Haryana

Yamunanagar

CC/230/2012

Manoj Kumar - Complainant(s)

Versus

The Oriental Insurance Company ltd. - Opp.Party(s)

Pankaj Kamboj

14 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 230 of 2012.

                                                                                             Date of institution: 2.3.2012.

                                                                                             Date of decision:14.10.2015.

Manoj Kumar son of Shri Raj Pal age 33 years, resident of village Akalgarh, Tehsil Jagadhri, District Yamuna Nagar.  

                                                                                                                                                   …Complainant.

                                    Versus

 

The Oriental Insurance Company Limited, having its Branch Office Opp. Madhu Hotel, Jagadhri Road, Yamuna Nagar, District Yamuna Nagar, through its Branch Manager.                                                                                                                                                                                                                                                    …Opposite party.

 

Before:             SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Pankaj Kamboj, Advocate, counsel for complainant.  

               Sh. Parmod Gupta, Advocate, counsel for OP.          

             

ORDER

 

1.                     Complainant Manoj Kumar has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent ( hereinafter referred as OP) be directed to make the payment of Rs. 3,28,631/- alongwith interest at the rate of 24% per annum on account of repair of truck bearing No. HR-37B-4896 which was damaged in a roadside accident and further to pay Rs. 30,000/- on account of transportation charges alongwith compensation of Rs. 1,00,000/- as well as Rs. 5500/- as litigation expenses.

2.                     Brief facts of the complaint, as alleged by the complainant, are that he is the registered owner of truck TATA bearing registration No. HR-37B-4896, Model 2005 which was insured with the OP vide policy bearing No. 261700/31/2011/5835 valid from 12.9.2010 to 11.9.2011 for a sum assured of Rs. 7,00,000/- and a premium of Rs. 21238/- was paid in this regard to the OP. Hence there is a relationship of consumer and supplier between the complainant and OP. It has been further alleged that on 18.4.2011 the aforesaid truck of the complainant was met with an accident at National Highway-8, Miyala P.S.Devgarh and in the said accident, the truck of the complainant was totally damaged and in this regard an FIR No.100 dated 18.4.2011 was registered with P.S. Devgarh. The complainant immediately informed the Development officer of the OP namely Mr. Tikkoo that the vehicle of the complainant has met with an accident. Further the complainant also supplied the whole documents to the OP for getting the claim of damaged truck. After taking the necessary documents, the OP assured him that the OP will pay bill of repairing/spare parts against valid bills. Moreover, the complainant also took the damaged truck from National Highway No.8 Devgarh to Yamuna Nagar and incurred a sum of Rs. 30,000/- on transportation and OP company is also liable to pay the same to him. As per assurance of OP, the complainant got repaired his truck in question and spent a sum of Rs. 3,28,631/- on its repair/ spare parts. It has been further alleged that after getting the truck in question, the complainant requested the OP to pay the expenses incurred by him on his truck but the OP refused to pass the claim of complainant on false pretext in order to put wrongful loss to the complainant So, there is a great deficiency on the part of OP. Hence, this complaint.

3.                     Upon notice, OP appeared and filed its written statement by taking some preliminary objections such as no negligence or deficiency in service on the part of OP, complication question of law is involved in this case, which cannot be decided summarily and on merit it has been mentioned that the complainant sent an intimation letter dated 27.4.2011 to the OP which stands received in the office wherein it has been alleged that the accident took place on 18.4.2011 at 8.00 P.M. and showing the estimated loss of Rs. 3,77,750/- but the complainant has not got done the spot survey which was mandatory to know the exact position and the cause etc. and intimated the OP after 9 days of accident. So, the claim was settled on the basis of report prepared by surveyor and on non standard basis a discharge voucher sent to the complainant but he returned the same unfilled and unsigned only by giving IFSC Code and Bank name and account number. So without signs on discharge voucher the amount could not be transferred in the account of complainant so the cheque amounting to Rs 1,47,958/- dated 29.2.2012 drawn on bank of India, prepared on the basis of decision of DCC, the OP is still ready to pay the said amount to the complainant if he signs the discharge voucher so that the amount be directly transferred in his account as per latest guidelines and 25% is deducted on non standard basis as per terms and conditions of the policy wherein it is clearly mentioned that 25% will be deducted from the claim amount in absence of spot survey and as such claim petition is not maintainable and is liable to be dismissed.

 4.                    To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of Registration Certificate as Annexure C-1, Photo copy of Fitness certificate as Annexure C-2, Photo copy of Insurance Cover Note as Annexure C-3, Photo copy of FIR as Annexure C-4, Photo copy of receipt of  goods as Annexure C-5,  Photo copy of invoice of Rs. 5,93,829 issued by Bharat Starch Industries as Annexure C-6, Photo copy of call detail as Annexure C-7, Photo copies of repair bills as Annexure C-8 to C-14, Photo copy of Authorization Certificate of N.P. ( goods) as Annexure C-15,  Photo copy of Driving License as Annexure C-16, Photographs of truck as Annexure C-17 to C-24 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Sh. R.S.Kalra, Divisional Manager, Oriental Insurance Company Ltd. Yamuna Nagar as Annexure RX and documents such as Photo copy of Insurance certificate cum policy schedule as Annexure R-1, Photo copy of claim form as Annexure R-2, Affidavit of Gurcharan Singh owner of M/s G.C.Singh & Associates as Annexure R-3, Photo copy of surveyor report as Annexure R-4, Photo copy of discharge voucher as Annexure R-5, Photo copy of cheque amounting to Rs. 1,47,958/- as Annexure R-6 and closed the evidence on behalf of OP.

6.                     We have heard the counsels of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint.

7.                      It is not disputed that complainant is registered owner of truck bearing registration No. HR-37B-4896 which was insured with OP insurance company vide its policy bearing No. 261700/-31/2011/5835 (Annexure R-1) for a sum insured of Rs. 7,00,000/- w.e.f. 12.9.2010 to 11.9.2011. It is also not disputed that the truck of the complainant met with an accident on 18.4.2011 regarding this an FIR No.100 dated 18.4.2011 was registered with Police Station Devgarh ( copy of FIR Annexure C-4). It is also not disputed that claim was lodged with the OP insurance company and a surveyor M/s G.C.Singh and Associates was deputed for survey and assessing the loss who submitted his report on 15.10.2011 assessing the loss to the tune of Rs. 2,07,133/- which is evident from surveyor report Annexure R-4. Learned counsel for the complainant argued that complainant got repaired his truck and total cost of repair/spare parts etc. has come to Rs. 3,28,631/- which is evident from photo copy of all the bills Annexure C-8 to C-14. Learned counsel for the complainant further argued that complainant immediately informed the official of OP company Mr. Tikkoo that his truck has met with an accident on telephone bearing No. 98960-50976 which is evident from call detail Annexure C-7. Despite completing all the formalities the claim of the complainant has been illegally withheld by the OP company. Hence there is a deficiency in service on the part of OP and prayed for acceptance of complaint.

8.                     On the other hand, learned counsel for the OP hotly argued that there is no deficiency in service on the part of OP company and the claim of the complainant was settled on 24.2.2012 on the basis of report of surveyor and on non standard basis in D.C.C. meeting a discharge voucher was sent to the complainant, but he returned the same unfilled and unsigned discharge voucher only by giving IFSC Code and Bank Name and Account Number. So without signs on the discharge voucher, the amount could not be transferred in the account of the complainant, so a cheque of Rs. 1,47,958/- drawn on Bank of India was prepared and the OP company is still ready to pay the said amount to the complainant if he signs the discharge voucher. Learned counsel for the OP further argued that claim of the complainant was settled on non standard basis and 25% has been deducted on non standard basis as per terms and conditions of the insurance policy as no spot survey has been arranged by the complainant in this case. Learned counsel for the OP further argued that an amount of Rs. 2,07,158/- has been rightly assessed by the Surveyor and Loss Assessor and credence should be given to the report of surveyor in this respect referred the case law titled as Kaur Singh Versus National Insurance Co. ltd. 2013(3) CLT page 126 wherein it has been held that Consumer Protection Act, 1986, Section 2(1)(g)- Insurance Claim (Vehicle)-Surveyor’s report-Survey report is an important document and cannot be brushed aside, particularly, when it is based on immediate spot survey and also referred another case law titled as United India Insurance Co. Ltd. Versus Bhriguram Mondal & Others, 2014(1) CLT page 255 and lastly prayed for dismissal of complaint.

