Chandigarh

DF-I

CC/267/2023

NARINDER SINGH - Complainant(s)

Versus

THE NEW INDIA ASSURANCE COMPANY LIMITED THROUGH ITS DIRECTOR/BRANCH MANAGER - Opp.Party(s)

DEEPAK AGGARWAL

14 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/267/2023
Date of Institution	:	17/05/2023
Date of Decision	:	14/12/2023

 

Narinder Singh, H.No.259, Sector 7-A, Chandigarh 160009.

… Complainant

V E R S U S

1. The New India Assurance Company Ltd., SCO 12, First Floor, Sector 20-D, Chandigarh 160020, through its Director/Branch Manager.
2. Harbir Automobiles Pvt. Ltd., Plot No.182/84, Industrial Area, Phase-1, Chandigarh-160002 through its Director/ Branch Manager.

Workshop : 182/7, Ind. Area, Phase-1, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

               

ARGUED BY	:	Sh. Deepak Aggarwal, Advocate for complainant
	:	Sh. Kapil Gupta, Advocate for OP-1
	:	Sh. Gaurav Bhardwaj, Advocate for OP-2.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Narinder Singh, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the complainant is the owner of a Mahindra Scorpio bearing registration No.PB-29L-0009 (hereinafter referred to as “subject vehicle”), which was insured with OP-1/insurer vide policy valid w.e.f. 23.1.2021 to 22.1.2022 (hereinafter referred to as “subject policy”) on payment of premium of ₹12,285/- having IDV of ₹3,50,000/-.  Copies of insurance policy, driving licence and registration certificate are Annexure C-2 to C-4.  On 18.9.2021, the subject vehicle met with an accident with another car at Sector 78-79 chowk Mohali under Police Station Sohana.  Immediately intimation was given to OP-1 who appointed surveyor. The surveyor visited the spot, conducted spot survey and had also clicked photographs of the subject vehicle. On the advice of the surveyor, complainant had taken the subject vehicle to the workshop of OP-2, who again called a surveyor and in the presence of complainant, repair estimate was prepared and the surveyor had assured that the claim will be settled soon.  However, despite of that, the said claim was not settled and accordingly the complainant was compelled to send letter dated 21.4.2023 (Annexure C-5) through registered post.  Thereafter the complainant got the subject vehicle repaired at his own cost and the bills of repair are Annexure C-7 colly. Since the case of the complainant is squarely covered under the subject policy and OP-1/insurer has not settled the claim despite of repeated requests, the said act of OP amounts to deficiency in service and unfair trade practice.  OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their separate written versions. 
3. In its written version, OP-1, inter alia, took preliminary objections of maintainability, cause of action etc.  However, it is admitted that the subject policy was issued to the complainant by the answering OP and the same was valid at the relevant time i.e. at the time of accident. It is further alleged that, in fact, the complainant had given intimation to the answering OP after 10 days of the accident as the accident had taken place on 18.9.2021 whereas the intimation was given by the complainant on 27.9.2021 vide intimation letter (Annexure R-2).  It is further alleged that immediately Raj Rishi Sharma, surveyor and loss assessor was deputed for spot survey who submitted his report (Annexure R-3) and thereafter the subject vehicle was taken to the workshop of OP-2 for repair. Even when the subject vehicle was lying with OP-2, M/s Ametek Insurance Surveyors & Loss Assessors (P) Ltd. was further deputed for final survey who submitted its report (Annexure R-4) by assessing the loss to the tune of ₹43,475/-.  It is further alleged that the answering OP had received two summons from the MACT, Mohali alongwith copies of claim petitions indicating that the third party has also suffered loss in the said accident and Dr. Gaurav Lakhanpal had filed petition against the present complainant for grant of compensation and as the complainant has concealed material fact of third party loss of injury and property, he has violated the terms & conditions of the subject policy and as such the consumer complaint is not maintainable.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In its written version, OP-2, inter alia, took preliminary objections of maintainability, cause of action and also that the complainant has not approached the Commission with clean hands.  It is further alleged that, in fact, the answering OP has neither committed any deficiency in service nor there is any unfair trade practice on its part and a false consumer complaint has been filed against it.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. In rejoinder to the written version of OP-1, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject vehicle which was insured w.e.f. 23.1.2021 to 22.1.2022 and the same met with an accident on 18.9.2021, regarding which information was given by the complainant to OP-1/insurer and accordingly OP-1/insurer had deputed surveyor and loss assessor for spot survey, who inspected the spot and submitted his report (Annexure R-3) and thereafter another surveyor and loss assessor was deputed by OP-1 for final survey, who had also submitted his report (Annexure R-4) and the claim of the complainant has not been settled by OP-1, till date, the case is reduced to a narrow compass as it is to be determined if OP-1/insurer is unjustified in not settling the claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant is not maintainable as the complainant has concealed material facts qua the third party loss in the accident and also there was delay in giving intimation to the insurer/OP-1 about the accident and the consumer complaint of the complainant is liable to be dismissed, as is the defence of OP-1/insurer.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that, in fact, OP-1/insurer has not settled the claim of the complainant, till date, and has resisted the claim on two grounds – firstly that there was delay in giving intimation about the accident to OP-1 and secondly concealment of material facts qua the third party loss in the accident.
   3. So far as the defence of OP-1/insurer that there is delay of 10 days in giving intimation of the accident by the complainant is concerned, complainant has specifically stated that he had intimated OP-1 after the accident immediately and in writing he had given information to OP-1 later on vide intimation letter dated 27.9.2021 (Annexure R-2).  Moreover, when it has come on record in the final survey report (Annexure R-4) that the loss can be attributed to the circumstances and the damages are consistent with the reported cause of loss and were found to be fresh, it stands proved on record that the aforesaid delay, if any, in giving intimation to OP-1 is not fatal to the case of the complainant.
   4. So far defence of OP-1 that the complainant has concealed material facts about the third party loss to the person and property, regarding which proceedings before the MACT are pending, is concerned, as it is an admitted case of the parties that no FIR was lodged and also even the complainant could not be aware of the fact if any petition has been filed before the MACT by the petitioner in that case, it cannot be held that the complainant has concealed any fact which is otherwise in violation of the terms and conditions of the policy as it is an admitted case of the parties that the subject policy was comprehensive one covering own damage to the insured as well as the third party loss. 
   5. Not only this, insurer is not expected to sit over the claim of the claimant at its pleasure and is bound to settle the claim within a reasonable time period, but, as in the present case, despite passage of more than two years from the date of accident and more than six months from the date of filing of the instant consumer complaint, OP-1/insurer has not settled the claim, it is safe to hold that the act of OP-1/insurer in not settling the claim of the complainant, till date, certainly amounts to deficiency in service and unfair trade practice and the present consumer complaint deserves to succeed.
   6. So far as the quantum of relief to be granted to the complainant is concerned, complainant has come with the plea that he has spent an amount of ₹77,529/- as is also evident from the tax invoice (Annexure C-7 Colly.). However, the said bill is disputed by OP-1 on the ground that the surveyor has assessed the actual loss as well as the repair charges by including the higher labour charges for the repair of the subject vehicle to the tune of ₹43,475/- and by excluding the costs of non metal parts, rubber parts as well as excess clause as per terms of the policy.  Moreover, perusal of the tax invoice (Annexure C-7 colly.) clearly indicates that the repairer has taken into consideration all the parts including rubber parts, non metal parts, which are otherwise not covered under the subject policy, whereas the surveyor has assessed the actual cost of parts which were covered under the subject policy with labour charges, hence, it is safe to hold that the final survey report cannot be ignored. 
   7. It is pertinent to mention here that surveyor report is an important piece of evidence and has to be given due weightage and can only be ignored if there is any other cogent evidence to the contrary.  The Hon’ble National Commission in New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC) held as under:-

