Haryana

Ambala

CC/317/2019

Inderjeet Singh - Complainant(s)

Versus

Metro Motors Pvt Ltd - Opp.Party(s)

Bhupinder Singh Garg

16 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	317 of 2019
Date of Institution	:	03.10.2019
Date of decision	:	16.01.2023

Inderjeet Singh son of Sh. Mastan Singh, resident of H. No.2183/4, Raj Vihar, Baldev Nagar, Ambala City.

          ……. Complainant.

                                                Versus

1. Metro Motors Private Limited Village Mohra, Tehsil Ambala Cantt., District Ambala through its Manager/Authorized Signatory.
2. Magma HDI General Insurance Company Limited, 667/18, Hazara Singh Building, Sadar Bazar, Near Ambala Club, Vijay Rattan Chowk, Ambala Cantt..

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member.

           Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri B.S. Garg, Advocate, counsel for the complainant.

                             Shri S.R. Bansal, Advocate, counsel for the OP No.1.

                             Shri Dev Batra, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) and prayed as under:-

 (i) To direct the OP No.1 to handover the vehicle bearing registration No. HR37-E-0790 in road worthy conditions.

(ii) To direct the OPs to pay a sum of Rs.2,00,000/- i.e. for loss of his business, unable to pay the installments of his loan and also for his mental pain and agony.

(iii) To award cost of the proceedings in favor of complainant and against the opposite parties amounting to Rs.5500/-. 

2.             Brief facts of the case are that the complainant purchased one vehicle TATA ACE from OP No.1 on 25.01.2019, on making payment of Rs.4,50,000/-. The said Vehicle was got registered before the Registering Authority, Ambala, under Registration No. HR37-E-0790. The said vehicle was got financed from Indus Bank, for which the complainant is paying monthly installment of Rs.10,000/-. The said vehicle was got insured from OP No.2 (through opposite party No.1) on the same day, which was valid for the period from 25.01.2019 to 24.01.2020, on making payment of premium of Rs.22,018/-. On 09.05.2019, the complainant was coming from Panipat to Ambala Cantt. after loading disposal glasses and was driving the said vehicle with full care and cautions. However, after crossing Hotel Golden Sarse Village Massana, all of sudden, a calf came on the road and in order to save the said calf, the vehicle lost its control and struck in one standing car and turned turtle. The vehicle in question was badly damaged in the said accident. However, the complainant and his brother who was also sitting in the said vehicle escaped narrowly unhurt. The matter was then reported to the OPs regarding the accident on the same day. Surveyor was appointed by the OPs, who visited the spot and took photographs of the damaged vehicle. From the physical appearance of the vehicle it showed that the vehicle was beyond repairs. A DDR to this effect was also lodged in PS Thanesar Sadar, District Kurukshetra. The vehicle was taken to the OP No.1 for repairs. It was told by OP No.1 to the complainant that it will get checked the vehicle, to come to a conclusion, as to whether, it is repairable or beyond repairs. Thereafter, the complainant visited the premises of OP No.1, to know about the status of his vehicle but to no avail. To the surprise of the complainant, he received letter dated August 02, 2019, vide which OP No.1 asked him to deposit Rs.1,00,000/- for engine work and other repairs.  On receipt of the said letter, the complainant went to OP No.1 and told that the vehicle in question is fully insured with OP No.2 and as such, if any, amount is to be paid, the same shall have to be recovered from OP No.2 only but all in vain. Request was also made to OP No.2 to make payment to OP No.1 but it refused to do so. Thus, OP No.1 did not hand over vehicle to the complainant and OP No.2 failed to make payment of repairs under the said insurance policy. By not making payment of claim amount by OP No.2 to OP No.1 and at the same time, not releasing the vehicle by OP No.1, the OPs have committed deficiency in service. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability etc. On merits, while admitting factual matrix of the case with regard to the fact of issuance of insurance policy in question in respect of the vehicle in question by OP No.2 and that it met with an accident as mentioned in the consumer complaint, it has been stated that because the entire matter revolves between the complainant and OP No.2, as such, complaint against OP No.1 may be dismissed. The vehicle in question was received in accidental condition and it was checked thoroughly. After taking photographs, the matter was referred to the OP No.2 but OP No.2 refused some other claim, which was not covered under the present Accidental Claim. The vehicle was got ready but the complainant neither made the balance payment not collected the vehicle. The complainant has given an Undertaking on 04.06.2019 after taking the copy of Estimate of Rs.3,04,415/-.  OP No.1 had been sending letters after letters since 02.08.2019 till November, 2019 for depositing the payment of extra work of repair of Head, Cylinder Assembly of the vehicle which were found damaged and were not covered under the Insurance Claim but the complainant did not prefer to come for the same. The vehicle is lying stranded in the workshop of OP No.1 due to fault and negligence of the complainant, to which OP No.1 is entitled for estimation and parking charges. Rest of the averments of the complainant were denied by the answering OP No.1 and prayed for dismissal of the present complaint.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, bad for mis-joinder of necessary parties, cause of action, not come with clean hands and suppressed the material facts etc. It has been stated that as per the averments made in the complaint, the grievance of the complainant is against OP No.1 only.  The alleged accident if had taken place, it was all because of rash, negligence and careless driving on the part of its driver which is proved from averments made in the complaint itself.  Although the accident of the vehicle in question was allegedly caused on 9.5.2019 but the intimation regarding the same was given to OP No.2 on 18.5.2019 without explaining any reason for delay. OP No.2 was thus denied an opportunity to inspect the vehicle at the spot. OP No.2 appointed the surveyor to assess the loss. The said Surveyor inspected the vehicle in the workshop of OP No.1 and asked the complainant through various letters to submit the necessary documents. The OPs had also written various letters to the complainant to submit necessary documents including bills of parts and labour etc.  When the Surveyor was not supplied the required information and documents, he inspected the vehicle independently and bonafidely vide which only those parts, repairs and labour etc were allowed which were covered under the terms and conditions of the Insurance Policy and disallowed the parts etc. which were not covered. OP No.1 too, repaired the vehicle and when it asked the complainant to pay the amount for the parts and repair etc. which were not covered under the Insurance Policy and was not thus allowed, he failed to pay for the same nor gave any response to it. Thus, when OP No.2 was not supplied the final bill of spare parts and labour etc. it was left with no alternative but to close the claim file on the ground," we have sent various letters and mails for repair bills to which no reply has been received till 19.11.2019. Claim cannot be kept open for indefinite period and hence we are closing the claim without payment". The intimation of this decision was also conveyed to OP No.l and to the complainant by OP No.2. Rest of the averments of the complaint were denied by the answering OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Shri Sandeep, Senior Manager of Metro Motors Private Company as Annexure OP1/A alongwith documents Annexure OP1/1 to OP1/12 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Shri Sunil Gupta, Deputy Manager Legal Magma HDI, General Insurance Co. at Mohali (Punjab) as Annexure OP-2/A alongwith documents Annexure OP2/1 to OP2/14 and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and also have carefully gone through the case file.
7.           Learned counsel for the complainant submitted that since the vehicle in question was comprehensively insured with OP No.2, as such, it was liable to make the payment to OP No.1 towards repair/replacement of parts damaged in the accident but by not doing so and on the other hand, closing the claim of the complainant and at the same time, the act of OP No.1 in forcing him to pay the amount and not releasing the vehicle and demanding the parking charges etc, amount to deficiency in providing service.   
8.           On the contrary, the learned counsel for the OP No.1 submitted that since the complainant failed to make payment towards the damaged parts which were not covered under the insurance policy and also at the same time OP No.2 also refused to pay the claim amount, as such, the vehicle in question was not released to him. Similarly, the learned counsel for the OP No.2 submitted that since the complainant failed to provide necessary documents i.e. final bill of repair of damaged parts and labour etc. despite requests having been made to him, number of times, as such, left with no alternative, his file was closed on the ground," we have sent various letters and mails for repair bills to which no reply has been received till 19.11.2019. Claim cannot be kept open for indefinite period and hence we are closing the claim without payment".  
9.           Following facts have not been disputed in this case:-
   1. Issuance of insurance policy, Annexure C-7 by OP No.2 in respect of the vehicle in question valid for the period from 25.01.2019 to 24.01.2020;
   2. Occurrence of accident of the said vehicle on 09.05.2019;
   3. Lodging of DDR before the Police Station at Thanesar Sadar, Kurukshetra;
   4. Landing of damaged vehicle in the workshop of OP No.1 for repairs;
   5. Conduct of survey of the damaged vehicle by the Surveyor appointed by OP No.2.

10.           However,  as per the submissions made by OP No.2, the complainant is not entitled to the claim amount on the following grounds:-
    1. Delay in intimation to the insurance company regarding the said accident; and
    2. Non-submission of final/original repair bills of the vehicle in question.

