Haryana

Karnal

33/2010

Chap Singh S/o Sukhbir Singh - Complainant(s)

Versus

The United India Insurance Company - Opp.Party(s)

Sh. Rajiv Gupta

22 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.33 of 2010

                                                             Date of instt. 21.01.2010

                                                               Date of decision:22.12.2016

 

Chap Singh(since deceased) son of Shri Sukhbir Singh resident of village Salwan, Tehsil Assandh, District Karnal now represented through his legal heirs:

 i)      Smt. Babita                     Widow

ii)       Sangeram Singh             Son

iii)      Anusita (minor)               daughter

iv)      Sirishti (minor)                daughter

 

minors through their mother Smt. Babita being next friend and guardian ad-litem.

 

                                                                   ……..Complainants.

                                      Versus.

United India Insurance Company Limited G.T.Road, Karnal through its Divisional Manager.

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:       Sh. Rajiv Gupta Advocate for the complainant.

                    Sh.Sudhakar Mittal Advocate for opposite parties.

 

 ORDER:

 

                   This complaint has been filed by the complainant Chap Singh (since deceased and now represented by his legal heirs) u/s 12 of the Consumer Protection Act 1986, on the averments that he got insured his Mahindra Scrorpio vehicle bearing registration no.HR-40-B-0111 with the opposite party, vide cover note no.300096, valid from 10.01.2009 to 09.01.2010. On 20.8.2009, while he was going from village Salwan to Assandh and reached near village Dupedi, suddenly, a child came on the road and in effort to save the child, he lost control over the vehicle due to which the vehicle turned turtle. In the accident, he received injuries and the vehicle was badly damaged.  Daily Diary Report no.20 dated 25.08.2009 was registered in Police Station Assandh regarding the said accident. After the accident, he informed the opposite party. Surveyor was deputed by the opposite party to assess the loss. Thereafter, opposite party asked him to get the estimate of expenses to be incurred on the repair of the vehicle from authorized dealer, therefore, he got prepared the estimate from P.P.Automotive G.T. Road, Karnal. As per the estimate an amount of Rs.7,19,440/- was required for repair of the vehicle. He deposited the estimate with the opposite party, who assured that the amount would be released shortly, but the matter was postponed on one pretext or the other. In this way, there was deficiency in service on the part of the opposite party due to which he suffered mental agony, pain and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite party, who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant had no cause of action to file the complaint; that the complainant was estopped from filing the complaint by his own acts and conduct; that the complaint is not maintainable as there was no deficiency in service on the part of the opposite party and that the complicated questions of law and facts are involved, therefore, the complaint cannot be adjudicated under summary jurisdiction by this forum.

                   On merits, it has been submitted that the opposite party vide letters dated 03.06.2010, 18.03.2010 asked the complainant to get repaired his vehicle, but he did not get repaired the vehicle and was adamant for settlement of his claim on total loss basis. The estimate obtained by the complainant did not depict the true picture. The surveyor vide report dated 3.3.2010, recommended the claim on repair basis and assessed the loss to the tune of Rs.4,19,724/- subject to terms and conditions of the insurance policy. There was no deficiency in service on the part of the opposite party.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex. C2 to C5 have been tendered.

4.                On the other hand in evidence of the opposite party, affidavit of Mahesh Chander Senior Divisional Manager Ex.O1, affidavit of Ravi Kumar Gupta Surveyor and Loss Assessor Ex.O2 and documents Ex.O3 to Ex.O5 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                The vehicle of the complainant bearing registration no.HR-40-B-0111 was insured with the opposite party for the period of 10.01.2009 to 09.01.2010. The said vehicle met with an accident on 20.08.2009. The complainant suffered injuries and the vehicle was badly damaged due to the said accident. Intimation was given to opposite party, who appointed surveyor and loss assessor. Complainant claimed the amount of Rs.7,19,440/- as compensation for repairs on the basis of the estimate prepared by P.P.Automotive, whereas the surveyor/loss assessor of the opposite party assessed the loss as Rs.4,19,724/-.

7.                It is settled proposition of law that surveyor report has significant evidentiary value unless it is proved otherwise. The surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them. In this context reference with advantage may be made to D.N. Badoni Vs. Oriental Insurance Co. Ltd. 2012 CPJ 272 (NC, United India Insurance Co. Ltd. & others Versus Roshan Lal Oil Mills Ltd. & Others 2000(10) SCC 19  and Sri Venkateshwara Syndicate Versus Oriental Insurance Co. Ltd. and another 2009 (8) SCC-507.

8.                The complainant in order to rebut the report of the surveyor of the opposite party has produced the report of J.K. Sharma Automobile Engineer Ex.C5. He had prepared his report on 14.05.2012 i.e. after a period of more than 2½ years of the accident. As per his report, the total repairing cost+5% unseen losses may be found on dismantling as Rs.5,91,875/-. Cost of salvage was assessed by him as Rs.31,875/-. He assessed the loss on total loss basis as Rs.5,40,000/- after deducting cost of wrackage as Rs.2,00,000/- out of the total cost of the vehicle in 2009 as Rs.7,40,000/-.

9.                The opposite party had appointed Ravi Kumar Gupta as Surveyor and Loss Assessor, who submitted report Ex.O5. He filed his affidavit Ex.O2 in support of his report. He assessed the loss on total repair basis as Rs.4,19,724/- A perusal of his report shows that he had estimated the repair charges as Rs.6,50,193.19P, but deducted the depreciation out of the same and assessed the cost of the parts as Rs.3,51,786.60P and labour charges as Rs.68,937.50P, thereby calculating the net loss as Rs.4,19,724/-. The report of J.K. Sharma Ex.C5 indicates that he assessed the cost of the parts as Rs.4,90,191/- and labour charges as Rs.73,500/-. He had not deducted any amount as depreciation as per terms and conditions of the policy, whereas Ravi Gupta had deducted the depreciation amount also while calculating the total loss. Thus, there appears to be no material difference in both the reports regarding assessment of the loss. Had J.K. Sharma deducted the depreciation as per terms and conditions of the insurance policy then there would have been minor difference in the loss assessed by him and the surveyor appointed by the opposite party.

10.               It is pertinent to note that J.K. Sharma in his report did not clarify that the vehicle was not repairable. He only submitted that the loss on repair basis was Rs.5,60,000/-, which was on the higher side, therefore, repair was not viable. He even assessed the loss on total loss basis as Rs.5,40,000/-. Therefore, looking into all such facts and circumstances, there is no reason discard the report of Ravi Kumar Gupta, the surveyor appointed by the opposite party, who assessed the loss on repair basis as Rs.4,19,724/-.

11.              The complainant did not get repaired his vehicle. The opposite party has alleged that the complainant was adamant for settlement of claim on total loss basis. If, the vehicle was repairable then it was incumbent upon the complainant to get the same repaired. Had more amount been paid for the repairs, he could submit the bills of the same to the opposite party and in that case the opposite party would have been liable to make payment of that amount. Therefore, in such a situation non-payment of the claim of the complainant on the basis of the estimate prepared by P.P.Automotive cannot be termed as deficiency in service on the part of the opposite party. The opposite party could only be blamed when the complainant would have got repaired his vehicle and the opposite party was not willing to make payment of those bills.

12.              Under such facts and circumstances, the complainant is only entitled to claim an amount of Rs.4,19,724/- as the loss assessed by the surveyor appointed by the opposite party on repair basis.

13.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party to pay Rs.4,19,724/- to the complainant  as loss assessed by the surveyor. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear if the abovesaid amount is not paid within stipulated period then this amount will carry interest @ 9% per annum from the date of announcement of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 22.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member`