DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 29 of 18-01-2011

Decided on : 08-07-2011

Buta Singh aged about 30 years S/o Sh. Darshan Singh, R/o Village Jodhpur Pakhar, Tehsil Talwandi Sabo, District Bathinda.

.... Complainant

Versus

1. The New India Assurance Co. Ltd., New India Assurance Building, 87 Mahatma Gandhi Road, Fort, Mumbai 400001, through its CEO.

2. The New India Assurance Co. Ltd., 2090, The Mall, Bathinda through its Manager.

   ..... 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. H S Sidhu, counsel for the complainant

For the Opposite parties : Sh. Sunder Gupta, counsel for the opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. 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'). Briefly stated the case of the complainant is that he is owner of Truck No. PB-05R-9286 which was comprehensively insured with the opposite parties vide policy No. 360600311001000010000 for the period from 22-07-2010 to 21-07-2011 against payment of premium of Rs. 19,359/-. The said truck met with an accident on 17-08-2010 at Dharampur (H.P.) and the vehicle in question fell into a gorge and damaged extensively. The spot surveyor inspected the spot and submitted the report. The complainant paid Rs. 22,000/- for hiring the services of crane to pull the vehicle from gorge and spent Rs. 7,000/- for bringing the truck from Kalka to Rampura. The complainant alleged that got his vehicle repaired and paid Rs. 2,34,837/- to Gobind Motors, Rampura Phul, District Bathinda, Rs. 1,50,500/- to Kamboj Body Repairing Working, Abohar on account of repair of cabin and body of the vehicle and Rs. 10,000/- to KP Battery House, Rampur for installing a new battery on the vehicle. The complainant has spent Rs. 4,24,337/- in total on the repair of vehicle in question. The complainant filed insurance claim and submitted all the required documents with the opposite parties but the opposite party No. 2 issued a cheque for an amount of Rs. 1,83,239/- only to the complainant as against total claim of Rs. 4,24,337/-. The complainant alleged that he is entitled to claim of Rs. 4,24,337/- from the opposite parties towards insurance claim and hence they are liable to pay the balance amount of Rs. 2,42,098/- alongwith interest to him. The complainant got served a legal notice upon the opposite parties vide registered post on 23-12-2010, but to no effect. Hence, this complaint has been filed by the complainant.

2. The opposite parties filed their joint written reply and took legal objection that complainant carries on commercial activities and has obtained insurance policy for commercial purposes and as such, he is not a consumer. It has been pleaded that after receipt of intimation regarding the accidental damaged to the insured vehicle, the opposite parties deputed Er. Subhash Sood, Surveyor and Loss Assessor to inspect the vehicle at the spot, who submitted his report dated 28-08-2010, thereafter final survey was got conducted by Er. A S Kapoor, Chief Executive, Kapoor and Company, who after minutely inspecting the damaged vehicle, submitted his report dated 27-10-2010 and assessed the net loss to the insured vehicle to the tune of Rs. 1,90,729.25P and assessed the salvage value of the damaged parts to the tune of Rs. 7500/-. After repair of the insured vehicle, re-inspection was done and Er. A S Kapoor submitted his re-inspection report dated 28-10-2010 and the loss was discussed with insured, who agreed to accept the aforesaid amount of Rs. 1,90,729.25 as full and final settlement of his claim without any coercion of his own free will and issued acceptance letter dated 25-10-2010 to Er. A S Kapoor. Since the insured has failed to deposit the damaged parts (salvage) , so an amount of Rs. 7500/- was deducted from Rs. 1,90,729.25. The cheque amounting to Rs. 1,83,229/- was delivered to the complainant as full and final settlement of his claim and he accepted the same. It has been further pleaded that complainant has claimed the exaggerated amount for towing charges whereas only Rs. 2500/- is permissible as towing charges as per terms and conditions of the policy.

