BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.395 of 2018
Date of Instt. 24.09.2018
Date of Decision:16.06.2022
Anita Chopra, aged about 47 years, wife of Mr.Vipan Chopra resident of H. No.66, Guru Teg Bahadur Nagar, Jalandhar, through her attorney Sh. Vipan Chopra, son of Sham Sunder Chopra resident of H. No.66, Guru Teg Bahadur Nagar, Jalandhar.
..........Complainant
Versus
1. ANR Motors Pvt. Ltd., Castle Toyota, Through its Authorized Representative, Near Jalandhar Kunj, Kapurthala Road, Jalandhar.
2. Royal Sundram General Insurance Co. Ltd., Through its Authorized Representative, Third Floor, 354, Bhagwati Tower, Industrial Area, Barhami, Ludhiana.
3. Royal Sundram General Insurance Co. Ltd., Through its Authorized Representative, SCO 82, 1st & 2nd Floor, Sector 40-C, Chandigarh.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Puneet Sareen, Adv. Counsel for Complainant.
Sh. K. P. Singh, Adv. Counsel for OP No.1 (Join Proceedings.)
Sh. R. K. Sharma, Adv. Counsel for OPs No.2 & 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant through her attorney Vipan Chopra i.e. husband of the complainant, wherein it is alleged that the OP No.1 is engaged in the business of dealing in sale of Toyota Four Wheelers and is also engaged in providing service and repair of the vehicle and sale of spare parts etc. The OPs No.2 & 3 are insurance company, who had been alluring general public at large of providing good and hassle free insurance service. Both the OPs proclaim themselves to provide very good services in their respective fields. The complainant is owner of Toyota Fortuner Car, bearing registration No.PB08-CG-0007. Coming under allurement of OP No.2 the complainant had got insurance of her car from OPs No.2 & 3 vide policy No.VPC 0852307000100, which was valid from midnight of 25.06.2017 to midnight of 24.06.2018. Unfortunately, the said car of complainant met with an accident on 10.06.2018 for which it was given to op No.1 for repair on 12.06.2018. The OP NO.1 had made a quotation for repair of said car which was sent to OP No.2 for approval being insured by OPs No.2 & 3 having dep cap insurance with consumable. The OP No.1 had told complainant that only after getting approval of OP No.1 regarding payment of claim by OPs No.2 & 3, the op No.1 shall commence the repair work of car of complainant. After much discussion between OPs No.1 to 3, the car of the complainant was repaired. The OP No.1 has issued invoice dated 25.07.2018, vide which a sum of Rs.2,42,500/- has been raised. Thereafter, neither OPs No.2 & 3 had been passing the insurance claim of insured vehicle of complainant nor OP No.1 had been handing over the vehicle to the complainant. It appears that OPs have connived with each other to blackmail the complainant. The OP No.1 had clearly told the complainant that they will commence the repair/job work for the damaged vehicle of complainant only after getting a nod from OPs No.2 & 3. Thereafter, the OPs No.2 & 3 had also informed complainant to have appointed investigator to investigate the claim of the complainant vide intimation dated 03.08.2018. Even on 19.08.2018, complainant had informed investigator of his various queries. The OPs had been harassing the complainant for the reason known best to OPs by providing deficient services, which is causing mental agony to the complainant. The OPs have also indulged in unfair trade practice. The complainant had also got issued a legal notice dated 09.08.2018 to the OPs, but all in vain. The act and conduct of the OPs harassed the complainant and he suffered mental tension, harassment, agony and physical discomfort and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay an amount of Rs.2,42,000/- f the repair invoice issued by OP No.1 and to pay a sum of Rs.50,000/- to the complainant for subjecting her to mental torture, harassment and agony and further OPs be directed to pay litigation expenses.
