DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 124 of 25.04.2008<br /> Decided on :08-07-2008 <br /> <br /> Leela Krishan S/o Sukhdev Chand, Gali No. 12, House No. 31404, Jogi Nagar, Bathinda..<br /> ... Complainant<br /> Versus<br /> <br /> 1.ICICI Lombard General Insurance Company Limited through its Manager, Power House Road, Bathinda.<br /> 2.ICICI Bank Limited, Ist Floor, Bibi Wala Road, Bathinda, through its Collection Manager.<br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Naveen Garg, Advocate.<br /> For the Opposite parties : Sh. Vinod Garg, Advocate, for opposite party No. 1.<br /> Sh. Sanjay Goyal, Advocate, for opposite party No. 2. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. An Insurance Policy No. 3001/50895313/00/000 was purchased by the complainant for his Alto LX-E3 non Metallic Saloon 1000 CC Car from opposite party No. 2 for the period 30.11.06 to 29.11.07. This vehicle was got financed from opposite party No. 2 vide loan agreement No. LUBTN00009022705. Opposite party No. 1 had assured that in case any loss to the insured vehicle occurs during the period, it would be compensated within 3 days. Insured's Declared Value (Here-in-after referred to as 'IDV') of the vehicle was assessed as Rs. 2,07,640/-. It had met with an accident on 20.3.07. It was totally damaged. Intimation to this effect was given to opposite party No. 1. As per its instructions vehicle was taken to Tara Automobiles. Assurance was given by opposite party No. 1 that he would be paid total loss on net salvage cash loss basis. All the formalities with regard to the claim were completed. Documents were submitted to opposite party No. 1. Till today payment of the claim has not been made. To the contrary Tara Automobiles is claiming Rs. 23,000/- as parking charges. Opposite party No. 1 had written letter dated 5.9.07 to opposite party No. 2 to the effect that it is settling the claim but nothing has been done so far. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred by him seeking direction from this Forum to the opposite parties to pay him Rs. 2,07,540/- alongwith interest @18% P.A. w.e.f. 20.03.2007 alongwith parking charges of Rs. 23,000/-; Rs. 20,000/- as compensation for mental tension and Rs. 5500/- as litigation expenses.<br /> 2. Opposite party No. 1 filed its version taking legal objections that complaint is false and frivolous and has been filed with a view to injure its reputation and goodwill; intricate questions of law and facts are involved which requires voluminous documents and evidence and as such, remedy, if any, lies with the civil court ; complainant has concealed material facts from this Forum; complainant is not consumer; he has got no locus standi and cause of action to file the complaint and complaint is not maintainable. On merits, it admits that vehicle was got insured with it and that it was hypothecated with opposite party No. 2. I.D.V. of the vehicle was Rs. 2,07,640/-. Intimation of the accident was given by the complainant. On its receipt, Surveyor & Loss Assessor Er. Rakesh Kumar Gupta was deputed to conduct the survey and assess the loss. Survey was conducted by him on 4.4.07 at M/s. Tara Automobiles. Interim report was submitted. Thereafter it had agreed to settle the claim on total loss basis i.e. Insured's Declared Value of Rs. 2,07,640/-. Surveyor at its instance had sent registered letters dated 13.10.07 and 23.10.07 for submitting Indemnity-cum-declaration undertaking on stamp paper of Rs. 100/- to be duly signed by him and attested by Notary Public for settling the claim on net salvage basis as agreed by him. He did not submit Indemnity-cum-declaration. Letter dated 30.10.07 written by it to the complainant has been concealed. Wreck value of the vehicle in the market was Rs. 62,000/-. Value of the salvage offered by the Insured was Rs. 75,000/-. Since he did not submit Indemnity-cum-declaration undertaking, claim could not be settled. He is at fault. It denies that Tara Automobiles is demanding Rs. 23,000/- as parking charges. It further denies its liability to pay them. It does not admit the remaining averments in the complaint.<br /> 3. Opposite party No. 2 filed separate reply stating that complaint is not maintainable against it and it is based on false facts. According to it, vehicle is hypothecated with it and complainant has committed default in the repayment of the amount. Letter dated 5.9.07 was received by it. However, claim if any is to be paid by opposite party No. 1. It admits that complainant is consumer and this Forum has got the territorial jurisdiction to entertain and try the complaint.<br /> 4. In support of his averments contained in the complaint, complainant has produced in evidence photocopy of letter dated 5.9.07 (Ex. C-1), photocopy of Insurance Policy (Ex. C-2) and his affidavit (Ex. C-3).