Punjab

StateCommission

FA/12/134

ICICI Lombard General Insurance Company Ltd. - Complainant(s)

Versus

Kanta Jain - Opp.Party(s)

Sandeep Suri

15 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.134 of 2012

 

                                                          Date of Institution: 03.02.2012      

                                                           Date of Decision :  15.09.2015

 

1.       ICICI Lombard (Motor Insurance) C/o Zenith House Kushwarao Khadi  Marg, Maha Laxmi Mumbai (Maharashtra 400034                        through its  Managing Director).

 

2.       ICICI Lombard (Motor Insurance) through its Branch Manager Unit      No.3, Thirds Floor, Plot No.B-III/CH-155, Sutheri Road,               Hoshiarpur, through Ms. Gurpreet Kaur, Manager Legal.                                                                                                                                                                                                                                                …..Appellants/Opposite parties                             

                                      Versus

 

1.       Kanta Jain aged 56 years (widow)

2.       Pankaj Jain aged 37 years

3.       Puneet Jain aged 34 years (sons), of late Sh. Jawahar Lal Jain son     of Sh. Tek Chand Jain, all residents of B-4/MCH 772, Chatta              Bazaar Hoshiarpur.

 

                                                                                                                                  …Respondents/Complainants

 

First Appeal against order dated 06.12.2011 passed by the District Consumer Disputes Redressal Forum, Hoshiarpur

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                :     Sh.Sandeep Suri, Advocate  

          For the respondents            :     Sh. Vishal Aggarwal, Advocate

 

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

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite parties no.1 and 2 in the complaint) have directed this appeal against respondents of this appeal (the complainants in the complaint), challenging order dated 06.12.2011 District Consumer Disputes Redressal Forum Hoshiarpur, accepting the complaint of the complainant and directing the OPs to pay insured declared value (IDV) of the damaged vehicle i.e Rs.4,00,110/-  to complainant and Rs.2 lac towards insurance of Sh. Jawahar Lal Jain (since deceased) for personal accident claim, besides Rs.7,000/- as towing charges, Rs.10,000/- as garage charges and Rs.5,000/- as litigation expenses. The instant appeal has been preferred by the opposite parties now appellants in this case against the same.

2.      The complainants have filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that Jawahar Lal Jain purchased an Indica Vista Car from Cargo Motors Pvt. Ltd Naloyan Chowk Hoshiarpur on 17.02.2010, which was bearing registration no.PB07-X-3786, Chassis no. MAT 6114529PK87961 and was duly insured with OPs for the period from 17.02.2010 to 16.02.2011 against premium of Rs.13,060/- . The car met with an accident on 02.09.2010 in front of Police Post Chadwal (Pathankot-Jammu National Highway) and FIR No.181/10 dated 02.09.2010 was registered at P.S Raj Bagh on 02.09.2010 against the offender. Jawahar Lal Jain expired in the above accident and complainants are the only legal represetantives of Jawahar Lal Jain (since deceased). The intimation of the accident was given to OPs by the complainant and thereafter accidental vehicle was brought to the workshop of Cargo Motors Pvt. Ltd Naloiyan Chowk  Hoshiarpur by towing it. The above-said vehicle was surveyed by the officials of Cargo Motors Pvt. Ltd and it prepared the estimate of its repair to the tune of Rs.4,60,882/-. The total insurance value of the vehicle is Rs.4,70,718/-, as per the insurance policy and the IDV (Insured Declared Value) is Rs.4,00,110/-. As per the insurance rules and regulations, the vehicle would be considered as CTL (Constructive Total Loss), where the aggregate cost of retrieval or repair of the vehicle exceeds 75% of the IDV of the car in question, which was Rs.4,00,110/- and the cost of repair was Rs.4,60,882/-, which was much more than the 75% of IDV of the vehicle. The complainant even replied the letter dated 27.12.2010 and reminder dated 04.01.2011 of the surveyor, vide reply dated 03.01.2011 and 17.01.2011 respectively. The OPs are adamant on the payment of Rs.7,000/- as towing charges and Rs.10,000/- as garage/parking charges, as per the insurance policy and OPs are further liable to pay Rs. 2 lac on account of death of Jawahar Lal Jain, as well to the complainants. OPs illegally closed the insurance claim of the complainant, vide letter dated 08.02.2011. The OPs have not granted the compensation of insurance claim of Rs.2 lac regarding death of Jawahar Lal Jain on the ground that no claim to that effect was lodged. OPs are adamant to get the vehicle repaired against the regulations and were not ready to pay the  compensation to the complainant. The OPs unrealistically rejected the estimate given by Cargo Motors Pvt. Ltd. The complainant claimed the total loss of the vehicle because the estimate to vehicle exceeded 75% of the insured declared value, but OPs are insistent upon the repair of the vehicle only and that too against rules. In view of the estimate given by Cargo Motors Pvt. Ltd, there was no necessity for the OPs to file certificate of the complainant being only legal heirs of Jawahar Lal Jain. The complainant has, thus, filed the complaint against OPs directing them to settle the insurance claim and pay the cost of the vehicle i.e. IDV and Rs.2 lac as compensation as insurance claim of death of Jawahar Lal Jain for personal accident claim, besides Rs.7,000/- as towing charges and Rs.10,000/- as garage/parking charges and Rs.2 lac as compensation for mental harassment.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. The fact of insurance of the vehicle with OPs was not disputed. It was also admitted that after accident, the vehicle was brought to the workshop of Cargo Motors Pvt. Ltd Hoshiarpur and it was duly surveyed by the surveyor. It was denied that cost of the vehicle came to Rs.4,60,882/- after survey of the vehicle. It was further pleaded by OPs that total loss of the vehicle was Rs.1,20,702.91 P and not Rs.4,60,882/- , as pleaded in the complaint. The estimate and bill as mentioned by the complainant, are highly exaggerated and hyperbolic and are not correct. The complainants were asked to submit the requisite documents i.e. consent for the repair, certificate of their being legal heirs of Jawahar Lal Jain by OPs and in the absence of these documents, the claim of the complainant cannot be settled and hence, vide letter dated 08.02.2011, the claim was closed being "Nil Liability" for non-submission of the above-said documents by complainants.  It was pleaded that complainant put undue pressure upon OPs to claim the amount of Rs.4,60,882/- , despite the fact that loss to the vehicle was much less than 75% of the insured declared value thereof. The OPs controverted the other averments of the complainant, as pleaded in the complaint and hence prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, the affidavit of complainant Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-21 and tax invoice Ex.C-X.  As against it, OPs tendered in evidence the affidavit of Amarpal Singh Johar c/o Amar Techno Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-12. On conclusion of evidence and arguments, the District Forum, Hoshiarpur, accepted the complaint of the complainant by directing OPs to pay the insured declared value of the damaged vehicle i.e. Rs.4,00,110/- and Rs.2 lac as insurance of Jawahar Lal Jain for death in accident, besides Rs.7,000/- as towing charges, Rs.10,000/- as garage/parking charges and Rs.5,000/- as costs of litigation. Dissatisfied with the order of the District Forum Hoshiarpur dated 06.12.2011, the OPs now appellant carried this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case.  

