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Judgment
The present First Appeal (FA) has been filed by the Appellant against Respondent as detailed above, under section 51 (1) of Consumer Protection Act 2019, against the order dated 22.12.2021 of the State Consumer Disputes Redressal Commission Maharashtra, Bench at Aurangabad (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) No. 54 of 2019 inter alia praying for:-
(i) Setting aside / rectify the order dated 22.12.2021 of the State Commission.
(ii) Direction to the respondent to pay the balance i.e. INR 11,73,020/- out of total claim amount i.e. full IDV of the vehicle i.e. INR 19,60,109/- alongwith interest calculated @ 18% p.a. from the date on which the intimation regarding the accident was made by the Appellant to respondent till actual realization.
Appellant also prayed for award of punitive damages and for mental harassment and mental agony.
The Appellant was Complainant and the respondent was Opponent ( Opposite Party) in the said CC No. 54 of 2019 before the State Commission. Notice was issued to the Respondent on 24.05.2022. Respondent filed Written Arguments/Synopsis on 07.07.2023.
Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that Complainant is in the business of transport of cotton and corn by purchasing it from the farmers and selling it in a market in Sillod, District Aurangabad. He purchased a truck for transport purpose for which he obtained insurance policy from the OP. The OP assured the Complainant for the total loss of the vehicle due to damage of the third party or own damage. It is the case of the Complainant that on 11.01.2019, after purchasing cotton from farmers, when his vehicle was proceeding to Sillod from Golegaon, it met with an accident at village Lihakhedi. The driver of the vehicle survived in the said accident as he jumped out of the vehicle and person with the driver died in the said accident. The vehicle was completely damaged. The incident of accident was reported to the police station and offence was registered in Ajintha Police Station. The Complainant informed the incident to the OP on next day. The chargesheet was submitted to the Court by the police. The claim was registered with the OP. The vehicle was shifted to Satish Motors at Waluj and lying there.
It is further the case of the complainant that OP inspected the vehicle on 05.02.2019 and drew panchnama, as per which damage / loss to the vehicle is shown as 95-96%. The complainant submitted relevant documents to the Insurance Company on 05.02.2019. The complainant made correspondence with OP on 08.02.2019 and complained that loss has not been properly assessed. The complainant also replied on 27.02.2019 to the OP that the driver was not admitted to the hospital as he did not sustain much injuries. The OP vide their letter dated 11.03.2019 asked for the documents which were already to them. The OP repudiated the insurance claim on 03.04.2019 on the ground that there has been misrepresentation of facts with regard to driver details. It is further averred by the complainant that he purchased the vehicle by taking loan of Rs.16.50 lacs from Sundaram Finance and has paid Rs.5.35 lacs in cash for the purchase of vehicle and due to repudiation of claim, he has sustained huge loss. Being aggrieved, the Complainant filed CC No. 54 of 2019 before the State Commission and State Commission vide order dated partly allowed the Complaint of the Complainant.
Appellant(s) have challenged the Order dated 22.12.2021 of the State Commission mainly on following grounds:
i. State Commission relied on the Surveyor’s report as gospel truth, which is imperssible as law laid down by Hon’ble Apex Court.
ii. State Commission failed to appreciate that Satish Motors with whom the respondent has an official tie up had given an estimate of Rs.INR 21,51,185/- for repair which is more than the consolidated amount paid by the Appellant for purchase of the truck, which clearly indicates that truck had suffered 100% damages. The State Commission ignored the said fact.
iii. Respondent has not complied with the provisions of IRDA regulations and conducted the second survey at a much later stage without intimating to the Appellant. The Respondent was legally bound to appoint a Surveyor within 72 hours from the date of intimation of claim / occurrence of the event resulting in loss or damage. Even the first survey / inspection, which was conducted on 05.02.2019, was after a delay of almost 20 days from the date of intimation of accident to the respondent.
iv. State Commission failed to appreciate the fact that hiring of second surveyor to get another survey was done with the sole intention of getting a favourable report. The National Commission in Hyundi Lal Jain Cold Storage and Ice Factory Pvt. Ltd. Vs. Oriental Insurance Co. Ltd. (2005) II CPJ 17 (NC) has clearly held that practice of appointing a Surveyor one after is unjustified.
v. State Commission failed to appreciate that second surveyor appointed by the respondent was not authorized to inspect claim of damages above INR 50,000/-.
vi. State Commission failed to consider the objections filed by the Appellant against the Surveyor’s report.
vii. State Commission failed to appreciate the law laid down by the Apex Court in New India Assurance Company Ltd. Vs. Pradeep Kumar, Civil Appeal No. 3253 of 2003, wherein it is held that although the assessment of losses by the approved Surveyor is a pre-requisite for settlement of claim, but the surveyor’s report is not the last and final word.
viii. State Commission relied on the second survey report filed by the respondent at a belated stage.
Heard learned counsels of both sides. Contentions/pleas of the parties, on various issues raised in the FA, based on their FA/Reply, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
6.1. Learned counsel apart from arguing the points which have been stated in para 6 argued that that in the said accident, there is 100% damage to the vehicle and after occurrence of the accident, the complainant immediately informed the respondent next date and his claim was registered. The OP appointed a surveyor who inspected the vehicle and as per his instructions, the vehicle was brought to Aurangabad and is lying at Satish Motors, Waluj. It is further argued that Surveyor and insurance company did not inform the complainant on the loss assessed till this date. The OP has not brought the survey report on record in their written statement. Further, the surveyor in the second report has not assessed the damages properly and neglected to consider that complainant has total damage case. This conduct of the OP gives rise to the presumption that earlier surveyor might have assessed the damages at higher side or for higher amount.
6.2. Learned counsel further argued that OP is having tie up with Satish Motors for repairing of the damaged vehicles and Satish Motors had given estimate of Rs.21,51,185/- and on the contrary, OP had wrongly mentioned in their affidavit evidence that surveyor has assessed the vehicle as much repairable and cost of repairs liability of OP is contradictory. Counsel further averred that OP is avoiding to settle the complainant’s claim on false ground. OP repudiated the claim on false grounds and there was no misrepresentation of facts by the complainant. Further, wife of deceased had approached MACT, which granted relief to the legal heirs of the deceased and the OP had not raised the defence on the point as who was the driver before the Tribunal.
6.3. Learned counsel for the respondent argued that Appellant has received the compensation in terms of the order of the State Commission and nothing is payable.
6.4. Learned counsel further argued that Appellant concealed the fact and stated that one Pandurang was driving the vehicle. As per the insured, the driver survived however the nature and extent of damage on the driver side clearly showed that the person driving the vehicle died in the accident. The respondent sought clarification regarding the driver, however, the complainant kept evading and as a result, the claim was repudiated on the ground of misrepresentation of material facts.
6.5. Learned counsel further averred that State Commission observed that the intimation was made by the Complainant on 25.01.2019 and survey was conducted on 28.01.2019. Complainant alleged that there was a separate report however, no such report was filed by the surveyor and same find mention in the State Commission’s order. The complainant also failed to name the earlier surveyor.
6.6. Learned counsel argued that order of the State Commission was passed by following the law laid down by this Commission in Subal Kumar Dey and Bajaj Allianz General Ins. Co. Ltd. 2021 (1) CPR 235 ( NC) and Oriental Insurance Co. Ltd. Vs. Vijay Kumar 2021 (1) CPR 683 ( NC)
We have carefully gone through the orders of the State Commission, other relevant records and rival contentions of the parties. The State Commission has partly allowed the Complaint with directions to the OP-Insurance Company to pay Rs.7,87,089/- @ 7% from 20.11.2019 till realization. FA has been filed seeking directions to OP-Insurance Company to pay balance Rs.11,73,020/- out of total IDV of Rs.19,60,109/- alongwith interest. State Commission in its order has observed as follows :
“(8)(i) Admittedly, the opponent has issued insurance policy for the vehicle of the complainant which is at page No. 12 of the complaint. It appears that the policy period is from 01/10/2018 to 30/09/2019 and the IDV of the vehicle is Rs.19,60,109/-.
(ii) It appears that the occurrence of the accident on 11/01/2019 is not denied by the opponent. The intimations to police and Insurance Company are also not disputed.
(iii) It appears that opponent Insurance Company has repudiated the complainant's claim on the ground of misrepresentation of facts. The repudiation letter dt.03/04/2019 is at page 43 of the compilation.
(iv) The complainant has come with the case that the driver Pandurang Shelake lost the control on vehicle and he jumped out of the vehicle , the vehicle turned turtle and the cleaner Bhagwat also attempted to jump from driver side however got fixed at driver seat . it is also alleged that the cleaner Bhagwat attempted to jump from driver side due to heavy traffic at cleaner side.
(v) According to the opponent the vehicle has sustained damage to it's driver side and therefore the alleged driver is expected to sustain injuries if he attempted to jump for his survival during the accident. There is no history of injuries to the alleged driver Pandurang Shelke is on record. It is further submitted by opponent Insurance Company that Pandurang was not driving the vehicle and deceased Bhagwat was driving the vehicle. It is contended by opponent that it is not possible that as a cleaner he would attempt jumping from driver side.
(vi) The opponent also contended that dispute as to who was driving the vehicle, therefore the claim needs to be settled by the Civil Court as there requires elaborate evidence.
(vii) The complainant has filed the copy of MACT judgment , where the wife of the deceased Bhagwat is the complainant and Pandurang Shelake as driver ,Complainant as owner of the vehicle and Royal Sundaram Insurance Company (present opponent Insurance Company) are the opponents and the said complaint is decided against all these opponents for payment of compensation of Rs. 10,47,500/-, jointly and severally payable by all the opponents including Pandurang shelke ( in the capacity of driver ), Balasaheb wagh (present complainant) and the opponent insurance company. It appears that the opponent Insurance Company has taken defence in MACP matter that Pandurang Shelke as a driver was not having driving license. It appears that the opponent Insurance Company has taken the contrary stand in this consumer complaint that Pandurang was not the driver and the deceased Bhagwat was the driver. It appears that the opponent Insurance Company had taken all together different stand in the present complaint.
(viii) Also ,the particular behavior of deceased in case of accident can not be expected exactly. Therefore , the contention of the opponent that the deceased Bhagwat was a cleaner and as a cleaner he would have attempted to jump from the cleaner side only cannot be accepted . And it is also can not be accepted that deceased Bhagwat found pressed under the vehicle at driver side establish that he was the driver of the vehicle.
(ix) Even otherwise also , if that would have been the case that deceased Bhagwat was driver. His wife would not have filed claim before MACT against Pandurang Shelake claiming to be a driver of the vehicle met with an accident , against the complainant as owner and against the insurance company. The Pandurang Shelake would have objected on implicating him in the capacity of driver ,had he not been the driver. Therefore, it can be inferred that the opponent failed to establish his contention that Pandurang was the driver and deceased Bhagwat was the cleaner at the time of the accident and therefore, the contention of the opponent that complainant misrepresented the facts on point of driver is not proved .
(x) It appears that the opponent insurance company has not brought the survey report on record while filing the WS and has filed the survey report during the course of proceedings. It appears that the complainant has objected this report. It is alleged in affidavit by the complainant that prior to the survey report filed on the record by the opponent Insurance Company ,the vehicle was surveyed earlier and the opponent has not brought the earlier survey report on record. It is alleged that if the survey report is prepared on 04/02/2019 and there was no need to send the letter dated 05/02/2019 directing /requesting cooperation of complainant. If we peruse the surveyor's report filed on record by the opponent Insurance company , it revealed from the report that date of intimation is 25/01/2019, date of inspection is 28/01/2019 and main assessment date is 04/02/2019. The report is stating assessment for Rs.7,87,089/-.It revealed that it is assessed considering depreciation of some parts and without depreciation for other parts. Apparently, this is also not a zero liability policy ,therefore, it cannot be expected that no depreciation to be considered. Also ,the complainant has not brought other surveyor report on record to show that the survey was done earlier. It appears that though the complainant is alleging that opponent has carried first survey after intimation by complainant . However, no copy of the said intimation is on record. Also, the complainant in complaint has not mentioned two surveys done by the opponent, but has only mentioned that opponent visited the vehicle on 05/02/2019, carried panchnama and assessed loss to 95-96%.However,no evidence adduced on record for the contention of this loss. However, when it is alleged that there was survey carried earlier , who was the surveyor is not mentioned in the affidavit by complainant. The complainant could ask the opponent by way of questionnaire that in spite of the earlier survey, the said survey report is not brought on record. The complainant is relying on one letter issued by the opponent which is dated 05/02/2019,which is at page 39 of complaint compilation, which apparently is issued by opponent stating that opponent appointed Mr.J.D.Insurance Solution as investigator for investigations to find out the person driving the vehicle at the time of accident, the licence of the person driving the truck and co driver died in the accident (for confirming the genuineness). It reveals that the subject matter of the said letter is altogether different and not for the survey on assessment of damages/loss. Thus ,it reveals that only after filing of the survey report by opponent ,the complainant is making further allegation that earlier survey was carried out and the letter dated 05/02/2019 reflects conduct of opponent. It is apparent from the record that the survey for damages/loss is done by one Mr. Nagapure and investigation for driver and issue of driving licence, facts of accident is allotted to one J.D.Insurance Solutions .Thus, it reveals that the complainant has not established that both the investigators are one and same and have carried survey for damages only. The opponent has taken defence that matter needs to be referred to civil court, however the facts prima facie shows there is damage to the insured vehicle. And it appears that the opponent is challenging the complaint on the ground of suppression of facts as to a person Bhagwat who died in the accident was the driver. However, the opponent had not taken this stand before MACT. Therefore there requires no need to refer the matter to Civil Court. In Insurance matters, the claims are settled as per terms and conditions of the policy. The survey report is important document to be relied upon for determination of the claims of insurance.”
State Commission has given a well-reasoned order, we are in agreement with its observations / findings and see no reason to interfere. There is no illegality or material irregularity or jurisdictional error in the order of the State Commission. The Surveyor has assessed the loss as Rs.7,87,089/-, which has been accepted by the State Commission. We do not find any reason to modify the assessment of loss as done by the Surveyor and accepted by the State Commission. We find no merit in the First Appeal, hence the same is dismissed.
The pending IAs in the case, if any, also stand disposed off.