Haryana

Karnal

CC/692/2021

Ram Avtar Gupta - Complainant(s)

Versus

ICICI Lombard General Insurance Company - Opp.Party(s)

Parveen Kumar

26 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL

                                                        Complaint No.692 of 2021

                                                        Date of instt. 13.12.2021

                                                        Date of Decision: 26.09.2024

 

Ram Avtar Gupta son of Shri Ram Niwas Singla, resident of House No.650, Sector-8, Karnal.

                                                                        …….Complainant.

                                              Versus

 

1. ICICI Lombard General Insurance Co.Ltd. SCO No.3, 2^nd floor, Sector-8, Karnal, Haryana through its Branch Manager.

 

2. Luxury Ride India Pvt. Ltd. near Bharat Petrol Pump, G.T. Road, Karnal-132001, through its authorized person.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President      

              Ms. Neeru Agarwal……...Member

      Ms. Sarvjeet Kaur………..Member

 

Argued by:  Shri Parveen Kumar, counsel for the complainant.

                    Shri Ashok Vohra, counsel for the OP no.1.

                    Shri Amardeep Singh, counsel for the OP no.2.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got insured his Audi A4 2.0 TDI car bearing registration no.HR-29G-0009, vide policy no.3001/211009296/00/000, valid from 01.12.2020 to 30.11.2021 with the OP. The said policy was cashless and zero depreciation policy. The insured declared value (IDV) of the vehicle was Rs.12,07,710/-. On 25.06.2021, son of complainant namely Piyush Gupta, who is holding the valid driving licence was coming from Hotel Noor Mahar, Karnal in the abovesaid car and when he reached near sector-9, Karnal, then suddenly a cow came in front of the car and in order to save the said cow, he lost his balance as a result of which car over-ride the divider due to which car was badly damaged. The intimation regarding the said accident was given to the OP no.1. The complainant parked the said car with the help of Shiv Radhe Crane Service, Karnal to the showroom/workshop of the OP no.2 being their authorized agency. OP no.1 appointed a surveyor and requisite formalities were completed by the complainant and the necessary documents as demanded by the OP were submitted by the complainant and the damages were thoroughly inspected and necessary photographs were taken. Survey of the car was conducted and the surveyor after going through the claim, insurance particulars, vehicle particulars, driver’s particulars, accident particulars, prepared the estimate of repairs to the tune of Rs.5,79,467/-. Thereafter, OP no.2 in collusion with the OP no.1, without assigning any reasons, repaired only few parts of the vehicle and left some major parts unrepaired and raised a demand of Rs.2,42,509/-, vide invoice no.LRK/21-22/100468 dated 31.07.2021 but OP no.1 did not release the amount of repair and as such OP no.2 did not release the vehicle and directed the complainant first to make the payment only after that, the vehicle will be given to the complainant. The complainant approached the OP no.1 for release of claim amount, upon which, Er. J.K. Sharma and Loss Assessor of the OP, demanded some documents, vide letter dated 25.08.2021, which were duly supplied by the complainant to him. But even then the OP no.1 did not release the claim amount to the complainant. OP no.2 withheld the abovesaid vehicle of the complainant illegally for a long time i.e. more than two months, under the pretext that they are in the process of obtaining necessary permission from the OP no.1 for repair of vehicle. On 28.08.2021, under compelling circumstances, complainant paid an amount of Rs.2,42,509/- through RTGS to the OP no.2 and took the delivery of the car. After that complainant approached the OP no.1, number of times and requested to release his claim amount and to get his vehicle repaired completely but OP no.1 neither released the claim amount nor got the vehicle repaired completely as per estimate prepared by the OP no.2. The vehicle of complainant is still having damages/defects and is not in a position to ply on road. In this way, there is deficiency in service and unfair trade practice on the part of the OPs. Hence, the present complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that complainant got insured his car Audi A4 2.0 TDI with the OP no.1. It is wrong to alleged that on 25.06.2021, son of complainant namely Piyush Gupta was coming from Hotel Noor Mahal Karnal in the abovesaid car and accident has occurred due to cow came in front of said car and the son of the complainant lost his balance as a result of which car of the complainant over ride the divider due to which car was badly damaged. The complainant has not given immediate intimation qua the accident of insured car to the OP no.1.  The complainant has parked the vehicle to the workshop of OP no.2 being their authorized agency at his own wish. It is further pleaded that on receipt of intimation, OP appointed a surveyor, who conducted the survey and took the photographs of said vehicle. Thereafter, OP demanded the necessary documents but complainant did not supply the same. Vide letter dated 30.08.2021 and 20.09.2021 complainant was asked to supply the “invoice” but complainant has not supplied the same, so question of withholding the car by OP no.2 on account of non-payment of repair bill is denied for want of knowledge. It is denied that the estimate of repairs was prepared to the tune of Rs.5,79,467/-. Complainant did not supply the required documents to the OP, so the claim of the complainant was closed due to non-supply of “invoice” inspite of repeated requests. The demanded document is very much material for settlement of the claim. It proves that the complainant has no insurable interest and now the complaint is premature and liable to be dismissed. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; locus standi; jurisdiction and concealment of true and material facts. On merits, it is pleaded that repairing or replacement of parts were required to be done in the vehicle in question and that was done by the OP no.2 for which an amount of Rs.2,42,509/- was to be paid by the complainant or the insurer qua which invoice no.100468 dated 31.07.2021 was rightly and legally issued to the complainant. There was no collusion between the OP no.2 and OP no.1 as alleged. The OP no.2 was unable to release the vehicle without getting its amount but the complainant did not bother to pay the same despite repeated requests made by him. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of RC Ex.C1, copy of aadhar card Ex.C2, copy of driving licence Ex.C3, copy of insurance policy Ex.C4, photographs of car Ex.C5, copy of crane service cash memo Ex.C6, copy of estimate Ex.C7, copy of gate pass Ex.C8, copy of proforma invoice/estimate Ex.C9, copy of tax invoice Ex.C10, copy of gate pass Ex.C11 (already exhibited as Ex.C8), copy of e-mail Ex.C12, postal receipt Ex.C13, copy of letter dated 25.08.2021 Ex.C14, copy of registered envelop Ex.C15, copy of gmail Ex.C16, postal receipt Ex.C17, copy of gate pass Ex.C18, copy of receipt of payment Ex.C19, copies of messages Ex.C20, copies of emails Ex.C21 and Ex.C22, copy of gate pass dated 30.08.2021 Ex.C23, copy of reply to letter dated 31.08.2021 Ex.C24, copy of notice dated 08.09.2021 Ex.C25, postal receipt Ex.C26, copy of letter dated 13.10.2021 Ex.C27, copy of notice Ex.C28, postal receipt Ex.C29 and closed the evidence on 04.11.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Sony Rathi, representative of OP Ex.OP1/A, affidavit of J.K. Sharma, Surveyor Ex.OP2/A, copy of closing of claim letter dated 13.10.2021 Ex.O1, copy of Motor Survey Report Ex.O2, copy of RC Ex.O3, copy of claim registration Ex.O4, copy of driving licence Ex.O5, copy of smart driving licence Ex.O6, copy of check status Ex.O7, copy of insurance policy Ex.O8 and closed the evidence on 09.10.2023 by suffering separate statement.

