DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 50 of 27-01-2011

Decided on : 17-08-2011

Bhushan Kumar aged about 53 years S/o Bant Ram R/o #88, Anoopgarh now R/o H. No. 1250, Ward No. 6, Street No. 19, Opp. Bus Stand, One way Traffic Road, Mansa.

.... Complainant

Versus

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

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

3. M/s. A.B. Motors Pvt Ltd., (Bhagat Road) Opp. ITI, Mansa Road, Bathinda through its M.D./Owner/Manager

4. State Bank of India V.P.O. Joga, Distt. Mansa through its Branch Manager

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Ms. Sukhwinder Kaur, Member

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

For the Opposite parties : Sh. Balkaran Singh, counsel for opposite party No, 3.

Sh. Sanjay Goyal, counsel for opposite party No. 1.

Opposite party Nos. 2 & 4 exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant 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'). In brief, the case of the complainant is that he is the owner of new Fort Figo Ex TDCI Car bearing registration No. PB-31-H-0306, Model 2010, which is hypothecated with opposite party No. 4. The said car is comprehensively insured with opposite party No. 1 vide Cover Note No. BZ0803485075 dated 18-03-2010 for the IDV of Rs. 4,55,880/-. The said insurance is first insurance of the car and the same was issued by opposite party No. 3 being the corporate agent of opposite party No. 1 at the time of delivery of the car. The opposite party Nos. 1 & 3 did not supply complete Insurance policy with terms and conditions to the complainant and only cover note was supplied to him. On 16-12-2010 at about 8.00/8.15 A.M. when the complainant alongwith Hansa Singh was going from Mansa to Joga via Anoopgarh in the said car, it met with accident in the revenue limits of Police Station Joga with one Mini school bus. In this regard DDR No. 22 was lodged with the concerned police on 20-12-2010. At the time of accident, the car was being driven by complainant and he received multiple fractures and admitted in DMC, Ludhiana. The intimation of accident was given by his son and accordingly, opposite party No. 1 appointed opposite party No. 2 as surveyor. On the asking of opposite party No. 2, the vehicle was shifted with opposite party No. 3 on the next day under cashless agreement. The complainant spent Rs. 4,000/- for the shifting of the car from the place of accident to Bathinda workshop of opposite party No. 3. The car is still lying with opposite party No. 3. The official of opposite party No. 1 i.e. Kamaljeet Singh i.e opposite party No. 2, at the time of inspecting the vehicle directed the opposite party No.3 for the preparation of estimates of the loss and the opposite party No. 3 under the directions and instructions of opposite party No. 1 & 2, prepared the estimates to the tune of Rs. 6,48,008/- as against IDV of Rs. 4,55,880/-. The opposite party No. 3 took the signatures of the complainant on some blank form under the directions of opposite party No. 1 & 2 with the understanding that this is a cashless insurance. The complainant submitted claim form, photocopies of D.L., RC, DDR and cover note etc., with the opposite parties. The complainant alleged that that opposite party No. 3 asked the complainant that as per rules GR-8 of IMT, the car is now total loss as the estimate charges exceeds 75% of the I.D.V. The complainant received mail from opposite party Nos. 1 & 2 on 8-1-2011 vide which they sent the blank consent form and demanded the signatures of the complainant on the same without mentioning the IDV loss amount. The opposite party No. 2 compelled the insurer to sign the same but he refused to do so. Thereafter the opposite party Nos. 1 & 2 again sent another mail dated 17-01-2011 to the complainant vide which they declined the total loss of the car and assessed the loss to the tune of Rs. 1,57,117/- against the estimates of Rs. 6,48,008/-. The opposite party Nos. 1 & 2 sent the incomplete survey report to the complainant which is arbitrary and without any facts. The opposite party No. 2 is not an independent surveyor as he is serving with opposite party No. 1 and prepared the report dated 17-01-2011 on the asking of opposite party No. 1. The said surveyor is not having any licence from the IRDA . The complainant approached the opposite party Nos. 1,2 and 3 and demanded his claim of the total loss as per IDV as the estimates are much higher then the IDV alongwith shifting charges of Rs. 4,000/-, but they neither gave any satisfactory reply nor paid any single penny. Hence, he has filed the present complaint.

