Sanjeev Kumar son of Sh.R.C.Gupta filed a consumer case on 12 Jul 2011 against The New India Assurance co.Ltd., in the Bhatinda Consumer Court. The case no is CC/11/52 and the judgment uploaded on 30 Nov -0001.
Punjab
Bhatinda
CC/11/52
Sanjeev Kumar son of Sh.R.C.Gupta - Complainant(s)
1. Sanjeev Kumar son of Sh.R.C.Guptac/o G.K. Singla,street No.1,Malvia Nagar,Bathinda.
...........Appellant(s)
Versus.
1. The New India Assurance co.Ltd., Red cross complex,The Mall,Bathinda2. Sanjeev Gupta & AssociatesIst. Floor,aVishawkarma Market, Dhangu road, Pathankot through its Prop. Sanjeev Gupta.3. Sanjeev Gupta & AssociatesIst. Floor,aVishawkarma Market, Dhangu road, Pathankot through its Prop. Sanjeev Gupta.
...........Respondent(s)
BEFORE:
PRESENT :
Sh.Naresh Garg,Advocate., Advocate for Complainant
Sh.Sunder Gupta,O.P.No.1., Advocate for Opp.Party
Dated : 12 Jul 2011
JUDGEMENT
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
BATHINDA (PUNJAB)
CC No. 52 of 27-01-2011
Decided on : 12-07-2011
Sanjeev Kumar S/o Sh. R C Gupta C/o Sh. G K Singla, Street No. 1, Malvia Nagar, Bathinda.
.... Complainant
Versus
The New India Assurance Co. Ltd., Red Cross Complex, The Mall, Bathinda through its Branch Manager.
Sanjeev Gupta & Associates, Ist Floor, Vishawkarma Street, Dhangu Road, Pathankot 145 001 through its Prop. Sanjeev Gupta
..... Opposite parties
Complaint under Section 12 of the Consumer Protection
Act, 1986.
QUORUM
Ms. Vikramjit Kaur Soni, President
Sh. Amarjeet Paul, Member
For the Complainant : Sh. Naresh Garg, counsel for the complainant
For the Opposite parties : Sh. Sunder Gupta, counsel for opposite party No. 1.
opposite party No. 2 already exparte.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). In brief, the case of the complainant is that he is the owner of Car bearing Registration No. PB-03P-7555 (Model 2007) and the same was comprehensively insured with opposite party No. 1 vide Insurance Certificate No. 36060131080100002985 w.e.f. 15-01-2009 to 14-01-2010. The opposite party No. 1 issued the above said cashless Insurance to the complainant after charging Rs. 5,957/- for the I.D.V of Rs. 2,45,000/-. No policy was issued to the complainant till date. The opposite party No. 1 is having the agency arrangement with Maruti (Manufacturer of the car) under cashless insurance scheme in India. On 2-9-2009, at about 8.15 p.m. the said car met with an accident with Truck No. JK-02-AL-6866 being driven by Driver Vali Mohamad when it was coming from Katra to Jammu. The car fell in the Deep Trench and its occupants i.e. brother of insured Satish Kr. Gupta, mother of insured Krishn Rani, Indu Gupta, W/o Satish Kr. Gupta and Amrit Gupta, Nephew of the insured received multiple injuries and fractures. At the time of accident, the car was being driven by Bhupinder Singh, driver, who lodged FIR against the truck driver. The intimation of accident was given to the office of opposite party No. 1 immediately. The opposite party No. 1 deputed Shree Surveyors of Jammu as spot surveyor who visited the spot on 3-9-2010. The car was recovered from the deep Trench with the help of crane and shifted in the Police Station. M/s. J K Crane Service charged Rs. 2,000/- for the same and issued receipt dated 4-9-2010. The complainant took the car on Superdari and shifted the same with M/s Pathankot Vehicles Ltd., Authorised Dealer cum Service Centre of Maruti. The car was shifted with the help of crane and in this regard receipt of M/s. J K Crane Service dated 7-9-2010 for Rs. 8,000/- was supplied to the opposite party No. 1 through their surveyor i.e. opposite party No. 2. Thereafter, the opposite party No. 1 appointed the final surveyor i.e. opposite party No. 2 from Pathankot who visited the above said workshop and repair of the vehicle was started under his supervision. M/s. Pathankot Vehicles Ltd., issued the final bills on 9-12-2009 for the amount of Rs. 85,590/- including labour charges etc., The complainant spent total Rs. 95,590/- from his pocket i.e. Rs. 85,590/- repairer bill + Rs. 10,000/- recovery charges. The opposite party No. 1 did not release the payment to the said workshop directly under their arrangement and having no alternative, the complainant paid the total amount to the said workshop and took the delivery of the car. The opposite party No. 2 sent the final survey report to opposite party No. 1 directly without disclosing the same to the complainant and reduced the claimed amount in connivance with opposite party No. 1 and as such, the opposite party No. 1 paid the part payment of Rs. 57,200/- to the complainant. The complainant immediately wrote letter to opposite party No. 1 regarding less payment, but neither any reply was given nor any payment of pending claim of Rs. 20,695/- was made to him. Hence, he has filed the present complaint.
