Haryana

Kaithal

318/19

Ram Pal - Complainant(s)

Versus

The Oriental Insurance Co. - Opp.Party(s)

Sh.Krishan Dhull

17 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.318/2019.

                                                     Date of institution: 26.09.2019.

                                                     Date of decision:17.04.2023.

Ram Pal son of Sh. Banwari Lal, resident of Village Taragarh, Tehsil & Distt. Kaithal.

                                                                        …Complainant.

                        Versus

1. The Oriental Insurance Co. Ltd. Branch Office, Kaithal through its Branch Manager, Pehowa Chowk, Kaithal, Tehsil & Distt. Kaithal.
2. The Oriental Insurance Co. Ltd. Regd. Office, The Oriental House PB No.7037-A 25/27, ASAF Ali Road, New Delhi through its M.D.

….Respondents.

        Complaint under Section 12 of the Consumer Protection Act

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. Jai Parkash, Advocate, for the complainant.   

                Sh. P.P.Kaushik, Advocate for the respondents.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Ram Pal-Complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the respondents.

                In nutshell, the facts of present case are that on 15.12.2014 the complainant had parked his motor-cycle bearing registration No.HR-08-J/6075 at his house.  Outside of his house, some children were setting fire with cotton stubble on kacha patch.  It is further alleged that when the cotton stubble were put on burning fire, then some burning wooden stick flew and put on motor-cycle, petrol caught the fire and motor-cycle was burnt.  It is further alleged that all the papers of motor-cycle were also burnt with motor-cycle, which were kept into tool box of the motor-cycle.  The complainant made his statement before the police on the next day and a DDR No.8 dt. 16.12.2014 was got registered in this regard at PP Kithana, P.S.Rajound.  The complainant had received an insurance policy from the OPs vide cover note No.26/304/31/2014/3771 dt. 04.02.2014 which was valid upto 05.02.2015.  The complainant got lodged the claim with the OPs and submitted all the necessary documents but the OPs repudiated the claim of complainant vide letter dt. 22.12.2016.  It is further alleged that the complainant has cancelled the registration certificate of above-said motor-cycle from his name and the OPs have admitted the claim subject to cancellation of registration certificate of said motor-cycle.  The said repudiation of claim is stated to be wrong and illegal.  So, it is a clear cut case of deficiency in service on the part of respondents and prayed for acceptance of complaint.     

2.            Upon notice, the respondents appeared before this Commission and contested the complaint by filing their written version raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the true facts are that on information, the answering OP deputed Sh. Rakesh Kaushik, Independent Surveyor and Loss Assessor to assess the actual loss, if any.  The said surveyor submitted his report dt. 30.03.2016 by which he assessed Net Loss on repair basis Rs.13,530/- (after deducting salvage value of complainant) and net loss assessed on total loss basis is Rs.18,700/- with cancellation of registration certificate and salvage will be the property of insurer and he also assessed loss on net of Salvage basis: Total IDV: Rs.20,000/-, less wrack value (without R.C.): Rs.2,000/-, less policy clause: Rs.100/-, net assessed loss: Rs.17,900/-.  Hence, keeping in view of the said report, the competent authority of the insurer recommended the claim as per report of the surveyor (without RC), subject to requisite formalities like cancellation letter of registration of motor-cycle in question as-well-as salvage.  But the complainant did not comply with the said formalities, so, the claim could not be disbursed without said necessary formalities.  It is further stated that instead of compliance of said necessary formalities, the complainant had filed a false complaint before Permanent Lok Adalat-cum-Public Utility Services, Kaithal which was lateron dismissed as withdrawn vide award dt. 12.09.2019.  There is no deficiency in service on the part of respondents.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

3.             To prove his case, the complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to Annexure-C7 and thereafter, closed the evidence.

4.             On the other hand, the OPs tendered into evidence affidavit Ex.RW1/A alongwith document Annexure-R1 and thereafter, closed the evidence.

5.             We have heard the learned Counsel for both the parties and perused the record carefully.

6.             Ld. counsel for the complainant argued that on 15.12.2014 the complainant had parked his motor-cycle bearing registration No.HR-08-J/6075 at his house.  Outside of his house, some children were setting fire with cotton stubble on kacha patch.  It is further argued that when the cotton stubble were put on burning fire, then some burning wooden stick flew and put on motor-cycle, petrol caught the fire and motor-cycle was burnt.  It is further argued that all the papers of motor-cycle were also burnt with motor-cycle, which were kept into tool box of the motor-cycle.  The complainant made his statement before the police on the next day and a DDR No.8 dt. 16.12.2014 was got registered in this regard at PP Kithana, P.S.Rajound.  The complainant got lodged the claim with the OPs and submitted all the necessary documents but the OPs repudiated the claim of complainant vide letter dt. 22.12.2016.  The said repudiation of claim is stated to be wrong and illegal.

7.             On the other hand, ld. counsel for the OPs argued that on information, the OPs deputed Sh. Rakesh Kaushik, Independent Surveyor and Loss Assessor to assess the actual loss, if any.  The said surveyor submitted his report dt. 30.03.2016 by which he assessed Net Loss on repair basis Rs.13,530/- (after deducting salvage value of complainant) and net loss assessed on total loss basis is Rs.18,700/- with cancellation of registration certificate and salvage will be the property of insurer and he also assessed loss on net of Salvage basis: Total IDV: Rs.20,000/-, less wrack value (without R.C.): Rs.2,000/-, less policy clause: Rs.100/-, net assessed loss: Rs.17,900/-.  Hence, keeping in view of the said report, the competent authority of the insurer recommended the claim as per report of the surveyor (without RC), subject to requisite formalities like cancellation letter of registration of motor-cycle in question as-well-as salvage.  But the complainant did not comply with the said formalities, so, the claim could not be disbursed without said necessary formalities.  It is further argued that instead of compliance of said necessary formalities, the complainant had filed a false complaint before Permanent Lok Adalat-cum-Public Utility Services, Kaithal which was lateron dismissed as withdrawn vide award dt. 12.09.2019.

8.             The main contention of Ops is that earlier the complainant had filed a complaint before the court of Permanent Lok Adalat and compromise was effected in the said court as their employee namely Sh. Verender Kumar, Senior Branch Manager had made statement that the Ops are ready to make the payment of Rs.12,000/-.  Thereafter, the complainant had withdrawn the said complaint on 12.09.2019 as per Annexure-C7.  Ld. counsel for the Ops stated that they are still ready to pay the amount as assessed by the surveyor.  In the present case, the surveyor has assessed the net loss amounting to Rs.17,900/- as per report which is  Annexure-R1 on the file. 

9.             So, this report of surveyor is taken into consideration for deciding the compensation amount in the present complaint.  In this regard, we can rely upon the authority cited in Shiv Villas Resorts Pvt. Ltd. Vs. UII, 2018(1) CLT page 508 (NC), wherein it has been held by Hon’ble National Commission that Insurance claim-Surveyor’s report-Held-That surveyors are appointed under the Insurance Act, 1938 and their reports are the basis for settling the insurance claim-To disregard the same-The complainant had not filed any objection to the surveyor’s report-Thus if there are no objections to the surveyor’s report-it is to be accepted-Appeal dismissed.  It is clear from the record that the litigation is pending between both the parties since the year 2017 and yet the Ops have not paid any amount to the complainant, so, there is deficiency in service on the part of Ops.

10.            Thus, as a sequel of aforesaid discussion, we direct the OPs to pay the amount of Rs.17,900/- as assessed by the surveyor to the complainant within 45 days.  However, the complainant is directed to submit the subrogation letter and cancellation of ownership of vehicle in question obtained from the concerned Registering Authority within 30 days with the Ops.  It is also made clear that the complainant shall submit the salvage with the Ops and salvage will be the property of insurer.  The OPs are further directed to pay Rs.5,000/- as compensation on account of physical harassment, mental agony as-well-as Rs.5,000/- as litigation charges to the complainant.  However, it is made clear that if the OPs are failed to pay the awarded amount of Rs.17,900/- to the complainant within stipulated period, then they shall be liable to pay interest @ 7% p.a. from the date of this order till its realization.  Hence, the present complaint is accepted accordingly.    

11.            In default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:17.04.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.