6.      The order passed by the District Forum Hoshiarpur dated 06.12.2011 has been seriously challenged in this appeal by the appellants. Firstly, we examine this point, as to whether the complainants are entitled to the insurance claim of Rs.2 lacs regarding death of Jawahar Lal Jain in motor vehicle accident or not? The counsel for OPs now appellants argued that the insurance policy does not cover Jawahar Lal Jain, as it covers only owner-cum-driver for Rs.2 lac. The insurance claim of Jawahar Lal Jain pertains to the terms and conditions of the Contract of Insurance only. We have examined the pleadings of the parties on the record and also considered the affidavit of complainant Pankaj Jain Ex.C-1 on the record and policy document Ex.C-2 on the record. We have to interpret this policy document Ex.C-2, as the insured declared value of the vehicle is Rs.4,70,718/-. The insurance policy of Jawahar Lal Jain was valid from 17.02.2010 to 16.02.2011. Admittedly, the accident took place in this case on 02.09.2010 during the currency of this insurance policy Ex.C-2. The submission of the complainants now respondents in this appeal is that the premium was also paid for covering owner-cum-driver up to Rs.2 lac. The complainants now respondents justified the order of the District Forum in awarding compensation of Rs.2 lac with regard to death of Jawahar Lal Jain in the accident under personal accident claim. The terms and conditions of the Contract of Insurance Ex.C-2 have to be interpreted sensu stricto by us.  We cannot add or subtract anything from the terms and conditions of the Contract of Insurance. Personal accident cover for owner-cum-driver was of Rs.2 lac and premium was paid extra for this purpose. We have to decide this point, whether the personal accident cover was for owner-cum-driver and it would cover Jawahar Lal Jain, who died in this accident, being owner-cum-driver of the vehicle?  Jawahar Lal Jain was not driving the vehicle at the time of accident in this case, as established on the record. Jawahar Lal Jain was the owner of the vehicle involved in the accident, for which he took the above policy. Vide Ex.OP-1, name of the driver is mentioned, as Amrik Singh in FIR, as per this document at the time of accident.  We come to this conclusion on the basis of above document FIR that Jawahar Lal Jain was not driving the vehicle at the time of accident.

7.      Next question is whether Jawahar Lal Jain would be entitled for owner-cum-driver insurance claim, which was covered up to the extent of Rs. 2 lac or not, when he himself was not driving the vehicle. The vehement submission of counsel for the complainant is that owner-cum-driver means either of them. Counsel for the appellants referred to law laid down by Hon'ble High Court of Punjab & Haryana in (Sushila and others versus  Sh. Pankaj Mahajan) reported in 2013(1), Punjab Law Reporter Page 715, wherein it has been held that personal accident cover is compulsory for owner-driver and optional through a package policy. Reference to owner-driver must be understood as owner, who is capable of driving and who is driving the vehicle at the relevant time. It shall not be understood as owner-driver (owner or driver). Our own High Court has, thus, settled this controversy in the above decided case by holding that it shall not be understood as owner/driver (owner or driver). Since Jawahar Lal Jain himself was not driving the vehicle at the time of the accident, therefore, he cannot be said to be covered for personal accident under cover of owner-cum-driver. Owner-cum-driver means when owner himself is driving the vehicle, as per the dictum of law laid down by our own High Court in the above-referred authority. The District Forum has, thus, misinterpreted this provision of the Contract of Insurance and wrongly directed the OPs now appellants to pay the compensation of Rs.2 lac towards accident of Jawahar Lal Jain under the cover of personal accident claim. The death of Jawahar Lal Jain is not covered under the personal accident carrying cover to the extent of Rs.2 lac, because he was owner and was not driving the vehicle himself at the time of accident. It was some other person, who was driving the vehicle at that time and not Jawahar Lal Jain, as proved by copy of FIR on the record. The order of the District Forum regarding directing the OPs to pay Rs. 2 lac towards insurance of Jawahar Lal Jain under personal accident calim, as owner-cum-driver is not sustainable because he was not himself the driver of the vehicle at the time of this accident.

8.      Now we consider next issue involved in this case, as to whether complainant is entitled to get the insured declared value of the accidental vehicle or not? The point raised by OPs now appellants is that loss to the vehicle was repairable one and hence complainants are entitled to be reimbursed on repair basis of the vehicle and not on the basis of the total loss of the vehicle. We have examined the affidavit of Pankaj Jain Ex.C-1 on the record. He has claimed the compensation on the basis of total loss of the vehicle. It is not disputed fact that insurance policy Ex.C-2 assured the vehicle for Rs.4,70,718/-. The complainant relied upon document Ex.C-5 regarding towing charges paid by the complainant of Rs.7,000/-.

9.      The sheet-anchor of reliance of the complainant is on the report of Cargo Motors Pvt. Ltd., the authorized dealer Ex.C-6 on the record, vide which the damage of the vehicle was found to the extent of Rs.3,94,183/-, besides denting of Rs.39,544/- and painting of Rs.27,155/-. The OPs now appellants relied upon the report of the surveyor Amar Pal Singh Johar, who assessed the loss at the less quantum in this case. We have to determine this point, whether the estimate of Cargo Motors Pvt. Ltd, the authorized dealer has to be accepted in this case or report of surveyor Ex.OP-2 has to be accepted, assessing the loss of Rs.1,20,702.91P payable as net? The District Forum has not relied upon report of the surveyor in this case.  The District Forum also observed that surveyor also assessed the loss from the claimed amount on repair, fitting and denting rates. We have carefully examined the evidence on the record in this case.

10.    The estimate of Cargo Motors is Ex.C-6 on the record. It is the authorized dealer of Tata Motors and TIN No.03341080834 is recorded in Ex.C-6 and Service Tax Code number AAACC2744 CST001 is also printed on it. Cargo Motors Pvt. Ltd is authorized dealer of Tata Motors and it has assessed the loss on repair basis of Rs.3,94,183/-, besides denting Rs.39,544/- and  painting Rs.27,155/-The estimate of total bill is Rs.4,60,882/-. It is evident from Ex.C-X. the tax invoice of Cargo Motors Pvt. Ltd, that it is the authorized service dealer of Tata Motors. The vehicle was purchased by the complainant from Tata Motors, and Cargo Motors Pvt. Ltd. is the authorized dealer of the same. The report of surveyor has also been examined by us on the record, as relied upon by the OPs. The statement of Balwinder Kumar, Works Manager of the Cargo Motors Pvt. Ltd. was recorded before District Forum on 26.09.2011. His statement has been recorded and he has proved the preparation of estimate bill dated 15.09.2010. Ex.C-6 is proved in statement of Balwinder Kumar Works Manager of the Cargo Motors Pvt. Ltd recorded on 26.09.2011 before District Forum Hoshiarpur. Reliance of the appellants on law laid down in (Khimjilal and sons versus.   The New India Assurance Company Limited) reported in Revision Petition No.780 of 2007, decided on 26.08.2011  by National Commission is distinguishable in the cited authority. There was no bill of the person, who prepared the estimate bill of the loss nor he was examined, as witness in the cited case. Balwinder Kumar, Works Manager of Cargo Motors Pvt. Ltd., has appeared and proved the estimate bill of loss of the vehicle in the case on hand. The cited authority would, thus, be not of any assistance to appellants in this case. The appellants then referred to law laid down in Champalal Verma   versus  Oriental Insurance Company Limited, reported in 3 (2008) CPJ Page 93 NC that the report of the surveyor be given due weightage. Generally, report of the surveyor carries weightage, but where there is contrary evidence on the record to refute it, then report of the surveyor can be ignored by the Consumer Forum. Even the insurance policy in this case was taken through Cargo Motors Pvt. Ltd of Tata Motors Fiat. The Cargo Motor is authorized dealer and there is no motive on the part of the authorized dealer to give the exaggerated claim in this case. The District Forum has, thus, rightly relied upon the report of Cargo Motors Pvt. Ltd, which assessed the loss of more than 75% of the insured declared value of the vehicle in the accident. Many items, as detailed in the estimate report of the authorized dealer Ex.C-6, have not been given due weightage and just ignored by the surveyor in his report. We are in agreement with the findings of the District Forum on this point that report of the authorized dealer proving the loss of more than 75% of IDV cannot be brushed aside, when Balwinder Kumar, Works Manager has appeared before the District Forum to prove the same. Counsel for the respondent in this appeal referred to law laid down in Rugha Ram 125, Vivekanand Colony Near Telephone Exchange Surepur Pali Rajasthan versus  New India Insurance Co. Ltd, Ist Madal Office, Abhay Chamber, Jalori Gate Jodhpur, reported in 2015(2) CPJ (N.C) Page 132 , wherein it has been held that State Commission gravely erred in relying on surveyor's report without analyzing evidence before it. When all the material evidence was already placed before it, it was highly incorrect and inappropriate on the part of the State Commission to have observed that in case the petitioner did not accept all the report of the surveyor, he could take legal action in civil court. The estimate is given by the authorized service station (Cargo Motors India Pvt. Ltd.) of Tata Motors and hence we cannot say that the estimate of loss to the vehicle, which was prepared by Cargo Motors Pvt. Ltd., the authorized service station, is liable to be ignored.

11.    In view of our above discussion, we have come to this conclusion that IDV of the vehicle in the insurance policy Mark C-2 is Rs.4,70,718/-.  The total loss of the vehicle has been assessed as Rs.4,60,882/- by the estimate of loss to the vehicle, which was prepared by Cargo Motors Pvt. Ltd., vide Ex.C-6 on the record. Since payment of repair is more than 75% of IDV, therefore, IDV of the vehicle has to be given to the complainant and simply not to be reimbursed on the basis of the cost of the repair of the vehicle. The District Forum rightly observed that vehicle was purchased on 17.02.2010 and 7^1/2 months before the date of accident. IDV depreciation, thus, could be taken to be 15%, as per schedule of the depreciation. Since, the amount of estimate on repair basis was found to be 4,60,882/- which exceeded to 75% of the IDV, hence the vehicle was to be considered, as case of 'total loss'. The legal heirs of Jawahar Lal Jain insured of the vehicle, are entitled to receive compensation of Rs.4,00,110/- after applying 15% of depreciation therefor.

12.    The order of the District Forum is, thus, affirmed with regard to award of compensation of Rs.4,00,110/- towards total loss of the vehicle, besides Rs.7,000/- as towing charges, Rs.10,000/- as garage/parking charges and Rs.5,000/- as costs of litigation. The order of District Forum Hoshiarpur dated 06.12.2011 is set aside with regard to awarding the compensation of Rs. 2 lac towards personal accident claim of Jawahar Lal Jain; as he was not found driving the vehicle himself at the time of the accident as owner. Appeal of the appellants is partly accepted and order of District Forum regarding awarding of insurance claim of Rs.2 lac towards personal accident claim of Jawahar Lal Jain to complainants is set aside. The appeal of the appellants is party dismissed by upholding the order of District Forum awarding insurance claim of Rs.4,00,110/- to complainant, besides Rs.7,000/- as towing charges, Rs.10,000/- as garage/parking charges and Rs.5,000/- as costs of litigation. Appeal preferred by the appellants stands disposed off in this way, as referred to above.

13.    The appellants have deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainants in equal shares by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount shall be paid by the appellants to the complainants within 45 days of the receipt of copy of the order.

14.    Arguments in this appeal were heard on 07.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

15.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                           (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

September 15,  2015.                                                              

(ravi)