DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 310 of 11-11-2008 Decided on : 23-10-2009<br /> <br /> Naresh Kumar S/o Sh. Jagdish Rai, R/o Hospital Road, Maur Mandi, District Bathinda. <br /> .... Complainant<br /> Versus<br /> 1.ICICI Lombard General Insurance Company Limited, Sharma Complex, Ist Floor, Guru Kanshi Marg, Corner Power House Road, Bathinda through its Branch Manager.<br /> 2.ICICI Bank Ltd., 100 Ft. Road Chowk, Bibi Wala Road, Bathinda through Branch Manager.<br /> 3.M/s. Balak Automotives Pvt. Ltd., (Authorised Dealer of Mahindra) G.T. Road, Jugiana, Ludhiana.<br /> 4.M/s.Mahindra & Mahindra Ltd., Registered Office Gateway Building, Appollo Bunder, Mumbai 400 001 through its M.D. <br /> ..... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection <br /> Act, 1986.<br /> <br /> QUORUM:-<br /> Sh. George, President<br /> Dr. Phulinder Preet, Member <br /> <br /> For the complainant : Sh. R.D. Goyal, counsel for the complainant<br /> For the opposite parties : Sh. Vinod Garg counsel for opposite party <br /> No. 1. <br /> Sh. Sanjay Goyal , counsel for opposite <br /> party No.2<br /> Sh. Sandeep Baghla, counsel for opposite party No. 4.<br /> Opposite party No. 3 exparte.<br /> <br /> O R D E R.<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against the opposite parties with the allegations that he is the owner of Mahindra Scorpio Vehicle bearing registration No. PB-03-P-2025 Model 2006 which is financed by opposite party No. 2 and comprehensively insured with opposite party No. 1 vide Cover Note No. 54275430 w.e.f. 17-06-2008 to 16-06-2009. The said insurance cover note was issued for IDV of Rs. 4,79,223/- and was cashless insurance. The opposite party No. 1 fixed the IDV to the tune of Rs. 4,79,223/- whereas the new vehicle is about Rs. 7,25,000/-. The said vehicle met with an accident on 12-07-08 when it was being driven by Pargat Singh Driver with Tractor Trolley No. PB-44-A-4076. in the revenue limits of Village Rajgarh. FIR No. 303 dated 13-07-2008 with Police Station Sadar was registered in this context. The intimation of the accident was given to opposite party No. 1 and Mr. R P Bhasin, of Ludhiana was appointed as surveyor and the vehicle was shifted to opposite party No. 3 as vehicle was insured under cashless policy. The complainant spent Rs. 8,000/- as shifting charges. The estimates of loss were prepared by opposite party No. 3 and were given to Sh. R P Bhasin, surveyor directly. At the time of final survey at Ludhiana, Mr. R P Bhasin obtained signatures of the complainant on Blank Claim Form, 5-6 blank papers, blank vouchers, blank consent form and blank full and final voucher and gave the assurance that full claim will be paid to the workshop directly as the insurance is cashless. The complainant asserts that he wrote many registered letters and also got issued registered legal notice to opposite party No. 1 to pay his claim, but to no effect. Due to non-payment of the claim amount of Rs. 4,79,223/- on account of total loss, the complainant is suffering heavy damages on account of interest as well as mental agony and pains. Hence this complaint for issuing direction to the opposite parties to make payment of total loss amount of Rs. 4,79,223/- alongwith interest 18% P.A. with damages to the extent of Rs. 20,000/- on account of mental agony, pains and Rs. 20,000/- as litigation expenses.<br /> 2. Opposite party No. 1 filed separate reply taking legal objections that the present complaint has been filed by the complainant only to injure the reputation and goodwill of the replying opposite party; intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary proceedings under the Act; complainant has concealed the material facts and documents from this Hon'ble Forum; complainant has got no locus-standi and cause of action to file the present complaint and complaint is not maintainable in the present form. <br /> On merits, it has been admitted that vehicle bearing registration No. PB-03-P-2025 was insured with the replying opposite party for Insured Declared Value of Rs. 4,79,223/- and intimation regarding accident was received but it has been denied that vehicle was totally damaged and there was any cashless insurance agreement. It has been pleaded that on receipt of intimation, the replying opposite