(Delivered on 02/05/2019)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original complainant,   feeling aggrieved by an order dated 29/09/2016, passed by the Additional District Consumer Forum, Nagpur   in consumer complaint No. RBT/CC/13/289, by which the said complaint has been dismissed.

2.         The  case of the original  complainant /appellant  herein as  set out by him in the aforesaid  complaint  filed against  the respondent Nos. 1,2&3,  in brief is as under:

a.          The appellant  had purchased policy  from the  respondent Nos. 1&2 for the period from 25/04/2012 to 24/04/2013 covering the risk of his vehicle  bearing  registration  No.  MH-31/CP-4534. The appellant  had obtained  finance from the respondent No. 3 for purchasing  the said vehicle . The said insured vehicle  met with an accident on 11/08/2012 at about 8.10 p.m.  when the bearing of the right  front wheel of that vehicle  suddenly broke which resulted  in  uprooting of the wheel,  leading to the fall of the  imbalanced insured vehicle  in the wet canal,  while  being under operation at Khasada Canal, at Khasada Village. The insured vehicle was  damaged  in that accident. The complainant  gave  intimation of the same to the  respondent Nos. 1&2 immediately  on phon. The  appellant also lodged  report with  police on 11/08/2012 about said  accident. Police registered  FIR bearing No. 127/2012 on 11/08/2012. The appellant also gave  intimation  of that accident  to the respondent No. 3.

b.         The respondent No. 2 orally directed the appellant  to arrange for the spot  photographs of the damaged  insured  vehicle and then to move the vehicle for repairing. Then after the lapse of one day after giving intimation to the respondent No. 2, it directed the appellant to report to it in writing about  the accident. Accordingly, the appellant  vide letter dated 13/08/2012 re-intimated  the  respondent No. 2 about  the  occurrence of the  accident  and  approximate value of  the  repairs  in writing. The appellant requested the respondent No. 2 for issuing the claim form and for appointment of  the surveyor.

c.         It is again  on 14/08/2012, the appellant  made communication  in writing  to the respondent No. 1 with its copy to the respondent Nos. 2&3 and thereby requested them to  arrange   for  the immediate survey of the vehicle  and  expedite the process of the settlement.  The respondent No. 2 issued  a blank claim form to the appellant  on 15/08/2012. The appellant  submitted  the duly  filled  in claim form with  photographs and necessary  documents  including the estimate of repairs  and  spares to the respondent No. 2. Upon  receipt of the same, the respondent Nos. 1&2 registered the claim  and appointed  Mr. Manoj Chandak, to assess the loss by taking survey of damaged vehicle.  Mr. Manoj Chandak visited  the  garage  and took  the photographs of  the vehicle  and  directed the  appellant to  commence the repair works.  He also directed the  appellant  to  visit his office on 16/08/2012 with  all the relevant  documents pertaining to the claim.  Accordingly,  the appellant  visited  the office of  Mr. Manoj Chandak on 16/08/2012 with all documents.  However,  the said Manoj Chandak  demanded  a gratification of 10% of the assessed claim amount  from the appellant.  The appellant  did not pay the same to him.  The appellant  also wrote  a letter dated 16/08/2012 in that respect to the respondent No.1 and  gave its copy  to the respondent Nos. . 2&3. The appellant  also informed  the respondent  No. 1 that  he was  engaging a Government  approved  surveyor for estimate  of the loss.  Upon receipt of the same,  the respondent No. 1 deputed  Mr. Vijay Limaye, another surveyor  to conduct  the final survey of the vehicle and to assess the loss. He  visited the  garage and conducted the final survey.  He assessed the loss  to the tune of Rs. 2,72,556/- as against  the  estimated value of the spares and labour amounting to Rs. 8,42,776/-. Upon  the  completion  of the  assessment  the said surveyor  on 23/08/2012 provided   the appellant  with a discharge voucher  for Rs. 2,72,556/- and directed the appellant to  sign the voucher. However, the appellant  was not satisfied   with that  estimate and therefore he  recorded  his dissatisfaction /protest  to the said amount by  making endorsement  “Without  predjudice  to my right” on the said  voucher.

