STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Varinder Kumar son of Sh. Mitar Sain, resident of House No.131, Village Daffarpur, Guru Nanak Colony, District Mohali.

…..Appellant

V E R S U S

1.  ICICI Lombard, Quit Office No.10, Sector 40, Chandigarh.

2.  Berklay (infact Berkeley) Automobiles Limited, (Authorized Maruti Dealer), Plot no.375, Industrial Area, Phase I, Panchkula.

---Respondents.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER (Retd.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh.  Sukhjit Singh, Advocate for the appellant.

              Sh. Sandeep Suri, Advocate for respondent no.1

              Sh. Sandeep Jasuja, Advocate for respondent no.2.

PER  JUSTICE SHAM SUNDER (Retd.), PRESIDENT

1.               This appeal is directed against the order dated 18.10.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it dismissed the complaint filed by the complainant (now appellant).

2.               The facts, in brief, are that the complainant purchased a car (Maruti Alto) bearing registration number PB-J-7466 (infact PB65J7466), from Opposite Party No.2. The said car was got comprehensively insured with Opposite Party No.1, for the period from 15.10.2009 to 14.10.2010. On 09.04.2010, the said car met with an accident. The complainant took the car to Opposite Party No.2 for repairs, which was also an authorized dealer of Opposite Party No.1. The complainant also informed the Police, as well as Opposite Party No.1, regarding the said accident, immediately. Opposite Party No.1, appointed a Surveyor, who inspected the vehicle, and assessed the loss. Thereafter, according to the complainant, Opposite Party No.2,  asked the complainant to pay a sum of Rs.51,000/-,  for the repairs of the car. It was stated that since the complainant had obtained the cashless policy, he was not liable to pay any amount to Opposite Party No.2. It was further stated that the demand of Rs.51,000/-,  made by Opposite Party No.2, was in violation of the terms and conditions of the insurance policy. It was further stated that since the complainant was in dire need of the car, he paid a sum of Rs.51,000/-, to Opposite Party No.2,  and took delivery thereof. The complainant requested Opposite Party No.1, a number of times, to refund this amount to him,  but to no effect. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence 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.               Opposite Party No.1, in its written version, admitted that the car, in question, bearing registration No.PB65J7466, was got insured with it,  for the period from 15.10.2009 to 14.10.2010. It was further admitted that the car met with an accident, and a Surveyor was appointed to assess the loss, by Opposite Party No.1. It was stated that the Surveyor assessed the loss, to the tune of Rs.1,05,278.77Ps, whereas, Opposite Party No.2, raised bill, in the sum of Rs.1,47,259/-.  It was further stated that  Opposite Party No.1, after deducting the depreciation charges, and the amount charged for the repair of the engine, paid a sum of Rs.1,05,228/-,  to the repairer i.e. Opposite Party No.2. It was further stated that Opposite Party No.1, was not liable to pay any amount, beyond the assessment, made by the Surveyor. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               Opposite Party No.2, in its written version, stated that the complainant approached it, for complete repairs of his vehicle, which included the accidental damage, as well as the damage to the engine. It was further stated that Opposite Party No.2, clearly told the complainant, that damage to the engine was not covered under the insurance. It was further stated that the repair charges regarding engine, were to be borne, by the complainant himself.  It was further stated that the complainant was charged an amount of Rs.51,000/- i.e. Rs.39,100/- on account of depreciation, and Rs.11,923/- on account of engine repair charges. It was further stated that Opposite Party No.2, received only an amount of Rs.1,05,228/-, from Opposite Party No.1 – Insurance Company,  against the total repair bill of Rs.1,47,259/-It was further stated that Opposite Party No.2, had no role to play in the matter,  as the complainant was to be indemnified by Opposite Party No.1-Insurance Company.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

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, dismissed the complaint, on the ground, that there was no deficiency, in rendering service, on the part of the Opposite Parties, and Opposite Party No.1, was right, in indemnifying the claim, only to the extent of assessment, made by the Surveyor.

