Haryana

Ambala

CC/249/2021

Kuldip Singh - Complainant(s)

Versus

Eakansh Wheels - Opp.Party(s)

Surjit Singh walia

02 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	249 of 2021
Date of Institution	:	16.08.2021
Date of decision	:	02.01.2024

 

Kuldip Singh age 60 years S/o S. Nihal Singh H. No.777 Gali No.6 Prem Nagar, Jagadhari, Distt. Yamuna Nagar.

……. Complainant

                                                Versus

1. Eakansh Wheels, Village Saha Ambala Cantt Through its Prop.
2. Future Generali Gen. India Insurance Solutions Co. Ltd. SCO-4-5 2nd Floor Sector 8-C Chandigarh Pin. 160009 Through its GM.

….….  Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:-     Shri Surjit Singh Walia, Advocate, counsel for the complainant.

                   Shri Udai Singh Chauhan, Advocate, counsel for OP No.1.

                   Shri Mohinder Bindal, Advocate, counsel for OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘OPs’), praying for issuance of following directions to pay the claim amount of Rs.71,076/- and compensation to the tune of Rs.50,000/- or any other directions which this Commission deems fit in the facts and circumstances of this case

2.             Brief facts of the case are that the complainant is the owner of one vehicle Maruti Suzuki Brezza ZD+Amt -Registration No. HR 02 AT 7863 and got insured from OP No.2 under Bumper to bumper policy No. 2019-V6722024-F33 valid for the period of three years i.e from 12-11-2019 to 11-11-2022. The said car met with an accident on 26-02-2021 and was handed over to OP No.1 on the same day. The surveyor of OP No.2 reached there and checked the damaged car. OP No.1 after repairing the vehicle handed over the bill. Since it was informed by the surveyor and the OP No.1 that the bill amount will be reimbursed as such, the complainant cleared the bill. Since the day of payment to OP No.1, complainant has been harassed by OP No.2 for reimbursement of the amount paid by him to OP No.1 for repair of the insured vehicle.  OP No.2 informed the complainant via email that the addressee No.2 will pay only for the Child part of Actuator accessory part and not for the whole part which is worth of approximately Rs.70,000/-. The complainant has already paid the total amount and has no relation with technical fault between OPs No.1 and 2. On the other hand, the complainant deserves for refund of total reimbursement of the paid bill of Rs.1,74,708/- to OP No.1. Complainant served a legal notice dated 24.04.2021, upon the OPs, but they did not reply the same and the OP No.2 refused to make the payment accept the child part. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that the present complaint is wholly misconceived, groundless and unsustainable in the eyes of law; the complainant is trying to mislead this Commission by concealing the true and material facts; this Commission has got no territorial jurisdiction to entertain and adjudicate this complaint; the complainant has no locus standi to initiate the present proceedings etc. On merits, it has been stated that the complainant brought his car for repair in the work shop on 27/02/2021. Since the car was fully insured with OP No.2, intimation was given by the complainant to the insurance company to assess the loss and to depute the surveyor to conduct the survey so that the repair work can be started. Surveyor Sh. Abhishek Sethi was appointed who assessed the loss and as per the instruction of the surveyor of the insurance company, OP No.1 prepared the rough estimate of the loss and the surveyor also approved the same and instructed OP No.1 to start the repair work. The surveyor also told OP No.1 that after completion of the repair work, he should be informed so that the final photograph can be taken and the parts exchanged can be destroyed so that they are incapable of being reused. The dispute pertaining to the parts in question were destroyed in front of the surveyor which is evident from the photographs wherein it can be clearly seen that the final inspection of work done was conducted in front of the surveyor deputed by OP No.2. After final photographs, the surveyor of OP No.2 had emailed to OP No.1 the bill as per the estimate approved. Moreover, the WhatsApp Chat of the surveyor also speaks volumes of the fact that the surveyor had asked OP No.1 on 18/03/2021 to send the bill of the vehicle in question. It is customary that the work is initiated only after the approval from the surveyor and the assent of the insurance company in such a case is implied. OP No.1 is nowhere concerned with any dispute that exists between the complainant and the OP No.2. Disbursement of the insurance claim is the prerogative of the OP No.2 wherein OP No.1 is not concerned at all. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with heavy and special cost.
4.           Upon notice, OP No.2 appeared and filed written version  wherein it raised preliminary objections to the effect that the present complaint is not maintainable since the claim in question of the complainant has already been settled and the claim amount of Rs.1,03,632/- as assessed by the surveyor and approved by the competent authority has already been disbursed to the complainant on 29-06-2021 as full and final settlement to his entire claim; this complaint is not maintainable ; the complainant has not approached this Commission with clean hands as he has suppressed the material facts; the present complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit; the present complaint has been filed without any cause of action. On merits, it has been stated that the claim of the complainant was duly entertained in due course and an independent IRDA approved insurance surveyor & Loss assessor Sh. Abhishek Sethi was deputed to give his fact finding report and to assess the loss. After having the estimate in detail from the authorized workshop M/s Eakansh Wheel where the said car was parked by the insured for repair of his own sweet will, the said surveyor inspected the said car minutely and had the photographs of the car as proof of loss as per norms. After giving consideration to the loss associated with the incident in question and as per insurance byelaws and in consultation with the said workshop, he assessed the payable loss to the tune of Rs.1,03,632/-. At the same time, the said surveyor appraised the workshop and the complainant who was supervising the repair of his said car about the limitations of the parts and repairs to be allowed as per insurance byelaws. It was made clear to the workshop and the complainant that only reservoir tank as a child part of the Actuator Assembly will be allowed being only damaged with remaining assembly intact and in order which is available with the Maruti company as child part vide circular no. M-Q-CM-57 dated 21.08.2020 and requested them to replace by changing the damaged child part only. But with some ulterior motive and manipulations on the part of both the complainant and workshop, the entire Actuator assembly was replaced without any cause of reason thus not payable under any claim. However, since the insurance policy availed by the complainant was zero Depreciation policy so no depreciation was applied upon any part or labour etc. and the same amount which was assessed by the surveyor was paid to the complainant except the excess amount of Rs.1000/- (as compulsory deductible as per policy clause) and Rs 800/- (as Salvage) and also amount associated with the said part since the cost of the said child part bearing Maruti part no. 8708 required to be replaced was only Rs. 973/- (Including 28% GST) whereas the cost of the complete assembly was about Rs.71,500/- (Including 28% GST) which cannot be allowed under the insurance byelaws and hence was denied. Surveyor has approved only the damaged child part (amounting only Rs. 973/-) of the actuator assembly however repairer workshop had replaced the whole actuator assembly along with the child part. The insurance company is bound to perform strictly within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws according to which a certain procedure has been specified and every claim under their respective policy is payable as per the assessment made by the IRDA licensed surveyor without any discrimination. It is the basic principle of insurance and assessment that the report of surveyor is based upon the estimate/supplementary estimate of repair submitted by the insured/workshop to fix the liability of the insurer and the insured so that no manipulation or exaggeration of loss can be initiated from any side and the parts subject to wear and tear with usage and consumables are also not to be the part of any claim. The complainant is very much aware about the scope and limitations of OP No.2 while receiving the compensation amount and was rather apprised about complete details of assessment. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with cost.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-A, alongwith documents as Annexure C-1 to C-5 and closed the evidence on behalf of the complainant. Learned counsel for OP No.1 suffered a statement on 25.10.2023 that his written version be read in evidence of OP No.1 and closed the evidence on behalf of OP No.1.  Learned counsel for OP No.2 tendered affidavit of Abhishek Sethi, Surveyor and Loss Assessor, on behalf of OP No.2- Future Generali India Insurance Co. Ltd. and affidavit of Nitin Tawre, Senior Executive-Legal of OP No.3 i.e Future Generali India Insurance company Limited, having office at Unit No.801 & 802, Tower C, 247 Embassy Park, LBS Marg, Vikhroli (West), Mumbai-400083 as Annexure OP-A and OP-B respectively alongwith Annexure OP-1 to OP-3 and closed the evidence on behalf of the OP No.2.
6.           Learned counsel for the complainant submitted that by not making payment of part amount of Rs.71,076/- out of Rs.1,74,708/-  despite the fact the vehicle in question was insured under Zero Depreciation policy, OPs are deficient in providing service. 
