| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 24 of 29.1.2020 Decided on : 11-07-2023 Sukhmander Singh aged about 48 years S/o Harmail Singh; Gurjant Singh aged about 40 years S/o Kaur Singh @ Kour Singh; - Both residents of Village Mehma Sawai, Distt. Bathinda-151201.
........Complainants Versus
The New India Assurance Co.Ltd., The Mall, Bathinda, 151001 through its Divisional Manager.
.......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainants : Sh. Naresh Garg, Advocate. For opposite party : Sh. Sunder Gupta, Advocate. ORDER Lalit Mohan Dogra, President The complainants Sukhmander Singh and Gurjant Singh (here-in-after referred to as complainants) have filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against The New India Assurance Co.Ltd (here-in-after referred to as opposite party). Briefly stated, the case of the complainants is that the Complainants are the Owner of the Truck Regd. No. RJ-31-GA-3551 Which is comprehensively insured (Package Policy) vide Insurance Certificate No.36060131180100004770 w.e.f. 01.12.2018 to 30.11.2019 for the IDV of R.s.7,75,000/- with the opposite party The opposite party. issued the above said Certificate only and they never issued any complete Policy. It is alleged that on 03.04.2019 at about 01.30 p.m. the vehicle Horse suddenly got burnt when it was parked near Hotel Satluj. The incident occurred in the revenue limits of P.S. Mundra and in this regard, Panchnama No. 53 dated 04.04.2019 was registered. The complainant immediately lodged the Claim with the opposite party and the opposite party appointed Spot surveyor Mr. Hitesh R. Raval from Gandhidham who duly inspected the vehicle at the spot on the same day of occurrence. The Surveyor charged Rs.3,263/- from the complainants whereas the same is payable by the opposite party. It is further alleged that thereafter under the instructions of the opposite party and their surveyor, the damaged salvage of the vehicle was shifted with M/S Gobind Motors, Near Radha Swami Satsang Bhawan, Bathinda Road, Rampura Phul for Estimates and further inspection by spending Rs. 80,500/-. Thereafter the opposite party appointed final surveyor M/s R.P. Bhasin & Co. from Ludhiana. The above said workshop M/s Gobind Motors issued the estimates to the tune of Rs.11,61,866/- on 19.04.2019 in the presence of the official of the opposite party. Original Estimates and Certificate were directly handed over to Mr. R.P. Bhasin by the repairer (Authorized Service Centre of the Manufacturer). The complainants supplied all the documents i.e. photocopies of DL, RC, Fitness, Permit, Panchnama and Insurance Certificate etc., to final surveyor. The complainants alleged that thereafter under the instruction of the opposite party and their surveyor, the vehicle was shifted to some other premises as M/s Gobind Motors demanded Rs.250/- Per Day and now complainant is paying Rs. 3,000/- per month for private parking, as the claim was illegally withheld by the opposite party. Mr. R.P. Bhasin, surveyord pressurising the complainants to again shift the vehicle with M/s Gobind Motors, whereas the Gobind Motors already declared that the vehicle is not repairable and totally burnt. It is also alleged that as per rules of the IRDA, the surveyor must give his report within 30 days from his appointment but in this claim Mr. RP Bhasin has not issue the report within 30 days. He was appointed in April 2019, as per his version he inspected the vehicle in July 2019, but he gave his one side biased report on 01.12.2019 which shows that he is not working as an independent surveyor rather he is agent of the Insurance Co. who is the paymaster and he is working under their toe and reducing the loss against the rules and insurance Policy. He reduced the loss by assessing the high value of the Trolley. It is further alleged that the Complainants are still ready to deposit the total salvage with the opposite party as per GR-8 of the IMT, as the salvage belongs to opposite party in case of Total Loss. Mr. R.P. Bhasin of M/s R.P. Bhasin & Co. duly surveyed the vehicle and declared that the same is Total Loss as per GR-8 of the IMT and he also took the signatures of the Complainant on Some Blank Forms, and Discharge Voucher etc, The complainants approached the opposite party and demanded copy of the Spot and Final Survey Report but they did not supply the same. It is also alleged that the complainants inquired many times regarding their claim from the office of the opposite party