BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 05th day of February , 2009
C.C.No. 119/08
Between:
S. Meer Zakir Hussain, S/o. S.Meer Ibrahim,
H.No.17-14-1, Atmakur, Kurnool District-518 422. … Complainant
Versus
The Oriental Insurance Company Limited, Represented by its Divisional Manager,
Bhupal Complex, P.B.No.33, Kurnool-518 001. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.M.Azmathulla, Advocate, for the complainant, and Sri.N.Isaiah, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following
ORDER
(As per Smt. C.Preethi, Lady Member)
C.C.No.119/08
1. This consumer complaint of the complainant is filed U/S 11 and 12 of C.P.Act, 1986 seeking direction on opposite party to pay Rs.1,67,346/- towards damages and repair charges with 18% interest p.a, Rs. 1 lakh towards mental agony, Rs. 1 lakh as compensation, cost of the complaint and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainants case is that the complainant is the owner of the lorry bearing No. AP/21/W/4243 which was insured with opposite party under policy bearing No. 4113000/31/2006 /14360 dated 02-11-2005 . The said policy is a comprehensive policy and the risk covers to the limit of Rs.11,26,000/-. O n 19-10-2006 the said lorry met with accident within the limits of Gadag P.S in Karnataka State and said lorry sustained major damages. Immediately the said accident was informed to the opposite party by the complainant and the opposite party appointed an insurance surveyor by name C.B.Bhuma Reddy to conduct spot survey . Thereafter, the opposite party appointed another insurance surveyor by name B.P.K.Reddy who submitted final report dated 10-03-2007 to the opposite party . The complainant spent huge amount of Rs.1,67,346/- to make the lorry road worthy and the complainant submitted purchase bills to the insurance surveyor,. B.P.K. Reddy, inspite of submitting said bills the opposite party did not settle the claim and being vexed the complainant resorted to the forum for reliefs as there is deficiency of service on part of opposite party .
3. In substantiation of his case the complainant relied on the following documents viz., (1) a bunch of 12 bills , (2) xerox copy of registration certificate , (3) xerox copy of policy cum motor insurance, (4) xerox copy of driving license , besides to the sworn affidavit of complainant in reiteration of his complaint averments and the above documents are marked as Ex.A1 to Ex.A4 for its appreciation in this case and the complainant also relied on Ex.X1 and X2 besides to deposition of P.W.1 – B.P.K Reddy and replies to the interrogatories exchanged.
4. In pursuance to the notice of this forum as to this case of the complainant , the opposite party appeared through their standing counsel and contested the case by filling written version.
5. The written version of opposite party admits the complainant as the registered owner of the lorry bearing No. AP 21 W 4243 and the said lorry was insured vide policy bearing No. 4113000/31/2006 /14360 dated 02-11-2005 and submits the opposite party is not aware of the accident on 19-10-2006 to the complainants lorry. It further submits that on information about the accident by the complainant the opposite party deputed a surveyor to assess the damages to the said vehicle and said surveyor submitted his report. The opposite party’s divisional office appointed another surveyor who assessed the loss to Rs.37,500/- only against the claim of the complainant to the tune of Rs.1,67,346/- and alleges that there is no deficiency of service on part of this opposite party as the claim is with divisional office who has to process the claim to the tune of Rs.37,500/- . The surveyor inspected the vehicle and assess the damages to Rs.37,500/- duly application of policy terms and conditions and hence the complainant is entitled only to the sum of Rs.37,500/- and hence the complainant is not entitled to the claim made in the complaint and the compensation and mental agony claim of Rs. 1 lakh is baseless and lastly seeks for the dismissal of complaint with exemplary cost.
6. In substantiation of their case the opposite party relied on the following documents viz., (1) opinion report dated 22-08-2008 , besides to the deposition of RW.1 – P. Pandian and sworn affidavit of opposite party in reiteration of his written version averments and the above documents are marked as Ex.B1 for its appreciation in this case and replies to the interrogatories exchanged.
7. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on part of opposite party ?.
8. It is the simple case of the complainant that his lorry bearing No. A.P.21-W-4243 insured with opposite party under policy bearing No. 4113000/31/2006 /14360 met with accident on 19-10-2006 and the said lorry sustained major damages , and the complainant put forth the claim with opposite party , the opposite party did neither settled the claim nor repudiated the claim. But the opposite party in their written version submitted they appointed a surveyor who inspected the vehicle and submitted his report and their Divisional Office, Chennai has also appointed another surveyor who assessed the loss to Rs.37,500/- only and hence the complainant is entitled to said amount only.
