Dev Raj, Member -
(1.) THE facts, in brief, are that the complainant got his trailer bearing Registration No. HR -55 -G -6629 insured from opposite party No. 2, for the Insured Declared Value of Rs. 16,50,000 for the period from 5.2.2011 to 4.2.2012. It was stated that as per the Insurance Certificate (Annexure C -1), the insurance covered third party liability as well as legal liability to paid driver/conductor/cleaner also. The complainant has annexed copy of the Certificate of Registration and National Permit as Annexures C -2 and C -3. It was further stated that, unfortunately, the said vehicle met with a serious accident on 19.12.2011, when all of a sudden the bridge collapsed and the entire vehicle plunged into the riverbed from the height of 100 feet resulting in a total loss. It was further stated that at the time of the accident, two numbers of Three -Axle Line Hydraulic trailers attached to the Volvo Tractor, loaded with Transformer were crossing Rangchang Khola Bridge in East Sikkim, which collapsed. It was further stated that intimation regarding the accident was given to opposite party No. 1 vide letter dated 21.12.2011 (Annexure C -5) and detailed letter dated 9.1.2012 was also submitted to opposite party No. 2 (Annexure C -6). It was further stated that FIR No. 51 dated 19.12.2011 was got registered at Police Station Singtam, DT East Sikkim, Sikkim. It was further stated that spot survey was conducted and report dated 25.1.2012 (Annexure C -7) was submitted by the Surveyor. It was further stated that Opposite Party Nos. 1 and 2 delayed the appointment of final Surveyor, which inordinately delayed the assessment of loss. It was further stated that the complainant wrote a letter dated 15.3.2012 (Annexure C -8) to the opposite parties, requesting them once again, to appoint the competent Surveyor to enable the final disposal and settlement of the claim case. It was further stated that opposite party Nos. 1 and 2 appointed opposite party No. 3, as the final Surveyor in the month of May 2012, who demanded various irrelevant documents and information and delayed the submission of final report on one pretext or the other. It was further stated that opposite party No. 3 finally submitted his report on 26.7.2012 (Annexure C -12), which showed that it was a futile exercise, which only wasted further precious time. It was further stated that as per the Surveyor, the cost of recovery per trailer was Rs. 2,20,000 which, therefore, was not obviously recovered. It was further stated that as per the law of Insurance, if the estimated cost is more than 75% of the IDV, then the case has to be settled on total loss basis. It was further stated that, ultimately, the Surveyor assessed loss on total loss basis, but only recommended the same to the extent of Rs. 12,91,750 and illegally deducted Rs. 3,50,000 as salvage value and Rs. 8,250 as excess clause. It was further stated that the opposite parties could not impose the salvage on the complainant and, therefore, he is entitled to the full IDV of Rs. 16,50,000 on the basis of total loss of the vehicle, apart from the claim under the head of legal liability to paid driver, etc. and third party liability. It was further stated that opposite party Nos. 1 and 2 are delaying the settlement of the claim. It was further stated that the complainant wrote a letter dated 5.9.2013 (Annexure C -14), followed by an e -mail dated 8.10.2013 (Annexure C -15), but to no avail. It was further stated that even after two years of the accident, and fifteen months of the survey report, the claim has not been settled by opposite party Nos. 1 and 2, which amounted not only to deficiency, in rendering service, but also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the opposite parties, to pay Rs. 16,50,000 being the Insured Declared Value along with interest @ 18% per annum w.e.f. 19.12.2011; Rs. 2,50,000 towards legal liability to driver and other employees; Rs. 5,00,000 towards reimbursement of other related expenses; Rs. 5,00,000 as compensation for mental agony and physical harassment; Rs. 3,00,000 as compensation for unfair trade practice, Rs. 50,000 as punitive damages and Rs. 50,000 as legal costs. Opposite parties, in their written version, took up certain preliminary objections, that the Commission has no pecuniary jurisdiction over the matter as the Insured Declared Value of the vehicle, in question, is below Rs. 20 lacs and the complaint was premature as they (opposite parties) have not yet taken a decision on the claim and the same was in the process of settlement. On merits, it was admitted that the Trailer bearing Regd. No. HR -55 -G -6629 was insured with opposite party No. 2 vide Policy No. 35300031100100011181, for the period from 5.2.2011 to 4.2.2012 for the IDV of Rs. 16,50,000. It was admitted that the Insurance Policy covered the legal liability towards the employees connected with the operation of the vehicle but no claim was lodged in this regard. It was admitted that the vehicle, in question, met with an accident on 19.12.2011 while it was being pulled by the Prime Mover and intimation was given on 21.12.2011. It was further stated that the final Surveyor could be deputed on submission of the estimate of the repairs and receipt of the spot survey report. It was further stated that the Surveyor was deputed on 3.5.2012, who visited the spot on 16.5.2012, where the vehicle was lying in the damaged condition. It was further stated that the extent of damage could be intimated by the Surveyor only and the officials of the Opposite Parties had nothing to say about it. It was denied that the final survey by the Surveyor was a futile exercise and the case could have been treated as a total loss. It was further stated that for payment of any claim of Rs. 20,000, it is mandatory under Section 64UM(2) of the Insurance Act, 1938 to depute a licensed Surveyor approved by the IRDA. It was admitted that the Surveyor submitted his report dated 26.7.2012 (Annexure R -2). It was denied that the survey conducted was not proper. It was stated that the Surveyor assessed the loss treating it as a total loss but the IDV of Rs. 16,50,000 was reduced by Rs. 8,250 as Excess Clause as per the Policy and Rs. 3,50,000 were deducted as the salvage value on as is where is basis. It was further stated that, as such, the Surveyor recommended payment of Rs. 12,91,750 for payment on net of salvage basis. It was denied that demand of documents and information by the Surveyor was unnecessary. It was further stated that the amount towards salvage of the damaged vehicle, is required to be reduced from the IDV and complainant was not entitled to full IDV. It was also submitted that payment of loss was subject to terms and conditions of Policy. It was further stated that in the absence of the settlement of claim for the Prime Mover, the claim for the trailer could not be settled. It was further stated that the complainant has not attached any document in support of his contention that the entire loan amount had been paid to the financier. It was further stated that neither there was any deficiency, in rendering service, on the part of opposite parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
(2.) THE complainant, in support of its case, submitted the affidavit of Sh. Atul Loomba, its Proprietor, by way of evidence, along with which, a number of documents were attached. The opposite parties, in support of their case, submitted the affidavit of Mr. Raj Kapoor, Sr. Divisional Manager and Power of Attorney holder, by way of evidence, along with which, a number of documents were attached.
(3.) THE complainant filed replication, wherein the proprietor thereof reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the opposite parties.;