DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 433 of 2.11.2016
Decided on: 9.4.2018
Dr.Baldev Singh Cheema, aged about 58 years, S/o Sh.Partap Singh, resident of A-4, Punjabi University Campus, Punjabi University, Patiala.
…………...Complainant
Versus
1. New India Assurance Company Ltd., Chhoti Baradari, Branch Patiala through Branch Manager.
2. Sh.K.S.Kathuria, Asstt. Manager (Mkt.) D.O.-II, Opp. Income Tax Office, Leela Bhawan, Patiala.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Navdeep Sharma, Advocate,counsel for complainant.
Sh.Sanjiv Kumar Garg,Advocate, counsel for opposite
parties No.1&2.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Dr .Baldev Sinngh, complainant has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.)
2. The brief facts of the complaint are that earlier to the present complaint, the complainant filed complaint No.76 of 24.2.2016 on the pleadings that he is the owner of vehicle No.PB11AV-5422 Make Nissan Micra, which was got insured with the OP no.1 for the period from 3.10.2014 to 2.10.2015 with the IDV of Rs.4,50,000/-. It is stated that on 16.9.2015, when wife of the complainant namely Smt.Gurdeep Kaur alongwith others coming in the said vehicle which was driven by Dr.Jaswant Singh S/o Joginder Singh S/o Joginder Singh, at about 3.22 PM near village Jalur, the same met with an accident with a swift car No.PB-13-J-5577, driven by its driver.As a result of which car in question badly damaged. It is stated that in the said accident, persons sitting in car got various simple and multiple injuries, due to which FIR could not be lodged. Lateron vide Rapat No.18 dated 16.10.2015, P.S.Lehra, lodged DDR to the police. The aforesaid complaint was disposed off on 15.3.2016 by this Hon’ble Forum by passing the order, “ Today counsel for the complainant has placed on file an application dated 11.3.2016 submitted before The branch Manager, New India Assurance Company Ltd., Chhoti Baradari, Patiala. Be placed on file. Heard. we dispose of this complaint with the direction to the OPs to decide/settle the claim of the complainant vide Insurance/Motor Vehicle cover note No.881466 within a period of 30 days from the receipt of copy of the order. Copy of application dated 11.3.2016 be also sent to the OPs for compliance.In case the complainant is not satisfied with the decision of the OPs, the complainant is granted the liberty to file afresh complaint on the same cause of action”.
It is further stated that in compliance of the said order, the OPs deposited Rs.3,84,000/- in the account of the complainant and Rs.66,000/- are still to be paid by the OPs. Hence this complaint with the prayer for givingdirections to the OPs to pay the claim amount of Rs.66,000/- alongwith interest @18% per annum from the date of claim till its realization; to pay Rs.2,00,000/- as compensation for causing mental agony and physical harassment. It is also prayed that any other relief, which this may deem fit may also be granted.
On being put to notice, the OPs appeared and filed the written version. In the preliminary objections it is stated that the complaint is not maintainable as the Insured Amounti.e. IDV of the car was Rs.4,50,000/- and the OPs have paid Rs.3,84,000/- to the complainant through NEFT. Rs.65000/- is the value of the salvage of the damaged car which was retained by the complainant and Rs.1000/- has been deducted on account of Excess Policy Clause. It is further stated that IDV of Rs.4,50,000/- of theimpugned car was declared on 3.10.2014 and loss was occurred on 16.9.2015. As such, at the time of loss the value of the car was less than Rs.4,50,000/-.The OPs have not deducted any amount on account of depreciation. In reply to the complaint on merits, the insurance of the car in question admitted. It is stated that on receipt of intimation of the alleged accident on 24.9.2015,the OPs deputed Eminent SolvServe Insurances, surveyors and Loss Assessors on 29.9.2015 for assessing the loss who submitted their Motor Survey Report on dated 16.11.2015, according to which, the value of the salvage was Rs.65000/-. The 2nd Motor Survey Report was received on 4.4.2016 with the remarks that settlement of the claim on net of salvage basis for Rs.3,84,000/- seems to be most economical. Thus the claim of the complainant was passed for Rs.3,84,000/- on 8.4.2016 as per the report of the surveyor. The registration certificate of the car in question was cancelled on 29.6.2016. RC of the vehicle was received on 12.7.2016 by the OPs and the payment of rs.3,84,000/- was made to the complainantthrough NEFT on 20.7.2016. There is thus no deficiency of service on the part of the OPs and the complaint is liable to be dismissed.
On being called to do so, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to3 and closed the evidence of the complainant.
The ld. counsel for the OPs tendered in evidence Ex.OPA affidavit of Ms.Gurveen Kaur, Sr.Divn.Manager of the OPs alongwith documents Exs.OP1 to OP7 and closed the evidence of the OPs.
We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
6. Admittedly, the insurance company had paid the claim amount of Rs.3,84,000/- to the complainant, on the basis of the loss assessed by the surveyor on net of salvage basis, vide his report ,Ex.OP3. The plea of the complainant is that salvage of the car in question is in the possession of the insurance company. Thus, it is liable to pay the salvage value of Rs.65,000/- as assessed by the surveyor and Rs.1000/- illegally deducted on account of policy clause. On the other hand, the stand of insurance company is that the salvage is in the possession of the complainant. Therefore, he is not entitled to get any amount . It may be stated here none of the party has placed on record any cogent document on the basis of which, it can be ascertained that actually the salvage is lying in whose possession. It is of a common knowledge that in order to get assessed the loss of the damaged / accidental vehicle, from some IRDA approved surveyor, the insurance company do instruct the insured to handover the damaged/accidental vehicle to its authorized service center. In the present case, the loss of the damaged vehicle was duly got assessed from the surveyor by the insurance company , it definitely means that the damaged vehicle was in possession of either in the insurance company or with its authorized service centre. Hence, it was the insurance company which has to prove that after getting the loss of the damaged vehicle assessed, the damaged vehicle was handed over to the complainant, under proper receipt. Even otherwise, this fact cannot be ignored that at the time of disbursing the claim amount, the insurance company do take an undertaking from the insured, if the salvage is retained by the insured. However, no such document has been placed on record by the insurance company. As such, adverse inference can easily be drawn that the damaged vehicle was never handed over to the complainant. With these facts and circumstances of the case, we are of the view that the insurance company is liable to pay the salvage value of Rs.65,000/-as assessed by the surveyor vide report Ex.OP3. However, the complainant is not entitled to get Rs.1000/- because the deduction was made as per policy clause. By not paying the amount of Rs.65000/-, the insurance company has committed deficiency in service . It is not only liable to pay the said amount but also liable to compensate the complainant for causing mental agony and physical harassment to the complainant alongwith cost of litigation. Since OP No.2 is the employee and has acted for and on behalf of the insurance company , therefore, no liability can be fastened upon him and the complaint filed against him is liable to be dismissed
7. In view of the aforesaid discussion, the complaint filed against Op no.2 is dismissed and the same is allowed against OP no.1. OP no.1 is directed in the following manner:
- To pay Rs.65,000/- the salvage value of the vehicle in question, as assessed by the surveyor, alongwith interest @7% per annum from the date 8.4.2016 , i.e. the date on which the OP no.1 had paid the claim amount of Rs.3,84,000/- till realization;
- To pay Rs.10,000/- as compensation for causing mental agony and physical harassment to the complainant;
- To pay Rs.5000/- as cost of litigation.
OP No.1 is further directed to comply the said order within a period of 45 days from the date of the receipt of certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules.Thereafter, file be indexed and consigned to theRecord Room.
ANNOUNCED
DATED:9.4.2018
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
