| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 321 of 29-11-2019 Decided on : 17-5-2023 Roshan Lal aged about 63 years, S/o Sh. Bal Mukand, R/o Near Punjab National ATM, Bhagta Bhaika, Tehsil Phul, Distt. Bathinda. ........Complainant Versus IFFCO TOKIO General Insurance Co. Ltd., 2nd Floor, Nirankari Bhawan, G.T. Road, Bathinda through its Branch Manager. EMM PEE Motors Ltd., Pioneer Toyota, Dabwali Road, Bathinda through its Manager/ Authorized Representative.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Sandeep Kumar, Advocate. For opposite parties : Sh. Vinod Garg, for OP No.1. Opposite party No.2 Ex-parte. ORDER Lalit Mohan Dogra, President The complainant Roshan Lal (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against IFFCO TOKIO General Insurance Co. Ltd., and anther (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that his Car bearing registration No. PB-03AL-1527 is insured with opposite party No.1 from Bumper to Bumper vide Insurance Policy No.TIT/91802549 w.e.f. 31.3.2019 to 30.3.2020. The said vehicle of the complainant met with an accident with a motor cycle in May 2019 and was damaged. In the said accident, the front wind screen of the car was also broken. The complainant informed the opposite party No.1 about the said accident and as per instructions of opposite party No.1, complainant took the said car to the workshop of the opposite party No.2, being the authorized service centre of the Toyota Co., for repair. The opposite party No. 2 repaired the said but did not replace/change its front wind screen although the same was also required to be changed, having been broken/ damaged in the accident as the aforesaid car of the complainant is insured from Bumper to Bumper. The opposite party No.1 proclaimed that the damage to the front wind screen of the car is not possible due to the accident of the said car with a motor cycle and the said clarification given by the officials of the opposite party No.1 is totally false, vague and without any basis and is based upon mere presumptions and assumptions. The car in question met with the accident and was damaged and the front wind screen of the car was also damaged due to the said accident and the opposite parties are required to change/replace the same with new one under the insurance claim. It is alleged that the complainant repeatedly requested the opposite parties to replace the front wind screen of the aforesaid car of the complainant but to no effect. The complainant also got served legal notice upon the opposite parties in this regard, but the opposite parties even did not give any reply to the said notice. The complainant alleged that due to aforesaid act on part of the opposite parties, the complainant has suffered mental tension, agony, botheration, harassment, humiliation and financial losses for which he claims compensation to the tune of 50,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to replace the front wind screen of the aforesaid car of the complainant under insurance cover, cost of which is approximately Rs.35,000/- and pay Rs.50,000/- as compensation in addition to Rs.3300/- as litigation expenses. Upon notice, opposite party No. 1 put an appearance through counsel and contested the complaint by filing written reply raising legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act' and appropriate remedy, if any, lies only in the Civil Court. The complainant has concealed material facts and documents from this Commission as well as opposite party. It has been pleaded that opposite party has already paid the claim amount to opposite party No.2 (EM PEE Motors Ltd.) as a cashless settlement on the basis of loss assessed by the surveyor and thus no more amount is payable or due in respect of reported claim No. 37994480 for date of loss 21-05-2019 of insured vehicle No. PB-03AL-1527. The dispute raised by the complainant in his complaint is only regarding the windshield glass of the Car which was allegedly broken in the alleged accident and the same was not allowed for replacement by the Surveyor. The surveyor has not allowed front wind screen of the Car as the cause of accident as per the claim form do not coincide with the loss of wind screen. The cause of loss as per the claim form is that the motorcycle stuck from front side of the car and brakes of the car applied suddenl,y another vehicle hit on the rear/back side of the car. It has also been pleaded that motor-cycle struck with front side of the insured vehicle and only frontal parts such as front bumper, front grill & front headlights were damaged. The front windshield is far away from the place where the motorcycle struck with insured vehicle and there is no contact of Motorcycle and any other object with the front windshield glass of the car and hence there is no possibility of damage of front wind screen in such collison of Fortuner with a Motorcycle. Further legal objections are that the complainant has no locus standi or cause of action to file the present complaint and that the complaint is not maintainable in the present form and is liable to be dismissed. On merits, opposite party No.1 has pleaded that the accident has been alleged to have taken place with a motor cycle from front and as the surveyor has not allowed front wind screen of the car allegedly broken in the alleged accident as the accident has been alleged to have taken place with motorcycle from front and the cause of accident do not coincide with the loss of wind screen i.e. there is no possibility of damage of wind screen in an accident of fortune with a motorcycle. The surveyor has assessed the loss at Rs. 1,40,392.47 and opposite party No. 1 has already settled the claim by payment of admissible amount to opposite party No.2 which stands admitted by the complainant in compliant