Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 479
Instituted on : 18.08.2022.
Decided on : 18.07.2023.
Rajnish Hooda son of Sh. Ram Niwas R/o H.No.-1138, Sector-3, Rohtak.
………..Complainant.
Vs.
- IFFCO-TOKIO General Insurance Co. Ltd. Regd. Office: IFFCO Sadan C-1, District Centre, Saket New Delhi-110017 through Manager/Incharge.
- IFFCO-TOKIO General Insurance Co. Ltd. Near Appu Ghar Rohtak through its Branch Manager.
- Ashwani Cars Pvt. Ltd.(Joy Honda), Opp. LPS Plant II Hissar Road, Rohtak through its Managing Director/Incharge.
……….Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT,2019
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER.
Present: Sh. Sanjeev Batra, Advocate for the complainant.
Sh. Anurag Malik, Advocate for opposite parties No. 1 & 2.
Opposite party no. 3 already exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the complaint as per complainant are that the complainant got insured his vehicle Honda WRV VX MT Diesel bearing registration no. HR70-E-0693 with the opposite parties No. 1 & 2 through opposite party no. 3 vide policy no. ITG/83058498 for the period 03.11.2021 to 02.11.2022. He paid extra premium for Rs.11939/- as Add-ons under which new vehicle replacement is covered and under the said clause, in case the insured vehicle becomes a total loss within prescribed age of vehicle, the opposite party shall pay the insured declared value equal to on road price and will pay actual amount difference between the IDV and current ex. Showroom price of new vehicle of the same make, model, features, specifications. The total price of the vehicle was Rs.9,82,531/- and an amount of Rs.80,000/- was spent on R.C. of the said vehicle. On 19.03.2022, the vehicle of the complainant met with an accident and was completely damaged. The complainant immediately informed the opposite party about the accident. Survey was conducted by the surveyor of the opposite party. Since the date of the accident, the vehicle is parked in workshop at Raj Auto Experts Rohtak because the same is beyond repair and the complainant is paying Rs.200/- per day as parking charges. He lodged the claim with the opposite party vide claim No.37054396 because the date of accident was covering under the said policy. The claim was lodged under new vehicle replacement policy because the complainant paid the additional premium for same. But the opposite party no. 1 & 2 instead of making payment issued a letter dated 20.07.2022 vide which it was informed that since the subject vehicle is BS-4 which is out of production, therefore, RTI coverage shall not be applicable. Whereas the vehicle in question is still under production and is not out of sale. It is further submitted that complainant has completed all the required formalities and submitted all the necessary documents to the opposite party and requested for making payment of the claim amount. But till the filing of the present complaint, the claim amount has not paid by the opposite party. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to settle the claim of complainant and to pay Rs.9,82,531/- as cost price of vehicle and Rs.80,000/- spent for R.C. alongwith interest @18% p.a. from the date of accident till the payment to the complainant. It is also prayed that opposite parties be directed to pay Rs.200/- per day as parking charges from the date of accident, Rs.1,00,000/- on account of harassment and Rs.33,000/- as litigation expenses as explained in relief clause to the complainant.
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties No. 1 and 2 appeared and filed their written reply submitting therein that the opposite party appointed an independent IRDA accredited surveyor Sh. Vinay Kumar Jain for survey and assessment of the loss. The surveyor after conducting the survey filed his detail report whereby the loss on repair basis was assessed to the tune of Rs.6,24,533/-. Since, the repair liability of the insurance company was exceeding 75% of the insured value Rs.4,99,428/-, the claim was finalized to be settled on the net salvage basis as per policy terms and conditions. Thereafter they arrange the valuation of the salvage and got the value of salvage Rs.3,51,000/- through online auction. The claim was thus approved on net salvage with insurer liability Rs.1,47,428/- after deduction of salvage value Rs.3,51,000/- and compulsory excess Rs.1000/- from IDV Rs.4,99,428/- of the vehicle. A settlement letter dated 20.07.2022 was released to insured conveying approval of his claim and further requesting for submission of final documents as mentioned in the letter dated 20.07.2022. But the complainant did not provide the required documents. It is further submitted that insured was granted this New Vehicle Replacement cover subject to its specific terms and conditions as contained in the policy document. The model of the insured vehicle has gone out of production after ban of sale of BS4 vehicle from March 2020 i.e. prior to the policy inception date, hence the claim for New vehicle replacement cover is not payable as per the insurance policy conditions. It is denied that insured vehicle was completely damaged and complainant is paying Rs.200/- per day as parking charges. It is also denied that the vehicle in question is still under production and is not out of sale. It is submitted that vehicle of the complainant is BS-4 and now a days BS-4 is absolute(obsolete) vehicle and not available for sale. Sale of new vehicle of BS-4 and its registration is already banned throughout India. So, there is no deficiency in service on the part of respondents, hence the claim filed by the complainant is liable to be dismissed. Notice issued to opposite party no. 3 received back served. But none has appeared on its behalf. As such, he is proceeded against exparte vide order dated 14.11.2022 of this Commission.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C8 and has closed his evidence on dated 17.02.2023. He also tendered documents Ex. C-9 and Ex.C-10 in his additional evidence and closed the same on dated 11.07.2023. Ld. Counsel for the opposite parties has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R4 and closed his evidence on dated 31.03.2023.