CONSUMER CASE - CT Scan damaged - claimed Rs.7 lakhs and odd - repair was done in the absence of surveyor - replaced parts are second hand one - removed parts are of the year1987 but no 1999 reduced claim to Rs. 2 lakhs and odd Lower courts failed to notice this facts- National forum held that report of the surveyor is an important document and it should be considered before arriving at a judgement. In the present case, the complainant has not been able to give any cogent and convincing explanation to rebut the conclusions arrived at by the surveyor. and as such modified the award of lower court from 5 lakhs and odd to Rs. 2 lakhs and odd as fixed by surveyor =
Dr. Gurbaksh Chaudhary got installed a C.T. Scan machine at his diagnostic centre at Pathankot, Punjab and the said machine was purchased through finance from the Punjab National Bank in the year 2002, and got insured with the petitioner Insurance Company, vide Policy No. 361600-44-02-0010 from 16.07.2002 to 15.07.2003, for which a sum of `1,18,338/- was paid to the petitioner as premium. The Policy was renewed vide cover note No. 230187 for the period 16.07.2003 to 15.07.2004, with sum insured of `50 lakhs and the premium charged was `56,700/-. It has been stated in the complaint that the said machine broke down in March 2004.=
As per the report given by the surveyor, the damage was to the tune of `2.55 lakh. The surveyor has brought out in his report that the year of manufacture of the CT scan machine as mentioned in the Insurance Policy is 1999 whereas the said machine was found manufactured in the year 1987. As per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of the machine was only
`16 lakh, being old. The parts replaced by the insured were not new but second hand. The surveyor assessed the total loss as `7.70 lakh and after allowing for 50% depreciation, the assessed value of the loss was reduced to `3.85 lakh. After further applying the average clause, the quantum of loss assessed was `2,68,858.33 and after deducting 5% for less clause, the final amount came to be `2,55,415.92.
`16 lakh, being old. The parts replaced by the insured were not new but second hand. The surveyor assessed the total loss as `7.70 lakh and after allowing for 50% depreciation, the assessed value of the loss was reduced to `3.85 lakh. After further applying the average clause, the quantum of loss assessed was `2,68,858.33 and after deducting 5% for less clause, the final amount came to be `2,55,415.92.
Further, a perusal of the report given by the surveyor says that this machine was made in the year 1987 and they have mentioned the exact dates of manufacturing of various parts of the machine in the report. According to the report, the parts replaced were old, and not new. They have also stated that although the machine was insured for `41.90 lakh, but as per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of machine was only `16 lakh, being old. The surveyor has, therefore, calculated the loss after making a depreciation of 50% on the assessed amount. The surveyor after further applying the average clause etc. found the net loss to be `2,55,415.42 ps.
9. In view of the facts explained above, when it has been brought out clearly in the report of the surveyor that this was an old machine, made in the year 1987 and its value was much lower than the value of `41.90 lakh for which it was insured, there does not seem to be any reason for allowing a sum of `5,10,830/- as awarded by the State Commission and District Forum. It has been stated in a number of decided cases, viz., “United India Insurance Co. Ltd. & Ors. versus Roshal Lal Oil Mills Ltd. & Ors.” [2000 (10) SCC 19], that report of the surveyor is an important document and it should be considered before arriving at a judgement. In the present case, the complainant has not been able to give any cogent and convincing explanation to rebut the conclusions arrived at by the surveyor.
10. In view of the facts stated above, this revision petition is partly allowed and the award given by the State Commission and the District Forum is modified, saying that the complainant shall be entitled to a compensation of `2,55,415.42ps. as assessed by the surveyor, alongwith interest @9% p.a. from the date of filing the complaint, till realisation. There shall be no order as to costs.
2014 JANUARY PART ncdrcrep/judgement/RP39752012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3975 OF 2012
(From the order dated 05.07.2012 in First Appeal No. 480 / 2007
of Punjab State Consumer Disputes Redressal Commission)
New India Assurance Co. Ltd.
Registered Office :
87, M.G. Road,
Fort, Mumbai.
Regional Office:
Level V, Tower – II,
Jeevan Bharti Building
Connaught Place,
New Delhi – 110001.
Divisional Office,
Dalhousie Road,
Pathankot – 145001. ... Petitioner
versus
Dr. Gurbaksh Chaudhary
s/o Ram Prakash Chaudhary
Chaudhary Diagnostic Research Centre
Opposite Warehouse,
near Bus Stand,
Gurdaspur Road,’
Pathankot,
Punjab … Respondent
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s)
|
Ms. Meenakshi Midha, Advocate
| |
For the Respondent(s)
|
Mr. Jos Chiramel, Advocate
|
PRONOUNCED ON : 10th JANUARY 2014
O R D E R
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 05.07.2012, passed by the Punjab State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 480/2007, “New India Assurance Co. Ltd. versus Dr. Gurbaksh Chaudhary”, vide which, while dismissing the appeal, the order dated 31.01.2007, passed by the District Consumer Disputes Redressal Forum, Gurdaspur, allowing the consumer complaint no. 119/2006, was upheld.
