DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.632 of 2015

                                                     Date of institution:  23.11.2015                                                 Date of decision   :  11.04.2018

Gurinder Singh son of Kuldeep Singh, resident of village Badwali, District Roopnagar.

…….Complainant

Vs

1.     HDFC ERGO General Insurance Company Ltd. at SCO No.124-125, First Floor, Sector 8-C, Madhya Marg, Chandigarh.

2.     HDFC Bank Ltd. through its Manager/Authorised Agent, Branch Chunni Kalan, District Fatehgarh Sahib.

3.     CM Auto Sales Pvt. Ltd., Village Khanpur, Kharar-Morinda Road, NH 95, District Mohali (85560-19802)

4.     Mr. Manoj Kumar Saxena, r/o H.No.222/3, Adarsh Nagar Colony, Pipliwala Town, Manimajra, Chandigarh.

                                                        ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:    Ms. Pushpa Salaria, counsel for complainant.

                Shri Pardeep Kumar counsel for OP No.1.

                Shri Gagandeep Singh Thind, counsel for OP No.2

                OP No.3 ex-parte.

                OP No.4 ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant after purchase of a brand new Swift Car from OP No.3 got the same insured with OP No.1, renowned and prestigious general insurance company regulating its business nationwide through its branches. OP No.2 bank is alleged to be a sister concern of OP No.1, but the same deals with banking and other financial transactions. OP No.3 is authorised dealer and acts as an agent of OP No.1 and 2. OP No.4 is surveyor of OP No.1 who made assessment of loss of damaged vehicle of complainant. The vehicle was insured through policy No.2311200936568550. On 18.05.2015 the said vehicle met with an accident resulting in severe multiple bodily injuries to victim namely Sudhir. DDR regarding said occurrence was recorded by police. Intimation of this occurrence was given by complainant to officials of OP No.1. Damaged vehicle in question was taken in possession by officials of concerned police station. Amicable solution for redressal of grievance of the victim of accident was tried, but same could not materialize. FIR No.66 dated 16.06.2015 was got registered by victim with police. Complainant got the vehicle released on spurdari from court on 30.07.2015 and thereafter the same was entrusted to OP No.3 on 06.08.2015 for repairs. Though complainant was under bonafide impression that repair of the vehicle will be undertaken, but he was astonished to receive letter dated 21.09.2015 from OP No.4, who raised number of queries as to the exact date of occurrence and reasons of delay in registering FIR etc. These queries were put by OP No.4 without any reason. Delay in processing of claim was on account of explanation submitted to OP No.4 vide reply dated 24.09.2015. OP No.3 assessed the vehicle to be a case of total loss. OP No.3 himself was interested to purchase/retain the vehicle at throw away price and that is why he exerted pressure on complainant to accept the meager amount from OP No.1. The vehicle in question was hypothecated with bank due to which complainant had been paying equated monthly installments. Inspite of repairing the vehicle, OP No.3 got damages processed from OP No.1 for causing further harassment to complainant. It is claimed that OPs deliberately harassing the complainant and as such this complaint for directing OPs to grant compensation to the extent of Rs.6,22,200/- as per estimate prepared by OP No.3. Interest @ 24% per annum from the date of accident till realisation even is claimed.

2.             OP No.1 filed reply by claiming as if complainant has no cause of action for invoking the jurisdiction of this Forum; action of complainant with respect to any damage claim is pre mature, more so when the complaint has been filed by misleading after exploring the possibility of having some pecuniary advantage by abusing the process of law. Complainant is alleged to have not approached this Forum with clean hands. Admittedly OP No.1 is in the business of general insurance and OP No.4 is an independent IRDA approved surveyor appointed by OP No.1 for conducting survey of damaged vehicle of the complainant. It is denied that OP No.3 is an agent of OP No.1. Vehicle in question admittedly was insured with OP No.1 for period from 03.12.2014 to 02.12.2015. Date of giving intimation of accident to OP No.1 has intentionally not been mentioned. Surveyor appointed by OP No.1 sought clarification through letter dated 21.09.2015 is an admitted fact by OP No.1. Complainant is entitled for settlement of claim as per terms and conditions of the insurance policy. OP No.1 has already intimated the complainant vide letter dated 03.12.2015 that as per policy terms and conditions, it is settling the claim on constructive total loss basis by keeping in view the aggregate cost of retrieval or repair of the vehicle, but subject to terms and conditions of the policy. As per those terms and conditions of the policy, the insured vehicle will be treated as constructive total loss, if the aggregate cost of retrievable or repair of the vehicle subject to terms and conditions of the policy is exceeding 75% of the insured value of the vehicle. It is claimed by OP No.1 that it will make the payment of liability amount i.e. IDV less salvage value. During investigation it was found that vehicle in question was released by court on spurdari, due to which the same cannot be sold. Request was made to complainant to get the vehicle freed from spurdari from Hon’ble Court so that the same may be sold and claim settled as early as possible. There is no delay in settlement of complainant’s claim and as such allegations of deficiency in service on part of OP No.1 denied.

3.             In reply filed by OP No.2 it is claimed that complaint has been filed for getting undue enrichment. Role attributed to OP No.2 is to the effect that complainant got auto loan from it. In fact complainant does not want to pay installments to OP No.2 and that is why OP No.2 has been made a party to this complaint. Complaint alleged to be based on false, frivolous and vexatious allegations. It is claimed that complainant approached OP No.2 for contracting auto loan for purchase of Maruti Swift VDI vehicle and he went through the terms and conditions of loan agreement. Loan agreement was duly signed by complainant. Thereafter loan was disbursed on basis of agreement dated 10.12.2014. Loan of Rs.5,99,500/- was availed by complainant. That loan was re-payable in 60 monthly installments of Rs.12,886/- each. OP No.2 has no role in the controversy in question. It is claimed that OP No.2 is not at all a sister concern of OP No.1, but OP No.2 holds independent and specific identity than that of OP No.1. Even allegations regarding OP No.3 as an agent of OP No.2 denied. Rather it is claimed that OP No.3 is authorised dealer of Maruti Cars and not is an agent of OP No.2. Vehicle in question was hypothecated with OP No.2 after contracting loan. First installment of the loan was payable on 07.01.2015, but last was payable on 07.12.2019.

4.             OP No.3 filed separate reply by claiming inter alia as if complaint is not maintainable in view of involvement of complicated questions of law and facts requiring elaborate evidence. This Forum cannot decide the complicated questions and even complainant is alleged to be having no locus standi or cause of action to file this complaint. Complainant purchased Maruti vehicle in question from OP No.3 and thereafter got the same insured from OP No.1. That vehicle met with an accident, due to which criminal case was registered against complainant. Complainant brought the accidental vehicle in question to the workshop of OP No.3 for repair and service on 06.08.2015. Officials of OP No.3 after getting directions from complainant prepared the estimate of service and repair for the accidental vehicle on 11.08.2015. Complainant was informed at the time of calculating the estimate of repair of accidental vehicle that he is bound to pay estimation charges @ 5% of the estimated value of repair. Complainant pursued the matter with OP No.1 and 4, but OP No. 3 never got any instructions for service and repair of the accidental vehicle either from complainant or from the insurance company. Admittedly the accidental vehicle of the complainant is lying parked in the premises of OP No.3 without any work being done because instructions for repair never imparted by complainant or the insurer. That vehicle is occupying the space in the workshop of OP No.3 and as such complainant is liable to pay the parking charges. Letter dated 22.12.2015 even was issued. OP No.3 deals with sales and service of Maruti vehicles and does not work as an insurance agent at all. Complainant opted for getting insurance of his vehicle done at his own free will. OP No.3 never remained interested for getting the insurance of vehicle done from a particular insurance company. Certainly for plying the vehicle on the road, valid insurance of the same is mandatory. After complainant brought the accidental/damaged vehicle to OP No.3 for service and repair, officials of OP No.3 called upon complainant for relevant documents and it was after completion of formalities that complainant was informed by officials of OP No.3 for getting the estimate of loss prepared first and thereafter submit the same with the insurance company. That estimate was to be got assessed from the surveyor. It was only after approval of the insurance company that repairs of the accidental vehicle could have been started on instructions. All these things were explained to complainant at the time of receipt of damaged vehicle by OP No.3. Thereafter OP No.3 did not get any response from the complainant or insurer. Complaint alleged to be filed on distorted facts. OP No.3 has no interest in getting the vehicle of the complainant parked at its workshop. However, due to some issues between the complainant and insurance company, OP No.3 is unable to carry out repairs.

5.             OP No.4 is exparte in this case.

6.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to C-3 and thereafter his counsel closed evidence. Counsel for OP No.3 tendered affidavit Ex.OP-3/A of Shri Ramesh Chand Thakur, HR Manager of OP No.3 alongwith documents Ex.OP-3/1 and Ex.OP-3/2 and thereafter closed evidence.  Counsel for OP No.2 tendered affidavit Ex.OP-2/1 of Shri Rajesh Bhatia, Legal Manager of OP No.2 alongwith documents Ex.OP-2/2 to Ex.OP-2/4 and thereafter closed evidence.  Counsel for OP No.1 tendered affidavit Ex.OP-1/1 of Shri Pankaj Kumar, Legal Manager of OP No.1; affidavit of Manoj Kumar Saxena Surveyor and Loss Assessor Ex.OP-1/2 alongwith documents Ex.OP-1 to Ex.OP-4 and thereafter closed evidence. 