2. The opposite party No. 1 filed separate written reply and took legal objection that complainant is not consumer as the vehicle in question was purchased under hire purchase agreement with opposite party No. 4 and the same is hypothecated with opposite party No. 4. Under the hire purchase transactions a financer is the owner of the vehicle whereas the complainant is only the hirer. On merits, it has been pleaded that complete kit insurance policy was issued to the complainant. The claim was lodged by the complainant and Mr. Kanwaljeet Singh was appointed as surveyor. The official of the opposite party No. 1 never asked the complainant to shift his vehicle with opposite party No. 3. Neither opposite party No. 1 nor opposite party No. 2 asked the complainant or opposite party No. 3 to prepare the estimate of loss. The loss was assessed by opposite party No. 2 in the presence of complainant. The opposite party No. 1 was ready to get the vehicle repaired and pay the charges on repair basis, but the complainant was insisting for its total loss and was not ready to get the vehicle repaired. The vehicle in question was not a total loss. Neither opposite party No. 1 nor opposite party No. 2 ever asked the complainant that the car in question is a total loss. The opposite party No. 3 is not the corporate agent of opposite party No. 1. Any loss assessed by complainant or opposite party No. 3 is not binding on opposite party No.1. The car in question is repairable to which the complainant is not ready. The opposite party No. 1 never estimates the loss to the tune of Rs. 6,48,008/-, rather the loss was assessed to the tune of Rs. 1,57,117/- only. The vehicle in question is not a total loss rather the same is repairable and the loss is much less than the 75% of the IDV. Since the vehicle in question is not a total loss and as such the same cannot be paid on the basis of total loss and the claim was rightly repudiated.

3. The opposite party No. 3 filed its separate written reply and pleaded that cover note was issued by opposite party No. 1 against payment of insurance premium. The liability, if any, to pay for repair is of insurance company or of the owner of the vehicle and the opposite party No. 3 has only to repair the vehicle involved in accident. The complainant has purchased the car from opposite party No. 3 and it has no liability regarding the insurance which is matter between the complainant and the Insurance company. The opposite party No. 3 has further pleaded car of the complainant brought to the workshop of opposite party No. 3 for repair. The complainant has not given the consent till now for undertaking for repair of car which the opposite party No. 3 is ready to undertake at the expenses of the complainant or Insurance company. The estimate was prepared by opposite party No. 3 at the asking of the complainant. The Insurance company has to decide whether car can be repaired or it is a case of total loss. The estimate was prepared as per new spare parts. However, certain body parts like body shell, doors, bonnet, etc., are repairable. It is upto the Insurance company to decide that these parts need replacement or can be repaired and according to condition of accidental car. The said parts of the car are in repairable condition. The car is parked at the premises of the opposite party No. 3 since 17-12-2010 and it is entitled to Rs. 250/- per day as parking charges from 17-12-2010 till car is taken away by the complainant, from opposite party No. 3.

4. Despite service of notice, the opposite party Nos. 2 & 4 failed to appear before this Forum. Hence, exparte proceedings were taken against them.

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

6. Arguments heard. Record alongwith written submissions submitted by the parties perused.

7. The learned counsel for complainant argued that the car of the complainant is comprehensively insured with opposite party No. 1 for the IDV of Rs. 4,55,880/- vide Ex. C-2. The car in question met with an accident and on intimation opposite party No. 1 appointed Kamaljeet Singh its employee as surveyor who does not hold any licence from Insurance Regulatory and Development Authority (IRDA) and he is not an independent surveyor. The employee of company can assess the loss upto Rs. 20,000/- only for which no licence of IRDA is required. He submitted that the said Kamaljeet Singh has assessed the loss to the tune of Rs. 1,57,117/- vide Ex. C-13 whereas vide survey report Ex. C-17 Sh. Dinesh K. Goyal, having IRDA Licence No. 26033/2009-2014 vide Ex. C-19 a surveyor engaged by the complainant himself has assessed the loss to the tune of Rs. 5,20,295/-. The learned counsel for the complainant further submitted that opposite party No. 1 has tie up with M/s. A B Motors Pvt. Ltd., (Bhagat Ford) for Ford Company Products as per Ex. C-16, hence the insurance is a cashless. Since the estimates of repair exceeds 75% of the IDV, the vehicle is a total loss and complainant is entitled for the IDV besides other expenses incurred by him. In support of his arguments, the learned counsel for the complainant referred various authorities.

8. On the other hand, learned counsel for opposite party No. 1 submitted that the opposite party No. 1 is ready to get the vehicle repaired and pay the charges on repair basis, but the complainant is insisting for its total loss whereas the vehicle is repairable and the loss is much less than the 75% of the IDV. The opposite party No. 1 never estimated the loss to the tune of Rs. 6,48,008/- rather the loss was assessed to the tune of Rs. 1,57,117/-. He submitted that the house surveyor can assess the loss upto Rs. 20,00,000/- and not upto Rs. 20,000/- only. Kamaljit Singh was deputed to assess the loss and he assessed the loss to the tune of Rs. 1,56,890/- which is the actual loss suffered by the complainant.

9. The learned counsel for opposite party No. 3 submitted that the complainant purchased the car in question from the opposite party No. 3 and it has no liability regarding the insurance which is matter between the complainant and the insurance company. The complainant has brought his car for repair in the workshop of opposite party No. 3 on 17-12-2010 but has not given the consent till now for repair of the car. He further submitted that the opposite party No. 3 is ready to repair the car at the expenses of the complainant or Insurance company. The car is parked at the premises of the opposite party No. 3 since 17-12-2010 and it is entitled to Rs. 250/- as parking charges from 17-12-2010 till the removal of the car.

10. The dispute between the parties, at this stage, is regarding the loss suffered by the complainant on account of accident of his car. The opposite party No. 1 i.e. Insurer has deputed Kamaljeet Singh, it employee to assess the loss and he vide his survey report Ex. C-23 assessed the loss to the tune of Rs. 1,56,890/-. The report of said Kamaljeet Singh cannot be relied upon keeping in view Ex. C-24 the Cir. No. 27/IRDA/SUR/SUR/CIR/AUG10 dated 27^th August, 2010 issued by Insurance Regulatory and Development Authority, the relevant portion of which reads as under :-

    “All Insurance Companies are advised to note that except for those losses notified by the central Government in the Gazette No. F.51(15)-INS.I/69 dated 30^th May, 1970, all other losses above Rs. 20,000/- shall be surveyed only by Surveyors and Loss assessors who hold a valid licence issued by the Authority to work as surveyors and loss assessors for such category of business as may be specified in the licence.”

    A perusal of reply Ex. C-37, sent through E mail by Customer Care Team of opposite party No. 1 in connection with claim of complainant reveals that opposite party No. 1 has admitted that claim of the complainant is a cashless claim under which process, the claim is paid directly to the workshop.

    Sh. Jasvir Singh, Body Shop Incharge of M/s. A B Motors, has deposed in his affidavit Ex. R-10 :-

    “ 1. That the deponent is Bachlor of Engg. In Mech. Branch and is working as Body Shop Incharge of M/s. A B Motors for last 6 years and 8 years experience in repairing of cars.

    2. That I have inspected car Fort Figo of the complainant which was brought by complainant voluntarily to body shop M/s. A B Motors and I prepared the estimate of the car of the complainant on 18-12-2010 at the asking of the complainant and estimate was prepared according to new parts of the car.

    3. That as per condition of the car body shell doors and hatch door are in repairable state, these can be repaired.”

    Hence, in view of the aforesaid affidavit, the estimate prepared by the authorised dealer of manufacturer cannot be concluded as final estimate and the contention of the complainant that estimate/loss exceeds 75% of the IDV, is not tenable.

11. The complainant has got the vehicle in question inspected from Sh. Dinesh K Goyal, an independent surveyor having Licence No. SLA/26033/2009-2014 vide Ex. C-19 from IRDA. The said surveyor inspected the accidental vehicle of the complainant on 07-02-2011 at M/s. Bhagat Ford, Bathinda and he assessed the loss to the tune of Rs. 5,20,295/- (Parts + Labour) vide his survey report Ex. C-17. A perusal of Ex. C-17 reveals that the said surveyor has allowed body shell to the tune of Rs. 2,60,600/- and its labour as Rs. 50,000/- whereas as per photographs Ex. C-18 attached by the surveyor himself alongwith his survey report, it reveals that the vehicle in question met with an accident from the front side and its front portion damaged i.e. Bonnet and Fr. Bumper etc., There is no major damage to the body shell and the minor damage such as scratches etc., can be repaired. Hence, the value of body shell to the tune of Rs. 2,60,600/- and its labour charges to the tune of Rs. 15,000/- i.e. opening/refitting of Body shell parts including electrician labour cannot be allowed. However, the complainant is entitled for the painting charges of Body shell including Fr. Bumper to the tune of Rs. 35,000/- as allowed by the surveyor, which includes labour charges for Bonnet also. Besides this, complainant is entitled for cost of Bonnet. The Hon'ble Supreme Court in Civil Appeal No. 3253 of 2002 in the case titled New India Assurance Company Limited Vs. Pradeep Kumar has observed in para No. 15 that :-

    “.....but surveyor's report is not the last and final word. It is not the sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” Hence, after deducting the amount of Body shell from the loss amount, the loss amount became less than 75% of the IDV. Thus, the complainant is not entitled for the IDV as alleged by him. Moreover the said surveyor has not made the complete report as he has not applied depreciation on the value of parts to be allowed whereas as per GR 9 the following rate of depreciation has to be applied for partial loss claims :-

    “G.R. 9 Depreciation on parts for partial loss claims :

    The following rates of depreciation shall apply for replacement of parts for partial loss claims in respect of all categories of vehicles/accessories.

    1. Rate of depreciation for all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags - 50%

    2. Rate of depreciation for all fibre glass components - 30%

    3. Rate of depreciation for all parts made of glass - Nil”

12. Hence, the depreciation has to be applied on the basis of aforesaid GR 9 on the parts mentioned against each and on other parts keeping in view the age of vehicle. The opposite party No. 1 has not deputed the licensed surveyor to inspect the vehicle in question and to assess the loss is violation of the guidelines of IRDA In such circumstances, the opposite party No. 1 has breached the rules and regulations issued by IRDA for the appointment of surveyor and the vehicle is still stands parked in the workshop of opposite party No. 3. Thus, the company i.e. opposite party No. 1 is also liable to pay compensation on this account. Hence, there is deficiency in service on the part of opposite party No. 1.

13. In view of what has been discussed above, this complaint is accepted with Rs. 20,000/- as compensation and cost against opposite party No. 1 and dismissed qua opposite party Nos. 2 to 4. The opposite party No. 1 is directed to do as under :-

    i) Pay the loss amount to the complainant as per survey report of Sh. Dinesh K Goyal after applying depreciation as per GR9, as discussed above, and after deducting the value of body shell i.e. Rs. 2,60,600/- and labour charges i.e. opening/refitting of Body shell parts including electrician labour to the tune of Rs. 15,000/-. However, the painting charges of Body shell including Fr. Bumper to the tune of Rs. 35,000/- as assessed by the surveyor, has to be paid to the complainant which also includes labour charges for Bonnet also.

    ii) Pay the cost of original Bonnet of the vehicle according to the manufacturer's rate list and also issue bill and provide rate list to the complainant.

    iii) The vehicle still stands parked in the premises of opposite party No. 3. The opposite party No. 3 has claimed parking charges @ Rs. 250/- per day which is on the exorbitant side. Keeping in view the facts and circumstances of the case, it would meet the ends of justice if parking charges @Rs 500/- per month is allowed. The opposite party No. 1 is directed to pay parking charges @ Rs 500/- per month to the complainant from the date of loss till the payment of claim amount. The aforesaid amount of compensation includes survey fee paid by complainant to surveyor Sh. Dinesh K Goyal and other expenses, if any, incurred by him.

14. The compliance of this order be made within 45 days from the date of receipt of copy of this order and in case of non-compliance of this order within the stipulated period, the amount of loss and the amount of parking charges would carry interest @ 9% from the date of loss till realisation.

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

Pronounced :

17-08-2011

(Vikramjit Kaur Soni)

President

( Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member