party deputed Mr. R P Bhasin, Surveyor and Loss assessor who conducted the survey of accidental vehicle on 17-07-2008 and subsequently at M/s. Balak Auto Motives Pvt. Ltd., Ludhiana and assessed the loss to the tune of Rs. 2,33,201/- after applying depreciation and other provisions as per terms and conditions of the policy and IMT. It was for the complainant to get the vehicle repaired, submit necessary bills thereof and seek reimbursement of the same.. It has been denied that vehicle is lying in the custody of replying opposite party. The replying opposite party submitted that it deputed Sh. A P Singh to conduct investigation regarding the usage of the vehicle who after investigation submitted his report dated 20-08-08 and concluded that the vehicle was being used for commercial purposes i.e. for hire and reward which is an exclusion as per the terms and conditions of the policy and therefore, the claim of the complainant was rightly repudiated vide letter dated 07-10-2008.<br /> 3. Opposite party No. 2 contested the complaint by taking legal objections that complaint is not maintainable; complaint is filed on the basis of false facts and is liable to be dismissed and the vehicle of the complainant is hypothecated with the replying opposite party and he has not foreclosed the loan. The claim, if any, is liable to be paid to the replying opposite party. On merits, all the allegations to the contrary were not admitted as correct. All the facts narrated in the preliminary objections were reiterated. <br /> 4. Notice of the complaint was sent to opposite party No. 3 through registered post but none appeared on its behalf. Accordingly, it was proceeded against exparte.<br /> 5. Opposite party No. 4 filed separate reply taking legal objections that complaint is not maintainable; this Forum has no jurisdiction; complaint is bad for misjoinder of opposite party No. 4; complainant is not consumer qua opposite party No. 4 and complaint is false and frivolous. On merits, it has been submitted that relationship of opposite party No. 4 qua opposite party No. 3 is on principal to principal basis and <br /> replying opposite party has got no concern with the alleged claim and it has been misjoined to the present complaint. All other remaining averments have been denied and prayer has been made for dismissal of the complaint with costs.<br /> 6. In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of certificate-cum-policy schedule Ex. C-2, photocopy of R.C. Of vehicle Ex. C-3, photocopy of driving licence of Pargat Singh Ex. C-4, photocopies of letters and postal receipts Ex.5 to Ex. C-10, photocopy of notice and postal receipt Ex. C-11 & Ex. C-12, photocopy of F.I.R. Ex. C-13, affidavits of S/Sh. Pawan Kumar, Sanjiv Kumar, Anil Kumar and Deep Ex. C-14 to Ex. C-17 respectively, photocopy of letter dated 7-10-08 Ex. C-18, copy of claim form Ex. C-19, photocopy of certificate cum policy schedule Ex. C-20, photocopy of final survey report Ex. C-21, photograph Ex. C-22, photocopy of estimate Ex. C-23, photocopy of affidavit of Sh. Sanjeev Kumar Ex. C-24, photocopy of statement of Sh. Sanjeev Kumar Ex. C-25, photocopy of statement of Smt. Reena Garg Ex. C-26, photocopy of certificate cum policy Ex. C-27, photocopy of proposal form Ex. C-28, photocopy of statement of Sh. Vinod Garg Ex. C-29 and photocopy of MACT Award Ex. C-30.<br /> 7. To controvert the evidence of the complainant, the opposite parties produced in evidence affidavits of S/Sh. Ravinder Dhull, Manager Legal, A P Singh, Investigator and Rishi Bhasin Surveyor Ex. R-1 to Ex. R-3 respectively, photocopy of Investigation report Ex. R-4, photocopy of statement of Sh. Anil Kumar Ex. R-5, photocopies of photographs Ex. R-6 & Ex. R-7 and affidavits of S/Sh. Jayanta Baidya and Ravinder Dhull Ex. R-8 & Ex. R-9 respectively.<br /> 8. We have heard the learned counsel for the parties and have gone through the entire record of the case carefully.<br /> 9. The case of opposite party No. 1 is that it issued Repudiation letter Ex. C-18 on the basis of investigation of Sh. A P Singh who submitted his investigation report Ex. R-4 on the facts came to his notice through Anil Kumar who stated that he alongwith with brother, partner and friend hired the vehicle of the complainant from Maur Mandi to Patiala and on the way, the vehicle in question met with an accident with tractor trolley resulting death of two persons and injuries to other, as per his statement Ex. R-5.<br /> 10. It was argued on behalf of opposite party No. 1 that because the vehicle was got insured by the complainant as 'private car' whereas it was being used for 'commercial purposes' i.e. for hire or reward purposes, therefore as per terms and conditions of the policy, the complainant is not entitled for payment of claim.<br /> 11. The perusal of Ex. R-4 a report of Sh. A P Singh, Investigator reveals that vehicle was going towards Patiala from Maur Mandi and 7-8 persons were sitting in it and was driven by Pargat Singh. On the way near Bhawanigarh-Patiala road there was an overloaded tractor trolley with husk. Suddenly turned the vehicle towards right and thereafter immediately towards left side and driver lost control and vehicle strucked against the tractor trolley and got damaged. During the course of investigation, the Investigator also traced the injured persons who hired the vehicle No. PB-03P-2025 and statement of the passenger Anil Kumar was recorded and he confirmed that he alongwith his brother, Partner and friend hired the vehicle from Maur Mandi to Patiala and on the way the vehicle met with an accident with tractor trolley resulting death of two persons and injuries to other. He placed on the record statement of Sh. Anil Kumar, passenger Ex. R-5, but the opposite party No. 1 has not examined Sh. Anil Kumar as a witness. Though Sh. A P Singh in his affidavit Ex. R-2 has stated that he recorded the statement of Sh. Anil Kumar and submitted his report but he has not attached the said statement with his report Ex. R-4 or made the statement Ex. R-5 as part of his affidavit. This important document has been brought on record by tendering the same in evidence. Whether the statement Ex. R-5 placed on record, was infact recorded by Sh. A P Singh, is not proved. The report of Sh. A P Singh, Investigator, solely depends upon the statement of Sh. Anil Kumar who has neither appeared nor his statement Ex. R-5 is signed nor attested by Sh. A P Singh. It is also not clear from the record that as to whether Sh. A P Singh was appointed by opposite party No. 1 as Investigator after obtaining proper and prior permission from the Controller of Insurance which is mandatory requirement under Section 64 UMG (3) of Insurance Act, or not. The Insurance company is not definitely empowered to appoint second surveyor and depute him as an Investigator. In this view of the matter, we are fortified by the observations of the Hon'ble State commission, Punjab Chandigarh in the case Jagdamba Inustries Vs. National Insurance Company Limited III(1999) CPJ 131 wherein it has been held that “Investigator was not to act as an appellate authority against the report of the previous surveyor. Further more, such an Investigator/Surveyor was not appointed after taking approval of the Insurance Controller as envisaged under Section 64UM(G)(3) - Deficiency in not settling the claim proved.”<br /> 12. In the present case, the entire claim of the complainant has been repudiated vide letter Ex. C-18 on the ground that the vehicle was being used for commercial purposes on the basis of the report of Sh. A P Singh Ex. R-4. The opposite parties have failed to prove that the vehicle was being used for 'commercial purposes' at the time of accident. Even if, it be presumed for arguments sake that it was being used so, the passengers have no contributory cause which led to the accident. Moreover, the widow of Naresh Garg filed claim before MACT, Bathinda which was decided on 16-05-2009 wherein it has been held that “Carrying of occupants by hiring or reward, is not proved. Therefore, Insurance Company is liable to pay the compensation.” <br /> 13. The Insurance policy Ex. C-2 was in force during the time when accident took place. The accident occurred on 12-07-2008. The Surveyor was deputed and he assessed the loss to the tune of Rs. 2,33,201/- but despite survey report, nothing was paid to the complainant and his claim was repudiated on 07-10-2008 on the sole ground that the vehicle was being used for 'commercial purposes' at the time of accident, without any cogent and convincing evidence to this effect.<br /> 14. From the facts and circumstances of the case, affidavit of the complainant and report of the surveyor appointed by the opposite parties, it is evident that vehicle of the complainant sustained damaged beyond IDV as claimed by him. As per Indian Motor Tariff IDV shall be treated as “'Market Value” through out the policy period without any further depreciation for the purpose of Total loss/Constructive Total Loss claims and insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75 percent of the IDV of the vehicle. In the instant case, the cost of repairs, as mentioned by the complainant, has exceeded 75 percent of IDV, declared by him at the time of securing the Insurance cover as evident from copy of survey report Ex. C-21. This fact has been ignored by the surveyor appointed by the opposite parties. As such, the opposite parties, in our opinion, were not justified in awarding compensation on the basis of his report by over looking the estimate submitted by the complainant after repair of his vehicle from the repairer of manufacturing company. No doubt the surveyor report is to be given weightage but at the same time the surveyor is supposed to give reasons while disallowing or reducing the amount of estimate. The surveyor should give some reasons with a view to support his report. In this view of the matter we get support from the observations of the Hon'ble National Commission in Revision Petition No. 477 of 2009 National Insurance Co. Ltd., Vs. Dr. Dharam Pal Sharma decided on 27-02-2009 wherein it has been held that :<br /> “Examination of the report of the surveyor shows that he had allowed compensation for some of the components which had been damaged but refused compensation for certain other parts. No reasons have been recorded by the surveyor for not awarding the compensation for some of the parts which had been damaged. Surveyor has not given any reasons for assessing the loss at Rs. 55,848.30p from the estimated cost of Rs. 1,07,321.50p. On adhoc basis, he has reduced the loss.” <br /> 15. Once the vehicle is comprehensively insured and it is a case of total loss, then its Insured's Declared Value is payable as has been held by the Hon'ble State Commission of Punjab in the case of United India Insurance Co. Ltd., Vs. Gurjant Singh & another – First Appeal No. 1342 of 2005 decided on 31.01.2006. <br /> 1. Taking into consideration the totality of the facts and circumstances of the case, we accept the complaint against opposite party No 1 and dismiss the same qua opposite parties No. 2, 3 and 4. Since the vehicle was insured for a sum of Rs. 4,79,223/- (I.D.V) and the Insurance Company has failed to settle the claim within a reasonable time by releasing the insured amount to the complainant to enable him to get the vehicle repaired, the complainant is held to be entitled for a total sum of Rs. 4,79,223/- i.e. I.D.V, alongwith interest @ 9% P.A. from the date of illegal repudiation i.e. 07-10-2008, subject to the condition that the vehicle in its present position alongwith its documents and keys etc., will be handed over to the Insurance Company (opposite party No. 1) within the period of 15 days from the date of receipt of copy of this order and thereafter, the opposite party No. 1 will make the payment to the complainant within 30 days. The opposite party 1 delayed the payment of claim of the complainant for more than one year and therefore the complainant has definitely undergone the trauma of mental agony, harassment and inconvenience and he has been deprived of the facility of vehicle for which he got his vehicle insured for IDV approximately Rs. 5.00 Lacs. Under these circumstances, we are of the considered view that the complainant is definitely entitled for a reasonable and adequate amount of compensation which we, in the peculiar circumstances of the case, assess to the tune of Rs. 50,000/- alongwith litigation expenses to the tune of Rs. 10,000/-. The compliance with regard to compensation and litigation expenses be made within the period of 45 days from the date of receipt of copy of this order.<br /> Copy of this order be sent to the parties concerned free of costs and the file be indexed and consigned. <br /> Pronounced :<br /> 23 -10-2009 <br /> <br /> (George)<br /> (Dr. Phulinder Preet) President<br /> Member <br /> <br /> <br /> <br />