Haryana

StateCommission

MA/132/2018

THE ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

BHARAT BHUSHAN - Opp.Party(s)

20 Sep 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1463 of 2017

Date of Institution:        04.12.2017

Date of Decision :        20.09.2018

         

The Oriental Insurance Company Limited, DO, Jagadhri through RO Yamuna Nagar through RO LIC Building, Jagadhri Road, Yamuna Nagar.

                                      Appellant-Opposite Party

Versus

 

Bharat Bhushan Wadhawan s/o Sh. Mohan Lal, Resident Mangatpura, Jagadhri, District Yamuna Nagar.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Mrs. Swatantar Kapoor, Advocate for appellant.

                             Ms.Gitanjali Chhabra, Advocate for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated October 27^th, 2017 passed by District Consumer Disputes Redressal Forum, Yamuna Nagar (for short ‘the District Forum’).    

2.                Bharat Bhushan Wadhawan – complainant (respondent herein) registered owner of car vehicle bearing registration No.HR-02M-4767 obtained insurance policy bearing No.261701/31/2012/11773 from The Oriental Insurance Company Limited – opposite party (for short ‘the Insurance Company’) regarding the period from March 02^nd, 2012 to March 01^st, 2013 mentioning the total Insured Declared Value (IDV)  of the vehicle as Rs.2,75,000/-. On November 29^th, 2012 the car vehicle which was being driven by Tarun Kumar, met with an accident with a truck near Mullana (Ambala) and the car vehicle was badly damaged. Tarun Kumar also sustained injuries on his body. Tarun Kumar informed the complainant regarding this accident and thereafter information was given to the opposite party also. As advised by the opposite party, the complainant got mechanically examined the car vehicle from Hira Motor Garage, Jagadhri Road, Yamuna Nagar (for short ‘Hira Motor’) who prepared estimate regarding repair of the damaged car vehicle on December 07^th, 2012 amounting to Rs.4,90,291/-  including labour charges. The complainant submitted the above mentioned estimate to the opposite party on December 26^th, 2012.  Later on Hira Motor advised the complainant that due to non availability of some parts of the vehicle, the vehicle could not be repaired and it was a case of total damage. The complainant was advised to get the vehicle mechanically examined from an authorised dealer of Hyundai Motors. Thereafter, the car vehicle was taken to Khanna Car Plaza Private Limited authorised dealer who prepared the estimate regarding repair of the car vehicle as Rs.7,80,134/-. Khanna Car Plaza Private Limited also told that in fact the vehicle was not repairable. The complainant did not accept the insurance claim of the complainant despite service of legal notice also.

3.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite party to make payment of the total insured declared value on account of total loss caused to the car vehicle with interest at the rate of 24% per annum; to pay an amount of Rs.1,00,000/- on account of unnecessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses.

4.                The opposite party in its written version has taken plea that the complainant is not maintainable in the present form; that the complainant has no cause of action to file the present complaint and that it is not a case of deficiency in service. It is pleaded that the Insurance Company received intimation that the car vehicle bearing registration No.HR-02M-4767 met with an accident on November 29^th, 2012 near Mullana. After receiving intimation, the opposite party deputed M/s Harshit Associates, as surveyor and loss assessor, Sainik Nagar near Sector-6, Bahadurgarh to conduct survey and to assess the actual loss caused to the vehicle. The surveyor in its report dated June 13^th, 2013 assessed the net loss on repair basis to the tune of Rs.97,742/-. Survey was conducted on January 01^st, 2013. The above mentioned amount also was not paid as the same could be paid only after repair of the vehicle. The complainant could not get the vehicle repaired and the complaint filed by the complainant is premature. The total insured declared value of the vehicle is Rs.2,75,000/-. It is denied that the vehicle was taken by the complainant for repair work to Hira Motor and thereafter to an authorised dealer Khanna Plaza Private Limited. It is admitted that information was received by the Insurance Company regarding this accident and prayed that the complaint filed by the complainant be dismissed.

5.                Parties led evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated October 27^th, 2017, the complaint filed by the complainant was allowed by the learned District Forum directing the opposite party to pay an amount of Rs.2,75,000/- being total insured declared value of the vehicle to the complainant with interest at the rate of 6% per annum from the date of filing of the complaint; to pay an amount of Rs.3,000/- on account of unnecessary harassment and mental agony and an amount of Rs.2200/- as litigation expenses. The Insurance Company was allowed to retain the salvage of the vehicle and was also directed to comply with the order within 30 days from the date of communication of the order.

7.                Aggrieved with the impugned order dated October 27^th, 2017 passed by the learned District Forum, the opposite party has filed the present First Appeal No.1463 of 2017 with a prayer to set aside the impugned order passed by the learned District Forum and to dismiss the complaint filed by the complainant.

8.                We have heard learned counsel for the parties and perused the case file.

9.                During the course of arguments, there was no controversy of any type that the car vehicle bearing registration No.HR-02M-4767 owned by the complainant was insured with the opposite party vide insurance policy bearing No.261701/31/2012/11773, Annexure C-2 regarding the period from March 02^nd, 2012 to March 01^st, 2013 mentioning the total Insured Declared Value of the vehicle as Rs.2,75,000/-. There also appears to be no controversy of any type that the above mentioned insured car vehicle met with an accident on November 29^th, 2017 near Mullana, District Ambala with a truck vehicle and the car vehicle was badly damaged. It is also admitted fact that information regarding involvement of the vehicle in accident was given to the Insurance Company without loss of time. As per version of the complainant as advised by the Insurance Company, the damaged car vehicle was got inspected and mechanically examined from Hira Motor who prepared estimate dated December 07^th, 2012 Annexure C-4 regarding repair of the vehicle amounting to Rs.4,90,291/-. The estimate prepared by Hira Motor is Annexure C-4.

10.              As per version of the complainant, the vehicle was also got examined from authorised dealer Khanna Car Plaza Private Limited who prepared the total estimate regarding repair of the vehicle vide report dated November 02^nd, 2013 Annexure C-13 as Rs.7,80,134/-. Earlier Hira Motor also gave opinion Annexure C-5 dated June 04^th, 2013 that the estimate amounting to Rs.4,90,291/- was prepared but due to non availability of the spare parts and as the repair expenses were very high, they were unable to repair the car vehicle. Thereafter, the complainant also had written letters Annexure C-6 and Annexure C-8 also in this regard to the Insurance Company on October 03^rd, 2013 and December 24^th, 2013. Estimate regarding repair work prepared by Khanna Plaza Private Limited dated November 02^nd, 2013 is Annexure C-13.

11.              Learned counsel for the complainant argued that in fact the vehicle could not be got repaired as few parts of the vehicle to be replaced were not available and in this situation it was not possible to get the vehicle repaired and it should be considered as a case of total damage as per opinion of Hira Motor Private Limited. Learned counsel for the complainant also argued that Hira Motor Prepared the estimate bill regarding repair of the vehicle amounting to Rs.4,90,291/- whereas estimate bill prepared by Khanna Plaza is amounting to Rs.7,80,134/-.  Both the estimates mentioned above regarding repair of the damaged car vehicle were much more than the total insured declared value of the vehicle. It is argued that in such a situation it should be considered as a case of total loss and claim of an amount of Rs.2,75,000/- being total insured declared value is justified. 

12.              In this case, the Insurance Company also appointed M/s Harshit Associates as surveyor and loss assessor to assess the loss and to submit report. The surveyor after conducting survey on January 01^st, 2013 submitted his report dated June 13^th, 2013 mentioning the total loss caused to the vehicle to the tune of Rs.97,742/-. The surveyor report dated June 13^th, 2013 is Exhibit R-2. Learned counsel for the opposite party argued that the amount assessed by the surveyor also could not be paid to the complainant as the same can be paid only after repair of the vehicle but the complainant has not got repaired the vehicle. Learned counsel for the complainant argued that the vehicle could not be got repaired as the total estimate was prepared by Khanna Plaza Private Limited as Rs.7,80,134/- which was much more than the total insured declare value of the vehicle. So, it should be considered a case of total loss as repair of the vehicle was not possible as few parts needed for repair of the vehicle were not available in the market.  

13.              It is specifically provided in the terms and conditions of the insurance policy that the insured vehicle shall be treated as a complete Construction 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. After close perusal of the report of the surveyor, it clearly appears that the surveyor has arbitrarily assessed the cost of parts as well as cost of labour without taking any estimate or quotation from the market. Besides this, said surveyor did not consider the estimate given by Khanna Car Plaza to the tune of Rs.7,80,134/-.  In our opinion, the surveyor should not have reduced the total estimate of the repair without obtaining alternative quotations issued and price list etc. The surveyor has reduced the cost of the repair of the car without giving any sound reason. In these circumstances, it is clear that the estimate of cost of repair of the vehicle was much more than the total insured declared value of the vehicle.

14.              As discussed above, no weight can be given to the report of the surveyor. It appears that the surveyor in his report tried to help the Insurance Company by whom the surveyor was appointed and paid. In these circumstances, we feel no hesitation in giving findings that it is a case of total loss and the complainant is entitled to receive an amount of Rs.2,75,000/- being total insured declared value of the vehicle from the opposite party. Keeping in mind the facts and circumstances of this case as mentioned above, the case laws cited by learned counsel for the Insurance Company as mentioned in the order passed by the learned District Forum are of no help to the opposite party in this case as the facts and circumstances of the case in hand are somewhat different.

15.              As per discussions above, awarding of an amount of Rs.2,75,000/- being total insured declared value on account of damage caused to the vehicle; an amount of Rs.3,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.2200/- as litigation expenses is justified.

16.              As a result, as per discussions above in detail, we find no illegality in the impugned order October 27^th, 2017 passed by the learned District Forum. Hence, findings of the learned District Forum stand affirmed and the appeal stands dismissed. It is made clear that the complainant shall hand over salvage of the damaged vehicle to the Insurance Company.

17.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 20.09.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL