DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 391 of 30-08-2010

Decided on : 19-04-2011

Baba Farid Vidyak Society (Regd.), Street No. 13, Ajit Road, Bathinda through Gurmeet Singh Dhaliwal, General Secretary/Administrator duly authorised person by the complainant society

.... Complainant

Versus

1. Bajaj Allianz General Insurance Co. Ltd., 3038/A, 2^nd Floor, Guru Kanshi Marg, G.T. Road, Bathinda through its Branch Manager

2. Kawaljeet Singh & Kamaljeet Singh Surveyor cum Loss Assessor of Bajaj Allianz General Insurance Co. Ltd., 3038/A, 2^nd Floor, Guru Kashi Marg, G.T. Road, Bathinda.

3. Kotak Mahindra Prime Ltd., Model Town, Phase-I, near TV Tower, Bathinda through its Branch Manager

4. M/s. Padam Motors, Bibi Wala Road, Bathinda, through its M.D./Owner/Manager

.... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Naresh Garg, counsel for the complainant

For the Opposite parties : Sh. Sanjay Goyal, counsel for opposite party No. 1

Sh. Sandeep Baghla, counsel for opposite party No. 4.

Sh. Sanjay Goyal, counsel for opposite party No. 3.

Opposite party No. 2 already exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The complainant firm is the registered owner of Optra Magnum Car No. PB-03-S-3786 Model 2008 and the same is hypothecated with opposite party No. 3. The said car is comprehensively cashless insured with opposite party No. 1 vide Cover Note No. BZ0802419528 dated 14-08-2009 for the IDV of Rs. 8,50,000/-. The opposite party No. 1 never supplied complete Insurance policy. On 19-06-2010, when Kuldeep Singh (Secretary Finance of complainant), Vivek Kumar and Sohan Lal with his family were coming from Nabha to Bathinda in the above said car and when they reached in the revenue limits of Police Station, Sadar Rampura on main Bathinda-Barnala Road, at about 3.30 a.m. in the intervening night of 19/20-06-2010, the said car met with an accident with one Tata Sumo No. HR-51-2514. In this regard, DDR was lodged with the concerned police on 20-06-2010. At that time, the car was being driven by Kuldeep Singh and he died due to accident. The complainant society lodged the claim with opposite party No. 1 and also intimated to Axis Bank, Bathinda, who issued the above said insurance Cover note under Corporate Agency of opposite party No. 1. The opposite party registered the claim vide No. CC-11-1203-1801-00000988 through SMS and appointed opposite party No. 2 as surveyor for assessment of loss. The vehicle was shifted with opposite party No. 4 on the asking of the official i.e. Prabhjot Singh of opposite party Nos. 1 & 2 as they said that the insurance is cashless and the vehicle was to be repaired by authorised service centre of General Motors Manufacturers of the car. The complainant spent Rs. 5,000/- for the shifting of the car from place of accident to the workshop of opposite party no. 4. The officials of opposite party No. 1 i.e. Prabhjot Singh and opposite party No. 2 at the time of inspection of vehicle, directed opposite party No. 4 for preparation of the estimate whereas it was the duty of the surveyor to assess the loss. The opposite party No. 2 inspected the car for final assessment and also checked the original registration certificate, driving licence and insurance Cover Note at the above said workshop. The original estimate to the tune of about Rs. 8,55,941/- against the IDV of Rs. 8,50,000/- was prepared in the presence of opposite party No. 2 and the original estimate is still in the custody of opposite party No. 4. The opposite party No. 4 took the signatures of the complainant on some blank forms under the directions of opposite party Nos. 1 & 2 with the understanding that this is cashless insurance. The opposite party No. 1 demanded certain documents inspite of checking the same at the time of inspection of the vehicle. The complainant sent claim form duly filled and signed, photocopies of driving licence of Kuldeep Singh, R.C. DDR, Estimates and insurance etc., on 22-07-2010 and the same was duly acknowledged by opposite party No. 1 on mail which was sent by them to the Axis Bank Ltd., The opposite party No. 2 asked the complainant that as per rules the car is now total loss as the estimate charges exceeds 75% of the I.D.V. Thereafter, the complainant received letter dated 27-7-2010 vide which the claim of the complainant was repudiated. Vide said letter, the opposite party No.1 compelled the insurer to repair the vehicle against the rules of Indian Motor Tariff and against rules of Insurance. The complainant again received 2^nd letter dated 11-08-2010 vide which they finally repudiated the claim of the complainant against their own facts, as the above said official of opposite party No. 1 i.e. Prabhjot Singh issue one mail to Axis Bank in which he said that the claim is being processed on Cashless Basis i.e. CTL. The complainant alleged that opposite party No. 1 & 2 not issued any survey report to the complainant whereas it was mandatory. The opposite party No. 4 illegally and against the rules demanded the estimate charges etc., to the tune of Rs. 85,000/- from the complainant. The vehicle is lying with opposite No. 4 as salvage of opposite party No. 1 under the direction of opposite party No. 2, but the officials of opposite party No. 4 demanded the said amount from the complainant and the said parking charges are increasing every day @ Rs. 250/- per day. Under compelling circumstances, the complainant paid Rs. 42,800/- to opposite party No. 4 on 26-08-2010 on account of estimate charges. The complainant approached the opposite party Nos. 1,2 & 4 and demanded his claim of the total loss as per IDV as the estimates are much higher than the IDV alongwith shifting charges of Rs. 5,000/- and estimate charges etc., but they neither gave any satisfactory reply nor paid single penny for the loss suffered by the complainant. The claim of the complainant had been repudiated by opposite party No. 1 on 27-07-2010, hence this complaint.

2. The opposite party No. 1 filed written reply and pleaded that on intimation of the claim, the Insurance Company appointed Mr. Kanwaljeet Singh as surveyor who assessed the loss to the vehicle to the tune of Rs. 5,26,881/-. The opposite party No. 1 time and again asked the complainant to get the vehicle repaired, but the complainant was not ready to get the same repaired and demanded the claim on total loss basis without any cause. The opposite party No. 1 or opposite party No. 2 never asked the complainant to prepare the estimate of loss rather the loss was assessed by opposite party No. 2 at his own in the presence of the complainant. The opposite party No. 1 denied that the vehicle was lying with opposite party No. 4 as salvage of opposite party 1 under the direction of opposite party No. 2. The opposite party No. 1 has pleaded that the car was not totally damaged and the same was repairable. But, the complainant was not ready to get the same repaired and was illegally demanding claim on total loss basis. So the opposite party No. 1 left with no option but to repudiate the claim of the complainant. The false claim cannot be paid at the cost of public exchequer. The claim was rightly repudiated as the car was not totally damaged and the same was repairable to which the complainant was not ready. The opposite party No. 1 pleaded that repudiation is legal in all respects.

3. Despite service of notice, none appeared on behalf of opposite party No. 2 and as such, exparte proceedings were taken against it.

4. The opposite party No. 3 filed separate written reply and pleaded that the vehicle of the complainant was hypothecated with opposite party No. 3 and complainant has not foreclosed the loan and amount is still due towards the complainant. As such, the claim if any, is liable to be paid to opposite party No. 3.

5. The opposite party No. 4 filed written reply separately by taking legal objection that complaint has not been filed by authorized and competent person and the complainant is not consumer as the vehicle is being used for commercial purposes by a commercial organization. It has been pleaded that complainant had voluntarily shifted the vehicle to the service centre of opposite party No. 4 for repair purposes. The complainant in order to settle the claim with opposite party Nos. 1 & 2 has voluntarily sought for the preparation of the estimate of the damaged vehicle, which was prepared by replying opposite party on the demand of complainant and was handed over complete in all respects. The impugned amount of Rs. 42,800/- had been charged as minute inspection of the vehicle was required and each and every part of the vehicle was examined by the competent officials of opposite party No. 4 and thereafter the report was prepared and as such, the same has been charged as per market usage, custom and precedent and the similar estimation charges are charged by every service station. The complainant had never approached the opposite party No. 4 for the claim of total loss and estimation charges. The claim of insurance is a matter inter-se the complainant and opposite party No. 1 and the opposite party No. 4 has no concern with the same.