7.             Learned counsel for OP No.2 suffered his separate statement to the effect that written version filed on behalf of OP be read as part and parcel of its evidence and closed the evidence on 09.10.2023.

8.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for the complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his car with the OP No.1. On 25.06.2021, the said car met with an accident and badly damaged. The intimation was given to the OP no.1 and vehicle was shifted to the workshop of the OP no.2. The estimate of repairs was prepared to the tune of Rs.5,79,467/- by the OP No.2. The policy in question was zero depreciation and cashless. The complainant submitted all the required documents for release of claim amount with the OP No.1 but neither OP No.1 released the claim nor OP No.2 has repaired the vehicle completely. On 28.08.2021, under compelling circumstances, complainant paid an amount of Rs.2,42,509/- to the OP no.2 and took the delivery of the partly repaired car. The complainant approached the OPs number of times for releasing the paid amount and to get the car in question repaired completely, but both the OPs in collusion with each other neither release the paid amount nor repaired the car completely. OP No.2 repaired only few parts and left the some major parts unrepaired. The car of the complainant is still having defects since the date of accident. The complainant has supplied all the requisite documents to the surveyor of OP No.1. The OP No.2 has received full cost of repairing of steering but replaced only upper part of the steering and did not replace/repair the lower part of the steering of the car. In this way, the act of OPs amounts to deficiency in service and unfair trade practice and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that on receipt of intimation, OP appointed a surveyor, who conducted the survey and took the photographs of said vehicle. Vide letter dated 30.08.2021 and 20.09.2021 complainant was asked to supply the “invoice” but complainant did not supply the same, thus, the claim of the complainant has been rightly closed due to non-supply of “invoice” and lastly prayed for dismissal of the complaint.

