Complainant Ajay Gupta has filed the instant complaint against the opposite parties under section 12 of the Consumer Protection Act, 1986 with a prayer that opposite parties be directed to pay him the IDV value i.e. Rs.16,00,000/- of the damaged vehicle alongwith interest @ 18% from the date of accident till its realization. Opposite parties be also burdened  to pay  him the parking charges, charged by Sai Motors @ Rs.300/- per day from 10.5.2017 till its actual lifting and further the opposite parties be burdened to pay Rs.25,000/- as visiting charges of office of the opposite parties at Chandigarh. Opposite parties be further directed to pay Rs.50,000/- as compensation on account of mental, physical harassment and agony and loss in business alognwith Rs.75,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he got his car bearing registration No.PB-08-CH-0046 make BMW AG Model 2012 comprehensively insured from the opposite parties at Jalandhar for Rs.16,00,000/- and paid the premium of Rs.64,891/-, as such he is consumer of the opposite parties. To this effect the opposite party issued a “Motor Policy Schedule-cum-Certificate of Insurance” duly signed by the official having Code No.K 562 with the stamp of Cholamandalam Investment and finance Co. Ltd. Bearing no.3362/01349351/000/00 which is valid from 30.3.2017 to 29.03.2018 midnight. Unfortunately, the purchased car met with an accident on 6.5.2017 at about 7.00/8.00 p.m in the area of Dhariwal, Tehsil and District Gurdaspur and he immediately intimated at the toll Free No. of the opposite party and accident claim was preliminary registered at serial no.1771559 dated 7.5.2017. Later on the opposite party registered the claim as SR#3322155 and #3362345388. After receiving intimation of the accident, the opposite party appointed Sh.Vaibhav Gaharana to assess the loss and intimated him through letter dated 10.05.2017 and asked him to submit all the documents mentioned in the letter of Regional Claim Manager to Sh.Vaibhav Gaharana. He as per the requirement submitted all the documents i.e. R.C. DL and insurance policy to Mr.Vaibhav Gaharana at Chandigarh. He lifted the car for repairs to Chandigarh on 9.5.2010 and as per the advise of the Surveyor Mr.Vaibhav Gaharana took the accidental car to Sai Motors Ambala Chandigarh Road Near  Kabir Nursery Zirakpur and the accidental car is lying at Sai Motors Chandigarh till today in the damaged condition and Mr.Vaibhyav Gaharana advised him to get the car repaired from any Workshop. He submitted original estimates obtained from Sai Motors Chandigarh to Sh.Vaibhav Gaharana to the tune of Rs.14,09,032/- dated 18.5.2017 and also submitted the toeing bill of Rs.13,000/- dated 9.5.2017 of Firoj Khan Village Ghatiwala, Pinjore, Tehsil Kalka, District Panchkula. After appointing Mr. Vaibhav Gaharana to assess the loss on 10.05.2017, the opposite party wrote a letter dated 29.6.2017 seeking clarification on mismatch in vehicle from insurance to claim-alteration. To which he replied on 7.7.2017. He has further pleaded that again and again he sent several letters on different dates and received replies on e-mail on different dates and lastly to his utter surprise, he received a mail dated 1.8.2017 repudiating his genuine claim on flimsy grounds and fake objections taken by the opposite party. From all the correspondence between him and opposite parties through letters and e-mails, clearly shows the attitude of opposite parties in repudiating his claim on one pretext or the other which are baseless having no force and has already been clarified by him. The opposite parties had not settled his claim deliberately as the loss of abovementioned car is as per the estimate submitted by him is to tune of Rs.14,09,032/- and the Insured Declared Value of the car is Rs.16,00,000/- as per the rules of Regulatory body by which all the General Insurance Companies are governed, it is prescribed that when the loss to the insured vehicle is more than 75% then accidental vehicle has to be considered as total loss. This act and conduct of the opposite parties from the letters and e-mails, is clear cut deficiency in service on their part. Hence this complaint.

3.        Upon notice, the opposite parties appeared and filed their written reply through their counsel by taking the preliminary objections that complaint is not maintainable because the complainant has been trying to get the claim by misrepresentation of facts. The complainant insured had produced a different vehicle for getting the claim than the one which was produced for inspection at the time of taking the policy. Hence the claim is not payable; in case the Hon’ble Forum comes to conclusion that the claim is payable then in that case the claim payable will be as assessed by the surveyor and not as per IDV. On merits, it was submitted that a certificate of insurance has been issued to the insured. The bills submitted by the complainant are not binding upon the opposite party. The loss is required to be assessed by the surveyor who is a competent person to do so. The complainant is not entitled to any claim. There is absolutely no deficiency in service on the part of the Company or any of its officials. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed.

4.    Complainant tendered into evidence his own affidavit Ex.CW1/A alongwith other documents Ex.C1 to Ex.C19 and closed the evidence. 

5.         Counsel for the opposite parties tendered into evidence affidavit of Sh.Satyabratta Das- Assistant Manager Ex.OP-1 and of Sh.Phaneendar, B.N. Director/Chief Forensic Expert Ex.OP-2  alongwith other documents Ex.OP-3 to Ex.OP-5 and closed the evidence.

6.     We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for of some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute prompted at the impugned ‘repudiation’ (Ex.C18) dated 01.08.2017 of the impugned total-loss accident-claim of the complainant’s insured BMW Car by the titled OP insurers alleging misrepresentation of facts in clear violation of the related policy-terms by way of surrender of another different accidental car than that insured qua applicable policy.

7.       We further find that the OP insurers did not appoint its Surveyor to assess the ‘damage’ caused to the car and thus the complainant had to arrange his own surveyor for assessment of loss and subsequent repairs (Ex.C4) @ Rs.14,09,032/- i.e., more than 75% of the insured vehicle’s IDV of Rs.16 Lac turning it to be one total loss claim; whereas the present complainant has successfully produced somewhat acceptable/sufficiently cogent evidence to prove his complaint-contented allegations and its counters etc. The complainant besides his own affidavit Ex.Cw1/A has produced (Ex.C2 to Ex.C19) its supporting documents to prove his complaint contented charges/ allegations.

8.       On the other hand, the OP insurers have deposed its contentions vide affidavits (Ex.OP1 & Ex.OP2)/written reply and other supporting documents Ex.OP3 to Ex.OP5 based upon which the impugned claim was repudiated on 01.08.2017 on account of the change/ difference in looks of the insured car and the accidental car produced for purpose of claim filing/assessment and repairs etc. The alleged delayed intimation of the road-accident in violation of terms of the related policy has however not attempted to be proved/ to have been served upon the complainant. However, the insurers have not contested complainant produced survey assessment @ Rs.14,09,032/- vide some other counter assessment and also vide its survey report Ex.OP4 for Rs.9,11,490/-. The analytic evaluation of the available evidence indicates of an arbitrary and hasty ‘repudiation’ since the alleged exchange of vehicle could not be successfully proved. The forensic expert opinion pertains to unproved photographs and not through physical verification and above all the vehicle’s Chassis and Engine numbers have found to be correct, in order and not tampered with.   

9.       Under the circumstances and In the light of the all above, we partly accept the present complaint and thus ORDER the OP Insurers to pay  the impugned claim @ total loss IDV of the insured vehicle but in terms of the applicable insurance Policy to the present complainant besides to pay him Rs. 10,000/- as compensation and Rs.5,000/- as cost of litigation within 30 days of receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of  filing of complaint till actual payment.

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.    

                                                                           (Naveen Puri)

                                                                                President                                                                                          

ANNOUNCED:                                                  (Jagdeep Kaur)

May 16, 2018                                                             Member                              

*MK*