d.         The respondent Nos. 1&2  in their  letter dated 23/08/2012 made  various  false allegations  about appointment of various  surveyors  and their refusal  to conduct  the survey. The  appellant sent  reply  and refused  all  the said  allegations  and requested the respondent No. 1&2 for making earlier  settlement of  his claim.  Thereafter,  the respondent Nos. 1&2 vide letter dated 01/10/2012 solicited the information  and documents  which were submitted  to them earlier. The appellant  gave reply vide letter dated 13/10/2012 and submitted  the solicited  information  and documents  to them.  However,  thereafter  also the  respondent Nos. 1&2 did not  settle  the claim of the appellant. They did not  inform the appellant about  status of the claim. Hence,  the appellant  filed aforesaid  consumer complaint before the District Consumer Forum, below  alleging  unfair trade practice  on the part of respondent Nos. 1&2  and  seeking direction  to them to pay him Rs.8,42,776/- with interest  at the rate of 18% from  11/08/2012 till its  realisation  and also to pay him compensation  of Rs. 1,50,000/- for physical and mental  harassment  and litigation cost of Rs.25,000/-.

3.         The respondent Nos. 1&2 appeared before the Forum below and filed  common reply & thereby resisted the complaint.  They admitted  the issuance of  the policy , covering  the risk of the vehicle  in question.  They  relied on  condition  Nos. 1  and 5 of the said policy. According to them  as per condition No. 1, notice in writing  about the accident  is required  to be given  immediately  to the insurer whereas  as per  condition No. 5 the insured  shall take  all reasonable  steps to safeguard the vehicle  from loss or damage and or to maintain  the insured vehicle  in efficient condition and insurer shall  have at all times  free and full  access to examine the vehicle   or any part thereof or any driver or employee  of the insured.  In the event of any accident  or breakdown, the vehicle shall not be left unattended without  proper  precaution  being taken  to prevent further damage or loss and if the vehicle be driven before the necessary  repairs are effected any extension  of the damage  or any further  damage to the vehicle  shall be entirely  at the insured’s own risk.

4.         Thus, according to the  case of the respondent Nos. 1&2 no intimation  was immediately  given by the appellant to them.  It is not disputed   that  the  FIR  bearing No. 127/2012 was registered  by the police. It is  denied  that   the intimation  about the accident  was immediately  given on phone by the appellant to the respondent Nos. 1&2.

5.         It is admitted by the respondent Nos. 1&2 that  the appellant gave  them intimation  on 13/08/2012 and claim was accordingly registered with them.  The appellant without  even  informing   the respondent Nos. 1&2 about  the  incident  lifted and moved  the vehicle  for repairs at Summer Engineering  Works, Nagpur and then he   informed the respondent Nos. 1&2. It is also not disputed  that  the appellant submitted claim form on 15/08/2012 and then  submitted  the estimate of  repairs.  It is not disputed that  Mr. Manoj Chandak was  appointed as surveyor  and he visited the  garage  and  conducted  survey. It is denied that  he demanded  gratification  of 10% of the assessed claim from the appellant.  It is not disputed that  the respondent No. 1 deputed  Mr. Vijay Limaye  to conduct the final survey  of the vehicle and he assessed  loss to the tune  of  Rs. 2,72,556/-.  There is fundamental  breach of the aforesaid  policy  conditions. Therefore allegations made in the complaint are denied by the respondent Nos. 1&2. Moreover,  it is also  submitted by the respondent Nos. 1&2  that the appellant  has made  exorbitant  claim. It is also submitted by them  that as  there is violation of  the condition of contract , it has become void and hence, the respondent Nos. 1&2 are not liable  to  answer the claim of the appellant.  Hence, they requested that  the complaint  may be dismissed.

6.         The respondent No. 3 also filed reply to the said complaint and thereby  resisted the said complaint.  It admitted that  it provided  financial  assistance   to the tune of Rs. 9,65,000/- as refinance  to the appellant  as against  the insured vehicle. It is the case of the respondent No. 3 in brief that  the said amount  of Rs. 9,65,000/- was to be repaid in installemnts with interest  as per agreement dated 30/04/2011 by the appellant. It is also  not disputed  by the respondent No. 3 that the said vehicle was insured  with the respondent Nos. 1&2. Thus according  to the respondent No. 3 it  in no way is   concerned with  the accident of insured vehicle  and insurance claim. Hence, it requested  that  the complaint  as against  it may be dismissed.