7.           On the other hand, learned counsel for OP No.1 vehemently argued that this complaint is not only liable to be dismissed on the ground of territorial jurisdiction but on merits also because as per the instruction of the surveyor of the insurance company, OP No.1 prepared the rough estimate of the loss and the surveyor also approved the same and instructed OP No.1 to start the repair work. He further submitted that OP No.1 vide email dated 30.03.2021, Annexure C-3 has specifically informed the OP No.2/surveyor and Loss Assessor that there is no child part of AGS Actuator Assembly provided by Maruti Suzuki to repair and as such it has replaced the complete assembly of the vehicle in question.  Moreover, disbursement of the insurance claim is the prerogative of the OP No.2 wherein OP No.1 is not concerned at all.
8.           Learned counsel for OP No.2 submitted that the claim of the complainant was duly entertained in due course and an independent IRDA approved insurance surveyor & Loss assessor Sh. Abhishek Sethi was deputed to give his fact finding report and to assess the loss. He further submitted that after having the estimate in detail from the authorized workshop M/s Eakansh Wheel where the said car was parked by the insured for repair of his own sweet will, the said surveyor inspected the said car minutely and had the photographs of the car as proof of loss as per norms. He further submitted that after giving consideration to the loss associated with the incident in question and as per insurance byelaws and in consultation with the said workshop, he assessed the payable loss to the tune of Rs.1,03,632/-. He further submitted that it was made clear to the workshop and the complainant that only reservoir tank as a child part of the Actuator Assembly will be allowed being only damaged with remaining assembly intact and in order which is available with the Maruti company as child part vide circular no. M-Q-CM-57 dated 21.08.2020 and requested them to replace by changing the damaged child part only. He further submitted that with some ulterior motive and manipulations on the part of both the complainant and workshop, the entire Actuator assembly was replaced without any cause of reason thus not payable under any claim.
9.           The first question that falls for consideration is as to whether this Commission has territorial jurisdiction to entertain and decide this complaint? It may be stated here that since OP No.1 is admittedly running his business from Ambala, from whom the vehicle in question was got repaired by the complainant, therefore, a part of cause of action accrued to him within the territory of this Commission.  Under these circumstances, this Commission is vested with territorial jurisdiction to decide this complaint.  Objection taken by the OP No.1 in this regard is rejected.
10.           It may be stated here that OP No.2 has taken a specific plea that it was made clear to the workshop and the complainant that only reservoir tank as a child part of the Actuator Assembly will be allowed being only damaged with remaining assembly intact and in order which is available with the Maruti company  as child part vide circular no. M-Q-CM-57 dated 21.08.2020 and requested them to replace by changing the damaged child part only. Whereas the stand of the OP No.1 is that vide email dated 30.03.2021, Annexure C-3, OP No.1 has specifically informed OP No.2/Surveyor and Loss Assessor that  there is no child part of AGS Actuator Assembly provide by Maruti to repair and as such, it has replaced the complete assembly of the vehicle in question.  Thus, once the manufacturer and dealer is not in the possession of child part of AGS Actual Assembly and at the same time, the vehicle in question was  admittedly insured under Zero Depreciation insurance policy, OP No.2 was legally bound to pay all the expenses incurred on the said insured accidental vehicle, after deducting nominal charges of Rs.1000/- referred to by OP No.2 itself.  The complainant in no manner can be made scapegoat in the matter.  Under these circumstances, it is held that OP No.2 is liable to make the remaining amount of Rs.71,076/- towards AGS Actuator Assembly. 
11.           Since no deficiency in providing service has been proved on the part of OP No.1, as such, complaint filed by the complainant against OP No.1 is liable to be dismissed.
12.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and allow the same against OP No.2 and direct it, in the following manner:-
    1. To reimburse/refund to the complainant, the amount of Rs.71,076/- alongwith interest @6% p.a. from the date of filing of this complaint, till its realization.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/-, as litigation expenses.           

                   The OP No.2 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.2 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 02.01.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President