BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.
Complaint No. 81 of 2017
Date of instt: 16.03.2017.
Date of decision: 12.04.2018.
Neelam Chaudhary aged 60 years wife of Sh.Seo Ram resident of # 1411 Badshai Bagh Colony, Ambala City.
...Complainant.
Versus
- IFFCO-TOKIO General Insurance Co.Ltd. Customer Service Centre III Floor, 34 Nehru Palace New Delhi- 110019 through its authorized signatory.
- Iffco Toko General Insurance Co.Ltd. Minerva Complex, Rai Market, Ambala Cantt. through its Branch Manager.
- Raman Auto Surveyors and loss Assessors, Office # 135 Ajit Nagar Ambala Cantt. through Raman Chhattwal.
…Opposite parties.
Complaint under section 12 of
Consumer Protection Act, 1986.
BEFORE: SH. DINA NATH ARORA, PRESIDENT.
MS. ANAMIKA GUPTA, MEMBER . SH.PUSHPENDER KUMAR, MEMBER.
Present: - Sh. Puneet Mittal, Adv. for complainant.
Sh. Mohinder Bindal, Adv. for OPs.
ORDER:
Brief facts of the present complaint are that complainant is registered owner of car Honda City bearing registration No.HR-01T-0451 and got the same insured with Op Nos.1& 2 vide comprehensive policy No.99623706 having validity from 23.08.2016 to 22.08.2017 by paying a sum of Rs.5823/- as premium. Unfortunately, said car met with an accident on 11.12.2016 with an overloaded tractor trolley. At the time of accident the car was being driven by the son of the complainant namely Vipul Chaudhary. Due to accident, the front side portion of the car including the suspension system was totally damaged and its chasis lost its alignment. The complainant, her son and husband also received injuries in this accident. On 26.11.2016 the car was shifted to Kishiv Motors, Tepla, Ambala and the Op Nos. 1 & 2 were also informed where the surveyor/Op No.3 appointed by the insurance company inspected the car. After issuance of the estimate the matter was discussed with Op No.3 and it came to notice that the cost of the repair of the car was so high and it was not advisable to repair the car because the IDV of the same was Rs.2,25,000/- The Op No.3 asked the complainant to settle the claim on total loss basis on net salvage basis but the Ops totally settled the claim but Op No.3 in order to create false evidence started posting ante date letter dated 01.02.2017 posted on 02.02.2017 and received by the complainant on 04.02.2017 which was duly replied by the complainant. Since the insurance company was committing delay in settling the claim, therefore, the complainant in order to avoid the parking charges took the vehicle from that workshop and brought the same to Amba Motors, near LIC Building, Ambala City where she has to bear Rs.150/- as parking charges per day besides Rs.1500/- as crane charges. The act and conduct of the OPs clearly amounts to deficiency in service on their part besides mental agony and harassment. In evidence, the complainant has tendered affidavits Annexure CA & Annexure CB and documents Annexure C1 to Annexure C25.
2. Ops appeared and filed their joint reply where preliminary objections such as cause of action, maintainability, suppression of material facts etc. have been taken. The complainant herself is responsible for the non-payment of her claim. After the intimation qua accident, surveyor was appointed who had visited the complainant and inspected the vehicle and discussed with her representation and mechanic. After scrutinizing and elaborating whole facts the surveyor had submitted his detailed report dated 27.06.2017 wherein he had assessed the loss to the tune of Rs.1,23,160/- on repair basis with salvage value of Rs.5123/- and net payable claim was found as Rs.1,18,037/- subject to terms and conditions of the policy. The surveyor had requested her to get the car repaired because the assessment of loss of the car was much less than 75 % of IDV but despite that she ignored to comply with the same. The insurance company is to act only when the complainant completes her part of obligation by getting her car repaired and providing of repair bills. The insurance company is not liable to reimburse any penalty or parking charges etc. because the surveyor had already suggested for getting the repair work done and had submitted his assessment report without any delay and the entire delay is on the part of complainant herself. The claim of the complainant has never been denied and she has been repeatedly asked to get her car repaired but she is not doing so for the reasons best known to her. Other contentions have been controverted and prayer for dismissal of the complaint has been made. The Op No.3 adopted the reply filed on behalf of OP Nos. 1 & 2. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R13.
