Chandigarh

DF-I

CC/250/2023

JATINDER KUMAR - Complainant(s)

Versus

THE NEW INDIA ASSURANCE COMPANY LIMITED - Opp.Party(s)

GAURAV BHARDWAJ

02 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                          

Consumer Complaint No.	:	CC/250/2023
Date of Institution	:	11.05.2023
Date of Decision	:	02/12/2024

 

Jatinder Kumar s/o Sh.Tilak Ram r/o H.No.1954, Village Burail, UT,Chandigarh.

...Complainant

Versus

1. The New India Assurance Co. Ltd., SCO No.36-37, Sector 17-A, Chandigarh through its Manager/Authorized Signatory.

2^nd Address:

SCO No.2939-40, First Floor, Sector 22-C, Chandigarh.

2.    Hinduja Leyland Finance Ltd, Registered Office: Plot No.-21, Tower C (1-3 Floors), G Block. Bandra Kurla Complex, Bandra (E), Mumbai -400051 through its Managing Director/Authorised Signatory"

Corporate Office :-No.27-A, Developed Industrial Estate, Guindy. Chennai -600032 through its Managing Director/Authorised Signatory"

Email id:- compliance @hindujaleylandfinance.com

3.    Shree Motors, Plot No.385, Industrial Area, Phase-2, Chandigarh through its Authorized Signatory.

...Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Gaurav Bhardwaj, Advocate for complainant
	:	Sh.Deepak Chaudhary, Adv. for Sh.Pradeep Kumar, Adv. for OP No.1
		Sh.Hitender Kansal, Adv. for Sh.Puneet Tuli, Adv. for OP No.2. OP No.3 exparte.