7.             Written arguments filed by complainant as well as by each of OP No.1 to 3. Oral arguments of appearing counsel for parties heard and records gone through.

8.             It may be mentioned here that none turned up for OP No.3 atleast on 7 days continuously and as such OP No.3 was proceeded against ex-parte. Further due to consent expressed by appearing counsel for parties,  assessment of salvage valuation of the vehicle lying parked in premises of OP NO.3 was allowed vide order dated 16.03.2017. Thereafter affidavit of Shri Pankaj Kumar, Legal Manager alongwith screen shot of the bid was placed on record. Vide recorded statement dated 24.01.2018 of counsel for complainant, she conveyed that no more report of surveyor is required because report of surveyor is already on record. Counsel for complainant claimed that she has no objection in acceptance of application for placing on record affidavit of Shri Pankaj Kumar, Legal Manager and that is why the same retained on record.

9.             After going through the complaint and written statement of OP No.1 as well as affidavit of complainant Ex.CW-1/1, copy of terms and conditions of the insurance policy Ex.C-1, copy of FIR Ex.C-2 and letter Ex.C-3, written by complainant to OP No.4 (appointed surveyor by OP No.1 for assessing the loss of the damaged vehicle in question); affidavit Ex.OP-1/2 of OP No.4; report Ex.OP-2 of assessment of loss of damaged vehicle submitted by OP No.4 with OP No.1; certificate of insurance –cum-policy schedule Ex.OP-3 and letter Ex.OP-4 dated 03.12.2015 sent by OP No.1 to complainant, it is made out unequivocally that the vehicle in question  purchased by complainant met with an accident due to which insurance claim was lodged by him with OP No.1 and OP No.1 through letter Ex.OP-4 agreed to make payment of the liability amount i.e. IDV less salvage value. Certainly as and when insurance claim is allowed and the vehicle insured, then the sum for which the vehicle is insured always specified in the certificate-cum-policy schedule. After going through that certificate of insurance-cum-policy schedule Ex.OP-3/3, it is made out that IDV of the vehicle in question is Rs.6,09,202/-. Being so, submissions advanced by counsel for OP No.1 has force that claim for insurance  for total loss to the vehicle in accident could not have been passed or settled beyond the IDV limit of Rs.6,02,902/-. Contract of insurance was arrived at by complainant with OP No.1 and that is why certificate Ex.OP-3 was issued for making known complainant the worth of vehicle for which same insured. That worth is of Rs.6,02,902/- and as such insurance claim in excess of this IDV cannot be allowed, even if the complainant may have got done the assessment of the loss of amount of Rs.6,20,000/- or more than that.

10.           After going through the policy certificate Ex.OP-3, it is made out that IDV of the vehicle in question is Rs.6,02,902/- and if that be the position, then on payment of this amount of Rs.6,02,902/- in respect of accidental vehicle, salvage will belong to insurer i.e. OP No.1, However, the vehicle in question is lying parked with OP No.3 is the fact acknowledged by OP No.3. Dispute between complainant and OP No.3 remain regarding charging of amount of parking charges because space by the damaged vehicle in the workshop of OP No.3  was bound to be occupied.  That dispute stands on independent footing than that of claim of insurance put forth by complainant in this complaint and as such it is appropriate to leave the matter regarding recovery of parking charges, if any, from complainant by OP No.3 to be got decided in separate proceedings. Complainant will have right to file separate complaint in that respect against OP No.3.

11.           As the salvage in question cannot be returned by complainant to OP No.1 due to the vehicle lying parked with OP No.3, who is claiming lien over it regarding parking charges and as such it will be fit and appropriate to allow insurance claim to the extent of IDV minus salvage value. That salvage value of the vehicle in question assessed through report dated 25.04.2017 at Rs.2,25,000/- to the maximum. That un-exhibited report relied upon by counsel for OP No.1, However, this report dated 25.04.2017 make mention of receipt of offers from the interested buyers only. As the said report  do not show that actual amount of Rs.2,25,000/- of the salvage will be received and as such it is fit and appropriate to accept the lesser offer than that of Rs.2,25,000/- as mentioned in this report dated 25.04.2017. That lesser value of the salvage is Rs.2,20,000/- and as such after deducting this amount from IDV of Rs.6,02,902/-, it is fit and appropriate to direct OP No.1 to pay amount of Rs.3,82,902/- to complainant in lieu of alleged claim qua damaged vehicle in question, but subject of course to preferential rights of bank, with whom the vehicle in question is lying hypothecated.

