Decided on February 03,2014

TARSEM SINGH Respondents


Baldev Singh Sekhon, J. - (1.) THIS appeal has been filed by the National Insurance Company, appellant on behalf of opposite parties against the order dated 13.7.2012 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur (in short "District Forum"), vide which the complaint filed by the respondent/complainant was accepted and the opposite parties were directed to pay the claim amount of Rs. 6,32,427 to the complainant along with compensation of Rs. 20,000 for harassment and mental agony within 30 days from the date of receipt of copy of the order, failing which this amount was to carry interest @ 9% per annum from the date of issue of the order till realisation. The facts, as stated in the complaint, are that the complainant purchased a Hyundai, I -20 car on 11.8.2011 from Kosmo Automobiles, Showroom -cum -Workshop, opposite Delhi Public School, G.T. Road, Jalandhar. The said vehicle was insured with the opposite parties, vide policy No. 401011006384 that was valid for the period from 11.8.2011 to 10.8.2012. Unfortunately, the said car met with an accident on 12.8.2011 in which it was totally damaged. A DDR was got registered by the complainant regarding the accident on 12.8.2011 in Police Station, Mukerian. He also intimated opposite parties and lodged insurance claim of about Rs. 6,00,000 with them on account of total loss of the vehicle as the insured value of the vehicle was Rs. 6,32,427. The Surveyor, appointed by opposite party No. 1, assessed the loss to the vehicle. He completed all other formalities required by opposite party No. 1 but no claim was paid to him. A legal notice dated 15.10.2011 was also served upon opposite party No. 1 which was duly received by it. They sent a letter dated 28.11.2011 asking the complainant to dismantle the vehicle, however, he insisted upon the opposite parties, vide notice dated 15.12.2011, to consider it as a case of total loss and to pay the entire claim of Rs. 6,32,427 but the same was not passed. Hence he filed the complaint before the District Forum, seeking directions to the opposite parties to pay him the claim of Rs. 6,32,427 besides compensation of Rs. 25,000 on account of deficiency in service and harassment suffered by him.
(2.) UPON notice, the opposite parties filed joint written reply admitting therein that the vehicle was duly insured with them and the same met with an accident on 12.8.2011. It was pleaded that that Surveyor, Sh. Kuldeep Sharma was appointed to investigate into the matter and to assess the loss caused to the vehicle, who reported that the vehicle had not suffered a total loss but it was repairable as the repair cost was less than 75% of IDV of Rs. 6,32,427. In his detailed report dated 15.11.2011, he estimated the liability of the opposite parties on repair basis as Rs. 3,49,713. He further reported that the liability on repair basis can increase to some extent once the vehicle was dismantled and damages to Engine Assy, are noted and that the salvage of the damaged vehicle can fetch Rs. 3,00,000. Accordingly, the insured was advised to proceed with the dismantling of the vehicle and to get the same inspected, vide letters dated 28.10.2011, 13.10.2011 and 27.12.2011. The Surveyor also assessed the loss to the vehicle on cash loss basis as Rs. 2,28,036.85 in case the insured did not want to proceed with the repairs of the vehicle. The complainant was, thus, guilty of his own wrong as he did not get the vehicle dismantled. The legal notice dated 15.10.2011 of the complainant was replied on 28.10.2011 whereby he was again called upon to get the vehicle repaired and to show the same in dismantled condition to the Surveyor. The complainant was falsely claiming Rs. 6,32,427 whereas they were still ready to settle the claim on "repair basis" or in alternative on "cash loss basis" as per the report of the Surveyor, in terms of the insurance policy. Dismissal of the complaint was prayed. The parties led their evidence by way of affidavits and documents and the District Forum, after going through that evidence, allowed the complaint in the aforesaid terms.
(3.) AGGRIEVED by this order, the appellant has come up in appeal on the ground that it was wrongly concluded by the District Forum that no implicit reliance can be placed on the report of spot Surveyor, Vishal Rana, on the ground of contradiction in the report. While reporting the damaged and undamaged parts of the vehicle, in question, under the head - -Nature of Damage to the Cab Assembly, it is mentioned that: Engine Assembly and gear box assembly may be checked for any internal damage after dismantling. However, under the column - "name of parts affected qua engine" it is mentioned "OK" under the column nature of damage. There is no contradiction in the above two items. The report of the spot Surveyor, who has first seen the vehicle in the damaged condition, cannot be ignored and his report is most reliable. He had taken the photographs of the damaged vehicle from different angles to depict the damage. In fact the final Surveyor is to take into account the spot Surveyor's report while preparing the final report. In concluding para of the spot Surveyor Report (Ex. R -14), the Surveyor has clearly mentioned that every possible care was taken to note down the visual damage, however, if any internal items remain, a suitable decision may please be taken on the basis of cause of accident and photographs. It has been wrongly concluded by the District Forum that the stand taken by the opposite parties in not treating the vehicle as total loss is based on conjectures and surmises. It has also been wrongly concluded that while arriving at the assessed amount of the repair, no dealer's rate list was produced whereas is mentioned in para 11 of the Surveyor's report that the cost of parts are allowed as per dealer's price list. The Surveyor has rightly not mentioned any amount against the engine assembly as it needed checking on dismantling. Similarly in item No. 31, Panel Assy. CTR Facia Lever, also no amount has been written because it needed checking. The District Forum has wrongly relied upon the affidavit of Mukesh Kumar, who has been termed as expert; though he is not an IRDA approved Surveyor. The report of a mechanic cannot be accepted as the report of an expert. Section 64UM of the Insurance Act, 1938 stipulates that all losses above Rs. 20,000 are to be paid by the insurer only after getting, the same surveyed by an approved Surveyor. The District Forum has wrongly added an amount of Rs. 1,54,660; being the cost of Engine Assembly, without ascertaining the extent of damage it has suffered. Acceptance of the appeal and setting aside of the impugned order was prayed.;

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