Chandigarh

DF-I

CC/273/2022

Rajesh Kumar Contractor - Complainant(s)

Versus

Iffco Tokio General Insurance Co. Ltd. - Opp.Party(s)

Navin Kapur

13 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/273/2022
Date of Institution	:	22/02/2022
Date of Decision	:	13/12/2023

Rajesh Kumar Contractor through its sole proprietor Sh. Rajesh Kumar, aged 41 years s/o Sh. Paras Ram r/o 122, Ambica Vihar, Poonch House Talab Tillo, Jammu.

… Complainant

V E R S U S

1. Iffco Tokio General Insurance Company Ltd., IFFCO Bhavan, Plot No.2, B&C, 3^rd Floor, Sector 28-A, Madhya Marg, Chandigarh 160002.
2. Iffco Tokio General Insurance Company Ltd., Service Office, BS-45/6, Sector Sainik Colony, National Highway, Jammu J&K 180011.
3. Iffco Tokio General Insurance Company Ltd., Registered Office, IFFCO Sadan, C-1, District Centre, Saket, New Delhi-110017.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                       

ARGUED BY	:	Sh. Navin Kapur, Advocate for complainant
	:	Sh. J.P. Nahar, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Rajesh Kumar Contractor, through its sole proprietor, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the complainant had obtained a comprehensive insurance policy (hereinafter referred to as “subject policy”), valid w.e.f. 23.9.2020 to 22.9.2021, covering all risks qua JCB Machine No.AF1805 (hereinafter referred to as “subject JCB”) having value (IDV) of ₹45.00 lacs, on payment of premium of ₹45,574/-. On 7.9.2021, the subject JCB fell into a gorge, as a result of which it was totally damaged and converted into a wreck. Intimation (Annexure A-2) qua the said accident was also given to the OPs, who deputed Ravi Dhar, surveyor for survey and assessment of loss.  On 13.9.2021 a meeting was held with the said surveyor and on 21.9.2021 (Annexure A-3), OP-1 by way of their letter asked the complainant to retrieve the salvage/wreck from the deep gorge which was properly replied by the complainant on 26.9.2021 that despite of having made every endeavor for retrieval of the salvage by contacting salvage buyers, no one could be persuaded for retrieval. The complainant had also intimated that he is not interested to retain the salvage and requested the OPs for settlement of claim on total loss basis.  Thereafter, even reminders were sent to the OPs through mails (Annexure A-4 to A-7).  On 1.11.2021, a mail was received from OP-1 acknowledging the concern regarding delay in settlement of the claim. Copies of emails exchanged between the parties are Annexure A-8 to A-10.  On 9.11.2021, an email (Annexure A-13) was received from the surveyor, Ravi Dhar enclosing therewith the consent letter, duly filled for the settlement of claim on total loss/net of salvage value basis for ₹41,16,500/-, in full and final settlement of own damage claim after deduction of policy clause of ₹22,500/- and salvage value of ₹3,61,000/-. The said email was replied (Annexure A-14) by the complainant with copy of same to OPs clearly stating that the claim amount only on total loss basis is acceptable. On 23.11.2021 (Annexure A-15) another reminder was sent to the OPs for early settlement of claim. On 24.11.2021 (Annexure A-16), an email was received from the OPs stating that the claim file is under process.  On 21.12.2021 another reminder was sent to the OPs by the complainant and despite of directives from their regulatory body vide email dated 24.11.2021 and 20.12.2021 to resolve the grievance, no response was received from the OPs.  However, an email was received from OP-1 alongwith the claim settlement letter, consent letter of insured and agreement of sale of salvage dated 21.12.2021 stating therein that based on the survey report and other documents submitted by the complainant, claim had been settled on constructive total loss/net of salvage value basis on net amount of ₹40,72,500/- with IDV of ₹45.00 lacs, wreck value ₹4,05,000/- (with invoice) and policy excess ₹22,500/-. On 23.12.2021 (Annexure A-19), an email was sent by the complainant to OP-1 acknowledging the proposal sent by the OPs with the request to provide the details of salvage buyer arranged by the OPs by requesting the salvage buyer to lift the salvage immediately and make the payment of ₹4,05,000/-. On 6.1.2022 another reminder was sent by the complainant to the OPs conveying that the claim under reference has not been settled and even after that various emails were sent, but, no positive response has been given by the OPs. OP-1 sent another email to the complainant on 27.1.2022 asking him for making settlement on total loss basis which was replied by the complainant vide email dated 31.1.2022 (Annexure A-25) for making settlement on total loss basis only or in case of adamancy, in the alternative by deducting the value of irretrievable salvage of ₹1,50,000/- with the condition that the claim is settled within a week i.e. on or before 8.2.2022. Another email dated 15.2.2022 (Annexure A-26) was sent by the complainant to the OPs.  