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Virender Kumar Tiwari & Another v/s Bharati Axa Gen. Insurance Co. & Others

    Revision Petition No. 2370 of 2013

    Decided On, 14 August 2019

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioners: Anant Kumar Aggarwal, Advocate. For the Respondents: R1 & R2, Navneet Kumar, Advocate, R3, Ex parte.

Judgment Text

The present revision petition has been filed against the judgment dated 08.04.2013 of the State Consumer Disputes Redressal Commission, U T Chandigarh (‘the State Commission) in First Appeal no. 32 of 2013.

2. The brief facts relevant for the disposal of the present revision petition are that the petitioner no.1/ complainant no.1 was the owner of Honda City Car, which was insured by respondent no.1/ opposite party no.1/ insurance company from 09.05.2010 to 08.05.2011. The said car met with an accident on 13th April 2011. Respondent/ insurance company was informed of the accident and respondent no.2/ opposite party no.2 was appointed as surveyor to assess the loss. Respondent no.3/ opposite party no.3 towed the car and informed the petitioner/ complainant that repair of the car is not possible and it cannot be restored to its original condition. The estimate of the repair was Rs.10,56,348/- whereas the insured declared value (IDV) was Rs.7,20,000/-. It has been asserted that when the estimate is more than 75% of the IDV of the vehicle, then the insurance company can settle the claim on total loss basis. According to the survey report, the loss assessed by the surveyor was Rs.3,07,880/. Even after more than three months, the insurance company and the surveyor failed to furnish the final assessment report. Hence, the petitioner filed a consumer complaint no. 395 of 2011 before the District Consumer Disputes Redressal Forum II, U T Chandigarh (‘the District Forum’).

3. The com

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plaint was resisted by the opposite parties on the grounds that the OP no.2 was a duly licensed surveyor from IRDA to assess the loss but the complainant has connived with OP no.3 to obtain exorbitant estimate for the vehicle. Despite the request by OP no.1, to the complainant to start the repair of the vehicle, the complainant have not authorised the workshop to start repairing.

4. After hearing the counsel for the parties, the District Forum vide its order dated 19.12.2012 ordered as under:

1. The complaint against OP no. 2 is dismissed, as he is only the surveyor, who has assessed the loss to the vehicle;

2. The complaint against OP nos. 1 and 3 is disposed off with the following directions to the parties:

1. The complainant shall allow the repairer (OP No.3) to repair the vehicle in terms of the latest estimate/ surveyor’s report. The repairer (OP no. 3) shall repair the vehicle and present the final bill to the complainants as well as OP nos.1 and 2 after repair.

2. In case the final bill is beyond 75% of the IDV, the OP no.1 shall make payment for the complainant’s claim by treating the vehicle as total loss and thereby making payment to the complainants in terms of the IDV of the vehicle as per the terms of the policy. The vehicle will accordingly be transferred by the complainants in the name of OP no.1 to receive payment.

3. In case, the repair bill is less than 75% of the IDV, then the OP no.1 shall reimburse and make payment to the complainants towards repair as per last report of OP No.2 (surveyor) in terms of the policy after allowing for depreciation as per rules. The balance amount shall be borne by the complainants. It is clarified here that in case payment is to be made against repair, the amount shall be paid by the complainants to OP No.3 initially and thereafter, the amount due as per policy shall be reimbursed to the complainants by OP no.1”

5. Aggrieved by the order of the District Forum, the petitioner/ appellant filed an appeal before the State Commission being FA no. 32 of 2013 and Insurance Company also filed an appeal being FA no.78 of 2013. The State Commission vide its order dated 08.04.2013 held as under:

“For the reasons recorded above, both the appeal bearing no. 32 of 2013 filed by the appellant/ complainants and no. 78 of 2013 filed by the appellant/ opposite party no.1 are partly accepted. The impugned order passed by the District Forum is modified in the following manner:

1. The appellant/ OP no.1 is directed to pay an amount of Rs.3,40,627/- (as assessed by the surveyor vide report dated 03.10.2012 to the complainants along with interest @ 9% per annum from 03.10.2012 till actual realisation;

2. The appellant/ OP no. 1 is further directed to pay a sum of Rs.10,000/- to the complainants as compensation for mental agony and harassment;

3. The appellant/ OP No.1 is also directed to pay sum of Rs.5,000/- to the complainants as cost of litigation;

4. This order be complied with by the appellant/ OP no.1, within a period of 45 days, from the date of receipt of its certified copy failing which, it would be liable to pay the amounts mentioned in clauses (i) and (iii) along with interest @ 12% per annum instead of 9% per annum from the date of default till the date of actual payment to the appellants/ complainants, besides payment of cost of litigation”.

6. Hence, the present revision petition.

7. Heard the learned counsel for the petitioner and the learned counsel for respondent nos.1 and 2. Respondent no.3 was proceeded ex parte vide order dated 17.02.2017.

8. Learned counsel for the petitioner has stated that assessment given by respondent no.3 was for Rs.10,56,348/-, which was more than the IDV of the insured vehicle and therefore, it was a case of total loss. However, the surveyor has assessed the loss as Rs.3,07,880/- and changed his final assessment many times and there was no firm commitment from the insurance company for indemnification. The District Forum passed the order requiring that the petitioners should start repairing of the vehicle from respondent no.3 and then it will be decided what would be given to the petitioners. It has been ordered that if the repairing cost is more than 75% of the IDV then the insurance company shall consider the case to be a case of total loss. However, if the expenditure is less than 75%, then the loss assessed by the surveyor should be paid. It is not clear as to why the District Forum has not allowed the actual expenses, even if, the cost of repair is less than 75% of the IDV. As there was no firmness in the order of the District Forum, the complainants filed an appeal before the State Commission and the State Commission though has passed a firm order clearly indicating that the opposite party will pay Rs.3,40,627/- with interest at the rate of 9% per annum from the date of the final survey report, i.e., 03.10.2012, it was requested that the orders of the Fora below be set aside and the claim be allowed as equivalent to IDV of the vehicle.