6. Parties have led their evidence in support of their respective pleadings.

7. Arguments heard and written submissions submitted by the parties perused.

8. The learned counsel for the complainant submitted that vehicle in question of the complainant was comprehensively insured with opposite party No. 1 under cashless policy vide cover note No. BZ0802419528 dated 14-08-2009 for the IDV of Rs. 8,50,000/- and financed by opposite party No. 3. On 19-06-2009, the said vehicle met with an accident with one TATA Sumo No. HR-51-2514 and DDR was lodged with the concerned police on 20-06-2010. In the said accident, Kuldeep Singh who was driving the car died due to accident. After the accident, complainant through Sh. Gurmeet Singh Dhaliwal, Gen. Secretary Cum Administrator of complainant, who is also duly authorized person, lodged the claim with opposite party No. 1 and also intimated to Axis Bank, Bathinda, who issued the said insurance cover note under corporate agency of opposite party No. 1. On the asking of the official of opposite party No. 1 namely Prabhjot Singh, as well as on the asking of opposite party No. 2, the vehicle was shifted with opposite party No. 4 as opposite party Nos. 1 & 2 said that insurance is a cashless and in that vehicle must be shifted with authorized service centre. The complainant spent Rs. 5,000/- for the shifting of the car from the place of accident to Bathinda Gill Patti workshop of opposite party No. 4. The officials of opposite party No. 1 i.e. Prabhjot Singh and opposite party No. 2 at the time of inspecting the vehicle, directed opposite party No. 4 for the preparation of the estimates of loss whereas it is the duty of the surveyor to assess the loss. The opposite party No. 2 under the directions and instructions of opposite party No. 1 inspected the car for final assessment with opposite party No. 4 and also checked the original documents such as R.C., D.L. Insurance cover note etc., The original estimates to the tune of about Rs. 8,55,941/- against the IDV of Rs. 8,50,000/- prepared in the presence of opposite party No. 2 and the original estimate is still in the custody of opposite party No. 4. The opposite party No. 2 asked the complainant that as per rules the car is now total loss as the estimate charges exceeds 75% of the IDV. Thereafter the complainant received letter dated 27-07-2010 vide which the claim of the complainant was repudiated against the rules and law. The opposite party No. 1 finally repudiated the claim of the complainant vide letter dated 11-08-2010 against their own facts as the said official of opposite party No. 1 i.e. Prabhjot Singh issued one mail to Axis Bank in which they said that the claim is being processed on cashless basis i.e. CTL. The opposite party No. 4 illegally and against the rules demanded the estimate charges from the complainant to the tune of Rs. 85,000/- . The vehicle is lying with opposite party No. 4 as salvage of opposite party No. 1 under the directions of opposite party No. 2, but the officials of opposite party No. 4 telephonically demanded the said amount from the complainant and also said the parking charges are increasing every day @ Rs. 250/- per day. Under compelling circumstances, the complainant paid Rs. 42,800/- on 26-08-2010 on account of estimate charges to opposite party No. 4 although it is the duty of surveyor to assess the loss but he compelled the complainant unnecessarily for the estimates from the said workshop.

   The learned counsel for the complainant submitted that Mr. Kamaljit Singh, opposite party No. 2 neither appeared before this Forum nor filed any affidavit regarding his survey although it is necessary for the surveyor to submit his affidavit to justify his assessment for the loss. It is settled law and as per Indian Motor Tariff, if the aggregate cost of repair exceeds 75% of IDV then the vehicle is to be treated as total loss and IDV shall be treated as the market value throughout the policy period without any further depreciation. In this regard he referred Indian Motor Tariff and also placed reliance on 2003(1) CPJ 107 (NC) K L Malhotra Vs. OIC, 2009 (4) CPJ 230 (NC) OIC Vs. Mehar Chand. He submitted that the aforesaid judgements are duly accepted by this Forum in various orders. The learned counsel for the complainant further submitted that surveyor must give reasons for reducing the loss and in this regard he has taken support of various authorities. He submitted that Kamaljit Singh is neither independent surveyor nor is having any licence from the IRDA and he is the company employee and is eligible for the survey upto Rs. 20,000/-.

9. The learned counsel for opposite party No. 1 submitted that on intimation of the claim, the Insurance Company as deputed an IRDA accredited independent surveyors who had assessed the loss to the vehicle for an amount of Rs. 5,26,881/-. The Insurance Company then asked the complainant to get the vehicle repaired. However, the complainant insisted on settling the claim on total loss basis. This is not applicable in this case as the loss is less than 75% of the sum insured. Hence the claim is to be settled on repair basis only. The Insurance Company sent reminders to the complainant to get the vehicle repaired and submit the bills but he paid no heed and as such, the Insurance company was constrained to repudiate the claim of the complainant due to non cooperation. He admitted that Mr. Kanwaljeet was appointed as surveyor. The opposite party No. 1 was ready to get the vehicle repaired and pay the charges on repair basis but the complainant was insisting on its total loss and was not ready to get the vehicle repaired although the vehicle was not a total loss, hence the claim of the complainant was rightly repudiated. The opposite party No. 1 never asked the complainant to prepare the estimate of loss rather the loss was assessed by opposite party No. 2 at his own in the presence of the complainant. The opposite party No. 1 is not aware of any estimate prepared by complainant in connivance with opposite party No. 4.

10. The learned counsel for opposite party No. 3 submitted that car in question was hypothecated with opposite party No. 3 and the loan amount is still due towards the complainant and as such, the claim if any is liable to be paid to it.

11. The learned counsel for opposite party No. 4 took legal objections that complaint has not been filed by authorised person and complainant is not consumer as the vehicle is being plied for commercial purposes. He submitted that complainant itself sought for the estimation of damage of the vehicle in question which had been prepared on the demand of the complainant for which the complainant had voluntarily paid the charges to the opposite party No. 4. The insurance of the vehicle is a matter inter-se qua complainant and the opposite party Nos. 1 & 2 and opposite party No. 4 has no concern with the same as the complainant has got the vehicle insured directly from opposite party Nos. 1 & 2. The vehicle was shifted by the complainant itself to the Service Centre of opposite party No. 4 and not through opposite party Nos. 1 & 2. He admitted the opposite party No. 4 is the authorised service centre of the General Motors. The learned counsel for opposite party No. 4 further submitted that at no point of time, the policy in question had been intimated by the opposite party Nos. 1 & 2 to be a cashless insurance. An amount of Rs. 42,800/- had been charged from the complainant as per market usage and precedent and the similar estimation charges are charged by every Service Station.