itself. After controverting all othe averments of the complainant, the opposite party No. 1 prayed for dismissal of complaint. At the initital stage of proceedings of the case, Sh. Sukhwinder Parmar, authorized representative of opposite party No. 2 appeared before this Commission and filed written reply but thereafter none appeared on behalf of opposite party No. 2, as such, exparte proceedings were taken against opposite party No. 2. However, in written reply, opposite party No.2 has denied all the averments of the complainant on the ground that the entire claim has to be passed and processed by opposite party No. 1 as per terms and directions of the Insurance Company because opposite party No. 2 is acting as a service provider at the instance of opposite party No. 1 to which opposite party No. 2 cannot act at his own. The opposite party No. 2 has also pleaded that matter relates in between the complainant and opposite party No. 1 which is very much clear from the entire contents of the complaint, as opposite parety No. 2 has delivered the vehicle after carrying out the accidental jobs to the entire satisfaction of the complainant. In the end, the opposite party No. 2 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 25.11.2019 (Ex. C-1) and documents (Ex.C-2 to Ex.C-7). In order to rebut the evidence of complainant, the opposite party No.1 has tendered into evidence two affidavits of Sameer Gupta and Naresh Kumar both dated 8.1.2020 (Ex. OP-1/4 & Ex.OP-1/5) and documents (Ex. OP-1/1 to Ex.OP-1/3). The learned counsel for the complainant has argued that vehicle of the complainant was insured with opposite party No. 1 vide policy of insurance Ex. C-3 and said vehicle met with an accident in May, 2019 and damage was caused to the front wind screen of the car and other parts of the car of the front side. The opposite party No. 1 deputed surveyor to assess the loss. The car was repaired by opposite party No. 2. However, the opposite party No. 2 refused to change the wind screen of the car and it has been disclosed that surveyor of opposite party No. 1 has opinion that since car met with an accident with a motor-cycle and as such, wind screen cannot got damaged in the accident. Accordingly, relying upon the report of surveyor, claim regarding wind screen was refused, which amounts to deficiency in service on the part of the opposite parties. On the other hand, learned counsel for opposite party No. 1 argued that opposite party No. 1 has already paid claim amount to opposite party No. 2 as cashless settlement on the basis of loss assessed by surveyor duly supported with the affidavit at Rs. 1,40,392.47 and thus, no more amount is payable. The learned counsel for the opposite party No. 1 has relied upon the report of surveyor (Ex. OP-1/3), affidavit of Sameer Gupta, Vice President & Authorized Signatory of IFFCO Tokio General Insurance Co. Ltd., (Ex. OP-1/4) affidavit of Naresh Kumar, employed with IFFCO Tokio General Insurance Co. Ltd., (Ex. OP-1/5) and has argued that there is no deficiency in service on the part of the opposite parties and complaint being false is liable to be dismissed. We have heard learned counsel for the complainant and opposite party No. 1 and also gone through the record. First of all, it is admitted fact that complainant is registered owner of Car bearing registration No. PB-03AL-1527 as per registration certificate Ex. C-2 and the said car is insured with opposite party No. 1 vide policy of insurance Ex. C-3. It is further admitted fact that car owned by complainant met with an accident with a motor-cycle. It is also admitted fact that opposite party No. 1 settled the claim partly by allowing cashless claim by making payment of Rs. 1,40,392.47 to opposite party No. 2. It is further admitted fact that claim regarding broken wind screen was rejected by relying upon report of surveyor which is placed on record as Ex. OP-1/3. The question before this Commission is whether the decision of opposite party No. 1 was right in declining the replacement of front wind screen on the basis of report of surveyor Ex. OP-1/3. To decide this dispute, first of all, this Commission has gone through the report of surveyor wherein the surveyor has mentioned all the details alongwith cause of accident admitting the same to be correct. However, a perusal of entire report shows that report is totally silent as to why the claim regarding front wind screen was declined by surveyor. This Commission is of the view that if the claim regarding wind screen was liable to be rejected, the surveyor should have mentioned the reasons for declining the same in the report itself. Although the surveyor has later on filed affidavit before this Commission as Ex. OP-1/5 wherein the surveyor has stated that wind screen cannot got damaged with the accident which occurred with motor-cycle. A perusal of affidavit Ex. OP-1/5 further shows that said Naresh Kumar is employee of opposite party No. 1 and is not an independent surveyor and has not even mentioned his qualification in the affidavit meaning thereby that said Naresh Kumar has given report as per wish of his employer. As such, this Commission is of the view that claim of the complainant regarding wind screen has been declined wrongfully by opposite party No. 1. Accordingly, present complaint is partly allowed and opposite party No. 1 is directed to get the front wind screen of the Car No. PB-03-AL-1527 replaced from opposite party No. 2 on cashless basis as per terms and conditions of the Policy of Insurance Ex. C-3. No order as to costs. The compliance of this order be made by the opposite parties within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced 17-05-2023 - (Lalit Mohan Dogra)
President (Shivdev Singh) Member
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