DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 2 of 1.1.2008<br /> Decided on : 10.4.2008 <br /> <br /> Balbir Singh S/o Jagir Singh S/o Labh Singh, R/o Village Ghuman Kalan, Tehsil Talwandi Sabo, District Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1.The New India Assurance Company Limited, Registered Office, New India Assurance Building 87, Mahatma Gandhi Road, Fort, Mumbai-400001 through its Managing Director.<br /> 2.The New India Assurance Company Limited, having its Branch at Bathinda through its Branch Manager.<br /> 3.The New India Assurance Company Limited having its Divisional Office No. 1, Bharat Nagar Chowk, Ferozepur Road, Ludhiana through its Divisional Manager.<br /> 4.Tata Finance Limited, G.T Road, Bathinda through its Manager.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh.Lakhbir Singh, President<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. Vinod Garg, counsel for opposite parties No.1 to 3<br /> Opposite party No. 4 exparte <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs. 1,02,712/- alongwith interest @ 12% P.A from the date of lodging the insurance claim till payment; Rs. 2,000/- on account of salary of Cleaner; Rs. 20,000/- for loss in business as the truck has remained unused for 20 days; Rs. 50,000/- as damages on account of mental tension, harassment and botheration, besides costs of the complaint.<br /> 2. Briefly put, the case of the complainant is that he is the owner of Ashok Leyland Tusker (Truck) bearing registration No. RJ-13-G-8986 which was duly insured with opposite party No.2 and on 15.9.2006, an Insurance Policy No. 360100/31/ 06/-1/00002255 valid from 15.9.2006 to 14.9.2007 was obtained. Full insurance premium of Rs. 15,375/- was paid to opposite party No.1. Vehicle was hypothecated with opposite party No. 2 (Infact opposite party No.4) for Rs. 4,50,000/-. He is paying Rs. 14,486/- per month as instalment. 20 instalments have been paid and 15 still remain to be paid. On 25.7.2007, he was taking the truck from Rampura to Maur Mandi. When it reached near village Dhadde, some technical fault in the steering had cropped up due to which vehicle had gone out of control. It had gone in the ditches as a result of which huge damage was caused to it. DDR No. 9 was got recorded in Police Station Balianwali. Intimation of the accident was given to opposite party No.1. Surveyor was appointed for assessment of the loss. Under the oral instructions of the officials of opposite party No.1, vehicle was got repaired to some extent from Sh. Avtar Singh Mechanic of Birdi Body Repairing Works, Maur Mandi. Some repairs were got done from Sh. Lakhbir Singh Mechanic of Kalshi Repairing Works, Maur Mandi. Rs. 10,250/- and Rs. 3,300/- were paid to these Mechanics respectively. For repair of the vehicle spare parts were purchased from Kundan Motors, Guru Kanshi Motor Store worth Rs. 61,462/-. New Battery was purchased for Rs.7,500/- from R.S Battery. Rs. 2,700/- were paid to Sh. Jaspal Singh of Bajaj Recovery Service, Sirsa and Rs. 1,700/- to Darshan Singh of Guru Ram Dass Engineering Works, New Gulabi Bagh, Moga for repairs. Rs. 7,000/- were paid to Baldev Singh of New Ghali Repairing Works, Moga and Rs. 7,800/- to M/s. Vishkarma Motor Works, Maur Mandi. Spare parts were also purchased from R.S Batteries House worth Rs. 10,810/-. In all, Rs. 61,462/- have been spent for purchase of spare parts and Rs. 40,250/- have been paid to different Mechanics. Bills were submitted and other formalities were completed as per requirement of opposite party No.1. Claim No. 36010031-0 70 190000115 was lodged. Allegation of the complainant is that Surveyor of the opposite parties was demanding illegal gratification for getting sanctioned the full amount. He (complainant) could not pay the amount. In these circumstances, he might have reduced the claim amount. No proper inquiry or valid verification was done by the Surveyor/Investigator regarding