BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI. 

                                                          Complaint No.: 110 of 2016.

                                                         Date of Institution: 23.5.2016.

                                                          Date of Order: 11.02.2019.

In Re: - Pardeep Director

M/s K. S. C. Buildcon Pvt. Ltd., 32, Patel Nagar, Bhiwani through its authorized signatory.

                                                                   …..Complainant.

                    Versus

United India Insurance Company Limited, having its registered and head office at 24, Whites road, Chennai and one of its Branch Office at Red Cross Building, Main Zoo Road, Bhiwani-127021 (Haryana) through its Branch Manager.

…...Opposite Party.

                   COMPLAINT UNDER SECTIONS 12 AND 13 OF

                   THE CONSUMER PROTECTION ACT, 1986.

Before: -      Hon’ble Mr. Manjit Singh Naryal, President.

                   Hon’ble Mr. Parmod Kumar, Member.

                   Hon’ble Ms. Renu Chaudhary, Member.

Present:       Shri Pardeep Vashisth, Advocate for the complainant.

                   Shri R. K. Verma, Advocate for the OP.

ORDER:-

PER MANJIT SINGH NARYAL, PRESIDENT

                   Brief fact of the case are that the complainant firm is owner of heavy goods vehicle bearing registration No.HR-61B-1946 and has taken a comprehensive insurance policy from OP under G. C. V. public carrier other than three wheeler package policy, bearing policy No. 1112023112P000206775 valid from 4.5.2012 to 3.5.2013.  It is alleged that the complainant is holding a national permit for public carrier No. N.P.C. 552/NP/12 dated 3.6.2012 issued by Secretary, Regional Transport Authority, Bhiwani.  It is further alleged that the complainant has employed Shri Pardeep son of Shri Manphool Singh, resident of Agroha, District Hisar as driver on the aforesaid vehicle, who is holding a DL No. HR3920010190128 dated 5.2.2001 issued by the MVA-cum- Secretary, RTA, Hisar, who is eligible to drive heavy goods vehicle.  It is further alleged that on 30.4.2013 in the night at about 11.15 p.m., stones were loaded from Arihat Mining (Rajasthan) in the vehicle in question for unloading the same at Kamrup Stone Crusher, Khanak (Bhiwani), a receipt No.279803 dated 30.4.2013 was also issued by the owner of mining.  It is further alleged that on 1.5.2013 at about 6.00 p.m. during the course of unloading the stones, due to imbalance of the vehicle, it turned turtle and the vehicle suffered extensive damages.  It is further alleged that immediately the matter was reported to the OP Company and Shri Satish Yadav, Surveyor was deputed to inspect the spot and Shri Rajiv Gupta, Surveyor was deputed for final survey.  It is further alleged that the complainant was asked to get vehicle repaired and to lodge the FIR.  It is further alleged that a sum of Rs.3,95,895/- were incurred on the repairing of the vehicle.  It is further alleged that after completing the formalities, a claim No.112202/3113C050059001 claiming Rs.3,95,895/- has been lodged with the OP.  It is further alleged that the claim of the complainant has been repudiated by the OP vide letter dated 20.12.2013 on the ground that loss occurred during unloading of vehicle No.HR-61B-1946, which does not fall under the purview of the policy and as such the OP is unable to indemnify the loss.  It is further alleged that there is no such violation of any terms & conditions of the insurance policy and while repudiating the claim, the competent authority did not apply its judicial mind.  Hence, it amounts to deficiency in service on the part of OP.  Hence, this complaint.

2.                On notice, OP appeared and filed the contested written statement.  It is alleged that on received of intimation with regard to alleged loss vide letter dated 2.5.2013, Mr. Satish Kumar Yadav, independent surveyor & loss assessor was deputed to carry out the spot survey and he submitted his report dated 13.5.2013.  It is further alleged that Shri Rajiv Gupta, another independent surveyor and loss assessor was also deputed to carry out the final survey, who has assessed the loss to the tune of Rs.71,239/-.  It is further alleged that after receiving the aforesaid report, OP has gone through the papers available on the file and also gone through the reports submitted by both surveyors and after due application of mind has found that the loss occurred during unloading of the vehicle, which does not fall under the purview of the policy.  It is further alleged that the competent authority of the OP Company, after due application of mind, has closed the file of the complainant as no claim and intimation was sent vide letter dated 20.12.2013.  It is further alleged that Surveyor Shri Rajiv Gupta has assessed the loss to the tune of Rs.71,239/- and it is wrong that the loss of the vehicle was Rs.3,95,895/-.  Therefore, there is no deficiency in service on the part of the OP and prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant to prove his case placed on record the documents Annexure C1 to C15 and closed the evidence. 

4.                 Ld. Counsel for the OP has placed on record documents Annexure R1 to R6 and closed the evidence.

5.                We have heard ld. counsel for both the parties at length and gone through the case file very carefully.

