DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.425/2016
Sh. Sushant Kumar
C-41 Lower Ground Floor,
Jangpura Extension,
New Delhi-110014 ……Complainant
Versus
1. L & T Insurance
6th Floor, DCM Building,
Barakhamba Road,
Connaught Place
New Delhi-110001
2. HDFC ERGO
General Insurance Company Ltd.
Ground Floor, Eros Tower,
Opp. Nehru Place Metro Station,
Nehru Place, New Delhi-110019
3. Marketing Times
Marketing Times Automobiles Pvt. Ltd.
18, Okhla Industrial Estate (Near Modi Mill),
New Delhi-110020 ……Opposite Parties
Date of Institution: 23.12.16 Date of Order : 28.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The case of the complainant is that he is the owner of a vehicle Maruti SX4 ZDI bearing No.HR-29-Z-3463 which is insured with the OP No.1 vide policy bearing No.515101000601430000 having IDV of Rs.5,72,000/-. It is stated that OP No.1 was acquired by the OP No.2 HDFC Ergo. It is stated that on 22.10.16 the car in question met with an accident while it was driven by the driver; that the car was taken to the OP No.3 Maruti Times (Maruti Authorized Workshop) at Okhla. On enquiry made by the complainant the OP No.3 “intimated that an estimate of costs to be incurred amounting to Rs.10,93,200/-, was given to the surveyor of the Opposite Parties and that the workshop was awaiting instruction from the Opposite Parties.” On making further enquiries from the workshop it was told that the information was yet to be received from the surveyor. The complainant contacted the surveyor who was unable to provide any reasonable justification as to the reason for the delay, in particular where the estimate was Rs.10,93,200/- and the insured value was Rs.5,72,000/-. According to the complainant, in such cases, it is the standard practice that the claim should be treated as “Total Loss” and the matter could be swiftly resolved; that, however, the surveyor insisted that the cost of repairing would not exceed Rs.5 lacs; that the complainant insisted that even if the estimate calculated by the surveyor was found to be true, without any prejudice to the complainant’s claim, the said claim should be treated as “Constructive Total Loss” (CTL) since the policy of the OP No.2 contemplated that in the event the cost of repairing was 75% of the Insured Declared Value (IDV) then the car should be treated as CTL; that, however, the surveyor refuted the complainant’s assertion that in the present case where the IDV was of Rs.5,72,000/-, if the claim was to be treated under CTL, the OP No.2 should be liable to the tune of Rs.4,29,000/- (75% of 5,72,000); that since the car was five years old the depreciation would be calculated at 50%; that in the present case where the repair cost was estimated (as per the surveyor) at Rs.5 lacs the complainant would have to pay Rs.2,50,000 and the liability of the OPs would amount to only Rs.2,50,000/- which was considerably lower than Rs.4,29,000/-and, therefore, the car cannot be treated under CTL. It is further stated that for the first time the workshop sent an email on 26.11.16 seeking consent to repair the car; that on receipt of the said communication dated 26.11.16 the workshop addressed the complainant seeking approval from the complainant to start the repair work as the surveyor had asked the workshop to treat the claim as repair; that in response to the said request the complainant got an email dated 28.11.16 sent to the OPs, surveyor, workshop and others, wherein the complainant placed on record the preceding communications. It is further stated that the complainant intimated the legal precedent set by the various foras informing the OPs about the settled position of law but, however, the surveyor acting on incorrect assumptions and wrongful interpretation of the terms of the policy, instructed the workshop, vide email dated 24.11.16, to commence the repair work for the said vehicle; that in the light of the said the complainant was constrained to give his consent at the risk, cost and consequences of the OPs and without prejudice to his rights. According to the complainant the OPs should have treated the present claim as CTL and declared the car as total loss as per their policy and pay a sum of Rs.5,72,000/- to the complainant. The complainant has put reliance on a decision rendered by the National Consumer Disputes Redressal Commission, New Delhi in United India Insurance Co. Ltd. & Ors. Vs. Manjit Kaur and Ors. Revision Petition No.2382/15 and claimed that there is deficiency in service on the part of the OPs. It is further stated that the complainant had been similarly harassed in the past by the OPs and the complainant had filed a complaint being C.C. No.118/14 against the OPs which is pending adjudication. Hence, pleading deficiency in service and unfair trade practice on the part of OPs the complainant has filed the present complaint for directing the OPs to release the sum of Rs.5,72,000/- which is the total sum insured, to pay Rs.20,000/- per month as commuting charges, Rs.6 lacs as compensation for further pecuniary damages, distress, mental agony, cost and loss suffered due to the negligence and recklessness of the OPs and to pay Rs.55000/- as cost of litigation.
