STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.04.2017
Date of final hearing: 03.05.2023
Date of pronouncement: 07.06.2023
First Appeal No.433 of 2017
In the matter of:-
Magma HDI General Insurance Company Ltd. Magma House, 8 Sant Nagar, East of Kailash New Delhi-110065 through its Assistant Manager Legal, Mr. Sunil Gupta, SCO 75, Ist Floor, Phase 9, Mohali State Punjab. …..Appellant
Versus
Dhramjeet S/o Rai Singh, Proprietor of Dhwan Motors, Gawalision Road, Jhajjar, District Jhajjar. …..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued By:- Sh. Sachin Ohri, counsel for the appellant.
Sh. Amarjeet Beniwal, counsel for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 05 days in filing of present appeal stand condoned for the reasons mentioned in the application for condonation of delay.
2. Challenge in this appeal No.433 of 2017is to the legality of the order dated 01.03.2017 passed by District Consumer Disputes Redressal Forum-Jhajjar(In short “District Commission”) in complaint case No.109of 2016.
3. Complainant is owner of truck No. HR-55S-6835. It is insured with appellant and insurance cover was valid from 12.09.2013 to 11.09.2014. This vehicle met with an accident on 10.06.2014 at 06:00 am on Rewari Road, near Gurukul, Jhajjar and suffered damage. Surveyor of insurer was informed in time. Complainant has allegedly incurred Rs.3,49,160/- on repair of vehicle and submitted claim before insurer along with necessary documents. Insurer/appellant denied his claim. By asserting cause of action, complainant has filed complaint for claiming amount of Rs.3,49,160/- with interest @18%. He also claimed Rs.10,000/- as mental and physical harassment and towards litigation expenses.
4. Insurer/Appellant raised contest. In its defence; it is pleaded that complaint is vague, not maintainable and it does not disclose any cause of action against insurer. Complainant has not impleaded Indus Ind Bank Ltd. being the HPA of vehicle No. HR-55S-6835 (truck). Complainant has not come with cleanhands and suppressed material facts. There is no deficiency in service or unfair trade practice of insurer. Complainant has never intimated the insurer in any manner regarding accident dated 10.06.2014 at 06:00 am. He did not lodge any FIR or DDR in any police station. Insurer appointed surveyor to investigate who has submitted that liability, if any, of insurance company is limited to the assessment of loss by surveyor and it cannot exceed the same. As per surveyor’s interim assessment report; the net loss is of Rs.2,26,592/-. Neither, owner of the vehicle No.HR-55S-6835 had contacted the insurer, nor required documents were supplied to it, which are necessary for settling the claim. Hence, as per plea, there is no deficiency in service on insurer’s part.
5. Parties to this lis led evidence, oral as well as documentary.
6. On analyzing the same, learned District Consumer Commission had disposed off the complaint vide order dated 01.03.2017 by observing that: OP/insurer shall pay Rs.3,48,160/- to the complainant on account of loss suffered to the vehicle in question in accident along with interest @ 9% p.a. from the date of loss (10.06.2014) till realization of final payment. Complainant has also been awarded Rs.5,500/- as litigation expenses.
7. Feeling aggrieved this appeal has been filed by OP/insurer.
8. I have heard both parties at length and with their assistance the record of learned District Commission too has been perused.
9. Learned counsel for the appellant/insurer urged that impugned order dated 01.03.2017 is illegal and erroneous. Insurer has been wrongly foisted with liability to pay Rs.3,48,160/-. The insurer’s liability has to be strictly as per terms and conditions of policy and insurer’s surveyor has assessed the loss to the tune of Rs.2,26,592/- in his interim report which should be accepted, as gospel truth on its face value. Surveyor report has been ignored on wrong notion by learned District Consumer Commission. It is urged that terms and conditions of insurance policy has to be strictly construed and there could no exception so far as this case is concerned. On these submissions learned counsel for insurer/appellant has urged for acceptance of this appeal.
10. Per Contra learned counsel for respondent/complainant has supported the impugned order dated 01.03.2017 on the ground that facts and evidence have been properly appreciated by learned District Consumer Commission and no interference in this appeal is tenable.
11. Admittedly, truck No. HR-55S-6835 make Ashok Leyland was insured with appellant and period of insurance was from 12.09.2013 to 11.09.2014. It is insured in the name of Dhawan Roadways Services. This vehicle met with accident on 10.06.2014 during the currency of policy. Insurance policy Ex.P-5/Ex.R-8 reflect IDV of Rs.16,38,750/-. Obviously, on intimation to insurer regarding accident, loss/damage caused to vehicle; insurer had appointed Sunny Goyal as its surveyor to assess loss. This surveyor submitted assessment sheet (Ex.R-3) before learned District Consumer Commission which reflects insurer’s net liability to the tune of Rs.2,26,592/- with respect to loss/damage caused to vehicle (truck). Surveyor furnished his affidavit Ex.R-2 in this regard, which was only tendered in evidence by learned counsel for OP. In sheer contrast; as per documentary evidence of complainant in shape of expenditure bills Ex. P-7, Ex. P-8, Ex. P-11 to Ex. P-19; Rs.3,48,160/- has been incurred on repair of damaged vehicle.
12. Principle contention on behalf of insurer/appellant that surveyor’s interim report should have been considered on its face value by learned District Consumer Commission is bereft of credence. Record of District Consumer Commission has been minutely perused. Before learned District Consumer Commission Ex.R-3 is the assessment sheet, as per which,insurer’s net liability has been stated to be Rs.2,26,592/-. However, appellant has appended in memorandum of present appeal;document Annexure A-2.First two pages of this document (Annexure A-2) forms the part of Motor Claims Surveyor’s Report and third page thereof is the assessment sheet. Pages 1 & 2 of Surveyor’s report were not produced in evidence by appellant in the proceedings before learned District Consumer Commission. Only assessment sheet has been produced which is exhibited as Ex.R-3. Hence, learned District Consumer Commission remained aloof of integral part of surveyor’s report i.e. first two pages thereof. Moreso, since surveyor’s (Sunny Goyal’s) affidavit Ex.R-2explicitly specifies that liability of insurance company/appellant qua loss/damage caused to truck No. HR-55S-6835 is to the tune of Rs.2,26,592/-, therefore, surveyor (Sunny Goyal) was to required to step in witness box before learned District Consumer Commission and to make himself available for cross-examination. Surveyor has not stepped into witness box. The District Consumer Forum was required to be apprised as to how insurer’s surveyor has arrived at the insurer’s net liability to the tune of Rs. 2,26,592/- but no such evidence has been held except merely, tendering assessment sheet Ex. R-3. Matter does not end here. Surveyor’s (Sunny Goyal’s) affidavit Ex.R-2 does not recite even a word as to when he conducted survey and assessed loss amounting to Rs.2,26,592/-. In assessment sheet on its top right hand side; date 10.10.2014 has been mentioned. Loss to the vehicle occurred four months earlier on 10.06.2014. After four months, assessment sheet is getting light of its day. More so loss/damage has not been assessed in the presence of complainant. Legally, insurer’s surveyor’s report is unilateral in nature as this report-Annexure A-2 appended along with appeal running in three pages, does not bear the signature of insured. It only bears signature and stamp of surveyor. Meaning thereby, assessment has been conducted by insurer surveyor at the back of insured.Consequently, this Commission is of firm view that learned District Consumer Commission has every reason before it to depart from surveyor’s report and to award compensation to complainant as per actual loss caused to the damaged truck No. HR-55S-6835 and expenses (Rs.3,48,160/-) incurred on its repair. In right earnest, the learned District Consumer Commission has ignored surveyor’s report. There is absolutely, no illegality on that front. It would be travesty of justice to accept surveyor report as gospel truth on its face value, in the light of factual scenario of this case. Surveyor report will not form any formidable and acceptable base.
13. Lately, Hon’ble Apex Court in case titled as “National Insurance Company Ltd. versus Vedic Resorts and Hotels Pvt. Ltd.” Civil Appeal No. 4979 of 2019 decided on 17.05.2023 has held that: surveyor’s report is not the final one, nor it is so sacrosanct as to be incapable of being departed from. This being so, the reliance placed by insurer/appellant on cases titled as “Narender Kumar Joshi versus Reliance General Ins. Co. Ltd.” Revision Petition No. 2235 of 2017 decided on 18.09.2017 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi; “United India Insurance Company Ltd. versus Raj Kumar” 2016 (1) CPJ 555 (NC); “New India Assurance Co. ltd. Versus Kamal Nain” 2006 (4) CPJ 84 (NC) and ICICI Lombard Gen. Ins. Co. Vs. M/s Anmol Collections” First Appeal No. 180 of 2019 decided on 22.04.2021 will not sub-serve any cause of insurer/appellant.
14. As a sequel thereto,the only inescapable conclusion which emerges out on critical and subjective discussion of all relevant facets of this case is that: impugned order dated 01.03.2017 does not suffer from any infirmity or any illegality. Order dated 01.03.2017 is the outcome of proper appreciation of facts and evidence by learned District Consumer Commission-Jhajjar. It is maintained and affirmed. Appellant/insurer has been rightly non-suited by learned District Consumer Commission, Jhajjar though its order dated 01.03.2017. This appeal, being devoid of any merits, is hereby dismissed.
15. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal and Rs.2,26,592/- deposited by appellant in compliance of this Commission’s order dated 13.09.2017 be refunded to it,after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
16. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 07thJune, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
