DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 1041/2015
D.No.________________ Dated: ___________________
IN THE MATTER OF:
PAWAN SHAH S/o SH. R P SHAH,
R/o 5269, AJIT MAINSION,
SHRADHA NAND MARG, DELHI-110006.… COMPLAINANT
Versus
1. BHARTI AXA GENERAL INS. CO. LTD.,
THROUGH ITS M.D./G.M.,
2nd FLOOR, BIGJO’S TOWER, A-8,
NETAJI SUBHASH PLACE,
PITAM PURA, DELHI-110034.
2. KONCEPT AUTOMOBILE (P) LTD.,
THROUGH ITS M.D./DIRECTORS,
F-18, OKHLA INDL. AREA,
PHASE-II, NEW DELHI. … OPPOSITE PARTY (IES)
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 09.09.2015 Date of decision:07.01.2020
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against OPs under section 12 of the Consumer Protection Act, 1986 thereby alleging that the complainant is owner of Mahindra Quanto C-8 model 2012 bearing Registration no. DL-12-CA-3769 and the said car was insured by OP-1 comprehensive insurance policy (with zero
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depreciation benefit) no. FPV/I1161963/12/01/D1124Y for the period from 12.01.2014 to 11.01.2015 and the said vehicle was insured in continuity with the first insurance which was insured by OP-2 with the assurance of cash less repairs as OP-2 was having tie up with OP-1 for cash less repairs in the event of any accident. On 29.05.2014 at about 8:30 A.M., the said vehicle was being driven by the complainant and met with an accident at NH-11, Hantra Village, P.S. Nadbai Distt. Bharatpur, Rajasthan when the said vehicle collided with a tractor which was coming on the wrong side and the said car was extensively damaged in the said accident and immediately police was called at the accident site and a FIR no. 326 dated 29.05.2014 u/s 279/337 IPC was lodged at P.S. Nadbai Distt. Bharatpur, Rajasthan and the same was towed to the premises of the complainant. On the same day i.e. 29.05.2014, the complainant intimated OP-1 about the accident and the surveyor of OP-1 conducted the spot survey of accident vehicle on 05.06.2014 at police post Dehra Road at NH-11, after getting it released from the Court on Sapurdari and further directed the complainant to tow and drop the car to the workshop of OP-2. On 05.06.2014, the complainant towed the said vehicle to the workshop of OP-2 and also informed OP-1 about the arrival of the car at the workshop of OP-2. On 13.06.2014, the complainant visited the workshop of OP-2 and he was informed that the preliminary inspection has been conducted by one Sh. Sanjeev Malhotra, the surveyor appointed by
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OP-1 and OP-2 directed the complainant to deposit a sum of Rs.15,000/- as an advance for the repairs and assured the complainant that the claim amount deposited by the complainant will be refunded once the claim is settled by OP-1 and accordingly the complainant deposited a sum of Rs.15,000/- with OP-2 and a receipt no.7157 dated 13.06.2014 was issued by OP-2. Thereafter, on the same day, OP-2 informed the complainant that the estimated repair will be of Rs.6,50,000/- including taxes and the vehicle is scheduled to be delivered by 13.08.2014 and OP-2 allottedreference no.15F001198 dated 13.06.2014. On 20.06.2014, the complainant got phone from the surveyor Sh. Sanjeev Malhotra appointed by OP-1 and he confirmed that he has received all the papers from the workshop and they are quite in order and requested the complainant to send a brief detail of the accident via e-mail and accordingly the complainant sent the mail to the surveyor. Thereafter, the complainant approached the officials of OP-1 & OP-2 several times to know about the status of the repair of the said car but did not got any satisfactory reply and the repairs of the car did not start by then. On 21.07.2014, the complainant had a telephonic talk with Mr. Sushil, Manager of OP-1 and the complainant requested him to get the car repaired at the earliest and Mr. Sushil said that there is no problem in repairing the car and accordingly on 24.07.2014, the surveyor of OP-1 gave written instructions to OP-2 to start the repairs of the car. On 20.08.2014,
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the surveyor of OP-1 called the complainant and told that there is no point in repairing the car as the damage is extensive in nature and insisted the complainant to settle the claim and the complainant requested the surveyor of OP-1 to settle the claim on total loss basis or in the alternative repair the car. On 25.08.2014, the complainant gave a written representation to OP-1 stating all the facts and requested OP-1 to settle the claim at the earliest and OP-1 advertised for the sale of the car of the complainant on as is where basis and in response to the advertisement sold the vehicle to the bidder Sh. Shahid Ahmed and received a sum of Rs.1,55,000/- and the official of OP-1, Sh. Sushil Kumar assured the complainant to settle the claim on total loss basis and pay the total insured amount of the vehicle after deducting the amount of Rs.1,55,000/- and accordingly the complainant delivered the car to the bidder Sh. Shahid Ahmed and accepted the amount of Rs.1,55,000/-. On 30.10.2014, the complainant gave a reminder to OP-1 to pay the settled amount and on 31.10.2014, OP-1 issued the claim approval letter to the complainant giving the details of the claim settlement and approved the amount of Rs.4,93,500/- to be paid to the complainant and whereas the complainant has already submitted his consent letter dated 19.09.2014 and on 19.09.2014 with OP-2 and again submitted the same on 16/17, October-2014 with OP-1 as per the direction of the surveyor alongwith the passport size photo and one cancelled cheque. But OP-1 has deliberately failed to
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pay the claim amount as approved and OP-2 has also not refunded the amount of Rs.15,000/- which was taken by the complainant as advance amount and failure on the part of OPs amounts to unfair trade practice and deficiency in service which has resulted in financial loss and mental agony to the complainant.
