Haryana

Panchkula

CC/572/2019

HARSUKHCHAIN SINGH. - Complainant(s)

Versus

ICICI LOMBARD INSURANCE COMPANY LTD. - Opp.Party(s)

VISHAL SAINI

20 Mar 2023

ORDER

 

Before the District Consumer, Dispute Redressal, COMMISSION, Panchkula.

Consumer Complaint No.	:	572 of 2019
Date of Institution	:	14.10.2019
Date of Decision	:	20.03.2023

 

Harsukhchain Singh s/o Sh.Prem Singh, resident of H.No.610, Sector-2, Panchkula.                                                                                                                                                                     …….Complainant

Versus

1.     ICICI Lombard Insurance Company Limited, Second Floor, SCO-244, Sector-20 near ICICI Bank Panchkula, Haryana-134116 through its GM/Branch Manager/Officer Incharge.

2.     ICICI Lombard Insurance Company Limited, 401-402, 4^th Floor, Interface 11, New linking road, Malad(West)Mumbai, 400064,      through its GM/Branch Manager/Officer Incharge.  

3.     Sunil Kumar Surveyor C/o ICICI Lombard, GIC Ltd, 4^th floor Plot         No.149, the statement building, industrial Area, Phase l, Chandigarh-   160002.

4.     Jatin Arora Area Sales Manager C/o ICICI Lombard, GIC Ltd. 4^th Floor         Plot No.149, the statement building, industrial Area, Phase l,    Chandigarh-160002.

5.     M/s Berkley Auto Limited Plot No.375, Industrial Area Panchkula        through its GM/Manager/representative.

   ….. Opposite Parties

Complaint under Sec.35 of the Consumer Protection Act, 2019     

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                       

For the Parties:   Sh. Vishal Sahni, Advocate, for the complainant.

                        Sh. Gaurav Sharma, Advocate, for the OPs No.1 & 2.

                        OPs No.3 to 5 already exparte vide order dated                               03.12.2019.

Order

(SATPAL, president)

1.The brief facts, as alleged in the present complaint are that a vehicle insurance policy bearing no.3001/176014470/00/000was purchased by the complainant by paying the premium of Rs.13,224/- qua his vehicle bearing no. CH01BN7014, Make Hundai Creta covering the risk period from 24.07.2019 to 23.07.2020; the insurance policy was a comprehensive policy based on zero depreciation basis. It is stated that the said vehicle bearing no. CH01BN7014, Make Hundai Creta met with an accident and accordingly claim was lodged with the OPs claiming the repair charges. It is stated that the OPs No. 4 and 5 had given an estimate of repair charges amounting to Rs. 53,100/-. The necessary repairs were carried out by OP No. 5. It is stated that the complainant was compelled to pay a sum of Rs. 21,613/- out of total bill of Rs. 45,821/-. It is stated that the complainant had paid the amount of Rs. 21,613/- under compelling circumstances as he was not liable to pay the same. The act on the part of the OPs No. 1 to 4 asking the Complainant to pay the amount of Rs. 21,613/- was invalid and illegal. The claim of the complainant has been turned down by OPs No.1 to 5 on vague, baseless and whimsical grounds.This act and conduct of the OPs amounts to deficiency in service on their part. Hence, this complaint.

2.Upon notice, the OPs No.1 & 2 appeared and filed the written statement by taking some preliminary objections such as the present complaint is not maintainable being false and baseless; the Complainant has not approached with clean hands and suppressed the true facts; no cause of action has accrued in favour of the Complainant; the consumer commission has no jurisdiction to entertain and try the present complaint.

The factual position in the present complaint is that upon getting the information of the accident, the Ops had appointed their IRDA approved Surveyor to assess the actual loss caused to the vehicle. The Surveyor had submitted his report to the company assessing the payable amount of Rs.22,519/- against the invoice amount of Rs.24,208/- and on the basis of that report, the OPs had paid an amount to the garage on 29.08.2019. It is incorrect to state that OPs No.4 & 5 told the complainant about the repair charges to the tune of Rs.53,100/-. Thus, there is no deficiency in service on the part of the OPs No.1 & 2 and requested for dismissal of the complaint with special cost.

