BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^TH DAY OF NOVEMBER 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35(1) of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Pass an award directing the OP to pay a sum of Rs.6,78,989/- to the complainant with interest @ 18% p.a., from 20.12.2022.
2. Grant compensation to the complainant for the loss and injury suffered by him.
3. Grant cost of the complaint and proceedings.
4. And also grant such other and further reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant is the owner of Mercedes Benz GLC 220 Motor Car No.KA-01-MR-1017, and the same was insured with the OP vide policy No.V9596997, dated 13.01.2022, with coverage period from 18.01.2022 to 17.01.2023 have comprehensive insurance policy with zero depreciation coverage.

3. On 17.05.2022 the said car met with an accident without any third party injury or damage but the vehicle got damaged heavily.  In this connection the complainant had made the claim vide claim No.CM 458146 and submitted the estimation of Rupees 20,11,450/- for the repair of the same which was duly approved by the OP on 09.09.2022.  After that the complainant got the said car duly repaired and submitted the bills for Rs.20,09,910/- for which the OP had made the payment of Rs.13,30,921/- on 08.02.2023 through RTGS to the account of the complainant.  The complainant has received the amount under protest. There is a short payment of Rs.6,78,989/- against the total claim of Rs.20,09,910/-.
4. After that the complainant has requested the OP to settle the entire amount claimed by him but the OP failed to settle the entire claim of the complainant even though there was a valid insurance coverage.  The complainant got issued legal notice to the OP on 15.02.2023 and the same was duly served on the OP and the OP has sent a reply on 21.03.2023 but failed to settle the claim.  The complainant is subject to undue hardship, injury and inconvenience apart from damages, the complainant was deprived of the usage of his car due to the act of the OP. Hence he has filed this complaint.
5. Inspite of appearance of the OP they failed to file the version within 45 days. Hence this commission has rejected the version and further rejected their evidence and documents since the evidence and the documents are filed without the pleadings.
6. The complainant has filed his affidavit evidence and relies on 12 documents. 
7. Heard the arguments of advocate for both the parties.  Perused the written arguments filed by the OP.
8. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

9. Our answers to the above points are as under:

Point No.1:  In the Negative

Point No.2: In the Negative

Point No.3: As per final orders

REASONS

10. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, affidavit evidence of the complainant, written arguments of OP and documents filed by both the parties.
11. The complainant is the owner of Mercedes Benz GLC 220 Motor Car No.KA-01-MR-1017, and the same was insured with the OP vide policy No.V9596997, dated 13.01.2022, with coverage period from 18.01.2022 to 17.01.2023have comprehensive insurance policy with zero depreciation coverage.
12. On 17.05.2022 the said car met with an accident without any third party injury or damage but the vehicle got damaged heavily.  In this connection the complainant had made the claim vide claim No.CM 458146 and submitted the estimation of Rupees 20,11,450/- for the repair of the same which was duly approved by the OP on 09.09.2022.  After that the complainant got the said car duly repaired and submitted the bills for Rs.20,09,910/- for which the OP had made the payment of Rs.13,30,921/- on 08.02.2023 through RTGS to the account of the complainant.  The complainant has received the amount under protest. There is a short payment of Rs.6,78,989/- against the total claim of Rs.20,09,910/-.
13. The main grievance of the complainant is that in view of the approval given by the OP on 09.09.2022 for the total cost of Rs.20,09,910/- the complainant had made the full payment to M/s Car Mechs, the complainant has submitted all the records pertaining to the payments with receipts to the OP on 20.12.2022. Inspite of receipt of full documentary evidences pertaining to the repairs and payments the OP had not paid the full amount and there is a short payment of Rs.6,78,989/-.  After that the complainant got issued legal notice to the OP and it is duly served and the OP had also issued reply notice.
14. Even though the OP have appeared before this commission and filed their version and also led evidence, the same was rejected by this commission since the OP has failed to file the version within 45 days from the date of his appearance before this Commission.  This commission has also rejected the evidence and documents as the evidence and documents were produced without any pleadings on the part of the OP.
15. The complainant in support of his contention has filed his affidavit evidence and relied on Ex.P1 to P12. Ex.P1 to P12 clearly discloses that the complainant is the owner of Mercedes Benz car and he is having valid insurance policy which covers the risk of the vehicle in the accident as on the date of the accident on 17.05.2022. The OP has paid an amount of Rs.13,30,921/- through RTGS out of the amount claimed by the complainant for Rs.20,09,910/-.  Ex.P8 is the reply notice issued by the OP for the legal notice issued by the complainant as Ex.P7.  It is clear from Ex.P8 the reply notice that the OP have assessed that the total loss on the basis of the surveyor report.  The OP have appointed an IRDAI licensed surveyor in alignment with the policy terms and conditions. Accordingly the OP has estimated the damages for an amount of Rs.13,30,921/- and transferred the amount to the account of the complainant on 07.02.2023 and in view of this the OP have refused to pay the entire amount claimed by the complainant.  
16. On this back ground we have gone through the decision of the Hon’ble Supreme Court in Civil Appeal No.9050/2018, between Khatema Fibres Ltd., -vs- New India assurance company Ltd., & another.
17. It is clearly observed by the Hon’ble Supreme Court in this decision that

“This is not a case where the insurance company has repudiated the claim of the appellant arbitrarily or on unjustifiable grounds. This is a case where the claim of the appellant has been admitted to the extent of the loss as assessed by the surveyor.  In cases of this nature the jurisdiction of the special forum constituted under the Consumer Protection Act 1986 is limited. Perhaps if the appellant had gone to the civil court they could have even summoned the surveyor and cross examined him on every minute details. But in a complaint before the Consumer Forum a consumer cannot succeed unless he establishes deficiency in service on the part of the service provider. It is also observed by the Hon’ble Supreme Court that the surveyor is governed by a code of conduct, the breach of which may give raise to an allegation of deficiency in service and that the discretion is vested in the insurer to reject the report of the surveyor in whole or in part cannot be exercised arbitrarily or whimsically and that if so done, there could be an allegation of deficiency in service. A consumer forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyors report to forensic examination of its anatomy just as a civil court could do.

Once it is found that there was no adequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the regulations as to their code of conduct and once it is found that the report is not based on adhocism are vitiated by arbitrariness, then the jurisdiction of the consumer forum to go further is stop.”  

18. The facts and circumstances in the above decision and the facts and circumstances in this complaint are one and the same. The OP company has not at all repudiated the whole claim of the complainant. The claim of the complainant is partly entertained by the OP and they have fixed and processed the loss of amount of Rs.13,13,921/- on the basis of the survey report. The complainant has failed to establish before this commission that the surveyor report is arbitrary and it cannot be accepted.  Under these circumstances, this commission cannot reject the loss assessed by a IRDAI licensed surveyor and relied by the OP in assessing the damages. Therefore, the complainant is failed to establish the deficiency of service on the part of the OP. Hence the complainant is not entitled for the relief.   Hence we answer point No.1 and point No.2 in the Negative.
19. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is Dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^TH day of NOVEMBER, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL