BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.

                                                          Consumer Complaint no.133 of 2017                                                                

                                                          Date of Institution         :    08.6.2017

                                                          Date of Decision   : 17.1.2018.  

Mayank Golcha aged about 29 years son of Shri Rajender Golcha, resident of Golchha Street, Bhadra Bazar, Sirsa.

            ….Complainant.                     

                   Versus

1. The Divisional Manager, The New India Assurance Co. Ltd., Office at Near Bus Stand, Sirsa.

2. The New India Assurance Building, 87 M.G. Road, Fort Mumbai through its Authorized person.

                                                                             ..…Opposite parties.

            Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SHRI R.L. AHUJA………………………..PRESIDENT

               SHRI MOHINDER PAUL RATHEE .……MEMBER.

Present:       Sh. Dheeraj Jain,  Advocate for the complainant.

Sh. Kapil Sharma, Advocate for opposite parties.

ORDER

                   Case of complainant, in brief, is that complainant was/is the registered owner of a Chevrolet spark car bearing registration No. HR-24S/4383 which was got insured with the opposite parties against all risks and liabilities vide insurance policy No.35370031150100003044 for the period 19.6.2015 to 18.6.2016. On 8.9.2015, at about 6.30 p.m. Smt. Priyanka Golchha Bhabhi of complainant alongwith minor children was coming from the side of Dera Sacha Sauda towards village Begu side and the car was on the moderate speed and when Bhabhi of the complainant reached near Vita Milk plant, then a Neel Cow suddenly came on the road and when the Bhabhi of complainant tried to save the collision of the car with cow and applied sudden cut/jerk, then the car struck with the left side of the tree. In this incident, the car of the complainant suffered heavy damages and both the children as well as Bhabhi of the complainant also suffered injuries. It is further averred that on the place of incident, number of persons gathered and ambulance was called and all the injured were immediately taken to DMC Hospital, Sirsa and then all the injured were taken to Sanjivani Hospital, Sirsa for treatment. The information about this incident was conveyed by complainant to the Police station/ police post Kirti Nagar, Sirsa as well as to the office of op no.1 and provided all the relevant documents and papers in this regard. The Surveyor also submitted/ assessed the loss of Rs.3,65,372/- as the car was badly damaged and rendered as scrap and unworthy condition and as such the loss/ damage to the car of the complainant is non-repairable. However, the fact remains that the sum assured of the said policy is Rs.3,42,000/- and is not reasonable to spend such a huge amount on the said damaged car as such the complainant is entitled to claim sum assured of Rs.3,42,000/- alongwith other benefits if any payable thereto by the insurance company. It is further averred that complainant had already submitted all the relevant papers to the ops and all the factum of incident has also been verified and checked by the ops through their authorized agent, hence the ops are legally liable for the payment of the sum assured of Rs.3,42,000/- or the estimate loss amount of Rs.3,65,372/- which has been duly prepared and assessed by own surveyor of the ops. It is further submitted that the complainant has also been undergoing the expenses of Rs.250/- per day payable to the agency namely M/s Padam Motors, Hisar Road, Sirsa as parking charges, as the vehicle is lying there in the scrap condition and all the formalities have also been completed by the authorized/appointed Surveyor of the ops after paying visit there and this has been happened only due to delay on the part of the ops and the complainant has undergone pecuniary loss. It is further averred that the Surveyor of the company of his own and as per the instructions of the op/company shifted the damaged vehicle from Padam Motors to Inder Motor Garage, Sirsa and now the Vehicle is lying there. Since the day of incident, the complainant has taken more than 100 rounds in the office of the ops and on every round, the complainant has to suffer the pecuniary and non pecuniary loss. The ops have bluntly refused to disburse the genuine claim amount or the estimated repair value of the said car to the complainant. The complainant has become legally entitled to Rs.3,42,000/- or the estimated cost of Rs.3,65,372/- plus Rs.50/60,000/- as the parking charges payable since the date of incident to the agency and Rs.10,00,000/- as compensation for unnecessary harassment, mental tension and loss of the profession/ business etc. It is further averred that a complaint under Section 12 of the Consumer Protection Act against both the ops was filed on 3.5.2016 after giving legal notice to them. On 20.2.2017, the Forum directed the ops to settle the claim within forty five days. That the complainant has sent a letter to the op no.1 for the enforcement of the direction and on 9.3.2017 complainant received a letter of op no.1 wherein it was demanded that the vehicle be produced for the inspection and a reply was sent by the complainant that the vehicle is lying at Inder Motor Garage, Sirsa as per the direction of Sh. O.P. Madaan Surveyor of the ops, so it was the responsibility of the ops to bring the vehicle at whatever place they want it for the inspection after paying the parking charges of the garage. Then on 20.3.2017 another letter was sent by the op wherein it was stated that complainant should get the car repaired and then bring it before the ops for inspection but that request could not be fulfilled by the complainant because the complainant does not want to get the vehicle repaired because repair cost is more than the insured amount. That according to the last letter of the ops dated 4.4.2017, the ops have closed the file and repudiated the claim. Hence, this complaint.

2.                On notice, opposite parties appeared and filed written statement taking certain preliminary objections that complaint is neither maintainable nor sustainable either in the eyes of law or on facts and that the Forum has got no jurisdiction to entertain, try and decide the present complaint. It is further submitted that the insured-complainant did not submit consent form with his readiness and willingness for the settlement of the claim by the company i.e. by way of getting vehicle repaired. The intimation regarding the accidental loss of car No.HR-24S/4383 was received by the insurance company and accordingly Sh. O.P. Madaan, Surveyor and Loss Assessor was appointed who conducted the survey in the presence of the complainant/ insured and asked the complainant to start the repair proceedings as the car was repairable but insured has failed to do so. Sh. O.P. Madaan Surveyor and Loss Assessor vide his letter dated 15.11.2015, 18.12.2015 and 20.2.2016 advised/requested the insured/ complainant to get the car repaired and to produce the bills or repairs alongwith repaired car for re-inspection but insured did not comply with it and has not repaired the car in question. Finally on 20.3.2016, Sh. O.P. Madaan, Surveyor and Loss Assessor has submitted his final report to the company assessing the loss of the car worth Rs.1,66,038/-. It is further submitted that complainant is estopped by his own act and conduct to file the present complaint. It is relevant to mention here that earlier the complainant filed complaint in respect of the same car as insured with the answering ops. As the answering ops have not repudiated the claim of the complainant at that time and the case of complainant was pre-mature, hence the Forum vide its order dated 20.2.2017 directed the parties to settle the claim within 45 days. In compliance to the above decision, the insurance company took the matter and vide letters dated 7.3.2017 and 20.3.2017 requested the complainant to get the accidental car repaired and submit the bills of repair and make available the repaired car for re-inspection but the complainant has neither repaired the vehicle nor submitted the bills of repair and ultimately on 4.4.2017 answering ops have repudiated the claim of the complainant for non co-operation and non fulfillment of the requirement. It is further submitted that IDV of the vehicle is Rs.3,42,000/- and the repair cost is Rs.1,66,038/- which does not exceeds 75% of IDV of the vehicle. Hence this case is not of total loss of the car of the complainant and the ops have rightly repudiated the claim of the complainant. It is further submitted that the insured has violated the terms and conditions of the insurance policy, which rendered him disentitled to any claim whatsoever. The liability of ops is subject to terms and conditions as laid down under the policy. The preliminary objections regarding cause of action, non joinder and mis joinder of necessary parties and no deficiency in service are also raised.  On merits, the pleas taken in the preliminary objections are reiterated, the contents of the complaint are denied and prayer for dismissal of complaint is made.

3.                The parties then led their respective evidence by way of affidavits and documents.

4.                We have heard learned counsel for the parties and have perused the case file carefully.

5.                Learned counsel for the complainant has contended strongly that it is proved case of the complainant that complainant is the registered owner of Car bearing registration No.HR-24S-4383 which was insured with the opposite parties for the period 19.6.2015 to 18.6.2016 for the insured value of Rs.3,42,000/-. It is further proved fact that vehicle met with an accident when Bhabhi of the complainant namely Priyanka was driving the vehicle on 8.9.2015 and vehicle was fully damaged. The claim was lodged with the opposite parties and ops appointed the Surveyor who submitted his report. It is a fit case of total loss of the vehicle and the complainant is entitled for the insured value of the car alongwith parking charges which are to be charged by the owner of the parking garage.

6.                On the other hand, learned counsel for ops has also contended strongly that the vehicle was duly insured with the ops and the claim was lodged by the complainant qua the accidental damage of the vehicle but however it is proved fact on record that vehicle is not fit for total loss as the loss assessed by Surveyor is less than 75% of the insured value of the vehicle. The insurance company has written number of letters to the complainant calling upon to get his vehicle repaired but all the times the complainant insisted for the total loss which was not payable under the insurance rules and as per terms and conditions of the policy. The complainant did not submit consent form with his readiness and willingness for the settlement of the claim by getting the vehicle repaired. The ops have also placed on record aforesaid letters of Sh. O.P. Madaan, Surveyor and Loss Assessor dated 15.11.2015, 18.12.2015 and 20.2.2016 and also called upon the complainant to submit the bills of repair of the vehicle and to produce vehicle for inspection. The Surveyor has also assessed loss in his final report to the extent of Rs.1,66,038/- but complainant himself had been delaying the process of the settlement of the claim.   

7.                The perusal of the record reveals that complainant in order to prove his case has furnished his affidavit Ex.C1 in which he has reiterated all the averments made in his complaint qua the insurance of the vehicle and the accident of the vehicle and the loss/ damage of the vehicle. The complainant has also furnished affidavit of Smt. Priyanka Golcha as Ex.C2 who was driving vehicle at the time of accident. She has also deposed on the lines of the averments made by complainant in his complaint and deposition in his affidavit Ex.C1. The complainant has also placed on record copy of the order dated 20.2.2017 Ex.C3, copies of letters ops and replies of the complainant, copy of legal notice as Ex.C4 to Ex.C11, copy of policy schedule cum certificate of insurance Ex.C11, copy of registration certificate Ex.C12, copies of estimates Ex.C13 to Ex.15, copy of certificate of Inder Motor Garrage Ex.C16, copies of medical record Ex.C17 to Ex.C19 and copy of policy Ex.C20, copy of written statement on behalf of ops Ex.C21 and copy of driving licence of Smt. Priyanka as Ex.C22, On the other hand, opposite parties in order to prove their defence plea has furnished affidavit of Sh. K.S. Chaudhary, Senior Divisional Manager as Ex.R1 in which he has reiterated all the averments made in the written statement of ops and relied upon documents i.e. policy schedule Ex.R2, policy Ex.R3, copy of claim form Ex.R4, copies of letters Ex.R5 to Ex.R7, copy of motor final survey report Ex.R8, copy of estimate Ex.R9, reply to legal notice Ex.R10, copy of order dated 20.2.2017 Ex.R11, copies of letters Ex.R12 to Ex.R14, copy of registration certificate Ex.R15 and copy of driving licence Ex.R16.

8.                It is an undisputed fact between the parties that the complainant is the owner of the vehicle in question and further qua the accident of the vehicle and lodging of the claim by complainant with the ops. It is further undisputed fact between the parties that after lodging claim by the complainant, Sh. O.P. Madaan, Surveyor was appointed to inspect the vehicle and assess the loss of the vehicle. Though the complainant has submitted estimate to the tune of Rs.3,65,372/- despite the fact that insured value of vehicle was Rs.3,42,000/- but however Surveyor namely Engineer O.P. Madaan who inspected the vehicle and assessed the loss vide his final survey report Ex.R8 to the tune of Rs.1,66,038/- against estimated loss of Rs.3,93,205.57/-. It is further undisputed fact between the parties that earlier also complainant filed a complaint bearing No.107 of 2016 which was disposed off by this Forum on 20.2.2017 by which the ops were directed to settle the claim of the complainant within 45 days of the submission of the claim form alongwith required documents by complainant. The record further reveals that thereafter correspondence was going on between the parties to settle the claim but however the parties could not settle the claim as a result of which present complaint was filed by complainant against ops on same facts.

9.                The bone of contention between the parties is qua repairing of the vehicle. As per contention of the complainant, complainant wants to get loss on total loss basis whereas ops want to make payment on the basis of the report of the surveyor after getting the vehicle repaired and estimated by the surveyor/ authorized agent of the ops. In order to settle the controversy between the parties, it will be in the fitness of things if present complaint is allowed and a direction is given to the opposite parties to get the vehicle repaired at their own level and make same defect free without any cost and to hand over the same to the complainant.

10.              In view of the above discussion, we allow this complaint and direct the opposite parties to get the vehicle repaired and to make it defect free without any cost and to hand over the vehicle to the complainant within a period of 60 days from the date of receipt of copy of this order. We also direct the ops to pay a sum of Rs.2000/- as composite compensation and litigation expenses to the complainant.  A copy of this order be supplied to the parties free of costs.  File be consigned to record room after due compliance

Announced in open Forum.                                  President,

Dated:17.1.2018                      Member.     District Consumer Disputes

                                                                   Redressal Forum, Sirsa.