Per Hon’ble Mr. Dhanraj Khamatkar, Member
Mr. Subhash Laxmanrao Bagal (hereinafter referred to as ‘the Complainant’), has filed the present consumer complaint against the Oriental Insurance Company Ltd. (hereinafter referred to as ‘the Opposite Party’), under the Consumer Protection Act, 1986. The complaint is subsequently numbered as Complaint No.549/99.
[2] The facts leading to the complaint, in brief, can be summarized as under:-
The Complainant had taken a comprehensive insurance policy for the bus No.MH-11-A-6015 from the Opponent and the policy number is 16241/093/00000/31/93/02351 and the said policy is valid for the period 26/3/1993 to 25/3/1994. The said vehicle met with an accident on 13/8/1993. Accordingly, the Complainant filed a claim with the Opposite Party and it is registered by the Opposite Party as Claim No.94/10021. It is the contention of the Complainant that he persuaded the Opposite Party from time to time to sanction the claim. The Opposite Party appointed surveyors to investigate into the claim and surveyors submitted their report to the Opposite Party. Finally, the Opposite Party sent a voucher for a claim of `2,51,200/-, asking the Complainant to return the same, duly signed, vide letter dated 30/7/1999. Accordingly, the Complainant sent the voucher, duly signed with endorsement ‘under protest’ on 3/8/1999, since the amount offered was far less and without interest. However, the Opposite Party did not release the payment and insisted the Complainant that unless the voucher is signed without any protest, the payment will not be released. Thereafter, the Complainant issued a notice to the Opposite Party. However, the notice was not replied. Hence, the Complainant had filed present consumer complaint contending that non-release of the insurance claim amounts to deficiency in service on the part of the Opposite Party and prayed for following reliefs:-
“
i) hold that the Opp. Party is found deficient in rendering the service assured for consideration;
ii) direct the Opp. Party to pay to the Complainant the amount of `10,58,000/-;
iii) direct the Opp. Party to pay the future interest on `10,58,000/- @ 21% p.a. from the date of complaint/1.1.2000 till its realization;
iv) direct the Opp. Party to pay to the Complainant costs of the proceeding;
v) pass such other order as deemed just and equitable in the facts and circumstances of the case. ”
[3] The complaint was admitted and the Opposite Party was asked to file its written version. The Opposite Party, in its written version, stated that as soon as the Opposite Party received the information of the accident, the Opposite Party had appointed one M/s. Bruchell Surveyor for carrying out the spot survey and the surveyor submitted his report on 24/8/1993. As the vehicle was heavily damaged, the Opposite Party appointed two surveyors, namely – M/s. Shinde Surveyors and Mr. M. P. Khatri, to carry out a joint survey. Both these surveyors visited M/s. Vishwakarma Coach Builders on 14/10/1993, where the vehicle was stationed. However, as the Complainant was not present, the survey was not carried out. The surveyors of the Opposite Party had sent three letters on 15/10/1993, 31/12/1993 and 15/3/1994, calling upon the Complainant to remain present. However, there was no response from the Complainant. As the insured vehicle was repairable, the surveyors suggested the Complainant to dismantle the front portion of the vehicle in order to facilitate proper estimation and assessment of the damage to the engine and other parts of the vehicle for the earlier settlement of the claim. However, the Complainant insisted for settlement of the claim on ‘total loss basis’. It is the discretion of the insurer to settle the claim on ‘repair basis’, ‘total loss basis’ or ‘net loss basis’ and the Opposite Party had concurred with the opinion of the surveyor that the claim can be settled on repair basis. The surveyor requested the Complainant to obtain repair estimate also from the authorized dealer.
[4] The Opposite Party has denied the charge of the Complainant that the surveyor dictated & compelled the Complainant to obtain a repair estimate from the authorized dealer only. Decision to shift the damaged insured vehicle to Pune was solely of the Complainant, which is evident from the letter addressed by the Complainant to the Divisional Manager of the Opposite Party. Surveyor – Mr. Shinde; had assessed the loss to the vehicle at an amount of `2,00,000/- approximately to which the Complainant did not agree and informed the surveyor that he would shift the vehicle to Pune for repairs and after obtaining estimate from M/s. Kamthe Automobiles submit the same afresh. The Opposite Party has denied the allegations of the Complainant that the Opposite Party had deliberately delayed settlement of the claim. The Opposite Party has contended that the prayers made by the Complainant are patently untenable, as the Opposite Party was always ready to sanction the claim. Therefore, the Opposite Party has prayed that the complaint may be dismissed with costs.