12. These are the admitted fact that the car in question of the complainant society is insured with opposite party No. 1 vide insurance cover Note Ex. C-6 and is hypothecated with opposite party No. 3 as per insurance endoresement Ex. C-5. The said car met with an accident and Kuldeep Singh, who was driving the car at that time, died due to accident.

13. The opposite party No. 4 has raised legal objection that Sh. Gurmeet Singh Dhaliwal, General Secretary/Administrator is not authorised person to file the complaint on behalf of society. The complainant has produced on file certified copy of Resolution dated 16-08-2010 Ex. C-3 of the complainant society vide which the said society authorised Sh. Gurmeet Singh Dhaliwal to file suit and enter into any kind of arrangement with respect to claim in question. Hence, complaint has been filed by duly authorized person. The other objection of opposite party No. 4 is that the complainant is not consumer as the vehicle was being plied for commercial purposes. The opposite party No. 4 has not produced any documentary evidence on the file to prove that vehicle was being plied for commercial purposes to earn profit. Thus, this objection of opposite party No. 4 is not tenable.

14. The contention of the complainant is that Mr. Kamaljit Singh, who conducted the survey and assessed the loss is neither independent surveyor nor is having any licence from the IRDA. A perusal of Inspection report containing assessment details vide Ex. C-24 although reveals that there is no mention regarding Licence Number of Kamaljit Singh yet the assessment made by him cannot be denied as the estimate Ex. C-24 prepared by the opposite party No. 4 for the accidental vehicle is exorbitant. The opposite party No. 4 in para No. 12 of its written reply has stated that the vehicle was shifted by the complainant itself to the Service Centre of opposite party No. 4 and not through opposite party Nos. 1 & 2. The opposite party No. 4 at the end of para No. 14 page 8 of the written reply and stated that the estimate had been prepared as per the requirement and instructions of the complainant and was handed over to the complainant as it required the same for the settlement of the claim with opposite party No. 1. The learned counsel for the complainant has referred Indian Motor Tariff and submitted that the insured vehicle shall be treated as a total loss if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle and in this regard he cited various authorities and previous orders of this Forum. No doubt, as per IMT rules, if repair of the vehicle exceeds 75% of the IDV, the insured vehicle should be treated as total loss, but this does not mean that the estimate be got prepared to such an exorbitant that it exceeds IDV of the vehicle as happened in the case in hand. This shows that complainant got the estimate prepared at his own to such an extent that IDV of the vehicle in question is Rs.8,50,000/- whereas the complainant got prepared the estimate to the tune of Rs. 8,55,941/-. The contention of the complainant that Kamaljit Singh who conducted survey is in-eligible as he can conduct survey upto Rs. 20,000/- only is not tenable as he has not produced any evidence on the file to prove his this contention. The complainant has paid Rs. 42,800/- vide Ex C-15 to opposite party No. 4 being estimate preparation charges, hence he is entitled for the refund of the same as the complainant was not liable to pay any amount on this account keeping in view the cashless insurance. However, the complainant has also claimed parking charges, but has not produced any document on file to show that he has paid any parking charges to opposite party No. 4. The opposite party No. 3 has stated in its written reply that amount of insurance be paid to it but it has not placed any document on file to show as to whether any amount is outstanding against the complainant or not. Moreover, there is no allegation of opposite party No. 3 that complainant is defaulter in paying the loan amount. Hence, the vehicle in question is to be got repaired/already got repaired by the complainant and he is only entitled to receive the insurance claim amount.

15. With utmost regard and humility to the authorities cited by the learned counsel for the parties, they are distinguishable on facts.

16. Hence, keeping in view the facts, circumstances and the record produced on file by the parties, this complaint is accepted with Rs. 10,000/- as compensation and cost against opposite party Nos. 1 & 4 and dismissed qua opposite party Nos. 2 & 3. The opposite party No. 1 is directed to pay Rs. 5,26,882/-( assessed amount vide Ex. R-7) alongwith Rs. 10,000/- as compensation and cost to the complainant. The opposite party No. 4 is directed to refund Rs. 42,800/- to the complainant charged from him vide Ex. C-15.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance of order by either of the party, the insurance claim amount and estimate preparation charges would carry interest @ 9% P.A. till realisation.

A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

19-04-2011 (Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member