                Notices were issued to the OPs No.3 to 5 through registered post (vide registered post No.CH025499627IN to OP No.3, registered post No.CH025499595IN to OP No.4 and registered post No. 025499613IN to OP No.5), which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.3 to 5; hence, it was deemed to be served and thus, due to non appearance of Ops No.3 to 5, they were proceeded ex-parte by this Commission vide its order dated 03.12.2019.

3.The learned counsel for the complainant has tendered his affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, counsel for the OPs No.1 & 2 tendered affidavit Annexure R-A along with documents Annexure R-1 & R-2 and closed the evidence.

4.We have heard learned counsels for the complainant as well as OPs No.1 & 2 and have gone through the entire record available on file including written arguments filed by the OPs No.1 & 2, minutely and carefully.

5.Admittedly, the claim was lodged by the Complainant with the OPs seeking the indemnification of the losses caused to his car bearing no.CH01BN7014 in an accident during the validity period of the policy bearing no. 3001/176014470/00/000, which was valid from 24.07.2019 to 23.07.2020. It is also evident that the car was insured on zero depreciation basis. The grievance of the complainant is that he had to make the payment of Rs.21,613/- out of total bill of Rs.45,821/- to OP No.5 in respect of repair charges of the accidental car despite the fact that the car was insured on zero depreciation basis. In the present complaint, the refund of Rs.21,613/- along with compensation of Rs.2,75,000/-on account of harassment, travelling expenses and litigations charges respectively has been claimed.

6.The OP No. 1 and 2 have contested that complaint, apart from merits, by taking several preliminary objections. The preliminary objection qua concealment of facts is devoid of any force for want of clarification as to what facts has been concealed by the Complainant. The preliminary objection qua no cause of action in favour of the Complainant is also rejected because the case pertains to accidental car, which was insured by the OP No. 1 and 2. The preliminary objection qua jurisdiction is also found baseless and meritless in view of the fact that the accidental car was repaired by OP No. 5 who falls under the jurisdiction of the commission. Moreover, the office of the OP No. 1 who had insured the car in question is situated in the jurisdiction of this Commission.

 7. On merits, the OPs No.1 & 2 have denied their liability on the ground that a sum of Rs.22,519/- as assessed by the surveyor qua invoice amount of Rs.24,208/- have already been paid to the Garage Owner i.e. OP No.5 on 29.08.2019. The Ld. Counsel appearing on behalf of OP No. 1 and 2 vehemently contended that surveyor as approved by IRDA was deputed to assess the loss caused to the car in question and on the basis of his report, a sum of Rs. 22,519/- was paid to the OP No. 5 and thus, there was no lapse and deficiency on the part of the OP No. 1 and 2. Reliance has been placed on following case laws:-

1. Pardeep Kumar Sharma Vs. National Insurance Company, III(2008) CPJ 158(NC).
2. New Horizon Sugar Mills Ltd. Vs. United India Insurance Co.Ltd. & Ors. 2003(3) CPR 136(NC).
3. M/s Natain Cold Storage & Allied Industries Ltd. Vs. Oriental Insurance Co. Ltd. 2003(3) CPR 114(NC).
4. Bhawana Kumar Vs. General Manager Varun Webres Ltd. & Anr. 2008(4) CPR 82(NC).

8. The Ops No.3 to 5 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against them. The non-appearance of the OPs despite notice shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

9.It is not in dispute that the car in question was insured by the OP No. 1 and 2 on zero depreciation basis. As such, there was no valid justification on the part of the OP No. 1 to 4 to make any kind of deductions out of the total repair charges. Evidently, estimate of repair charges (Annexure C-2) amounting to Rs. 53,100/- was given by the OP No. 5. There is no such evidence on record which falsifies or nullifies the estimate repair charges(Annexure C-2) amounting to Rs. 53,100/-. The OP No. 5 has preferred to be proceeded against ex-parte and thus, the contentions of the Complainant qua estimate repair charges(Annexure C-2) amounting to Rs. 53,100/- go unrebutted and uncontroverted.

10.Now, coming to the actual repair charges, it is found that a total sum of Rs. 45,821/- was incurred as an expenses, out of which the Complainant was made to pay a sum of Rs. 21,613/-. In this regard, bank receipt amounting to Rs.21,613/- is available on record as Annexure C-4. The details of actual repair charges amounting to Rs. 24,208/- plus Rs. 21,613/- have been found in Annexure C-3 and Annexure C-3 (Colly). We find no clue as to the grounds which led the surveyor to disallow the repair charges amounting to Rs.21,613/- as mentioned in Annexure C-3 (Colly). The OP No. 1 and 2 have preferred to withhold the surveyor report as the same has not been placed on record. The OP No. 3, who has allegedly been the surveyor, has remained absent from the proceeding of the present case. The OP No. 1 and 2 have preferred not to bring his(surveyor) testimony by way of his affidavit on record. In the absence of surveyor report, it is not possible to decide as to why the claim of the Complainant was cleared partially. The copy of repair estimate placed on record as Mark A is of no help to the case of the OP No. 1 and 2 as the same is silent qua grounds on which the expenses incurred on several mechanical parts have been not allowed. The car was insured on zero depreciation basis, so, there was no valid justification on the part of the surveyor or the OP No. 1 and 2 to ask the Complainant to make the payment amounting to Rs. 21,613/- vide bank receipt(Annexure C-4) qua repair charges. Therefore, we have reached at the irresistible conclusion that the OPs No.1 and 2 have been deficient while rendering services to the Complainant; hence, the Complainant is entitled to relief.

11.Coming to relief, it is found that the Complainant has claimed a sum of Rs. 20,000/- as incurred by him in hiring taxis etc. This claim is declined for want of proof. However, the Complainant is entitled to the reimbursement of sum of Rs.21,613/- in addition to compensation on account of mental agony, harassment and litigation charges.

12.As a sequel to above discussion, we partly allow the present complaint against the OPs No.1 and 2(jointly and severally) with the following directions:-

1. The OPs No. 1 and 2 are directed to make the payment of 21,613/- along with interest at the rate of 9% (S.I.) w.e.f. the filing of the present complaint till its actual realization.
2. The OPs No. 1 and 2 are further directed to pay a compensation of  Rs.5,000/- to the complainant on account of mental agony and harassment.
3. The OPs No. 1 and 2 are also directed to pay a sum of Rs.5,500/- to the complainant as litigation charges.

 

13.The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:20.03.2023

 

                                    (Dr.Sushma Garg)               (Satpal)

                            Member                         President

 

Note: Each and every page of this order has been duly signed by me.

                         

                                          Satpal                                                                                      President

 

CC No. 572 of 2019

Present:     Sh. Vishal Sahni, Advocate for the complainant.

                Sh. Gaurav Sharma, Advocate, for the OPs No.1 & 2.

                OPs No.3 to 5 already ex-parte vide order dated 03.12.2022.

 

                Arguments heard. Now, to come upon 16.03.2023 for orders.

Dt.03.03.2023

 

 

                Dr.Sushma Garg        Dr.Pawan Kumar Saini          Satpal

                       Member                            Member                            President

 

Present:     Sh. Vishal Sahni, Advocate for the complainant.

                Sh.Gaurav Sharma, Advocate, for the OPs No.1 & 2.

                OPs No.3 to 5 already ex-parte vide order dated 03.12.2022.

 

                The case is fixed for orders. However, the final order could not be reduced into writing due to non availability of the steno/ stenographer as she is on leave. Now, to come upon 21.03.2023 for orders.

Dt.16.03.2023

 

 

                Dr.Sushma Garg        Dr.Pawan Kumar Saini          Satpal

                       Member                            Member                            President

 

Present:     Sh. Vishal Sahni, Advocate for the complainant.

                Sh.Gaurav Sharma, Advocate, for the OPs No.1 & 2.

                OPs No.3 to 5 already ex-parte vide order dated 03.12.2022.

 

                  Today, the case is fixed for orders. The arguments were heard by the Commission comprising of Dr.Sushma Garg(Member),  Dr.Pawan Kumar Saini(Member)and Satpal(President). The learned Member Dr.Pawan Kumar Saini has retired on 17.03.2023.

                The order has been pronounced by the Commission comprising of Dr.Sushma Garg(Member) and Satpal(President). Vide a separate order of even date, the present complaint is hereby partly allowed with costs.

 A copy of the order be sent to the parties, free of costs, and the file be consigned to the record room after due compliance.

Dt.20.03.2023

 

 

                Dr.Sushma Garg                              Satpal

                   Member                                    President