Delhi

North East

CC/140/2015

Yashwant Rai Deewan - Complainant(s)

Versus

ICICI Lom. Gen Ins. Co. Ltd. - Opp.Party(s)

29 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.140/15

 

In the matter of:

	Yashwant Rai Deewan R/o 254/10, Street No.1 Braham Puri, Delhi-110053.	Complainant
	Versus
1.                 2.	ICICI Lombard General Insurance Co. Ltd Corporative Office ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai-400025. Through its Branch Manager ICICI, DDA Market 1st Floor, 101, J&K Market, Dilshad Garden, Delhi-110095.   M/s Rajindra Honda D-1 Vijay Colony, Usmanpur,                       Delhi-110053.	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

21.04.2015 26.10.2018 29.10.2018

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The complainant herein has filed the present consumer complaint against the OPs on grounds that he had purchased a Honda Activa Scooter bearing registration no. DL 5S BE 1290 from OP2 on 04.05.2014 vide invoice numbers 6687 and 6001 for sum of Rs. 51,423/-. The complainant had taken the insurance policy with OP1 against the said scooter vide policy no. 3005/2010844292/00/0000000485 w.e.f 04.05.2014 to 03.05.2015 on payment of premium of Rs. 1382/- inclusive of Zero Depreciation against payment of additional premium of Rs. 264/-paid to OP1 against the said scooter. The complainant has submitted that he met with an accident while riding the said scooter on 3^rd November 2014 at Shastri Park, New Delhi where the said scooter was partially damaged from the front and the head light, front indicators (both sides), inner cover, handle, front cover were damaged due to the accident and the complainant handed over the said scooter to the garage of OP2 for repairs on the same day where he was given an estimate of Rs. 3,400/- for the same. However OP1, instead of allowing the claim under zero depreciation policy, just approved the claim of Rs. 2,097/- via claim no. MOT04153239. The complainant contacted the surveyor of OP1 but he showed his inability to process the full refund. The complainant met the OP2 executives but they also referred him to confirm the claim approval with OP1. The complainant followed up the matter with OP1 vide series of e-mails exchanged between them in the period from 12.11.2014 to 09.02.2015 but no solution or satisfactory response came forth. The complainant had called up the OP1 call centre on 14.11.2014 to confirm if the parts damaged and changed during accident and repairs were consumables or non consumables to be covered or not covered under policy but the issue was referred to the surveyor. The complainant also raised the issue with Service Quality Team of OP1 on 15.01.2015 but to no avail and vide e-mail dated 27.01.2015 from the service quality team of OP1, the complainant was informed that “some extra part was added in the invoice which is not approved by the company, hence the same cannot be considered in the claim”. Lastly, the complainant tried to contact OP1 and OP2 as a last ditch effort for refund of the excess amount of Rs. 1500/- paid by him to OP2 for which he had received an e-mail dated 18.02.2015 from service quality team of OP1 informing the complainant that OP1 has requested OP2 to refund the extra amount charged by them and the same shall be refunded to him shortly but the refund never came through. Therefore the complainant was constrained to file the present complaint before this Forum against the OPs for issuance of directions for OPs to refund the cost of Rs. 1500/- paid to OP2 by the complainant, to pay compensation of Rs. 10,000/- towards physical strain and mental agony suffered by the complainant and Rs. 5,000/- towards cost of litigation.

Complainant has attached copy of bills number 6687 and 6001 dated 04.05.2014 issued by OP2 towards sale consideration paid by the complainant for the said scooter Honda Activa, copy of retail invoice dated 20.05.2014 issued by OP2 towards payment / registration, insurance charges etc towards the said scooter, copy of policy certificate issued by OP1 with respect to the said scooter mentioning zero depreciation premium of Rs. 264/- paid by the complainant, copy of tax invoice number 14IW03364 dated 08.11.2014 for Rs. 3400/- towards repairs of the said scooter raised by OP2, copy of e-mail dated 10.11.2014 from OP1 to OP2 for claim approval of Rs. 2097/- against claim no. MOT04153239 raised by the complainant, copy of e-mails exchanged between complainant and OP1 regarding full claim refund / non refund against zero depreciation policy.

2. Notice was issued to the OPs on 27.04.2015 and OPs entered appearance and OP2 filed its written statement on 07.10.2015 wherein while admitting the factum of the subject vehicle having being insured with itself on comprehensive basis for zero depreciation, it took the preliminary objection that the accident was a self inflicted one by the complainant on 03.11.2014 and the OP2 on receipt of information immediately registered the claim and appointed duly licensed and independent surveyor to assess the loss who inspected the vehicle and verified the loss and assessed the liability of OP2 keeping in view the terms and conditions and zero depreciation clause to the tune of Rs. 2097/- without depreciating any amount in the company price list for the parts replaced or repairs vide assessment sheet dated 08.11.2014. The OP1, in accordance with the surveyor report settled the claim and paid Rs. 2097/- to the complainant vide cheque no. CMS 259995745 dated 12.11.2014 duly received by the complainant. The OP1 lastly submitted that it a apparently clear from the assessment sheet dated 08.11.2014 that no depreciation was made by the surveyor or OP1 and the complainant has dragged OP1 into the present litigation and prayed for dismissal of the present complaint.                    

