Haryana

StateCommission

A/153/2016

TATA AIG GEN.INSURANCE CO. - Complainant(s)

Versus

JYOTIKA - Opp.Party(s)

R.K.SHARMA

09 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeals No: 153 & 164 of 2016

Date of Institution: 18.02.2016 & 23.02.2016

Date of Decision: 09.08.2016

Appeal No.153 of 2016

 

1.      TATA AIG General Insurance Company Limited, at Peninsula Corporate Park, Peermal Tower, 9^th Floor, GK Marg Power Parel, Mumbai, through its General Manager.

2.      TATA AIG General Insurance Company Limited, Divisional Office at 301-308, 3^rd Floor Aggarwal Prestige Mall, Plot No.2, Road, No.44, Rani Bagh, Pitampura, New Delhi through its General Manager.

          Both the appellants through authorised Officer Shri Mohammad Azhar Wasi, Head North Zone Claims, TATA AIG General Insurance Company Limited, 2^nd Floor, SCO 232-234, Sector 34-A, Chandigarh.

                                      Appellants-Opposite Parties No.1 & 2

Versus

 

1.      Jyotika wife of Mohit Rehlan, Resident of New Kranti Nagar, Sant Kartar Colony, Panipat at present House No.216, Sikka Colony, Sonipat.

                                      Respondent-Complainant

2.      TATA AIG General Insurance Company Limited, through M/s Malwa Auto Sales Private Limited at NH-1, 31 Mile Stone, Kundli, Sonipat.

3.      M/s Malwa Auto Sales Private Limited at NH-1, 31 Mile Stone, Kundli, Sonipat (authorised dealer and repairing centre of Hyundai Motors).

Respondents-Opposite Parties No.3 & 4

Appeal No.164 of 2016

 

M/s Malwa Auto Sales Private Limited at NH-1, 31 Mile Stone, Kundli, Sonipat (authorised dealer and repairing centre of Hyundai Motors).

Appellant-Opposite Party No.3

Versus

1.      Jyotika wife of Mohit Rehlan, Resident of New Kranti Nagar, Sant Kartar Colony, Panipat at present House No.216, Sikka Colony, Sonipat.

                                      Respondent-Complainant

2.      TATA AIG General Insurance Company Limited, at Peninsula Corporate Park, Peermal Tower, 9^th Floor, GK Marg Power Parel, Mumbai, through its General Manager.

3.      TATA AIG General Insurance Company Limited, Divisional Office at 301-308, 3^rd Floor Aggarwal Prestige Mall, Plot No.2, Road, No.44, Rani Bagh, Pitampura, New Delhi through its General Manager.

4.      TATA AIG General Insurance Company Limited, through M/s Malwa Auto Sales Private Limited at NH-1, 31 Mile Stone, Kundli, Sonipat.

                   Performa respondents-Opposite Parties No.1, 2 & 4

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Rajesh Kumar Sharma, Advocate for TATA AIG General Insurance Company Limited.       

                             Shri S.C. Thatai, Advocate for Jyotika-Complainant.

                             Shri Vikas Lochab, Advocate for M/s Malwa Auto Sales Private Limited.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          This order shall dispose of afore-mentioned two appeals bearing No.153 and 164 of 2016 having arisen out of common order dated December 14^th, 2015, passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’), whereby complaint No.352 of 2013 filed by Jyotika-Complainant, seeking compensation with respect to her car which was damaged in an accident during the subsistence of the insurance policy obtained from  TATA AIG General Insurance Company Limited (for short ‘the Insurance Company’)-Opposite Parties No.1 to 3, was allowed.  For facilitation, the operative part of the order is reproduced as under:-

“……..the respondent No.4 was duty bound to take up the repair at the earliest, but he has delayed the repair due to the reasons best known to him. Hence, the respondent No.4 is not entitled to take any parking charges from the complainant. Further as the repair of the vehicle has been delayed by the respondent No.4 without any reasonable cause or excuse, the respondent No.4 is liable to pay Rs.100/- per day from the date of accident till final settlement of the claim of the complainant.

          Further since the vehicle is lying parked in the accident condition for the last more than 3 years due to the deficient services on the part of the respondent No.4, it would be in the interest of justice if the IDV alongwith interest at the rate of 7% per annum from the date of filing of the present complaint till its realization is awarded to the complainant and the said amount shall be paid by the respondents No.1 to 3 to the complainant. We order accordingly. It is also directed to the respondents No.1 to 3 to lift the vehicle in question from the workshop of the respondent No.4.

          With these observations, findings and directions, the present complaint stands allowed.”

 

2.                The complainant purchased a car (Hyundai I20) from M/s Malwa Auto Sales Private Limited, on March 30^th, 2012 for Rs.6,80,488/-, vide invoice Exhibit C-2. It was insured with the Insurance Company for the period March 30^th, 2012 to March 29^th, 2013. The Insured Declared Value was Rs.6,48,031/-.

3.                On August 27^th, 2012 the car met with an accident and was damaged. The complainant informed the Insurance Company and shifted the car to M/s Malwa Auto Sales Private Limited-Opposite Party No.4. The Insurance Company deputed surveyor, who inspected the car on September 21^st, 2012 at the workshop of opposite party No.4. The surveyor submitted report (Exhibit C-7) whereby he assessed the loss at Rs.2,49,723/-. However, as per the estimate obtained by the complainant from the opposite party No.4, the car suffered damage worth Rs.6,50,822/-. The complainant filed claim with the Insurance Company seeking compensation treating it a case of total loss to which the Insurance Company did not agree. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed.

4.                The Insurance Company contested the complaint by filing written version. It was stated that the car was very much repairable. The surveyor vide letter dated December 3^rd, 2012 (Annexure R-3) requested the complainant to get the car repaired because it was not a case of total loss. It was prayed that the complaint be dismissed.

5.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order allowed complaint and issued direction as detailed in paragraph No.1 of this order.

6.                Aggrieved by the order of the District Forum, the Insurance Company filed appeal No.153 of 2016 for setting aside the impugned order and the complainant filed appeal No.164 of 2016 for enhancement of compensation.

7.                Indisputably, the car owned by the complainant was damaged in the accident during the subsistence of the insurance policy obtained from the Insurance Company. It is also not in dispute that the car was shifted to the opposite party No.4 for repair where it was inspected by the surveyor of the Insurance Company. It has also come on the record that the surveyor assessed the loss at Rs.2,49,723/- vide report Exhibit C-7. On the other hand, the complainant of his own secured the estimate to the extent of Rs.6,50,822/- from the opposite party No.4. However, there is nothing on the record to show that the car was got repaired by the complainant by spending the above said amount of Rs.6,50,822/-. That was only an estimate and not the actual expenses. During the course of arguments, learned counsel for the Insurance Company referred to the letter dated 3^rd December, 2012 (Annexure R-3) written by M.S. Uppal & Associates, Surveyor and Loss Assessor, whereby the complainant was requested to get the car repaired. The relevant part of the latter (Annexure R-3) is reproduced as under:-

“In accordance to instructions received from your insurers we had surveyed the car and necessary instructions were given to the repairer to repair the vehicle after detailed discussion with them. Accordingly the repairer has started the repair job and car was also surveyed by us during repairs.

Now we have come to know that you have got the repair work stopped.

You are requested to get the repair job completed so that your claim is processed further.

The case does not fall under the preview of total loss so please get the car repaired.

The delay and subsequent any loss due to your non allowance of repairs to the workshop will be at your responsibility.”

8.                Hon’ble Supreme Court, in United India Insurance Co. Ltd., & Ors.  Vs. Roshan Lal Oil Mills Ltd. & Ors., (2000) 10 SCC 19, held that surveyor’s report is an important document and non-consideration of this important document results in serious miscarriage of justice.  

9.                In Sri Venkateswara Syndicate vs Oriental Insurance Company Ltd., and Another, (2009) 8 Supreme Court Cases 507, Hon’ble Supreme Court held as under:-

“There is no disputing the fact that the surveyor/ surveyors are appointed by the insurance company under the provisions of the Insurance Act and their reports are to be given due importance and one should have sufficient grounds not to agree with the assessment made by them”.

10.              In D.N.Badoni Vs. Oriental Insurance Co.Ltd, 1 (2012) CPJ 272 (NC), Hon’ble National Commission held that Surveyor’s report has significant evidentiary value unless, it is proved otherwise.

11.              The complainant has failed to produce any cogent and convincing evidence to prove that it was a case of total loss of his car.  So in absence of any evidence contrary to the report of the surveyor, the plea of the complainant seeking IDV of the car treating it a total loss, is not tenable. The complainant is entitled to compensation as per the report of the surveyor. The complainant herself is to be blamed for delay in repair in view of letter of surveyor (Annexure R-3), reproduced in earlier part.

12.              In view of the above, it is established that the complainant herself got the repair work stopped while the car was being repaired in the workshop of M/s Malwa Auto Sales Private Limited.  Thus, the District Forum fell in error in allowing the complaint while granting IDV and imposing penalty upon M/s Malwa Auto Sales Private Limited @ Rs.100/- per day.

13.              For the reasons recorded above, the Insurance Company is directed to pay Rs.2,49,723/- to the complainant along with interest @ 9% per annum from the date of filing of the complaint till its realisation and Rs.10,000/- compensation, for harassment, mental agony and costs of litigation. It is further directed that M/s Malwa Auto Sales Private Limited, will not recover any parking charges from the complainant and the penalty @ Rs.100/- per day upon M/s Malwa Auto Sales Private Limited, is set aside.

14.              The impugned order is modified in the manner indicated above and the appeals are disposed of accordingly.  

15.              The statutory amount of Rs.25,000/- deposited at the time of filing appeal No.153 of 2016 be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.  

 

 

Announced 09.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL