| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 205 of 20-07-2017 Decided on : 31-07-2018 Karnail Singh aged about 38 years S/o Ram Singh, R/o Village Kotshamir, Tehsil & District Bathinda. …...Complainant Versus Cholamandalam MS General Insurance Company, SCO No. 2463-64, Sector 22-C, 1st Floor, Chandigarh through its Manager Legal and Authorised Signatory Cholamandalam, MS General Insurance Company, Near IndusSind Bank, G.T. Road, Near Bus Stand, Bathinda, through its Branch Manager .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh Pahwa, President Sh. Jarnail Singh, Member Smt. Sukhwinder Kaur Member Present : For the complainant : Sh. W.S Khurmi, Advocate. For the opposite parties : Sh. Vinod Garg, Advocate. O R D E R M. P. Singh Pahwa, President Karnail Singh, Complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Cholamandalam MS General Insurance Co. and another (here-in-after referred to as 'opposite parties'). Briefly stated, the case of the complainant is that he is the owner of Truck Trolla No. PB-03AP-6869. He was plying the same for his livelihood as well for his family members. This vehicle was comprehensively insured with the opposite parties for IDV of Rs.26,00,000/- vide insurance policy No.3379/01506042/000/06 w.e.f. 20-08-2016 to 19-08-2017. The complainant paid premium of Rs.68,391/- against the policy. It is pleaded that as per terms and conditions of the policy, the opposite parties are liable to pay the EMIs of financial assistance against the said policy in case the vehicle is lying parked due to any damage/loss suffered by the vehicle, for 15 days, for one EMI, 30 days for two EMIs and after 45 days 3 EMIs. Against this coverage the opposite parties charged Rs.7670/-. It is also pleaded that the said vehicle met with an accident on 07-11-2016. He lodged claim with the opposite parties vide claim No.1712978 on the same day for settlement of loss suffered by the vehicle. The opposite parties deputed surveyor who conducted spot survey. He asked the complainant to shift the vehicle with authorized service center. As such, under the instructions of the surveyor, the complainant shifted the vehicle with Honey Enterprises VPO Gehri Butter, Bathinda, the authorized service center. The surveyor took signatures of the complainant on some blank printed forms with the assurance that the entire claim will be paid. The vehicle was got repaired by the complainant. The total repair bills were for Rs.6,93,333/-. The complainant submitted all the repair bills and estimate. He completed all the formalities for taking claim, but the opposite parties did not make payment to the said dealer i.e. Honey Enterprises. As such, the vehicle remained parked with the dealer/service center up to 06-03-2017 due to non payment of the amount. The opposite parties have not made payment of the repair bills. The complainant under compelling circumstances paid the repair bill charges and took delivery of his vehicle. It is alleged that due to illegal act on the part of opposite parties, the vehicle remained parked w.e.f. 07-11-2016 to 06-03-2017 i.e. more than 120 days. As such, the opposite parties are liable to make the payment of three EMIs for 45 days. Thereafter the vehicle remained parked with the dealer for further 75 days due to wrong act of opposite parties of not making payment. As such, the complainant is also entitled to recover Rs.3000/- per day for 75 days besides three EMIs from the opposite parties. It is further alleged that the opposite parties illegally and arbitrarily made the payment of Rs.5,00,000/- vide RTGS on 22-03-2017 against the claim of Rs.6,93,333/-. The opposite parties are liable to make the payment of entire bills of repair as the vehicle was comprehensively insured with IDV of Rs.26,00,000/-. The opposite parties have no right to charge any depreciation or other charges. The opposite parties have illegally released only one EMIs of Rs.59,800/- whereas they were liable to pay three EMIs. The opposite parties illegally did not pay Rs.1,19,600/- against two EMIs as per terms and conditions of the policy. The complainant has pleaded that he is entitled to recover total amount of Rs.5,37,933/- from the opposite parties against the said loss. The complainant also got served legal notice dated 24-05-2017 through counsel but to no response. The complainant also claimed compensation to the tune of Rs. 50,000/- for financial loss, mental tension, agony, botheration etc., besides litigation expenses to the tune of Rs. 20,000/-. Hence, this complaint. Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In their joint written reply, the opposite parties raised legal objections that intricate questions of law and facts are involved which require voluminous documents and evidence. It is not possible in summary procedure under the 'Act'. That the subject matter in dispute is of value more than Rs.20.00 Lacs. Therefore, the complaint cannot be tried and decided by this Forum. That the complainant has concealed material facts and documents from this Forum as well as opposite parties. The complainant has concealed the fact that the surveyor had assessed the net liability at Rs. 5,00,261/-. It is not a case of policy with 0% depreciation benefit. Depreciation has been charged as per terms and conditions of the policy. The complainant opted for policy with benefit No.15 and Option-A which means that benefit given at St. No.15 of terms and conditions was to be given. As per this condition, the liability of the opposite parties is only for one month and this option will operate after 15 days from the date of handing over the vehicle to the garage. Accordingly, Rs.59,000/- has been paid under EMI as per EMI Protection Plan taken by complainant. That the complaint is not maintainable in the present form. That the complainant is not consumer of the opposite parties and that the complaint is false, frivolous and vexatious to the knowledge of the complainant, as such it is liable to be dismissed. On merits, it is denied that the complainant was plying the truck for his livelihood only. As per opposite parties, the complainant was using the same for commercial purposes. Issuance of insurance policy, its IDV, covering period and payment of premium are not denied. It is reiterated that the liability of the opposite parties is only for one month and this option will operate after 15 days from the date of handing over the vehicle to garage. It is admitted that opposite parties deputed Surveyor and Loss Assessor who conducted survey and assessed the loss at Rs,5,00,261/- after applying depreciation. All other averments of the complainant are denied. In the end, the opposite parties prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits dated 19-7-2017 and 11-12-2017 (Ex. C-1 & Ex. C-15), photocopy of policy schedule cum certificate of Insurance (Ex. C-2), photocopy of Job Card (Ex. C-3), photocopy of Tax Invoice (Ex. C-4 to Ex. C-6), photocopy of receipt (Ex. C-7), photocopy of certificate (Ex. C-8), photocopy of R.C of vehicle (Ex. C-9), photocopy of postal receipts (Ex. C-11 & Ex. C-12), photocopy of account statement (Ex. C-13) and photocopy of driving licence (Ex. C-14). In order to rebut this evidence, opposite parties has tendered into evidence affidavit dated 21-2-2018 of Satyabratta Dass (Ex. OP-1/2), photocopy of policy (Ex. OP-1/3), photocopy of final survey report (Ex. OP-1/5), photocopy of Insurance claim form (Ex. OP-1/6) and closed the evidence. The opposite parties have also submitted written arguments. We have heard learned counsel for the parties, gone through the record and written arguments of opposite parties. Learned counsel for the parties have reiterated their stand as set up in the complaint and as detailed above. The learned counsel for the opposite parties has relied upon decision of Hon'ble National Commission rendered in Revision Petition No. 4335 of 2010 decided on 20-3-2017 in case titled Sri Niwas Sharma Vs. United India Insurance Co. Ltd., We have carefully gone through the record and have considered the rival contentions. The admitted facts are that the complainant being owner of vehicle in question got it insured with the opposite parties. The IDV of the vehicle was Rs. 26.00 Lacs. The vehicle met with an accident on 7-11-2016. The complainant lodged claim and opposite parties paid a sum of Rs. 5,00,000/- to the complainant in full and final discharge of claim. The complainant has not challenged the terms and conditions mentioned in the Insurance Policy. Therefore, for the sake of convenience, the claim of of the complainant is being examined in the light of reliefs claimed by him. The complainant has pleaded that he submitted total repair bills for Rs. 6,93,333/- vide bill dated 10-1-2017 and that policy was of 0% depreciation. This assertion is on the basis of the fact that IDV of the vehicle was declared as Rs. 26.00 Lacs. It is well settled that IDV is something else and 0% depreciation is separate clause. The insured is required to pay excess premium to avail 0% depreciation benefits but there is nothing in the policy schedule or certificate of insurance that complainant availed 0% depreciation benefits by paying any excess premium. Therefore, the depreciation clause was applicable to the claim of the complainant. The opposite parties have placed on record copy of survey report (Ex. OP-1/4) as well as affidavit (Ex. OP-1/5) of Ravi Aggarwal, Surveyor & Loss Assessor. He has assessed the loss to the tune of Rs. 5,15,847/- which includes one EMI. The complainant has not challenged the report submitted by surveyor on any aspect. Therefore, the complainant was not entitled to reimbursement of total loss. He was also liable for depreciation applicable as per terms and conditions of the policy. The complainant has also claimed benefit of three EMIs but the policy document proves that insured claimed benefit under clause 15. The opposite parties have also placed on record copy of policy document (Ex. OP-1/3). As per this provision, number of monthly installment payable by the Company are for one month only. Therefore, the complainant has taken benefit of one month EMI only. He cannot claim benefit of 3 monthly EMI. Even otherwise as per this policy document, the maximum benefit of EMI was available only for two months. The complainant has claimed Rs. 3000/- per day for delay in payment but there is nothing in the policy document to justify this claim raised by the complainant. The claim has already been settled as per terms and condition contained in the policy document. The opposite parties have paid the benefits as per policy document. Therefore, no deficiency can be attributed on the part of the opposite parties. In view of what has been discussed above, this complaint fails and is hereby dismissed with no order to costs. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room. Announced : 31-07-2018 (M.P.Singh Pahwa ) President (Jarnail Singh ) Member (Sukhwinder Kaur)
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