11.           Learned counsel for the OP no.2, while reiterating the contents of written version, has vehemently argued that the vehicle in question was repaired properly and an amount of Rs.2,42,509/- was received from the complainant. The car was handed over to the complainant in a roadworthy condition. There is no deficiency in service and unfair trade practice on the part of the OP No.2 and lastly prayed for dismissal of the complaint.

12.           We have duly considered the rival contentions of the parties.

13.           Admittedly, complainant got insured his vehicle with the OP no.1. It is also admitted that the vehicle in question met with an accident during the subsistence of the insurance policy. It is also admitted that the insured declared value of the vehicle in question was Rs.12,07,710/-. It is also admitted that the policy of the car in question was zero depreciation and cashless policy. It is also admitted that the complainant paid Rs.2,42,509/- as cost of repair of car.

14.           The claim of the complainant has been closed by the OP no.1, vide letter Ex.C27/Ex.O1 dated 13.10.2021, which is reproduced as under:-

“Please note that the claim no.MOT11129555 remains unprocessed as the following documents required for claim appraisal have not been received by us.

1. Invoice

The same was informed to you vide letters dated 30.08.2021 and 20.09.2021.

We are unable to process the claim for the above stated reason(s), we would be treating the claim as closed and hence, ICICI Lombard shall not have any liability in respect of the captioned subject matter. In case you want any further clarification please feel free to communicate with us  the below contact details at your convenience, quoting the above claim number and we shall be please to assist you.”

 

15.           The claim of the complainant has been closed on the abovesaid ground. OP No.1 has alleged that complainant has not submitted the invoice despite repeated requests. On receiving the payment of Rs.2,42,509/- vide receipt Ex.C19 dated 28.08.2021, the vehicle in question was released to the complainant vide gate pass Ex.C8 by the OP No.2.

16.           The OP No.1 has appointed Er.J.K.Sharma, Surveyor and Loss Assessor to survey the vehicle in question who wrote a letter Ex.C14 dated 25.08.2021, to the complainant demanding “original cancel cheque” and “KYC”. In the said letter, the surveyor has not demanded the invoice as alleged by the OP No.1 in its letter wherein the claim of the complainant has been closed. The invoice Ex.C9 has been issued on 31.07.2021 and the said letter is of dated 25.08.2021. From the perusal of invoice it reveals that the said invoice has been issued in favour of OP No.1. Thus, it appears that the surveyor of the OP No.1 had already collected the invoice from the OP No.2.

17.           Furthermore, OP No.1 vide letters dated 31.08.2021 Ex.C24, closing letter dated 13.10.2021 Ex.O1 alleged letter dated 20.09.2021, has demanded the invoice from the complainant. Invoice Ex.C9 has been issued on 31.07.2021 and the alleged letters have been sent after issuing the invoice Ex.C9. Surveyor of the OP No.1 has not demanded the invoice from the complainant vide his letter Ex.C14 dated 25.08.2021 which was the first letter wherein demand of documents were raised from the complainant. Meaning thereby, the surveyor of the OP No.1 has already collected the invoice from the OP No.2. Thus, the demand of invoice by the OP No.1 from the complainant vide the said letters are nothing and just to harass the complainant and denied the genuine claim of the complainant. Furthermore, when the complainant placed on file the copy of invoice then as to why he would have not supplied the same to the OP and will indulge himself in an unwanted litigation. Thus, we found no substance in the contention of OP.

