| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
C.C. No. 576 of 03-12-2012 Decided on 22-04-2013
Sheela Rani, aged about 50 years W/o Sh. Ram Kumar R/o near Bus Stand, Rampura Phul, District Bathinda. ........Complainant Versus
The New India Assurance Company Limited, Divisional Office, The Mall, Bathinda, through its Sr. Divisional Manager .......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President. Smt.Sukhwinder Kaur, Member.
For the Complainant : Sh. Inderjit Singh, counsel for the complainant. Counsel for opposite party : Sh. J D Nayyar, counsel for opposite party.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that she purchased truck bearing registration No. HR-38-J-5914 from Chanan Singh and got it insured vide Cover Note No. 458205 effective from 23-10-2010 to 22-10-2011 from the opposite party. The complainant got the registration of the truck transferred in her name and registration No. PB-03-X-1159 was allotted to the said truck. Thereafter the complainant deposited the necessary fee with the opposite party and requested for transfer of the insurance policy which was transferred vide endorsement No. 36060431100183000137 on 4-3-2011 with capital sum insured of Rs. 4.70 Lacs. The said truck of the complainant met with an accident near village Karadwala on Rampura-Barnala, G.T. Road, on 15-10-2011 while it was carrying rick rusk and in the said accident, the vehicle was totally damaged. The complainant intimated the loss to the branch office of the opposite party at Rampura Phul and spot survey was got done. Thereafter, Er. R P Gupta, was deputed for final assessment of the loss. The complainant got prepared the estimates of repair from the authorized dealer of the manufacturer i.e. Kishan Motors, Barnala, to the tune of Rs. 6,93,710/- and paid 5% of the estimated amount to the said repairers. The complainant alleged that since the estimate amount was more than the IDV, the vehicle was totally damaged. The complainant further alleged that the aforesaid surveyor of the opposite party directed her to use disposable parts and accordingly, she purchased disposal parts including major parts i.e. chassis and others from various marked and incurred more than Rs. 3.50 Lacs on the repair of the truck. The complainant submitted all the bills and documents to the surveyors but the opposite party has not settled her lawful claim within reasonable time. The complainant alleged that since she was in dire need of money, she requested the opposite party to settle her claim and it assured her that her claim would be paid very soon and obtained her signatures on blank papers. But, thereafter, the opposite party only issued a cheque No. 204450 dated 18-9-2012 amounting to Rs. 1,64,000/- as part payment and she received the same under protest. The complainant further alleged that as per directions of the IRDA and as per provisions of law, the opposite party is bound to pay the net loss suffered by her whereas it has paid Rs. 1,86,000/- out of Rs. 3,50,000/- which was assessed by M/s. Kissan Motors, Barnala, authorized dealer. Hence, the complainant has filed the present complaint seeking directions to the opposite party to pay Rs. 1,86,000/- being the remaining claim amount besides compensation and cost. The opposite party filed its written statement and pleaded that on receiving the information regarding accident from the insured, the opposite party had deputed the surveyor. The claim if any, was payable subject to the terms and conditions, rules and regulations of the policy, the copy of which had been supplied to the insured. The opposite party has denied that the vehicle in question was totally damaged. The opposite party has also denied that the surveyor directed the complainant to use disposable parts. Rather it was the husband of the complainant who in his letter had written that various old parts have been got put by them in the accidental vehicle and the removed parts have been sold in scrap. He had requested that the claim be passed after deducting the cost of the old material. The claim had been settled as assessed by the surveyor to the tune of Rs. 2,00,600/- less salvage value of Rs. 34,600/- and the same had been voluntarily agreed to by the complainant vide her acceptance letter dated 26-3-2012. The complainant showed her inability to produce the original bills and the opposite parties considering her in a sympathetic manner processed the claim on the basis of photocopies of the bills. The opposite party has denied that any blank paper was got signed from the complainant. It has been pleaded that the payment has been made to the complainant as full and final settlement of the claim amount. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. There is no dispute regarding insurance and loss to the vehicle in question. The allegation of the complainant is that she was directed by the final surveyor Sh. R P Gupta to use disposable parts and accordingly she purchased disposable parts. She spent an amount of Rs. 3,50,000/- on the repair of the vehicle in question whereas the opposite party has given a cheque of Rs. 1,64,000/- to her. On the other hand, the submission of the opposite party is that the claim amount has rightly been paid to the complainant as per assessment made by the final surveyor. Mr. R P Gupta of M/s. R P Gupta & Company, Surveyor & Loss assessor, has mentioned in his survey report that :- “...We were informed that the insured had managed second hand cabin, chassis, load body etc., from a scrap dealer in exchange for the damaged ones. As such, no salvage was available with the insured. Insured did not inform us during repairs as they did not know about this.” Thus, in view of this, the contention of the complainant that the aforesaid surveyor had directed her to use disposable parts, is not tenable. A perusal of final survey report Ex. R-6 reveals that at Sr. No. 12 “ under the 'Summary of Assessment', the surveyor has applied depreciation @ 40% on metallic parts, 30% on fibre parts and 50% on rubber parts whereas it is the admitted fact that complainant has used second hand parts for which surveyor has already deducted sufficient amount from the original value of parts. In such circumstances, the deductions have been made by the surveyor from the original cost of parts twice. Once he has reduced the amount of parts considering them to be second hand and thereafter he applied depreciation, which is unfair and not justified. The complainant is entitled to the whole amount of parts and labour as per assessment of the surveyor without any further deduction on any account, as keeping in view the second hand parts, the surveyor has already allowed less value of the parts. Accordingly, the complainant becomes entitled to the amount of Rs. 2,32,900/- i.e. Rs. 28,000/- as labour charges and Rs. 2,04,900/- being the value of parts. Besides this, the complainant is also entitled to the towing charges of Rs. 2500/- as allowed by surveyor. The surveyor as specifically mentioned in his survey report :- “..Many damages like alternator, self starter, silencer, engine mountings, engine wiring, brake leathers, engine belt, engine timing covers, tappet cover, brake hoses & tyres etc., were not demanded in the original estimate. These were damaged & replaced with second hand ones. Since the insured did not submit any supplementary estimate & did not give us a chance to inspect during repairs, we have not considered these damages in assessment except for repair labour of alternator & self starter.” The surveyor has also stated in his survey report that :- “...We followed up with the insured on telephone for repair of the vehicle which was lying as it was. We were informed that husband of the insured, Mr. Ram Kumar had sustained leg fracture and their grand son had fallen from roof. Due to this, they could not attend to the damaged vehicle.” Hence, keeping in view the facts, circumstances, evidence and the aforesaid statements of the final surveyor, this Forum is of the considered view that it would meet the ends of justice if the complainant is allowed the actual loss suffered by him to the tune of Rs. 2,32,900/- + 2500/-, as detailed above, as confirmed by the surveyor also vide his aforesaid report, i.e. without applying depreciation, as the surveyor has deducted the amount twice and without deducting any amount for salvage as the surveyor has specifically mentioned in his report that complainant had managed parts from scrap dealer in exchange of damaged parts. 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”. Moreover, the vehicle in question was reinspected by the surveyor on 15-3-2012, but even thereafter also, the opposite party did not finalize the genuine claim of the complainant and sent her a cheque on 18-9-2012, after six months. Thus, in view of what has been discussed above, there is deficiency in service on the part of the opposite party. Hence, this complaint is partly allowed with Rs. 10,000/- as cost and compensation. The complainant has already received an amount of Rs. 1,64,000/- against the claim in question. Accordingly, opposite party is directed to pay Rs. 71,400/- being the remaining claim amount to the complainant. The compliance of this order be done within 45 days from the date of receipt of copy of this order. In case of non-compliance, the interest @9% will yield on the amount of Rs. 71,400/- till realization. Copy of this order be sent to the parties concerned free of cost and the file be consigned to the record.
Pronounced 22-04-2013 (Vikramjit Kaur Soni) President
(Sukhwinder Kaur) Member
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