Haryana

Karnal

CC/75/2021

M/s S.K. Engineers And Contractor - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Prikshit Bhargav

23 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 75 of 2021

                                                        Date of instt.08.02.2021

                                                        Date of Decision:23.08.2024

 

M/s S.K. Engineers and Contractor, 166, Sector-5, Urban Estate, Karnal through its proprietor Shri Sandeep Kumar. Aadhar card no.6993 5667 9332. Mobile no.93557 74459.

                                                                        …….Complainant.

                                              Versus

 

The New India Assurance Company Ltd. G.T. Road, Karnal through its Divisional Manager.

 

                                                                        …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri  Jaswant Singh……President.    

      Ms. Sarvjeet Kaur…….Member

 

 Argued by: Sh. Prikshit Bhargav, counsel for the complainant.

                    Shri Rohit Gupta, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

            The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured his vehicle Model 2017 i.e. Tipper Trailor no.HR-45-C-5455 with the OP, vide policy no.71050031190350004419, valid from 05.11.2019 to 04.11.2020 by paying premium of Rs.73,964/- to the OP. The said vehicle was got financed from ICICI Bank Ltd. and the loan installment is Rs.78744/-per month. The complainant has been regularly paying the loan installments. The said vehicle met with an accident on 29.06.2020 and suffered extensive damage. The complainant informed the OP regarding the said accident and OP deputed its surveyor to inspect the damaged vehicle of the complainant. The said surveyor inspected the vehicle of complainant and asked the complainant to get its repaired and assured that after the submission of bills of repairs by the complainant with the OP, the claimed amount will be paid to him. On the assurance of the surveyor of the OP, complainant took his vehicle to Amba Motors, NH 44, opposite Kambopura, Karnal for its repair. However, it was told to the complainant by the officials of said Amba Motors that some major parts of the trailor in question are not available with them and they will repair the tipper of the vehicle to some extent with the parts, which are available with them. Complainant paid Rs.3,07,737/- on account of repair charges to said Amba Motors.

2.             It is further alleged that major parts of the trailor of the vehicle were not available with Amba Motors and therefore, complainant took his vehicle to Khimji Trailer Pvt. Ltd. near RHCO Industrial Area, Shahpura, Jaipur, Rajasthan for its remaining repairs and spent Rs.15,000/- for carrying the vehicle to abovesaid Khimji Trailer and one surveyor of the OP also inspected the vehicle at Jaipur. The charges for the said repairs came to Rs.7,65,000/-, which were duly paid by the complainant. The remaining damaged sale parts of the vehicle were sold for Rs.80,000/-and the said amount was also given/paid to OP.  After getting its vehicle repaired, the complainant submitted all the bills of repair with the OP and lodged its claim for Rs.10,87,737/- with the OP. The complainant also completed all other formalities as required by the OP but OP did not pay the claim, rather only offered Rs.5,57,737/-. The complainant requested the OP to pay the entire claim amount of Rs.10,87,737/- besides the amount of two EMIs of Rs.1,57,488/- but the OP is adamant and has refused to pay the amount. Due to this act and conduct of OP, the complainant has also suffered mental pain and agony. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

3.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction;  cause of action; locus standi and concealment of true and material facts. The present complaint is premature. The complainant was requested by the OP so many times to provide the required documents. Since the complainant has not submitted the required documents, the OP cannot take any further action. It is further pleaded that complainant had availed the services of the OP for commercial purpose. Hence, complaint is beyond the scope of Consumer Protection Act.  On merits, it is pleaded that OP has vide Goods Carrying Vehicle Package Policy Certificate cum Policy Schedule insured vehicle Ashoka Leyland, Model 4923 bearing registration no.HR-45C-5455 for the period from 05.11.2019 to 04.11.2020 in the name of the complainant. The complainant had intimated a claim on 03.07.2020 with the OP on account of alleged loss/damage of vehicle. The said claim has been duly processed by way of appointment of Mr. Rajat Kumar, an IRDA approved independent Insurance Surveyor & Loss Assessor for conducting the spot survey, who had conducted the spot survey and submitted Motor (Spot) Survey Report dated 03.07.2020 and Er. J.K. Sharma, an IRDA approved independent Insurance Surveyor and Loss Assessor for conducting the final survey and assessment of loss of vehicle, who had conducted the survey of the above vehicle at M/s Amba Motors Karnal, assessed the loss and submitted Motor Survey Report final dated 08.09.2020 respectively. Thereafter, complainant had shifted the vehicle from M/s Amba Motors, Karnal to M/s Khemji Trailer Pvt. Ltd. Shahapura (JAipura) for the repair of trailer of the vehicle. An independent IRDA approved Insurance Surveyor and Loss Assessor namely Mr. Manoj Bhargava, Automobile Engineer, Jaipur has been appointed for conducting the survey and assessment of loss of trailer of the said vehicle, who had conducted the final survey of the trailer at M/s Khemji Trailer Pvt. Ltd. assessed the loss and submitted motor Final Survey Report dated 28.08.2020. The claim of the complainant stands ‘No Claim’ and the claim file has been closed by the OP, vide letter dated 11.01.2021 as it has been observed on perusal of the claim documents while processing the claim that the complainant have neither complied with the claim formalities nor submitted the required documents i.e. Trolley invoice, Repair Bill of Trolley, KVS, TP Affidavit, discharge voucher duly signed despite of various reminders sent by the OP to the complainant. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC Ex.C1, copy of receipt of Trailer Ex.C2, copy of driving licence Ex.C3, copy of insurance policy Ex.C4, copy of Route Permit Ex.C5, copy of National Permit Ex.C6, copy of authorization certificate Ex.C7, copy of application dated 30.06.2020 Ex.C8, copy of RC of GST Ex.C9, copies of estimate Ex.C10 to Ex.C12, copy of letter dated 28.08.2020 Ex.C13, quotations Ex.C14 to Ex.C15, copies of emails Ex.C16, Ex.C17  and Ex.C19  Ex.C36, copy of test report dated 17.06.2017 Ex.C18, copies of Tax Invoice Ex.C37 and Ex.C38, copy of performa invoice Ex.C39 and Ex.C40, copy of email Ex.C41, copy of insurance policy Ex.C42, copy of statement of account Ex.C43 and Ex.C44, copy of Re-claim from Ex.C45, photographs Ex.C46 to Ex.C87, copy of statement of account Ex.C88 and closed the evidence on 04.01.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Kamal Kishore Sachdeva, Regional Manager Ex.OP1/A, affidavit of Rajat Kumar Ex.OP1/B, affidavit of Er. J.K. Sharma, Surveyor and Loss Assessor Ex.OP1/C, affidavit of Manoj Bhargava, Automobile Engineer Ex.OP1/D,  copy of Motor Spot Survey Report dated 03.07.2020 Ex.OP1, copy of Motor Survey Report final dated 08.09.2022 Ex.OP2, copy of Motor Final Survey Report dated 28.08.2022 Ex.OP3, copy of Re-inspection Report Ex.OP4, copies of letters dated 20.11.2020 and 11.01.2021 Ex.OP6 and Ex.OP7, copy of insurance policy alongwith terms and conditions Ex.OP8 and closed the evidence on 21.03.2023 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle as well as EMIs with the OP. During the subsistence of insurance policy, the vehicle in question met with an accident and badly damage. The intimation in this regard was given to OP and on receipt of intimation, OP deputed its surveyor to inspect the damaged vehicle. Complainant took its vehicle to Amba Motors, Karnal for its repair. Complainant paid an amount of Rs.3,07,737/- on account of repair charges to said Amba Motors. He further argued that the major parts of the trailor of the vehicle were not available with Amba Motors and therefore, complainant took his vehicle to Khimji Trailer Pvt. Ltd. near RHCO Industrial Area, Shahpura, Jaipur, Rajasthan for its remaining repairs and spent Rs.15,000/- for carrying the vehicle to abovesaid Khimji Trailer and one surveyor of the OP also inspected the vehicle at Jaipur. The complainant paid an amount of Rs.7,65,000/-, to Khimji Trailers Pvt. Ltd. After getting its vehicle repaired, complainant lodged the claim alongwith all the bills and required documents to the OP and requested to pay Rs.10,87,737/- but OP did not pay the claim, rather only offered Rs.5,57,737/-. The complainant requested the OP to pay the entire claim amount of Rs.10,87,737/- besides the amount of two EMIs of Rs.1,57,488/- but OP refused to pay the same and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that on receipt of intimation with regard to the damaged of the vehicle in question, OP appointed Mr. Rajat Kumar, an IRDA approved independent Insurance Surveyor & Loss Assessor for conducting the spot survey, who had conducted the spot survey and submitted his report dated 03.07.2020.  Er. J.K. Sharma, an IRDA approved independent Insurance Surveyor and Loss Assessor also appointed and submitted his report dated 08.09.2020. Complainant had shifted the vehicle from M/s Amba Motors, Karnal to M/s Khemji Trailer Pvt. Ltd. Shahapura (Jaipura) for the repair of trailer of the vehicle. An independent IRDA approved Insurance Surveyor and Loss Assessor Mr. Manoj Bhargava, Automobile Engineer, Jaipur has been appointed for conducting the survey and assessment of loss of trailer of the said vehicle, who conducted the final survey of the trailer at M/s Khemji Trailer Pvt. Ltd. and submitted his report dated 28.08.2020. The claim of the complainant has been closed by the OP, vide letter dated 11.01.2021 on the ground that the complainant have neither complied with the claim formalities nor submitted the required documents. Thus, there is no deficiency in service and unfair trade practice on the part of the OP and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant got financed the vehicle in question from ICICI Bank Ltd. It is also admitted that vehicle in question and EMIs of the loan amount were insured by the OP. It is also admitted that during the subsistence of the insurance policy vehicle in question met with an accident. It is also admitted that the insured declared value of the vehicle in question was  Rs.34,00,002/-.

12.           The claim of the complainant has been closed by the OP, vide letter Ex.OP7 dated 11.01.2021 on the grounds, which are reproduced as under:-

“1.    Inspite of letters/reminders sent you have  not  with complied the required papers/documents.

2.     Are you have withdrawn your claim by giving your consent through your letter dated 11.01.2021 we are closing your claim file as ‘No Claim’.

3.     We are closing your claim file on account of the following reasons:-

        The required documents i.e. Trolley invoice, Repair Bill of Trolley, KVS, TP Affidavit, discharge voucher duly signed despite of various reminders sent by the OP to the complainant not submitted.

        Closed- No Claim-Not pursued by insured.

13.           The claim of the complainant has been closed by the OP on the abovesaid ground.    

14.            The complainant has placed on file, copies of demanded documents by the OP, except Trolley invoice and consent letter. When the complainant has placed on file, the copies of aforesaid documents as to why he would have not supplied these documents to the OP. It is also unbelievable that an insured whose personal interest is involved for such huge amount why he will not supplied the documents to the insurance company for getting his claim amount and will indulge himself in unwanted litigation. OP wants to pay only Rs.5,97,737/- and complainant was not ready for said amount so he has refused to submit the consent letter.  Hence, in view of the above, we found no substance in this contention of the OP.

 15.          In the present case on receipt of intimation, the claim has been duly processed by the OP by way of appointed Mr. Rajat Kumar (Mech. Engineer) IRDA approved Independent Insurance Surveyor and Loss Assessor for conducting the spot survey, who conducted the survey of the vehicle and submitted his report Ex.OP1 dated 03.07.2020. Thereafter, OP appointed Er. J.K. Sharma IRDA approved Independent Insurance Surveyor and Loss Assessor, who also conducted the survey of the vehicle in question and submitted his survey report Ex.OP2 dated 08.09.2020. Thereafter, OP appointed Shri Manoj Bhargava Automobile Engineer, Jaipur who also conducted the survey of the vehicle and submitted his final survey report Ex.OP3 dated 28.08.2020.

16.           It is evident from the photographers of the vehicle Ex.C46 to Ex.C87 that vehicle in question has been badly damaged in the accident. Shri Rajat Kumar Surveyor of the OP has not assessed the loss in his report Ex.OP1 and remarks in his report that nature and extent of damaged are related with the cause, nature and circumstances of the accident.

