1.                 This is an appeal filed by the appellant (complainant) against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 10.2.2009 passed in complaint case No.1082 of 2008 : Mrs. Paramjit Kaur Vs. Oriental Insurance Company Limited and others.

2.                     Briefly stated the case of the complainant is that She purchased a Toyota Corolla from OP No.2 on 12.10.2007, the ex-showroom price of which was Rs.10,04,639/-. The complainant, it was averred, got the said car insured by extending the insurance of previous car from the OP No.1 vide Cover Note Annexure C-2. It was next averred that a fresh insurance was taken vide Annexure C-3, which was valid from 28.2.2008 to 27.2.2009. Unfortunately, the vehicle met with an accident on 8.4.2008 when it was being driven by the complainant’s husband Sh. Sikander Singh between Shahbad and Kurukshetra consequent to which, the vehicle was extensively damaged. Due information was given to OP No.1 through Sh.Vijay Bhan, contact person of OP No.1, on whose advice, the damaged vehicle was towed to OP No.2 for repairs. As per the complainant, OP No.1 appointed OP No.3 as the Loss Assessor and a formal intimation was also taken by the OP No.1.  It was averred that the complainant requested the OPs to declare the vehicle to be “Total Loss” as the repairs were not possible. It was next averred that OP No.3 preferred to get the car repaired rather declaring it as a total loss. An estimate of repairs (C-7) amounting to Rs.7,18,983/- including taxed, under the instructions of the Surveyor appointed by OP No.1 was prepared. Subsequently, the Complainant through her husband, it was averred, again requested the OPs to declare the vehicle to be Total Loss, as the estimate of repairs was very close to its total insured value of Rs.8.50 lacs, but to no avail.  Ultimately, the husband of the Complainant allowed the car to be repaired vide repair order dated 3.5.2008 (C-8). It was further averred in the complaint that the complainant was informed by OP No.2 that an additional estimate of repair had been given to the OP No.3 (C-9), in which the additional cost of repairs of the vehicle was stated to be supplementary service estimation of Rs.2.20,395/- or Rs.2,47,944/- including taxes making the repair cost of the vehicle to around Rs.10.00 lacs, which was nearly the cost price of a new car and higher than insured value. The complainant, it was alleged, in the background of this supplementary estimate requested OP No.1 to declare her vehicle to be a “Total Loss” but again to no avail. Finally, the car was repaired and an Invoice dated 9.7.2008 amounting to Rs.8,43,241/- was furnished to the Complainant (C-11), wherein it was clearly mentioned that the repair had been done on approval and instructions of Oriental Insurance Co., through Mr. Kailash Chander, Surveyor. Before taking the possession of the vehicle on 9.7.2008, the complainant after testing the vehicle, was shocked to notice that the brakes of the vehicle would not apply and loud noises were coming from the engine and thus, the vehicle was not taken back and a letter dated 11.7.2008 (C-12) was written to OP No.1.  On receiving the bill of repairs of Rs.8,43,241/- from OP No.2, the complainant, it was averred, wrote letter dated 15.7.2008 (C-13) to OP No.1 stating that the said insured value be paid. The complainant also sent reminders to pay the insured value but to no avail.  Alleging the above acts of OPs as deficiency in service on their part, the complainant had filed the complaint.

3.                     The version of OP No.1 is that the accident was minor with repairable damages to the car in question and OP No.1 was not informed immediately after the accident. It was pleaded that the intimation of accident came much later i.e. on 18.4.2008. It was further asserted that the Surveyor after inspecting the vehicle concluded that the vehicle was repairable and was not a case of total loss and the Complainant was convinced with the finding of the Surveyor, where after, she got the vehicle repaired. It was next pleaded that the vehicle was repaired by OP No.2 absolutely in roadworthy condition and the supplementary assessment could be seen from Annexure R-2, wherein, an additional assessment of loss of metallic and rubber/plastic parts was made, which was assessed at Rs.1,20,452.63. As per OP No.1, the figure shown by the Complainant was not relevant to the context and his vehicle was repaired to A-one condition by OP No.2. OP No.1 further asserted that it was fully satisfied with the repairs of the vehicle as there was no problem whatsoever with the vehicle. As per this OP, the total loss assessed by the Surveyor comes to Rs.5,44,729.07P, which was only payable to the complainant and the remaining amount was to be borne by the insured. Pleading no deficiency in service on its part, OP No.1 prayed for dismissal of the complaint. 

4.                     The version of OP No.2 is that its job was only to repair the vehicle and the same had been done. It was pleaded that the vehicle in question was lying in their workshop since 9.7.2008 as the Complainant herself refused to take the delivery of the same and further no payment was made by her. It was pleaded that the vehicle was in perfect road worthy condition and had been repaired as per the required standards set by the manufacturing company. Pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint. 

4.                     OP No.3 did not appear despite service and it was proceeded against exparte by the learned District Forum.

6.                     The learned District Forum, in its analysis of the complaint, recorded in the impugned order that the report of Surveyor was quite exhaustive and there was no mala-fide in it.  It further recorded that the Surveyor’s report was an important piece of document, which could not be brush aside as held in several cases by the Hon’ble Supreme Court as well as Hon’ble National Commission. Thus, the learned District Forum finds no ambiguity in the report of the Surveyor and accepted the same. As per the learned District Forum, even the affidavit filed by the Surveyor had not been controverted or rebutted by the complainant. Thus, in view of its observations, the learned District Forum held that the complainant had miserably failed to prove any deficiency in service on the part of OP Insurance Company. Finding on merit in the complaint, the learned District Forum dismissed the same.

7.                     Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal. The appeal having been taken on board, notices were sent to the respondents and record of complaint case was summoned from the District Forum concerned. Sh. Rajesh Garg, Advocate appeared on behalf of the appellant; Sh. Aftab Singh, Advocate  appeared for OP No.1 whereas Sh. Gaurav Bhardwaj, Advocate represented OP No.2. None appeared on behalf of OP No.3 despite service who was proceeded against exparte vide order dated 17.4.2009.

8.                     Sh. Rajesh Garg, Advocate learned counsel for the appellant/ complainant submitted that it was a clear case of a vehicle having suffered total loss but the surveyor with malafide intentions did not declare it so. He further submitted that the vehicle had met with such a serious accident that it was beyond repairs and as per the repairs estimate given by the authorized dealer of the OPs itself, the cost of repair exceeded the total cost of the car. He emphatically submitted that the impugned order merely relied on the survey report, which cannot be taken to be a binding document as has been held in umpteen number of judgments. He, therefore, prayed that in view of the extensive damage suffered by the car, the same be ordered to be declared as total loss and the complainant be indemnified to the extent of IDV of the car.

9.                     Sh. Aftab Singh, Advocate learned counsel for OP No.1 – Insurance Company submitted that the learned District Forum had correctly relied upon the surveyor report, which a very detailed one and since the complainant never rebutted this survey report, the impugned order is well reasoned and justified and is as per the law settled on the subject and in this context, he referred to the judgment of Hon’ble National Commission in the case of NATIONAL INSURANCE CO. LTD Vs. BLANNY C. D’SOUZE reported as II (2009) CPJ 110 (NC) wherein it has been held that the surveyor report is an important document and it cannot be brushed aside.

10.                   Sh. Gaurav Bhardwaj, Advocate learned counsel for OP No.2 submitted that there is no deficiency in service on the part of this OP as the car has been duly repaired by OP No.2.

11.                   We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.

12.                   The main question raised by the complainant in his complaint is that the car had suffered an extensive damage and therefore, it was a case of total loss whereas as per OP No.1, the accident was minor and the damage caused to the car was repairable. The sole dependence of learned counsel for OP No.1 was on the survey report wherein the extent of indemnification had been stated to be Rs.5,44,729.07Ps which was payable to the complainant. A critical perusal of the surveyor’s report indicates that in all, the car had suffered a damage as assessed initially in the first part of the survey report to the tune of Rs.5,47,097.19Ps under the following heads: -

13.                   In the subsequent part of the survey report, based on the supplementary estimate dated 12.7.2008, the surveyor has further assessed the total repair cost of the car amounting to Rs.1,47,260/- as under: -

14.                   Thus the total cost of repairs as assessed by the surveyor himself without excluding the depreciation applied on the rubber parts to the extent of 50% comes to Rs.6,94,357.00 [Rs.5,47,097.00 + Rs.1,47,260.00]. It is clear from this that the car, which had an IDV of Rs.8.50 Lacs had suffered a damage, the cost of repair of which amounted to Rs.7 Lacs approximately. OP No.1 in the written statement has stated that the car had met with a minor accident. By no stretch of imagination, such a huge damage to the car could be termed as minor. At the face of it, it was a fit case for declaring the car as a total loss. However, as has been stated and is clear from the report of the surveyor, the surveyor still found the car to be in a repairable condition. This action of the surveyor itself smacks of malafide particularly in view of GR-8 of Indian Motor Tariff wherein under Column “Insured Declared Value (IDV)”, it has been stated that a vehicle will be considered to be a case of CLT where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV. In this particular case, admittedly, the IDV of the car was only Rs.8.50 Lacs and the cost of repair as indicated earlier amounted to Rs.6,94,357.00.  OPs have not placed the copy of the policy on record nor have they indicated any term or condition of the policy vide which this provisions of GR-8 of Indian Motor Tariff is excluded. Therefore, we find merit in the contention that the damage to the car should have been treated as total loss for the purpose of indemnification. In this context, we are also guided by the order of Hon’ble Supreme Court in the case of New India Assurance Company Limited Vs. Pardeep Kumar reported as (2009) 7 Supreme Court Cases 787 wherein it has been clearly held by the Hon’ble Apex Court that the report of a licensed surveyor/loss assessor is not final and binding on the parties. Though, it is settled law that the surveyor’s report cannot be ordinarily brushed aside being an important document, the law is also settled that in case such a report is malafide or incorrect then the same is not binding. Thus, in view of above observations, we find that the surveyor’s report cannot be made binding in the present case based on its facts and circumstances as apparently, the report has been prepared with malafide intentions to help the Insurance Company to evade its full liability to indemnify the complainant for the loss suffered.

15.                   In view of the foregoing discussion, in our considered opinion, the impugned order does not stand legal scrutiny and therefore, cannot be sustained. Consequently, the complaint as well as the appeal are allowed and the impugned order is set aside. OP No.1 – Insurance Company is directed to indemnify the complainant to the extent of Rs.8.50 Lacs i.e. the IDV of the car in question and this amount is directed to be paid by OP No.1 to the complainant along with interest @9% per annum from the date two months after the submission of the surveyor’s report till realization. OP No.1 is further directed to pay the complainant a sum of Rs.5,100/-, which we quantify as costs of litigation. Since, admittedly the car in question is lying with OP No.1, the same can be collected by OP No.1 after paying the amount of indemnification to the complainant. The complainant is also directed to handover the required documents to OP No.1 for further disposal of the car in question. The above directions be complied with within a period of one month from the date of receipt of certified copy of this order.

16.                   Copies of this order be sent to the parties free of charge.

Pronounced.

11^th February 2010.