BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 514 of 2019.
Date of Institution : 03.09.2019.
Date of Decision : 30.10.2023.
Sukhchain aged about 23 years son of Shri Jaswant Singh, resident of Dhani Kheowali, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Classic Sales (Authorized Dealer of Excide Battery) Near RSD School, Opposite Paras Hospital, Dabwali Road, Sirsa, through its Proprietor/ Partner.
2. Excide Industries Limited, Excide House, 59E, Chowringhee Road, Kolkata- 700020, through its Managing Director.
3. National Insurance Company Limited, 1st Floor, LIC Building, Near Sangwan Chowk, Sirsa, through its Branch Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
MRS.SUKHDEEP KAUR……………………….MEMBER.
Present: Sh. Manoj Narula, Advocate for complainant.
Sh. H.S. Raghav, Advocate for opposite parties no.1 and 2.
Sh. A.S. Kalra, Advocate for opposite party no.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of complainant is that complainant is owner of one Toyota Fortuner vehicle bearing registration No. HR-51-BD-0023 and purchased Excide battery for the said vehicle from op no.1 for a sum of Rs.4600/- vide invoice no. 231 dated 25.03.2018 and op no.1 has given warranty of said battery for 18 months. The above said vehicle is insured with op no.3 vide insurance policy no. 420700311810008677 for the period w.e.f. 26.1.2019 to 25.1.2020. That above said battery is still under warranty. It is further averred that on 4.4.2019 at about 7.30 p.m. the complainant after coming from Delhi had parked his vehicle in his garage and he was taking goods from the said vehicle and when he was going to lock the gate of garage then he saw smoke from the bonnet of the said vehicle. That just thereafter vehicle was badly burnt with heavy blast. The complainant and other persons gathered on the spot tried to control over the fire/ flame and after serious efforts it was controlled but till then the vehicle was badly damaged. It is further averred that a rapat no. 25 dated 6.4.2019 was lodged in Police Station Sadar Sirsa. That even complainant has submitted his claim before op no.3 and submitted all required documents to op no.3 and op no.3 through its officials assured the complainant to pay entire loss of said vehicle and he was allowed to repair the vehicle. As such vehicle was brought to Toyota Company which prepared estimate to the tune of Rs.7,86,041/- and documents in this regard were also submitted to op no.3. It is further averred that thereafter op no.3 insurance company has transferred a sum of Rs.4,43,000/- through NEFT on 23.07.2019 whereas op no.3 was bound to pay Rs.7,86,041/- to the complainant and in this manner a sum of Rs.3,43,041/- remained outstanding against op and all the ops are bound to payt he said amount to the complainant jointly and severally. That complainant visited the ops and requested them to pay the above said amount as per the estimate issued by the company but all in vain and ops after postponing the matter with one pretext or the others have finally refused to admit the claim of complainant and have caused unnecessary harassment and deficiency in service towards the complainant. Hence, this complaint seeking balance amount of Rs.3,43,041/- alongwith interest besides amount of Rs.1,00,000/- as compensation for harassment and also litigation expenses from the ops.
3. On notice, ops appeared. Ops no.1 and 2 filed written statement taking certain preliminary objections. It is submitted that it is wrong that answering ops are liable to pay the damages of the vehicle and if any damages are caused to the complainant, then op no.3 is liable for compensation because the vehicle is insured with op no.3. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua ops no.1 and 2 made.
4. Op no.3 also filed written statement taking certain preliminary objections that complaint is not maintainable in the present form and that complainant is estopped by his own act and conduct to file the present complaint as amount assessed by expert, IRDA approved Surveyor N.K. Gupta having experience of 15 years has been paid by answering op according to the term and conditions of policy which has been accepted by complainant in full and final settlement of claim with regard to damages of insured vehicle, hence complaint is liable to be dismissed. That there is no deficiency in service in any manner on the part of company or its officials and there are no allegations against Surveyor about submitting wrong and incorrect survey report against actual damages, repair etc. and complainant never approached to answering op about survey or report of surveyor and surveyor has not been impleaded as party in the present complaint. It is further submitted that estimate of Rs.10,45,962.91 has been referred by Surveyor (according to complainant estimate was/is Rs.7,86,041/-) who conducted survey in presence of complainant after loss before repair and after repair and has assessed the loss of Rs.4,43,774/- after deduction of salvage value, policy clause & depreciation (35% on metal parts), 50% on rubber parts and 15% on paint) according to policy, term and conditions, which are binding upon the complainant. The parts which were not found damaged/ effective were not allowed by surveyor, hence answering op has no liability more than the amount assessed by Surveyor. On merits, the pleas of preliminary objections are reiterated. It is also submitted that insurance of vehicle is admitted, but how answering op is concerned and connected with the battery, it is not understandable. The contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.3 made.
5. The complainant in evidence has tendered copies of documents Ex.C1 to Ex.C9 and photographs of vehicle Ex.C10 and Ex.C11.
6. On the other hand, ops no.1 and 2 have tendered affidavit of Sh. Bansidhar Narang Manager/ authorized person of op no.1 as Ex.R1 and affidavit of Sh. Kamod Ranjan Manager/ authorized person of op no.2 as Ex.R2. OP no.3 has tendered affidavit of Sh. V.K. Gumber, Sr. Divisional Manager as Ex.R3, affidavit of Sh. N.K. Gupta, Surveyor & Loss Assessor as Ex.R4 and copies of documents as Ex.R5 to Ex.R8.
7. We have heard learned counsel for the parties and have gone through the case file carefully.
8. Admittedly the vehicle in question of the complainant i.e. Toyota Fortuner was insured with the op no.3 for the period 26.01.2019 to 25.01.2020 which fact is also evident from insurance policy Ex.C4. There is also not dispute of the fact that during the period of policy said vehicle met with an incident when it was parked in the garage as the bonnet of the vehicle caught fire and according to the complainant same was badly damaged/ burnt. The matter was reported to the police by the complainant and a DDR of the said incident was registered, the copy of which is placed on file by complainant as Ex.C1 and the matter was also reported to the op no.3 insurance company. The op no.3 insurance company deputed the Surveyor Sh. N.K. Gupta who in his detailed report Ex.R6 prepared the estimate of repair as Rs.10,45,962.91 and assessed net loss of Rs.4,43,774/- and on the basis of report of the Surveyor, op no.3 insurance company paid the said amount of Rs.4,43,000/- to the complainant as full and final settlement of claim and complainant also gave his consent letter in this regard, the copy of which is placed on file by op no.3 as Ex.R5. The vehicle is in question is of the model of 2015 and therefore, Surveyor after considering depreciation value on metal parts and rubber parts etc. has assessed the net loss of Rs.4,43,774/- and complainant accepted the said amount vide his consent letter Ex.R5. Since the vehicle was of the model of 2015 therefore, in our considered view the Surveyor has rightly deducted depreciation value and has rightly assessed the net loss of Rs.4,43,774/- and amount of Rs.4,43,000 (i.e. in round figure) has already been paid by op no.3 to the complainant. The complainant was entitled to the said amount as assessed by the Surveyor as report of a Surveyor cannot be brushed aside unless and until there is any ambiguity in the same. In this regard complainant has also not alleged that report of the Surveyor is not correct and favorable to the op no.3 and we have also not found any ambiguity in the report of Surveyor as he has given his report on all angles. Moreover, complainant has not proved on record that Surveyor has wrongly assessed the net loss and has wrongly deducted the above said amount. There are also no specific allegations of complainant against ops no.1 and 2 and insurer of vehicle i.e. op no.3 has already paid the claim amount to the complainant and as such complaint against all the ops deserve dismissal.
9. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President
Dt. 30.10.2023. District Consumer Disputes
Redressal Commission, Sirsa.
