DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No.740 of 2010]

Subhash Sharma (s/o Sh. Hari Dutt) c/o H.No.2110, Sector 38-C, Chandigarh.

                                                                   ---Complainant.

Versus

IFFCO TOKIO General Insurance Co. Ltd., Plot No.2, B&C, Madhya Marg, Sector 28-A, Chandigarh 160002 through its Chief Regional Manager. 

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by: Sh. J.C. Kapoor, Adv. for the complainant

                   Sh. Gaurav Bhardwaj, Adv. proxy for Sh. Paras Money Goyal, Adv. for the OP.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Subhash Sharma has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following relief :

i)                   to pass the claim either on total loss basis of Rs.1,45,000/- or on cash loss basis for Rs.1,00,000/- as verbally committed alongwith interest at the rate of 24% from the date of accident till its actual payment.

ii)                To pay a sum of Rs.1,00,000/- for sufferings mental agony, mental torture, pain, harassment and embarrassment and inconvenience caused to the helpless deponent

iii)              The deponent may be awarded litigation expenses to the tune of Rs.21000/-

2.                           In brief, the case of the complainant is that he is owner of Maruti car No.HP-14A-1815. The said car was insured with the Opposite party for the period 8.12.2007 to 7.12.2008 for the sum insured of Rs.1,55,000/- and paid the requisite premium.

                   According to the complainant, on 4.12.2008 his car met with an accident and was badly damaged.  He reported the matter to the police and also intimated the opposite party regarding the accident.  The Opposite party appointed surveyor who inspected the car and prepared the report regarding the loss to the car.  The case of the complainant is that the surveyor offered two options for settlement of claim :-

i)                   either to get the vehicle repaired by replacement of some major parts which was not desirable in view of the magnitude of damages.

                             or

ii)                on total loss basis for Rs.1,45,000/- which was agreed upon but OP’s surveyor later retrieved.

                   Ultimately, the surveyor suggested to finalize the claim on cash loss basis for Rs.1,00,000/- while retaining the salvage. As per the complainant, he was not satisfied with the offer given to him by the opposite party so he approached the Insurance Ombudsman, Chandigarh for settlement of the claim. The Ombudsman vide award dated 23.6.2009 directed as under :-

                   “5.     After hearing both the parties and going through the records carefully, I am of the opinion that the vehicle should be got repaired by replacing the body shell.  The cost of serviceable part in the body shell should be borne by the complainant.  The insurer is advised to settle the claim within 15 days of the receipt of bills/cash memos and other documents.”

                   It has further been pleaded by the complainant that as the matter had delayed, it caused excessive wear and tear to the accidental vehicle and it became beyond repairs.  Therefore, the Opposite Party was repeatedly approached to settle the claim on total loss basis but no action was taken till date. 

                   In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           In the reply filed by the Opposite party it has been admitted that the car in question was insured for the period 8.12.2007 to 7.12.2008 for the sum insured of Rs.1,55,000/-.  It has also been admitted that the said car met with an accident.  The case of the opposite party is that soon after receipt of information regarding the accident, it appointed Shri P.K. Bansal as surveyor who inspected the vehicle and reported that the vehicle could be repaired.  So the opposite party offered to indemnify the complainant for the repair charges, as assessed by the surveyor. However, as the complainant was not satisfied, so he approached the Ombudsman.  It has been pleaded that the Ombudsman also directed to pay the repair charges and that the Company is willing to pay the same.  However, instead of getting the car repaired, he took the car to his address at Bahadurgarh. In order to comply with the directions of the Ombudsman, the Opposite party appointed Sh. Manoj Puri alongwith the repairing Engineer from M/s A.M. Automobiles, Delhi who visited the site at Bahadurgarh and assessed the loss amounting to Rs.1,19,448/- including the total repairs and labour charges.  The matter was again discussed with the complainant but he insisted for payment of IDV.  Thus, according to the Opposite party, it is ready and willing to indemnify the loss of repairs, but the complainant has not got the car repaired.  In these circumstances, according to the Opposite there is no deficiency in service or unfair trade practice on its part and the complaint deserves dismissal.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           It is the admitted case of the parties that the car in question was insured for the period 8.12.2007 to 7.12.2008 for the sum insured of Rs.1,55,000/- and that it met with an accident on 4.12.2008. The Complainant intimated the Opposite party about the accident of the vehicle.  As per the Opposite party, it appointed a surveyor who assessed the loss to the tune of Rs.1,00,000/-.  However, the complainant was not satisfied with it, so he moved the Insurance Ombudsman which held that the shell of the vehicle, being beyond repairs, be replaced with a new one, thus establishing the fact that the vehicle was badly damaged.  Thereafter, the opposite party assessed the loss to the tune of Rs.1,19,448/-, including total repair and labour charges, however, while making these submissions the Opposite party has failed to place on record the actual surveyor’s report so as to substantiate that the surveyor appointed by them has assessed the loss of the vehicle as per the terms and conditions of the policy. Though in Annexure R-2 and R-3 a few figures on the margins have been added in ink, but no signatures of any official are found appended on these notings. 

6.                           In the present circumstances, while believing the version of the Opposite Party, which is supported by the affidavit of Sh. Rajeev Chowdhary, its General Manager, the total loss of the vehicle is estimated at Rs.1,19,448/-, including total repairs and labour charges.  It is very much relevant to visit Indian Motor Tariff Regulation GR.8 which clearly mentions that “a vehicle will be considered to be a CTL (Constructive Total Loss), where the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV.”   In the present case, the IDV of the vehicle in question is Rs.1,55,000/-.  The 75% of the said IDV comes to Rs.1,16,250/-  Therefore, in the light of the aforesaid regulation, it is amply clear that the vehicle in question needs to be assessed as a CTL as the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, has exceeded 75% of the IDV. 

7.                           It is important to mention here that the Opposite Party have unnecessarily delayed the matter without any valid ground as the surveyor appointed by it failed to assess the loss of the vehicle in question as per clause 9(2) of the Claim Procedure in respect of a general insurance policy of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests)  Regulations 2002 which reads as under :-

 “(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.”

Keeping in view the above, it is amply clear that the Opposite Party delayed the matter instead of settling the same at once, which clearly amounts to deficiency in service on its part and the complaint needs to be allowed with costs. 

                   But, as the complainant has restricted his relief to Rs.1,45,000/-, so, he will be entitled to a sum of Rs.1,45,000/- only, instead of Rs.1,55,000 (being the IDV of the vehicle).

8.                           In view of the above discussion, the present complaint is allowed and the Opposite Party is directed as under :-

i)                   The Opposite party shall pay Rs.1,45,000/- to the complainant.  The Opposite party is directed to take the possession of the damaged vehicle from the complainant at its own cost.

ii)                To pay a sum of Rs.30,000/- to the complainant as compensation for mental agony and harassment suffered by him.

iii)              To pay Rs.10,000/- as costs of litigation.

9.                           This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No. (i) & (ii) shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.

10.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

31.7.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

(JASWINDER SINGH SIDHU)

MEMBER