18.           The OP No.2 has issued a estimate Ex.C7 dated 05.07.2021, which is reproduced as under:-

Sr. No	Part Name	Description	GST Rate	Quantity	Unit Price	Taxable	Parts Total
1.	Steering Assy	Part	28	1	185487.00	185487.00	237423.36
2.	Noise Insulation front engine	Part	28	1	36900.00	36900.00	47232.00
3.	Noise Insulation gear box	Part	28	1	10776.00	10776.00	13793.28
4.	Under Body Trim Left	Part	28	1	9253.00	9253.00	11843.81
5.	Under body trim right	Part	28	1	9253.00	9253.00	11843.81
6.	Under body trim left front	Part	28	1	1473.00	1473.00	1885.44
7.	Under body trim left front	Part	28	1	1473.00	1473.00	1885.44
8.	Coupling Rod link rod	Part	28	2	5170.00	10340.00	13235.20
9.	Suspension guide right front	Part	28	1	32499.00	32499.00	41598.72
10.	Suspension guide left front	Part	28	1	32499.00	32499.00	41598.72
11.	Alloy wheel	Part	28	2	45510.00	91020.00	116505.60
12.	Wheel Housing linner left front	Part	28	1	6649.00	6649.00	8510.72
13.	Wheel Housing Linner right front	Part	28	1	6649.00	6649.00	8510.72
						Taxable value	434271.00
						GST Total	121595.88
						Discount	0.00
						Round off	555867.00
14.	Labour charges	Labour	18		20000.00	20000.00	23600.00
						Taxable value	20000.00
						GST Total	3600.00
						Discount	0.00
						Round off	23600
						Grand Total	579466.88
						Round off	579467.00

 

19.           After repairing the vehicle of the complainant, the OP No.2 has issued an invoice Ex.C9 dated 31.07.2021, which is reproduced as under:-

Sr No	Part Name	Description	GST Rate	Quantity	Unit Price	Payable Amount	Taxable	Parts Total
1	Steering Rack/AUDI	8T2422066B	28	1	185296.09	185296.09	185296.09	237179.00
2.	Power Steering Oil	Steering Oil	18	1	1016.94	1016.94	1016.94	1199.99
3.	Labour charges	00440181	18		3500.00	3500.00	3500.00	4130.00
						Total		242509.00

 

20.              From the bare perusal of the estimate Ex.C1 it is crystal clear that thirteen parts were required to be repaired/replaced in the vehicle in question but in the invoice Ex.C9,  OP No.2 has only repaired the steering rack and changed the power steering oil despite knowing the fact that there are several other parts were to be repaired/replaced. From the invoice Ex.C9, it is crystal clear that the OP No.2 has charged the cost of entire steering i.e. internal part and external part whereas, he has only replaced the external part of the vehicle in question. It is also not possible that the OP No.2 has given the estimate of thirteen parts and has only found one part required to be replaced. Thus, it has been proved on record that OP No.2 has not repaired/replaced the required parts of the vehicle in question. Hence, the possibility of truthfulness of the allegations leveled by the complainant against the OPs cannot be ruled out. Furthermore, it has also proved from the e-mails Ex.C12, Ex.C13, Ex.C21, Ex.C22 that the complainant has continuously approached the OPs to repair the vehicle in question in all respects.

 21           Since, it has been proved on record that the OP no.2 has not repaired the vehicle of the complainant completing in all respects. Therefore, complainant is hereby directed to handover the vehicle in question to the OP no.2 and on receipt of the vehicle, OP no.2 is directed to repair/replaced the parts of the vehicle described in estimate Ex.C1 free of costs within 15 days. After repairing the vehicle, two engineers of the OP no.2 would examine the vehicle and issue a certificate to the complainant with respect to the fact that the vehicle of the complainant is now out of defect described in the estimate Ex.C1.

22.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

23.           Keeping in view the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OPs amounts to deficiency in service and unfair trade practice.

24.           Thus, in view of the above discussion, we allow the present complaint and direct the OP No.1 to pay amount of invoice i.e. Rs.2,42,509/- alongwith interest @ 9% per annum from the date of closing of claim i.e. 13.10.2021 till its realization to the complainant. We further direct both the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense in equal share. The complainant is also directed to handover the vehicle in question to the OP no.2 and on receipt of the vehicle, OP no.2 is directed to repair/replace the parts of the vehicle described in estimate Ex.C1 free of costs, within 15 days and handover the vehicle in question to the complainant. Thereafter, OP No.2 claimed the repaired amount from the OP No.1 being the insurer of the vehicle in question. This order shall be complied within 45 days from the date of receipt of copy of the order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 26.09.2024                                                           

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)         (Sarvjeet Kaur)

                            Member                     Member