OP1 has attached copy of policy cover note alongwith terms and conditions, copy of claim intimation sheet, copy of assessment sheet and copy of observation sheet alongwith its written statement.

3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP1 in which the complainant submitted that the surveyor of OP1 had incorrectly inspected and verified the loss and liability of OP1 and OP1 deliberately ignored the estimate of Rs. 3400/- given by OP2 and instead partially approved the claim. Lastly the complainant denied having received any cheque of the claim amount either by OP1 or by OP2 since the settlement was on a Cash Less claim basis.
4. Written statement was filed by OP2 in which it took the preliminary objection that as against the averment of the complainant that the invoice amount was to the tune of Rs. 3600/-, OP2 had raised the invoice dated 08.11.2014 for Rs. 3400/- and Rs. 200/- were charged towards Cash Less file charges for expenses incurred in preparation of file, copies of documents and photograph of damaged parts. OP2 denied any liability to refund a sum of Rs. 1500/- to the complainant on grounds that it had merely repaired the subject vehicle and charged for the work done in it and had no concern with the insurance claim or refund in respect of the repairs which was solely the responsibility of OP1 and prayed for dismissal of the complaint.
5. Rejoinder to the written statement of OP2 was filed by the complainant in rebuttal in which the complainant submitted that OP2 must provide the estimate bills that they had forwarded to OP1 to prove their innocence. Complainant further submitted that the picture of the damaged part of the vehicle were taken and handled by OP1 but its officials told the complainant that OP2 had not submitted the damaged part pictures and the right estimate to OP1 for which the complainant was made to run from pillar to post and prayed that OP2 may be liable to refund the amount if they had not forwarded the correct estimate to OP1.
6. Evidence by way of affidavit was filed by the complainant reaffirming and declaring the averments made by him in the complaint as true and correct and attached series of e-mails between 12.11.2014 to 18.02.2015 exchanged with OP1 regarding settlement of claim alongwith insurance documents and tax invoice dated 08.11.2014. The complainant filed additional evidence by way of affidavit in support to clarify the meaning of the term ‘zero depreciation’ in the light of a live chat session between himself and executive of OP1 held on 30.01.2018 annexed alongwith the affidavit in which the executive had informed him that “in zero depreciation cover you will get 100% claim settlement on each and every part up to your IDV value. We don’t have information how ZERO DEP works on two wheeler in online. For more information kindly visit our nearest branch”. The complainant also filed true copy of two wheeler package policy of OP1 containing the zero depreciation clause clearly stating that ‘the company hereby undertakes to deducts no amounts for depreciation in case of parts replaced on account of damage to the vehicle insured and / or to its accessories, arising out of any peril as covered under the policy’.
7. Evidence by way of affidavit was filed by OP2 in reassertion of its defence taken in the written statement and exhibited invoice dated 08.11.2014 for Rs. 3400/- towards repair of the vehicle in question.
8. Evidence by way of affidavit was filed by OP1 in which the OP1 exhibited the documents relied upon by it in its defence and filed a break up chart to ear mark the deductions made under various heads and reason thereof to justify the deduction of Rs. 1303/- against the invoice of Rs. 3400/- and claim approval of Rs. 2097/- as per the terms and condition of the policy. The break up chart is reproduced herein below:-

 

Deduction	Deducted Amount of Rs	Reason
Policy Excess		It is compulsory deduction as per the T & C of the policy
Salvage	137.93/- (138- Round off)	As per market value of the damaged parts.
Item No.1: Cover Comp Handl RR	207.70/ (208/- round off)	Disallowed due to Not Found damage in this part
Item No.3: Cover Inner	500/-	Disallowed due to this part is not demanded in estimate and not found damage in it.
Labour	316/-	Labour charges settled for only Rs. 100/-
Tax	41/-	Not taken because it is on the disallowed parts.
Total	1303/-	As per above mentioned reasons

 

9. Written arguments were filed by all the parties in support of their respective grievance / defence. The complainant in his written arguments interalia argued that OP1 admitted in its written statement that the demand for handle bar and inner cover were not raised and hence not liable to be refunded and in its evidence it can be seen that demand of cover comp and inner cover were raised by OP2 alongwith other damaged parts but deliberately disapproved by OP1.
10.  In written arguments filed by OP2, OP2 argued that there was no deficiency of service or unfair trade practice on its part since the dispute was that of approval of claim which was the sole domain of complainant and OP1 and OP2 had merely repaired the subject vehicle and charged for the work done thereon and relied upon the judgment of Hon’ble Supreme Court in Chairman-Cum-Managing Director, Rajasthan Financial Corporation and Anr. Vs Commander S. C. Jain (retd.) and Anr. in Civil Appeal No. 2774/2010 passed on 26.03.2010 in which the Hon’ble Supreme Court held that when there is no deficiency found on the part of appellant, it cannot be asked to pay compensation.

In written arguments filed by OP1, OP1 placed reliance upon the surveyor report wherein net liability of OP1 was assessed atRs. 2097/- as per terms and conditions and OP1 settled the claim in accordance thereof and paid the said amount in favour of repairer/OP2 on behalf of complainant on 12.11.2014 and prayed for dismissal of complaint on grounds that complainant had failed to prove non consideration of his claim or deficiency of service and has failed to contradict the surveyor report in any manner by leading any cogent or reliable evidence against it to prove that the same was unfair since each and every part mentioned in the estimate was dealt with by the surveyor of OP1 in presence of the complainant as well as OP2 and he had disallowed the parts which were not damaged in the accident. Lastly OP1 relied upon the judgment of Hon’ble Supreme Court in United India Insurance Co. Ltd Vs M/s Harchand Rai Chandan Lal V (2004) SLT 876 in which the Hon’ble Supreme Court held that the terms of contract had to be read strictly and another judgment of Hon’ble Supreme Court in Vikram Greentech India Ltd and Anr. Vs New India Assurance Co. Ltd (2009) 5 SCC 599 in which the Hon’ble Supreme Court held that insured cannot claim anything more than what is covered by the insurance policy.OP1 also relied upon the judgment of Hon’ble Supreme Court on the issue of the survey report of Sikka Papers Ltd Vs National Insurance Co. Ltd (2009) 7 SCC 777 in which Hon’ble Supreme Court held that it is true that surveyor’s reports is not the last word but then there must be legitimate reasons for departing from such report therefore OP1 prayed for dismissal of the complaint.

11.  On hearing dated 15.12.2017, OP2 as a voluntary gesture, refunded Rs. 200/- to the complainant towards charges for scooter repairs and fees paper work etc from the amount of Rs. 1500/- taken from the complainant in November 2014 and therefore the dispute between the parties remained with regard to Rs. 1100/- for which the counsel for OP1 had prayed for time to seek instructions from OP1 for exploring possibility of settlement / refund. However the same could not be effected since the OP1 stated that the amount was deducted against normal wear and tear of parts which were not covered under zero depreciation.
12.   We have heard the exhaustive arguments led by all the parties and have given our thoughtful consideration to the arguments advanced by them and have examined material documentary evidence placed on record.

The factum of the accident of the scooter in question and repairs carried out thereof is admitted by all the parties which is amply proven and supported by the factum of partial claim approval by OP1 against the estimate of repairs raised by OP2. However the dispute arose due to OP1 not granting complete claim approval of the repair invoice of Rs. 3400/- despite the complainant’s contention that the subject scooter was covered under zero depreciation policy which coverage the OP1 also has not refuted or denied. On close examination of zero depreciation policy clause it is clear that the OP1 against receipt of premium paid for the same had undertaken to deduct no amount for depreciation in case of replacement of parts on account of damage to the vehicle insured and / or to its accessories arising out of any peril covered under the policy. Provided always that:-

1. Such claim has been admitted by the company under Section 1 of the policy – loss or damage to the vehicle insured.
2. This add on shall not be applicable in the event of total loss / constructive total loss of the vehicle insured under the policy.
3. The insured shall be liable for the voluntary deductable amount as opted by the insured for this add on, for each and every claim payable under this add on.

 

13.  The claim filed by the complainant is squarely covered under zero depreciation policy since he is not hit by any of the above mentioned provisos as was admitted by the OP1 when specifically put to question on the same by this Forum since the voluntary deducted amount was nothing but policy excess of Rs. 100/- compulsorily deductable. Therefore at best the OP1 could have deducted the same alongwith minor labor or tax charges rather than making a hefty and unlawful deduction of Rs. 1300/- specifically for items number 1 & 3 in the invoice dated 08.11.2014 in contravention to its own policy terms and condition.  
14.  The Forum had put a specific question to the counsel of OP1 during the course of final arguments as to which parts were disallowed in the tax invoice / estimated dated 08.11.2014 to which the OP1 indicated parts at serial No.1 and No.3 totaling Rs. 700/- on grounds that they were not found damage and not demanded in estimate. Further OP1 submitted that labor charges, salvage and policy excess were also deducted to the tune of Rs. 550/- approx and remaining tax charges.

However contrary to the submission of OP1 both the items at serial no. 1 and 3 were not only found damaged by OP2 but also were included for repairs in the tax invoice dated 08.11.2014. We therefore do not find force in the argument of OP1 on this ground.

15.  In view of the above discussion and considering the documentary evidence placed on record, we do not find OP2 guilty of deficiency of service. However, we hold OP1 guilty of deficiency of service for making unlawful, unjustified and unsubstantiated deduction of claim amount against the letter and spirit of the zero depreciation clause under the two wheeler policy which the complainant’s scooter was insured with OP1. We therefore direct OP1 to pay the balance amount of Rs. 1,100/- to the complainant towards the claim no. MOT04153239 payable under zero depreciation scheme. We further direct OP1 to pay a sum of Rs. 5,000/- to the complainant as compensation for physical and mentally agony and Rs. 2,000/- towards the cost of litigation. Let the order be complied within 30 days from the date of receipt of copy of this order.
16.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
17.   File be consigned to record room.
18.   Announced on 29.10.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member