DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 87 of 17.3.2008 Decided on : 5.6.2008 <br /> <br /> Nirmala Rani W/o Sh. Hem Raj, R/o C/o New Singla Machinery Store, Maur Mandi, District Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> 1.ICICI Lombard General Insurance Company Limited, Guru Kanshi Marg, Sharma Complex, First Floor, 3039-A, Bathinda through its Manager.<br /> 2.ICICI Lombard General Insurance Company Limited, Space No. 1, 5th Floor, Surya Tower, 10-B, The Mall, Ludhiana through its Manager.<br /> 3.Kotak Mohindra Primus Limited, Model Town, Phase 1, Shop-cum-flat, Bathinda through its Manager.<br /> 4.Tata Motor Financial Services Limited, SCF Improvement Trust Shopping Complex No. 133, Opposite Harchand Cinema, Bathinda through its Manager.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties: Sh. Vinod Garg,counsel for opposite parties No.1 & 2<br /> : Sh. H.S Dhillon, counsel for <br /> opposite party No. 4<br /> Opposite party No.3 already exparte<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant is the owner of Toyota Qualis bearing registration No PB-03-M-2725 model 2004. It was got comprehensively insured with opposite parties No. 1 & 2 vide cover note No. 3302896 for the period 5.10.2006 to 4.10.2007. It was a cashless insurance. Insurance policy has not been supplied till date. This vehicle was previously hypothecated with opposite party no.3. In the month of October, 2007, it was got financed from opposite party No. 4 with which it is lying hypothecated. Vehicle had met with an accident in July, 2007 at about 7 P.M near village Maur Khurd. It had struck with a wall as its tyre had slipped. It was being driver by Sh. Kuldeep Singh driver at that time. It was badly damaged. Intimation of the accident was given telephonically to opposite parties No. 1 & 2. Claim was registered by them on 26.7.2007 vide No. MOT-00546164. At the asking of opposite parties No. 1 & 2, vehicle was shifted to M/s. Paras Motors, 25-A Factory Area, Patiala (Workshop). Mr. Vikas Mohindru was deputed by opposite parties No. 1 & 2 to inspect it. Accordingly, it was inspected. It is alleged that her signatures were obtained on some blank papers, forms, vouchers and consent letter with the assurance that amount of total loss would be paid at the earliest. Since the parts which were to be replaced were available with M/s. Paras Motors at higher rates, Surveyor had directed her to arrange them from some other workshop. Accordingly, some parts were purchased by her from M/s. Modi Maruti Centre by way of spending a sum of Rs. 18,596/-. Bill was handed over to the Surveyor. M/s. Paras Motors issued bill of Rs. 24,150/- regarding the spare parts and labour charges. It was also given to the Surveyor. Some other documents were also delivered to the Surveyor. Vehicle was got repaired by way of spending Rs. 42,746/-. Despite this, letter dated 11.12.2007 was received by her from opposite dparty No. 1 vide which claim has been repudiated on the ground of “Breach of Utmost Good Faith”. She alleges the repudiation as illegal. In these circumstances, instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to opposite parties No.1 & 2 to pay her Rs.42,746/- alongwith interest @ 18% P.A; Rs. 10,000/- as compensation/damages for mental agony and pains and Rs. 5,000/- as litigation expenses.<br /> 2. On being put to notice, opposite parties no. 1 & 2 filed their version taking legal objections that complicated questions of law and facts are involved which can be adjudicated in the civil court and as such, this Forum has got no jurisdiction; complainant has concealed material facts; she has no locus-standi and cause of action and complaint is not maintainable. On merits, they admit that complainant is the owner of the vehicle which was got insured by her. They deny that insurance policy was not issued. Insurance claim was registered. Instead of Mr. Vikas Mohindru, Mr. Arpan Gupta Surveyor was deputed to assess the loss. Survey was conducted by him on 24.7.2007 at M/s. Paras motors and loss was assessed to the tune of Rs.27,430/- vide report dated 18.8.2007 by way of applying depreciation and other provisions as per terms and conditions of the policy and Indian motor Tariff. They admit that bill of M/s. Paras Motors was for Rs.24,150/-. Inter-alia, their plea is that they had got the matter investigated from Sh. A.P Singh, GIC Claim Investigator who had made discreet inquiries from Taxi Stands at Maur Mandi. He had detailed discussion on telephone No. 9815438385 with Inderjit Singla. He had also recorded his statement from which it is clear that vehicle is owned by Nirmala Rani, whereas it was being used by him as Taxi as he is her son. Complainant has committed breach of trust and violations of the terms and conditions of the policy as the vehicle was being used by her son for commercial purposes. They deny the remaining averments in the complaint.