9. The complainant in support of his case relied on the following exhibits , the Ex.A1 is a bunch of 12 cash bills as to the purchase of spare parts by the complainant, the Ex.A2 is the xerox copy of registration certificate , the Ex.A3 is the xerox copy of policy cum motor insurance issued to the complainant , and Ex.A4 is the xerox copy of driving license of Meer Habeeb. The complainant further submitted that the opposite party first appointed a surveyor by name B.P.K. Reddy to inspect the complainants vehicle and to submit his report . The Ex.X1 is the said report submitted by the said surveyor . The said surveyor was examined as PW.1. In the said examination he stated that he was appointed by opposite party to assess the loss occurred to the complainants vehicle and that he inspected the said vehicle of the complainant and submitted his report to opposite party and also admits that he received original bills from the complainant and acknowledged the same to the complainant on the xeroxs. The said original bill is Ex.X2 . The said PW.1 (surveyor) assessed the loss occurred to the complainants vehicle as per Ex.X1 report is to Rs.81,000/- after working out the depreciation . The complainant submitted that he is entitled to said amount of Rs.81,000/- and relied on the decision of National Commission in Vator Guard Chemicals Private Limited Vs National Insurance Company Limited reported in II 2005 CPJ Pg10, where in it was held that it is settled proposition of Law that surveyors report is an important piece of document and can be challenged on the basis of documentary or any specific evidence which has not been done in this case. Therefore , the complainant is entitled to assessed amount of Rs.81,000/- only.
10. The opposite party in his written version averments submitted that their Divisional office has appointed another surveyor by name P.Pandiyan who assessed the loss to the complainants vehicle to Rs.37,500/-. The said surveyor was examined as RW.1 and he stated that he issued opinion report dated 22/08/2008 ( Ex.B1) as to the vehicle bearing No.AP 21 W 4243 and he further stated that in his report he has taken into consideration the spot survey conducted by Adarsh surveyors, survey at workshop by B.P.K.Reddy and observed variances in the above two report and assessed the liability of insurance company (opposite party ) to the tune of Rs.37.500/- , he also stated that he did not examine the said vehicle and assessed the loss basing on the above two survey reports only .
11. Hence, from the above it is clear that there will be any justification for the 2nd surveyor (RW.1) to find any variances or inconsistencies in the first surveyor report ( Ex.X1) nor the insurance company has placed any document record either justifying the appointment of 2nd surveyor (RW.1) or to find out any inconsistencies in the first surveyors report (Ex.X1) . In the said circumstances the mind of the insurance company in appointing 2nd surveyor is to have a lessor estimation to its advantage.
12. The complainant forcefully contended that the opposite party has no right to appoint a second surveyor to assess the loss occurred to his vehicle and relied on the decision of National Commission in M/s.Sarvalaxmi Marines represented by Prof . Smt. Angoti Susela Vs M/s. Oriental Insurance company Limited and Anr reported in 2007 (3) CPR (1), where in, it was held that when there is no provision under Insurance Act, 1936 to appoint a second surveyor the insurance company cannot appoint a second surveyor . Therefore , relying on the above decision the opposite parties in this case cannot appoint a second surveyor to assess the loss occurred to the complainants vehicle after receiving the report of already appointed surveyor . Hence, the second surveyor’s report/ opinion report cannot be looked into. The decision relied by opposite party side supports the complainants case reported in IV 2006 CPJ Pg 86 (NC) between Deen Dayal Chamoli Vs National Insurance Company, wherein , it was held that surveyor report is a valuable piece of evidence and relying on the above citation the complainant is remaining entitled to the surveyor’s assessed amount i.e., Rs.81,000/-.
13. There is no material to contradict the justifiability of the assessment/ estimation made in first surveyors report ( Ex.X1) as to the complainants insured vehicle under the accident. The material placed by the complainants side as per Ex.A1 shows only the value of the articles if purchased and not the value of damaged articles which are required to be put to the depreciation on account of its age and usage. Therefore, the material adduced by the complainants side is not remaining sufficient to over throw the justifiability of the assessment and estimation arrived by the first surveyor (PW.1) vide Ex.X1.
14. From the above it is clear, from the facts and circumstances of this case, that the opposite party failed to place any document record or any specific evidence to justify the appointment of second surveyor. Hence the assessment made by the first surveyor is to be accepted.
15. To sum up the above discussion made supra and the exhibits filed as well as legal aspects, the complainant has to get the assessed amount of Rs.81,000/- , which he spent for getting the said lorry repaired and there is deficiency of service on part of opposite party in not paying the said amount. The opposite party by his deficient conduct in not settling the complainants claim ensured mental agony to the complainant and the opposite party is liable to pay an amount of Rs.10,000/- as compensation for mental agony and Rs.5,000/- as costs of the case.
16. In the result, the complaint is allowed directing the opposite party to pay to the complainant the assessed amount of Rs.81,000/- along with Rs.10,000/- as compensation and Rs.5,000/- as costs of the case within one month from the date of receipt of this order. In default the opposite party shall pay the above award with12% interest from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 5th day of February , 2009.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :
PW. Deposition of B.P.K.Reddy Rw.1. Deposition of P.Pandiyan.
.
List of exhibits marked for the complainant:-
Ex.A1. A bunch of 12 bills.
Ex.A2. Xerox copy of registration certificate.
Ex.A3. Xerox copy of policy cum motor insurance.
Ex.A4. Xerox copy of driving license.
Ex.X1. Motor survey report.
Ex.X2. Xerox copy of estimation for accidental vehicle.
List of exhibits marked for the opposite parties:
Ex.B1. Opinion report dated 22-08-2008
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on
