DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 192 of 30.5.2019

                                      Decided on:         23.1.2023

Yatin Miglani aged about 28 years S/o Arjan Dev, R/o H.No.2197, Dashmesh Colony, Near Pachranga Chownk, Rajpura Town, District Patiala.

                                                                   …………...Complainant

                                      Versus

1. Magma H.D.I.General Insurance Company Ltd., situated at Magma House,24 Park Street, Kolkata (India) (Pin Code 700-016).
2. Hira Motors, Maruti Showroom, Rajpura.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi,Member         

PRESENT:                             Sh.Ajay Singh Rana, counsel for complainant.

                                      Sh.Amit Gupta, counsel for OP No.1.

                                      Sh.R.K.Garg, counsel for OP No.2.           

 ORDER                                          

1. The instant complaint is filed by Yatin Miglani S/o Arjan Dev       (hereinafter referred to as the complainant) against Magma H.D.I.GIC Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act      (for short the Act).
2. The averments of the complainant are as follows:

That the complainant purchasedinsurance policy from OP No.1 for the security and safety of his car make Celerio VXI, bearing registration No.PB-11BN-1408, for the period 24.8.2017 to 23.8.2018. On 23.8.2018, said car met with an accident .Immediately complainant informed the police who registered DDR No.31 dated 13.8.2018.Thereafter, complainant approached OP No.2 for repair of the car, who instead of repairing the car told the complainant to approach the insurance company for total loss of the car, the car being unrepairable. Complainant approached OP No.1, who deputed surveyor for assessment of loss who also agreed that the car is not in the condition of repair. Complainant approached OP No.1 for total loss as per terms and conditions of the policy. The OP No.1 refused for total loss of the vehicle and asked for repair of the vehicle. The complainant get the estimate forrepair of the car to the tune of Rs.4,04,491/-,whereas the value of the vehicle is Rs.4,48,001/-.Complainant requested higher officers of insurance company to settle the claim as per insured estimated value but no heed was paid by them. Complainant sent legal notice on 8.5.2019 upon the accused but of no avail. There is thus deficiency in service on the part of the OPs. The complainant also suffered mental agony and harassment. Hence this complaint, with the prayer for acceptance of the same .