<br /> 3. Registered A.D post notice was issued to opposite party No. 3 which refused service. Accordingly, it has been proceeded against exparte.<br /> 4. Separate reply of the complaint has been filed by opposite party No. 4 assailing the maintainability of this complaint before this Forum on the grounds that it has been unnecessary dragged into litigation as there is no deficiency in service and unfair trade practice on their part; complainant is misusing the power of this Forum and a sum of Rs.18,127.28 is still outstanding towards her as on 30.4.2008 on account of pending instalments and other charges. She wants to avoid the payment of loan instalments on the pretext that complaint is pending. On merits, it admits that complainant is the owner of the vehicle. Loan of Rs. 2,66,560/- inclusive of finance amount and interest was taken by her vide Agreement No. 5000181832. It denies the remaining averments in the complaint mainly on the ground of want of knowledge.<br /> 5. In support of her allegations and averments in the complaint, Nirmala Rani complainant tendered into evidence her own affidavits (Ex.C.1 & Ex.C.11), photocopy of insurance cover note (Ex.C.2), photocopy of driving licence of Kuldeep Singh (Ex.C.3), photocopy of registration certificate (Ex.C.4), photocopy of letter dated 11.12.2007 (Ex.C.5), photocopy of Certificate-cum-Policy Schedule (Ex.C.6), photocopy of survey report (Ex.C.7), photocopy of assessment sheet (Ex.C.8), photocopies of bills dated 11.8.2007 & 7.8.2007 (Ex.C.9 & Ex.C.10) respectively and photocopy of schedule of depreciation (Ex.C.12).<br /> 6. On behalf of opposite parties No. 1 & 2, reliance is placed on affidavits (Ex.R.1 to Ex.R.3) of S/Sh. Sachin Ohri, Manager Legal, A.P Singh, Investigator and Arpan Gupta, Surveyor respectively, photocopy of investigation report dated 6.10.2007 (Ex.R.4), photocopy of statement of Inderjit Singla (Ex.R.5) and photocopy of Visiting Card of Inderjit Singla (Ex.R.6).<br /> 7. Opposite party No. 4 did not lead any evidence.<br /> 8. We have heard the learned counsel for the complainant and opposite parties No.1,2 & 4. Apart from this, we have perused the record.<br /> 9. Some facts of this case do not remain in dispute. They are that complainant is the owner of Toyota Qualis No. PB-03-M-2725 as is evident fro her affidavit and copy of the registration certificate Ex.C.4. Opposite parties admit this fact in their replies to the complaint. It had met with an accident on 21.7.2007. Ex.C.7 is the report of Mr. Arpan Gupta Surveyor who has assessed the total payable amount as Rs.27,430/- as is evident from the copy of the assessment sheet Ex.C.8. Complainant got the vehicle repaired. Ex.C.9 is the copy of the bill of M/s. Paras Motors regarding the spare parts and labour charges for Rs.24,150/-. Some spare parts were purchased by her from M/s. Modi Maruti Centre. Copy of bill is Ex.C.10 which is for Rs. 18,596/-. Claim has been repudiated by the opposite insurance company on the ground of breach of utmost good faith. <br /> 10. Mr. Garg, learned counsel for the complainant argued that claim has been illegally repudiated by the opposite insurance company.<br /> 11. Mr. Vinod Garg, learned counsel for opposite parties No. 1&2 submitted that insurance policy, copy of which is Ex.C.6 and the cover note copy of which is Ex.C.2 were obtained for a private car, whereas this vehicle was being used by Sh. Inderjit Singla son of the complainant. This fact is obvious from the investigation report of Sh. A.P Singh, copy of which is Ex.R.4 and with his affidavit Ex.R.2. Sh. Inderjit Singla has admitted the usage of the vehicle for hire by way of suffering statement, copy of which is Ex.R.5. Insurance is a contract between the parties and both the parties are bound by its terms and conditions.