OP No.1 & 2 have filed a written statement. In paras 5 to 12 of the preliminary objection and submissions it is stated as under:-
“5. That the complainant is the owner of a vehicle Maruti Suzuki SX4 ZDI, manufactured in the year 2011 having the following registration no.: HR-29Z-3463.
6. That the complainant was interested in “My asset private car package policy” of the opposite party and wanted to avail the benefits of the same, thus on the basis of the repeated requests sent by the complainant, the opposite party had issued the My Asset- Private Car Package – Comprehensive policy with the IDV of Rs.5,72,000/- (Rupees Five Lakhs Seventy Two Thousand Only) in favour of the complainant vide policy no.515101000601430000 which was valid from 20/04/2016 to 19/04/2017. The copy of the insurance policy is annexed as ANNEXURE-OP2.
7. That it is most respectfully submitted that during the continuance of the insurance policy the insured vehicle met with an accident on 22/10/2016.
8. That it is most respectfully submitted that when the vehicle of the complainant met with the accident, he had taken the vehicle to OP3 i.e. MARKETING TIMES for repair work.
9. That it is most respectfully submitted that after receiving the intimation the OP without any delay processed the claim of the complainant by duly appointing the IRDAI authorized surveyor in order to assess the loss and damage.
10. That it is submitted that the concerned vehicle is under repair and the surveyor appointed is competent enough to give best judgment for the assessment of the case. The surveyor is IRDAI authorized, to assess loss and damage and in no way to attach to the gains of the OP.
11. That it is submitted that the vehicle is still under repair and had the situation been such that the claim should be treated as a total loss case, the surveyor would have informed the claimant and workshop. That without the report of the surveyor the complainant himself cannot jump into any conclusion based on his surmises. It is a settled position that, as per-
“Section I: Loss of or damage to the vehicle insured of the terms and conditions of the insurance policy:-
“ 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.” The copy of the terms and conditions are annexed as Annexure- OP3.
12. That it is humbly submitted that the vehicle is under repair and no cause of action has arisen, as the OP is processing the claim as per the guidelines.”
Reliance has been placed on a judgment of the Hon’ble Supreme Court reported as United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, Civil Appeal No.6277/2004 (neither the date of judgment nor the copy of judgment has been filed for our perusal). Other averments made in the complaint have been denied. It is denied that the OP is guilty of any sort of deficiency in service. It is prayed that the complaint be dismissed.
In its reply OP No.3, in para 4 of the preliminary objections has stated as hereunder:-
“4. That there exists no privity of contract between the complainant and the answering respondent as the answering respondent has neither issued the insurance policy nor received any consideration amount for issuance of the insurance policy. Admittedly, the vehicle in question was given to the answering respondent for accidental repair subject to approval from the insurance and consent from the complainant. It is pertinent to mention here that after consent and approval from the insurance company the repair work of the vehicle in question was started and the same has been completed. The opposite party No.3 informed the complainant about completion of the accidental repair work vide Invoice No.BR16025103 dated 28.02.2017 but the complainant for the reason best known to him did not come at the workshop of the opposite party No.3 for getting delivery of his vehicle.”
(emphasis ours)
OP No.3 has denied any deficiency in service on its part.
The complainant has filed written submission/ rejoinder.
Complainant has filed his own affidavit in affidavit in evidence and has relied on documents Ex. CW-1/ A to Ex. CW-1/D.
Affidavits of Sh. Pankaj Kr., Manager- Claims (Legal) and Sh. Mukesh Kr. Aggarwal, Surveyor & Loss Assessor have been filed in evidence on behalf of OP No.1 & 2.
