Haryana

Sonipat

352/2013

SMT. JYOTIKA W/O MOHIT REHLAN - Complainant(s)

Versus

1. TATA AIG INSURANCE CO. LTD.,2. TATA AIG INSURANCE CO. LTD. ,3. TATA AIG LIFE INSURANCE CO. LTD. - Opp.Party(s)

RAJVIR MALIK

02 Dec 2015

ORDER

      BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

             

                             Complaint No.352 of 2013

                             Instituted on:22.08.2013

                             Date of order:14.12.2015

 

Jyotika wife of Mohit Rehlan, r/o H.No. New Kranti Nagar, Sant KLartar Colony, Panipat at present H.No.216, Sikka Colony, Sonepat.

 

…Complainant

Versus

 

1.Tata AIG Insurance Co. Ltd.  at Penisula Corporate Park, Peeramal Tower, 9^th Floor, Gk Marg Power Parel-Mumbai through its General Manager.

2.Tata AIG Insurance Co. Ltd. Divisional office at 301-308, 3^rd Floor Aggarwal Prestige Mall, Plot no.2, Road, No.44, Rani Bagh, Pitampura, New Delhi through its General Manager.

3.Tata AIG Insurance Co. Ltd. through M/s Malwa Auto Sales Pvt. Ltd. at NH-1, 31 Mile Stone, Kundli, Sonepat.

4.M/s Malwa Auto Sales Pvt. Ltd., at NH-1, 31 Mile Stone, Kundli, Sonepat (authorized dealer and repairing centre of Hyundai Motors).

 

                                                …Respondents.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. NK Dahiya, Advocate for Complainant.

 Sh. H.C. Jain, Advocate for respondent no.1 & 2.

 Sh. Kamal Hooda, Adv. for respondent no.3 & 4.

 

Before-    Nagender Singh-President. 

          Prabha Wati-Member.

          D.V. Rathi-Member.

 

O R D E R

 

          Briefly stated the facts of the present complaint as per complainant are that she purchased i-20 Hyundai car  from respondent no.4  and the respondent no.1 handed over package/cashless policy to the complainant. The respondent no.4 assured that in case of any accident of the vehicle, all the formalities of survey and lodging of claim will be initiated by them. Unfortunately the car of the complainant met with an accident on 27.8.2012 . The vehicle was brought to respondent no.4 on 30.8.2012 for repair and claim.  The respondent no.4 obtained the insurance policy from respondent no.1 and it was the duty of respondent no.4 to complete all the formalities. The respondent no.4 informed the respondent no.1 to 3 regarding receiving of accidental vehicle for repair and prepared an estimated cost of repair Rs.6,50,822/-.  The respondent no.1 to 3 appointed the surveyor and loss assessor Shri MS Uppal  who asked the complainant to sign some papers on the pretext that the vehicle is in total loss condition. When the complainant enquired from respondent no.4, it was told that the surveyor has assessed the loss to the tune of Rs.2,49,723/- against the estimated cost of Rs.650822/-. The vehicle of the complainant is lying with the respondent no.4 since 30.8.2012 in the same condition. The respondent no.4 is now demanding Rs.250/- per day as parking of accidental vehicle in his premises. The respondent no.1 to 3 have not taken any action in order to settle the claim of the complainant and the complainant has to incur Rs.200/- per day for her conveyance charges. So, there is great deficiency in service on the part of the respondents and so, she has come to this Forum and has filed the present complaint.

2.        The respondent no.1 & 2 and 3 & 4 have filed their separate reply.

          The respondent no.1 and 2 in their written statement has submitted that there is a delay of 22 days in giving intimation of the claim by the complainant to the respondents no.1 and 2 which is violation of condition no.1 of the insurance policy.  The surveyor has submitted his final report dated 23.1.2013 wherein the liability of the respondents no.1 and 2 was assessed for Rs.249723/- after deducting depreciation amount, excess clause as per terms and conditions of the policy.

          The respondent no.3 in its written statement has submitted that the vehicle was brought to the workshop of respondent no.3 on 30.8.2012 in an accidental condition . The complainant has submitted his claim form on 13.9.2012 and after that the insurance company appointed a surveyor. At the time of preparing the estimate, the total cost is assessed as Rs.264154/- on repairing basis.  The respondent no.3  issued a letter dated 21.10.2012 to the complainant for taking the decision regarding repair of the vehicle or not and in case she is not interest to get her vehicle repaired in that event she have to pay estimate charges as Rs.5000/- and parking charges of the vehicle as Rs.250/-per day.  But no response was received by the respondent no.3 from the complainant. So, it cannot be said that there was any kind of deficiency in service on the part of the respondent no.3 and thus, prayed for the dismissal of the present complaint.

          The respondent no.4 has filed the written statement on 14.9.2015, but was proceeded against ex-parte vide order dated 16.11.2015.  In the reply, respondent no.4 has submitted that no assurance of any kind as alleged by the complainant in her complaint was ever given to the complainant by the respondent no.4. After receiving the vehicle in the workshop, the respondent no.4 obtained the insurance policy from the complainant and informed the insurance company who appointed their surveyor for assessment of the loss. Without consent either from the owner or insurance company, the respondent no.4 is not liable to start repair work.  The respondent no.4 has prepared estimate of estimated cost of repair. The respondent no.4 has denied the fact that the insurance policy of the complainant was cashless policy, rather it was a simple policy.  The respondent no.4  received information from the insurance company, who assessed the loss of Rs.249723/- against the estimated repair of Rs.650822/-.  The respondent no.4 issued a letter dated 21.10.2012 to the complainant for taking the decision regarding the repair of her vehicle and in case she is not interested to get her vehicle repaired, then she is liable to pay estimate charges as Rs.5000/- and liable to pay parking charges of the vehicle at the rate of Rs.250/- per day. The respondent no.4 also sent many reminders to the complainant on 10.11.2012, 12.12.2012, 9.1.2013, 4.2.2013 and 20.2.2013 but of no use.  The vehicle of the complainant is lying parked in the workshop of the respondent no.4. There is no deficiency in service of any kind on the part of the respondent no.4 and the complainant has not suffered any mental agony or harassment at the hands of the respondent no.4 in any manner and thus, prayed for the dismissal of the present complaint.

3..       We have heard the arguments advanced by both the learned counsel for the parties at length and have also gone through the entire relevant records available on the case file very carefully.

4.        Ld. Counsel for the complainant has submitted that the car of the complainant met with an accident on 27.8.2012. The vehicle was brought to respondent no.4 on 30.8.2012 for repair and claim.  The respondent no.4 obtained the insurance policy from respondent no.1 and it was the duty of respondent no.4 to complete all the formalities. The respondent no.4 informed the respondent no.1 to 3 regarding receiving of accidental vehicle for repair and prepared an estimated cost of repair Rs.6,50,822/-.  The respondent no.1 to 3 appointed the surveyor and loss assessor Shri MS Uppal  who asked the complainant to sign some papers on the pretext that the vehicle is in total loss condition. When the complainant enquired from respondent no.4, it was told that the surveyor has assessed the loss to the tune of Rs.2,49,723/- against the estimated cost of Rs.650822/-.   Initially the vehicle was considered as total loss i.e. more-than 75% loss.  The vehicle of the complainant is lying with the respondent no.4 since 30.8.2012 in the same condition. The respondent no.4 is now demanding Rs.250/- per day as parking of accidental vehicle in his premises. The respondent no.1 to 3 have not taken any action in order to settle the claim of the complainant and the complainant has to incur Rs.200/- per day for her conveyance charges. So, there is great deficiency in service on the part of the respondents.

          He further submitted that the respondent no.4 and surveyor informed the complainant that as the repair cost of the insured vehicle is more-than 75% of its IDV, hence the vehicle will be considered in total loss.  On this pretext, the respondent no.4 did not take up the repair inc convince with the respondent no.1 to 3.  The insurance policy being a cashless policy, the consent of the complainant/insured was not required to take up as the repair cost was to be paid by the respondent no.1 to 3 directly to the respondent no.4.  The complainant was not required to pay any depreciation under the policy.   When the respondents no.1 to 3 did not settled the claim of the complainant, the complainant moved RTI dated 1.1.2013 with the respondents no.1 to 3 and the complainant then came to know that after about 6 months of the accident, the respondent no.1 to 3 had appointed a surveyor who assessed the cost of repair to the sum of Rs.249723/-.  In the notice of surveyor Ex.C7, it has been mentioned that the approval for repair has been given to the respondent no.4.  However, it was mentioned with malafide intention that the repair work has been stopped by the insured whereas the respondent no.4 never took any repairs and the vehicle is still lying in the same condition.         Ld. Counsel for the respondents no.1 and 2 has submitted that there is a delay of 22 days in giving intimation of the claim by the complainant to the respondents no.1 and 2 which is violation of condition no.1 of the insurance policy.  The surveyor has submitted his final report dated 23.1.2013 wherein the liability of the respondents no.1 and 2 was assessed for Rs.249723/- after deducting depreciation amount, excess clause as per terms and conditions of the policy.

          He further relied upon the case law titled as M.Lingan Vs. United India Ins. Co. Ltd. 2004(1) JRC page 214 and 2010(1) Law Herald (CPJ) page 185 titled as  National Insurance Co. Ltd. Vs. Nazir Ahmad Shah.

