Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Appeal No. 2457 of 2015
Sriram General Insurance Company Limited,
E-8, EPIP, RIICO Industrial Areas, Sitapura,
Jaipur (Rajasthan) 302022 Branch Office,
16, Chintal House, Station Road, Lucknow through
its Manager. …Appellant.
Udaiveer Singh s/o Shivram Singh aged about
42 years, R/o Ghanshyampura, Thana, Jaswant Nagar,
District Etawa. ….…Respondent.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Sushil Kumar, Member.
Sri Dinesh Kumar, Advocate for appellant.
Sri Umesh Kumar Sharma, Advocate for the respondent.
Date 2.11.2021
JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been preferred against judgment and order dated 31.10.2015 passed by the District Consumer Commission, Etawa in complaint case no.74 of 2013.
The grounds of appeal are that, that the impugned judgment is erroneous, legally perverse and without application of mind. The impugned judgment is based on surmises, conjectures and unjust and therefore liable to be set aside. On behalf of the respondent/complainant and insurance policy was taken for truck number UP75/M-0086 for the period of 27.02.12 to 26.02.13 as commercial vehicle as per policy and it’s conditions. The accident occurred on 10.03.2012 and insurance company was intimated on behalf of the insured. The insurance company immediately deputed
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IRDA approved surveyor/loss assessor to conduct spot survey and final survey, after repairing on behalf of IRDA approved surveyor/loss assessor approved ₹1,27,715/– towards repairing in the vehicle insured as per policy and it’s conditions in view of depreciation as vehicle was manufactured in the year 2006.
During investigation it is found that respondent/ complainant facts are different as omitted during spot survey and as such on behalf of insurance company a letter has been sent on 03.08.12 regarding closure of claim on the point of misrepresentation of facts. At the time of accident the vehicle insured was being plied overloaded and as such alleged accident was caused showing gross negligence on the part of insured, but this aspect also ignored by the learned District Forum in the impugned order. From the evidence on record it is clear that vehicle was manufactured in the year 2010, hence it was two years old and accordingly depreciation considered by the surveyor on the spot but Learned Forum ignored the surveyor report in an arbitrary manner. There is no evidence on record in contrary to the survey report but Learned Forum contradicts the survey report in the impugned order.
In several judgments the Hon’ble Apex Court held that survey report is an authentic document and piece of evidence which cannot be ignored without any evidence in contrary to it. As per evidence on record, it is clear that there is no deficiency in service on the part of Appellant insurance company but for the gross negligence on the part of insured regarding overloading but this fact was ignored by the Learned Forum and the Learned Forum decided the
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complaint on the basis of estimate ignoring the surveyor’s report. Hence it is most respectfully prayed that the appeal be allowed and the impugned order dated 31.10 2015 be set aside.
We have heard the ld. Counsel for the appellant Sri Dinesh Kumar and ld. Counsel for the respondent Sri Umesh Kumar Sharma and perused the documents and evidence on record.
We have seen the judgment of the learned District Forum dated 31.10 2015. The learned District Forum has said that the complaint for ₹ 230,000/– is allowed with interest at the rate of 7%. We have seen the surveyor report dated 13.05.2012. The surveyor has assessed the total amount ₹140,215/– after directing salvage ₹ 11,000 and policy access clause ₹ 1500 the total loss assessed as ₹ 127,715/-. The learned District Forum held that the truck met with an accident on 10th March 2012 and the Insurance Company was informed on 12th March 2012. The estimated loss was ₹225,000. The relevant documents were made available to the surveyor but he did not consider this aspect. Total 261 bags of potato were damaged. The learned Forum took the amount of repair and passed the judgment.
In the case of New India Assurance Co. Ltd. Vs. Praseep Kumar, (2009) 7 Supreme Court Cases 787, the Hon’ble Supreme Court has held that the issue involved in this case was whether it was necessary for the respondent to accept payment according to assessment made by licensed surveyors/loss assessor, or respondent could furnish an independent proof in support of his claim that he had incurred
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higher amount towards replacement of damaged parts and repairs charges. Although assessment of loss by approved surveyor is a prerequisite for event or settlement of claim of ₹ 20,000 or more by insurer, yet surveyor’s report is not the last and final word . It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor’s report may be basis or foundation for settlement of claim by the insurer in respect of loss suffered by insured but such report is neither binding upon the insurer not insured.
In the case of Dharmendra Goel Vs. Oriental insurance Co. Ltd., III(2008) CPJ 63 (SC), Hon’ble Supreme Court has held that the accident had happened on 10th September 2002 during the validity of the insurance policy. The vessel was insured for ₹ 354,000/–. It is also admitted position that the vessel had been declared to be a total loss by the surveyor appointed by the company though the value of the vehicle on total loss basis had been assessed at ₹ 180,000/–. But as the company itself had accepted the value of the vehicle at ₹354,000/– on 13.02.2002, it could not claim that the value of the vehicle on total loss basis on 10 September 2002 that is on the date of the accident was only ₹ 180,000/–. The vessel was insured at ₹ 430,000/–, and the policy was renewed on the value of ₹ 359,000/– and further it was renewed at the value of ₹ 354,000/–. The Hon’ble court held that they are unable to accept the companies contention that within a span of seven months from 13 February 2002 to the date of the accident, the value of the vehicle had depreciated from ₹354,000/– to ₹ 180,000/–. The Hon’ble court held that some depreciation in the value of the vehicle
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ought to be made and the compensation determined on the basis. As seven months of the policy had expired, the value of the vehicle should be reduced by ₹ 10,000/–.
The appellant quoted the case law of Khimjibhai Vs. New India Assurance Company Limited, IV (2011) CPJ 458(NC). In this case the Hon’ble National Commission has held that the District Forum erred in discarding the surveyor’s report and bills scrutiny report submitted by the surveyor without any cogent or convincing reasons. It is to be noted that it is in accordance with the requirement of law that is surveyor is required to be appointed by the insurance company and when such a surveyor who is licensed to professional to assess such loss gives a report with reasons to support the same, such report can be discredited only on the basis of specific grounds which are required to be recorded in the order. Mere production of bills or estimates are cannot be the basis for discarding the report of the surveyor.
Now in the light of the judgment of the Hon’ble Supreme Court we again perused the impugned judgment of the learned District Forum. The learned District Forum has assessed the value at ₹230,000/– but no depreciation has been detected. In view of the Hon’ble court’s decision it deposition of at least 10% should be deducted from this amount. We do not find any cogent reason to disbelieve the facts of the impugned judgment. In our view the impugned judgment is according to law and only 10% should have been directed from the award of ₹ 230,000/– except this there is no need to interfere in the impugned judgment.
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ORDER
The appeal is allowed partially. In the impugned judgment the amount of ₹2,30,000/– is amended to rupees Rs.2,07,000.00. Judgment is upheld.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Rajendra Singh) (Sushil Kumar)
Presiding Member Member
Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Rajendra Singh) (Sushil Kumar)
Presiding Member Member
Jafri, PA II
Court 2