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case insurance and accident of the vehicle is admitted. It is admitted that the vehicle is total loss. Now come upon the assessment of loss. We have minutely perused the insurance policy placed on record by the complainant. The complainant has purchased some add-on cover i.e. depreciation waiver, engine and gear box protection cover, loss of key cover, new vehicle replacement and tyre protect. And against these additional covers, he paid an amount of Rs.11939/- to the respondents. The respondent officials deputed a surveyor to assess the loss in the vehicle in question. The report of the surveyor is placed on record as Ex.R1. As per surveyor he assessed the loss on 3 grounds i.e. on repair basis amounting to Rs.624533/-, on total loss basis(net loss assessed i.e. Rs.498428( after deducting the less excess clause) and on net of salvage basis assessed the liability as Rs.147428/-. Under the head of net of salvage basis the settlement amount is mentioned as Rs.499428/-, less salvage value with RC mentioned as Rs.351000/- and less excess clause amounting to Rs.1000/-. Net liability on net of salvage basis is assessed as Rs.147428/-. After the report the insurance company issued a letter to the complainant as Ex.R3 and sought a confirmation from the complainant that the surveyor has assessed the loss in the vehicle in question and a settlement mode was communicated to the complainant. Through this letter the insurance company sought confirmation regarding the settlement but the complainant has denied the settlement on net of salvage basis. As per the surveyor itself the repair of the cost of the vehicle comes to Rs.624533/-As per our opinion the vehicle comes under the category of total loss and after deducting the salvage value which we have assessed as Rs.99428/-, the insurance company is liable to pay an amount of Rs.400000/- regarding the loss in the vehicle. This amount has been assessed under the head of total loss basis. It has been further submitted by the complainant that he had paid an extra premium under the head of new vehicle replacement so the insurance company is liable to replace the vehicle in question with new one. Here the insurance company has submitted that the manufacturing of vehicle model WRV1.5 VXMT-i-DTCE(NS-4)) are out of production. So the vehicle of the complainant cannot be replaced and further submitted that the claim of the complainant can be settled as per the condition no.3(a) of the insurance policy. The respondent officials placed on record the policy of the vehicle as Ex.R4 alongwith the terms and conditions. The complainant also placed on record the insurance policy as Ex.C3. We have minutely perused the terms and conditions mentioned under the head of ‘New vehicle replacement’ part 2:
“In the event of damage to the Insured Vehicle as per Section 'B' ‘Scope of Coverage', we will provide the benefit of New Vehicle Replacement provided that you have paid the additional premium and subject to the following:- 1) If the Insured Vehicle becomes a Total Loss within the prescribed age of the vehicle as stipulated by us in the schedule, we will pay for the actual amount difference between the IDV (Insured Declared Value) of the Insured Vehicle and the current Ex-showroom price of New Vehicle of same make, model, features, specification. 2) The Insured vehicle is available for sale as New Vehicle in India and is not out of production, otherwise for such vehicles which are out of production the claim will be settled as per Condition No. (3)(a) i.e. Total Loss claim settlement of Standard Motor Package Policy. 3) If the insured vehicle goes out of production after commencement of insurance; then we will pay for the difference between last available Ex-Showroom Price of the Insured Vehicle and IDV (Insured Declared Value). 4) The last available Ex-Showroom price for the Replacement vehicle cannot be considered for a date after the settlement of Total Loss Claim for Insured Vehicle under Standard Motor Package policy”.
6. Now the insurance company wants to settle the claim under sub section 3(a) of the new vehicle replacement but on the other hand the complainant wants to settle the claim under section 1) of para no.2(new vehicle replacement policy. We have minutely perused the above mentioned sections and also perused the insurance policy and registration certificate of the vehicle in question. As per the registration certificate the model of the vehicle is mentioned as WR V 1.5 VX MT 1DTEC and in the insurance policy, the model of the vehicle is mentioned as WR- V/1.5 VX MT IDTEC. It is nowhere mentioned in the policy that the model of the vehicle is BSIV. It has been submitted by the insurance company that model BSIV technology vehicles are out of production. But as per our opinion the model of the vehicle is still manufactured by the company. Only technology has been upgraded by the manufacturer and against the upgradation, the value of the vehicle is also enhanced. In the present case the insurance policy was renewed on 03.11.2021 to 02.11.2022 and at the time of renewal, the insurance company has charged the premium after considering the present value of the model WR- V/1.5 VX MT IDTEC. In additional evidence the complainant’s counsel has placed on record the value of WR-V diesel VXMT and its base price is Rs.1231000/- . The IDV of the vehicle is Rs.499412/- and as per new vehicle replacement policy, the value of the new vehicle is Rs.1231000/-. The difference of both the vehicles is Rs.731588/-. The IDV of the vehicle is Rs.499412/- and after deducting the salvage value, which we have assessed as Rs.99412/-, the value of vehicle comes to Rs.400000/-. Hence the complainant is entitled for the amount of Rs.400000/- on account of total loss and Rs.731588/- on account of new vehicle replacement policy i.e. total Rs.1131588/-.
7. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 & 2 to pay the amount of Rs.1131588/-(Rupees eleven lac thirty one thousand five hundred and eighty eight only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e.18.08.2022 till its realization, to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to move an application to the Registration Authority for cancellation of RC within 15 days and will not use the vehicle in any manner.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
18.07.2023
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Nagender Singh Kadian, President
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Tripti Pannu, Member
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Vijender Singh, Member
