DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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M/s Goverdhan Township Private Limited Company, through its Director Mrs. Sanyukta Mittal, W/o Sh. M.K. Mittal, having office at SCO No. 40-41, Sector 17-A, Chandigarh.

              ---Complainant

Vs.

1.   HDFC ERGO General Insurance Co. Limited, SCO No. 124-125, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh, through its Branch Manager.

2.   HDFC ERGO General Insurance Co. Limited, Corporate Office, 6^th Floor, Leela Business Park, Andheri Kurla Road, Andheri East, Mumbai – 400059, through its CEO.

---- Opposite Parties

BEFORE:   MRS.MADHU MUTNEJA            PRESIDING MEMBER

SH. JASWINDER SINGH SIDHU    MEMBER

Argued By:    Sh. B.L. Sharma, Counsel for Complainant.

Sh. Rajesh Sharma, Counsel for OPs.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.          The Complainant company has filed the present complaint through its Director Mrs.Sanyukta Mittal (Resolution Annexure C-1). The Complainant is engaged in the business of construction. Mrs.Sanyukta Mittal had purchased a private car (Skoda Laura) in the name of the Company for her personal use. The vehicle was insured with the Opposite Parties. A premium of Rs.14,467/- was paid for the period 09.02.2011 to 08.02.2012 (Cover note and Insurance Policy at Annexure C-2 & C-3). Unfortunately, the vehicle met with an accident on the intervening night of 08/09.10.2011. The Opposite Party No.1 was informed immediately and a Surveyor Mr. Mohit was deputed for assessing the loss. DDR No. 12 was lodged with the PS Sector 5, Panchkula on 18.10.2011 and all documents demanded by the Surveyor were duly supplied (DDR at Annexure C-4 and translated copy at Annexure C-5). The vehicle was taken to the workshop of M/s Apex Motors 45, Industrial Area, Phase-II, Chandigarh for repair which raised a repair bill for Rs.3,35,241/-. This amount was paid by the Complainant. Invoices of bills and their copies are at Annexure C-6 to C-9 and C-6/A to C-9/A. Thereafter, the Complainant contacted the Opposite Parties a number of times for settlement of claim. Eventually, partial payment of Rs.73,519.51/- was received on 03.07.2012. This amount was received after a period of 09 months from the date of claim. This delay according to the Complainant is violation of Regulation 9(2) and Regulation 9(5) of Protection of Policyholders Interest Regulations, 2002, extracts of which have been reproduced. The Complainant has alleged that the Opposite Parties have paid the amount of Rs.73,519.51/- without obtaining the consent of the Complainant and despite representations has not paid the balance amount. The Complainant has thus filed this complaint with a prayer for payment of the balance amount of Rs.2,61,721.49/-, besides compensation, interest and costs of litigation.

2.          Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.          Opposite Parties in their joint reply have taken the preliminary objection that the Complainant has already accepted the cheque towards the full & final settlement of claim as assessed by the Surveyor and hence the present complaint is an abuse of the process of law.

          On merits, Opposite Parties have pleaded that the vehicle has been purchased for commercial purpose as there is no documentary proof that the vehicle is being used for personal use by the Director. Opposite Parties have stated that upon lodging of claim, a Surveyor was appointed who after inspecting the vehicle and going through the terms and conditions of the policy gave his report dated 07.04.2012 according to which Rs.73,520/- was payable (Surveyor Report Annexure R-2). Accordingly, the Company prepared the cheque in favour of the Complainant company for a sum of Rs.73,519/- vide Cheque dated 23.05.2012 which was presented and encashed by the Complainant (Annexure R-3). Opposite Parties have also stated that as the surveyor report has been prepared in consonance with the terms and conditions of the policy it is valid and proper. Also encashing the cheque by the Complainant amounts to acceptance of the amount as full settlement. Denying all other allegations the Opposite Parties have prayed for dismissal of the complaint.   

