Punjab

Patiala

CC/14/226

Lakhwinder Singh - Complainant(s)

Versus

HDFC ERGO - Opp.Party(s)

sh H S Grewal

16 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No.  CC/14/226 of 22.8.2014

                                      Decided on:        16.6.2015

 

Lakhwinder Singh aged 31 years, son of S.Tarsem Singh, R/o Village Guljarpur alias Tharua, Tehsil Patran, District Patiala.  

 

                                                                    …………...Complainant

                                      Versus

1. HDFC ERGO General Insurance Company Limited, 1^st Floor, SCO-11, Chhoti Baradari, Patiala (Punjab)-147001.
2. Kanwal Preet Singh Oberoi, Surveyor r/o House No.233, Charan Bagh, Passey Road, Near Gurdwara Dukhniwaran Sahib, Patiala,(Punjab)147001.
3. KL Nissan, Authorized Dealer of Nissan India Private, Limited, village Dhareri Jattan, Rajpura Road, Bahadurgarh, Patiala through its Managing Director.

                                                                   …………….Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member                               

                                                                            

Present:

For the complainant:      Sh.H.S.Grewal , Advocate

For Op No.1:                   Sh.Dhiraj Puri,Advocate            

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he had purchased the car make Nissan, model Terrano-XL-D from M/s Hind Motors, Chandigarh, having raised a loan of Rs.8,50,000/- from HDFC Bank, Samana, District Patiala. He is making the payment of the installments @ Rs.18486/- per month regularly. The registration number of the vehicle is PB-11BK-1519. The complainant had got his aforesaid car insured with Op no.1 vide policy No.2311200662288100000 for the period 9.1.2014 to 8.1.2015. The IDV of the vehicle is Rs.10,26,950/-.
2. On 29.1.2014, the said car of the complainant had met with an accident near village Ram Nagar ( Nawan Gaon) when the complainant was returning to his village from Patiala and when suddenly a cow came in front of the car and in order to save the cow, the car of the complainant had hit against a tree and his car was badly damaged.
3. The matter regarding the incident was reported to the police of P.P. Ram Nagar of P.S.Sadar, Patiala vide DDR No.06 dated 30.1.2014. The complainant also immediately informed Op no.1 regarding the accident and lodged the claim, which was registered at No.C-230013105924. Op no.1 deputed the surveyor namely Kanwal Preet Singh Oberoi, Op no.2, who had inspected the car and taken the photographs  and who assessed the car having totally been damaged and who submitted his report with Op no.1.
4. As per the directions of Op no.1, the complainant had taken his car to K.L.Nissan at Bahadurgarh i.e. Op no.3, the authorized dealer of Nissan India Pvt.Ltd. The complainant completed all the formalities as desired by the Ops, surveyor and the Investigator and he submitted all the original claim papers. The estimated loss of the vehicle is Rs.8,83027.84. In the estimate, it was also mentioned that “a supplementary estimate will be issued after dismantling the car, some parts number not found DMS’.
5. It is further the case of the complainant that Op no.3 is charging Rs.300/- per day as parking charges and 2% of the entire estimate, which is said to be illegal as Op no.3 has got no right to recover the same. The liability , if any, is of Op no.1, who is lingering the matter. The complainant approached Op no.1 many a times and requested to pay the genuine claim but to no effect. Accordingly the complainant got Op no.1 served with a legal notice dated 22.7.2014 through his counsel having requested to pay the genuine claim but to no effect. Accordingly the complainant has brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to pay him the claim amount i.e. the insured value of the car i.e. Rs.10,26,950/- , the car having got totally damaged, with interest; to pay him Rs.2lacs by way of compensation on account of the harassment and the mental agony experienced by him and further to award him Rs.22000/- towards the costs of the complaint.
6. The cognizance of the complaint was taken against Op no.1 only, who on appearance filed the written version. The Op has not denied the complainant having got his vehicle insured with the Op as per the particulars of the policy given in the complaint. It is stated that after getting the intimation regarding the loss caused to the vehicle, the Op had allotted claim No.C-230013105924 and appointed Op no.2, IRDA approved surveyor for assessing the loss, who had visited the spot and taken the photographs. Thereafter the vehicle was taken to the workshop of Op no.3.On the very next day, Op no.2 again visited the workshop and took the photographs of the damaged vehicle. He also took the photographs of the engine number of the vehicle . On 3.2.2014, Op no.3 prepared the estimate to the tune of Rs.8,83,027.84 for repairing the vehicle and consequently the vehicle was declared a total loss by the Op. The stereo of the vehicle was stolen from the site of the accident and the same was valued at Rs.50,000/-. The complainant gave the consent for settling his claim in a sum of Rs.9,90,000/- against IDV of Rs.10,26,950/-.
7. On 15.4.2014, the Op conducted the on-line auction  of the salvage of the damaged vehicle and Mr.Daler Singh of 447 Balair Road, Bhikhiwind (Taran-Taran) had given the highest bid of Rs.5,06,000/- but when he visited the workshop for getting the delivery of the car, he had come to know that engine number of the vehicle had been damaged by way of rubbing the same by Op no.3 of its own or with the consent of the complainant and therefore, the said bidder refused to take the delivery of the salvage at the price of Rs.5,06,000/-.The complainant was apprised about the said fact and he was offered to pay the estimated amount after deducting the salvage value of Rs.5,06,000/- but the complainant did not agree for the same. He has brought the present complaint based on false and wrong facts and having suppressed the true and correct facts. It is denied that the Op is liable to pay the parking or other charges. The Op is ready to settle the claim but it is the complainant who is not ready to accept the amount.
8. It is also the plea taken up by the Op that the Op is not liable for the loss and depreciation due to the rubbing of the engine number. It is the bounden obligation  of the complainant to safeguard the vehicle from further loss or damage and for any extension of damage or further damage, the same is at insured’s own risk. In this regard, the Op has made a reference to condition no.4, which is quoted in the following terms: “4.The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk”  

The complainant had not taken reasonable steps  and care to safeguard the further damage and therefore for the depreciation in the value of the salvage , the complainant is liable solely for the same. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.              

9. In support of his complaint, the complainant produced in evidence Ex.CA, his sworn affidavit alongwith the documents Exs.C1 to C18 and his counsel closed the evidence.
10. On the other hand, on behalf of the Op, it’s counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Pankaj Kumar, Manager(Legal) of the Op at Noida alongwith documents Exs.OP1 to OP12 and closed the evidence.
11. The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.
12. It is the plea taken up by the Op that on receipt of the information regarding the loss, the Op had allotted claim No.C-230013105924 and appointed Op no.2, the IRDA approved surveyor for assessing the loss, who visited the site of the accident and took the photographs and thereafter, the vehicle was taken to the workshop of  Op no.3  and on the very next day, Op no.2 again visited the workshop and took the photographs of the damaged vehicle. The photograph of the engine number of the vehicle was also taken. On 3.2.2014, Op no.3 prepared the estimate in a sum of Rs.8,83,027.84 for repairing the vehicle. Consequently the vehicle was declared to be of total loss by the Op. It is also the plea taken up by the Op that the stereo system of the vehicle had been stolen from the site of the accident and the same was valued at Rs.50000/-. The complainant gave his consent for settling his claim in a sum of Rs.9,99,000/- against the IDV of Rs.10,26,950/-.Then, it is the plea taken up by the Op that on 15.4.2014 , the Op had conducted on-line auction of the salvage of the damaged vehicle and one Mr.Daler Singh of village Bhikhiwind(Taran-Taran) had given the highest bid in a sum of Rs.5,06,000/- but when he visited the workshop for taking the delivery of the vehicle, the engine number of the vehicle was found to have been damaged due to rubbing by Op no.3 of its own or with the consent of the complainant and therefore, Mr.Daler Singh, refused to take the delivery of salvage of the vehicle.
13. The Op has not lead the least evidence on the said pleas taken by it. Firstly, the Op has not produced the report  of the surveyor namely Op no.2.Secondly the Op has not produced any record of the on-line auction held by the Op on 15.4.2014, in respect of the salvage of the vehicle, so as to show that the highest bid was accepted in favor of Mr.Daler Singh of 447 Balair Road, Bhikhwind(Taran-Taran) and further to show that said Mr.Daler Singh on having visited the workshop of Op no.3 refused to accept the delivery of the salvage because of the engine number having been damaged by virtue of Op no.3 having rubbed the same of its own or with the consent of the complainant. Similarly the op has not lead any evidence that the stereo system installed in the vehicle of the complainant had been stolen from the site of the accident. Again the Op has failed to lead the evidence that the complainant had given his consent for settling his claim in a sum of Rs.9,99,000/- as against the IDV of Rs.10,26,950/-.
14. The Op has produced in evidence the photo copies of the photographs Exs.OP1 to OP11 and Ex.OP12, the photo copy of the e-mail dated 17.11.2014 sent by Anshul Neema / CLIAMS / MUM / HDFCERGO to Naveen Munjal / CLAIMS / CHD / HDFCERGO @ HDFCERGO with copy to Khushrco Patel/ CLIAMS / MUM / HDFCERGO @ HDFCERGO, Naveen Tandon / CLAIMS / DEL / HDFCERGO @ HDFCERGO, Seshadri Das/ CLIAMS / MUM / HDFCERGO@HDFCERGO on the subject: Market result-Nissan Terrano XL(2014)-PB11BK1519-PATIALA*C230013105924 having disclosed the market results as follows:- 1. The Highest bid for the Nissan Terrano was 506,000/-, Increase identified is 206,000/-, over a base price of 300,000/-.