3. Upon notice, OPs appeared through their respective counsels and filed separate written statements.
4. In the written statement filed by OP No.1 various preliminary objections have been raised. It is admitted that the aforementioned car was insured by OP No.1, subject to the terms and conditions of the policy. It is also admitted that complainant intimated the claim against the policy in question with regard to the loss to the insured car on 12.8.2018 at about 11.30 AM when the tyre of the insured car got burst due to which the insured car struck against the truck and upon receiving the said intimation, the insurance company deputed M/s B&S insurance surveyors and loss assessors to assess the loss who found that net assessment on repair basis is less than 75% of the I.D.V. and accordingly the claim was to be settled on the repair basis. The surveyor also issued letter dated 7.9.2018 ,advised the complainant to get the car in question repaired. Surveyor also demanded documents i.e. Statement of loss on affidavit, spot photographs if available, towing details/bills, PP size photograph for KYC and cancelled cheque for NEFT but the complainant failed to get the vehicle repaired  and also failed to send required documents as he was adamant in getting the loss assessed on total loss basis. Thereafter, surveyor submitted his report dated 25.10.2018 vide which liability qua the claim was assessed tentatively to the tune of Rs.1,48,638/-.The claim has not been decided by the insurance company and is pending for want of repair bills and getting the vehicle repaired by the complainant.
5. On merits, the OP reiterated the facts taken in the preliminary objections which are not reiterated for the sake of brevity. After denying all other averments, the OP has prayed for the dismissal of the complaint.
6. In the written statement, filed by OP No.2, it has also raised certain preliminary objections. On merits, it is admitted to the extent that the complainant brought the accidental vehicle into the bodyshop/workshop of OP No.2 for repair. The mechanic prepared service estimate of cost of repair and appraised the same to the complainant but he said that the car in question is insured with Magma HDI General Insurance company. However, the matter was not settled between the complainant and OP No.1 and as such OP No.2 could not repair the vehicle without payment of cost of repair and without the further instructions of complainant. After denying all other averments, the OP No.2 prayed for the dismissal of the complaint.
7. In support of the complaint, ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant, Ex.C1 copy of insurance policy, Ex.C2 copy of RC, Ex.C3copy of DDR dated 13.8.2018,Ex.C4 copy of estimate,Ex.C5 copy of legal notice dated 18.5.2019,Exs.C6 &C7 postal receipts and closed the evidence.
8. In rebuttal, Ld. counsel for OP No.1 has tendered in evidence, Ex.OPA affidavit of Sh.Sunil Gupta, Ex.OPC affidavit of Munish Sen, surveyor, Ex.OP1 copy of claim form, Ex.OP2 copy of repair assessment,Ex.OP3 copy of survey report,Ex.OP4 & Ex.OP5 copies of letters and closed the evidence.
9. Ld. counsel for OP No.2 has tendered in evidence Ex.OPB affidavit of Jaswinder Singh Gill, Operation Head of OP No.2, Ex.OP6 copy of job card dated 14.8.2018, Ex.OP7 copy of service estimate dated 16.8.2018, Ex.OP8 copy of authority letter dated 31.10.2014 and closed the evidence.
10. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
11. There is no dispute with regard to the fact that the complainant had purchased an insurance policy,Ex.C1 for his car in question from OP No.1, which was valid for the period from 24.8.2017 to 23.8.2018.The car met with an accident on 12.8.2018 for which DDR No.31 dated 13.8.2018,Ex.C3 was lodged with P.S.Shambu.
12. The complainant has now relied upon an estimate dated 16.8.2018 given by M/s Hira Automobiles Ltd. for the repair of the vehicle for Rs.4,04,491,Ex.C4 and had requested for a claim of total loss of the vehicle which was valued at Rs.4,48,001/- due to the reason that the loss assessed is more than 75% of the value of the vehicle.
13. The ld. counsel for the OP No.1 has rebutted the claim of the complainant on the grounds that the car of the complainant was assessed by the surveyors of M/s B&S Insurance Surveyors and Loss Assessors, deputed by the insurance company and the loss was assessed to the tune of Rs.1,51,671/-as per the report submitted by the surveyor,Ex.OP2. The complainant was then asked to get the vehicle repaired and as per the loss assessed by the surveyors. However, the complainant failed to do so and had not submitted any bills of repair of the vehicle and insisted that the claim may be treated as a total loss and may be settled for Rs.4,48,001/- (full insured value of the car) in view of the estimate of Rs.4,04,491/-submitted by M/s Hira Auto Mobiles,Ex.C4.
14. Ld. counsel for the OPs has relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission,  in Revision Petition No.780 of 2007 titled as Khimjibhai and Sons Vs. New India Assurance Co. Ltd., wherein, it has been held that , “…..it is in accordance with the requirement of law that a surveyor is required to be appointed by the Insurance Co. and when such a surveyor who is licensed professional to assess such loss gives a report with reasons to support the same, such a report can be discredited only on the basis of specific grounds……..Mere production of bills or estimates cannot be the basis for discarding the report of the surveyor…..”
15. Moreover, the complainant had failed to rebut the report so prepared by the surveyors who were experts in these fields with any cogent and conclusive evidence. As such, we are of the opinion that mere production of the estimate cannot be taken as valid estimate of loss caused to the vehicle. Further more, the insurance company was ready to bear the repair charges on submission of the bills.
16. In view of our above discussion, the complaint is allowed partly and the insurance company (OP No.1) is directed to settle the bills of repair which will be submitted by the complainant on actual basis. Parties are left to bear their own costs. Compliance of the order be made within 30 days from the date of the receipt of repairs bills, submitted by the complainant.
17.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work, Covid protocol and for want of Quorum from long time.
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                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President