicle was insured from the OP and the insurance was effective from 21.4.2009 to 20.4.2010.  On 31.5.2009 the servant of the complainant was working in the Stone Crusher where the machine was pulling the ‘Pitman’.  During the process the ‘Pitman’ hit the machine accidentally due to bad-weather and the machine got damaged.  The complainant reported the matter to the OP.  The OP appointed a Surveyor, who visited the spot on 1.6.2009 and inspected the vehicle.  The complainant has alleged that the Surveyor got some blank forms and papers signed from the complainant to complete the formalities of claim.  He also asked the complainant to get an estimate of the repairs of the vehicle from an authorized agency.  The estimate was prepared on the same date. The amount estimated was Rs.5,90,418.23 Ps.  The complainant completed all formalities and deposited the estimate cost of the repair with the OP to process his claim.  As per oral instructions of the Surveyor as well as OP, the complainant then got his machine repaired from another party privately i.e. Bawa Motors, SCF No.515, New Motor Market Complex, Manimajra, Chandigarh.  He paid an amount of Rs.1,43,257/- vide Bill No.2563, dated 12.6.2009 for the repairs.  The complainant then deposited this bill with the OP and requested them to pass his claim.              

                On 24.6.2009 the complainant was surprised to receive a letter from the OPs by which his claim has been repudiated.  The complainant then issued a legal notice on the OP demanding that they make the payment of repair along with interest.  When no reply was received from the OP, the complainant filed the present complaint alleging deficiency in service and unfair trade practice against them.  The complainant had prayed that the OP be directed to pay the amount spent on the repair of the vehicle as well as compensation for deficiency in service and unfair trade practice.

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

                The OP in their reply have submitted that  there was no deficiency on their part.  When the complainant contacted the OP, a Surveyor was immediately appointed, who assessed the loss for a sum of Rs.1,21,724.94.  However, it was also pointed out by the Surveyor that the loss was not due to any accident but either due to material fatigue, over loading or mishandling and the same was not covered under the conditions of policy.  The claim of the complainant was repudiated on 24.6.2009 on this ground alone. 

                On merits too the OPs have once again denied the claim of the complainant.  A Surveyor was appointed to assess the loss.  The Surveyor has already given his report.  The estimates prepared by the Surveyor was supplied to the complainant.  No instructions were given to the complainant for getting the machine repaired from any particular firm/agency.  The OP has submitted that the claim has rightly been repudiated and there is no defect or deficiency on their part.  They have therefore prayed for dismissal of the complaint.   

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents placed on record by the parties. 

4]             The complainant has said in his complaint that the  ‘Pitman’ got damaged when it hit the machine accidentally due to bad weather.  After assessment of loss by the Surveyor of OP, the complainant got the machine repaired for Rs.1,43,257/-.  When the complainant asked the OP to make payment of the claim, he was surprised when his claim was repudiated by the OP by placing reliance on the report of the Surveyor, which states that the loss was not due to any accident but due to either material fatigue, over loading or mishandling.  The estimate of loss prepared by the Surveyor and placed on record by the OP shows Rs.1,28,724.94.  as the sum which may be allowed.

5]             The report of the Surveyor has been placed at Ex.R-2.  It is interesting to note that after discussing the complete details of the loss and the extent of damage as well as costs thereon, the Surveyor has recommended as under:-

“Recommendations: In my opinion, the loss is not due to any accident and hence does not fall within the scope of insurance policy.  In all probability, it may be either material fatigue, overloading or mishandling which is not covered under policy.”

                This suggestion, which places reliance on ‘probability’  is too vague and should not be the ground for repudiation of claim.  If the Surveyor on the basis of the facts was not able to determine whether the loss was within the scope of the policy, he should have given the benefit of doubt in favour of the insured/complainant and made the righteous decision. 

6]             We are also of the opinion that the loss suffered by the complainant cannot be treated as non-genuine due to the observation of the Surveyor alone.  No specific mis-handling or overloading has been proved.  The Surveyor of the OP has assessed the loss and their liability as per the report of the Surveyor comes to Rs.1,28,724.94. 

7]             It is unfair for the OP to repudiate the claim of the complainant on a “may be” or “probable” situation. The complainant has suffered a loss due to damage caused to his vehicle, which was duly insured with the OP. the OP should have compensated him to the extent of claim for the damage suffered by him.

8]             In view of the above, we are of the opinion that the amount assessed by the Surveyor towards the loss to the vehicle of the complainant should be paid to the complainant.  The complaint is accordingly allowed. The OP is directed to pay Rs.1,28,724.94 to the complainant, as assessed by Surveyor.  The OP is also directed to pay Rs.10,000/- as compensation to the complainant as well as Rs.5,000/- towards costs of litigation.

                This order will be complied with by OP within 30 days from the date of receipt of copy of this order, failing which, the OP shall be liable to pay the amount of Rs.1,38,724.94 along with interest @12% per annum, from the date of the order till its actual payment to the complainants besides the cost of litigation.

                    Certified copies of the order be supplied to the parties free of any charge. The file be consigned to the record room after compliance.    

Announced

30^th Sept., 2010                                                            

(LAKSHMAN SHARMA)

PRESIDENT

                                        (ASHOK RAJ BHANDARI)

MEMBER

                                                    (MADHU MUTNEJA)

MEMBER

“om”