Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                    Complaint No. : 395.

                                                                   Instituted on     : 19.07.2021.

                                                                   Decided on      :  13.03.2023

Ramesh Kumar Rana age 60 years, s/o Sh. Hoshiyar singh R/o H.No.2282 HBC Sector 3 Rohtak. District Rohtak.

                                                                                                                                                                                                ...........Complainant.

                                                Vs.

Iffco –Tokio General Insurance Comp. Ltd., “IFFCO Sadan”, C-1, District Centre, Saket, New Delhi 110017.

……….Opposite party

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR.TRIPTI PANNU, MEMBER.

                   DR.VIJENDER SINGH, MEMBER

Present:       Sh.Ashwani Phougat, Advocate for the complainant.

                   Shri Puneet Chahal, Advocate for the opposite party.

                                      ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the case as per the complainant are that he insured his Maruti Baleno Delta bearing no.HR12AC-7702 from the opposite party vide policy no.12088859 from dated 03.09.2020 to 02.09.2021 and paid the premium of Rs.17240/- including the premium of Rs.1472/- on account of new vehicle replacement as add on covers in his policy if the vehicle is theft/total loss, for which company is liable give new vehicle replacement or amount of new vehicle including road tax, insurance, registration fee etc.  The vehicle of the complainant met with an accident at Delhi on 21.02.2021 and the complainant took his vehicle to Prem Motors Pvt. Ltd.,  New Delhi for repair and informed to the insurance company. The surveyor of company found that the repair cost of the vehicle is exceeding of 75% of IDV, hence it is total loss case and submitted his report in the company. Now the cost of vehicle is Rs.764539/- including all taxes and other charges or they should give same amount or new vehicle of same range as per policy. The complainant submitted all the required documents and also completed all the formalities and applied for insurance claim with the opposite party. But after passing a sufficient long period the officials of the opposite party have not settled the claim of the complainant. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to pay the claim amount of rs.764539/- or new vehicle and also to pay an amount of Rs.100000/- as compensation  on account of harassment and Rs.21000/- as litigation expenses to the complainant.

2.                After registration of complaint, notice was issued to the opposite party. Opposite party in its reply has submitted that after receipt of claim, the answering opposite party appointed an IRDA accredited surveyor for survey the spot and to assess the nature and amount of loss and verify the facts pertaining to this incident based on which the survey report dated 30.05.2021 was obtained wherein the surveyor has recommended to settle the claim on Net of Salvage basis for Rs.117136/-. It is pertinent to note that the surveyor has categorically stated that the insured has intimated that the model of vehicle is no longer being manufactured and as such the new replacement clause is not applicable as per policy conditions. On merits it is submitted that after perusal of documents and survey report, the opposite party observed and sent letters dated 01.06.2021, 01.07.2021 and 09.07.2021 to the complainant for the following to process the claim of the complainant and as such informed him about the approval of his claim on the basis of Net of salvage and non-applicability of the New Replacement Clause as the subject vehicle BS-IV was discontinued w.e.f. 01.04.2020 in India and BS-VI has been introduced and therefore, rightly so, the condition no.(3)(a) was invoked and the claim of the complainant was decided on merits subject to submission of Consent Letter for Rs.117136/- on Rs.100 stamp paper duly notarized. However, since nothing was forthcoming, the answering opposite party constrained to close the claim vide letter dated 03.09.2021 on the account of documentation non-compliance.  In view of the mentioned, the complainant not submitted the documents and not replied these letters. In view of the answering respondent cannot keep the claim file open for an inordinately long period of time, the answering respondent closed the claim vide letter dated 03.09.2021 on account of documentation non compliance. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, and documents Ex.C1 to Ex.C6 and has closed his evidence on dated 24.11.2022. On the other hand, ld. Counsel for the opposite party has tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R9 and has closed his evidence on 23.01.2023.