“The Report submitted by the Surveyor is an important piece of evidence and has to be given due weight and relied upon until and unless it is proved by some cogent and reliable evidence that the Report submitted could not be relied upon.”

Further the Hon’ble National Commission in Oriental Insurance Co. Ltd vs. Arss Infrastructure Project Ltd., II (2023) CPJ 468 (NC) held as under:-

            “Insurance — Surveyors’ report — Survey and investigation are one of fundamentals in settling claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that survey or investigation should be convincing and pass test of credence in scrutiny — State Commission has not gone into contents of surveyors’ reports at all on ground that reports were filed belatedly before it — Reports were in any case available before State Commission and as such it ought to have examined their contents rather than dismissing them outright — Depending upon circumstances State Commission could have even imposed terms including cost for belatedly filing reports but to treat them as suspicious and to perfunctorily dismiss them outright merely because they were filed belatedly was not approach either justified or called for — No need to examine surveyors’ reports at this stage at any great length since both parties agree that settlement may be made on basis of respective surveyor’s assessment of actual loss in each case.”

The Hon’ble National Commission in Detco Textiles Pvt. Ltd. Vs. New India Assurance Company Ltd. & Anr., II (2023) CPJ 535 (NC) held as under:-

        “The Surveyor conducted a very detailed inspection of the premises and assessed the loss after due verification of documents. He assessed the total loss to the building, plant & machinery and furniture etc. at Rs.11,21,18,099/- after making necessary deductions of Rs.5,605,905/- towards excess clause and taking care of the process charges, debris removal, architects fee and goods held in trust arrived at the net adjusted loss of Rs.10,65,12,194/-. For every item, the Surveyor had explained the basis of arriving at the amount. The Complainant on the other hand had not placed any evidence to establish that the assessment made by the Surveyor was incorrect. The Complainant, therefore, cannot be allowed the amount beyond the assessment of the Surveyor. We see no reason not to agree with the assessment made by the Surveyor.”

8. In view of the foregoing discussion and the ratio of law laid down above, it is safe to hold that the OP-1/ insurer is liable to pay to the complainant the amount assessed by the surveyor i.e. ₹43,475/- alongwith interest and compensation etc. for the harassment suffered by him.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1 is directed as under :-

1. to pay the aforesaid amount of ₹43,475/- to the complainant alongwith interest @ 9% per annum from the date of its payment by him to the repairer i.e. 26.11.2021 onwards.
2. to pay ₹10,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OP-1 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs.
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

14/12/2023 hg		Sd/- [Pawanjit Singh] President
		Sd/- [Surjeet Kaur] Member