Haryana

Charkhi Dadri

CC/226/2022

Jai Bhagwan - Complainant(s)

Versus

IFFCO TOKIO GENERAL INSURANCE COMPANY LTD, through its Manager. - Opp.Party(s)

Sh. Praveen Kumar

08 Oct 2024

ORDER

 

BEFORE      THE     DISTRICT      CONSUMER      DISPUTES      REDRESSAL COMMISSION, CHARKHI DADRI.

                                                  Complaint Case No. :             226 of 2022.                                     Date of Institution:    03.10.2022.

                                                  Date of Decision :                       08.10.2024

Jai Bhagwan son of Sh. Dharampal, resident of village Santor, PO Sarupgarh, Tehsil and District Charkhi Dadri  8307003874

…Complainant.

Versus

1. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. having its office at 1^st Floor, Minerva Complex Rai Market, Ambala Cantt, Ambala-133001, Haryana its Manager.
2. MERIT HONDA, SPL MOTORS PVT. LTD. Authorized workshop Honda Motors, Hissar Road, Rohtak-124001, through its Manager.

…Opposite Parties.

Complaint under the Consumer Protection Act.

 

CORAM:-   Sh. Manjit Singh Naryal, President.

                   Sh. Dharam Pal Rauhilla, Member.

 

Present:-      Sh.Parveen Kumar, Advocate for the complainant.

Sh. Vinod Kumar Chahar, Advocate for opposite party no.1.

OP no.2 ex parte.

ORDER:-

1. Brief facts of the case are that complainant is registered owner of SUV Honda Car bearing registration No. HR-19N-5756 which was duly insured with OP no.1-Insurance Company vide policy No. TG/82946039 effective during the period 27.12.2020 to 26.12.2021 having IDV (Insured Declared Value) of Rs.7,24,500/-. Complainant has averred that on 18.07.2021, at about 3:30 p.m. when complainant’s  brother in law namely Sh. Ashok S/o Sh. Ishwar Singh, R/o MC Colony, Charkhi Dadri was driving the aforesaid insured Car & going to Gurgaon, suddenly the vehicle met with an accident with a Tralla for which General Dairy No.004 dated 19.07.2021  was registered in PS Saddar Dadri.. Complainant has further averred that OP no.1-Insurance Company was informed well in time and all relevant documents were also submitted to OP no.1-Insurance Company whereupon OP no.1-Insurance Company’s Surveyor Sh. Sunny Goel inspected the damaged insured Car and on asking of surveyor, the damaged vehicle was sent to workshop of OP no.2. The above said vehicle was standing in the parking yard of OP no.2. After lapse of near about one year, the OP no.1 intimated complainant telephonically that the OP no.1 auctioned the above said vehicle in a wreck value of Rs. 2,86,000/- but during the parking of complainant said vehicle in parking yard of OP no.2. The OP no.2 had removed/stolen the functioning /valuable parts  and due to this reason, the auctioneer has refused to buy the said vehicle. On the asking of OP no.1, complainant sent the abovesaid vehicle to the workshop of OP no.2 and handed over all the documents alongwith keys of vehicle to the surveyor. It is averred that regarding the theft of functioning /valuable parts, the complainant made a online complaint no. 13237061072200289 in PS Rohtak City.  The OP no.1 neither disburse the claim amount nor the vehicle get repaired. due to which, he has suffered monetary loss as well as mental and physical harassment. The complainant got served a legal notice dated 25.07.2022 through Advocate to the OP no.1 but he did not pay any heed on the request. Hence, the present complaint has been preferred by complainant requesting for issuing a direction to OPs to disburse payment of Rs.7,24,500/- (I.D.V.) of vehicle in question alongwith compensation on account of harassment, mental pain & agony etc.  & litigation expenses etc.
2. Pursuant to notice, OP NO.1 appeared through counsel and tendered reply raising preliminary objections that the complainant has neither cause of action nor locus standi to file the present complaint rather filed a false & frivolous complaint. Answering OP No.1 further submitted that there is no responsibility   of payment of parking charges in case loss or damage occurred in parking yards and it is responsibility of insured himself. The claim was approved and a settlement letter dt. 31.05.2022 also sent to the complainant address intimating him for approval of the claim with net liability of insurance company to the tune of RS. 4,37,500/- on net of salvage basis (after deduction of cost of salvage Rs. 2,86,000/-) and policy excess Rs. 1000/- from IDV of vehicle  and further completion of post approval  formalities such as

1. Net of Salvage Consent.
2. Copy of buyer/seller agreement (salvage)
3. KYC documents of Insured
4. Form no.35 and NOC from financer  of the vehicle (if loan cleared)
5. NEFT details of financer for claim payment in financer favour, if loan is not cleared.

The dispute is between the complainant and OP no.2 against whom the complainant also levied allegation for stolen of valuable parts from the damaged vehicle. There is no deficiency in service on the part of OP no.1 and requested for dismissal of complaint with costs.

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7. Learned counsel for complainant reiterated the contents of the complaint and placed on record supportive documents.

