Decided on December 17,2013

Vinay Kumar Pandey Respondents


B.C.Gupta, Member - (1.) THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 29.05.2013, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission (for short 'the State Commission') in FA No. 1233/2008, "New India Assurance Co. Ltd. versus Vinay Kumar Pandey", vide which while dismissing the complaint, the order dated 03.06.2008, passed by District Consumer Disputes Redressal Forum, Balia, in consumer complaint No. 210/2007, allowing the said complaint, was upheld. Brief facts of the case are that the petitioner/complainant Vinay Kumar Pandey bought a Tata Sumo vehicle, bearing registration No. UP60D 1951, after raising financial support from the Punjab National Bank, Balia and got it insured with the petitioner Insurance Company for a sum of Rs. 2,49,349/ -. As stated in the complaint, on 21.12.2006, the said vehicle suddenly got imbalanced and over -turned over the road, due to a neel gai (cow) coming before it on the road and got badly damaged. The estimate for repair of the vehicle, as told by the surveyor of the Company on 31.12.2006 was Rs. 2,69,211/ -. The complainant took the vehicle to Gorakhpur after incurring a cost of Rs. 6,000/ - and got it repaired. As per the complainant, he spent a sum of Rs. 2,99,000/ - on the repair of the vehicle, but he was given a claim of Rs. 1,08,805/ - only by the Insurance Company. The complainant filed the consumer complaint in question, stating that he should be given a sum of Rs. 3,56,995/ - which includes the balance money spent on repair, a compensation for delayed payment, i.e., Rs. 1,50,000/ -, the expenses incurred in transportation and Rs. 10,000/ - as compensation for mental harassment. The District Forum vide their order dated 03.06.2008, directed that the complainant should be paid the amount of Rs. 2,49,349/ - which was the sum insured under the insurance policy after deducting the amount of Rs. 1,08,805/ -, already paid alongwith interest @ 9% p.a. and cost of Rs. 2,000/ - as cost of litigation. An appeal filed against this order by the Insurance Company was dismissed by the State Commission vide impugned order. It is against this order that the present revision petition has been made.
(2.) AT the time of hearing before us, it was stated by the learned counsel for the petitioner that the District Forum as well as the State Commission had not given any reasons for differing with the report given by the surveyor. In the report, the approximate net loss had been assessed to be Rs. 1,15,305/ - and after deducting the excess amount etc., a sum of Rs. 1,08,805/ - had been paid. The learned counsel has drawn our attention to the order passed by the State Commission, in which they have referred to a decision, made by this Commission in RP No. 68 of 2005, "United India Insurance Co. Ltd. versus Deen Dayal", in which it has been stated that the report of the surveyor was an important document and should not be brushed aside lightly. However, the State Commission did not rely upon the said decision of this Commission in this case and dismissed the appeal filed by the Insurance Company. On the other hand, the learned counsel for the respondent stated that in a Revision Petition, the National Commission was supposed to go into the question of law only, and the question of fact, determining the quantum of compensation to be paid, could not be gone into at the stage of revision petition. The learned counsel stated that it was a case of total loss and hence, compensation should be given as per IDV mentioned in the Insurance Policy. After the conclusion of arguments, written arguments were filed on the same date by the learned counsel for the respondent, which are taken on record. It has been stated therein that the surveyor had deducted 25% to 50% of the assessed amount without any law or reason. However, both the lower courts had directed to provide compensation as per the IDV value, after deduction of the amount already paid, alongwith interest. The factum of quantum of damages could not be considered in revision petition. The learned counsel, in support of his arguments, has referred to the case "Telecom District Manager, Patna versus M/s. Kalyanpur Cement Ltd.", Revision Petition No. 44 of 1990 decided on 8.11.1990 by the National Commission, saying that the jurisdiction of the National Commission was limited to dispute, where there was wrongful, illegal or improper exercise of jurisdiction. In the case "Dharmendra Goel versus Oriental Insurance Co. Ltd." SLP No. 14054 of 2006 decided on 30.07.2008, the Hon'ble Supreme Court had directed payment as per the IDV of the vehicle. In this case, the vehicle had been declared to be a total loss by the surveyor, appointed by the Insurance Company. The learned counsel has also drawn our attention to the order of the Hon'ble Apex Court in "New India Assurance Co. Ltd. versus Pradeep Kumar" ( : (2009) 7 SCC 787), saying that although the assessment of loss by an approved surveyor is a pre -requisite for payment or settlement of claim, but the report of the surveyor is not the last and final word and is neither binding upon the insurer, nor on the insured.
(3.) WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The report submitted by the surveyor, Vijay & Co. does mention that the original estimate for repair, including the cost of spare parts and labour had been estimated to be Rs. 2,69,211/ -. However, after thorough inspection of the vehicle, the surveyor had assessed the approximate net loss to be Rs. 1,15,305/ -, including the amount of Rs. 31,500/ - as total labour charges. A detailed description of damaged items/parts has been given in this report and it has also been stated that they had made comparison with the report of spot survey as well as the estimate of repairs given by M/s. Subhash Motors. However, a perusal of the orders passed by the State Commission and the District Forum indicates that they have not advanced any cogent reasons for differing with the report given by the surveyor. The impugned order of the State Commission makes a mention of the case decided by the National Commission, i.e., "New India Assurance Co. Ltd. versus Deen Dayal" in Revision Petition No. 68/2005, decided on 16.12.2008 as reported in (II (2009) CPJ 45 (NC)) in which it was held that the report of the surveyor is an important document and cannot be brushed aside lightly without any material to the contrary on record. The National Commission set aside the order passed by the State Commission, saying that it was without rationale or basis.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.