DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.134/2011

Sh. Gautam Chaturvedi

S/o Sh. Subodh Chaturvedi

R/o C-526, Sheikh Sarai Phase-1,

New Delhi                                                            ….Complainant

Versus

1.      Bhasin Motors (India) Pvt. Ltd.

A-13, Mohan Co-operative Industrial Estate,

Mathura Road, Opp. Sarita Vihar,

New Delhi

2.      The Officer-In-charge

Reliance General Insurance Co. Ltd.

Plot No.60, Okhla Phase-III,

Opp. State Bank of India

New Delhi                                                  ….Opposite Parties  

                                                  Date of Institution      : 08.02.11      Date of Order                : 12.04.18

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Case of the Complainant, in nutshell, is that he took an insurance policy bearing cover note No.108000359533 from OP No.2 for his Scorpio car bearing registration No. DL-4C-NB-3311 which was valid from 26.07.08 to 25.07.09. The complainant took the policy on the specific assurance from OP No.2 that the complainant would get the cashless cover in the event of any eventuality but the OP No.2 did not send any policy documents to him except the cover note.  The said vehicle met with an accident on 27.01.09 and was taken to OP No.1 for its repair after due intimation to OP No.2.  It is submitted that the complainant was entitled to cashless claim and the OP No.1 was authorized dealer of the vehicle i.e. Mahindra, and hence, the complainant had approached OP No.1 for repair of his vehicle.  The OP No.1 gave an estimate dated 03.02.09 for an amount of Rs.32,000/-  which was to be paid towards labour and cost of the parts by the complainant over and above the cashless amount in terms of calculation done by the surveyor of OP No.2. The OP No.1 after approval from survey of OP No.2 OP No.1 carried out the repairs and a bill dated 26.02.09 of Rs.36,500/- being over and above the amount than the cashless claim was calculated by the OP No.1.  As per the estimate submitted by the OP No.1 approved by the surveyor of OP No.2, the complainant paid the over and above amount towards labour and cost of the parts. However, when the complainant went to collect his vehicle from OP No.1, the OP No.1 kept on refusing to give the delivery of the vehicle of the complainant on the ground that no intimation in respect of reimbursement of cashless claim has been sent by the OP No.2 to the OP No.1 even when both the OPs have arrangement between them of cashless claims of the consumer. It is submitted that when the complainant asked the OP No.1 to give the same in writing about non-delivery of the vehicle, the OP No.1 informed the complainant on 14.03.09 that  the vehicle cannot be delivered to him until OP No.1 received DO letter from OP No.2. Since the delivery of the vehicle of the complainant was not given by OP No.1 despite payment of advance amount of Rs.36500/- paid to the OP No.1, the complainant finding no alternative paid the balance amount of Rs.1,51,641/- on 26.03.09 to the OP No.1 in order to take delivery of his vehicle since he was facing difficulty in commuting in the absence of the vehicle and the OPs were harassing him. The complainant sent a legal notice dated 01.04.09 to the OPs but no action was taken by the OPs nor any reply was received. Hence, pleading deficiency in service on the part of the OPs the complainant has filed the present complaint with the following reliefs:-

“(a)    Direct the OPs jointly as well as severally to pay an amount of Rs.1,51,641/- with interest from 26.03.2009 till its payment to the complainant;

(b)     Direct the OPs jointly as well as severally to pay an amount of Rs.75,000/- as compensation towards harassment and mental agony;

(c)      Direct the OPs jointly as well as severally to pay the cost of this complaint to the complainant.”

OP No.1 in the written statement has inter-alia stated that the complainant is not the registered owner of  the subject vehicle and as per the record the registered owner of the subject vehicle is Asha Cargo, 25- Khanna Market, New Delhi and hence in the present case the name and address of the registered owner  is different as claimed by the complainant. It is submitted that there is master to master relation between the OP No.1 and OP No.2 as the nature of business of both the parties is different. OP No.1 is engaged in the business of selling the car and providing the services to the car of the manufacturer as authorized service centre. However, the OP No.2 is engaged in the business of providing facility of insurance to the vehicles. The place of business is also different as well as the management and controlling authority of both the OPs are different.  The entire dispute in the present complaint is only related to the OP No.2 which is an Insurance Company. It is submitted that the insurance company has to give the instructions to the OP No.1 to start the repair and thereafter on completion the OP No.2 has to again inspect the vehicle and thereafter the insurance company on satisfaction has to issue delivery order alongwith the acceptance of the liability to pay the insured approved amount. In this case, the Insurance Co. did not issue the delivery order to release the vehicle to the complainant and in the circumstance the vehicle could not be released to the complainant without payment of lawful bill of the OP No.1. The OP No.1 did not receive any legal notice from the complainant.  OP No.1 has prayed for dismissal of the complaint,.

OP No.2 in its written statement has inter-alia stated that the complainant has suppressed the true and real facts from this Forum and the complainant lodged the claim with the OP No.2 with regard to accidental damage to the insured vehicle bearing registration No. DL 4C NB 3313. Immediately upon the receipt of the claim intimation the OP No.2 started processing of the claim and appointed Mr. Ashok Ghai, surveyor to investigate and assess the loss. As per the claim form filed by the complainant and the policy the complainant/insured himself was driving the vehicle in question. During investigation it came to the notice of the investigator and the driver of the vehicle in question was under influence of liquor at the time of accident.  The complainant was asked by the surveyor as well as by the OP No.2 to furnish the MLC and related medical documents of the driver i.e. the complainant who was driving the vehicle in question at the time of accident and was arrested on the spot by the police but the complainant despite repeated reminders failed to furnish the documents and hence the claim of the complainant was closed.  It is submitted that there was no deficiency in service on the part of OP No.2.  The vehicle of  the complainant had met with an accident on 27.01.09 but the complainant gave an intimation to the OP No.2 about the loss on 03.02.09 which is in violation of policy condition No.1 which reads as under:-

“ Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and  in the event of any claim and  thereafter the insured shall give all such information and assistance as the company shall require……… In case of theft or criminal act which may be the subject of claim under this policy, the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.”