17.           Thereafter, OP has appointed other Surveyor namely Er. J.K. Sharma Surveyor and Loss Assessor visited to Amba Motors, Karnal and inspected the vehicle and assessed the net loss to the tune of Rs.2,96,900/-, vide report Ex.OP2 but the complainant has paid Rs.3,07,737/- to Amba Motors, vide invoice Ex.C37.  There is not a huge difference in the amount. So the survey report will prevail. Hence, surveyor of OP has rightly assessed the loss for the tune of Rs.2,96,000/- instead of Rs.3,07,737/- paid by complainant.

18.           Thereafter, due to non-availability of the remaining parts, the vehicle in question was shifted to Khimji Trailer Private Ltd., Jaipur (Rajasthan) with intimation of the OP. OP appointed Shri Manoj Bhargav, Automobile Engineer and who visited to abovesaid workshop and inspected the vehicle and assessed the loss to the tune of Rs.2,01,709/- only, vide survey report Ex.OP3 but complainant has paid Rs.7,65,000/- on account of repair of the vehicle. In the surveyor report Ex.OP3, surveyor has assessed the original estimate loss to the tune of Rs.9,98,141/-but assessed the net loss only Rs.2,01,709/-. On perusal of the surveyor report, the surveyor of the OP has not justified the deductions made by him in his report. Such act is totally arbitrarily and unjustified. The said deduction is based on presumption and assumption. The surveyor’s report in this regard is thus arbitrary, unjustified, biased, based on presumptions and assumptions and it cannot be the last word for the determination of actual loss. In this regard, we are fortified with the observation of the Hon’ble Supreme Court of India in case law titled as New India Assurance Company Limited vs. Pradeep Kumar (2009 (6) SCALE, 253) wherein it was held that “The surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be debarred from, it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” This proposition of law was followed by the Hon’ble Apex Court in Sikka Papers Limited vs. National Insurance Company Ltd. & Ors. (III (2009) CPJ 90 (SC). The Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission, Raipur in case titled as Oriental Insurance Co. Ltd. & Anr. Versus Pukhraj Bothra, IV (2004) CPJ 615 has held that “it is true that normally the estimate of surveyor regarding loss has to be given due consideration but it cannot be said to be the last word for determination of actual loss”. The above said authorities are fully applicable to the facts and circumstances of the present case. In the present case, we are also of the considered opinion that the surveyor of OP namely Manoj Bhargava has assessed the loss for favouring the OPs and therefore same cannot be given more weightage.               

19.  

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.   

20.           It is evident from the insurance cover note Ex.C4, complainant got insured loan EMIs and in this regard he has paid extra premium. This fact has not been denied by the OP. The vehicle in question remained under repair more than two months. The EMIs is of Rs.78,744/-. Thus the complainant is also entitled for two EMIs amount i.e. Rs.1,57,488/-.

21.           The complainant sold the damaged parts of the vehicle in question for the tune of Rs.80,000/-. The complainant has alleged that the said amount has been paid to the OP but there is nothing on the file that the said amount has been paid to the OP by the complainant. Hence, the OP is entitled to deduct the said amount from the awarded amount.

22.           Keeping in view that the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that acts of the OP while closing the claim of the complainant amounts to deficiency in service and unfair trade practice, which is otherwise proved genuine one.

23.           Complainant has claimed Rs.12,45,225/- but he is entitled for Rs.11,38,488/- only. i.e. Rs.2,96,000/- as loss assessed by the surveyor of the OP namely Rajat Kumar, vide report Ex.OP1, Rs.7,65,000/-paid by the complainant to Khimji Trailer Private Ltd. Jaipur vide invoice Ex.C40 and Rs.1,57,488/- of two EMIs and less Rs.80,000/- scrap sold by complainant.

25.           In view of the above discussion, we allow the present complaint and direct the OP to pay Rs.11,38,488/-  (Rs. eleven lakhs thirty eight thousand four hundred eighty eight only) alongwith interest @ 9% per annum from the date of filing of the complaint till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:23.08.2024

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

                        (Sarvjeet Kaur)

                          Member