but the opposite party did not gave any satisfactory reply till date and sitting over the claim of the complainant without any reason. Due to the Non-payment of the claim, the complainants have suffered mental tension agony and pains for which they claim compensation to the tune of Rs.50,000/-. On this backdrop of facts, the complainants have prayed for directions to the opposite parties to pay total loss of the vehicle to the tune of Rs. 7,75,000/-; Rs. 3263/- paid to surveyor; Rs. 80,500/- on account of shifting charges; Rs. 21,000/- as parking charges and Rs. 50,000/- as compensation. The complainants have also prayed for interest on the aforesaid amount @18% p.a. besides litigation expenses to the tune of Rs. 50,000/-. Upon notice, opposite party appeared through counsel and contested the complaint by filing written reply raising legal objections that complainants are not consumers. It has been pleaded that truck bearing registration no.RJ-31-GA-3551 (horse as well as trailer/trolly) is insured with opposite party vide policy No.36060131180100004770 effective from 01.12.2018 to 30.11.2019 with CSI 7,75,000/-only and insured truck (Horse) was burnt due to fire which allegedly took place on 03.04.2019. After receipt or intimation regarding the alleged loss, Er. Hitesh R. Raval was deputed for Spot Survey, who after inspection of vehicle on the same day i.e on 03.04.2019 submitted his report dated 04.04.2019 and thereafter the damaged vehicle was shifted by the complainant at his own premises and Er. R.P. Bhasin & CO was deputed to assess the final loss to the insured truck, who visited the insured premises on 27.07.2019 and inspected the burnt insured vehicle, however trolley was not shown to the aforesaid Surveyor as complainants stated that trolley is in good working condition. The aforesaid surveyor asked the complainants to produce original driving license of the person driving the vehicle at the time of alleged loss, route permit, fitness certificate and tax receipts of the insured vehicle for verification and copy of any report regarding the intimation given to the police duly attested by notary public, fire brigade report (if given), newspaper cuttings, details of injuries suffered by driver/occupants, if any, detail of third party loss, if any, copy of compromise, if any made, copy of PAN Card, Aadhar Card, Two Passport size photographs, KYC form duly filed and signed, but same were not supplied by the complainants to the aforesaid surveyor. Thereafter aforesaid surveyor wrote registered letter dated 19.08.2019 to the complainants to produce the aforesaid documents, but even then complainants failed to supply the aforesaid documents, so the said surveyor was left with no option except to submit his final report dated 01.12.2019. Out of CSI of Rs. 7,75,000/- for Horse as well as trolley, the surveyor has assessed the cost of trolley to be Rs. 4,50,000/- only and has considered the IDV of horse to be Rs.3,25,000/-. The surveyor has assessed net loss on salvage basis (without RC) to the tune of Rs.2,28,500/- and with RC to the tune or Rs.1,98,500/- and salvage value of the burnt insured horse to the tune of Rs.95000/- without RC and has further assessed the salvage value with RC, route permit and fitness to the tune of Rs.1,25,000/-only and Rs.1500/- have been deducted towards excess clause. It has been pleaded that till today complainant has failed to supply the aforesaid documents and opposite party also wrote registered letter dated 09.12.2019 to the complainants to supply the aforesaid document but even then the complainants have failed to supply the required document till today, due to which claim of the complainant could not be decided. Therefore, present complaint is still pre-mature, as aforesaid claim of complainants have not been finally decided till today. That opposite party reserve its right to file amended reply after receipt of aforesaid documents, if supplied by complainants. Further legal objections are that the complainants have got no locus-standi or cause of action to file the present complaint. The amount of compensation claimed is highly excessive and exorbitant one. The present complaint is false, frivolous and vexatious to the knowledge of the complainant, as such the present complaint is liable to be dismissed with special costs. On merits, the opposite party has reiterated its version as pleaded in legal objections and detailed above. After controverting all other averments of the complainants, the opposite party has prayed for dismissal of complaint. In support of their complaint, the complainants have tendered into evidence affidavit dated 28.1.2020 of Sukhmander Singh (Ex. C-1) and documents (Ex.C-2 to Ex.C-16). In order to rebut the evidence of complainants, the opposite party has tendered into evidence two affidavits of R.P Bhasin and Ashish Pal both dated 31.12.2020 (Ex. OP-1/1 & Ex.OP-1/2) and document (Ex.OP-1/3 to Ex. OP-1/13). The learned counsel for the complainant has argued that truck bearing No. RJ031-GA-3551 owned by complainants was insured with the opposite party for IDV of Rs. 7,75,000/-. It is further argued that during continuation of policy of insurance, on 3-4-2019, said vehicle of the complainants caught fire and it was badly damaged in the said incident. It is also argued that vehicle was totally burnt and complainants are entitled to total IDV i.e. Rs. 7,75,000/- from the opposite party. The learned counsel for the complainants further argued that besides this, complainants have spent Rs. 80,500/- as towing charges and Rs. 21,000/- as parking charges. It is further argued that as per guidelines of IRDA, surveyor has to submit his report within 30 days of his appointment but surveyor has submitted his report in July, 2019. It is further argued that surveyor has unlawfully received Rs. 3263/- from the complainants as charges for spot inspection. It is also argued that surveyor has illegally and unlawfully bifurcated the value of horse/cabin and trolley to cause loss to the complainants. It is further argued that till date, opposite party has not settled the claim and has not even made payment of the amount assessed by surveyor. He prayed that complainants are also entitled to interest on IDV of the vehicle and compensation on account of financial loss as well as for mental tension and harassment. On the other hand, learned counsel for the opposite party has argued that insurance of the vehicle of the complainants is admitted. It is further admitted that vehicle of the complainant was damaged in the fire. It is also argued that after receiving intimation Er. Hitesh R Raval was deputed for spot survey and thereafter complainants have shifted the vehicle at their own premises and Er. R P Bhasin & Company was deputed to assess the final loss to the vehicle and on 28-7-2019, he inspected the burnt insured vehicle. However, trolley was not shown to the surveyor by the complainants. It is further argued that surveyor has demanded original driving license of the person driving the vehicle at the time of alleged loss, route permit, fitness certificate and tax receipts of the insured vehicle for verification and copy of intimation given to the police, fire brigade report (if given), newspaper cuttings, details of injuries suffered by driver/occupants, if any, detail of third party loss, if any, copy of compromise, if any made, copy of PAN Card, Aadhar Card, Two Passport size photographs, KYC form duly filed and signed, but since complainants failed to submit said documents inspite of repeated requests, as such the surveyor has submitted his report. It is further argued that surveyor inspected the vehicle and submitted his report Ex. OP-1/3 and during said inspection, trolley was not shown to the surveyor. However, surveyor had assessed the loss to the trolley to be Rs. 4,50,000/- and considered IDV of the Horse to be Rs. 3,25,000/- and value of the salvage of the burnt insured Horse was assessed to the tune of Rs. 95,000/- without RC and Rs. 1,25,000/- with RC and route permit and fitness. It is further argued that since the complainants failed to submit the aforesaid documents, as such claim of the complainants could not be settled. Hence, there is no deficiency in service on the part of the opposite party. We have heard learned counsel for the parties and gone through the record. It is admitted fact truck bearing RJ-31-GA-3551 was insured with the opposite party for the IDV of Rs. 7,75,000/- with trolley as per policy of insurance Ex. C-3. It is further admitted fact that on receiving intimation, opposite party got the said vehicle inspected from respective surveyors. However, the opposite party has failed to settle and pay the claim of the complainants for want of documents. To prove their case, the complainants have placed on record duly sworn affidavit of one of the complainant (Ex. C-1), copy of RC (Ex. C-2), policy of insurance without terms and conditions (Ex. C-3), copy of fitness/permit (Ex. C-4), copy of receipts and permit, copy of National permit (Ex. C-5), copy of DL (Ex. C-7), copy of spot inspection report issued by Directorate of Forensic Science (Ex. C-8), copy of receipt/invoice issued by surveyor for having received Rs. 3263/- from complainants (Ex. C-9), copy of receipt of towing charges of vehicle (Ex. C-11), copy of estimate (Ex. C-12) and affidavit of complainant No. 2 (Ex. C-16). On the other hand, learned counsel for opposite party has placed on record affidavit of Sh. R P Bhasin, surveyor (Ex. OP-1/1), affidavit of Sh. Ashish Pal, Sr. DM (OP-1/2), report of final surveyor (Ex. OP-1/3). The learned counsel for the complainants contended that complainants are entitled to receive IDV of Rs. 7,75,000/- from the opposite party which is total IDV of horse and trolley. However, we have gone through the report of surveyor (Ex. OP-1/3) and photographs (Ex. OP-1/4 to Ex. OP-1/8). As per report of surveyor M/s. R P Bhasin & Co., when the said surveyor inspected the vehicle on 27-7-2019, he clicked the photographs Ex. OP-1/9 to Ex. OP-1/13 in which trailer has not been got inspected and shown to the said surveyor meaning thereby that complainants themselves were not interested in getting the trailer/trolley of the truck inspected from the surveyor. However, we have also gone through the photographs Ex. OP-1/4 to Ex. OP-1/10 clicked by Mr. Hitesh R Raval at the time of spot survey, which shows that at the time of spot survey, trolley was attached with the burnt horse and bare perusal of photographs shows that no damage has been caused to the trolley attached with the horse meaning thereby that the said trailer/trolley had not suffered any loss in the fire which burnt the horse. The surveyor has given his report after inspection of the vehicle i.e. horse only and assessed the value of the horse as Rs. 3,25,000/- on total loss basis. The learned counsel for the opposite party has also relied upon judgement of Hon'ble Supreme Court of India in Civil Appeal No. 9050 of 2018 incase titled Phatima Fibre Ltd., Vs. New India Assurance Company and another. In the said judgement, Hon'ble Supreme Court has held that : “Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.” As such, relying upon the judgement of Hon'ble Supreme Court referred above, we do not find any ambugity in the report of surveyor while assessing the value of horse as Rs. 3,25,000/- on total loss basis. So far as delay in submission of report is concerned, the surveyor has clearly mentioned in his report that insured was not ready to get the vehicle inspected in the workshop and vehicle was inspected at the premises of the complainants, which caused delay. The surveyor as further assessed the value of the salvage as Rs. 95,000/- without RC and documents. As far as argument of the learned counsel for the opposite party regarding non-submission of documents is concerned, we have gone through the file and found that complainant has duly placed on record all the documents as demanded by the opposite party in shape of Ex. C-2 to Ex. C-12. Therefore, failure on the part of the opposite party to settle the claim inspite of receiving all the documents, having been placed on record by complainants, amounts to deficiency in service. In view of what has been discussed above, this complaint is partly allowed with the following directions : i) The opposite party is directed to pay Rs. 2,30,000/- (Rs. 3,25,000/- minus Rs. 95,000/- being salvage value) as total IDV of Horse as assessed by surveyor vide his report Ex. OP-1/3. ii) The opposite party is also directed to pay Rs. 3263/- charged by spot surveyor from the complainant as per Invoice Ex. C-9. iii) The opposite party is also directed to pay Rs. 25,000/- as shifting charges of vehicle from the place of occurence to the place of inspection. iv) The complainants are directed to retain the salvage of the vehicle alongwith its all documents. v) The aforesaid amounts shall carry interest @9% P.A. w.e.f. 1.12.2019 i.e. date of assessment of loss by surveyor, till realization. vi) The complainant is also entitled to compensation to the tune of Rs. 20,000/- on account of mental tension, harassment, agony and cost of litigation as opposite party has withheld the claim payable to the complainants without any justification or reasonable cause. The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 11-07-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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