Haryana

Yamunanagar

CC/838/2011

M/s OSCAR Remedies Pvt.Ltd. - Complainant(s)

Versus

ICICI Lombard General Insureance Co.Ltd. - Opp.Party(s)

Harvinder Aneja

28 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                                           Complaint No.  838 of 2011

                                                                                                           Date of institution: 5.8.2011

                                                                                                           Date of decision:  28.9.2015

M/s OSCAR  Remedies Pvt. Ltd. Head Office at OSCAR House, Vill. Badi Majra, P.O. Pansara, Yamuna Nagar, through its Managing Director Sh. Navdeep Dhingra.    

                                                                                                                                                                         …Complainant.

                                                Versus

1. I.C.I.C.I. Lombard General Insurance Co. Ltd. Zenith House, Keshavrao Khadye Marg, Mahalaxmi, Mumbai, through its Managing Director. 
2. I.C.I.C.I. Lombard General Insurance Co. Ltd. Gobindpuri Road, Near Hotel J.K.Residency, Yamuna Nagar, through its Branch Manager.                                                                                                                                                                                                                                                                                                                …Opposite parties

BEFORE:         SH. ASHOK KUMAR GARG, ………………………PRESIDENT

                        SH. S.C.SHARMA, ………………………………….MEMBER.  

 

Present: Sh. Harvinder Aneja, Advocate, counsel for complainant.   

              Sh. Parmod  Gupta, Advocate, counsel for OPs.

 

ORDER

1.                     Complainant firm has filed the present complaint under section 12 of the Consumer Protection Act. 1986 amended up to date.

2.                     Brief facts of the complaint, as alleged by the complainant firm, are that complainant firm is registered owner of vehicle bearing registration No. HR-02T-9191, make Fabir Skoda which was insured with the respondents (hereinafter referred as OPs) vide policy/cover Note No. 54980980 valid from 12.9.2009 to 11.9.2010 for  a sum of Rs. 6,27,104/- and paid a premium of Rs. 11506/-. The said vehicle of the complainant firm met with an accident on 17.5.2010 which was repaired from authorized workshop of Skoda Company and the complainant spent a sum of Rs. 47922/- on its repair. The OPs were duly informed and claim of Rs. 47922/- was lodged with the OPs and necessary formalities were also completed. The surveyor and loss assessor Sh. Manoj Kumar Kukreja was deputed who submitted his report on 28.9.2010 and Rs. 15666/- out of Rs. 47922/- only was passed by the abovesaid surveyor/Loss Assessor and in this way an amount of Rs. 35256/- has been with held wrongly, illegally without any reasons. The complainant has visited and requested the OPs many times for getting full claim of loss/repair of his vehicle but the OPs are not paying any heed to the genuine request of the complainant firm. A legal notice dated 15.1.2011 (Annexure C-4) was also got served but despite that OPs have neither replied the same nor issued the balance amount to the complainant. Hence, there is a great deficiency in service and lastly prayed that OPs may kindly be directed to make the payment of balance amount of Rs. 35256/- alongwith interest at the rate of  24% per annum and Rs. 50,000/- on account of mental agony and harassment etc. and Rs. 11,000/- on account of cost of proceedings.

3                      Upon notice, OPs appeared through its counsel and filed written statement by taking some preliminary objections such as complicated question of law and fact is involved which cannot be decided in a summarily nature and as such complaint is liable to be dismissed and on merit, it has been mentioned that after receiving the intimation, a licensed Independent Surveyor and Loss Assessor Sh. Manoj Kumar Kukreja was deputed to assess the loss who gave his fact finding report on 28.9.2010 assessing the loss of Rs. 15665.72 after adjusting the excess clause and salvage value and this amount i.e. Rs. 15666/- stands paid to the claimant, who received the same and got encashed the cheque without any prejudice, so, he is now stopped to file the present complaint. As such, the complaint is liable to be dismissed.  .

