Punjab

Ludhiana

CC/15/300

Vachittar Singh - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

Lakhvir Mohd ADv.

12 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 300 of 05.05.2015

Date of Decision            :   12.10.2016 

 

Vachittar Singh son of S.Kartar Singh resident of Ram Nagar, Kesari Colony, Khanna.

….. Complainant

                                                         Versus

 

1.United India Insurance Company, Regd. Office 24, Whites Road, Chennai 600014 through its authorized signatory.

2.United India Insurance Company Limited, Branch Office at Rani Hospital, G.T.Road, Opp.Gen.Bus Stand, Khanna.

 

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.Lakhveer Mohd., Advocate

For Ops                          :          Sh.Baljit Sharma, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, the owner of Toyota Innova vehicle bearing registration No.PB-10-BV-0980 of Model of 2006, got the same insured with Ops for an amount of Rs.3,50,000/- vide insurance policy No.2006003113P108430736 with validity period from 24.3.2014 to 23.3.2015. That vehicle met with an accident on 10.12.2014, due to which, the same stood completely damaged. Estimate for repair got from Toyota Company. Assessment of the loss pegged at Rs.5,09,953/-. Complainant is having no assurance that after getting the vehicle repaired, the same will be of worth using. Complainant sought opinion of mechanics, who suggested not to get the  vehicle repaired because of complete damage of the vehicle. As per those opinions, the repair of the vehicle will not put the same in effective use because running of     the same will put life of the complainant and his family at risk. So, complainant decided not to get the vehicle repaired. Though, Ops are ready to bear the loss for repair, but the repair is of no worth and as such, complainant claimed that he is entitled to the insured amount of Rs.3,50,000/-. Ops through communications dated 25.2.2015 and 17.3.2015 agreed to bear the loss for repair, but complainant do not want to get the vehicle repaired. Registered notice dated 15.4.2015 was got served by the complainant through Sh.Lakhvir Mohd. Advocate for calling upon Ops to pay Rs.3,50,000/-, but no action taken and that is why, by pleading deficiency in service, complaint filed for seeking directions against Ops to the effect that they should pay the full insured amount of Rs.3,50,000/-.

2.                In written statement filed by Ops jointly, it is pleaded interalia as if complaint is not maintainable; complainant has not approached this Forum             with clean hands and there is no deficiency in service on the part of Ops. Admittedly, the vehicle in question insured with Ops and after the accident in question, the claim was lodged by complainant with Ops, in response to which, Kapoor & Co., appointed as surveyor and loss assessor, for assessing loss. That surveyor has opined               that complainant entitled to Rs.1,43,700/- on cash loss basis because the complainant has flatly refused to get the vehicle repaired. In that report, it is mentioned that complainant was pressing to settle the loss on total loss basis. In fact claim of the complainant do not qualify for total loss condition and that is why, complainant was advised to get the vehicle repaired with offer that disbursal of such repair expenses will be made by the insurance company as per the terms and conditions of the contract of insurance. However, complainant arranged a revised estimate from the repairer suggesting as if 239 parts requires replacement/ repair. Initial estimate got prepared by the complainant from the repairer suggested the repair/replacement of 90 parts only. Even after considering the revised estimate submitted by the complainant, Ops found that loss still remained in repairable condition. However, the complainant did not agree for getting the vehicle repaired. It is denied that vehicle of the complainant is totally damaged as alleged. Physical inspection of the vehicle carried out in the presence of representative of the complainant. After discussion with repairers and going through revised repair estimate, it was found that it is not a case of complete damage of the vehicle. The report of surveyor holding IRDA license is binding and as such, complainant cannot compel the Ops to settle the claim on total loss basis. Each and every other averment of the complaint denied by claiming that complainant is entitled to amount not in excess of Rs.1,43,700/-, on cash loss basis.

3.                Complainant to prove his case tendered in evidence affidavit Ex.CA along with documents Ex.C1 to Ex.C14 and thereafter, his counsel closed the evidence.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Jasbir Singh, Manager of OPs along with documents Ex.R1 to Ex.R4 and even affidavit Ex.RB of Sh.A.S.Kapoor, Proprietor of Kapoor & Co., Surveyor and Loss Assessor and thereafter, counsel for Ops closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely.

6.                Counsel for the complainant after taking us through photographs Ex.C7 to Ex.C14 vehemently contends that condition of the vehicle itself reflects as if the vehicle totally damaged and as such, complainant entitled to full insurance amount of Rs.3,50,000/-.Photographs alone cannot be formed the base for finding that it is a case of total loss of the vehicle because report of expert alone can enable this Forum to determine as to whether it is a case of total loss of the vehicle or not? Complainant has not examined any expert, but Ops appointed Sh.A.S.Kapoor, Proprietor of Kapoor & Co., surveyor and loss assessor as an expert for investigating the loss. That expert tendered in evidence his affidavit Ex.RB along with his report Ex.R4. This expert got carried the spot survey from Sh.Sandeep Kumar, who submitted report dated 31.12.2014 along with photographs. That is borne from Para no.11 of report Ex.R4.  Through this report, it has been found that history of accident                                 given by the complainant in the claim form is correct because it tallies with the accident of damage sustained by the vehicle, as a result of accident. If the surveyor can give such favourable report in favour of complainant, then there is no hitch for surveyor to submit report qua total loss of vehicle provided it is such a case. However, the surveyor through report Ex.R4 found the damage to be in repairable condition. This finding was given after discussion with the repairers and by keeping in view the tentative assessment of the loss of the vehicle. Through this report Ex.R4 itself it has been found that as the vehicle is in repairable condition, so claim does not qualify for constructive total loss condition. Complainant was advised to get the repair started from the repairer, but the complainant himself refused to do so is a fact borne from the contents of complaint and affidavit Ex.CA of complainant. So, it is obvious that the complainant instead of getting the vehicle repaired as per advise of the surveyor insisting for getting the claim on total loss basis. This insistence by the complainant is without obtaining report of the expert to the effect that the vehicle is not repairable. However, Ops have submitted report Ex.R4 of IRDA Licensed surveyor and as such, this report Ex.R4 liable to be accepted as correct, particularly when the report is not shown to be biased or incorrect.

7.                As per law laid down in case of New India Insurance Co.Ltd. vs. Vijay Kumar Pandy-2015(3)CPR-43(N.C.), report of surveyor appointed by insurance company must necessarily be preferred over a report obtained by insured from a private surveyor. However, in the case before us, no report obtained by the complainant from any surveyor and as such report Ex.R4 of surveyor appointed by the insurance company has to be taken as correct. As no base provided for rejecting the report Ex.R4 of the surveyor appointed by the insurance company and as such, in view of the refusal by the complainant to get the vehicle repaired despite advise by the surveyor, it is obvious that the complainant entitled to the reimbursement of Rs.1,43,700/-, which is assessed on cash less basis by the surveyor through report Ex.R4. In view of fault of the complainant in not accepting the advise, it is obvious that the complainant put Ops on tenterhooks and as such lesser amount of compensation and litigation cost is required. However, to ensure that adjudged amount of Rs.1,43,700/- paid at earliest, it is fit and appropriate to direct Ops to pay that amount within 40 days, failing which, complainant will be entitled to interest @9% per annum from today.

8.                Ops have already issued letter Ex.R2 dated 8.7.2015 to the complainant for calling upon him to receive amount of Rs.1,43,700/-, provided he sends the cancelled cheque for enabling them to release the payment through NEFT. Genuine offer has been put forth by Ops through this letter Ex.R2 and as such, terms of this letter also needs be taken into consideration for passing final order.

 

9.                As a sequel of the above discussion, complaint allowed in terms that Ops will pay Rs.1,43,700/- on cashless basis to the complainant within 40 days from the date of receipt of copy of this order, subject to sending of cancelled cheque by the complainant to Ops within 30 days from the date of receipt of copy of this order. Complainant will be entitled to interest @9% per annum on the adjudged amount of Rs.1,43,700/-, in case, payment not made within 40 days from the date of receipt of copy of this order, but w.e.f today. Compensation for mental harassment of Rs.2000/-(Rupees Two thousand only) and litigation expenses of Rs.2000/-(Rupees Two Thousand only) more allowed in favour of the complainant and against Ops. Payment of awarded compensation and litigation expenses be also made by Ops within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

9.                File be indexed and consigned to record room.

 

                   (Vinod Bala)                                (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:12.10.2016

Gurpreet Sharma.