11.           First coming to delay in intimation of the accident of the said vehicle by the complainant to OP No.2, it may be stated here that it is not in dispute that the vehicle in question met with an accident, as a result whereof, the Surveyor appointed by OP No.2, vide its report, Annexure OP-2/14 assessed the net liability of loss to the tune of Rs.1,80,904/- against the estimate of Rs.3,04,415/-. In his survey report, there is nothing found mentioned if the said Surveyor has doubted the claim raised by the complainant meaning thereby the Surveyor has verified and found the claim of accident to be correct. Under these circumstances, the ground taken by OP No.2 to the effect that there was delay in intimation (only 8 days) regarding the said accident by the  complainant, did not merit acceptance to close his claim of payment, in view of the settled principle of law laid down by the Hon’ble Supreme Court of India in Om Prakash vs Reliance General Insuarance, CIVIL APPEAL NO.15611  of 2017, decided  on 4 October, 2017, wherein it was held that the decision of the insurer to reject the claim has to be based on valid grounds and that rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry, especially, when  the claim has been verified and found to be correct by the surveyor. It was further specifically held by the Hon’ble Supreme Court in this case that the condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine and that it needs no emphasis that the Consumer Protection Act aims at providing better protection of the interest of consumers; it is a beneficial legislation that deserves liberal construction and that this laudable object should not be forgotten while considering the claims made under the Act. It is therefore held that the submission made by OP No.2 that  the claim of the complainant is not payable as there was delay of 8 days in intimation regarding the said accident being devoid of merit is rejected.
12.           Now coming to the second ground taken by OP No.2 regarding non-submission of final/original repair bills in respect of the vehicle in question.  To this effect the learned counsel for the complainant has contended that final/original repair bills have not been supplied by OP No.1 to the complainant, on account of dispute between them with regard to payment of the some damaged parts of the vehicle, which were allegedly not covered under the policy in question and as such, complainant was not in a position to provide the final/original repair bills to the OP No.2.  The OP No.2 cannot compel the complainant for supply of the documents, which were not in his custody and it could have been obtained the same directly from OP No.1. It may be stated here that in the case of Gurmel Singh v. National Insurance Co. Ltd., , decided on 20.05.2022], the Hon’ble Supreme Court of India, has held as under:-
    • In the present case, the insurance company has become too technical   while  settling   the   claim   and   has   acted arbitrarily.  The  appellant  has been asked to furnish the 6 documents  which  were  beyond  the control  of the appellant to procure and furnish.  Once, there  was a valid insurance on  payment  of  huge sum  by way of premium and the  Truck was   stolen,   the   insurance   company   ought   not   to   have become  too technical  and ought not to have refused to settle   the   claim   on  non­-submission   of   the   duplicate certified   copy   of   certificate   of   registration,   which   the appellant   could   not   produce   due   to   the   circumstances beyond his  control. In many cases, it is found that the insurance    companies   are   refusing   the   claim   on   flimsy grounds and/or   technical   grounds.   While   settling   the claims, the  insurance company should not be too technical and ask  for the  documents,  which the  insured is not in a position  to   produce   due   to   circumstances   beyond   his control. ”

 

          In view of the law laid down by the Hon’ble Supreme Court in the case referred to above, we hold that the OP No.2 was not justified by closing the claim file of the complainant without payment, on the ground that he failed to provide the original repair bills of the vehicle, which he was not in a position to produce due to circumstances beyond his control and is thus liable to indemnify the complainant for the loss suffered by him due to accident of the vehicle in question, as per the terms and conditions of the policy.   

13. the Surveyor appointed by OP No.2, vide its report, Annexure OP-2/14 assessed the net liability of loss to the tune of Rs.1,80,904/- against the estimate of Rs.3,04,415/-. It is settled proposition that the report submitted by a surveyor is an important piece of evidence and has to be given due weight, though it is not sacrosanct and can be ignored, provided there is cogent evidence otherwise. In the absence of any evidence to the contrary, the amount assessed by the Surveyor, has to be accepted. In the present case also, this report of the Surveyor has not been challenged by the complainant, by placing on record any contrary evidence. In this view of the matter, it is held that the OP No.2 is liable to indemnify the complainant to the tune of Rs.1,80,904/- and is under obligation to pay the said amount of Rs.1,80,904/- to the OP No.1 towards repair of the damaged vehicle of the complainant and rest of the amount if any, which is not payable by the OP No.2 has to be paid by the complainant to the OP No.1.

14. For the reasons recorded above, this complaint stands partly allowed, in the following manner:-

1. OP No.2 is directed to pay claim amount to the tune of Rs.1,80,904/- to the OP No.1 towards cost of repair of the said vehicle. The OP No.2 is also directed to pay compensation of Rs.5,000/- to the complainant for the mental agony and physical harassment caused to him and pay Rs.3,000/-, to the complainant as litigation expenses. The OP No.2 is further directed to comply with the aforesaid directions within the period of 20 days from the date of receipt of the certified copy of this order, failing which, it shall be liable to pay interest @ 6% per annum on the awarded amount, as referred to above, for the period of default, till realization. However, it is made clear that the amount, over and above the amount of Rs.1,80,904/-, if any, incurred towards repair of the vehicle in question, shall be borne/paid by the complainant to the OP No.1.
2. OP No.1, on receipt of the aforesaid amount of Rs.1,80,904/-  from OP No.2 and balance amount from the complainant, if any, shall release the vehicle in question to the complainant, in roadworthy condition, on the very same day, without charging any parking/holding charges etc., failing which, OP No.1 shall be liable to pay compensation @ Rs.100/- per day to the complainant, till realization.

    Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 16.01.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President