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

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

9.               The Counsel for the appellant,  submitted that since it was a cashless policy, obtained by the complainant, from Opposite Party No.1, he (complainant) was not required to pay any amount to the repairer i.e. Opposite Party No.2,  for the repair of the car, which met with an accident. He further submitted that the engine of the car was also damaged in the accident. He further submitted that the report of the Surveyor, was not supplied to the complainant.  He further submitted that even in his report, the Surveyor did not state even a single word, as to, for what reason, the depreciation amount of Rs.39,100/-, was deducted, as the car was only six months old, when met with an accident. He further submitted that for repair of the damaged engine, on account of accident, the complainant had paid Rs.11,923/-, to Opposite Party No.2. He further submitted that the complainant was, thus, entitled to a sum of Rs. 51,100/-, which was paid by him, to Opposite Party No.2, against the repair bill. He further submitted that the District Forum was wrong, in coming to the conclusion, that there was no deficiency, in rendering service, on the part of Opposite Party No.1. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.            On the other hand, the Counsel for Opposite Party No.1, submitted that the Surveyor, in his report Annexure R-1 dated 09.07.2010, in clear-cut terms, stated that damage to the engine of the car, was not on account of the accident, and, as such, the complainant was not entitled to the amount, charged by Opposite Party No.2, for the repair of the same, from Opposite Part No.1. He further submitted that as per the terms and conditions of the policy Annexure R-3, 50% depreciation, was required to be deducted for all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags. He further submitted that the depreciation amount of Rs.39,100/-,  was on account of damage to the rubber/nylon/plastic parts. He further submitted that this amount was rightly not paid by Opposite Party No.1, to the repairer (Opposite Party No.2). He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

11.            The Counsel for Opposite Party No.2,  submitted that it (Opposite Party No.2) being a repairer,  was only concerned with the payment of repair charges,  and it had no other role to play. He further submitted that the dispute is between the complainant and Opposite Party No.1. He further submitted that, as such, neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice.

12.            Undisputedly, the car, in question, belonging to the complainant was comprehensively insured, by Opposite Party No.1, for the period from 15.10.2009 to 14.10.2010., on payment of premium. There is also, no dispute, about the factum, that the said car, met with an accident on 09.04.2010, during the currency of the Insurance Policy. The car was only 6 months old, when it was taken to Opposite Party No.2 (the authorized dealer of Opposite Party No.1), for repairs, after it met with an accident. Mr. Raj Rishi Sharma, Surveyor and Loss Assessor was appointed by Opposite Party No.1,  who assessed the loss, to the tune of Rs. 1,05,278.77P , which amount was paid by the Insurance Company to Opposite Party No.2. The question arises, as to whether, the engine of the car was damaged in the accident or not. In the complaint, it was not stated by the complainant, as to how, and in which mode and manner, the accident took place. However, when the Surveyor was appointed,  and he made investigation, he came to know from the representative of the insured, that while driving the car, near the site of accident, suddenly a car bearing no.HP-14 AM-2066, which was coming from the opposite side, took right turn and came in front of the car of the insured, who applied brakes to avoid accident, but his car,  got skidded and rammed into the left portion of the other car, from front side, and, thus, it got damaged. It was not a head-collision between two cars. The accident of the car also did not take place in the line of the engine assembly, as a result whereof, the engine could be damaged. The Surveyor, in his report, in clear-cut terms, stated that he visited the repairer i.e. M/s Berkley Automobiles Pvt. Ltd., Panchkula, and inspected the engine assembly, in dismantled condition. On minute inspection, he found that the damage caused to the parts of the engine, was not accidental, in nature, but the same was caused, after the accident, when the insured, and his representative started the engine assembly. It was further observed by the Surveyor, in his report Annexure R-1, that keeping in view the above circumstances, he was of the opinion, that while after the accident, the mobil-oil/engine oil drained out from the engine assembly, the insured and his representative started the engine of the car. He further observed that the internal parts of the engine, which ran at very high  speed ceased, due to non lubrication of these parts, as the mobil-oil drained out from the engine assembly, after the accident.  He further observed that the insured had not taken due precautions,  to save the vehicle from further damage, before the necessary repairs were effected. The report of the Surveyor, is an important piece of evidence,  and it cannot be easily ignored. No cogent and convincing evidence was produced by the complainant, to rebut this part of the report of the Surveyor. Damage to the engine occurred, when the complainant started the car, after it had met with an accident but before repairs, and, as such, it constituted consequential loss.  According to Clause 4(i) of General Exceptions of the Policy, the Company was not liable to pay any amount, for the consequential loss. Since, according to the report of the Surveyor, the damage to the engine was not due to accident, but was a consequential  loss, as depicted above, it fell within clause 4(i) of the General Exceptions of the Insurance Policy. Opposite Party No.1, was, thus, right in not paying the amount of Rs. 11,923/-, which was charged by Opposite Party No.2, on account of repair of engine of the vehicle, which was damaged, in the manner, as indicated by the Surveyor, in his report. The order of the District Forum, to this extent is correct.