4                      To prove the case, counsel for the complainant firm has tendered into evidence affidavit of Navdeep Dhingra, Managing Director as Annexure CX and documents such as Photo copy of Account Statement as Annexure C-1, Photo copy of Insurance policy as Annexure C-2, Photo copy of Registration Certificate as Annexure C-3, Copy of legal notice dated 15.1.2011 as Annexure C-4, Photo copy of postal receipt as Annexure C-5, Photo copy of Acknowledgement as Annexure C-6 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for opposite parties has tendered affidavit of Sh. Gurpreet Bhullar Manager (Legal) as Annexure RX, affidavit of Manoj Kumar Kukreja Surveyor & Loss Assessor as Annexure RY and documents such as Photo copy of Surveyor report as Annexure R-1, Photo copy of voucher regarding payment as Annexure R-2, Photo copy of claim intimation sheet as Annexure R-3, Photo copy of claim form as Annexure R-4, Photo copy of insurance policy as Annexure R-5 and closed the evidence on behalf of OPs.

6                             We have heard learned counsel for both the parties and have gone through the pleadings as well as documents carefully and minutely placed on the file. Counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in their reply and prayed for its dismissal.

7                      It is an admitted fact that the complainant firm is a registered owner of the vehicle bearing No. HR-02-T-9191 which was insured with the OPs for a sum of Rs. 6,27,104/- w.e.f. 12.9.2009 to 11.9.2010. It is also not disputed that the vehicle of the complainant firm was not met with an accident and got damaged. The only plea of the complainant is that he has spent Rs. 47922/- on the repair of the vehicle in question from the authorized workshop of Skoda Company whereas the OPs has made the payment only an amount of Rs. 15666/- vide cheque No. 24200 dated 9.7.2010. Learned counsel for the complainant argued that the OPs has made the payment of Rs. 15666/- out of Rs. 47922/- which is totally illegally unjustified and the complainant is liable to get the full amount spent on the repair i.e. Rs. 47922/-.

8.                     On the other hand, counsel for OPs has filed the surveyor report (Annexure R-2) of Sh. Manoj Kumar Kukreja, Surveyor & Loss Assessor in which an amount of Rs. 15665.72 i.e. Rs. 15666/- has been assessed after deducting the value of salvage and excess clause which is legal  and justified and referred the case law titled as United India Insurance Company Ltd. Vs. Bhriguram Mondal & Others, 2014(1) CLT page 255 wherein it has been held that Insurance Claim-survey report-Claim is to be allowed on the basis of survey report alone-Complainant was under an obligation to file documents to rebut survey report otherwise survey report being an authentic document is to be relied.  Learned counsel for the OPs further argued that the owner of the vehicle in question is registered firm, hence the complaint of the complainant is liable to be dismissed being a commercial one and referred the case law titled as Economic Transport Organisation Versus Charan Spinning Mills (P) Ltd. and another, 2010 (2) CLT Page 302 Supreme Court of India wherein it has been held that Commercial purpose-Carrier-Deficiency in service-Insurance claim-Subrogation- Complaint maintainability- After amendment of section 2(1)(d) w.e.f. 15.3.2003 if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a consumer and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.

9.                     In the present case, the arguments advanced by the counsel for the complainant is not tenable as the complainant has totally failed to file any cogent evidence to controvert the version of the OPs even the complainant has not filed any documentary evidence regarding expenses of Rs. 47922/- incurred on repair of the vehicle in question. The complainant has also not filed any expert report or affidavit of any Manager of workshop from which he has got repaired his vehicle to controvert the version of the OPs.  On the other hand, counsel for the OPs has also filed an affidavit of the Surveyor Manoj Kumar Kukreja as well as affidavit of Sh. Gurpreet Singh Manager (Legal) in support of the surveyor report as Annexure RY & RX and the complainant also failed to point out any discrepancy or ambiguity in the said report. It is settled proposition of the law that credence should be given to the surveyor report. 

10.                   In the circumstances noted above, we are of the considered view that the complainant has miserably failed to file any authenticated evidence to rebut the version of the OPs as well as surveyor report. Thus, there is no deficiency in service on the part of OPs.

11.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 28.9.2015.

                       

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

 

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.