          Ld. Counsel for the respondent no.3 has submitted that the vehicle was brought to the workshop of respondent no.3 on 30.8.2012 in an accidental condition . The complainant has submitted his claim form on 13.9.2012 and after that the insurance company appointed a surveyor. At the time of preparing the estimate, the total cost is assessed as Rs.264154/- on repairing basis.  The respondent no.3  issued a letter dated 21.10.2012 to the complainant for taking the decision regarding repair of the vehicle or not and in case she is not interest to get her vehicle repaired in that event she have to pay estimate charges as Rs.5000/- and parking charges of the vehicle as Rs.250/-per day.  But no response was received by the respondent no.3 from the complainant. So, it cannot be said that there was any kind of deficiency in service on the part of the respondent no.3.

5.        After hearing learned counsel for both the parties at length and after going through the entire relevant records available on the case file very carefully, we are of the view that there is force in the contentions raised by the learned counsel for the complainant.

          It is undisputed that the policy is package/cashless policy.  The respondents did not lead any evidence to prove that the policy Ex.C2 was not a package policy or it was a simple policy.  It is clearly mentioned in Ex.C2 that the policy is Auto Secure Private Car Package Policy.    This fact is also proved from the pleadings of the complainant that the policy was issued by the respondent no.4 in collaboration with respondent no.1 to 3 and the premium was paid at the counter of Malwa Auto Sales Pvt. Ltd./respondent no.4 and the respondents no.1 to 3 have given against ID Number to the respondent no.4 i.e. ID0011033046.   Ld. Counsel for the complainant to prove that the respondent no.4 is still in the business of getting the vehicles insured with the insurance companies, has placed on record the document JN-A and this document shows that the respondent no.4 has got insured the vehcle no.HR-10U-1866 of one Naresh for the period 12.11.2015 to 11.11.2016 with Future Generali India Insurance company.

          In the present case, the vehicle of the complainant has met with an accident on 27.8.2012 and the vehicle was brought to the workshop of the respondent no.4 on 30.8.2012 and as per law, it was mandatory on the part of the respondents to decide the claim of the insurer within 45 days.  But it is very sorry state of affairs that the respondent insurance company has failed to do so because the surveyor deposited by the insurance company has submitted his report on 23.1.2013 before the insurance company.

          We have perused the report of surveyor MS Uppal and Associates, but the perusal of this surveyor report creates suspicion in the mind of this Forum because in this report, the surveyor has directly assessed the amount and has not mentioned any estimate of the repair or costs of the parts etc. So, in our view, the said report of the surveyor is seems to be doubtful and it might have been submitted by the surveyor to favour the respondent insurance company.

So, the law cited by the learned counsel for the respondents no.1 to 3 is not applicable to the case in hand as the same are on different footings.

          The perusal of the case file shows that the respondents no.1 to 3 have placed on record the document Ex.R4 i.e. letter to the insured wherein the loss is assessed as Rs.3,37,847/- with a fluctuation of 10-15%.  This fact itself shows that assessment in the survey report Ex.C7 is not based on correct estimate as the respondents no.1 to 3 were having variation of about Rs.90,000/- in assessment of repair cost.  The estimate for the cost of repair raised by the respondent no.4 who is authorized repair centre of Hyundai Motors is more genuine than the surveyor which is not based on any estimate. 

          So, it is clearly established that the respondents were working in connivance with each other and they have delayed the settlement of the claim and repair of the vehicle without any reasonable cause or reason and that amounts to a deficiency in service on the part of the respondents.

          In our view, the respondent no.4 was duty bound to take up the repair at the earliest, but he has delayed the repair due to the reasons best known to him.  Hence, the respondent no.4 is not entitled to take any parking charges from the complainant.  Further as the repair of the vehicle has been delayed by the respondent no.4 without any reasonable cause or excuse, the respondent no.4 is liable to pay Rs.100/- per day from the date of accident till final settlement of the claim of the complainant.

          Further since the vehicle is lying parked in the accident condition for the last more-than 3 years due to the deficient services on the part of the respondent no.4, it would be in the interest of justice if the IDV alongwith interest at the rate of 7% per annum from the date of filing of the present complaint till its realization is awarded to the complainant and the said amount shall be paid by the respondents no.1 to 3 to the complainant. We order accordingly.  It is also directed to the respondents no.1 to 3 to lift the vehicle in question from the workshop of the respondent no.4.

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

          Certified copy  of this order be provided to both the parties free of costs.

          File be consigned after due compliance.

 

 

(Prabha Wati)        (DV Rathi)           (Nagender Singh)                    Member, DCDRF,             Member, DCDRF        President, DCDRF,

Sonepat.             Sonepat.             Sonepat.

 

ANNOUNCED 14.12.2015