In support of his contention, learned counsel for complainant placed reliance on orders/judgments rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi as well as Hon’ble Supreme Court of India on the cited subject which are detailed as under:-

1. ICICI Lombard General Insurance Co. Ltd. and others Vs. Mayur Batra and Anr. in F.A. No. 101 of 2009 decided on 28.07.2020 wherein Hon’ble National Consumer Disputes Redressal Commission has held that “Consumer Protection Act, 1986 Section 21 Consumer Protection Act, 2019, Section 51 – Insurance – Vehicle in question met with an accident during validity of insurance – Alleged deficiency in service – Unfair trade practice – State Commission directed to pay to complainant insured value of vehicle in question, less 5% depreciated value, cost of litigation of Rs.10,000/- to complainant and entire amount of Rs.4,81,148/- for repairs of vehicle – Though vehicle was badly damaged and needed replacement, Insurance Company insisted on repair of vehicle by dealer –Fact that the brakes of the vehicle were not functioning was not denied by Respondent No. 2 – Respondent No. 2 could not admit that the vehicle was restored to its original condition and take the responsibility for the smooth running of the vehicle and safety of the occupants – Though the vehicle got damaged badly in the accident, the Appellant – Insurance Company was not willing to concede to declare total loss of the vehicle and give the sum assured to the Complainant – State Commission, rightly held that Appellant shied away from their obligation under the contract of insurance – Appellant failed to point any illegality or irregularity in the order passed by the State Commission – Appeal Dismissed.”
2. National Insurance Company Limited Vs. Tushar Goswami &Others in Revision Petition No. 1130 of 2017 decided on 17.01.2018 wherein Hon’ble National Consumer Disputes Redressal Commission has held that “Since the cost of repair ,as estimated by Bhandari Motors Pvt. Ltd., was morethan75%of the IDV of the vehicle, the fora below were fully justified in treating this to be a case of total loss and awarding the amount of Rs.11,60,100/- to the complainant. The revision petition, being devoid of any merits, is hereby dismissed. The salvage shall belong to  the insurer.”

8. On the other hand, learned counsel for OP no.1-Insurance Company argued in the light of reply and documents placed on record and reiterated contents thereof.
9. After hearing contentions of the parties and perusing the documents & evidence placed on record, it is undisputed that on the day of accident i.e. 18.07.2021, the car in question was under insurance cover and damaged badly. OP-Insurance Company has placed on record Motor Claim Final Survey Report dt.13.04.2022 (Ex.R5) issued by Sunny Goel, Surveyors/Loss Assessors. Further, on minutely perusal of said Final Survey Report (Ex.R5), the assessment of repair basis  comes to Rs. 6,93,576/- & the IDV of the vehicle is Rs. 7,24,500/-. The Survey report states that the insured vehicle shall be treated as Constructive Total Loss (CTL).

So, in view of the above, the repair estimate (Ex.R5) tendered by OP-Insurance Company amounting to Rs.6,93,576/- is 88% of Insured Declared Value (I.D.V.) of the vehicle in question i.e. Rs.7,24,500/- and thus very well comes in the purview of Total Loss (TL)/Constructive Total Loss (CTL) claims as per own Damage Policy of OP no.1-Insurance Company (Ex.R8), which says as under:-

“IDV shall be treated as the Market Value throughout the policy period without any further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CTL) Claims.”

“The insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and / or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle.”

Besides above, Final Surveyor of OP no.1 –Insurance Company has assessed the expected Salvage Value of the damaged vehicle in question @ Rs.2,86,000/-/- in his report (Ex.R1) and the salvage of the vehicle is with the OP no.2. Thus, we are of the view that complainant is entitled for claim of IDV of Rs.7,24,500/- of being his insured Car Total Loss Vehicle. However, OP-1 is entitled for salvage of the damaged vehicle which is with OP-2. Hence, liability for the salvage and payment of Rs.2,86,000/- for the same lies with OP-2. In the given circumstances it would be appropriate and justifiable that OP no.1 make payment of IDV of Rs.7,24,500/- to the complainant and claim Rs.2,86,000/- from the OP-2 as possession the salvage of insured vehicle is with OP no.2. As regards issue raised by the complainant that some valuable parts were stolen from the damaged vehicle and the same was sold by OP no.2, the same has become infructuous as the OP noi.2 is required to pay the salvage value of Rs.2,86,000/- to the OP no.1 as total loss vehicle was dealt with/retained by OP-2.

10.           Keeping in view of facts, case laws and legal position enunciated above, we have no hesitation in holding that the OP no.1-Insurance Company is deficient in providing proper services to the complainant in not settling the claim of the complainant  for IDV of the insured vehicle which was total loss case as per survey report of the surveyor engaged by the OP-1 itself. It amounts to negligence on the part of OP no.1. Therefore, we allow the present complaint with a direction to OP no.1-Insurance Company to comply with the following directions within 45 days from the communication of this order:-

1. OP no.1 i.e. Insurance company viz. IFFCO TOKIO General Insurance Company Ltd. to pay a sum of Rs.7,24,500/-being total loss of insured vehicle alongwith simple interest @ 9% from the date of  Survey Report i.e.13.04.2022 till its realization, subject to submission of subrogation letter, no dues certificate from the financer of the insured vehicle. The OP-1 will claim Rs.2,86,000/- from OP-2 being salvage value of the vehicle.
2. OP no.1 to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) towards compensation for causing harassment, mental agony etc. to complainant.
3. OP no.1 to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) in lump sum on account of costs of litigation charges including counsel fee etc. incurred by the complainant.
4. OP no.1 is imposed damages of Rs.50,000/- as Punitive Damages for not treating the claim of complainant vehicle as Constructive Total Loss (CTL) as per their own policy to be paid in the account in the name of “LEGAL AID ACCOUNT OF THE STATE COMMSSION, bearing Account No.38283037741 having IFS Code SBIIN0050969, Branch Code 50969, with State Bank of India, Sector 4, Panchkula and deposit the receipt with this Commission.
5. OP no.2 to pay Rs.2,86,000/- being salvage value of the damaged insured vehicle to OP no.1 as total loss  vehicle was dealt with/retained by the OP no.2

11.           Further, the award in question/directions issued above must be complied with by the OP no.1-Insurance Company within 45 days from the date of receiving the copy of this order failing which all the awarded amounts mentioned at (i) to (iii) above shall further attract simple interest @ 12% per annum for the period of default. Copy of this order be supplied to the parties concerned, as per rules. File be consigned to the records, after due compliance.