<br /> 12. We have considered respective arguments. Claim has been repudiated by the opposite insurance company. Onus is upon it to prove that repudiation of the claim is justified. Repudiation letter is quite vague. It does not reveal as to which is the utmost good faith, the breach of which has been committed by the complainant. Letter of repudiation should convey in clear terms the grounds on which claim is denied. No reason has been given in it. This has been disclosed only in the reply of the complaint filed by opposite parties No.1 &2. They have taken the plea that vehicle was being used by Inderjit Singla son of the complainant for commercial purposes. When this specific ground has not been taken in the repudiation letter, its disclosure in the reply of the complaint appears to us an after thought. Copy of the report of Sh. Arpan Gupta Surveyor is Ex.C.7 and his affidavit is EX.R.3. He did not report that car was being used as Taxi. Opposite parties No.1 & 2 are relying upon the report Ex.R.4 of Sh. A.P Singh Investigator for saying that car was being used as Taxi by Sh. Inderjit Singla son of the complainant. When the report of the surveyor was already taken by the opposite insurance company, Investigator could not be appointed by it without the permission of Controller of Insurance. As per affidavit Ex.R.2 of Sh. A.P Singh Investigator, he had made detailed discussion on telephone with Sh. Inderjit Singla and had recorded audio C.D of the same. Audio C.D allegedly prepared has not been proved. Statement of Sh. Inderjit Singla, copy of which is Ex.R.5, does not bear any date. As per this statement, he stated that he occasionally used the vehicle on hire. It is not known as to when he used it as Taxi or on hire. Complainant has submitted her affidavit Ex.C.11 stating in so many words that she never used this vehicle as Taxi on hire. No official of opposite party No. 1 ever contacted her for processing the claim. Only Mr. Vikas Mahindroo had obtained her signatures. She has gone to the extent of saying that her son Inderjit Singla has no concern with the vehicle and he is living separate from her. It has come for the first time to her knowledge that enquiries were made by opposite parties No. 1 & 2 from her son. It is further in her affidavit that insurance company had obtained the signatures of her son on blank letter head and on some blank papers with the assurance that claim of his mother has been passed. There is no direct proof that vehicle was being used as Taxi. Rather, from the conclusion cause of the report Ex.R.4, it is obvious that Kuldeep Singh driver alone was driving it at the time of accident. Mere opinion of the Investigator that it was being used as Taxi, cannot be accepted. Opposite insurance company could examine Sh. Inderjit Singla for clarifying the position or could produce his affidavit. Evidence to this effect is lacking. Even if it is taken for arguments sake that car was being used as Taxi although we do not subscribe to it, the insurer has failed to establish any nexus between its usage and accident. In this view of the matter, we are fortified by the observations of Hon'ble State Commission, Punjab in the case of Baldev Singh Vs. Oriental Insurance Co. Ltd. & another-2007 CTJ-1103. In these circumstances, when there is no cogent, convincing and satisfactory evidence, conclusion cannot be arrived at that vehicle was being used on hire or as Taxi. At the risk of repetition, it is again mentioned that this ground has not been taken in the repudiation letter in clear words. Hence, repudiation of the claim is illegal and arbitrary. Accordingly, it is set-aside leading to deficiency in service on the part of opposite parties No. 1 & 2 in declining the insurance claim.