9.                     After hearing both the parties and going through the documents specifically surveyor report Annexure R-4 it is clear that an amount of Rs. 2,07,133/- has been assessed on account of damage to the truck bearing registration No. HR-37B-4896 of the complainant. It is also not disputed that truck in question was not insured at the time of alleged accident. The only dispute between the parties is that OP insurance company wants to release only an amount of Rs. 1,47,958/- which is evident from the cheque prepared by OP company on 29.2.2012 (Annexure R-6) and further admitted in their written statement and wants to deduct remaining amount on account of non standard basis as no spot survey was done in this case.

10.                   On the other hand, the plea of the complainant is that he has informed the OP on the same day to Mr. Tikkoo on his telephone bearing No. 98960-50976 and it was the duty of the OP insurance company to depute surveyor for spot inspection and the OP insurance company have no right to deduct the 25% amount on non standard basis out of the total loss assessed by the Surveyor and Loss Assessor. The version of the complainant is fully supported with the documents regarding immediate information to the OP company i.e. from call detail (Annexure C-7) and further the complainant has specifically mentioned in para No.4 of the complaint that he has informed the official of OP namely Mr. Tikkoo and the OP insurance company has not denied this fact in its reply. It is also evident from the surveyor report Annexure R-4 that Surveyor & Loss Assessor Mr. G.C.Singh and Associates was deputed on 27.4.2011 who conduct the final survey on 28.4.2011. The version of the OPs further falsify from the affidavit of Surveyor and loss Assessor Annexure R-3 wherein he has not disclosed/mentioned that on what date he was informed or depute for survey and assess the loss to the truck in question. The Surveyor and Loss Assessor  Sh. Gurcharan Singh has only mentioned in his affidavit that he submit his report on 15.10.2011 with the OP company and kept mum for the date of allotment of survey. Further the OP insurance company stated that the claim of the complainant has been settled on non standard basis and an amount of 25% has been deducted on this account and if we deduct 25% of the total amount i.e. Rs. 2,07,133/- when it comes to Rs. 1,55,350/- whereas the OP insurance company was prepared a cheque of Rs. 1,47,958/- just to take undue benefit from this Forum. Hence the version of the OP Company from this angle also falsify and no explanation has been mentioned in its written statement or during the course of arguments has been given by the counsel for the OP in this regard. Further from the facts mentioned in para No.3 of the written statement filed by the OP Company it is clear that the OP company wants to get discharge voucher under pressure from the complainant as it has been specifically mentioned by the OP insurance company that as the complainant has not signs on the discharge voucher, the amount could not be transferred in the account of the complainant. We have perused the discharge voucher Annexure R-5 filed by OP company and found that no amount has been mentioned in this Voucher by the OP company. It means that the OP company wants to get sign on blank discharge voucher from the complainant. All these facts of the OP Company clearly shows their malafide intention and unfair trade practice and also constituted deficiency in service on their part.

11.                   However, argument of the learned counsel for complainant that complainant is entitled to get an amount of Rs. 3,28,631/- is not tenable as the complainant has totally failed to file any documents/expert report to rebut the surveyor report otherwise. It is a settle law that credence should be given to the surveyor report being an authentic document and law cited by the counsel of OP is fully applicable in the present case.

12.                   After going through the circumstances noted above and after going through all the documents we are of the considered view that the complainant is entitled to get an amount of Rs. 2,07,133/- the amount assessed by the surveyor from the OP company with interest at the rate of 9% per annum from the date of submission of final survey report i.e. 15.10.2011 till its realization and further to pay Rs. 5000/- as compensation for mental agony, harassment as well as litigation expenses. Accordingly, the complaint is partly allowed in above terms. Order be complied within 30 days from the date of preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.

Dated: 14.10.2015.                 

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

 

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.