<br /> 5. In rebuttal, on behalf of the opposite parties two affidavits of S/Sh. Rakesh Kumar Gupta, Surveyor and Sachin Ohri, Manager (Ex. R-1 & Ex. R-2) respectively, photocopy of survey report (Ex. R-3), photocopy of photographs, (Ex. R-4), photocopy of letter dated 13.10.07 (Ex. R-5), postal receipts (Ex. R-6 to Ex R-7), policy wording (Ex. R-8), photocopy of certificate cum policy schedule (Ex R-9), photocopy of survey report (Ex. R-10) and photocopies of letters dated 23.10.07 and 30.10.07 (Ex. R-11 & Ex. R-12) respectively have been tendered in evidence.<br /> 6. We ave heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of opposite party No. 1.<br /> 7. Some are the undisputed facts in this case. They are that complainant had taken Insurance Policy from opposite party No. 1 concerning his Alto Car for the period from 30.11.06 to 29.11.07. This vehicle was hypothecated with opposite party No. 2. IDV of this vehicle was Rs. 2,07,640/-. It had met with an accident on 20.3.07. Intimation of the accident was given to opposite party No. 1. Vehicle was taken to Tara Automobiles. Opposite party No. 1 had deputed Er. Rakesh Kumar Gupta, Surveyor & Loss Assessor to conduct the survey and assess the loss. Survey was conducted by him on 4.4.07 at M/s. Tara Automobiles. Interim report was submitted by him copy of which is Ex. R-3. It was a case of total loss of the vehicle.<br /> 8. One of the objections taken by opposite party No. 1 in the reply is that intricate questions of law and facts are involved for which voluminous documents and evidence is required and as such, the appropriate remedy if any lies with the civil court. This objection is not tenable in view of the observations of their Lordships of Hon'ble Supreme Court in the case of CCI Chamber Co-op Housing Society Limited Vs. Development Credit Bank Limited III(2003) CPJ 9 (SC) wherein it has been held that merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved. Similar view has been held in the case of J J Merchant and Others Vs. Shrinath Chaturvedi and others III (2002) CPJ 8 (SC). <br /> 9. Mr. Garg, learned counsel for opposite party No. 1 argued that complainant was asked to submit Indemnity-cum-declaration for payment of the claim amount but they were not submitted. He further argued that complainant has admitted in his affidavit Ex. C-3 and para No. 4 of the complaint that opposite party No. 1 had assured to settle the claim on net salvage/cash loss basis and that complainant has admitted the salvage value as assessed by opposite party No. 1. Complainant is further relying upon the letter dated 5.9.07 of opposite party No. 1, copy of which is Ex. C-1 in which it has been mentioned that vehicle has been badly damaged in the road accident and claim is being settled on net salvage/cash loss basis. He further drew our attention to the final report of the surveyor, copy of which is Ex. R-10 whereby net of salvage loss has been assessed as Rs. 75,000/-. His next submission is that if this Forum comes to the conclusion that amount is payable, opposite party No. 1 is not liable to pay anything more than Rs. 1,32,040/- as per report of the surveyor after deducting the value of salvage.<br /> 10. Mr. Goyal, learned counsel for the complainant argued that complainant did not agree to receive the salvage of the vehicle for Rs. 75,000/-. Surveyor has wrongly mentioned the IDV in his reports copies of which are Ex. R-3 & Ex. R-10 as Rs. 2,07,540/- in place of Rs. 2,07,640/-. Indemnity-cum-declaration has already been submitted to opposite party No. 1 by the complainant alongwith his affidavit. He further argued that there is no admission on the part of the complainant for taking the salvage and that complainant is not ready and willing to get it.<br /> 11. We have considered the respective arguments.<br /> 12. So far as the affidavit Ex. R-1 of Er. Rakesh Kumar Gupta that complainant did not send Indemnity-cum-declaration of undertaking is concerned, it stands amply rebutted with the affidavit Ex. C-3 of the complainant in which he states in so many words that he has already completed formalities with regard to submission of Indemnity bond-cum-declaration alongwith affidavit and that he has submitted Indemnity bond with regard to salvage value. There is nothing to disbelieve the affidavit of the complainant. Mere fact that complainant has not placed on record copy of the Indemnity bond cum declaration is no ground to disbelieve him. Moreover, learned counsel for opposite party No. 1 could not show us any rule, term and condition of the policy according to which Indemnity bond cum declaration is must for payment of the claim. No doubt complainant has mentioned in his affidavit that he has submitted the Indemnity bond with regard to salvage as assessed by opposite party No. 1, yet this does not mean that he has admitted that he would receive the salvage of the vehicle for Rs. 75,000/-. No document executed by the complainant for receiving the salvage of the vehicle for Rs. 75,000/- has been placed and proved on record by opposite party No. 1. As per report copy of which is Ex. R-10 surveyor & loss assessor after confirming the price of the salvage from the local market etc assessed its value as Rs. 62,000/-.When market value of the salvage has been considered by Er. Rakesh Kumar Gupta as Rs. 62,000/- then it does not sound to reason that complainant offered Rs. 75,000/- for net salvage value of the car. Learned counsel for the complainant has made statement on 4.7.08 that complainant is not ready and willing to accept the salvage of the car. In these circumstances, opposite party No. 1 is not justified in deducting Rs. 75,000/- out of the IDV of the car i.e. Rs. 2,07.640/-. Surveyor & Loss assessor has taken the amount of IDV as Rs. 2,07,540/-. In fact it is Rs. 2,07,640/-. As per certificate cum policy schedule copy of which is Ex. R-9 compulsory deduction is Rs. 500/- which has to be deducted from the IDV. In this manner, amount comes to Rs. 2,07,140/-. When it is a case of total loss of the vehicle, IDV is payable as has been held by the Hon'ble State Commission, Punjab in the case of United India Insurance Company Limited Vs. Gurjant Singh, first appeal No. 1347 of 2005 decided on 31.1.06. Submission of the learned counsel for opposite party No. 1 that opposite party No. 1 is not liable to pay anything more than Rs. 1,32,040/- cannot be accepted in view of the discussion made above. To the contrary, opposite party No. 1 is liable to pay Rs. 2,07,140/-. No provisions of law has been shown to us according to which complainant can be compelled to receive the salvage of the vehicle. It is his sweat will to accept it or not. Since opposite party No. 1 has not paid the amount of Rs. 2,07,140/- to the complainant, deficiency in service on its part is proved.<br /> 13. Now question arises as to which relief should be accorded to the complainant. Accident had occurred on 20.3.07. Its intimation was given to opposite party No. 1 well in time. Opposite party No. 1 has not settled the claim. It was required to decide the claim within 3 months which has not been done. Accordingly, opposite party No. 1 is liable to pay the amount of Rs. 2,07,140/- to the complainant alongwith interest @9% P.A. from 21.06.07 ( the date calculated on expiry of three months period from the date of accident i.e. 20.3.07 a period required for processing the case in an effective manner in normal case) till realisation. Complainant is craving for parking charges of Rs. 23,000/- and compensation to the tune of Rs. 20,000/- for mental tension. No document has been placed on record by him to show that Tara Automobiles has claimed Rs. 23,000/- as parking charges from him. There is no case to allow compensation for mental tension in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed.<br /> 14. No doubt vehicle was hypothecated with opposite party No. 2. Account has been got foreclosed from opposite party No. 2 as is clear from the copy of payment receipt submitted before us today by the learned counsel for the complainant.<br /> 15. In the premises written, complaint is allowed against opposite party No. 1 with cost of Rs. 1,000/-. It stands dismissed qua opposite party No. 2. Complainant and opposite party No. 1 are directed to do as under :-<br /> i) Complainant to transfer the ownership of the car in question in the name of opposite party No. 1 within two months from the date of receipt of copy of this order.<br /> ii) Opposite party No. 1 to pay Rs. 2,07,140/- to the complainant alongwith interest @9% P.A. from 21.06.07 till payment if he (complainant) transfers the car in its name within two months from the date of receipt of copy of this order. In case he fails to transfer the car in its name, he would not be entitled to interest after the expiry of two months after the receipt of copy of this order. In other words, if he transfers the ownership of the car after two months after the receipt of copy of this order, he would be entitled to receive Rs. 2,07,140/- alongwith interest upto 2 months after the receipt of copy of this order. <br /> Compliance regarding payment of cost be made within 30 days from the date of receipt of copy of its order. Copy of this order be sent to the parties concerned free of cost and file be consigned to record room. <br /> Pronounced :<br /> 08-07-2008 (Lakhbir Singh )<br /> (Dr.Phulinder Preet) President<br /> Member<br /> *iki <br />