3. We have heard learned counsel for the parties and gone through the material available on the case file very carefully.
4. As per Annexure C16 the re-estimate has been made by the company Kishiv Motors ltd. amounting to Rs.2,25,058/- and as per Annexure C17 the repair assessment has been shown amounting to Rs.1,74,089/-. As per the Annexure C22 policy wording for private car and the relevant portion is as under:
IDV shall be treated as market value throughout the policy period without any further depreciation for the purpose of total loss and the insured vehicle shall be treated as CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and condition of the policy exceeds 75 % of the IDV of the vehicle.
The original estimate of Rs.1,74,089/- was certainly more than 75 % of the IDV of the vehicle. The actual cost of repair came to be Rs.1,74,089/- as per Annexure C-12 which was also more than75 % IDV of the vehicle. The insurer was required to treat the vehicle as total loss in such circumstances the surveyor could not make deductions especially when vehicle was case of total loss. According to GR 8 of the Indian Motor Tariff the vehicle would be considered to be case of CTL (Constructive Total Loss) where the aggregate cost of the retrieval and/or repair subject to terms and conditions of the insurance policy exceeds 75 % of the IDV. Even according to GR 8 of Indian Motor Tariff when the total repair cost of the vehicle as per repairer was more than 75 % of the IDV it was required to be treated as a case of total loss and no deductions whatsoever on account of glass, plastic, metal parts etc. could be made. The surveyor could not reduce the amount of repairs, by making deductions in respect of various parts.
5. Coming to the report of surveyor, it may be stated here, that it is a settled principle of law that the same is neither binding on the partiers nor the Consumer Foras if it is contrary to law. Though the report of the surveyor has got evidentiary value, yet it cannot be said to be final word. The surveyor and loss assessor in his report could not assign any reason, as to why the vehicle could not be treated as total loss. He also could not assign any reason, as to why, he made deductions in relations to various parts, referred to above, while assessing the loss when the repair cost was more than 75 % of the IDV of the vehicle. The version of the Ops is not tenable as the report of surveyor is not readable into evidence because despite total loss he had made deductions on account of depreciation and made the loss upto 55 % for the reasons best known to him. The present case is squarely covered by the case law titled as United India Insurance Company Versus Prabhdeep Kaur Bindra decided on 17.06.2014 by Hon’ble State Commission UT Chandigarh in Appeal No.179 of 2014. It was a case of total loss, therefore, the Ops were required to indemnify the IDV of the vehicle amounting to Rs.2,25,000/-.
6. Keeping in view the above discussion we are of the view that the present complaint deserves acceptance. Accordingly, we allow the present complaint with costs. The Ops are directed to comply with the following directions:
1. To pay Rs.2,25,000/- being IDV of the vehicle alongwith interest @ 9 % per annum from the date of filing of complaint till its realisation to the complainant after deducting excess clause of Rs.1,000/-.
2. To pay Rs.5,000/- as litigation cost to the complainant.
3. Since the vehicle is lying in the workshop from the date of accident, therefore, the insurance company will pay the parking charges, if any, etc. and would take the salvage from Amba Motors, Ambala City.
4. The complainant is directed to furnish/handover the required documents to the OP/insurance company for transfer of said car as per law after receipt of amount awarded against them.
The order be complied within one month from the date of receiving the copy of this order. Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Announced on: 12.04.2018 (D.N. ARORA)
PRESIDENT
(PUSHPENDER KUMAR) (ANAMIKA GUPTA)
MEMBER MEMBER