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 not disputed. As per policy Ex.C2,  the IDV of the vehicle is Rs.318316/- and under the head add on coverage, complainant has paid the premium of Rs.3499/- under the head Depreciation waiver and Rs.1412/- on account of New vehicle replacement. Total amount of Rs.17240/- was paid for the period 03.09.2020 to 02.09.2021. It is an admitted fact that vehicle was damaged. Insurance company deputed surveyor Sh. Devender Singh Gaba who submitted his report with the insurance company on 30.05.2021 and placed on record as Ex.R1. The perusal of this report shows that the vehicle of the complainant comes under the category of total loss and he assessed the loss under the different heads No.(i) assessment of loss on repair basis as Rs.289995/-, secondly the assessment of loss on total loss basis as Rs.318136/- and assessment of loss on net of salvage basis as Rs.117136/-. (salvage value assessed as Rs.2 lac). We have minutely perused the survey report. It shows that the vehicle comes under the category of total Loss. After perusal of the documents the insurance company issued various letter to the complainant i.e. 01.06.2021, 01.07.2021 and 09.07.2021. Surveyor issued letter dated 13.04.2021. As per letter dated 01.06.2021 it has been admitted by the insurance company that the vehicle Baleno delta BS-IV model has been discontinued w.e.f. 01.06.2021 in India and the manufacturer of the vehicle introduced the new version of the vehicle i.e. BS-VI. Hence the insurance company is unable to replace the vehicle with new one as per terms and conditions of the policy. In fact the complainant has covered his vehicle after paying additional premium under the head ‘Add on coverage’ written on invoice value. As per letter Ex.R6, it is submitted by the opposite party that: “ 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 and as per condition no.3(a) Total loss claim settlement of Standard Motor Package Policy: “The company may at its own option repair reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the company shall not accede".  We have minutely perused the terms and conditions of the policy attached with the policy schedule Ex.R3 placed on record by the respondent. As per section-C, Part-2(3) of the policy, “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). Thereafter an another letter was also issued by the insurance company on dated 01.07.2017 and the same ground have been taken in the alleged letter.  After perusal of these sections we came into the conclusion that the insurance company wrongly considered the facts and considered the section C part 2 of sub part 2. In fact it is an admitted fact by the insurance company that the vehicle goes out of production  and as per our opinion the condition no.3 of the part 2 of section C is applicable which is reiterated again: “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)”. As the vehicle comes under the category of total loss hence the opposite party is liable to pay the IDV of vehicle(Rs.318136/-) after deduction of salvage value, which the opposite party has wrongly assessed as Rs.200000/-. In our view the value of salvage is Rs.50000/-. Hence opposite party is liable to pay i.e. Rs.268136/-(Rs.318136/- less Rs.50000/-) on total loss basis and under the head add-on coverage, complainant is also entitled for difference between the last Ex.Showroom price of insured vehicle and IDV. The complainant  has placed on record the cost of the different models of different vehicle Ex.C3 and as per this document the cost of BALENO BS-VI Delta model is Rs.656000/-. As per add on coverage, complainant is also entitled for the difference between last Ex.showroom price of the vehicle (Rs.656000/-) and IDV(Rs.318136/-), which comes to Rs.337864/-. Hence the complainant is entitled for Rs.268136/- under total loss basis and Rs.337864/- under add on coverage i.e. total Rs.606000/-. As per RC Ex.C1, the vehicle in question was HPA with State Bank of India. However, at the time of arguments, ld. counsel for the complainant has placed on record a document ‘Annexure-JN-A’ to prove that the loan has been terminated on 09.03.2023.

6.                In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party to pay the amount of Rs.606000/-(Rupees six lac and six thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 19.07.2021 till its realization and shall also pay Rs.10000/-(Rupees ten 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.

7.                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:

13.03.2023

                                                         .....................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Tripti Pannu, Member.

                                                                        .......................................................

                                                          Vijender Singh, Member