the exact loss and the spare parts purchased by him. Letter dated 19.11.2007 was received by him whereby a sum of Rs. 32,364/- was offered out of the claim amount of Rs. 1,04,712/-. He was further asked to deposit Rs. 2,800/- as value of the salvage and Rs. 409/- as short charged premium. It is added by him that this letter is correct to the extent of Rs. 29,155/- (Rs.32,364/- minus Rs. 2,800/- & Rs. 409/-). He assails this letter as illegal, null and void on the grounds that it does not disclose about the remaining amount of the claim. Truck remained unused from 25.9.2007 i.e. the date of accident till it was delivered to him by the Mechanic after its repairs i.e. 15.10.2007. He has to pay the salary to the Cleaner for two months and instalments to the financier.<br /> 3. Opposite parties No. 1 to 3 filed reply of the complaint taking legal objections that complaint has been filed to injure their reputation; intricate questions of law and facts are involved which require voluminous evidence and as such, remedy, if any, lies only in civil court; complainant has concealed material facts from this Forum as the loss assessed by Er. Rakesh Kumar Gupta was duly agreed to and accepted by him and that he gave his consent letter to the net loss assessed at Rs. 32,365/-; complaint has become infructuous as they have already paid the amount vide cheque No. 010414 dated 4.1.2008 for Rs. 29,164/- towards full and final settlement of the claim vide letter dated 7.1.2008 after adjusting salvage value of Rs. 2,800/- and Rs. 409/- out of Rs. 32,365/-; policy relates to commercial vehicle being used for commercial purposes and as such, this complaint is not maintainable; complainant has no locus-standi and cause of action to file it and complaint is false and frivolous. On merits, they admit that complainant had obtained insurance policy from them. On receipt of intimation regarding the accident, Sh. P.D Goyal Surveyor, Engineer and Investigator was deputed for conducting the spot survey which was conducted on 26.7.2007. Detailed spot survey report dated 28.7.2007 was submitted by him. Thereafter, Er. Rakesh Kumar Gupta was appointed for conducting the final survey and assessing the loss to the vehicle. They deny that complainant got the vehicle repaired at their instructions. He had submitted estimate No.70 dated 1.8.2007 for Rs. 92,234/- concerning repairs from M/s. Sidh Motor ( P) Ltd. Thereafter, he submitted bills of different persons alleging repairs etc. being carried out by them. Some of the bills are undated, altered and some are of exaggerated value. They are not binding upon them. Claim is always subject to terms and conditions of the policy and provisions of Indian Motor Tariff. Vehicle is of the manufacturing year 2003. Claim is subject to depreciation. They deny that surveyor had demanded illegal gratification and that he has made efforts to reduce the claim. Sh. Rakesh Kumar Gupta had conducted the survey at M/s. Vishvkarma Motor Works, Maur on 1.8.2007 and 11.8.2007. Vehicle was thoroughly inspected by him. After inspection of the parts, loss was assessed at Rs.32,365/- vide his final survey report dated 12.9.2007 after applying depreciation and other provisions. They deny that complainant is entitled to receive Rs. 1,04,712/-. Since the complainant did not deposit any salvage or Rs.409/-, a sum of Rs. 29,164/- has been paid to him out of Rs. 32,365/-. They deny the remaining averments in the complaint.<br /> 4. Opposite party No. 4 was served for 8.2.2008. No-one came present on its behalf. Accordingly, it has been proceeded against exparte.<br /> 5. In support of his allegations and averments in the complaint, Balbir Singh complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.2), photocopy of bills (Ex.C.3 & Ex.C.6 to Ex.C.10), photocopy of DDR dated 29.7.2007 (Ex.C.4) and photocopy of Contract Details (Ex.C.5).<br /> 6. On behalf of opposite parties No. 1 to 3, reliance has been placed on affidavits of S/Sh. P.D Goyal and Rakesh Kumar Gupta, Surveyors and that of P.K. Jain, Senior Divisional Manager which are Ex.R.18, Ex.R.19 and Ex.R.22 respectively, photocopy of report dated 28.7.2007 (Ex.R.1), photocopies of photographs (Ex.R.2 to Ex.R.6, Ex.R.14 & Ex.R.15), photocopy of two pages of estimate (Ex.R.7), photocopy of final survey report dated 12.9.2007(Ex.R.8), photocopies of letters dated 19.11.2007, 7.1.2008, 27.3.2007 & 14.3.2008 (Ex.R.16, Ex.R.17, Ex.R.24 & Ex.R.25), photocopy of insurance policy (Ex.R.20), copy of certificate of insurance (Ex.R.21), photocopy of Gists of Revised India Motor Tariff (Ex.R.23), photocopy of Contract Details (Ex.R.26) and photocopies of five pages of Repayment schedule (Ex.R.27). <br /> 7. We have heard the learned counsel for the complainant and opposite parties No. 1 to 3. Apart from this, we have gone through the record and considered the written arguments submitted on behalf of opposite parties No. 1 to 3.<br /> 8. Complainant had got insured his Ashok Leyland Tusker (Truck) bearing registration No. RJ-13-G-8986 with the opposite Insurance Company. It was hypothecated with opposite party No.4. Copy of the Insurance Policy is Ex.R.20. It had met with an accident on 25.7.2007 and intimation regarding it was given by the complainant to the opposite Insurance Company which had deputed Sh. P.D Goyal as spot Surveyor who has submitted his report Ex.R.1 and had taken photographs copies of which are Ex.R.2 to Ex.R.6. Whatever damage to the vehicle was observed has been recorded in Ex.R.1. Opposite parties No. 1 to 3 had deputed final surveyor Er. Rakesh Kumar Gupta. Copy of his final report is Ex.R.8. Photographs of the vehicle were also taken by him and copies of them are Ex.R.14 & Ex.R.15. Sh. Rakesh Kumar Gupta has submitted his affidavit Ex.R.19. He has assessed the loss at Rs. 32,365/-. Salvage value has been assessed by him as Rs. 2,800/-. <br /> 9. Contention of Mr. Gupta learned counsel for the complainant is that complainant paid Rs.61,462/- for purchase of spare parts and Rs. 40,250/- to the different Mechanics. In our view, there is no consistency about the amount claimed by the complainant. At three places his claim is for Rs.1,04,712/-, Rs.1,01,712/- and Rs. 1,02,712/-. Evidence does not establish stance of the complainant regarding the averment that the amount of Rs. 61,462/- was spent towards purchase of spare parts and Rs. 40,250/- were paid to different Mechanics. Ex.C.3 & Ex.C.6 to Ex.C.10 are the copies of various bills. No weight can be attached to Ex.C.3. It does not have any date. It is for Rs. 1,800/-. It does not bear the signatures of the person who has issued it. There is nothing in it that amount of Rs. 1,800/- recorded in it was actually received from the complainant. It is merely an estimate of Rs. 1,800/- and not bill for repairs. Ex.C.6 to Ex.C.10 are the copies of the bills dated 27.7.2007, 30.7.2007, 30.7.2007, 1.8.2007 & 6.8.2007 for Rs. 2,700/-, Rs.1,700/-, Rs.3,300/-, Rs.10250/- and Rs.7,000/- respectively. There is no document of the complainant showing that opposite parties No. 1 to 3 had given consent that the spare parts be purchased from the shops mentioned in them and the vehicle be got repaired from the workshops recorded in them. Ex.C.6 to Ex.C.10 are not the copies of the bills issued by the authorised dealers of Ashok Leyland vehicles. The total amount of Ex.C.3, Ex.C.6 to Ex.C.10 comes to Rs. 26,750/-. Complainant has failed to place on record the remaining bills regarding the purchase of the spare parts and the payments to the Mechanics for the total amount as has been alleged in the complaint.