7.         The learned District Consumer Forum, Nagpur  after hearing  both the parties  and considering   evidence brought  on record  passed the impugned order. The Forum below concluded in the impugned order  that  since  there is delay  of  three days  in giving intimation  of the accident by the appellant  to the respondent Nos. 1&2, there is material breach  of policy condition  and therefore,  respondent Nos. 1&2 are not liable  to  indemnify  him for the said loss. Moreover,  the learned  District Consumer Forum below  also observed  in the impugned order  that there is no evidence to show  that  the respondent No. 2 orally directed the appellant  to arrange for the spot  photographs of the damaged  insured  vehicle and then to move the vehicle for repairing. Moreover, the Forum below  also observed that  there is no  endorsement  on the letter dated 13/08/2012 alleged to have been given by the appellant  to the respondent  No. 1 about receipt  of the same. Therefore,  the Forum held that  the vehicle was moved  from the  spot  before  it can be inspected  by the  surveyor. Hence, the Forum below did not  believe that  the insurance company would  allow the damage vehicle  to be moved for repairs  before  spot  inspection and thus there is  serious breach of  condition of policy.  Thus, the Forum below  dismissed the complaint  by passing  impugned order on two grounds i.e.  the delayed intimation  of  occurance  and not  allowing  to the respondent Nos. 1&2 to make  spot survey of damaged vehicle before  repairs was  carried out. Hence,  feeling aggrieved  by the dismissal of the complaint,  the original complainant  has filed  this appeal.

8.         We have heard  Advocate Mr. J. Vora appearing for the  appellant and Advocate Mr. Sachin Jaiswal  appearing for the respondent  Nos. 1&2. Advocate Mr. Bhole had appeared for the  respondent  No. 3 earlier  but  no one appeared for the respondent No. 3 for making oral submission at the time of final hearing.  We have perused the  entire record  and proceedings of  the appeal and also record and proceedings of the original complaint  as called  in appeal.

9.         The learned advocate of the appellant  reiterated the aforesaid  case of the appellant  as set out  in the complaint. He  has also  drawn our attention  to the compromise pursis  which was filed  before the Forum below  by which  the advocate of the respondent Nos. 1&2 had agreed  to settle the claim for Rs. 5,50,000/-. He submitted that  the pursis dated 20/11/2014 signed by the advocate of the respondent Nos. 1&2  was placed before the Lok Adalat for  settlement  on 13/12/2014 but  the respondent Nos. 1&2 did not turn  up before  the Lok Adalat and hence matter  could not be settled before  the Lok Adalat. He further  submitted that  the Forum below  did not consider  the said  settlement pursis  and also did  not consider the  facts brought  on record in right perspective  and erred in  dismissing the complaint.  He also submitted that  there is no violation of any  of the condition of the policy and that  one the  surveyor  had duly inspected  the  insured vehicle  and spot  photographs  submitted by him and assessed  the loss at Rs. 2,72.556/-. He further  submitted that  said  assessment was not accepted by the appellant  as  he incurred total expenses of Rs. 8,42,776/- for repairing  of the vehicle  and documents of the same were   duly submitted  before the  surveyor   along with claim. He has taken us through the documents as filed on record and submitted that  as the Forum below  has  not  properly  considered the same, the  impugned order may be set aside and claim made  in the  consumer  complaint  may be allowed. He  relied on the decisions  in the following  six cases.

i.          State Bank of  Travancore Vs. M/s. Kingston Computers(I) P.Ltd.,  in Civil Appeal No. 2014 of 2011 decided by Hon’ble Supreme Court. It is observed  by  Hon’ble  Supreme Court that   in our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no  resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company.

 ii.          Uttam Singh Dugal & Co. Ltd. Vs. Unied Bank of India & others,  decided by Hon’ble Supreme Court on  08/08/2000. It is held in the said case that  we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Order XII Rule 6 of  Civil Procedure  Code  is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.

