BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.117/2017.
Date of instt.:05.05.2017.
Date of Decision:29.01.2018.
Manoj Kumar s/o Shri Randhir Singh, r/o VPO Gulyana, Tehsil and Distt. Kaithal.
……….Complainant.
Versus
- Maruti Insurance Broking Pvt. Ltd., through its Manager, C/o Eakansh Motors Pvt. Ltd., Ambala Road, Kaithal.
- The New India Assurance Company Ltd., 1215, 12th Floor Naurang House, 21 Kasturba Gandhi Marg, New Delhi through its Branch Manager, 1st Floor, above Vijaya Bank, Ambala Road, Kaithal.
- Rajesh Goel, Surveyor & Loss Assessor, r/o H.No.820, SST Nagar, Rajpura Road, Patiala.
- Service Manager (Body Workshop), Hira Automobiles Pvt. Ltd., C-20 and C-45, Focal Point, Patiala.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Shri Umesh, Adv. for the complainant.
Shri S.K. Gupta, Adv. for Op No.1.
Shri Naresh Sharma, Adv. for OP No.2 & 3.
Shri Mukesh Sharma, Adv. for OP No.4.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he got insured his car through OP No.1 (direct broker of OP No.2) vide policy No.98000031160104180584 dt. 09.7.2016. It is further alleged that on 18.3.2017, the said car was met with an accident with a bike. It is further alleged that on 20.3.2017, he visited the workshop of OP No.4 and thereafter, OP No.2 approached to OP No.2, who appointed OP No.3 to asses the loss and he left his car with the OP No.4. It is further alleged that on 21.3.2017, he visited at OP No.4 and contacted with OP No.3, who assured that he is coming, but till 03:30 PM, OP No.3 did not come there. It is further alleged that on 22.3.2017, he received a call from OP No.4 that repair of his car has been stopped by OP No.3. It is further alleged that on 12.4.2017 after waiting the response of OPs No.1 and 2, he visited the OP No.1 to get repair his damaged car and got repaired the same and paid Rs.27,496/- to OP No.1. It is further alleged that despite repeated requests, the OPs No.1 to 3 did not bother to redress his complaint. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, OP No.2 did not appear and opted to proceed against ex parte vide order dt. 27.02.2017. The opposite party No.1 appeared before this forum and filed reply submitting therein that present complaint is not maintainable against OP No.1 as insurance policy is a direct contract of the complainant with the concerned insurance company; that the vehicle in question was got prepared by the complainant on his request to repair the same on cash, which was duly repaired and vehicle was duly delivered after the repair on 17.4.2017 vide satisfaction note of the complainant; that the complainant has himself lodged the claim with OP No.2, thus the complaint against the OP No.1 is not maintainable. On merits, all the contents of the complaint are denied and prayed for dismissal the same.
OPs No.2 & 3 appeared and filed their joint reply raising preliminary objections regarding maintainability; locus-standi; jurisdiction; that the complainant is estopped from filing the present complaint by his own act and conduct ad laches. It is further submitted that the complainant has suppressed the true & material facts from this Court and the true and material facts are that alleged accident are imaginary and concocted one; that it is strange how the complainant reached to Op No.4 and where remained for two days after the alleged accident; that no intimation of alleged accident has ever been given to the OP No.2 within reasonable time; that OP No.3 had visited to Op No.4 on 20.3.2017 and accordingly had inspected the damaged to vehicle; that allegations regarding non attending the vehicle in time by the Op No.3 are totally false and baseless; that after inspection of the vehicle by Op No.3, it was revealed that there was loss to front bumper, bonnet and RH side rear view mirror; that the loss to the bumper was fresh, whereas damages to the bonnet and RVM were not fresh and also did not correlate with the cause of accident told by the complainant to Op No.3; that the estimated loss to the tune of Rs.7408/- was assessed by the OP No.3; that the complainant had not got repaired his vehicle, hence he cannot be allowed to take benefit of his own wrongful and fraudulent act and conduct. On merits, denied the rest of the allegations and prayed for dismissal the same.
