TATA AIG GENERAL INSURANCE CO LTD vs RANBIR SINGH & ANR

K. S. Chaudhari, Presiding Member

[1] This revision petition has been filed by the petitioner against the order dated 2.1.2013 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission'') in Appeal No. 1380 of 2012 Tata AIG General Insurance Co. Ltd. Vs. Ranbir Singh & Anr. by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

[2] Brief facts of the case are that Complainant/Respondent No.1, owner of SKODA HR-04N-0003 got it insured from OP No. 2/Petitioner for a period of one year from 6.11.2010 to 5.11.2011. On 13.9.2011 at about 5.30 PM; while the complainant was going to Sector-8, Panchkula in the said car, all of a sudden due to heavy rains, the car of the complainant suddenly stopped on the road and immediately the complainant contacted the OP no. 2 on telephone but the officials of the OP No. 2 advised the complainant to bring the car at their workshop at Karnal and thereafter the complainant contacted Krishna Automobiles Pvt. Ltd., Chandigarh from where the said vehicle was purchased and they sent their mechanic on the spot and the vehicle in question was taken to the workshop of Krishna Automobiles Pvt. Ltd., Chandigarh by towing the same and the complainant had to pay a sum of Rs.500/- towards the Mechanic Charges and Rs. 700/- as Towing charges from Panchkula to Chandigarh to Krishna Automobiles Pvt. Ltd. Krishna Automobiles Pvt. Ltd., Chandigarh checked the vehicle of the complainant and they advised the complainant that as vehicle in question was insured through OP No.2, so the vehicle should be taken to the workshop of OP No. 2 as the policy in question is a cashless policy and they will repair the same on cashless basis and the complainant contacted the OP No. 2 on telephone and the OP No. 2 assured the complainant that the vehicle in question be brought to the workshop of OP No. 2 and OP No. 2 will repair the same on cashless basis as the policy in question was also issued by OP No. 2 on behalf of OP No. 1 and at the assurance of OP NO. 2 the complainant brought the vehicle in question to the workshop of OP No. 2 on 17.9.2011 by paying towing charges of Rs.4100/- from Chandigarh to Karnal. It has been further averred that the vehicle in question stopped due to heavy rams and on the next date, the OP No. 1 was also informed about the said incident/accident and the surveyor also inspected the vehicle in question at Krishna Automobiles, Chandigarh. On 3.10.2011, the estimated loss of the vehicle in question was assessed by the OP No. 2 to the tune of Rs.3,19,531.91. Estimate Annexure C-6 was prepared by Sh. Mahesh Kalra, Surveyor of the company who inspected the vehicle and assessed the loss to the tune of Rs.72,617/- only. The OP No. 2 asked the complainant to make the part payment in advance to start the repair of the vehicle as such the complainant paid a sum of Rs.50,000/- vide cheque no. 758365 drawn on PNB Model Town, Karnal against receipt dated 1.11.2011. The vehicle in question was got repaired from OP No. 2 on the assurance of OP No. 1 under the assurance of OP no. 1 under the cashless policy basis. After the vehicle in question was repaired, both the OPs refused to repair the vehicle in question on cashless basis and asked to pay the entire repairs and spare parts charges to the tune of Rs.3,30,617/- and the complainant under the compelling circumstances had to pay the balance amount of Rs.2,80,000/- to the OP no. 2 vide cheque no. 758368 dated 24.11.2011. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP No. 1 resisted complaint and submitted that the standard policy of insurance does not cover any consequential loss resulting from ingress of water. The damage to the engine cannot happen merely by coming into contact with water unless there is a mechanical failure or trying to start/run engine when same is in contact with the water. The answering OP has already paid the amount of Rs.25,788/- allowed by IDRA Licensed independent surveyor Shri Mahesh Kalra for replacement of engine oil, flushing of engine and oil filter. It was further submitted that payment of Rs.25,788/- has already been made to the complainant and prayed for dismissal of complaint. OP No. 2 resisted complaint and submitted that OP No. 1 was to indemnify the claim of the complainant. It was further submitted that OP No. 2 carried out repairs and received payment of Rs.3,30,000/- from complainant and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP No. 1 to pay Rs.1,99,400/- and Rs.4800/- as towing charges and further directed OP to pay Rs.20,000/- as compensation and Rs.11,000/- as litigation charges. Appeal filed by OP No. 1 was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

[3] None appeared for Respondent No. 2.

[4] Heard learned Counsel for the parties finally at admission stage and perused record.

[5] Learned Counsel for the petitioner submitted that in spite of payment of amount assessed by surveyor and no liability for additional amount, learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

[6] Learned State Commission after recording final order of District Forum dismissing appeal while observing as under: "We have gone through the impugned order and have taken into consideration the facts and circumstances of the case and are of the view that Surveyor of the company has not acted as a prudent and has acted to help the party, which has engaged him i.e. Insurance Company. If we see the manner in which the assessment of repairs work have been carried out in the vehicle as well as the amount which was deducted by the surveyor towards the labour charges and towing charges, we feel that there is deficiency in service on the part of the Surveyor as well as the appellant company. The labour charges and towing charges are permissible under the terms and conditions of the policy. In this view of the matter, District Forum accepted the complaint and granted the relief to the complainant as is noticed in the concluding para of the impugned order, which is reproduced above. Hence, we do not find any illegality or ambiguity in the impugned order.

No merit. Dismissed in limine."

Learned State Commission has not considered any points raised in memo of appeal and has dismissed appeal in limine only on the assumption that surveyor has not acted as a prudent man and has helped Insurance Company. Learned State Commission ought to have discussed all the objections taken in memo of appeal and grounds for discarding surveyors report in comparison to report of private surveyor.

[7] Hon''ble Apex Court in HVPNL Vs. Mahavir, 2001 10 SCC 659 observed as under: "1.In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

''We have heard the Law Officer of HVPN appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal''.

We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission".

[8] In the light of above judgment, it becomes clear that Appellate Court while deciding an appeal is required to deal with all the aspects and arguments raised by the appellant and as learned State Commission has not dealt with any contentions and arguments of the appellant, it would be appropriate to remand the matter back to the learned State Commission for disposal of appeal by speaking order after dealing with all the contentions and arguments raised by the parties.

[9] Consequently, revision petition filed by the petitioner is allowed and order dated 2.1.2013 passed by the State Commission in Appeal No. 1380 of 2012 Tata AIG General Insurance Co. Ltd. Vs. Ranbir Singh & Anr. is set aside and matter is remanded back to the learned State Commission for deciding it by speaking order after giving an opportunity of being heard to the parties.

[10] Parties are directed to appear before the learned State Commission on 7.10.2015