ATUL JAIN vs NEW INDIA ASSURANCE CO.LTD

IS the New India Assurance Company Limited guilty of a deficiency in service by adhering to the consent letter executed by the complainant. This has come to be the core question in the case, and the facts and merits may, therefore be noticed with brevity, having relevance to the said issue.

THE two complainants are brothers and are joint owners of D.C.M Toyata vehicle bearing registration No. HNQ-1150. On the 4th of November, 1991 they took out an insurance policy for a sum of Rs. 1,80,000/- for one year vide Annexure ''A''. During the currency of the said policy the vehicle met with an accident on the 20th of February, 1992 and a first information report with regard thereto was duly registered. THE New India Assurance Company Limited (hereinafter referred to as the Insurance Company) on being informed, immediately deputed a surveyor Mr. Mukesh Arora, who after the spot inspection etc. submitted his survey report on the 26th of February, 1992. According to the complainants, the damage to the vehicle was got estimated to the tune of Rs. 1,40,096/- vide Annexure ''C. Subsequently the Insurance Company appointed Shri Mohmad Yahya as the surveyor who after completing the fonnalities and associating the complainants rendered his detailed report within a month from his appointment on or around the 31st of March, 1992. THE complainant''s grievance is that thereafter they have been visiting the Insurance Company''s head office and the branch offices for the settlement of the claim without any meaningful response thereto. It is alleged that the insurers are guilty of negligently delaying the finalisation of the amount. THE relief sought is the sum of Rs. 1,40,096/- with interest @ 24% and Rs. 75,000/- as compensation for delay and negligence in deciding the claim. In resolutely defending the complaint, the Insurance Company in its written statement raised preliminary objection on the ground that the insurance claim had already been settled to the tune of Rs. 1,05,000/- subject to the complainant depositing the salvage as per the report of the surveyor and the transfer of the vehicle in favour of the respondents and consequently, there was no deficiency in service. On merits the factual background of the insurance having been taken out and the subsequent accident was admitted. It was however, pointed out that Sh. Mukesh Arora was appointed as the spot surveyor without delay and thereafter a reputed surveyor and loss assessor was deputed for the final survey who submitted a detailed report on the basis of which the. complainant''s claim was settled to the tune of Rs. 1,05,000/- only. The said report was annexed to the written statement. It was further the stand that the complainants were duly informed through a registered letter that their claim had been approved for the amount afore-mentioned on a total loss basis and they were required to complete the necessary formalities of the deposit of salvage and transfer of the vehicle in favour of the insurers. Any allegations of delay or negligence were strenuously denied and the ball was put in the complainant''s court on the ground that they have to complete the necessary formalities for the finalisation of the claim. The inevitable prayer was that the complaint be dismissed. Reliance was placed on the annexed documents including the report of the spot surveyor Mukesh Arora and in particular on the survey report of Mohmad Yahya dated the 30th of March, 1992, which made express reference to the fact that the market value of the vehicle, prior to the accident was Rs. 1,06,500/- for which the insured had agreed and had given the consent letter on the basis of which the claim may be finalised. The consent letter Ex. O.P1/1 dated the 11th of March, 1990 signed by the complainant Atul Jain on behalf of the insured was placed on the record.

In support of the case, the complainants put in two affidavits of the complainant Atul Jain and entary evidence. Both the aforesaid deponents were cross-examined at some length on behalf of the Insurance Company making serious inroads in their stand on the somewhat crucial issue of the consent letter. In rebuttal the affidavit of Mohmad Yahya, Engineer and surveyor was adduced alongwith sizable number of documents, the authenticity of which was not challenged. Sh. Mohmad Yahya was cross-examined on behalf of the complainants without making any dent in his evidence and indeed the same appears to have somewhat boomranged on the complainant''s case.

MR. R.K. Mittal, the learned Counsel for the complainant faced with a somewhat up-hill task had first attempted to wriggle out of the consent letter Ex.O.P.1/1 admittedly signed by the complainant Atul Jain. It was suggested that the complainant''s signatures were obtained upon it without the blanks therein having been filled or in the alternative said document could not be binding upon the other joint owner Shri Prem Chand Jain. The somewhat sketchy evidence of the complainant was sought to be relied upon that the damage estimated by them to the tune of Rs. 1,40,000/- was payable, in preference over the surveyor''s report and the assessment thereof by the opposite party. We are afraid that the aforesaid submission is somewhat meritless within the consumer jurisdiction. Inevitably the. scope of the enquiry herein and the basis of relief can only be rested on a patent deficiency in the insurance services undertaken by the opposite party. On the present record it does not seem possible to hold so against them. On the complainant''s own showing the Insurance Company with great expedition appointed Mukesh Kumar Arora as the spot surveyor forthwith on coming to know about the accident on the 20th of February, 1992. He recorded a detailed report dated the 26th of February, 1992 which has been placed on the record and to which no serious challenge was and indeed could be laid on behalf of the complainant, thereafter without being in any was remiss the Insurance Company deputed a surveyor and loss assessor of some standing Shri Mohmad Yahya who without any delay has recorded an even more authentic and detailed report dated the 30th of March, 1992. It cannot be disputed that in the said survey proceedings, the complainants were fully associated. What is however, significant is the fact that in the. said proceedings the, complainant Atul Jain seems to have himself come forward and executed the. consent letter which is now sought to be put in issue. Shri Mohmad Yahya in his report unequivocaly recorded as under: "The condition of the insured''s vehicle was very poor with cabin rusted/unpainted alter denting at many places and types in poor shape. So, the market value of insured vehicle prior to its accident is assessed at Rs. 1,06,500/- only for which insured has agreed and has given the consent. Hence, the liability of loss on Total loss basis is calculated, as detailed hereunder; RECOMMENDATION : The loss was then discussed at length with the insured in R.O. II, New Delhi in the presence oi Engineer Mr. A.K. Sharma, who after detailed discussions has agreed to accept settlement of his above loss for Rs. 1,06,500/- (Rupees One Lakh Six Thousand Five Hundred only) less polity clause of Rs. 1,500/- on total loss basis, in complete cancellation and discharge of the policy. The same being fair, reasonable and economical is recommended for your consideration, subject to liabilitv of loss being entertained under the policy".

THERE is no reason to doubt the afore-quoted parts of the report of Shri Mohmad Yahya and he stood firmly by the. same and was totally unshaken in his cross-examination. What is of crucial importance is the factum of the consent letter which admittedly bears the signatures of the, complainant. The relevant part thereof is as under : "I/we hereby agree to accept Rs. 1,06,500 - (Rs. One Lakh six thousand five hundred only) on total loss basis subject to policy condition and company''s confirmation. I further agree that I shall produce the vehicle for reinspeetion and surrender the salvage to the company as soon as I receive confirmation from the company. Above amount is full and final with regard to the above vehicle which met with an accident on 20.2.1992. I shall not submit any supplementary estimate with regard to the above accident".

In view of the afore-noted contents of the consent letter the testimony of Atul Jain, complainant in cross examination is more than significant and is in the following words: "I have seen the document O.P1/1. It bears my signatures. However, the blank parts of this document had not been handwritten at that time. It is incorrect that the hand-written part in the document is in my own hand. I cannot say as to who had filled in the blanks therein".

From the above it would be plain that on the crucial consent letter, the complainant had admitted his signatures and it is not easy for him to now back-track therefrom. The said attempt has to be. viewed in the context of the report of Mohmad Yahya and the latter''s firm testimony on the point. It is not easy to accept the attempted repudiation of the said document by the complainant somewhat belatedly now.

AS was noticed at the very out-set, the core question within the consumer jurisdiction herein is whether the Insurance Company is guilty of a deficiency in service by firmly relying and adhering to the consent letter O.P1/1 admittedly signed by the complainant Atul Jain. We are of the view that it cannot possibly be so held. The Insurance Company having got the matter assessed through the spot surveyor and the latter loss assessor and surveyor, would be entitled to accept their reports as also to rest themselves on the consent letter. Within the consumer jurisdiction, no blame or responsibility can be laid at their door on that basis

ONCE it is held as above, it is elementary that this complaint must fail. The complainant is, therefore, necessarily relegated to either accept the settlement of the claim offered by the opposite party with the requisite condition or if so advised avail his remedy in the Civil Court. With the fore-going observations, the present complaint is dismissed. However, we decline to burden the consumer with any costs of these proceedings. Complaint dismissed.