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Judgment
M. Shreesha, J
The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been preferred by United India Insurance Company Ltd. (for short "the Insurance Company") against the order dated 01.05.2012 in First Appeal No. 1314 of 2011 passed by the Rajasthan State Consumer Disputes Redressal Commission (for short "the State Commission"). By the impugned order, the State Commission has concurred with the findings of the District Forum and dismissed the Appeal preferred by the Insurance Company. Facts in brief are that the Complainant has insured his truck for an amount of Rs. 11,90,000/- covering the period from 07.08.2009 to 08.08.2010. While so, the insured vehicle met with an accident on 15.04.2010 and the same was informed to the Insurance Company on 16.04.2010. The vehicle was brought to Matsya Automobiles, Alwar by towing for which an amount of Rs. 21,000/- was paid. It is averred that the Surveyor appointed by the Insurance Company had illegally demanded some amounts of money. Complainant made Complaint to the higher officers, but there was no response. It is further averred that the Complainant had spend an amount of Rs. 5,19,166/- towards repairs but the Insurance Company offered to pay only Rs. 1,95,990/- and despite repeated requests did not settle his claim. Hence the Complainant approached the District Forum seeking reimbursement of the amounts spend towards repairs, the towing charges together with interest and compensation.
The Insurance Company filed their reply admitting the issuance of the Policy; the claim filed by the Complainant on 12.07.2010. It is denied that there was no response to the e-mails sent by the Complainants on 02.08.2010, 23.09.2010 and on 25.09.2010. It is averred that the Insurance Company received a letter on 25.09.2010 from its Regional Office, Jaipur. An independent Surveyor Sh. J.S. Makkad, had assessed the loss to the tune of Rs. 1,95,990/- and for settlement of the claim the Insurance Company sent a letter dated 14.10.2010 but received no response from the Complainant. Another Surveyor Sh. Ajay Khandelwal and Sh. S.K. Nagpal were also appointed to verify the veracity of the facts mentioned in the report of the First Surveyor and the vehicle was re-inspected and the loss assessed by Sh. J.S. Makkad was confirmed and hence there is no deficiency of service on their behalf and they seek dismissal of the Complaint with costs.
District Forum based on the evidence adduced allowed the Complaint in part and directed the Insurance Company to pay an amount of Rs. 5,10,000/- along with interest @ 6% p.a. from the date of the filing of the Complaint with costs of Rs. 5,000/-.
The State Commission while concurring with the findings observed as follows:-
"We have carefully gone through the survey report dated 24.05.2010 as has been placed on record and as per the above survey report due to accident the vehicle had badly been damaged in front. However, strangely enough the assessor allowed the major portion of the cabin to the extent of assembled unprinted parts only. The other items allowed have also not been explained by the surveyor as to why the estimate submitted by the complainant has been disallowed. The complainant has submitted the complete bills as given by the dealer for replacement of parts and repairs and receipt of payments made by the complainant and as per the re-inspection report of the investigator also there is no remark in the report that the repair not been done as per the bills submitted. Even the affidavit submitted by the surveyor before the District Forum is just vague in one para without giving any reasons. There is no allegation on behalf of the appellant that the bills submitted by the complainant from the automobile company were forged and not genuine. The commercial vehicle is fully insured and it is the liability of the appellant to make the entire payment of parts replaced and repair work done."
Learned Counsel appearing for the Insurance Company vehemently contended that both the Fora below have erred in not taking into consideration the survey report and also the review reports filed before them; that the Surveyor has assessed the loss after discussing with the service station the entire repairs to be affected; that the second Surveyor Sh. Ajay Khandelwal and Sh. S.K. Nagpal also concurred with the findings of the First Surveyor; that the Surveyor is an independent entity appointed under Section 64(um) of the Insurance Company and due weightage has to be given and that both the Fora below did not take into consideration this aspect.
Learned Counsel for the Insurance Company has vehemently contended that both the Fora below have placed reliance only on the estimates of the parts made by the automobile company though the same was not referred to by the Insurance Company. The contention of the Learned Counsel for the Insurance Company, that the Surveyor's report has to be given more weightage than the repairs estimates made by the automobile company read together with the receipt issued by the automobile company, that the repairs were affected and the due amounts paid, is untenable in the light of the Judgement of the Hon'ble Supreme Court in New India Assurance Company Ltd. Vs. Pradeep Kumar (2009) 7 SCC 787. The Hon'ble Supreme Court in the afore-noted judgement has observed as follows:-
"21. Section 64-UM(2) of the Act, 1938 reads:
"64-UM(2) No claim in respect of a loss which has occurred in India and requiring to be paid or settled in India equal to or exceeding twenty thousand rupees in value or any policy of insurance, arising or intimated to an insurer at any time after the expiry of a period of one year from the commencement of the Insurance (Amendment) Act, 1968, shall, unless otherwise directed by the Authority, be admitted for payment or settled by the insurer unless he has obtained a report, on the loss that has occurred, from a person who holds a licence issued under this section to act as a surveyor or loss assessor (hereafter referred to as 'approved surveyor or loss assessor'):
Provided that nothing in this sub-section shall be deemed to take away or abridge the right of the insurer to pay or settle any claim at any amount different from the amount assessed by the approved surveyor or loss assessor."
The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs. 20,000/- or more, the loss must first be assessed by an approved surveyor (or loss assessor) before it is admitted for payment or settlement by the insurer. The proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor).
In other words although the assessment of loss by the approved surveyor is a prerequisite 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 the 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.
So far as the case in hand is concerned, the claim of the complainant has been accepted by the consumer fora as it was duly supported by original vouchers, bills and receipts. It has been held that the actual expenses incurred by the complainant comes to Rs. 1,39,438/- in getting the truck repaired apart from the expenses on account of haulage of truck and carrying it to the workshop. Taking into account actual expenses incurred and the interest that the Complainant had to pay to the bank from which the loan was obtained for that amount, the District Forum awarded a sum of Rs. 1,58,409/- to the complainant and the Insurance Company was directed to make that payment along with interest at the rate of 12% per annum. At the first blush, we had some doubt whether the interest paid by the complainant to the bank could have been awarded, but on deeper scrutiny we found that no such ground has been set up in the appeal. As a matter of fact, this aspect was not even raised before the National Commission." (Emphasis supplied).
In the instant case the Complainant's claim has been accepted by both the Fora below as it was substantiated by not only the bills raised by the service station but also the receipts evidencing the payment for the same. The actual expenses incurred by the Complainant is Rs. 5,19,166/- in getting the truck repaired and, therefore, the basis on which the Surveyor has arrived at less than 1/4 of the amount i.e. Rs. 1,95,990/- without giving any substantiated reasons cannot be said to be the final word.
For all the afore-noted reasons and taking into consideration the principles laid down by the Hon'ble Supreme Court in New India Assurance Company Ltd. Vs. Pradeep Kumar (supra), this Revision Petition is dismissed accordingly. However, no order as to costs.
Needless to add, the amount deposited by the Revision Petitioner, with accrued interest, before the District Forum, in compliance of order dated 12.09.2012 shall stand released to the Complainant and the same will be adjusted in the decretal amount.