13.            Coming to the remaining amount of Rs.39,100/-, which was deducted by Opposite Party No.1, on account of 50% depreciation for  replacement of damaged rubber/nylon/plastic parts, it may be stated here, that such deduction, on the part of Opposite Party No.1, could not be said to be justified. No doubt,  the report of the Surveyor,  can be said to be an important piece of evidence, but if it is found,  that any finding of the Surveyor, is not based on cogent and tangible data or material, for disallowing the amount of repairs, then,  that part can be disbelieved. The perusal of the report Annexure R-1 of the Surveyor, does not indicate, in any manner, that there was damage to rubber/nylon/plastic parts, and, as such the full amount of repair/replacement thereof, could not be paid, and 50% deduction on account of depreciation, was required to be made.  In his report, the Surveyor did not state even a single word, as to which rubber/nylon/plastic parts were damaged, in the accident, and how he calculated the depreciation @50%,  which was deducted  from the amount,  which was payable to the repairer. Had the Surveyor, in his report, recorded a clear-cut finding,  on the basis of some cogent and tangible material, and data, that particular rubber/nylon/plastic parts of the vehicle, were damaged, and the same were replaced by the repairer, as a result whereof 50% depreciation was required to be deducted, as per the terms and conditions of the Policy, the matter would have been different. Since,  the report of the Surveyor, in this regard, is completely silent, Opposite Party No.1,  illegally rejected the claim of the complainant, to the tune of Rs.39,100/-. The complainant, in our opinion, is entitled to Rs.39,100/-, illegally deducted, on account of 50% depreciation. Opposite Party No.1 was, thus, deficient, in rendering service, to the complainant, in this regard.

14.            The next question, that arises for consideration,  is, as to whether, the complainant is entitled to interest,  on this amount, and, if so, from which date, and at what rate. The amount of Rs.39,100/-, was illegally, withheld by the Insurance Company i.e. Opposite Party No.1. Had this amount been paid to the complainant, he would have earned interest thereon, by depositing the same in bank.  The complainant, is, therefore, entitled to interest @9% p.a., on the amount of Rs.39,100/-, from the date of filing the complaint.

15.            No other point, was urged, by the Counsel for the parties.

16.             For the reasons recorded above, the appeal, is partly accepted, qua respondent No1/Opposite Party No.1, with no order as to costs, and the order of the District Forum is modified in the following manner:-

                              i.   Respondent no.1/Opposite Party No.1 shall pay a sum of Rs.39,100/- to the complainant with interest @9% p.a., from the date of filing the complaint i.e. 28.07.2010, till realization.

                            ii.   The aforesaid amount shall be paid within a period of 30 days, from the date of receipt of a certified copy of the order, failing which respondent no.1/Opposite Party no.1, shall be liable to pay penal interest @12% p.a., instead of 9%, on the aforesaid amount, from the date of filing the complaint, till realization.

17.            The appeal, qua respondent no.2/Opposite Party No.2, is dismissed, with no order as to costs.

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

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

Pronounced.

July 18, 2012

Sd/-

[JUSTICE SHAM SUNDER(Retd.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg