Haryana

Ambala

CC/306/2015

Umesh Mehta - Complainant(s)

Versus

ICICI LOMBARD General Inss Corporation Ltd. - Opp.Party(s)

Baikunth Nath

29 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 306 of 2015

                                                          Date of Institution         : 19.10.2015.

                                                          Date of decision   : 29.11.2017

 

Umesh Mehta son of Shri Hari Chand Mehta resident of 82, Vikas Vihar Ambala City.

……. Complainant.

                                      Versus

 

1. ICICI LOMBARD General Insurance Corporation Limited, ICICI Lombard House, 414 Veer Sarvakar Marg, Near Sidhi Vinayak Temple, Prabhadevi, Mumbai 400025 (To be served through ICICI Lombard Gen. Insurance Co.Ltd. Triloki Chambers, Ist Floor, SCO 4307/4/21, Opposite Municipal Council, Ambala Cantt.
2. Joshi Auto Zone Pvt. Plot No.84-85, Industrial Area Phase II, Chandigarh.

 

….…. Opposite parties.

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

 

Present:       Sh.Baikunth Nath, counsel for complainant.

                   Sh.Rajesh Kumar, counsel for OP No.1.                                                              Sh.C.M.Attri, counsel for OP No.2.

 

ORDER

                   Brief facts of the present complaint are that the complainant had purchased a package policy No.3001/88674819/00/000 (Zero Depreciation facility) on 19.03.2014 for his Mercedes/ B/180 CD1 bearing registration No.HR01 AJ 5326 which was subsequently renewed and was having validity from 19.03.2015 to 18.03.2016 and the OPs had charged Rs.9262/- under clause “Own Damage Clause” towards Zero Depreciation facility. The car of the complainant met with an accident and due to this tire burst resulting into damage of car, therefore, car was brought to OP No.2 who raised bill of Rs.66,650/-. The Op No.1 processed the claim and reimbursed a sum of Rs.48650/- after deducting a sum of Rs.18,000/- without assigning any reason despite the fact that it was Zero Depreciation facility.  The complainant took delivery of the car after paying a sum of Rs.18,000/- through a cheque No.399690 dated 12.08.2015.   The Op No.2 is carrying an agency and on behalf of Op No.1 to insure the vehicle sold to consumers earn premium from Op No.1.  The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C3.

2.                On notice, OPs appeared and filed their separate replies. OP No.1 in its reply has taken preliminary objections such as maintainability, locus standi, and concealment of material facts from this Forum etc.  It has been submitted that the surveyor Sh.Jatin Arora had assessed the claim for Rs.48650/- as per rules and regulations which was duly paid to M/s Joshi Auto Zone Pvt. vide cheque No.CMS330760311 dated 14.08.2015 on cashless basis. The Op No.2 is neither the agency of O no.1 nor have any title or interest in its functioning.  There is no deficiency in service on the part of OP No.1. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

3.                OP No.2 in its reply has submitted that the present complaint is not sustainable as it cannot be decided in summarily manner. There is no negligence, deficiency in service and unfair trade practice on the part of Op No.2; therefore, it is not liable to pay Rs.18,000/- to the complainant. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence the OPs have tendered affidavits Annexure RY, Annexure RX and documents Annexure RA to Annexure RE.

4.                We have heard learned counsel for the parties and gone through the case file very carefully.

5.                          The plea of Ops qua jurisdiction of this Forum is not sustainable because it is not disputed that as per surveyor report, the accident has taken place on 03.08.2015 at Ambala i.e. within the jurisdiction of this Forum as part cause of action has arisen at Ambala, therefore, this Forum has jurisdiction to entertain and decide the present complaint.

6.                          It is not disputed that the complainant has purchased the comprehensive policy having validity from 19.03.2015 to 18.03.2016. Undisputedly, the insured vehicle met with an accident and was repaired by M/s Joshi Auto Zone Limited and has received the amount of Rs.65985/-as per invoice amount and insurance company has paid the amount 48650/- directly to the Op No.2 but complainant has to pay the amount of Rs.18,000/- through cheque Annexure C3 from his own pocket vide receipt dated 13.08.2015. It is also not disputed that the OP No.1 has not paid the difference amount to the Op No.2 despite the fact that it was a Zero Depreciation policy. The complainant had paid the premium in various heads as mentioned in policy Annexure C1, which is as under:

                   Basic OD premium                           37843

                   Zero Depreciation (ZD-)                             9262                                                            Consumables                                    3087                                                           Engine Protect Plus                             6175                                                           Key Protect of Rs.50,000                      499                                                             Loss of Personal Belongings  Plan                                                                      A of Rs.50,000                                  500

                   Sub Total                                          57366                  

                   After deduction NCB 20 %               49797                                                                                              

                   Basic Third party liability                 4109                                                            Legal liability to paid driver              50                                                               PA cover for owner driver             100   

                   Total package premium                    54056                                                                   Service Tax                                       6681                                                           Total premium paid                          60737

                  

7.                           Main document which has been stressed by both the parties is Annexure RC/R3 i.e. assessment sheet. The insurance company has deducted the amount of Rs.17335/-. From the total invoice amount Rs.65985/- the company has only paid amount of Rs.48650/- to OP No.2 but perusal of the document i.e. Annexure R3 surveyor report does not indicate the details of deduction to show that on which part the deduction has been made. Moreover, this report also does not clarify the mode of deduction of the amount mentioned in the invoice issued by the Op No.2 despite the fact that it was a Zero Depreciation policy. Undisputedly, the report of approved surveyor may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. The report of the surveyor should be based on sound and convincing evidence but in the present case the report made by the surveyor appears to be made without any concrete reason. The plea taken by the counsel for the complainant has more weight than the argument advanced on behalf of the OP-insurance company because in general the insurance company treats the report of surveyor as per its own betterment and benefits and used the report as a weapon to repudiate the claim or to settle the claim on such a meager amount and the same has also happened in the present case.  On this point reliance can also be taken from the case law titled as United Insurance Company Limited Vs. N.T. Babu Proprietor Toy Palace, Court Road Palakkad RP No. 2868 of 2013 (NC) Date of Decision: 01.05.2014.  

                            

8.                Keeping in view the facts and circumstances mentioned above we have no hitch to reach at a conclusion that the complainant has been able to prove his case by leading cogent and reliable evidence against the Op-insurance company only. Accordingly, we allow the present complaint against Op No.1-insurance company subject to cost which is assessed at Rs.3,000/- and dismiss the same against Op No.2. The Op No.1-insurnce company is directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)      To pay a sum of Rs.18,000/- (paid by the complainant to the Op no.2 qua repair charges of the insured vehicle) alongwith interest @ 9% per annum from the date of payment i.e. 13.08.2015 (Annexure C-3) till its realization.

Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 29.11.2017                                  

 

                                                                            

 

(PUSHPENDER KUMAR) Member

(ANAMIKA GUPTA)                 Member

(D.N. ARORA)   President