However, instead of paying the entire settlement amount, OPs have only paid partial amount by retaining an amount of ₹3,61,000/- towards value of salvage and the said act amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, alleging that even in case of total damage of the insured vehicle/machine, the salvage/wreck has to be surrendered to the insured or the value of salvage has to be deducted from the Insured Declared Value (IDV) as per the terms and conditions of the subject policy.  It is further alleged that, in fact, the surveyor has submitted his final report dated 23.11.2021 (Ex. OP 1-3/1) by assessing the loss for ₹41,16,500/- on net of salvage basis.  It is further denied that the cost of retrieval of the subject JCB was more than the value of the salvage.  The value of the salvage as per the complainant is ₹1,50,000/- as against ₹3,61,000/- which was assessed by the surveyor and ₹41,16,500/- was assessed by the surveyor after deducting ₹3,61,000/-, value of salvage and ₹22,500/- as policy excess clause and the entire dispute is only qua the value of salvage. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OPs.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject JCB was insured by the OPs vide subject policy (Annexure A-1), which was valid w.e.f. 23.9.2020 to 22.9.2021 for IDV of ₹45.00 lacs and also that the subject JCB met with an accident on 7.9.2021 when it fell into a deep gorge and was a total loss and the salvage of the same could not be retrieved despite of every endeavor by the complainant as well as by the OPs and the surveyor of the OPs assessed the total loss of the subject JCB to the tune of ₹41,16,500/- after deducting ₹3,61,000/- as value of salvage and ₹22,500/- as policy excess clauses from the IDV of the subject JCB and except an amount of ₹3,61,000/- i.e. the salvage value, as assessed by the surveyor, the remaining amount has already been paid to the complainant by the OPs, as is also evident from Annexure A-26, and the only dispute between the parties is qua the value of salvage which, as per the case of the complainant, should have been ₹1,50,000/- whereas as per the defence of the OPs it has value of ₹3,61,000/-, the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in not paying the amount of ₹3,61,000/- to the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant or if the OPs are justified in calculating the value of the salvage to the tune of ₹3,61,000/- and thereby rightly made deduction to that extent and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is only qua the value of the salvage and for that the report of the surveyor (Annexure OP 1-3/2) alongwith the emails sent by the complainant to the OPs (Annexure A-25 & A-26) are required to be scanned carefully.
   3. The surveyor report (Ex.OP 1-3/1) clearly indicates that the surveyor has assessed the value of the salvage to the tune of ₹3,61,000/-.  However, vide email dated 31.1.2022 (Annexure A-25), the complainant himself has given consent on total loss basis and in the alternative of net of salvage basis by considering the value of irretrievable machinery to the maximum extent of ₹1,50,000/- and that too with the condition that the said offer shall stand as such in case the amount towards the settlement of his claim is received within a week of receipt of his email i.e. on or before 8.2.2022, failing which his consent for settlement on net of salvage basis shall automatically stand revoked.
   4. Thus, one thing is clear from the aforesaid consent letter that the complainant had agreed for deduction of an amount of ₹1,50,000/- as the value of salvage of subject JCB. Not only this, even vide email (Annexure A-26), complainant had acknowledged the payment of an amount of ₹41,16,500/- i.e. partial claim amount having been paid by the OPs to the complainant and has only resisted his claim qua the value of salvage to the tune of ₹3,61,000/- which has been deducted by the OPs while making the settlement of the claim. 
   5. As it is an admitted case of the parties that the salvage/wreck of the subject JCB could not retrieved despite of every endeavor made by the complainant as well as by the OPs and the same is still lying in deep gorge, we are of the considered opinion that the value of salvage to the tune of ₹1,50,000/-, for which the complainant had already given his consent, was required to be deducted from the claim amount instead of ₹3,61,000/-.  Hence, it is safe to hold that the OPs were unjustified in partially disallowing the claim of the complainant and the present consumer complaint deserves to succeed and the complainant is certainly entitled to the remaining amount of ₹3,61,000 – ₹1,50,000/- = ₹2,11,000/- alongwith interest and compensation.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay ₹2,11,000/- to the complainant alongwith interest @ 9% per annum from the date of partial payment made by the OPs i.e. 9.2.2021, onwards.
2. to pay ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 13/12/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member
			Sd/- [Suresh Kumar Sardana] Member