OP No.4 appeared and filed his reply raising preliminary objections regarding maintainability; locus-standi and jurisdiction. It is further submitted that Op No.4 has no concern regarding the approval and passing of insurance claim as it is only the prerogative of the insurance company or its surveyor to make and issued the insurance policy after taking the premium; that all the terms and conditions of the insurance policy were settled by insurance company and the claim of insurance also indemnified by the insurance company. On merits, denied the rest of the contents of the complaint and prayed for dismissal the same.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1 to Ex.C9 and closed the evidence. On the other hand, OP No.1 tendered in evidence affidavit Ex.RW1/A; documents Mark R22 to Mark R27 and closed evidence on 15.12.2017. OPs No.2 & 3 tendered in evidence affidavit Ex.RW2/A; documents Ex.RA to RC, Mark R1 to R21 and closed evidence on 15.12.2017. OP No.4 tendered in evidence affidavit Ex.RW4/A; document Ex.RA and closed evidence on 23.11.2017.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. Ld. counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant got insured his car through OP No.1. It is further argued that on 18.3.2017, the said car was met with an accident with a bike and on 20.3.2017, the complainant visited the workshop of OP No.4. It is further argued that OP No.3 was appointed to asses the loss. It is further argued that he contacted the OP No.3 various times, but the OP No.3 did not come to him. It is further argued that on 22.3.2017, he received a call from OP No.4 that repair of his car has been stopped by OP No.3. It is further argued that on 12.4.2017 after waiting the response of OPs No.1 and 2, he visited the OP No.1 to get repair his damaged car and got repaired the same and paid Rs.27,496/- to OP No.1. It is further argued that despite repeated requests, the OPs No.1 to 3 did not bother to redress his complaint. The complainant produced an authority cited in 2010 (4) CPR, Page No.244 titled as National Insurance Company Ltd. Vs. Mahilpur Oil Store.
6. Ld. counsel for the OP No.1 has argued that the present complaint is not maintainable against OP No.1 as insurance policy is a direct contract of the complainant with the concerned insurance company. It is further argued that the complainant has himself lodged the claim with OP No.2, thus the complaint against the OP No.1 is not maintainable.
Ld. counsel for OPs no.2 & 3 has argued that no intimation of alleged accident has ever been given to the OP No.2 within reasonable time. It is further argued that allegations regarding non attending the vehicle in time by the Op No.3 are totally false and baseless. It is further argued that after inspection of the vehicle by Op No.3, it was revealed that there was loss to front bumper, bonnet and RH side rear view mirror and the loss to the bumper was fresh, whereas damages to the bonnet and RVM were not fresh and also did not correlate with the cause of accident told by the complainant to Op No.3. It is further argued that the estimated loss to the tune of Rs.7408/- was assessed by the OP No.3, but complainant had not got repaired his vehicle, hence he cannot be allowed to take benefit of his own wrongful and fraudulent act and conduct.
Ld. counsel for OP No.4 has argued that Op No.4 has no concern regarding the approval and passing of insurance claim as it is only the prerogative of the insurance company or its surveyor to make and issued the insurance policy after taking the premium. It is further argued that all the terms and conditions of the insurance policy were settled by insurance company and the claim of insurance also indemnified by the insurance company and prayed for dismissal the same.
7. It is alleged by the complainant that he was the owner of the Swift car bearing No.HR-08S-2536 which insured with OP No.2 vide policy No.98000031160104180584 dt. 09.7.2016. It is further alleged that the said car met with an accident with a bike on 18.3.2017. It is further alleged that on 20.3.2017, the complainant visited the workshop of the OP No.4 regarding the repair, who approached OP No.2 and OP No.2 appointed OP No.3 as surveyor for assessing the loss of the car. It is further alleged that on 21.3.2017, the complainant again visited to OP No.4 but the surveyor who surveyed the car has not met the complainant. The complainant referred document Ex.C3 and Email dt. 21.3.2017 sent to the surveyor and stated that the surveyor has not come to the agency to discuss the matter with the complainant. It is further alleged that OP No.4 did not start the work of repair on the ground that OP No.3 has got stopped the repair work and due to this reason, the complainant took his damaged car to Eakansh Motors Pvt. Ltd, Ambala Road, Kaithal (the Maruti authorized dealer at Kaithal) and got repaired his damaged car. The complainant has spent Rs.27496/- on the repair of his car. It is further alleged that OPs No.1 and 2 have not bothered to redress his complaint and has not appointed another surveyor for the estimation of the loss. The complainant also alleged that the surveyor was annoyed with the complainant on the ground that the complainant has made a complaint to the OP No.1.
8. On the other hand, it is contended by the OP No.1 that he has nothing to do with the matter in question as the complainant has the contract with the concerned insurance company. It is further contended that on the request of the complainant, the car of the complainant was repaired and the complainant had given a satisfaction note on 17.4.2017.
