Haryana

Karnal

CC/406/2019

Usha Rani - Complainant(s)

Versus

HDFC ERGO General Insurance - Opp.Party(s)

Kanwar Kailash Chauhan

10 Sep 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

Complaint no.406 of 2019

                                                                                           Date of instt. 11.07.2019

                                                                                           Date of Decision 10.09.2021

 

Usha Rani wife of Bhoop Singh resident of House no.413, Rajput Mohalla VPO Katlaheri, Tehsil Gharaudna, District Karnal.

 

        …….Complainant       

                                        Versus

 

HDFC ERGO General Insurance, having its branch office at Sector-12, City Centre, Karnal through its Branch Manager.

 

…..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

 

 Present: Sh. Kanwar Kailash Chauhan counsel for complainant.

               Sh. Sanjeev Vohra counsel for opposite party.

 

                (Jaswant Singh President)

ORDER:                    

 

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant got insured his Skoda (Laura) car bearing registration no.HR-06Q-8443 from the OP, vide policy no.2311202096067000004, valid from 08.02.2018 to 07.02.2019 and the insured’s declared value of the vehicle was Rs.6,20,000/-. Unfortunately, on 01.02.2019 the said vehicle met with an accident and become totally damaged. After that said vehicle was shifted to Shivalik Motors, Karnal. The complainant immediately sent the intimation to OP. After receiving the intimation, OP appointed authorized surveyor, Shri Amit Maniktala to survey the accidental vehicle. Thereafter, complainant lodged his claim with OP for grant of compensation amount of his total loss vehicle. OP got signed certain blank and printed papers from the complainant and assured that the insured amount of said vehicle would be paid to the complainant shortly but OP failed to pay the same. Complainant received a letter dated 15.03.2019 in which it has been stated that the company may at its own option repair reinstate or replace the vehicle insured or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not exceed:-

a)     For Total loss/constructive total loss of vehicle the insured declared value (IDV) of the vehicle (including accessories thereon) as specified in the schedule less the value of wreck.

b)     For partial losses i.e. losses other than total loss/constructive Total loss of the vehicle actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limit specified.

2.             Further, in the said letter, OP directed the complainant to send her consent for the replacement of the vehicle. On receipt of the said letter, complainant replied the same by mentioning that she is not interested to take another vehicle in place of damaged vehicle and that she wants to take Insured Declared Value (IDV) of her vehicle after making deduction of statutory depreciation. Said letter was received by the OP but nothing has been done, infact, OP forcibly wants to give another vehicle in place of damaged vehicle. Thereafter, complainant went to the office of OP, so many times and requested the OP for making payment of compensation but OP postponed the matter on one pretext or the other and lastly flatly refused to pay any compensation. In this way, there was deficiency in service on the part of the OP. Hence, complainant filed the present complaint.

3.             On notice, OP appeared and filed written version, raising preliminary objections with regard to maintainability and concealment of true and material facts. On merits, it is pleaded that the alleged incident was intimated to the OP on 02.02.2019. OP appointed an IRDA licensed Surveyor as mandated under section 64UM of the Insurance Act, 1938 in order to assess the loss and damages. The surveyor submitted his report and as per the surveyor assessment, the vehicle was major loss, therefore, it was observed by the surveyor that the replacement of the vehicle is the best mode of claim settlement. Thus, taking into consideration the report of the surveyor and going by the agreed terms and condition of the policy, consent for replacement of the vehicle was sought from the insured. The OP, vide letter dated 15.03.2019, 20.03.2019 and 03.04.2019 have been requesting the complainant for her consent for replacement of vehicle but complainant failed to give her consent and thus, the claim has not been processed. Thus, complaint is premature. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of complaint.

4.             The parties then led their respective evidence.

5.             Complainant tendered into evidence her affidavit Ex.CW1/A, letter dated 15.03.2019 Ex.C1, letter dated 08.04.2019 Ex.C2, postal receipt Ex.C3, letter of Shivalik Motors Ex.C4, insurance policy Ex.C5, Registration Certificate of vehicle Ex.C6, driving licence Ex.C7 and closed the evidence on 07.01.2020 by suffering separate statement.

6.             On the other hand, OP tendered into evidence affidavit of Shweta Pokhriyal Ex.RW1/A, letters dated 08.04.2019, 01.04.2019, 15.03.2019 Ex.R1 to Ex.R3, surveyor report Ex.R4, insurance policy alongwith terms and conditions Ex.R5 and closed the evidence on 12.08.2021 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for the complainant, while reiterating the contents of the complaint, has vehemently argued that during the subsistence of the insurance policy on 01.02.2019, the vehicle in question has complainant met with an accident and become total damaged. The vehicle was shifted to Shivalik Motors, Karnal and intimation with regard to accident was given to OP. Thereafter, OP appointed an authorized surveyor namely Shri Amit Maniktala. After that, OP/company gave the option to complainant to repair, reinstate or replace the vehicle insured or part thereof and/or its accessories or may pay in cash the amount of loss or damage. The complainant sent her consent letter to OP mentioned therein that she wants to take the Insured Declared Value (IDV) of the vehicle, but OP did not pay the same and closed the claim file of complainant, without any cogent reason. He further submitted that if this Commission come to the conclusion that the complainant is entitled for the relief, in that eventuality, the complainant is ready to retain the salvage of the vehicle with him and ready to take the value as assessed by the surveyor of the OP, vide his report Ex.R4.  Hence, prayed for allowing the complaint.

9.             Per contra, learned counsel of OP argued that after receiving the intimation regarding the accident of the insured vehicle in question, OP appointed a surveyor. The surveyor submitted his report and as per the surveyor assessment, the vehicle was major loss, therefore, it was observed by the surveyor that the replacement of the vehicle is the best mode of claim settlement. So, the complainant was asked to furnish consent of replacement of vehicle but complainant failed to give his consent and thus the claim was closed and not repudiated.

10.           Admittedly, the vehicle in question has met with an accident and got completely damaged during the subsistence of the insurance policy. On receipt of intimation, OP appointed an IRDA licensed Surveyor for assessment of loss. The surveyor submitted his report and as per the surveyor assessment, the vehicle was major loss, therefore, replacement of the vehicle is the best way for settlement of the claim.

 11.          The plea taken by the OP is that the OP sent the letters dated 08.04.2019, 01.04.2019, 15.03.2019 as Ex.R1 to Ex.R3 to the complainant and sought the consent for replacement of vehicle in question but the complainant did not pay any heed to the letters sent by the OP, therefore, there is no deficiency in service on their part. The complainant in order to rebut this plea, has placed on record reply  Ex.C2 dated 08.04.2019 of the letter  Ex.R3 dated 15.03.2019  wherein the complainant specifically requested the OP to pay insured declared value (IDV) of the vehicle. Complainant also submitted in the reply that she is not interested to take any other vehicle in place of her damaged vehicle. The complainant further placed on record postal receipt Ex.C3 which proves that the aforesaid reply has been sent and received by the OP. Letter Ex.R3 dated 15.03.2019 is prior to the letters Ex.R2 and R3. Since it is proved on record the complainant has already replied to the letter Ex.R3, therefore, there was no need to send the letters Ex.R1 and Ex.R2 by the OP to the complainant and it presume that the same were sent only in order to deprive the complainant from her genuine claim. Hence, this plea taken by the OP is having no force.

 12.          Admittedly, OP is/was ready to replace the vehicle in question. OP forcibly wants to give another vehicle to the complainant but complainant was/is not willing to get the same. So, in our view, OP cannot pressurize the complainant for replacement of the vehicle. Hence, the act of the OP while closing the claim of complainant amounts to deficiency in service, which is proved otherwise genuine one.

13.           As per insurance policy Ex.C5, the insured declared value (IDV) of the vehicle in question is Rs.6,20,000/-. However, the complainant is ready to retain the salvage with her and is ready to receive the amount as assessed by the surveyor in his report Ex.R4 amount of Rs.5,48,000/-. Thus, the complainant is entitled for the same alongwith interest, compensation and litigation expenses.

14.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.5,48,000/- (Rs. five lacs forty eight thousand only) to the complainant alongwith interest @ 9% per annum from the date of closing of claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.09.2021                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)          

                          Member