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-     
   1. It transpires from the averments as projected in the consumer complaint that  the complainant is the registered owner of the three wheeler/auto rickshaw bearing registration No.CH-01-TB-8691 (hereinafter referred to as the ‘subject vehicle’) and the same was got insured with OP vide policy (Annexure C-2) which was valid from 25.02.2017 to 24.02.2018 for an IDV of ₹1,63,949/- by paying premium of ₹5808/-.  On 23.12.2018, during the currency of the policy, the subject vehicle while being driven by Sh.Manish Kumar met with an accident with the Maruti Swift car, being driven Sh.Davinder Singh, and the driver of the subject vehicle suffered multiple injuries and the subject vehicle was also badly damaged. The driver of the offending vehicle paid the medical expenses to the injured Sh.Munish Kumar.  The DDR No.058 dated 20.04.2018 (Annexure C-3) was also recorded by the police in this regard.   The subject vehicle was also having the contract carriage permit valid from 13.10.2017 to 12.10.2022 (Annexure C-4).  The complainant intimated the matter to the OP No.1  vide letter (Annexure C-5) and lodged the claim by submitting the claim form along with relevant documents etc. (Annexure C-6).  The subject vehicle was taken to the authorized workshop on 07.03.2018 and an estimate of ₹92,116/- (Annexure C-7) was provided by OP No.3.  The subject vehicle was inspected by the surveyor deputed by OP No.1 who declared it as a total loss but still the claim has not been settled as the same was taken by the police to police station after few days.  Thereafter, the complainant sent a legal notice dated 16.08.2018 to OP No.1, the copy of which is not available with him. The complainant again served OP No.1 with the legal notice dated 20.05.2022 which was replied by OP No.1 vide reply (Annexure C-8).  The subject vehicle was released on supurdari as per release order dated 07.12.2022 (Annexure C-9) of the Court.  Thereafter, the complainant sent two legal notices (Annexure C-10 & C-11) to OP No.1 to pay the claim. As the subject vehicle is under finance with OP No.2, OP No.2 is threatening the complainant to pay the outstanding amount but due to the aforesaid reasons, he is unable to pay installments.  The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were  requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs No.1 and 2 resisted the consumer complaint and filed their separate written versions.
   3. In its written version, OP No.1 took preliminary objections of maintainability and cause of action.  However, it is admitted that the complainant is the registered owner of the subject vehicle and the same was insured vide subject policy with it at the time of its accident on 23.02.2018 and was lying in the police custody for more than 4 ½ years till the complainant released the same on 07.12.2022. It is further alleged that the claim of the complainant is still pending for want of information/documents sought from him. On merits, it has been denied that the subject vehicle was assessed as total loss by the surveyor deputed by the insurance company. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   4. In its separate written version, OP No.2 took preliminary objections of maintainability and cause of action.  However, it is alleged that the complainant availed the loan facility from it which was advanced for the purchase of the subject vehicle. The complainant was requested several times to pay the installments on time but all in vain. A copy of the statement of accounts is Annexure R-2/2. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   5. OP No.3  was properly served and when OP No.3 did not turn up before this Commission, despite proper service, it was proceeded against ex-parte on 11.07.2023.
   6. In separate rejoinders, complainant reiterated 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, the contested parties tendered/proved their evidence by way of affidavit and supporting documents. However, as OP No.2 failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 11.07.2024 of this Commission, opportunity to file the same was closed.
3.        We have heard the learned counsel for the contesting parties and also gone through the file carefully.
   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, as is also evident from the copy of RC (Annexure C-1) and the same was insured with OP No.1 vide subject policy, which was valid 25.02.2017 to 24.02.2018 for an IDV of ₹1,63,949/-, as is also evident from the copy of policy (Annexure C-2) and the subject vehicle was met with accident with the offending vehicle on 23.12.2018 and the intimation with respect to the accident was also given to OP No.1 immediately after the accident and the claim form along with the relevant forms was also submitted to OP No.1, as is also evident from Annexures C-5 and C-6 and the complainant has submitted the estimate to the tune of ₹92,116/- to OP No.1, as is also evident from Annexure C-7 and the subject vehicle was inspected by the surveyor deputed by the OP No.1 on 23.03.2018 and the surveyor assessed the loss to the tune of ₹65,378/-, as is also evident from Motor Final Survey Report (Annexure OP-1/1) and the subject vehicle remained impounded in the custody of the police and it was only released on 07.12.2022, as is also evident from the release order (Annexure C-9) and OP No.1 has not settled the claim of the complainant even after the tendering of the copy of the D.L. of the driver of the subject vehicle with this Commission on 12.09.2024,  the case is reduced to a  narrow compass as it is to be determined if OP No.1 is unjustified in not settling the claim of the complainant and the complainant is entitled to the claim as prayed for, as is the case of the complainant or if OP No.1 is justified in not settling the claim of the complainant as the complainant has not got the subject vehicle released from the police for repairs and also that the D.L. of the driver was not given to OP No.1 for processing the claim as even the DL tendered by the complainant is found fake and complaint of the complainant,being false and frivolous, is not maintainable and is liable to be dismissed,  as is the defence of OP No.1.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the fact that if OP No.1 could not settle the claim of the complainant on account of the subject vehicle remained in police custody and for that purpose the Motor Final Survey Report dated 23.03.2018 (Annexure OP-1/1) is very important and the same is required to be scanned carefully.
   3. Perusal of the Motor Final Survey Report dated 23.03.2018 (Annexure OP-1/1) clearly indicates that immediately after receiving the intimation about the accident, OP No.1 deputed the Surveyor who assessed the liability of the company to the tune of ₹65,378/- after calculation of the depreciations and other taxes etc. As it is an admitted case of the parties that immediately after few days of the said assessment, the subject vehicle remained in the custody of the police for more than 4 ½ years and the complainant did not make any effort to get the same released from the court and the same was released only on 07.12.2022 (Annexure C-9) due to non-releasing of the subject vehicle from the police by the complainant, it cannot be held that there is no deficiency in service on the part of OP No.1 especially when it has come on record that the complainant had submitted the copy of the D.L. of the driver of the subject vehicle on 12.09.2024 with this Commission, in the absence of which, OP No.1 was not able to process the claim of the complainant.
   4. However, as it has come on record that there is no iota of evidence that the subject vehicle was total loss either at the time when the surveyor inspected the subject vehicle and submitted the Motor Final Survey Report dated 23.03.2018 (Annexure OP-1/1)  and also that the complainant himself submitted the estimate of repairs to the subject vehicle to the tune of   ₹92,116/-, which was considered by the surveyor in the Motor Final Survey Report dated 23.03.2018 (Annexure OP-1/1) and only thereafter the surveyor has assessed the loss at ₹65,378/-, it is unsafe to hold that the complainant is entitled for IDV of the subject vehicle to the tune of ₹1,63,949/-, rather he is entitled to the amount of ₹65,378/- as assessed by the surveyor and also that no evidence has been led that there is no ambiguity or infirmity in report of the surveyor. 
   5. 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.  Here we are strengthened by the judgment of Hon’ble Apex Court in Khatema Fibres Ltd. Vs. New India Assurance Company Ltd. & Anr., Civil Appeal No.9050 of 2018 decided on 28.9.2021 in which it was held as under:-

          “38.   A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. 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.”

 

Further, 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.”

6. Now coming to the quantum of relief, as it has come on record that the complainant has submitted the copy of the D.L. of the driver of the subject vehicle for the first time on 12.09.2024 with this Commission and despite of the fact that the surveyor has also asked him to submit the copy of the D.L. of the driver of the subject vehicle for verification and also that the subject vehicle remained in police custody for more than 4 ½ years, due to his negligence who could not get the same released and further that even after the submission of the D.L. of the driver of the subject vehicle on 12.09.2024 with this Commission, the OP did not process the claim of the complainant, to our mind, he is entitled to the amount of ₹65,378/- as assessed by the surveyor from 12.09.2024 onwards along with interest.  
7. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4.        In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed qua OP No.1 and OP No.1 is directed as under :-
   1. to pay ₹65,378/-  to the complainant  alongwith interest @ 9% per annum (simple) from 12.09.2024 onwards
   2. to pay ₹25,000/- 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 the OP No.1 within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses. It is, however, made clear that the financier (OP-2) shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any.
6.        However, the consumer complaint against OP Nos.2 & 3 stands dismissed with no order as to costs as no cause of action has been proved against them
7.        Pending miscellaneous application(s), if any, also stands disposed off.
8.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/12/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member