2. Notice of the complaint was given to the OPs, but despite service OP No.1 failed to appear and ultimately, OP No.1 was proceeded against exparte, but after one date/adjournment, the OP No.1 joined the proceedings and filed written reply and contested the complaint by taking preliminary objections that the present complaint is legally non maintainable against the OP. The subject matter in dispute is non-payment of insurance claim only which is to be paid by other OPs only as such, the same cannot be a deficiency in service on the part of the replying OP. Thus, the complaint is liable to be dismissed on this score only. It is further averred that the complainant is not covered in definition of consumer. The subject matter of the complaint is non-payment of insurance claim only which is the matter in between complainant as well as other OPs only. Therefore, the complainant cannot be termed as consumer qua replying OP. It is further averred that the complainant has got no locus-standi to file the present complaint. Thus, the complaint is liable to be dismissed. The complainant has concealed and suppressed material facts from this Commission as such, the complainant is not entitled for any relief as prayed for because it is settled that the person who are not coming with clean hands are not entitled for any relief. The complaint is bad for mis-joinder of necessary parties. Once the car is repaired then amount of the invoice has to be paid either by complainant or the insurance company as such the replying OP reserves its right to recover the same either from the complainant or the insurance company. On merits, it is admitted that the OP No.1 is engaged in the business of dealing in sale of Toyota Four Wheelers and is also engaged in providing service and repair of the vehicle and sale of spare parts etc., but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OPs No.2 & 3 filed its joint written reply and contested the complaint by taking preliminary objections that the present complaint is not at all maintainable either in facts or in law, as the claim of the complainant was rightly repudiated by the answering OP on the fact that the damages claimed for did not tally with the cause and nature of the accident narrated in the claim form. Since the damages found by the surveyor were old and rusted, the OP rightly concluded that the complainant was trying to falsely claim for old damages by inventing fresh accident cause in the claim form. The complainant has thus violated the principle of utmost good faith which is the fundamental principle of policy of insurance and hence the repudiation of the OPs is as per policy terms and conditions and not a deficiency in service or unfair trade practice. Hence the present complaint is liable to be dismissed on merits.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
7. The complainant/Anita Chopra is the owner of the Toyota Fortuner Car as per registration certificate Ex.C-8. It is not disputed that the complainant had got insurance of her Toyota Fortuner Car from OPs No.2 & 3, which was valid from 25.06.2017 to 24.06.2018. This has been proved from Ex.C-2, Ex.C-3, Ex.C-5 and Ex.C-6. As per the contention of the complainant, the car was met with an accident on 10.06.2018. The same was given to the OP No.1 for repair, who had issued invoice dated 25.07.2018, which is Ex.C-7 showing the cost of repair as Rs.2,42,500/-. It is also not disputed that the claim was submitted to the OPs No.2 & 3 by the complainant. It is also not disputed that the investigator was appointed to investigate the claim of the complainant, vide intimation dated 03.08.2018 Ex.C-4. The contention of the complaint is that despite the reply to the queries of the investigator, the OP is not settling the claim and thus, there is a deficiency in service. By doing all these acts, the OPs have indulged in unfair trade practice.
8. Perusal of the record further reveals that the investigator investigated the loss. The OPs have relied upon the insurance claim form Ex.O-2, Survey Report Ex.O-3, Ex.O-4 the Investigation report and Ex.O-5 the photographs of the vehicle. The contention of the OPs is that as per report of the Surveyor, the damages were old and rusted in nature and do not coincide with cause of loss, hence needs investigation.
9. As per the claim of the complainant, the accident took place on 10.06.2018. The claim form was filled on 16.06.2018 Ex.O-2. In this claim form, it has been mentioned by the complainant that on 10.06.2018 when they were coming from Haridwar, near Sarhind, something hit against the tyre from the bottom on the road, due to which their car has been damaged. As per Ex.C-4, the Surveyor was appointed on 03.08.2018 i.e. after about 1 ½ month of the intimation of damage to the OP. The surveyor gave the report on 29.08.2018. As per the remarks in this report, the damages sustained by the vehicle were badly rusted in nature and the damage to the different carrier assy. were not fresh and the oil spillage was observed with old oil and mud marks. Moreover the fresh spammer marks were also observed on the bolts and the net loss recommended by the surveyor was Rs.2,37,000/- as per Ex.O-3. Relying upon Ex.O-4, the claim of the complainant was refused to be entertained, vide letter dated 17.09.2018 Ex.O-6.
10. Now the point to be considered is as to whether the claim of the complainant has rightly been not entertained on the basis of investigation report Ex.O-4 or not. Perusal of the investigation report Ex.O-4 shows that there is a specific statement of the complainant that her husband was driving the car on 10.06.2018. On her way, near Sirhind, suddenly a tyre/stepney came under her car and hit the under body of her car, which resulted in damage. The findings of the investigation were that there was no DDR or FIR in this accident in the near by police station, but this objection and conclusion is not correct as the car did not meet with an accident with any person or vehicle. Some tyre or stepney hit the lower body of the car on the road and it does not require registration of any FIR or DDR. As per the statement of the complainant, there was no street light on the sleep road and tyre/ stepney suddenly came in front of their car which hit on the lower side of the car. The findings of the investigator that no call detail or mobile detail or any toll plaza receipt were provided to the OP, but again this conclusion and finding is without any basis. The person is not supposed to keep the toll plaza receipt with him for 2-3 months from the day when the accident occurred. Moreso, there was no point of giving the mobile detail or call details as no person was to be investigated or searched as the complainant was not a criminal and/or did not commit any criminal act. The fact remains that there was alleged damage of the car of the complainant.
11. The next finding of the investigator is that after the accident, the car was in running condition, so he drove his car back to his home Jalandhar and after two days he recognized that there was a leakage of the mobil oil or engine oil on the floor and when he gave the car for repair, he found that the car Fortuner was damaged from down side badly. Again this finding is baseless as if as per the complainant some stepney or some tyre hit the lower part of the car. It might have given little damage to the lower part of the car which did not leak at that time and it had leaked after two days. This is not the case of the complainant or the OP that there was a hole in the lower part of the car. Had there been any big hole, the entire mobil oil or engine oil would have leaked, but this is not the case, there might be a little hole, which resulted in the leakage of the oil in some drops and the complainant was able to drive his car back to Jalandhar easily. The damage was in the lower side of the car and it could not have been noticed at that time as there could have not been a great leakage at that time which may be evident from the speedo meter.
12. The next reason for not giving the claim is that the husband of the complainant has not provided any evidence that he went to Haridwar on that day when this accident occurred. Again this finding is baseless as this has nothing to do with the settlement of the claim. The Fortuner car was damaged from the lower side and it is proved that there was a damage in the car and the net loss recommended by the surveyor was of Rs.2,37,000/-. The surveyor of the OP gave the report vide Ex.O-3. So, it does not matter whether he had gone to Haridwar or not. The report of the investigator and the contention of the OP that there was rust as per photographs, which shows that the damage is old one, is also not tenable. These photographs were taken on 16.06.2018. The vehicle was manufactured in the year 2013 and the damaged was caused on 10.06.2018. As per the allegations of the OPs, it was an old damage. Having a rust on the lower body of the car in these three years is natural and there are so many reasons for having a rust in the lower body. So, the letter dated 17.09.2018, vide which the claim of the complainant was not entertained is wrong and illegal. The complainant has proved on record the invoice issued by the OP No.1, vide which the quotation of Rs.2,42,000/- has been issued. The surveyor of the OPs has given the report vide Ex.O-3. In this survey report, the surveyor has considered the rusted nature of the vehicle and has assessed the damages based upon the replacement and invoice provided by the repair as Rs.2,37,000/-.
13. So after considering the overall circumstances, report of the surveyor Ex.O-3, Ex.O-4 and other documents, we come to conclusion that the complainant is entitled for relief and accordingly, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.2,37,000/- as per the damages assessed by the surveyor vide Ex.O-3. Further, OPs are directed to pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr.Harveen Bhardwaj
16.06.2022 Member Member President