6.                The only plea taken by the OP is that the loss occurred during the unloading of the subject vehicle, which does not fall under the purview of the policy, is not tenable at all, because the OP has failed to show any clause in the policy in this regard.  Thus, it is clearly proved that the OP Company has wrongly repudiated the claim just to harass the complainant.  Moreover, ld. counsel for the OP in support of their stand has placed reliance upon [2012] CJ 439 (N.C.) National Insurance Company Ltd. Vs Mehboob Khan, wherein it has been held by the Hon’ble National Commission that “at the time of accident, insured was not carrying goods in tanker as a Carrier – when insured was not acting as Carrier and no legal liability had been incurred by insured under Carriers Act, Insurance company was not liable to indemnify insured of any loss suffered to goods being carried by somebody else acting as a Carrier in tanker owned by respondent – order passed by For a below set aside”.  But the same is not applicable to the facts & circumstances of the present case, as in the above cited case, the reimbursement of loss suffered to goods being carried by somebody else was demanded by the insured and in the present case the loss suffered to the insured vehicle has been demanded by the complainant. 

7.                Ld. counsel for the complainant has contended that the complainant is entitled to get the amount of Rs.3,95,895/-, which he has incurred on the repair of the vehicle, as the surveyor’s report is not the last and final word and it is not conclusive.  He placed his reliance upon Civil Appeal No.3253 of 2002, New India Assurance Vs Pradeep Kumar, decided on 9.4.2009 by the Hon’ble Supreme Court of India and upon Revision Petition No. 1513 of 2007, Manikant Vs New India Assurance, decided on 6.9.2011 by the Hon’ble Nation Commission.  We have gone through the case law cited by the ld. counsel for the complainant, wherein it has been held by the Hon’ble Apex Court that “Though the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of Rs.20,000/- or more by insurer, yet the surveyor’s report is not the last and final word and it is not conclusive – It may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured” and the Hon’ble National Commission has held that “Respondent relied upon the surveyor’s report which states that the tractor was carrying bricks, stones, cement etc. for construction purposes in respect of some government works and not for agricultural use for which it was insured thus violating the terms of the insurance policy as well as the driving licence – No evidence led to prove these facts – Surveyor did not appear in Court and subject himself to cross-examination nor was any affidavit filed by him to prove his report – Producing a document in Court does not by itself constitute proving the document – It has to be backed by credible evidence – In the absence of evidence to prove the Surveyor’s Report it has little evidence value – Contention relied that Respondent-Insurance Company has been able to show substantial and credible evidence that the tractor was being use for transporting goods and thus violating the terms and conditions of the insurance policy and the driving licence – Order of the State Commission liable to be set aside and the order of the District Forum allowing the complaint restored”.  The citation produced by ld. counsel for the complainant clearly shows that the surveyor’s report is not the last and final word and it is not conclusive, but in the present case the complainant has failed to place on record the genuine bills of repair of the vehicle and he only placed on record quotations/Estimate/letter pad of the workshops having hand written numbers, which cannot be believed as genuine.  So in present case the surveyor’s report cannot be disbelieved in the absence of the genuine repair bills.  

8.                From the above facts & circumstances, it is clearly proved on record that OP Company has failed to provide satisfactory services to the complainant i.e. settling the genuine claim of the complainant, for which they have charged the premium and they are bound to settle the genuine claims of their consumers.  So, the OP Company has defeated the very purpose of taking the insurance policy.  The OP Company has admitted the fact of loss sustained to the insured vehicle.  But the OP Company has repudiated the claim of complainant only on the ground that the loss occurred during unloading of the subject vehicle which does not fall under the purview of the policy, whereas they have failed to produce any cogent & convincing evidence on record to prove their stand.  Thus, there is gross negligence and deficiency in service on the part of the OP and they cannot be allowed to run away from their responsibility.  Now, the question arises whether the complainant is entitled to claimed amount or the amount assessed by the surveyor.  The complainant has demanded Rs.3,95,895/- as cost of repair of the insured vehicle and placed copies of various bills.  Whereas, surveyor has assessed the loss to the tune of Rs.71,239/-.  From the perusal of bills, it reveals that most of the bills have been prepared on the letter pad/Quotations/Estimate of the workshops having hand written bill numbers, which cannot be believed as genuine.  Moreover, complainant has failed in filing the affidavit of the owners of workshops from them he has got repaired his insured vehicle.  It is also not understandable that as to how the insured vehicle has sustained such a huge loss, when the vehicle has only been turned turtle while unloading the goods.  So, in our view the complainant is only entitled to the loss assessed by the surveyor in his report i.e. Rs. 71,239/-.

9.                Therefore, in view of the above facts and circumstances, the complaint of complainant is partly allowed with costs.  Thus, the OP is directed to: -

i.        To pay Rs.71,239/- together with interest @ 9% per annum from the date of repudiation i.e. 20.12.2013 till its realization.

iii.      To pay Rs.7000/- as litigation charges. 

The compliance of the order shall be made within 30 days from the date of the order.  In case of default, the OP shall liable to pay interest @ 18% p.a. on total amount as directed above vide clause No. i to iii from the date of default i.e. after 30 days from the date of this order i.e. 11.2.2019.  Certified copies of the order be sent to parties free of costs.  File be consigned to the record room, after due compliance.

Announced in open Forum.

Dated: 11.02.2019.                 

(Renu Chaudhary)         (Parmod Kumar)        (Manjit Singh Naryal)

Member.                        Member.                         President,

                                                                      District Consumer Disputes

                                                                   Redressal Forum, Bhiwani.