It is denied that the OP No.2 gave any assurance to the complainant that the complainant would get the cashless cover in the event of any eventuality as alleged or otherwise. It is submitted that the cashless facility is not a right under the policy but it is upto the discretion of OP No.2. It is denied that no policy was sent to the complainant except the cover note. It is also denied that the surveyor of OP No.2 approved any amount for cashless repair and/or the complainant was liable to pay amount over and above the approved cashless amount. The surveyor Sh. Ashok Ghai carried out the survey and assessed the loss to the tune of Rs.1,51,000/- but the said amount would have become payable subject to fulfilling the terms and conditions of the policy. However, there is a breach of policy condition No.1 as also non- cooperation on the part of the complainant who failed  to submit the medical documents and MLC despite repeated reminders.  It is prayed that the complaint be dismissed.

          In the rejoinder to the written statement of OP No.1 the complainant has denied the averments to the extent that registered owner of the vehicle is Asha Cargo. It is submitted that the OP No.1 duly  represented the complainant on 01.02.09 that it has arrangement of cashless cover with the OP No.2 and that is the reason the complainant approached OP No.1. It is submitted that the fact that an amount of Rs.32000/- was to be paid to OP No.1 as per version in shape of estimate dated 03.02.09 governed by the OP No.1 which was duly paid, establishes the contention and submission of the complainant that OP No.1 has  arrangement with OP No.2 with respect to the cashless cover.  It is submitted that if the complainant would have been required to pay the whole amount the OP No.1 would have asked for the same when the amount of Rs.36,500/- was paid to them.  It is submitted that the OP No.1 is  jointly and severally liable on account of deficiency in service due to its misrepresentation.  It is submitted that as per the postal receipt the OP No.1 received the legal notice.

Complainant has not filed any rejoinder to the written statement of OP No.2.

Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. P. N. Joshi Manager (HR)  on behalf of the OP No.1 and affidavit of Sh. Satyan Kapur, Deputy Manager, Legal  on behalf of the OP No.2 have been filed in evidence.

Written  arguments have been filed on behalf of the parties.

We have heard the oral arguments on behalf of the complainant and OP No.1 and have also gone through the record.

The complainant has filed the cover note of the policy issued by the OP No.2 for the policy period 26.07.08 to 25.07.09 as  Ex. C-1 and the copy of estimate dated 03.02.09 as Ex. C-2 and copy of bill dated 26.02.09 as Ex. C-3.  The complainant issued the legal notice dated 01.04.09 to the OPs as Ex. C-4. Complainant has filed the certified copy of the final report received from the District Court of M.M. Patiala House as Ex. C-6.  OP No.2 has filed the copy of the terms and conditions as Ex.R-1. The OP No.2 has filed the copy of FIR dated 28.01.09 as Ex. R-3. The OP No.2 filed the copy of claim form as Ex. R-2.  The OP No.2 vide letter dated 18.08.09 sent the final notice to the complainant regarding submitting the documents as Ex. R-4, surveyor report as R-5.

It is not in dispute that the complainant took an insurance policy from the OP No.2. As per the OP No.2 the complainant was asked to furnish the MLC and related documents but the documents were not provided by the complainant. As stated hereinabove, the complainant has not filed rejoinder to the written statement of OP No.2, thus, presuming that the he has admitted the averments made in the written statement of OP No.2 to be correct. In any case,  we reproduce  para 13 of the affidavit  of the complainant as follows:-

“13.  It is submitted that OP No. 2 has incorrectly  stated that it had sent certain letters to the deponent, which is absolutely incorrect as no letter as annexed with the evidence affidavit by OP No.2 was ever received by the deponent. Even otherwise,  it is submitted that this correspondence is fabricated since the medical legal certificate mentioned in these correspondence is a vague term not specifying as to whose medical legal certificate is required whether of the injured or of the deponent.  It is submitted that as per the own written statement of  the OP No.2, it has been stated that investigator was appointed  by it. It is submitted that if an investigator was appointed by the OP, who had obtained the copy f FIR  from the police,  he could have taken the MLC (whether  of the injured or of the deponent) from the police and there could not have been any cause to write a correspondence to the deponent for this purpose.  The OPs are trying to cover up their deficiency by taking false and frivolous grounds on the basis of fabricated letters.  Besides, there is no delay in informing the OP No.2 since the intimation was given to the OP on 1.2.09 through OP No.1 and the survey  was conducted on 3.2.09.”

It was not for the complainant to decide whether the “correspondence” made by the OP No.2 was “fabricated” or “vague.”   He must have sent a reply to the “correspondence” of OP No.2. Therefore, non-sending of reply to the letters/reminders of OP No.2 has caused a big dent in the case of the complainant. Accident took place on 27.01.2009. According to the complainant himself he informed  OP No.2 through OP No.1 on 01.02.2009 i.e. after a delay of 5 days. This, in the facts and circumstances of the case discussed above, amounts to undue and unexplained delay in sending intimation to OP No.2 regarding the accident. The OP No.2 sent various letters to the complainant but the complainant did not submit the same.  As the complainant did not deposit all the documents with OP No.2 his claim was closed due to non-submitting the documents.  

          In view of the above discussion, we hold that the complainant has failed to prove deficiency in service on the part of OP.  Accordingly, we dismiss the complaint with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 12.04.18.