 iii.         M/s. Jyoti Impex Vs. The New India  Assurance Co. Ltd. and others,  in complaint No. CC/09/152, decided by the learned  State Consumer Disputes Redressal  Commission, Maharashtra  on 29/04/2013.  The learned  State Commission observed that for a second period, namely 18/06/1993 till promulgation of IRDA Regulations, 2002, reasonable  period within which claim should have been decided by the Insurance Companies is six months from the date of the claim and if it is not decided within  that  period by the Insurance Company, the claim  shall be treated as  accepted one and subsequent denial of the claim will result into providing fresh cause of action for filing a consumer complaint under section 24-A of the Consumer Protection Act, 1986.

 iv.        New  India  Assurance Company Limited Vs. Praddep Kumar, in  Civil Appeal No. 3253/2002  decided on 09/04/2009. It is observed in the said case that  in other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured.

 v.         Phoenix Comtrade Pvt. Ltd. Vs. United  India  Insurance Co. Ltd. in consumer case No. 86/2015, decided by the Hon’ble National Commission  on 12/04/2017.  It is held in the  said case  that since the insurer has utilized the aforesaid amount, the complainant is also entitled to an appropriate interest on that amount. As per the guidelines issued  by IRDA, the maximum period of six months from the date of the lodgment of the complaint is available to the insurer for payment of the claim. The claim having been lodged on 13.8.2012, the payment ought to have been made by 12.2.2013. The complainant is, therefore entitled to an appropriate interest on the principal amount w.e.f. 13.2.2013.

 vi.        Om Prakash Vs. Reliance General Insurance and Another,  in Civil Appeal No. 15611/2017, decided by the Hon’ble Supreme Court on 04/10/2017. It is observed  in the case that  it is common knowledge that a person who lost his vehicle may not straightaway go to the Insurance Company to claim compensation. At first, he will make efforts to trace the vehicle. It is true that the owner has to intimate the insurer immediately after the theft of the vehicle. However, this condition should not bar settlement of genuine claims particularly when the delay in intimation or submission of documents is due to unavoidable circumstances.The decision of the insurer to reject the claim has to be based on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator. The condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. It needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers. It is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.

10.       On the other hand, the learned advocate of the respondent  supported the impugned order and submitted that  as there is clear cut violation of the policy  condition  due to delay in giving  intimation  of the accident  and  lifting of the vehicle  on the spot  of accident  without  allowing  the respondent  Nos. 1&2 to make  spot  survey, the appellant  is not entitled  to make  any claim. Thus  he also reiterated in his submission,  the stand taken  by the respondent Nos. 1&2 in their  reply filed to the complaint  and reproduced above in brief while  putting their case. He therefore, requested  that  the appeal may be  dismissed.

11.       At the out set  we find that  it is admitted  fact that  the surveyor  Mr. Vijay Limaye   appointed by the  respondent Nos. 1&2  had duly  conduct the survey and submitted final  report which was filed  before the Forum below.  The said surveyor  in his  report dated 28/08/2012 did not make  any statement  that  because of  lack of  spot  survey loss cannot be  assessed. On the contrary  he  observed in the report on second page as follows:-

            “Shriram General  Insurance  Co. Ltd., Jaipur  deputed  me for the survey of the above  vehicle. I visited  the  repairs  workshop and  inspected the vehicle. Damages  noted  and were assessed  and repairs  were  allowed to begin.”

            He also  stated in the  said report  that  “All  parts  were shown to  the  representative of  the insurance company and that some of the assembly parts found damaged were earlier  inspected by first surveyor and the photographs were submitted to me (Mr. Vijay Limiye) by insured and that some of the spot photos are also  submitted  to  me for verification”.

12.       We find that  when the  photographs  of the spot  were taken and shown  to  the surveyor  and considered by the said surveyor  without  any  objection  then it cannot be said that  because of absence of  spot survey there is  breach of  policy condition.

13.       It is also  pertinent  to note that  the surveyor Mr. Vijay Limaye   after conducting due survey prepared  survey report in detail on 28/08/2012 and submitted the same to the respondent Nos. 1&2.  The said survey  report  shows that  he assessed loss at Rs. 2,72,552/-. In our view  when the said  surveyor duly assessed  the loss it cannot be said that  there is  any fundamental  breach of policy condition.

14.       It is also pertinent to note that  the respondent Nos. 1&2 have not  repudiated the claim of the appellant  due to breach of  policy  condition Nos. 1 &5 by him. On the contrary  appellant  submitted all the  relevant documents  along with  claim  form  which  were considered by the surveyor  as above,  while  assessment of  loss. Therefore, we hold that  when  the  respondent Nos. 1&2 have not repudiated  the claim on the  ground  of breach of  any policy conditions, they cannot raise the said defence  for the  first time in their  reply filed to the complaint.

15.       We also  hold that  the respondent Nos. 1&2 cannot  deny  the claim  on technical  ground  of not submitting  the claim in writing to it. The accident took place on 11/08/2012 in which  insured vehicle  was  damaged. The report to  the  Police  was  immediately  lodged  about the same on 11/08/2012.  Crime No. 127/2012  was also  registered by the Police on 11/08/2012. Moreover, in the  natural  course  of conduct the  appellant  gave oral  intimation  of the  accident  on 11/08/2012 to the respondent Nos. 1&2. Moreover, the respondent  Nos. 1&2  in their  reply filed to the complaint  (in para No. 3)  admitted that  the  appellant  intimated them on 13/08/2012 and claim No.10000/31/13/C/028566 was registered.  Therefore, the Forum erred in holding  that there is  no endorsement  on the letter  dated 13/08/2012 submitted  by the appellant  that the claim was submitted on 13/08/2012.  We find that  merely  because  intimation was  given  in writing  on 13/08/2012 by the appellant  to the respondent Nos. 1&2,  it cannot be  disbelieved  that  no oral intimation  was  given  on 11/08/2012 by the appellant  to the respondent Nos. 1&2.

16.       We also hold  that  when  it is not the   case of  respondent Nos. 1&2 that  no such accident took place on 11/08/2012 and when report  to the police  was immediately  lodged on 11/08/2012 by appellant  about  that accident  then it can be said that  it is  genuine  claim of the accident  made by the appellant.  Hence,  it can be said that  the claim cannot  be denied   on technical  ground   of  giving  intimation  in writing  after two days  of accident to the respondent Nos. 1&2. .

17.       Therefore, we hold that  the respondent Nos. 1&2 have rendered  deficient  service to the appellant  by not  settling his claim after receipt  of the same. We also hold that   in the absence  of any cogent  evidence  in rebuttal  of the report  of surveyor   Mr. Vijay Limaye , the appellant is  not entitled  to claim    Rs. 8,42,746/-. We also find that  though  advocate of the respondent Nos. 1&2 had filed  the pursis  dated 20/11/2014 before  the Forum below  for  settlement of claim at  Rs. 5,50,000/- before  Lok Adalat, the appellant  cannot  claim benefit  of that pursis  as claim was  not settled  before  the Lok Adalat on 13/12/2014. However, the fact remains that  the advocate of the respondent Nos. 1&2 had filed the pursis  for settlement  of claim for Rs. 5,50,000/-. It appears that the respondent Nos. 1&2 did not agree  for settlement of Rs.5,50,000/- towards full and final  settlement of claim of the  appellant.

18.       We hold that  there is  no reason to disbelieve  the survey report  of surveyor namely Mr. Vijay Limaye,   who assessed  the loss of Rs. 2,72,552/-. Thus, we hold that the impugned order cannot be sustained in law.  Therefore,  the appellant  is  entitled  to  that amount with  interest  from the date of  impugned order at the rate of  9% P.A.. Hence, we hold that the  impugned order deserves to be set aside and appeal  deserves to be  partly allowed.

ORDER

i.          The appeal is  partly allowed and impugned  order is set aside.

ii.          The respondent Nos. 1&2 herein /original O.P.Nos. 1&2 jointly  and severally  shall pay to the original  complainant / appellant  herein  Rs. 2,72,552/- with  interest at the rate of 9% P.A. from the date of  impugned order i.e. from  29/09/2016 till  realization  of the same by the original  complainant / appellant  herein  and they shall  also pay to him compensation  of Rs. 25,000/- for physical and mental harassment  and litigation cost of Rs. 10,000/-.

iii.         Copy of order be furnished  to both the parties, free of cost.

iv.        The original  record and proceedings  of consumer complaint  bearing No. RBT/CC/13/289 be sent  back to the learned Additional District Consumer Forum, Nagpur.