2. On these allegations the complainant has filed the complaint praying fordirection to OP-1 to refund/pay the settled claim amount of Rs.4,93,500/- alongwith interest @ 24% p.a. and order OP-2 to refund the amount of Rs.15,000/- to the complainant and compensation for deficiency in service of Rs.3,00,000/- as well as compensation of Rs.2,00,000/- for causing damages for mental agony, physical harassment and financial loss. The complainant also sought Rs.55,000/- as cost of litigation.
3. Only OP-1 has been contesting the case and filed written statement and in its written statement submitted that Mr. Sanjiv Malhotra had inspected the damaged vehicle and had assessed the loss on repair basis at Rs.5,07,183/-, since the assessment exceeded 75% of the IDV of the vehicle, the surveyor regarded it as a total loss in terms of the policy and proceeded to obtain buyers of the damaged vehicle and the maximum offer he received was Rs.1,55,000/- and accordingly he finally assessed the loss at Rs.4,93,500/-, leaving the damaged vehicle with the complainant. OP-1 further submitted that OP-1 had conveyed the approval of the claim to the complainant by letters dated 31.10.2014, 22.11.2014, 05.02.2015,
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05.03.2015, 04.07.2015 & 27.08.2015 and requested his concurrence with discharge voucher to enable OP-1 to settle the claim and the complainant had kept silent over the several registered letters and there is no deficiency in service on its part.
4. Notice to OP-2 was issued through speed post for appearance on 19.11.2015 and the notice to OP-2 was served but none has appeared on behalf of OP-2 and as such OP-2 was proceeded ex-parte vide order dated 19.11.2015.
5. The complainant filed rejoinder and denied the contentions of OP-1.
6. In order to prove his case, the complainant filed his affidavit inevidence and also filed written arguments. The complainant also placed on record copy of Registration Certificate, copy of Smart Motor Private Car Certificate of Insurance & Schedule Renewal policy, copy of cover note, copy of driving license of the complainant, copy of FIR, copy of receipt no. 7157 dated 13.06.2019 issued by OP-2 for a sum of Rs.15,000/-, copy of Manual Repair Order Form dated 13.06.2014 issued by OP-2, copies of letters dated 25.08.2014, 19.09.2014, 30.10.2014, 23.02.2015 & 11.03.2015 sent by the complainant to OP-1, copies of e-mail communication between the parties and copy of Claim Approval Letter dated 31.10.2014.
7. On the other hand, on behalf of OP-1 Ms. Shivali Sharma, Sr. Executive-Legal Claimsof OP-1 filed her affidavit in evidence which is on the basis of the written statement. OP-1 also filed copy of
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Smart Motor Private Car Certificate of Insurance & Schedule Renewal policy, copy of Smart Drive-Private Car Insurance Policy-Policy Wordings, copy of Motor Survey Report dated 13.10.2014, copy of Claim Approval Letter dated 31.10.2014 and copies of reminders dated 22.11.2014, 05.03.2015, 04.07.2015 & 27.08.2015 sent by OP-1 to the complainant. OP-1 also filed written arguments.
8. This forum has considered the case of the complainant in the lightof evidence of both the parties and documents placed on record bythe complainant and OP-1. The case of the complainant has remained consistent and undoubted. There is nothing on record to disbelieve the case of the complainant and there is no genuineness and merits in the defence of the OP-1. OP-1 during the proceedings of the case i.e. on 10.04.2017 & 24.01.2018 has also offered an amount of Rs.4,93,500/- to the complainant as full & final settlement which was refused by the complainant in view of the facts & circumstances of the case and we are of opinion that there is no merits in the defence of OP-1 and OP-1 ought to have released the amount at the earliest to the complainant. Failure on the part of OP-1 to refund to the complainant the claim amount amounts to unfair trade practice and deficiency in service. Accordingly, we holdOP-1 guilty of deficiency in service.
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9. Accordingly, OP-1 is directed as under:
i) To pay to the complainant an amount of Rs.4,93,500/- being the amount as assessed by the surveyor.
ii) To pay to the complainant an amount of Rs.1,00,000/- as compensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- to the complainant as litigation cost.
10. The above amount shall be paid by OP-1 to the complainant within 30 days from the date of receiving copy of this order failing which OP-1 shall be liable to pay interest on the entire awarded amount @10% per annum from the date of receiving copy of this order till the dateof payment. If OP-1 fails to comply with the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 7th day of January, 2020.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
UPLOADED BY : SATYENDRA JEET
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