REKHA GUPTA Revision petition no. 3217 of 2014 has been filed against the judgment/ order dated 03.04.2014 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (the State Commission) in First Appeal no. 52 of 2014.
2. The brief facts of the case as per the respondent/ complainant are that the insured car of the respondent met with an accident while it was being driven by the respondents son Gaurav Raghav on 25.08.2012. The Daily Diary Report (DDR) no. 22 was registered on the same day with police station Sadar, Gurgaon. The petitioner/ insurance company was also informed on the same day and Shri Mukesh Mendiratta of New Delhi was appointed as the Surveyor and Loss Assessor, who assessed the loss to the tune of Rs.97,619/- vide his report dated 26.11.2013. The respondent also got an estimate of Rs.3,18,558/- from M/s Apra Auto India Pvt. Limited on 04.09.2012. The Insured Declared Value (IDV) of the said car was Rs.2,12,828/-. The respondent lodged her claim with the insurance company but it did not pay the benefits of insurance.
3. In their written statement before the District Consumer Disputes Redressal Forum, Gurgaon (the District Forum) the petitioner/ opposite party/ insurance company have denied that there was deficiency in service on the part of the insurance company as the petitioner had appointed Mukesh Mendiratta as surveyor and loss assessor. The surveyor and loss assessor was an independent and qualified person being governed by IRDA. As per the report of the surveyor, the net amount payable was Rs.97,619.42 on repair basis as the car was repairable. During the discussion with the repairer, he was informed that since the repair cost was well below 75% of the IDV and the vehicle was repairable there was no other possibility. As per the investigator, on 05.10.2012 the repairer was advised to start the repair work but the repairer refused to do so as the insured had specifically instructed the repairer not to start the repair work. A letter was also sent to the insured informing her of their decision and requesting her to carry out the repairs in her car. The written settlement of repair was also sent to the repairer personally but the repairer showed his inability to settle the claim saying that the insured does not want to get the vehicle repaired at any cost and the respondent wants some other settlement. It was also observed by the surveyor and the loss assessor that the vehicle was easily repairable and all the parts were easily available with the repairer. The surveyor also sent a letter dated 05.11.2012 requesting the insured to authorise the repairer to start the repairs and submit the bills of repairs but there was no response from the insured. The surveyor had also sent the assessment report to the repairer and also written the final letter to the insured. The surveyors report was admissible and cannot be brushed aside. Moreover the respondent herself was lingering in the matter and though the car of the insured was repairable the respondent had refused to give approval to the repairer to start the repair work as the insured knew very well that the cost of the repair assessed by the surveyor was perfectly correct and on the contrary the estimate given by the repairer was on the higher side and exaggerated. The repairer after receiving the mail of the surveyor had not objected to the veracity of the report of assessment. The repairer, in fact, had not assessed the loss as total loss. It was the insured who had alleged that the vehicle was a total loss.
4. The District Forum vide order dated 17.10.2013, while allowing the complaint observed that: Thus, keeping in view the law laid down by the Honble National Commission in the above recent Orders the estimate of repair prepared by the engineers of the authorized workshop of the manufacturer (C-3) has attached much more value than the paid Agent of the Insurance Company who is not even engineer in the concerned field. Thus, the Report of the Surveyor dated 26.11.2012 (OP-5) cannot be believed being only for Rs.97,619.42 as against the experts estimate of Rs.3,18,558/- while the IDV of the vehicle in dispute is only Rs.2,12,828/- when even they failed to rebut the duly attested affidavit of the complainant. Thus, under the circumstances of the case the OP is deficient in providing services to the consumer, however, he is entitled to IDV of Rs.2,12,828/-. However, he has to return the salvage of the vehicle to the OP and to comply other necessary formalities. The OP, however, failed to provide services to the complainant immediately and honestly and even harassed the complaint since long causing mental agony and thus, she is entitled to compensation of Rs.15,000/-and Interest @ 9 % p.a. from the date of filing of the complaint till realization. The complainant is also entitled to litigation expenses of Rs.5,000/-.
5. Aggrieved and dissatisfied by the order of the State Commission, the petitioners filed an appeal before the State Commission. The State Commission while dismissing the appeal observed that: It is an admitted fact that the insured car of the respondent met with an accident. The respondent informed the insurance company well in time and also got DDR lodged on the same day of the accident. The surveyor and the loss assessor was appointed who submitted his report and assessed loss of Rs.97,619.42. On the other hand, the respondent got her car surveyor from M/s Apra Auto (India) Pvt. Ltd., authorized dealer of Maruti Suzuki India Limited, Gurgaon and the engineers of the said workshop assessed the loss of the vehicle to the tune of Rs.3,18,558/-. The car was beyond repair, so the District Forum awarded the IDV of the car to the respondent. The view taken by the District Forum also finds support from the case law United India Insurance Company Limited vs Gupta , 2011 (3) CPC 105, wherein it has been held by the National CommissionTyre House that report of the surveyor while assessing the loss cannot be considered trustworthy. It has always been endeavor of the insurance company to prolong the issue on one ground or the other. This act on the part of the insurance company requires to be discouraged. It is the duty of the insurance company to indemnify the loss suffered by the consumer at the earliest. Hence, the impugned order passed by the District Forum does not require any interference. Finding no merit in this appeal, it is dismissed.
6. Hence, the present revision petition.
7. We have heard the learned counsels for the petitioner and also the respondent and have carefully gone through the records of the case. Learned counsel for the petitioner contended, that the State Commission has erred in passing the impugned order dated 03.04.2014 while dismissing the appeal filed by the petitioner without taking into consideration and appreciating the terms and conditions of the insurance contract and the documents placed on record and the evidence lead by the petitioner. The Surveyor had been appointed under the statutory provisions of Section 64 UM (2) of the Insurance Act, 1938. In terms of Section 64 UM (2) the surveyor was an independent professional engaged by the petitioner to assess the loss suffered by the respondent with respect to respondents car/ property. The report prepared by the surveyor was of a significant and evidentiary value and cannot be ignored and dismissed as such by saying that the assessed loss cannot be considered trustworthy, without giving valid reasons for coming to this conclusion.
8. Learned counsel for the petitioner has further contended that the respondent/ complainant had failed to file any credible evidence on record to controvert the findings of the surveyor. The assessment of the surveyor was that the respondent was liable to indemnify only to the extent of Rs.97,619.42 on repair basis, since the cost of the repair was assessed at Rs.97,619.42 and the vehicle was repairable. Further, as the cost of the repair being less than 75% of the IDV, the question of settling the claim on total loss basis did not arise.
9. Learned counsel for the respondent on the other hand has contended that the since the total estimate of the repair of the vehicle was prepared by M/s Apra Auto (India) Pvt. Ltd., at Rs.3,18,558/- and was far more than the insured IDV of the car, the orders of the Fora below were absolutely fair and correct.
10. We are not impressed with the argument of the learned counsel for the respondent. An estimate is at best an assessment of the likely cost of the repair of the car and not the actual cost of repair which can only be known once the car has been repaired. We have carefully perused the note below at column 11 regarding particulars of loss/ damage in summary report which reads as under: PARTICULARS OF LOSS/DAMAGE: As per your instructions received, I had inspected the subjected car at M/s Apra Auto Ltd., at the time of survey repairer/ insured did not submit any papers so claim could not be finalized. Later on 01.10.2012 repaired submitted papers along with estimate. After scrutiny of estimate and checking all papers on 05.10.2012 repairer was advised to start the repair work but he refused to do so as insured specifically instructed repairer to not to start the repair work. A letter was also sent to the insured informing him regarding settlement of his claim and request to carry out repairs in his car. But even than the repair was not started in the car for long time. Written settlement of repairs were also send to repairer personally but repairer show his inability to settle the claim saying that the insured do not want to get the vehicle repaired at any cost and he want some other settlement. During discussion with repairer it was also showed that since the repair cost is well belong 75% of its IDV, vehicle is repairable and there is no other possibility. Further, vehicle was easily repairable and all child parts were available with repairer. As long time has passed insured is not ready to listen to any thing. One more request letter dated 05.11.2012 was sent to the insured requesting him to authorize repairer to start repairs and submit bills of repairs but so far there is no response from insured side. Now further almost 20 days has passed, I have no option to send the independent assessment report to the insurer for their further action. Estimate with settlement and assessment report was mailed to repairer confirming him that I am submitting my independent assessment report. Further, the final report was also sent to the insured confirming him since he is not responding to any request, letter, I have no option but to send independent assessment report to the insurer. On the basis of above points, I am submitting this independent assessment report for your further action. Report is however, issued without prejudice.
11. It is quite apparent from the above, that the respondent was not interested in petitioner indemnifying the cost of repair but was rather bent upon recovering the IDV of the car by claiming total loss of the said vehicle.
12. We see from the survey report that as per the estimate of M/s Apra Auto (India) Pvt. Ltd.), it had recommended replacement of parts not damaged. Further, the assessment of cost to be indemnified made by the surveyor was as per the terms and conditions of the policy excluding the parts deductible as per the schedule attached to the insurance policy. The impugned order has failed to give any basis or cogent reason for dismissing the survey report as untrustworthy and for accepting the estimate of the repair filed by the respondent. The State Commission has failed to appreciate that the respondent was not interested in getting her vehicle repaired and had given strict instructions to M/s Apra Auto (India) Pvt. Ltd., the repairer that she was not interested in the repair of the vehicle but only in claiming the IDV on total loss. The respondent has failed to explain herreluctance and refusal to get the car repaired and thereafter claiming the cost incurred based on the actual bills for repair. She has also failed to give any convincing reasons for disputing the cost of repair as worked out by the surveyor. The impugned order also fails to record as to the reasons for dismissing the summary report as untrustworthy.
13. In view of the above, the revision petition is allowed and the orders of the State Commission and the District Forum are set aside and the complaint is dismissed. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER
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