3. Parties have led evidence in support of their pleadings.

4. Arguments heard and written submissions submitted by the parties perused.

5. The learned counsel for the complainant argued that complainant spent an amount of Rs. 4,24,337/- on the repair of the vehicle out of which Rs. 22,000/- paid for utilizing crane service to put the vehicle from the gorge and Rs. 7,000/- to bring the truck from Kalka to Rampura Phul; Rs. 2,34,837/- paid to Gobind Motors, Rampura Phul on account of repair of the damaged vehicle; Rs. 1,50,500/- paid to Kamboj Body Repairing Working, Abohar for repair of cabin and Rs. 10,000/- were paid to KP Battery House, Rampura for installing a new battery on the vehicle. The opposite party No. 2 issued a cheque for an amount of Rs. 1,83,239/- only against claim of Rs. 4,24,337/- on the ground that same is part payment and his case has been sent to higher officer for sanction and the balance amount would be paid on receipt of necessary sanction and under bonafide belief, the complainant accepted the cheque. It is nowhere mentioned on the voucher that payment is full and final. The learned counsel for the complainant submitted that Gobind Motors, Rampura Phul is the authorised service station of Tata Motors and the rate charged by Gobind Motors, Rampura Phul for the repair of the vehicle is question is as per the price list of the company. The estimates procured and furnished by the opposite parties regarding repair charges of the cabin and body of truck in question is equal to the amount charged by Kamboj Body Repairing Works, Abohar with a negligible difference. He further submitted that surveyor's report is not last and final word. For this, he has taken support of various authorities.

6. On the other hand, the learned counsel for the opposite parties submitted that the claim amount was paid to the complainant and he received the same without any protest. The loss was assessed by the independent surveyor and the amount assessed by the surveyor was paid to the complainant. In the accident, only bare cabin and its internal parts were damaged but the complainant replaced the complete cabin assembly which was not allowed by the surveyor since it was not damaged.

7. It is the admitted fact that vehicle in question which was comprehensively insured with the opposite parties vide Ex. C-12 & Ex. C-13 met with an accident. The survey was conducted and the loss to the tune of Rs. 1,83,229/- was paid to the complainant as full and final. The dispute between the parties is that as per complainant he has spent an amount of Rs. 4,24,337/- in total on the repair of the accidental vehicle out of which Rs. 2,34,837/- were paid to M/s. Gobind Motors, Rampura Phul, which is authorised Service Station of Tata Motors and the opposite parties have paid Rs, 1,83,829/- whereas the version of the opposite parties is that loss assessed by the independent surveyor has been paid to the complainant.

8. The relevant portion of Survey report of M/s. Kapoor & Company Ex. R-1, is reproduced hereunder :-

   “....On 10-09-2010 hearing from the repairers as well as the Insured, the undersigned again visited the repairers' place at Rampuraphul and conducted the detailed survey. On this day, it was observed that Front cowl which was very badly damaged, the insured had made up his mind to replace the complete cowl where he was clearly apprised that we will be allowing the bare cowl and damaged internal parts of the Cowl only. If the Insured replaces the complete cowl, he will have to bear the cost of okay parts in the complete cowl assy.”

   “.....N.B. 1) This is for the information of the Underwriters that the prices of the parts allowed are as demanded in estimate and the vehicle was also taken out of M/s. Gobind Motors, Rampura Phul on 14-09-2010 after getting complete repairs carried out and sent to Abohar for cabin and body repair. The prices of the Tata Motors increased on 01-10-2010 as per our information. The bill was generated by M/s. Gobind Motors on 10-10-2010 in which the repairer has charged the new/increased prices instead of those demanded in the initial estimate and existing at the time of repair. The insured as well as the repairers were clearly apprised that since the vehicle was completely repaired on 14-09-2010 and taken out of the workshop, hence the increased prices cannot be allowed. Further they were clarified that only the damaged parts during the accident and then replaced ones are allowed.

   2) The assessments have been carried out keeping in view the damages physically verified by us, the overall general condition of the vehicle in question and standard of the workshop carrying out the repairs of the same.

   3) The insured has been advised to retain the salvage till finalization of the claim and deposit the same with the Underwriters if so desired by them”

9. Er. A S Kapoor, Chief Executive, Kapoor & Company, Surveyors and Loss Assessors has deposed in his affidavit Ex. R-6 :-

   “....The opposite parties deputed the deponent to conduct the final survey of accidental Truck bearing Regn. No. PB-05R-9286 and also to assess the loss to the Insured's Truck and deponent after minutely inspecting the damaged vehicle before and after dismantling and during various stages of repair had submitted his report dated 27-10-2010 containing a net loss assessed as Rs. 1,90,729.25 after deducting depreciation as per the Insurance Contract. Out of this assessment the value of the damaged parts extracted from the vehicle called salvage being property of the Insurance Company, the value for the same was assessed as Rs. 7500/- only. This salvage, the insured was supposed to deposit with the Insurance Company or had to bear this cost if he does not deposit the same.

   The net amount of Rs. 1,90,729.25 assessed as full and final settlement after deducting depreciation. As per the Insurance contract was for the damaged portion only, resulted out of the captioned accident to the Insured's vehicle since the liability of the underwriters is to compensate for the loss to the damaged portion only, occurred to the insured's vehicle. The insured after understanding each and every point submitted his acceptance to aforesaid amount as full and final settlement of his claim without any coercion of his own free will.