In his affidavit Sh. Pankaj Kr., Manager- Claims (Legal) has relied on the documents Ex. RW-1/1 to Ex. RW-1/4 and the Surveyor has filed the copy of his survey report as Ex. DW-2/1.
Written arguments have been filed on behalf of the parties.
On 02.04.18 an application was filed on behalf of the OP No.1 & 2 and it was brought to the notice of this Forum that the complainant has filed C.C. No. 118/14 titled as Sushant Kumar V/s HDFC Ergo General Ins. Co. Ltd. which is pending before the CDRF-X wherein the complainant’s claim is also for total loss of the vehicle in question and that case is fixed for final arguments and in the present case as well the complainant has sought the same reliefs against the OP No.1 & 2. By moving this application OP No.1 & 2 wanted to place this fact and the documents on the record. Copy of the complaint and also the copy of the written statement filed in that case have been allowed to be filed on the record and accordingly taken on the record.
We have heard the oral arguments advanced at the bar on behalf of the parties and have also carefully gone through the file very carefully.
Firstly, we shall deal with and decide the question whether the filling and pendency of the complaint C.C. No.118/2014 before the CDRF-X, New Delhi titled as Sushant Kumar V/s HDFC Ergo General Ins. Co. Ltd. has any bearing on the facts of the present case.
From a perusal of the copy of complaint filed in that case it transpires that in that case the vehicle in question insured with the OP had met with an accident on 28.09.2013. The surveyor was appointed to give his report, repairs in the vehicle in question were carried out by the OP No.3 herein i.e. Marketing Times (Maruti Authorized workshop, Okhla). The IDV of the vehicle in question during that period was Rs.6,70,000/-. The total cost of repair was shown as Rs.5,62,846/-. The complainant claimed Constructive Total Loss (CTL). However, it transpires that the complainant ultimately made the payment of Rs.5,62,846/- towards the repair cost to the workshop and got the vehicle released from there. However, the prayer of the complainant in that case was to issue direction to the OP to release the IDV amount of Rs.6,70,000/- with other reliefs.
The stand taken by the OP was that as per the surveyor report the total amount payable by the Insurance Company was Rs.3,26,411.97p. If 75% of the IDV was calculated it came to Rs.502500/- and, hence, the liability of the Insurance Company as assessed by the surveyor was muchless than 75% of the IDV of the vehicle. We are not supposed to go into the merits of that case. However, the important fact is that in that case the total cost of repair had been borne by the complainant himself and in the present case, the IDV of the car in question is assessed to be Rs.5,72,000/- and the date of accident of the vehicle is 22.10.2016. Thus, the present case has been filed on a different cause of action and, hence, the pendency of that complaint No.118/14 has no bearing on the facts of the present case so far as the other reliefs except claim of CTL are concerned. Hence, we proceed to decide the present case on its own merits.
Ex.CW-1/B which is not legible is the copy of the estimate bearing No.11453 dated 23.10.16 given by the OP No.3. The same is for Rs.10,93,200/-. The legible copy of the said estimate has also been filed on the record and we mark it as Mark AA for the purposes of proper identification. Therefore, the said document fortifies the case of the complainant that in the beginning the OP No.3 had given the estimate of the cost of repairs as Rs.10,93,200/-.
In his report the copy of which is Ex. DW-2/1, the surveyor has given the total cost of repair including taxes as Rs.551160/-, deprecation amount as 244,157.18p and depreciated cost as Rs.307002.82p.
The case of the OP No.1 & 2 as made in the affidavit of their witness in this regard is reproduced as hereunder:
“8. I stat that, the surveyor has assessed Rs.3,18,356/- as Insurance company liability. It is pertinent to mention here that the loss assessed by the surveyor is less than the 75% of the IDV (Rs. 5,72,000/-). The said amount i.e. Rs.3,18,356/- has been transferred to the opposite party no.3 i.e. M/s Marketing Times Automobile Pvt. Ltd. on 16.03.2017 vide cheque No./UTR No.4441U17077843400 through NEFT mode of transaction under the cashless arrangement towards repair of the vehicle. The payment has been done under due intimation to OP3 to release the vehicle under cashless mode. The said instruction to release the vehicle on cashless basis & DO payment of Rs.318356 of vehicle was never objected by OP3 as well as by the complainant. Hence it is stated that the opposite party no.1 and 2 has discharged its liability in pursuance of survey report. The copy of the survey report dated 10.03.2017 is exhibit herewith as Exhibit RW-1/3. The copy of confirmation letter is exhibited herewith as Exhibited RW-1/4.”
As submitted by the OP No.1 & 2 themselves in the written statement and is also clear from the copy of the insurance policy in question it contains section I reproduced hereinabove (see para 11 of the preliminary objections of the reply of OP No.1 & 2). Therefore, in case 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 insured it shall be treated as CTL and the insured shall be entitled to claim the full amount of the IDV of the vehicle.
In Manjeet Kaur’s case (supra) decided on 04.12.15 the policy in question contained a similar clause. Dealing with the said clause it was observed and held as follows:-
“7 …..In my opinion, the above referred clause envisages the insured vehicle is to be treated as a CTL if the total cost of its repair or retrieval thereupon of the contribution of the insurance company exceeds 75% of the IDV of the vehicle. Had the intention been to treat the insured vehicle as CTL only in a case where the cost of repair to the insurance company been more than 75% of the IDV of the vehicle, the above referred clause would have been worded altogether differently. The clause as it appears in the insurance policy clearly means that if the total cost of repair or retrieval of the vehicle irrespective of who bears the said cost, exceed 75% of the IDV of the vehicle, the insurance company has no option but to treat as a Constructive Total Loss (CTL)...”
The facts of the present case are similar to the facts of the said case. Therefore, the law laid down in Manjit Kaur is squarely applicable to the facts of the present case. The submission/contention raised on behalf of the OP No.1 & 2 that in the present case as per the report of surveyor the loss assessed by him is less than 75% of the IDV Rs.5,72,000/- is not correct. The method of calculation of the loss on behalf of the OP No.1 & 2 is not correct nor according to law. In his report the surveyor has categorically mentioned that the total cost of repairs including taxes is Rs.551160/-. In our considered opinion, this is the amount which must be taken into consideration while assessing the loss to the vehicle in question caused in the accident. If this is so, the loss caused to the vehicle in question in the accident which took place on 22.10.16 was more than 75% of the IDV which is Rs.5,72,000/-. Therefore, we hold that the total loss caused to the vehicle in question in this accident was Rs.551160/-. Therefore, the complainant becomes entitled to say and rightly contend that it is a case of CTL. Therefore, we hold that the calculation made by the OP No.1 & 2 with regard to loss caused to the vehicle in question in the accident which took place on 22.10.16 is illegal.
The OP No.1 & 2 have paid Rs.3,18,356/- to the OP No.3 M/s Marketing Times Automobile Ltd. on 16.03.17 as stated in para 8 of the affidavit of witness of OP No.1 & 2. According to these OPs the remaining amount has to be paid by the complainant.
As discussed hereinabove, we have held that this is case of Constructive Total Loss (CTL). Therefore the complainant is entitled to claim and recover the IDV of Rs.5,72,000/-. Therefore, we hold that the OP No.1 & 2 are liable to pay Rs.5,72,000/- to the complainant towards the CTL of the vehicle in question.
In view of the above discussion we allow the complaint and direct the OP No.1 & 2 to pay Rs.5,72,000/- to the complainant towards cost of the vehicle plus Rs.50,000/- in lumpsump towards compensation for mental agony, damages and cost of litigation etc.
However, we make it very clear that before receiving the said amount of Rs.5,72,000/- plus Rs.50,000/- from the OP No.1 & 2 the complainant shall ensure that the vehicle in question is transferred by him in the name of OP No.2 in the records of the concerned Transport Authority and the complainant shall provide all assistance and cooperation to OP No.1 & 2 in getting the same transferred from his name to the name of OP No.2.
On receipt of copy of this order the complainant shall send a letter to the OP No.2 thereby intimating the OP No.2 to fulfill the requirement for transferring the vehicle from his name to the name of OP No.2 on which OP No.2 shall also take necessary steps for transferring the ownership of the vehicle in question in its name. OP No.1 & 2 shall pay the above stated amount to the complainant on the date of completion of transfer process from the name of complainant in the name of OP No.2.
A copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. File be consigned to record room.
Announced on 28.04.18.