9. On the other hand, the learned counsel for respondent nos.1 and 2 stated that the surveyor has rightly assessed the loss and the insurance company cannot pay more than the loss assessed by the surveyor. The loss assessed by the surveyor is not more than 75% of the IDV of the vehicle and therefore, it cannot be considered as a case of total loss. The learned counsel mentioned that the Hon’ble Supreme Court in the case of Export Credit Guarantee Corpn. Of India Ltd., vs Garg Sons International – 2013 (1) Scale 410 decided on 17.01.2013 has held that:

“The insured cannot claim anything more then what is covered by the insurance policy. “….the terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely”. The clauses of an insurance policy have to be read as they are….. Consequently, the terms of the insurance policy, that fix the responsibility of the insurance company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonize the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon.”

10. Learned counsel has further contended that the report of the surveyor is an important document on which the insurance claim is decided. The report of the surveyor cannot be rejected without any cogent reasons. The complainant has not given any cogent reason for rejection of the surveyor’s report. On the basis of the estimate given by a private company, surveyor’s report cannot be disbelieved. In support of his argument, the learned counsel referred to the judgment of this Commission in the case of National Insurance Company Ltd., vs Manjit Singh and 2 Ors. (in RP No. 2443 of 2015) decided on 23.05.2017 wherein this Commission has held the following:

“8. A perusal of the order passed by the State Commission reveals that they have based their conclusion on the estimate given by M/s. Alliance Motors Service of Rs.5,60,653/-, saying that since the estimate exceeds IDV of the vehicle as stated in the insurance policy, it was a case of total loss, as the damage to the vehicle was more than 75%. The complaint should, therefore, be given the IDV of the vehicle, i.e., a sum of Rs.4,81,534/- alongwith interest @9% p.a. On the other hand, the District Forum stated that the surveyor M.L. Mehta and Co. were qualified mechanical engineers, and experts in the relevant field. They had given a well-reasoned, detailed report which was self-explanatory and there was no reason to disbelieve the said report in the absence of any evidence to the contrary.

9. A perusal of the report submitted by the surveyor M.L. Mehta & Co. reveals that the said surveyor examined all the documents, including the estimates prepared by M/s. Alliance Auto Service for Rs.5,60,653/- and also the estimate given by the repairers M/s. Pathankot Vehicleades Pvt. Ltd.. They also examined the vehicle and took its photographs. The surveyor estimated the value of rubber parts as Rs.1,63,243.97ps. and after making a deduction of 50% of rubber/plastic items, they have disallowed a sum of Rs.81,621.98. In addition, the surveyor estimated the labour charges as Rs.36,244.50ps. as against the estimate of Rs.64,165/- given by the repairers. The net assessment made by the surveyor was given as Rs.3,18,118.67ps., as against an estimate of Rs.4,38,152.23ps.

10. We do not find any cogent or convincing reasons to disbelieve the said report of the surveyor. The conclusion arrived at by the State Commission is based on the estimate made by M/s. Alliance Auto Service. However, the District Forum have observed in their order that the said estimate was simply a quotation, indicating the price of the spare parts. It has not been stated in their estimate, as to which parts were damaged and needed the replacement; hence, the quotation/estimate given by them was meaningless. Under these circumstances we feel that the conclusion arrived at by the State Commission is erroneous in the eyes of law. The impugned order passed by the State Commission is, therefore, ordered to be set aside. On the other hand, the order passed by the District Forum reflects a correct appreciation of the issues involved in the case and they rightly concluded that the insurance company should make payment as per the report given by the surveyor. This revision petition is, therefore, allowed, the order passed by the State Commission is set aside and the order passed by the District Forum is restored. There shall be no order as to costs”.

11. I have heard the arguments of the learned counsel for the parties and perused the material on record. It is seen that both the Fora below have allowed the complaint on the basis of the report of the surveyor. Though the District Forum has allowed even the case of total loss and if the repair bill is actually of more than 75% of the IDV of the vehicle, the complainants would get the IDV, but even then the complainants have not taken up the repair work, therefore, the actual expenditure on repairs is not known. The State Commission has given a firm order relying on the report of the surveyor. In a way, there is a concurrent finding of the Fora below and as such the scope of the revision petition is very limited, as this Commission cannot reassess the facts as held by the Hon’ble Supreme Court in the case Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the following has been held:-

“23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

12. I agree with the arguments of the learned counsel for the respondent - insurance company that the report of the surveyor cannot be brushed aside without any cogent reasons. This view has been supported by the decision of the Hon’ble Supreme Court in the case of Sri. Venkateshwara Syndicate Vs. Oriental Insurance Company Limited And Another, (2009) 8 SCC 507 wherein Hon’ble Supreme Court has held that:-

“31. The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or 17damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.

32. There is no disputing the fact that the Surveyor/Surveyors are appointed by the insurance company under the provisions of Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them.”

13. Moreover, no specific objections have been raised on the report of the surveyor by the complainants. In such a situation, report of the surveyor cannot be rejected.

14. It is seen that the State Commission has awarded 9% interest per annum from 03.10.2012 whereas the complaint was filed on 29.08.2011 before the District Forum. At the most, the complainants may be granted interest from the date of institution of the complaint.

15. Based on the above discussion, I do not find any merit in the revision petition except that the State Commission’s order is modified to the extent that the interest of 9% per annum shall be payable to the complainants from 29.08.2011, rather than from 03.10.2012. Accordingly, the revision petition no. 2370 of 2013 is disposed of

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