The opposite party No. 1 filed written reply and pleaded that after receipt of intimation regarding the accidental damage to the insured vehicle bearing registration No. PB-03P-7555 insured with it effective from 15-1-2009 to 14-1-2010, M/s. Shree Surveyor, Surveyor and Loss Assessor, Jammu was appointed for spot survey who submitted his report dated 7-9-2009 and thereafter final survey was got conducted by Er. Sanjeev Gupta & Associates, who submitted its report dated 11-12-2009 and assessed the net loss to the insured vehicle to the tune of Rs. 56,499/-. Accordingly, cheque amounting to Rs. 57,200/- was paid to the complainant as full and final settlement of his claim and he accepted the same of his own free will without coercion. The complainant has not proved that he was compelled and coerced in any manner to accept the said amount and now he is estopped to file the present complaint and for this, the opposite party No. 1 has mentioned various authorities. The opposite party No. 1 has further pleaded that although New India Assurance Co. Ltd., has entered into an agreement for providing cashless services to the vehicles, which are got insured by the agents of Maruti, however this insurance policy has not been obtained by the complainant from Maruti, rather the same has been obtained by the complainant directly from New India Assurance Co. Ltd., as such cashless services were not provided. It has been denied that policy was not issued to the complainant after issuance of cover note. The opposite party No. 1 has pleaded that proposal forms are filled by the complainant and only thereafter insurance cover notes are issued to him and copy of proposal form might be in the possession of complainant if he has filled the same. It has been further pleaded that as per insurance policy, insurance company is only liable to pay Rs. 1500/- as toeing charges and nothing else. The complainant submitted the repair and other bills and his claim was settled after applying the depreciation as per insurance policy and lawful claim of the complainant was paid. In case of cashless insurance policy, authorized agency of the Maruti repairs the vehicle and only charges depreciation on parts as per policy and after repair send the bill to the insurance company for reimbursement. However, in the present case, insurance policy obtained by the complainant was not cashless. The opposite party No. 1 has further pleaded that the report of surveyor was delayed for few days as the complainant failed to complete the formalities and submit the required documents and bill in time.
Registered A.D. notice was sent to opposite party No. 2, but none appeared on his behalf and as such, exparte proceedings were taken against him.
Parties have led evidence in support of their pleadings.
Arguments heard and written submissions submitted by the parties perused.
The learned counsel for the complainant submitted that his car bearing registration No. PB-03-P-7555 insured with opposite party No. 1 met with an accident while coming from Katra to Jammu and fell in the deep trench. The loss was intimated to opposite party No. 1 and it deputed spot surveyor and thereafter final surveyor i.e. opposite party No. 2. The final surveyor in connivance with opposite party No. 1 assessed the loss to the tune of Rs. 56,499/-. He argued that in the said accident total 123 parts were damaged as per Ex. C-2 and they were replaced by the authorized repairer of Maruti Udyog but the final surveyor has allowed only 61 parts. Further the complainant has paid Rs. 24,652/- being labour charges to the repairers whereas the opposite party No. 2 has allowed only Rs. 15,828/-. The complainant has spent Rs. 10,000/- as towing charges whereas the surveyor has allowed only Rs. 1500/-. The complainant has also paid Rs. 790/- as survey fee to the spot surveyor. The opposite party No. 2 has got signed the consent letter from the complainant when it was blank. The Insurance company paid Rs. 57,200/- as part payment to the complainant which he has received under protest.
On the other hand, the learned counsel for opposite party No. 1 submitted that final survey was conducted by Er. Sanjeev Gupta and Associates and he after considering all the factors, has assessed the loss to the tune of Rs. 56,499/- and accordingly cheque amounting to Rs. 57,200/- was paid to the complainant and he received the said amount of his own free will without any coercion. The claim of the complainant was settled after applying the depreciation as per insurance policy.
A perusal of Cash Memo Ex. C-12 dated 9-12-2009 issued by Pathankot Vehicleades Pvt. Ltd., Pathankot reveals that the total items replaced by the said authorised repairer were 123 against which Rs. 62,595.83 were paid. The said repairer charged Rs. 22,994.24 as labour charges. Hence, the total amount paid by the complainant to the authorised repairer is Rs. 85,590/-. In addition to this amount, the complainant as paid Rs. 10,000/- vide Ex. C-13 & Ex. C-14 as towing and recovery charges. The opposite party No. 1 has paid the claim on the basis of final survey report which is Ex. C-7 on file. A perusal of survey report reveals that the surveyor Saneev Gupta & Associates, has allowed only 61 items and given a note that “Rest of the items, claimed have been considered but not allowed hence not discussed above.” The said surveyor has not even mentioned the items and the reason for not allowing the same. He has also allowed labour charges only to the tune of Rs. 15,528.05 as against Rs. 22,994.24 actually paid by the complainant. The towing charges has also been allowed to the tune of Rs. 1500/- as against Rs. 10,000/-. The surveyor as well as opposite party No. 1 has not furnished under which terms and conditions only Rs. 1500/- on this account has been allowed to the complainant. So, in our view it would meet the ends of justice Rs. 5,000/- in total be allowed to the complainant on account of towing and recovery charges. The complainant has also paid Rs. 790/- to the spot surveyor and in our view he is entitled to reimbursement of the said amount. The surveyor has arrived at these figures without giving any clarification as to how he assessed and deducted the amount. The surveyor has not given any cogent and convincing reason for reducing the loss to such an extent. The support can be sought by the law laid down by the Hon'ble Supreme Court in Civil Appeal No. 3252/2007 decided on 09-04-2009 titled New India Assurance Co. Ltd. Vs. Pardeep Kumar wherein it has been held that surveyor must give sound and cogent reason for not accepting the claim of the claimant. Further support can be sought by the precedent laid down by the Hon'ble National Commission in the case titled K L Malhotra Vs. Oriental Insurance Co. Ltd., 2003(1) CPJ 107 (NC) wherein it has been held : - “Consumer Protection Act, 1986 – Section 21(b) – Revision – Insurance _ Accident – Loss assessed by authorised agent of manufacturer awarded by Forum – Amount reduced by State Commission without any justification – Order set aside – Order of Forum restored.” . The reliance can also be put on the precedent laid down by the Hon'ble National Commission in case titled Oriental Insurance Co. Ltd., Vs. Mehar Chand 2009(IV) CPJ 230 (NC) wherein it has been held :- “... Estimated cost of repairs given by authorised garage, not accepted by Surveyor – Contention, authorised garages normally give inflated estimate, not acceptable – Surveyor required to give sound and cogent reasons for disallowing estimated claim – No reasons given by Surveyor disallowing estimated claim given by authorized garage....”
The support can also be sought from the observations of the Hon'ble State Commission Himachal Pradesh, Shimla in the case titled 2007(1) CPJ 236 wherein it has been held :-
“...(iii) Consumer Protection Act, 1986 – Section 15 – Insurance – Surveyor's report – Reliability – Surveyor, who is expert in branch of assessing damages, required to give reasons howsoever brief, as to on what basis and for what reasons claim of complainant not justified – In such absence, Surveyor's report cannot be accepted.”
In view of what has been discussed above, this complaint is accepted with Rs. 5,000/- as compensation and cost against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to do as under :-
i) Pay the cost of 62 remaining items as mentioned in aforesaid cash memo Ex. C-12 , which are not allowed by the surveyor, after applying depreciation i.e. 50% on NM parts and 15% on metal parts.
ii) Pay Rs. 7166/- being the amount of difference in labour charges.
iii) Pay Rs. 3500/- more being towing and recovery charges as the complainant has already received Rs. 1500/- on this account.
iv) Pay Rs. 790/- being the amount of survey fee paid by complainant to the spot surveyor i.e. Shree Surveyors.
The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, the interest @9% will yield on Rs. 11,456/- and on the amount which is to be paid by the opposite parties on remaining 62 parts from the date of institution of this complaint i.e. 27-01-2011 till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
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12-07-2011
(Vikramjit Kaur Soni)
President
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Consumer Court Lawyer
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