Daler Singh was the highest bidder at Rs.506,000/-

Vendors Invited : 83     Vendors Accepted: 5

Number of Bidders/Respondents:5

15. The said record does not, in any way, help the Op to prove its plea that any auction of the salvage of the vehicle No.PB-11BK-1519 was held by the Op on 15.4.2014 and that five persons participated in bid and that the highest bid was accepted in favor of Mr.Daler Singh of Bhikhiwind, (Taran-Taran). The Photographs Exs.OP1 to OP11, which are the photo copies of the photographs, do not, in any way, go to suggest that engine number of the vehicle had been damaged having been rubbed. As per the plea taken up by the Op, the surveyor Mr.Kanwal Preet Singh Oberoi had taken the photographs of the engine of the damaged vehicle at the site of the accident . On the next day , he visited the workshop of Op no.3 and took the photographs including that of the engine. Therefore, the production of the report of the surveyor was very much necessary to show as to whether the engine number of the vehicle was intact or the same had been damaged by way of the same having been rubbed by Op no.3. Similarly, it was imperative on the part of the Op to have produced the record vide which the auction purchaser, Mr.Daler Singh had refused to accept the delivery of the vehicle on account of the engine number of the vehicle having been damaged in the aforesaid manner. No such record is produced by the Op in evidence.
16. Again there is no evidence to have been lead by the Op that the stereo system fitted in the vehicle had been stolen from the site of the accident and that the surveyor had not found the same while taking the photographs of the damaged vehicle. In this regard, the Op was obliged to produce the report of the surveyor qua his affidavit.
17. It was rightly submitted by Sh.H.S.Grewal, the learned counsel for the complainant that the complainant had never given anything in writing that his stereo system installed in the vehicle had been stolen from the site and that his claim may be settled in a sum of Rs.9,99,000/- against the IDV of Rs.10,26,950/-. He also placed reliance upon the citation Royal Sundaram Alliance Insurance Co.Ltd. V.Shripant Motors 2012(2) C.P.J. (N.C.) 441:2012 (2)CPR (NC)329: 2012(4) C.L.T. 89: 2012 (4) CLT89 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, for the observation that there being a total loss of the vehicle in the accident, respondent No.1 was entitled for compensation to the extent of entire value of the car.
18. We have considered the submissions . As per Private Car Package Policy, Ex.C8, the same was valid for the period 9.1.2014 to 8.1.2015 and the vehicle is recorded to be hypothecated with HDFC Bank Limited. In Ex.C11, the photo copy of the certificate of registration , date of manufacture of the vehicle has been recorded as 1.1.2014, going to show that the complainant had purchased a brand new car and no depreciation is to be claimed by the insurer. Even Private Car Package Policy provided zero depreciation  having charged Rs.3081/-,premium on that count. The IDV of the vehicle has been disclosed as Rs.10,26,950/- in the Private Car Package Policy,Ex.C8 and therefore, the Op has to pay the IDV of the vehicle on account of total loss of the vehicle to the complainant.
19. Admittedly, the vehicle of the complainant was under hypothecation with HDFC Bank Limited as is made out from Ex.C8, photo copy of the Private Car Package Policy. The complainant admittedly raised the loan from HDFC Bank, branch Samana, District Patiala. Therefore, the amount of the loan being a first charge on the vehicle, the Op is obliged to pay the amount due and recoverable against the loan account of the car raised by the complainant from HDFC Bank, branch Samana, by way of issuing a cheque in favor of the Bank, in respect of which Op no.1 may obtain the statement of account of the loan account of the complainant from the complainant or the Bank  before making the payment. The Op shall be liable to pay the amount of Rs.10,26,950/-  with interest @9% per annum from 1.4.2014 till final payment because the surveyor and Op would have taken a reasonable time of two month to settle the claim of the complainant but the Op had failed to do so without any justification. In case any amount is found in excess with op no.1 after making the payment due and outstanding in the loan account of the complainant, the same shall be paid to the complainant by issuing a cheque in this regard.In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-.The order be complied by the Op within one month on receipt of the certified copy of the order.

Pronounced

Dated:16.6 .2015

 

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President