   In this case the insured had replaced some parts/components which were not part of accident loss stating that he himself will bear the cost for the safe parts replaced, the details of which have been mentioned in our survey report also and are appended below :

   i) Insured was apprised that only bare cabin as well as its internal damaged parts will be assessed as payable and the same are supplied by M/s Tata Motors also. But, the insured replaced the complete Cabin Assy. (instead of Bare Cabin) in which all internal parts damaged and safe both were replaced. M/s. Tata Motors supply both Bare and complete cabin fitted with internal parts and there is much difference in cost. The cost of complete cabin was quoted by the repairers as Rs. 1,15,620/- whereas the Bare cabin was costing Rs. 60400/- in addition to this the damaged parts in cabin were allowed to the tune of Rs. 22,015/-. Total amount of damaged Bare Cabin plus damaged parts in cabin were allowed to the tune of Rs. 82,505/-. But the insured replaced complete cabin stating that rest of the amount will be born by him. Here the difference of Rs. 33115/- was spent in addition to, what was due to him against compensation, as per insurance contract. This amount was spent at the free will of the insured which could have been saved as the parts which were not damaged were replaced alongwith complete cabin.

   ii) The Total Depreciation on Tata Motor Parts the insured had to bear, is Rs. 42,380.75 as per the Insurance contract.”

   “....vi) The load body of the vehicle in question was damaged from left side only whereas its right side was okay. Here the left side was practically repairable after replacing the damaged body strips, wooden portion and steel angles etc., but here also the insured replaced both side body strips stating that he would bear rest of the amount from his own pocket. In view of the same, for load body repair, the amount of material for accidental portion has been assessed as Rs. 19,200/- out of which depreciation amount s Rs. 4800/- has been attributed towards depreciation, to be born by the insured due to its model being January, 2007.

   “vii)....The towing charges as per the Insurance contract are limited to Rs. 2500/- maximum.”

   “ix) ......The vehicle was taken out of M/s. Gobind Motors Rampuraphul on 14-09-2010 after complete mechanical replacements/repairs and we also assessed the prices as demanded in the original estimate. But the bill was raised by the repairers M/s. Gobind Motors as per increased prices, which came into force on 01-10-2010 onwards. This issue has also been clearly highlighted at foot note, under the head N.B. (1) of our survey report.”

10. Hence keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum found no deficiency in service on the part of the opposite parties as the surveyor is the right person who inspected the vehicle and could narrate the fact. He has categorically stated in his above said affidavit that the insured replaced the complete cabin assembly in which all the internal parts damaged and safe, both were replaced and likewise the load body of the vehicle was damaged from left side only whereas its right side was okay but, the insured replaced both side body strips. Moreover, the bills were made on charging higher side rate whereas the repair work of the vehicle in question was complete on 14-09-2010 and rates of parts etc., increased on 01-10-2010 onwards.

    Reliance can be put on precedent laid down in case titled Sarvalaxmi Marines Vs. Oriental Insurance Co. Ltd. & Anr. 2007 (3) CLT 559 (N.C.) wherein it was held “Consumer Protection Act, 1986, Section 2(1)(g) – Insurance Act, 1986, Section 64UM – Insurance claim – Surveyor's report – The report of the Surveyor, who is independent agency and are qualified and licensed to carry out the work, cannot be brushed aside lightly.”

    The support can also be sought from the precedent laid down in case titled New India Assurance Co. Ltd Vs. Kamal Nayan 2007(1)CLT 112 (N.C) wherein it was held “Insurance claim – Surveyor's report – Held that report of Surveyor is an important piece of document and evidence – Cannot be brushed aside without sufficient reasoning.” The Hon'ble Supreme Court in catena of judgements has taken pains to emphasize that report of surveyor is an important piece of document and evidence which can be brushed aside by sufficient reasoning.

    The complainant has not placed any documents on file to prove that he has received aforesaid full and final amount on coercion.

11. The opposite parties have taken legal objection that complainant is plying the vehicle for commercial purposes, but have not placed any document on file to prove their this version, hence this objection is not tenable.

12. With utmost regard and humility to the authorities cited by the learned counsel for the complainant, they are distinguishable on facts.

13. In view of what has been discussed above, this complaint fails and is hereby dismissed with no order as to costs. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record room.

Pronounced

08-07-2011 (Vikramjit Kaur Soni)

President

(Amarjeet Paul) Member