2. Brief facts of the case are that the complainant/respondent Dr. Gurbaksh Chaudhary got installed a C.T. Scan machine at his diagnostic centre at Pathankot, Punjab and the said machine was purchased through finance from the Punjab National Bank in the year 2002, and got insured with the petitioner Insurance Company, vide Policy No. 361600-44-02-0010 from 16.07.2002 to 15.07.2003, for which a sum of `1,18,338/- was paid to the petitioner as premium. The Policy was renewed vide cover note No. 230187 for the period 16.07.2003 to 15.07.2004, with sum insured of `50 lakhs and the premium charged was `56,700/-. It has been stated in the complaint that the said machine broke down in March 2004. The complainant informed the petitioner in writing on 08.03.2004, but the petitioner did not keep the intimation letter with them and advised the complainant to attach the estimate of repairs alongwith the letter. The complainant then contacted the engineers of JAP Imaging Solutions, SAS Nagar, Mohali on 09.03.20004, who inspected the machine on 10.03.2004 and gave an estimate of loss/repairs for a sum of `7,70,000/-. On 11.03.2004, the complainant sent the claim letter alongwith report of estimated loss and it was handed over to the Divisional Manager of the petitioner company, who gave the remarks that the exact date of the visit of Engineer should be intimated to them, so that they could call and send the surveyor accordingly. The engineers of the company visited the premises on 14.03.2004 and an intimation to this effect was given telephonically to the petitioner, but they did not depute any surveyor till 28.03.2004. Their surveyor Anil Kumar Dhir, visited the premises on 28.03.2004, and all information, papers and reports were made available to him. Thereafter, letters were written to the Insurance Company from time to time, giving full details of the case. The petitioner Company, however, sent a letter to them on 06.05.2005, saying that the surveyor’s report had been received and the claim was being processed, but still, nothing was paid. It has further been stated in the complaint that at the time of the visit of surveyor, the new parts as well as the replaced parts of the machine was shown to him. The surveyor wanted that the defective parts should be put-back in the machine to see the faulty operation, but it was explained to him by the engineers of the repairing company that the machine being very sensitive, the old parts could not be re-inserted in the machine. The complainant put forward a claim for payment of `7,70,000/- alongwith interest @12% p.a. with effect from 28.03.2005. However, on the failure of the Insurance Company to pay the same, the consumer complaint in question, was filed before the District Forum. The District Forum vide their order dated 31.01.2007, awarded a sum of `5,10,830/- to the complainant, alongwith interest @9% p.a. with effect from 15.05.2005. An appeal filed against this order was dismissed by the State Commission vide impugned order and the order passed by the District Forum was upheld. It is against this order that the present revision petition has been made.
3. At the time of hearing before us, the learned counsel for the petitioner Insurance Company stated that the complainant have not cooperated with the surveyor during his visit to the premises and the said surveyor had no occasion to see the damage done to the machine.
As per the report given by the surveyor, the damage was to the tune of `2.55 lakh. The surveyor has brought out in his report that the year of manufacture of the CT scan machine as mentioned in the Insurance Policy is 1999 whereas the said machine was found manufactured in the year 1987. As per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of the machine was only
`16 lakh, being old. The parts replaced by the insured were not new but second hand. The surveyor assessed the total loss as `7.70 lakh and after allowing for 50% depreciation, the assessed value of the loss was reduced to `3.85 lakh. After further applying the average clause, the quantum of loss assessed was `2,68,858.33 and after deducting 5% for less clause, the final amount came to be `2,55,415.92.
`16 lakh, being old. The parts replaced by the insured were not new but second hand. The surveyor assessed the total loss as `7.70 lakh and after allowing for 50% depreciation, the assessed value of the loss was reduced to `3.85 lakh. After further applying the average clause, the quantum of loss assessed was `2,68,858.33 and after deducting 5% for less clause, the final amount came to be `2,55,415.92.
4. The learned counsel has further drawn our attention to the letter dated 2.06.2004, sent by the Insurance Company to the complainant, in which they have mentioned that the intimation letter dated 11.03.2004 from the complainant was received by them the same day and the Assistant General Manager of the Company had given the remarks, “Please let us have the exact date of visit of engineer to enable us to call the surveyor accordingly.” It is further stated by the Insurance Company that the complainant telephonically informed the Divisional Manager on 26.03.2004 that the engineer shall visit on 28.03.2004. The surveyor visited the premises of the complainant on 28.03.2004, when he was informed by the complainant that the machine had already been repaired. It has been stated in the letter dated 2.06.2004 that the Company will not be able to settle the claim in the absence of proper survey. Further, the company sent another letter to them on 22.11.2005, saying that the complainant had hidden the material facts from the petitioner and had not cooperated during survey and assessment of the loss and hence, they were not entitled to any claim. The learned counsel argued that in the light of these facts, the conclusion drawn by the State Commission did not reflect a correct appreciation of the facts on record and hence, the order passed by the State Commission should be set aside.
5. In reply, the learned counsel for the complainant/respondent stated that the scope of a revision petition is limited, because issues such as the quantum of compensation etc., could not be examined, while deciding the revision petition. At the revisional stage, the order passed by the lower courts can be modified only, if there has been a patent error of law or jurisdiction. As per the facts of the present case, the machine got damaged on 08.03.2004 and on the same date, the petitioner/OP was given information as stated in the complaint itself. The petitioner/OP asked the complainant to give assessment for repair of this machine, following which they contacted a repairer and got estimates from them. They sent a letter to the Insurance Company on 11.03.2004, saying that they had contacted the engineers from Chandigarh to come and check the machine and they were expecting the engineer to visit their premises in the next two days. This letter was duly received by the Company as admitted by them on 11.03.2004 itself and the Divisional Manager made the remarks for finding out the exact date of the visit of the engineers. The machine was accordingly got repaired by them, but the Insurance Company deputed the surveyor quite late, and the said surveyor reached them only on 28.03.2004, when the machine had already been repaired.
The surveyor desired that the old parts should be inserted again into the machine, so that he could make proper assessment of the defects in the machine, but it was not possible to reinsert the old parts at that stage, because the machine is highly sensitive and it could have led to further damage to the machine. The surveyor sent them a letter also dated 1.04.2004, saying that old parts should be put again, but it was not feasible to do so. Further, the report of the surveyor says that the machine was made in 1987, but the surveyor has not given any reasons to arrive at that conclusion. Learned counsel has also drawn our attention to the terms and conditions of the insurance Policy, saying that the sum insured has to be equal to the cost of the replacement of the insured property by new property of the same kind and same capacity.
6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. It is the case of the complainant that the machine broke-down in the month of March 2004 and they informed the Insurance Company on 08.03.2004 in writing, regarding the problem in the machine. The petitioner/OP advised them to attach the estimate of repairs alongwith the letter. The complainant, thereafter, contacted the engineers of JAP Imaging Services, 838, Phase-II, SAS Nagar, Chandigarh on 09.03.2004, who inspected the machine on 10.03.2004 and gave an estimate of loss/repairs for a sum of `7,70,000/-. The complainant then sent claim letter to the Company on 11.03.2004, alongwith estimated cost of loss and the same was handed over to Shri Ram Krishan, Divisional Manager of the Company, who gave his remarks as quoted above on the said letter. However, a perusal of the said letter dated 11.03.2004 indicates that the complainant has therein stated as follows:-
“This is to bring to your kind notice that our CT Scan Machine is giving problem and we have contacted engineers from Chandigarh to come and check our machine to find out the fault. We are expecting engineers to visit our centre in next two days.”
A hand-written note is there on this letter, saying that copies of the estimate and service report are attached.
7. It is clear from this letter that there is no reference to the earlier letter having been written on 08.03.2004. Moreover, there is no evidence on record to show that the complainant ever informed the Company about the repair of the machine done on 14.03.2004. The Insurance Company have stated that the complainant informed them telephonically on 26.03.2004 about the visit of the engineer on 28.03.2004, whereupon they deputed their surveyor to go to the complainant on 28.03.2004. When the surveyor reached there, he was told that the machine had already been repaired about two weeks back. Thereafter, the surveyor wrote letters to them asking for various documents and information, but as per the version of the Company, the same was not supplied to them. The Company also wrote to the complainant they had not cooperated with the surveyor due to which the assessment could not be made properly. The letter of repudiation dated 02.06.2004 has stated this aspect in clear terms.
8. Further, a perusal of the report given by the surveyor says that this machine was made in the year 1987 and they have mentioned the exact dates of manufacturing of various parts of the machine in the report. According to the report, the parts replaced were old, and not new. They have also stated that although the machine was insured for `41.90 lakh, but as per the valuation report of M/s. Sanjeev Gupta and Associates, the cost of machine was only `16 lakh, being old. The surveyor has, therefore, calculated the loss after making a depreciation of 50% on the assessed amount. The surveyor after further applying the average clause etc. found the net loss to be `2,55,415.42 ps.
9. In view of the facts explained above, when it has been brought out clearly in the report of the surveyor that this was an old machine, made in the year 1987 and its value was much lower than the value of `41.90 lakh for which it was insured, there does not seem to be any reason for allowing a sum of `5,10,830/- as awarded by the State Commission and District Forum. It has been stated in a number of decided cases, viz., “United India Insurance Co. Ltd. & Ors. versus Roshal Lal Oil Mills Ltd. & Ors.” [2000 (10) SCC 19], that report of the surveyor is an important document and it should be considered before arriving at a judgement. In the present case, the complainant has not been able to give any cogent and convincing explanation to rebut the conclusions arrived at by the surveyor.
10. In view of the facts stated above, this revision petition is partly allowed and the award given by the State Commission and the District Forum is modified, saying that the complainant shall be entitled to a compensation of `2,55,415.42ps. as assessed by the surveyor, alongwith interest @9% p.a. from the date of filing the complaint, till realisation. There shall be no order as to costs.
Sd/-
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
Sd/-
(DR. B.C. GUPTA)
MEMBER
RS/