12.           During course of arguments, it is not denied by counsel for complainant that vehicle in question lying hypothecated with OP No.1, the bank who advanced loan. Though it is sought to be contended that OP No.2 is sister concern of OP No.1, but that submission of counsel for complainant has no force because contents of affidavit Ex.OP-1/2 of Shri Rajesh Bhatia Legal Manager of OP No.2, establishes that bank has an independent identity than that of identity of insurer. Contents of that affidavit certainly are correct because after going through agreement for auto loan Ex.OP-2/4, it is made out that complainant contracted loan for purchase of vehicle in question from OP No.2 subject to terms and conditions mentioned in this loan agreement alongwith annexures. Loan of amount of Rs.5,99,500/- was contracted by complainant from OP No.2 by submitting application, copy of which is annexed as Ex.OP-2/4. Same application bear signature of complainant. Complainant even executed demand promissory note dated 10.12.2014 in favour of OP No.2, bank, regarding the contracted loan amount of Rs.5,99,500/- and thereafter post dated cheque and acknowledgment letter was issued by bank on 10.12.2014 under its signatures. These are the facts borne from record of the documents produced on record by OP No.2 in course of evidence. Certainly bank is not shown to be a subsidiary or sister concern of insurer and as such OP No.2 has an independent identity than that of OP No.1. Bank has a general lien over the accounts or the sureties of its customers, in respect of contracted loans in view of Section 171 of Indian Contract Act and as such certainly OP No.2 after getting the vehicle in question hypothecated with it,has preferential claim over the claimable insurance amount of Rs.3,82,902/- as well as the salvage of the damaged vehicle in question. In such circumstances, it will be fit and appropriate to direct OP No.1 to deposit the amount of Rs.3,82,902/- in this Forum within 30 days from date of receipt of copy of this order. OP No.2 will have lien/preferential claim over this amount than that of the complainant of the case. Even though salvage of the vehicle in question will belong to complainant because of deduction of salvage value, but right of OP No.2 on this salvage for recovery purposes will be on preferential basis. OP No.4 just was an independent surveyor appointed by OP No.1 and as such he has no role to play virtually in the matter of payment of insurance claim. If OP No.4 sought for certain clarifications/documents from complainant before preparing the survey report, then it did right thing by giving due opportunity of hearing to complainant before preparing his report. So no delay in preparation of report can be attributed to OP No.4 just because he sought for certain clarifications or documents from complainant.

13.           As through letter Ex.OP-4 dated 03.12.2015 OP No.1 offered to pay the IDV value to complainant and as such virtually insurance claim was treated to be settled by OP No.1 even before putting in appearance before this Forum. Present complaint was filed on 23.11.2015 and the next date of hearing fixed as 28.01.2016 in this case was for notice to OP No.1 and other OPs. However, claim was settled before that through letter Ex.OP-4 by OP No.1 and as such deficiency in service on part of OP No.1 cannot be inferred. Being so, it is fit and appropriate not to saddle OP No.1 with any cost or compensation amount. Had complainant accepted that offer, after knowing contents of letter Ex.OP-4 addressed to him, then certainly he need not have pursued this complaint any more. However, complainant chose to pursue the complaint despite offer of settlement through Ex.OP-4, and as such fault lies with complainant in dragging himself to this litigation for long. So no amount of compensation and litigation expenses allowed.

14.           As a sequel of above discussion, complaint allowed in terms that OP No.1 will pay an amount of Rs.3,82,902/- in lieu of the lodged claim qua insurance of damaged vehicle in question. OP No.2 bank will have preferential right/lien over this amount in satisfaction of its claim regarding hypothecation of the damaged vehicle in question. OP No.2 bank will send copy of the statement of due amount to this Forum within 30 days from date of receipt of copy of the order and OP No.1 will deposit the above referred amount of Rs.3,82,902/- in this Forum within 30 days from date of receipt of copy of order. OP No.2 will have lien/preferential claim over this amount of Rs.3,82,902/- than that of the complainant of the case. In other words after satisfying the claim regarding loan amount of OP No.2 with respect to the vehicle in question, the balance will be disbursed to the complainant. Salvage of the vehicle in question will belong to complainant, but right of OP No.2 over recovery will remain even on this value belonging to complainant. However, matter regarding recovery of parking charges, if any payable by complainant to OP No.3, will remain between complainant and OP No.3 only. In the event of any dispute regarding parking charges amount, separate complaint may be filed by complainant against OP No.3. However, complaint against OP No.4 is dismissed.  No order as to compensation and cost in view of peculiar circumstances of the case. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record.

Announced

April 11, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member