4.          The Complainant also filed rejoinder wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties especially with regard to maintainability and Complainant not being a consumer have been controverted. The Complainant has alleged that the surveyor report is biased. It is falsely mentioned that the scanning report of the vehicle was not provided either by the Complainant or the repairer to the surveyor and Air Bags Unit was not shown to him inspite of repeated requests. The Opposite Parties have not placed on record any communication to this effect. There was no estoppel in the way of the Surveyor in seeing the Air Bags Unit. The Surveyor has not allowed the amount of Module Unit (Airbags) for which the Complainant has paid Rs.1,29,000/-. The other contentions of the Opposite Parties have been denied. It has also been stated that the terms & conditions of the policy were never supplied to the Complainant. The Complainant has not accepted the money in full and final satisfaction nor any consent letter or discharge voucher has been signed by the Complainant. The Complainant has therefore prayed for relief claimed may be granted in the interest of justice.

5.          Parties were permitted to place their respective evidence on record, in support of their contentions.

6.          We have heard the learned counsel for the Parties and have perused the record along with the written arguments filed on behalf of the Complainant. 

7.          The grievance of the Complainant with regard to payment of a lesser amount has been replied by the Opposite Parties by stating that the amount as per the Surveyor’s report has been allowed. A copy of the Surveyor’s report dated 07.04.2012 is on record at Annexure R-2. As per this report, Rs.73,520/- have been allowed. In the remarks column the Surveyor has written as under:- 

“Remarks:-After the repeated requests the insured/ Repairer has not provided the scanning report of the vehicle and neither has shown the Air Bags Unit. Hence the same has not been considered while making the assessment.”

8.          It is evident from the above remarks that the allegations of the Complainant that it has not been paid for the Module Unit (Airbags) is correct. Annexure C-8 dated 27.03.2012 (true typed copy of which is at Annexure C-8/A) is a bill for Module Unit (Airbags). A sum of Rs.1,29,000/- has been spent by the Complainant but reimbursement for this item has not been made by the Opposite Parties. So the grievance of the Complainant for being paid a lesser amount is justified as the Surveyor has himself stated that this amount has not been considered due to the remarks recorded by the Surveyor, reproduced above. In our opinion, the Opposite Parties should have examined and considered the relevant bill at the time of settlement of claim. Relevant documents, if any, could have been requisitioned from the Complainant. It is obvious that the Opposite Parties need to make payment on this account to the Complainant in addition to the amount already paid, as per the policy conditions after providing for depreciation if need be as the bill shows that expenditure has been incurred. 

9.          The second grievance of the Complainant is that the amount has been paid after 09 months. As per Regulation 9(2) and Regulation (5) of Protection of Policyholders Interest Regulations, 2002, the Complainant has claimed that the insurer/ surveyor shall inform the insured in writing about the delay and cause of delay in assessment of claim. On receipt of surveyor report the insured shall be offered settlement of claim within 30 days. The accident has occurred on the intervening night of 08/09.10.2011. The Opposite Parties have been informed immediately and a Surveyor has been appointed. The Surveyor has given his report dated 07.04.2012 (Annexure R-2). The Opposite Parties have made payment to the Complainant vide Cheque dated 23.05.2012 (Annexure R-3), which has been received by the Complainant on 03.07.2012. Hence, delay in settlement of the claim is evident and Complainant needs to be compensated for the harassment. Full settlement of claim has still not been made as per Surveyor’s Report in terms of remarks by the Surveyor.

10.        In view of the above discussion, the present complaint is allowed and, keeping in view the facts and circumstances of the present case, the opposite parties are directed as under :-

             i.        to make payment for the Module Unit (Airbags) mentioned in bill at Annexure C-9, C-9/A to the Complainant in addition to the amount already paid, as per the policy conditions after providing for depreciation if need be. (necessary documents, if any, be provided by the Complainant to the Opposite Parties within one week). 

            ii.        to pay Rs.10,000/- as compensation for mental agony, harassment and causing delay of 09 months in settling the claim of the Complainant;

          iii.        to pay Rs.5,000/- as costs of litigation.

11.          This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the decreed amount shall carry interest @9% per annum from the date of this order till actual payment, besides payment of litigation costs.

12.        The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

28^th June, 2013                            

Sd/-  

(MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER