STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                     UNION TERRITORY, CHANDIGARH

Shri Dipinder Singh Brar s/o late Shri Bhupinder Singh Brar r/o H.No.20, Sector 5, Chandigarh through its authorized representative Ms. Sunamika Brar.

….…Appellant

                                      V E R S U S

1.      ICICI Lombard Motor Insurance through its Managing Director, SCO 24-25, Sector 8-C, 1st Floor, Madhya Marg, Chandigarh-160009.

2.      ICICI Lombard General Insurance Co. Ltd., 1st Floor, SCO 24-25, Sector 8-C, Madhya Marg, Chandigarh 160009 through its General Manager.

3.      EM PEE Motors Ltd. (Pioneer Toyota) Plot No.177H & I, Phase-1, Industrial Area, UT, Chandigarh 160002 through its Managing Director.

                                                       .…Respondents

BEFORE:    JUSTICE SHAM SUNDER,     PRESIDENT

                   MRS. NEENA SANDHU,                  MEMBER

Present:      Sh.Raman Walia, Advocate for the Appellant.

Sh.Sandeep Suri, Advocate for respondents No.1 and 2.

                   Respondent No.3 already exparte.

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MRS. NEENA SANDHU, MEMBER

                   This appeal for enhancement of compensation has been filed by the appellant/complainant against the order, dated 01.09.2010 passed by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 194 of 2010 whereby it (District Forum) directed the OPs as under:-

“In view of the above discussion, we are of the opinion that the OPs were deficient in giving the proper service to the complainant and were adopting unfair trade practice.  Therefore, the present complaint must succeed and the same is accordingly allowed.    The OPs are therefore directed to recalculate the claim of the stereo considering its depreciation as per the age of the vehicle as per Annexure R-1, i.e. @10% instead of 50% and release the balance payment to the complainant alongwith litigation costs of Rs.5500/- within 30 days from the date of receipt of copy of this order, failing which they would be liable to pay the same alongwith interest @12% p.a. since, the filing of the present complaint i.e. 26.03.2010, till the payment is actually made to the complainant”.

2.           The facts, in brief are that the complainant purchased a Toyota Innova car from OP-3 vide invoice dated 7.9.2007 for an amount of Rs.10,43,089.88 alongwith original fitment, such as stereo etc.  It was stated that on 12.6.2009, the vehicle was stolen from Sector 16 market, Chandigarh when it was insured with OP-2 for the period 15.9.2008 to 14.9.2009 regarding which FIR No.177 was lodged at Police Station Sector 17, Chandigarh and claim was also lodged with OP-2.  It was further stated that the OP appointed Er. Schin Gulati, to investigate the claim, and the Chandigarh Police also gave the untraced report on 2.12.2009 to the OPs.  On 16.12.2009 the police authorities informed the complainant that the stolen vehicle was recovered and he was asked to get the same released on superdari.  It was further stated that however, when the vehicle was handed over to the complainant, he found that the same was badly damaged and the stereo and many other items were missing.  Thereafter, the complainant took the vehicle to the workshop of OP-3, and he was informed by OPs 1 & 2, that the same would be repaired to his satisfaction.  It was further stated that however, when the vehicle was ready after repair, OPs No.1 & 2, informed that the claim would be treated as accidental claim, and not theft claim, and that he would be required to pay 50% depreciation on plastic parts.  He was also told that the stereo costing about Rs.45,862/- would also be treated as plastic equipment and, therefore, depreciation of 50% would be charged on the same. The complainant further stated that the OPs instead of making full payment of Rs.93,473/- released payment of Rs.56,747/- only and deducted the balance amount of Rs.36,726/- by treating the stereo as plastic part, and deducted 50% as the depreciation value of the same.  It was further stated that the OPs were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.                In the written reply, filed by OPs No.1 and 2, it was stated that 50% deduction was made, on plastic parts and since certain items like pliers, screw driver, spanners and rods were not covered under the policy, therefore, the amount for the same had not been paid as per IRDA guidelines which provided 50% deduction in case of plastic/rubber parts.  It was further stated that the claim was rightly assessed as per the terms and conditions of the insurance policy. It was further stated that since the vehicle was recovered and the possession of the same was with the complainant, therefore, the theft claim had become infructuous. It was further stated that, OPs No.1 and 2, were neither deficient, in rendering service nor indulged into unfair trade practice.

4.                In separate written reply, OP No.3 admitted that the vehicle was delivered to it by the complainant for repairs.  The total amount of repairs came to be  Rs.93,473/-, out of which the complainant made payment of Rs.56,747/- only but the balance payment of Rs.36,726/- was not made. Even then the vehicle was delivered to him, as a goodwill gesture.  It was stated that, OP No.3 was neither deficient, in service nor it indulged into unfair trade practice.

5.                The Parties led evidence, in support of their case.

6.                After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

7.                Feeling aggrieved, the instant appeal, has been filed by the complainant for enhancement.

8.                We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

9.                Learned counsel for the appellant/complainant contended that on 12.6.2009, the vehicle was stolen from Sector 16 market, Chandigarh, when it was insured with OP-2 for the period from 15.9.2008 to 14.9.2009, regarding which FIR No.177 was lodged at Police Station Sector 17, Chandigarh and claim was also lodged with OP-2. He further submitted that OPs No.1 and 2 were liable to pay the balance amount of Rs.36,747- and Rs.1.50 lacs as damages @ Rs.25,000/- per month on account of non-processing of the theft claim within six months and Rs.2 lacs as compensation for mental agony and physical harassment etc.

10.              Learned counsel for OPs No.1 and 2, admitted that the vehicle, in question, was stolen during the currency of the insurance policy. However, it was submitted that 50% deduction was made, on plastic parts, and since certain items like pliers, screw driver, spanners, rods were not covered under the policy, therefore, the amount for the same was not paid as per IRDA guidelines which provided 50% deduction in case of plastic/rubber parts.  It was further submitted that the claim was rightly assessed, as per the terms and conditions of the insurance policy. It was further contended that the complainant is not entitled for any enhancement.

11.              It is an admitted fact that the car of the complainant, which was stolen on 12.06.2009, was recovered by the police authorities on 16.12.2009 and the same was released on superdari in his favour. But some parts along with stereo system were found missing from the said car.  It is evident from Annexure C-7 that he spent in total Rs.93,473/-  on the repair of the said car, out of which, he paid Rs.45862/- as cost of the new stereo system and the rest was paid as repair charges.  Respondent/OP No.1 &2 instead of making full payment of the claim lodged by the complainant, only paid Rs.56,747/- by treating the stereo system as plastic equipment and deducted 50% as depreciation.       Now the question, for consideration, before us, is whether respondent/OP No.1 & 2 rightly treated the stereo system as a plastic equipment. The perusal of the insurance cover (Annxure C-2) and the terms and conditions of the private car package policy at page no.50 of the District Forum file does not reveal that the stereo system was to be treated as  plastic equipment.  Thus, Respondent/OP No. 1 & 2 committed mistake by considering the stereo system as plastic equipment and wrongly deducted 50%  from the cost of the stereo system as depreciation.  The District Forum rightly reduced the depreciation from 50% to 10%, and accordingly, assessed the value of the stereo system. There is no doubt that the complainant bought this car on 07.09.2007, which was stolen in June, 2009, and at that time the car was one and a half years old. As per the terms and conditions of the policy i.e. “exceeding one year the depreciation on the car parts was to be calculated @ 10%”, whereas, OP No. 1 &2 instead of deducting 10% as depreciation value wrongly deducted 50% as depreciation.

12.              We do not find any force, in the submission of the Counsel for the appellant, that OPs No.1 & 2, were liable to pay an amount of Rs.36,745/- being the balance amount of insurance claim, Rs.1,50,000/- as damages @ Rs.25,000/- per month,  on account of non processing of theft claim for 6 months and Rs.2.00 lacs as compensation for mental agony and physical harassment. It is evident from the record that OP No.3 i.e. EM PEE Motors Ltd.  delivered the car to the complainant without charging Rs.36,745/- as a good will gesture. Therefore, the complainant was not entitled to get this amount even from OP No. 1 & 2. Moreover, we do not find that there was any delay on the part of the OP No.1 & 2, in settling the claim. They settled the claim, as soon as possible, after the same was lodged. Therefore, the appellant/complainant was not entitled to any damages.  But at the same time it is also true that OPs NO. 1 & 2, have wrongly deducted 50% from the cost of the stereo system and paid less amount. The District Forum rightly directed for the refund  of the  balance amount, after deducting 10% depreciation but did not award any interest on this amount. However, we are of the opinion that the complainant was also entitled to interest @ 9% on the amount which had been wrongly withheld by OPs No.1 and 2 from 05.03.2010, the date on which  OP Nos.1 and 2 had paid a sum of Rs.56,747/- to him. In our opinion, the interest which has been awarded by us, will take care of the mental agony and physical  harassment suffered by the complainant.

13.              With these observations, we modify the impugned order passed by the District Forum to the extent, that the amount awarded by it, would carry interest @9% p.a., which had been wrongly withheld by OP No. 1 &2.

14.                In this view of the above discussion, we partly allow the appeal filed, by the appellant and modify the impugned order to the extent referred to above.  We direct OP No.1 & 2 to pay interest  @ 9% p.a. on the amount, which was wrongly withheld by OPs No.1 and 2, from 05.03.2010, the date on which they paid a sum of Rs.56,747/- to him. We further direct the respondents/OPs No.1 & 2 to comply with the order within 30 days from the date of receipt of a copy of the order, failing which interest @ 12% shall be paid by them on the aforesaid payable amount from 05.03.2010, till realization. 

15.              The parties are left to bear their own costs.

16.          Certified Copies of this order be sent to the parties, free of charge.

17.              The file be consigned to Record Room, after completion.

Pronounced.                                                            Sd/-

17.10.2011                              [JUSTICE SHAM SUNDER]

                                                                    PRESIDENT       

cmg

                                                                                      sd/-                               [NEENA SANDHU]

                                                                             MEMBER