[5] The Complainant has filed his evidence on an affidavit inter-alia contending that the vehicle met with an accident on 13/8/1993 and sustained heavy damage. The Complainant filed a claim on 16/10/1993. Alongwith the Claim Form, the Complainant submitted the documents of the vehicle like R.C.T.C. Book, driving license of the driver alongwith estimate for repairs. The Complainant requested for settling the claim on ‘total loss basis’. However, the Opposite Party’s surveyor, by name – Mr. Khatri; refused to accede to the Complainant’s request and asked the Complainant to dismantle the vehicle for estimation of damage. Surveyor – Mr. Khatri; also insisted for estimate of repairs from the authorized dealer, though the policy did not stipulate the same. That the Complainant with a view to settle the claim early; complied with the surveyor’s request. The Complainant states the surveyor insisted to shift the vehicle to Pune. As the vehicle was not roadworthy, the Complainant had to spend an amount of `15,000/- for shifting the insured vehicle to Pune. The Complainant has further stated in his affidavit that even though estimate for air-conditioner was submitted and it was inspected, repaired and bills issued on 23/10/1996, the surveyor for some extraneous reasons wrote to the Complainant on 22/1/1997 that the report is pending for want of estimate of air-conditioner. The Complainant has protested for inordinate delay in settlement of claim, vide his letter dtd.13/9/1997, despite submitting the bills in the month of Nov-1996. Thereafter, the Opposite Party asked for stamped receipts of the repairs on 20/3/1998. The Opposite Party submitted the claim to its higher authorities on 28/12/1998. Again on 26/4/1999, Opposite Party asked for the original driving license of the driver. The Complainant claimed that these are all dilatory tactics adopted by the Opposite Party.
[6] The Complainant further stated that the Opposite Party had sent a voucher of a claim for an amount of `2,51,200/-, asking the Complainant to return the same, duly signed, vide a letter dated 30/7/1999. The Complainant further stated that he had signed the voucher on 3/8/1999, under protest, since the amount offered was far less and without interest. The Complainant further stated that despite of signing the voucher, the Opposite Party has not released the claim of `2,51,200/- and the enquiry with the Opposite Party revealed that it will not release the cheque unless the voucher is signed without any protest. Thereafter, the Complainant issued a notice dated 4/10/1999, through an advocate. However, the Opposite Party has neither released the amount nor furnished copy of the surveyor’s report. Therefore, the Complainant has prayed that all this amounts to deficiency in service on the part of the Opposite Party and the prayers made in the complaint may pleased be allowed.
[7] The Complainant has also filed a counter-affidavit to the written version and the affidavit filed by the Opposite Party.
[8] On behalf of the Complainant, Mr. A. P. Tadkalkar – Learned Advocate; has filed written notes of arguments. Similarly, on behalf of the Opposite Party, Mr. R. P. Baphana – Learned Advocate; has filed written notes of arguments.
[9] We have gone through the complaint, written version, evidence filed by the parties and written notes of arguments filed by both the learned counsels.
[10] In the present case, important issue involved is whether the Complainant proves deficiency in service on the part of the Opposite Party. Admittedly, the accident vehicle was insured with the Opposite Party and the policy number is 16241/003/00000/31/93/02351 and the period of insurance is from 26/3/1993 to 25/3/1994. There is no dispute regarding the date of accident, which is 13/8/1993. Admittedly, the Complainant has filed his insurance claim with the Opposite Party and the Opposite Party registered the same as 94/10021. After the accident, the first survey of the accident vehicle was conducted by the surveyor, by name – M/s. Bruchell Surveyors; and he has submitted his report on 24/8/1993. Thereafter, the Opposite Party has appointed two surveyors, namely – Mr. Shinde & Mr. Khatri, to carry out a joint survey. Mr. Shinde has submitted his survey report on 28/12/1994. It is addressed to another surveyor, by name – Mr. Mohan Khatri. It is not on the record as to why Mr. Shinde instead of carrying out a survey jointly, submitted his individual report that too, to Mr. Mohan Khatri, who is appointed as surveyor alongwith Mr. Shinde. Mr. Shinde, in his survey report has assessed the loss at an amount of `1,75,565/- and stated in his report that after dismantling the vehicle, loss may increase by an amount of `25,000/-. Copy of this report is addressed to the Opposite Party’s Divisional Office, Opposite Party’s Branch Office and Opposite Party’s Satara Office. In his report, he has also stated that he is enclosing herewith fresh estimate submitted by the insured. In the complaint compilation at page (23), there is a report dated 10/3/1997 of Mr. Mohan Khatri, wherein the assessment of loss on ‘net loss’ is `2,77,000/-. This report is jointly signed by Mr. Shinde. At page (27) of the complaint compilation, there is a bill check report wherein net amount payable is shown as `2,70,000/-.
[11] It is the contention of the Complainant that since the vehicle was damaged heavily, he requested the surveyor to settle the claim on ‘total loss basis’. However, the surveyor for the best reasons known to him had insisted for settling the claim on ‘repair basis’. It is pertinent to note that the Opposite Party, in its written version, has admitted that the vehicle was heavily damaged and hence, the Opposite Party has appointed two surveyors for the settlement of claim. We are unable to understand when there was heavy damage to the vehicle, why the surveyors insisted for settling the claim on repair basis. In his affidavit filed by the Complainant to counter the written version has pointed out that even though estimate for air-conditioner was submitted, it was inspected & repaired and bills issued on 23/10/1996, the surveyor for some extraneous reasons wrote to the Complainant on 22/1/1997 that the report is pending for want of estimate of air-conditioner. Further, the Complainant had stated in his affidavit that the Opposite Party had asked, vide its letter dated 29/9/1997, for original bills, though submitted earlier. No other requirement was mentioned in the said letter. Then, the Opposite Party has asked for the stamped receipts of repairs on 20/3/1998. These allegations of the Complainant have not been properly rebutted by the Opposite Party by filing counter-evidence. From the aforesaid facts it is seen that the Opposite Party had tried to delay the sanction of claim of the Complainant.
[12] What is surprising is that the Opposite Party has sent a discharge voucher to the Complainant on 30/7/1999. Discharge Voucher is for an amount of `2,51,200/-. The surveyor has recommended the claim of `2,70,000/-. However, the Opponent insurance company has prepared a discharge voucher of `2,51,200/-. It is not clear how the Opponent insurance company had arrived at the amount of `2,51,200/- when the surveyor has recommended the claim of `2,77,000/-. The Complainant had duly signed the discharge voucher with an endorsement ‘under protest’ and submitted the same to the Opponent insurance company for release of the payment. Despite of this the insurance company has not released the payment. Now, the question arises as to whether the Opposite Party was legally correct in not discharging its obligation? Despite of the notice served by the Complainant, the Opposite Party has not responded. In his affidavit, the Complainant has stated on oath that the enquiries with the Opposite Party revealed that it will not release the cheque unless the voucher is signed without any protest. Neither in its written version nor in its pleadings the Opposite Party has denied the contention of the Complainant. Even today the Opposite Party has not made payment to the Complainant. The insurance is a contract between the parties. The Complainant had complied his part of the contract. The Opponent insurance company has breached the contract. To accept the payment under protest is right of the Complainant. The Opponent insurance company legally cannot force the Complainant to write what it wants. This approach of the Opponent insurance company is arbitrary and against the principles of natural justice.
[13] Learned Counsel for the Opposite Party had placed his reliance on the reported decision of the Supreme Court in Kandimalla Raghavaiah & Co. Vs. National Insurance Co. & Anr. ~ 2009-(4)-CPR-17-(SC). The facts and circumstances of the present case are totally different from the authority relied by the learned counsel. In the present case, the accident of the insured vehicle has taken place on 13/8/1993 and the Complainant had filed a claim within a time limit. The Opponent Insurance Company had admitted and accepted the claim of the Complainant. Finally, the Opponent has acquiesced and sanctioned the claim and forwarded the discharge voucher to the Complainant vide its letter dated 30/7/1999. The Complainant had signed the discharge voucher with an endorsement ‘under protest’ and returned the same for releasing the payment. Even after sending back the discharge voucher, the Opponent insurance company arbitrarily not released the payment. Hence, the cause of action arose for the Complainant to file a consumer complaint under the provisions of the Consumer Protection Act, 1986; in year 1999. Accordingly, the Complainant had filed the complaint and it is within limitation. Hence, the authority quoted by the learned counsel is not relevant under the facts and circumstances of the case.
[14] We observe that though the surveyor recommended a claim of `2,70,000/-, the Opponent insurance company reduced it to `2,51,200/-. Even though the Complainant duly signed discharge voucher and requested for releasing the payment, the Opponent insurance company has not released the payment on the ground that the Complainant had endorsed on the voucher ‘under protest’. This action of the Opponent is totally arbitrary and unlawful. It amounts to denial of justice. Looking into the facts and circumstances of the case, we are of the opinion that the Complainant is entitled to a claim of `2,70,000/-, as recommended by the surveyor.
[15] The conduct of the Opponent is highly objectionable. It has withheld the lawful claim of the Complainant for years together arbitrarily causing the tremendous mental agony to the Complainant. Accident had taken place on 13/8/1993. Immediately Complainant lodged the claim. The Opponent Insurance Company had taken a time of nearly six years to process the claim. The Complainant could not use the accident vehicle for six years. It has affected his business and hence, the Complainant needs to be compensated. Taking into consideration the loss of business and mental agony suffered by the Complainant, we consider that a compensation of `2,00,000/- to the Complainant will meet the ends of justice.
With these observations, we find that the Opposite Party is deficient in service. We hold accordingly and pass the following order:-
ORDER
The complaint is partly allowed.
(A) The Opposite Party is hereby directed to pay to the Complainant, an amount of `2,70,000/- together with interest thereon @ 12% p.a., from the date of filing of the complaint viz.29/Nov/1999, within a period of two months;
(B) The Opposite Party is hereby further directed to pay to the Complainant, an amount of `2,00,000/- by way of compensation towards mental agony & harassment;
(C) The Opposite Party shall also pay to the Complainant, an amount of `25,000/- towards costs of litigation and bear its own costs;
(D) It is hereby made clear that if the amounts, as ordered to be paid to the Complainant as per sub-clauses (A) & (B) of this order, are not paid within the stipulated period of two months from the date of this order then, those amounts shall carry penal interest @ 2% p.a., in addition to the interest @ 12% per annum till the realization of amount.
(E) Copies of the order be furnished to the parties.
Pronounced on 8th June, 2011
