United India Insurance Company Ltd. v. Subhash Mittal & another

mental agony and Rs. 5,000/- towards costs, within a period of 30 days', failing which the respondent No. 1 - complainant was further held entitled to interest @9% p.a. on the above amount from the date of institution of the consumer complaint till payment. The respondent No. 2 - opposite party No. 1 was directed to make sure to hand over the vehicle to respondent No. 1 - complainant upon receiving the repair expenses of the vehicle from him.

2. Facts giving rise to this appeal, in brief, are that the respondent No. 1 - complainant had got his Maruti Swift Dzire (VDI) bearing registration No. UK07-BM-2521 insured with the appellant - opposite party No. 2 (insurance company) for the period from 17.09.2017 to 16.09.2018. During the currency of the insurance policy, the insured vehicle met with an accident on 12.12.2017, intimation whereof was given to the insurance company on the same day itself. The insurance of the vehicle was done under zero depreciation policy. Upon the instructions of appellant and respondent No. 2, the vehicle was towed to the workshop of respondent No. 2 with the help of crane, wherein expenditure of Rs. 5,000/- was incurred by the complainant. On 13.12.2017, the vehicle was inspected by the surveyor of the insurance company, who incorrectly assessed the repair cost as Rs. 90,000/-. The vehicle is lying standing in the workshop of respondent No. 2. The insurance company has neither paid the insurance claim, nor got the vehicle repaired. A legal notice dated 28.02.2018 was sent to the appellant and respondent No. 2, which was not replied. Therefore, alleging deficiency in service on the part of the appellant and respondent No. 2, the consumer complaint was instituted by the complainant before the District Commission.

3. The appellant - insurance company filed written statement before the District Commission, wherein it was pleaded that the

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complainant has not given the details of the vehicle in question such as registration number; chassis number; engine number etc., hence the consumer complaint is not legally maintainable.

4. The respondent No. 2 filed written statement before the District Commission, pleading that they have duly repaired the vehicle, but the complainant is neither paying the repairing cost / charges, nor he is taking delivery of the vehicle. The matter regarding terms and conditions of the insurance policy is between the complainant and the insurance company.

5. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 22.04.2022, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant - insurance company has preferred the instant appeal.

6. We have heard rival arguments advanced by learned counsel for the appellant & respondent No. 1 and perused the record. None appeared on behalf of respondent No. 2, although service of notice upon respondent No. 2 was held to be sufficient vide order dated

02.08.2022.

7. Learned counsel appearing on behalf of the appellant - insurance company firstly submitted that in the instant case, there has not been any deficiency in service on the part of the insurance company, inasmuch as the insurance company was always ready and willing to settle the claim at Rs. 1,03,616/- and letters in this regard were duly issued by the insurance company to the complainant, intimating the said fact and calling upon him to complete the required formalities, so that the claim could be processed. Learned counsel

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also submitted that the District Commission has erred in awarding sum of Rs. 4,31,093/- towards claim amount, without there being any documentary evidence on record. Learned counsel for the appellant, thus, submitted that the claim amount awarded by the District Commission is on the higher side and the same needs to be reduced.

8. On the other hand, learned counsel for respondent No. 1 - complainant submitted that the District Commission has considered all the facts and circumstances of the case and has rightly awarded the aforesaid claim amount, which requires no interference.

9. There is no dispute with regard to the insurance of the vehicle for the period from 17.09.2017 to 16.09.2018. There is also no dispute with regard to the fact that the insured vehicle met with an accident on 12.12.2017 during the validity period of insurance policy. There is further no dispute that the subject insurance policy was zero depreciation policy.

10. Upon receipt of intimation regarding accident of the insured vehicle, the insurance company has appointed Sh. Amarpreet Singh Anand, surveyor and loss assessor, as surveyor for assessment of the loss, who has submitted report dated 02.04.2018 (Paper Nos. 12 to 17), thereby assessing the net loss of Rs. 1,03,619.48/- and recommended for payment of Rs. 1,03,619/- subject to the terms and conditions of the insurance policy. The record shows that after submission of the survey report by the surveyor, the insurance company has issued a registered letter with acknowledgement due dated 18.04.2018 (Paper No. 8) to the complainant, wherein it was stated that the competent authority has approved his claim for Rs. 1,03,616/- after receiving receipt against tax invoice from repairer. By way of the said letter, the complainant was asked to send

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settlement intimation voucher and complete required formalities, as mentioned in the said letter. Although the said registered letter was sent to the complainant at his correspondence address, i.e., 48, Niranjanpur, Patel Nagar, Dehradun, which is also mentioned in the consumer complaint, but the same was received back to the insurance company with postal endorsement of "incorrect / wrong address". A similar letter dated 27.04.2018 (Paper No. 10) was, thus, sent by the insurance company at other address of the complainant, i.e., 48, Chakki Tola, G.M.S. Road, Niranjanpur, Majra, Chakrata, Dehradun and there is nothing on record to show that the said letter was received back unserved by the insurance company or the same was not received by the complainant. Even if for arguments sake, as submitted by learned counsel for respondent No. 1 - complainant, it is assumed that the letter dated 27.04.2018 was not received by the complainant, hence he had knowledge about the approval of claim by the insurance company for Rs. 1,03,616/-, then also it is pertinent to mention here that during the pendency of the consumer complaint, an application dated 21.01.2020 (copy whereof is Paper No. 11) was moved on behalf of the insurance company before the District Commission, stating therein that the complainant's claim has been approved for Rs. 1,03,616/- after receiving receipt against tax invoice from repairer, which was informed to the complainant through letters dated 18.04.2018 and 27.04.2018. By way of the said application, prayer was made for disposal of the consumer complaint on the said basis.

11. In view of above situation, it can not be said that the complainant was not aware of the fact that his claim has been approved by the insurance company for Rs. 1,03,616/- and since the complainant did not complete the required formalities, the said amount could not be paid by the insurance company.

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12. So far as quantum of compensation awarded by the District Commission is concerned, it is admitted fact, as is stated above, that the insurance policy in question was zero depreciation policy. While assessing the loss of Rs. 1,03,619.48/- in his report, the surveyor has stated that in case this is the third claim, then it should be considered as a normal (depreciation) policy. The said remark of the surveyor was, however, misinterpreted by learned counsel for the appellant. The surveyor has nowhere stated in his report that the subject claim submitted by the complainant is the third claim under the subject insurance policy. Hence, in view of above, no depreciation is to be allowed from the amount of loss proved by documentary evidence available on record.

13. While computing the quantum of loss, the District Commission has taken the estimated cost of parts mentioned in the survey report, which comes to Rs. 3,30,841.60/- and after adding labour charges of Rs. 1,03,851.80/- and deducting salvage value of Rs. 3,600/-, it was opined that the complainant is entitled to sum of Rs. 4,31,093/- towards claim amount. We do not find ourselves in agreement with the said view taken by the District Commission. The reason being, first of all, it is to be stated that a perusal of the survey report shows that while assessing the loss, the surveyor has not deducted any amount towards depreciation, as in the assessed column of assessment details, the surveyor has clearly mentioned that for glass parts (nil depreciation); rubber parts (00% depreciation) and metal parts (00% depreciation). Thus, no amount has been deducted by the surveyor towards the depreciation head. It would not be out of place to mention here that even in the consumer complaint, the complainant has claimed sum of Rs. 3,00,000/- towards repair charges. The said amount of Rs. 3,00,000/- was also estimated repair cost of the vehicle,

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as would be evident from the averments of para 9 of the consumer complaint itself.

14. Learned counsel for respondent No. 1 submitted that the claim amount so awarded by the District Commission, is perfectly justified. We don't agree with the said submission, for the reason that no cogent and reliable evidence has been filed by the complainant to show that the amount of loss assessed by the surveyor is on the lower side and not in consonance with the actual loss. The job card dated 14.12.2017 issued by respondent No. 2 is on record (Paper Nos. 18 to 22), wherein the net bill amount has been shown as Rs. 1,25,947/- and in the gate pass dated 22.03.2018, the same amount finds mention. Thus, it is clear that sum of Rs. 1,25,947/- was charged by respondent No. 2 towards repair cost of the vehicle. Since the insurance policy was zero depreciation policy, the surveyor ought to have allowed the above sum towards claim, without making any deduction therefrom. Hence, there was no justification at all on the part of the District Commission in awarding Rs. 4,31,093/- towards claim amount. So far as claim of parking charges are concerned, learned counsel for the complainant submitted that the vehicle remained lying / standing at the workshop of respondent No. 2 for more than four years' and for which period, the complainant had to pay parking charges, to which he is entitled. It is pertinent to mention here that no amount towards parking charges was claimed by the complainant in the consumer complaint, nor any such amount has been awarded by the District Commission. If the complainant was of the view that he is entitled to the parking charges, which have been denied by the District Commission, he ought to have come in appeal, seeking enhancement of compensation by way of award of parking charges in his favour, but he did not do so. It is further pertinent to mention here that, as is stated above, the job card is dated 14.12.2017 and gate pass is dated

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22.03.2018, while the survey report is dated 02.04.2018, hence it can safely be said that the surveyor has taken all the losses into consideration, while assessing the loss.

15. The net result of the above discussion is that the complainant is entitled to sum of Rs. 1,25,947/-, the net billed amount as well as the amount mentioned in the gate pass, towards claim amount and there is deficiency in service on the part of the insurance company to the extent that the said amount of Rs. 1,25,947/- was not offered / paid to the complainant. The District Commission fell in error in awarding claim amount of Rs. 4,31,093/-. However, the other reliefs awarded by the District Commission are perfectly justified and require no interference. This way, this appeal succeeds partly and is to be allowed accordingly, thereby modifying the impugned judgment and order passed by the District Commission.

16. Appeal is partly allowed. Impugned judgment and order dated 22.04.2022 passed by the District Commission is modified to the extent that the amount of Rs. 4,31,093/- awarded by the District Commission towards claim amount, is reduced to Rs. 1,25,947/-. Rest of the impugned judgment and order passed by the District Commission is confirmed. Costs of the appeal made easy.

17. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.

(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)

Member-II President

K

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