9. The OPs No.2 & 3 contended that the complainant reached to OP No.4 after two days of the accident and no intimation was given to OP No.2 within said two days. It is further contended that on receipt of information about the said accident, OP No.2 appointed OP No.3 as surveyor. The surveyor inspected the vehicle and revealed that there was loss of (1) bumper front, (2) Grille, Front Bumper Lower, (3) Pannel front Hood and (4) Rear view mirror outer RH side. The surveyor gave remarks that the damage mentioned at Sr. No.1 and 2 of the car were fresh and the damaged mentioned at Sr. No.3 & 4 were not fresh in nature and also not correlate with the cause of accident. It is further contended that the surveyor has refused to allow for the repair of old damages and due to this reason the complainant took away the vehicle from the workshop without getting it repaired. It is further contended that the surveyor has assessed the loss to the tune of Rs.7408/-. It is further contended that the complainant has not informed the OP No.2 about the repair of the vehicle in question from Eakansh Motors, Kaithal inspite of the registered letters dt. 24.3.2017 (Mark R-15) & dt. 07.4.2017 (Mark R-17) written by the surveyor. It is further contended that the complainant has not given any intimation to the OP No.2 about the repairing of the vehicle at Kaithal. It is further contended that the complainant has only submitted the bills after getting the vehicle repaired.
10. The OP No.4 contended that he has no concern regarding the approval and passing of insurance claim, as it is only the prerogative of the insurance company or its surveyor.
11. From the pleadings and documents placed on the file, it is clear that there is no dispute that the complainant was the owner of car bearing No.HR-08S-2536 which was insured with OP No.2 vide policy No.98000031160104180584 dt. 09.7.2016 and that vehicle was met with an accident on 18.3.2017. It is also not disputed that OP No.3 was appointed as surveyor.
12. The OPs No.2 and 3 has produced the report of the surveyor as Mark R2 and according to which, the net loss was assessed to the tune of Rs.5,246/-, but the OPs No.2 & 3 have admitted in their reply that loss assessed was of Rs.7,408/-. The surveyor has written letter dt. 24.3.2017 Mark R15 to the complainant, which runs as under:-
“I inspected your above mentioned accidental vehicle on 20.3.2017 at the premises of repairer M/s Hira Automobiles Ltd., Patiala. There is loss to Front Bumper, Bonnet and RH side Rear View Mirror of the vehicle. The loss to Front Bumper is fresh whereas damages to the Bonnet and RVM are not fresh and do not correlates with the causes of accident mentioned by you in the claim form. The loss was discussed with you immediately and today also, on telephone. After detailed discussion, I told you that as per terms and conditions of the insurance policy, claim of fresh damages only is payable and you were requested to get the fresh damages of the vehicle repair. But in the afternoon on getting a telephone call from the repairer, I came to know that you took away the vehicle without getting the same repair. You are requested to let me know that when you will put the vehicle on repair so that I may inspect the same during repairs.”
Thereafter, the surveyor again wrote a letter dt. 07.4.2017 Mark R17, vide which, the complainant was again asked that when he would put the vehicle on repair, so that the surveyor may inspect the same during repair. The complainant has not replied these letters. Further, it is pertinent to mention here that the complainant has admitted the receipts of these letters, as the complainant has also placed copies of these letters on the file as Ex.C1 and Ex.C2. The complainant has not placed any evidence vide which it can be said that the complainant has replied these letters. It is pertinent to mention here that the complainant has not placed any such evidence that after bringing the damaged vehicle at Eakansh Motors, he gave information to OP No.2 about the same. As no intimation was given to the OP No.2 or OP No.3 by the complainant about the repair of the vehicle in question, so the same could not be inspected by OP No.3 at the time of repair. The vehicle could not be inspected by the surveyor due to fault of the complainant. The complainant cannot take benefit of his own fault and in our view, he is not entitled for the entire money spent on the repair of vehicle in question. As stated above, OPs No.2 & 3 have admitted in their reply that the loss to the damaged vehicle was assessed by the surveyor at Rs.7408/-, therefore, the complainant is entitled for the said amount. Even the said amount of Rs.7408/- has not been paid to the complainant by the OP No.2, therefore, OP No.2 is deficient in rendering services to the complainant.
13. Thus, in view of above discussion, we allow the complaint partly and direct the OP No.2 to pay Rs.7408/- ‘as assessed by the surveyor, to the complainant and further to pay Rs.5,500/- as lump sum compensation on account of harassment, mental agony and costs of litigation charges. Let the order be complied with within 30 days, failing which, the complainant shall be entitled interest @ 8% p.a. from the date of commencement of this order till its payment. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.29.01.2018.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
Present : Shri Umesh, Adv. for the complainant.
Shri S.K. Gupta, Adv. for Op No.1.
Shri Naresh Sharma, Adv. for OP No.2 & 3.
Shri Mukesh Sharma, Adv. for OP No.4.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even dated, the present complaint is partly allowed qua OP No.2. File be consigned to record-room after due compliance.
Dated:29.1.2018. Member Member. President.
