Haryana

Sonipat

CC/161/2015

SUNIL S/O SHRI SAHAB SINGH - Complainant(s)

Versus

1. MAGMA HDI GENERAL INSURANCE CO. LTD. - Opp.Party(s)

RAKESH SINGH

04 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.161 of 2015

                                Instituted on:14.05.2015

                                Date of order:04.07.2016

 

Sunil son of Sahab Singh, resident of village Rathdhana, Distt. Sonepat.

 

…Complainant.  

Versus

 

1.Magma HDI General Insurance Company Ltd. Subhash Chowk, Sonepat through its Manager.

2.Magma HDI General Insurance Company Ltd. through its Co-operate office Magma House, 24 Park Street Kolkata, through its Director.

 

                                                      …Respondents.

 

 

COMPLAINT UNDER SECTION 12 OF       

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Rakesh Singh Saroha Adv. for complainant.

           Respondent no.1 ex-parte.

           Sh. HC Jain, Adv. for respondent no.2.

 

BEFORE     NAGENDER SINGH, PRESIDENT.

          PRABHA WATI, MEMBER.

           J.L.GUPTA, MEMBER.

 

O R D E R

 

          Complainant has filed the present complaint against the respondents alleging himself to be the owner of the car no.HR-69B-1116 which was insured with the respondents. Unfortunately on 30.12.2013, the said vehicle has met with an accident and was totally damaged.  The respondents were informed and complaint was registered with PS Mugar, Distt. Gwalior.  The vehicle was shifted at Sonepat and the respondents sent their surveyor for inspection of the vehicle.  The complainant called the competent mechanic in village Kumaspur who has given the estimate of Rs.15 lacs for repair of the vehicle.   However, the respondents are avoiding the payment on one pretext or the other and that amounts to a grave deficiency in service on the part of the respondents. So, he has come to this Forum and has filed the present complaint.

2.        The respondent no.2 appeared and filed the written statement, whereas respondent no.1 was proceeded against ex-parte.

          The respondent no.2 in its written statement has submitted that the present complaint is bad for non-joinder of necessary party i.e. M/s Magma Fincorp Ltd. with whom the vehicle was hypothecated. After receiving the information about the alleged accident, the respondent no.2 deputed Vijay Kumar Jain Surveyor and Loss Assessor on 31.12.2013 to report about the cause, nature and extent of loss caused to the insured vehicle.  The said surveyor inspected the vehicle at the spot on 31.12.2013 and has submitted his report dated 5.1.2014.  Thereafter, the respondent no.2 got assessed the actual loss through Er. Virender Kumar, Surveyor and Loss Assessor and as per his assessment, net liability of the company came out to Rs.6,13,300.35 paise after deducting the amount of depreciation from the value of the costs of different damaged spare parts of the vehicle.  The respondent no.2 has been ready to pay the claim amount of Rs.613300/- to the complainant being its net liability as assessed by the duly licensed surveyor.  The respondent no.2 has requested the complainant to get the vehicle repaired, but of no use because the complainant was insisting to treat the vehicle as total loss.  The respondent no.2 also offered cashloss settlement as the complainant was not willing to pay for repairs and in this regard, the respondent no.2 has written letters dated 7.7.2014 and 18.7.2014, but of no use and he has filed the present complaint against the respondent no.2 on false grounds. The complainant is not entitled for any relief as there is no deficiency in service on the part of the respondent no.2 and thus, prayed for the dismissal of the present complaint.

3.        We have heard the arguments advanced by the ld. Counsel for both the parties at length and we have also gone through the entire relevant material available on the case file carefully & minutely.          Ld. Counsel for the  complainant has submitted that on 30.12.2013, the vehicle of the complainant has met with an accident and was totally damaged.  The respondents were informed and complaint was registered with PS Mugar, Distt. Gwalior.  The vehicle was shifted at Sonepat and the respondents sent their surveyor for inspection of the vehicle.  The complainant called the competent mechanic in village Kumaspur who has given the estimate of Rs.15 lacs for repair of the vehicle.   However, the respondents are avoiding the payment on one pretext or the other and that amounts to a grave deficiency in service on the part of the respondents.

          Ld. Counsel for the respondent no.2 has submitted that the present complaint is bad for non-joinder of necessary party i.e. M/s Magma Fincorp Ltd. with whom the vehicle was hypothecated. After receiving the information about the alleged accident, the respondent no.2 deputed Vijay Kumar Jain Surveyor and Loss Assessor on 31.12.2013 to report about the cause, nature and extent of loss caused to the insured vehicle.  The said surveyor inspected the vehicle at the spot on 31.12.2013 and has submitted his report dated 5.1.2014.  Thereafter, the respondent no.2 got assessed the actual loss through Er. Virender Kumar, Surveyor and Loss Assessor and as per his assessment, net liability of the company came out to Rs.6,13,300.35 paise after deducting the amount of depreciation from the value of the costs of different damaged spare parts of the vehicle.  The respondent no.2 has been ready to pay the claim amount of Rs.613300/- to the complainant being its net liability as assessed by the duly licensed surveyor.  The respondent no.2 has requested the complainant to get the vehicle repaired, but of no use because the complainant was insisting to treat the vehicle as total loss.  The respondent no.2 also offered cashloss settlement as the complainant was not willing to pay for repairs and in this regard, the respondent no.2 has written letters dated 7.7.2014 and 18.7.2014, but of no use and he has filed the present complaint against the respondent no.2 on false grounds. The complainant is not entitled for any relief as there is no deficiency in service on the part of the respondent no.2 and thus, prayed for the dismissal of the present complaint.

          In support of his contentions, he has relied upon the case law titled as Sonic Surgical Vs. National Ins. Co. Ltd. PLR (2010) page 396, HC Saxena Vs. New India Ass. Co.Ltd. CPC 2012(1) page 632 and Kaushalendra Kumar Mishra Vs. Oriental Ins. Co. Ltd., 2012(II) CPJ page 189(NC).2

          First of all, we are coming to the plea taken by the respondent no.2 that the present complaint is bad for non-joinder of necessary party i.e. M/s Magma Fincorp Ltd. with whom the vehicle was hypothecated.

          But this plea of the respondent no.2 has become meritless keeping in view the document marked as JN placed on record by the complainant,  vide which, Magma Fincorp Ltd. has issued no objection certificate to the complainant in respect of the vehicle in question.

          The other plea of the respondent no.2 is that this Forum has no jurisdiction to try the present complaint as the vehicle was inspected at Karnal.  But as per the complainant, the vehicle was inspected at Sonepat and Karnal as well.  We have perused the surveyor report very carefully, but the said surveyor in his entire report has no where mentioned as to where he has inspected the complainant’s vehicle.  So, in the absence of the specific version from the surveyor, we have no hesitation in accepting the stand of the complainant that the vehicle was inspected by the surveyor at both the places i.e. Sonepat and Karnal. Thus, this Forum has the jurisdiction to try the present complaint.

          We have perused the report of Er Virender Kumar Surveyor and Loss Assessor and vide this report, the net loss of assessment is to the tune of Rs.5,39,053/-.  But as per this report, some part like mentioned at serial no.3 i.e.

Transaxle Assy. Complete repairing

Allowed with outer case and

May be some inner parts.

              Estimated cost of the same has been mentioned as Rs.1,12,970/-, but only Rs.32000/- has been assessed and further in the column of remarks, it is shown “Safe”.

              Similar is the position with Serial no.54,

Turbo charge-Repairing allowed-

Seems safe as visible.

              Estimated cost of the same has been shown as Rs.40564/-. No amount has been allowed and in the column of remarks, it is mentioned as “Safe”.

          In the present case, one thing is clear that the complainant has not got repaired his vehicle.  So, in our view, to some extent and somehow, the complainant is also deficient on his part.  Due to non-repairing of the vehicle, total assessment of net loss has not come on the record.  However, it is proved from the surveyor reports that the complainant’s vehicle has met with an accident and it has suffered extensive damages. 

          The perusal of the case file further shows that only photo copies of the photos have been placed on record by both the parties.  Neither the complainant nor the respondent no.2 have placed on record the original photographs.

          We have further perused the document Annexure R-2 i.e. Surveyor and Loss Assessor report submitted by Vijay Kumar Jain.  The said surveyor has mentioned in his report regarding nature and extent of damages which is as under:-

          “Insured’s vehicle is 2012 model and on account of its being overturned after hit against a culvert while its steering failure with the result that its cabin smashed at floor, front show, w/s frame, both door, roof, back wall, dashboard, meter cover, meter, combination switch, steering wheel, seats, bent broken and damaged.  Wind Shield glass, window glass, door glasses were broken and damaged.  Load body pressed bent with floor, back wall, chasis frame bent badly and crossed damaged.  Front axle bent and misalingned. Spring leaves decambered. Shackle, bracker broken and damaged.  U bolt bent and damaged. Radiator with fan smashed. Engine tappet cover, manifold, silencer, timing cover block, coolant control valve, air intake pipe, water pump, oil pump, oil filter with its body bent broken and damaged.  Internal parts to be checked at the time of final inspection.  Gear top cover broken and damaged. Gear lever damaged with its internal parts. Diesel tank broken and damaged.”

          So, from the above contents as mentioned in the surveyor report,  somehow it is proved that the vehicle of the complainant was badly damaged.

          It is also proved from the file that the vehicle was not got repaired by the complainant and due to this final/re-inspection of the vehicle could not be done by the respondent no.2.

          The perusal of the case file further shows that as per Annexure R3, Er Virender Kumar Surveyor and Loss Assessor has assessed the net liability to the tune of Rs.6,13,300/-,  but as per the document marked as JN-1 placed on record during the course of arguments, the same surveyor and loss assessor Er Virender Kumar has assessed the net assessment to the tune of Rs.5,39,053/-.

          The vehicle in question was insured for the period w.e.f. 31.10.2013 to 30.10.2014 for Rs.12,02,648/- and the said vehicle has met with an accident during the validity of the insurance policy. As per document Annexure R-3, the surveyor Er. Virender Kumar has assessed the loss amounting to Rs.613300/- and vide another document JN-1, the loss was assessed to the tune of Rs.5,39,000/-.  The complainant’s counsel has also placed on rcord the document JN-2 i.e. no objection certificate issued by Magma Fin Corp and as per this certificate, the complainant has deposited all the loan amount in the finance company and the company has cancelled the HPA.  The vehicle was not prepared by the complainant and due to this, the exact damage could not be assessed. So, in our view, the ends of justice would be fully met if some directions are given to the respondent no.2 to pay some lumpsum amount.  Thus, we hereby direct the respondent no.2 to pay lumpsum Rs.6,25,000/- (Rs.six lacs twenty five thousand) to the complainant within a period of 60 days from the date of passing of this order, failing which, the above said amount shall fetch interest at the rate of 09% per annum from the date of passing of this order till its realization.

           With these observations, findings and directions, the present complaint stands allowed partly.

Certified copy of this order be provided to  both the

parties free of costs.

          File be consigned to the record-room.

 

 

(Prabha Wati)(J.L.Gupta)             (Nagender Singh-President)

Member DCDRF  Member DCDRF                     DCDRF, Sonepat.

 

Announced:04.07.2016