<br /> 13. As per Ex.C.4, month and year of manufacture of the vehicle are September, 2004. Accident had taken place in July, 2007. Learned counsel for opposite parties No. 1 & 2 argued that report of the Surveyor is an important document and it cannot be brushed aside lightly. As per calculations given in the written arguments by opposite parties No. 1 & 2, the assessed loss comes to Rs. 29,830.62. Learned counsel for the complainant argued that report of the Surveyor is apparently wrong on several counts. He has not considered the depreciation as per schedule of depreciation, copy of which is Ex.C.12. According to it, for all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags depreciation is 50% and for fibre glass components, it is 30%. For all parts made of glass, depreciation is nil. Rate of depreciation for all other parts including wooden parts will be as per the following schedule:-<br /> Age of Vehicle<br /> % of Depreciation<br /> Not exceeding 6 months<br /> Nil<br /> Exceeding 6 months but not exceeding 1 year<br /> 5.00%<br /> Exceeding one year but not exceeding 2 years<br /> 10.00%<br /> Exceeding two years but not exceeding 3 years<br /> 15.00%<br /> Exceeding 3 years but not exceeding 4 years<br /> 25.00%<br /> Exceeding 4 years but not exceeding 5 years<br /> 35.00%<br /> Exceeding 5 years but not exceeding 10 years<br /> 40.00%<br /> exceeding 10 years<br /> 50.00%<br /> He further argued that as per correct calculations given in affidavit Ex.C.11, the net loss payable is Rs. 32,747.75.<br /> 14. We have given our thoughtful consideration to the rival arguments. No-doubt, report of Surveyor is an important document but it should not be arbitrary. Opposite parties No. 1 & 2 have considered depreciation by way of including tax in the price of the new parts. In our view, this calculation is not correct. Depreciation is to be considered on the damaged parts which are to be replaced and not by way of including the tax in the price of the new parts which are to be replaced in place of damaged parts. Opposite insurance company has taken the Radiator as plastic part. We do not feel ourselves inclined to agree with opposite parties No. 1 & 2 on this count. No rule or regulation has been shown to us according to which Radiator can be treated as plastic part of the vehicle. Even otherwise, it does not sound to reason that it can be considered as plastic part keeping in view its working and the fact that it is connected with the engine. Opposite parties No. 1 & 2 have taken Head & Corner Lights as plastic items. Accordingly, they have considered depreciation @ 50%. Complainant has considered these items as glass goods in Ex.C.11 and has considered the depreciation as nil on these items. Keeping all the pros and cones in view, we feel that these items should be treated as fibre glass and 30% depreciation can be allowed. When case is taken as it is, amount of these items No. 3 & 4 comes to Rs. 990/- and Rs.700/-. In these circumstances, amount of Rs. 616.25 has to be deducted from the amount of net loss i.e. Rs.32,747.75 shown in Ex.C.11. Accordingly, we hold that net loss payable is Rs. 32,131.50 by opposite parties No. 1 & 2. Since vehicle has been got financed from opposite party No.4, this amount has to be paid by opposite parties No. 1 & 2 to opposite party No. 4 alongwith interest @ 9% P.A from 25.10.2007 (The date calculated on expiry of three months period from the date and time of allotment of survey by opposite parties No. 1 & 2, a period required for processing the claim in an effective manner in normal course) till payment. Complainant is craving for damages of Rs.10,000/- on account of mental agony and pains. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed. Since, claim amount has not be paid, there is deficiency in service on the part of opposite parties No. 1 & 2.<br /> 15. In the result, complaint is partly allowed against opposite parties No. 1 & 2 with costs of Rs.1,000/-. Complaint qua opposite party No. 3 stands dismissed. Opposite parties No.1,2 & 4 are directed to do as under:-<br /> ( i ) Opposite parties No. 1 & 2 to pay Rs.32,131.50 to opposite party No. 4 alongwith interest @ 9% P.A from 25.10.2007 till payment.<br /> ( ii ) In case, amount is remitted by opposite parties No. 1 & 2 to opposite party No. 4, it would adjust this amount in the loan account of the complainant. If any amount out of this amount is found excess, it would remit the same to the complainant within seven days from the date of its receipt, failing which it would be liable to pay interest on this excess amount @ 9% P.A till payment.<br /> ( iii ) Compliance of this order be made by opposite parties No. 1 & 2 within 30 days from the date of receipt of copy thereof.<br /> 16. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 5.6.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> <br /> 'bsg'<br />