<br /> 10. Vehicle is of the manufacturing year of 2003. As is clear from Ex.R.1, date of registration is 7.10.2003. Similarly in Ex.R.8 the date of registration of this vehicle has been recorded as 7.10.2003. Spot survey report Ex.R.1 submitted by Sh. P.D Goyal gets corroboration from his affidavit Ex.R.18. Copy of the report of final surveyor namely Sh. Rakesh K Gupta is Ex.R.8. According to it, net assessed loss is Rs. 32,365/-. His this report gets support from Ex.R.19. Loss has been assessed by him keeping in view the age of the vehicle and after applying terms and conditions of the policy copy of which is Ex.R.20, the India Motor Tariff and copy of the Gists of relevant two pages of revised I.M.T Ex. R.23. Depreciation has been considered @ 25% on metal parts and 50% on rubber parts which is correct and justified. Complainant did not prefer any objection against the reports of spot surveyor and the final surveyor. Report of the surveyor who is an independent agency and is qualified and licensed to carry out the work, cannot be brushed aside lightly. Report has to be given due importance and weightage unless there is overwhelming evidence to the contrary. In this view of the matter, we get support from the observations of the Hon'ble National Commission in the cases of Sarvalaxmi Marines Vs. Oriental Insurance Co. Ltd. & Another-2007(3)CLT-559,Oriental Insurance Company Ltd. Vs. Mehta Wool Store-2007(3)CLT-530 & Anuj Aggarwal Vs. United India Insurance Co. Ltd.-2005(3)CLT-419. Similar view has been held in the case of New India Assurance Co. Ltd. Vs. S.P Rajendran-2007(3)CLT-479. In these circumstances, report of Sh. Rakesh K Gupta is accepted.<br /> 11. Apart from the above, there is another reason for acceptance of the report of Sh. Rakesh K Gupta. Complainant is estopped from saying that his claim for damage to the vehicle should have been allowed as per averments in the complaint. Complainant gave consent letter, copy of which is Ex.R.12, agreeing to the net loss of Rs.32,365/-. Letter has been signed by him. Contention of the learned counsel for the complainant that this letter is manipulated one, is not tenable. There is nothing in the averments of the complaint or other evidence that consent letter was got signed from him by way of playing fraud or exercising undue influence and coercion. Final surveyor in his report, copy of which is Ex.R.8, has also made mention of this consent given by the complainant regarding the net loss to the tune of Rs. 32,365/-. This consent is towards full and final settlement of the claim. When it is so, complainant is estopped from claiming the amount more than Rs. 32,365/-. In this view of the matter, we get support from the observations of their Lordship of Hon'ble Supreme Court in the case of United India Insurance Co. Vs. Ajmer Singh Cotton & General Mills-AIR-1999 Supreme Court 3027. Letter was written by the opposite Insurance Company to the complainant that his claim has been approved for Rs.32,365/- subject to deposit of salvage the value of which has been assessed as Rs.2,800/- and recovery of short charged premium of Rs. 409/-. Admittedly, he did not deposit the salvage nor proved that there was no shortage of premium to the tune of Rs. 409/-. Accordingly, amount of Rs. 2,800/- and Rs. 409/- has been deducted from the net loss assessed. There is no dispute about the fact that this vehicle was hypothecated by the complainant with opposite party No.4. Accordingly, amount of Rs. 29,164/- has been sent in full and final settlement as is evident from the letter, copy of which is Ex.R.17. This amount has been received and adjusted in the account of the complainant with opposite party No.4. Complainant cannot say that the net assessed paid amount has not been paid to him personally, particularly when truck stands hypothecated with opposite party No.4. <br /> 12. In the premises written above, no deficiency in service on the part of opposite parties No. 1 to 3 is established. Complaint being devoid of merits is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties free of cost. File be consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 10.4.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br />