Haryana

Ambala

CC/164/2017

Subhash Chander Batra - Complainant(s)

Versus

Modern Automobiles - Opp.Party(s)

Rohit Jain

18 May 2018

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                        Complaint No.164 of 2017.

                                        Date of institution:-31.05.2017.

                                        Date of decision: - 18.05.2018.

Subhash Chander Batra son of late Sh.Shiv Lal Batra, aged 58 years resident of House No.2771/2, Kaziwara, Ambala City.

 

                                                           ...Complainant.

Versus

1.Modern Automobiles, Model Town, Crossing, G.T.Road, Ambala City through its Branch Manager.

2.Maruti Insurance Broking Private Limited, 01, Nelson Mandela Road, Vasant Kunj, New Delhi-110070, through its Branch Manager.

3.The New India Assurance Company Limited 1215, 12^th Floor, Naurang House 21, Kasturba Gandhi Marg, New Dehli-110001, through its Branch Manager.

                                                            …Opposite parties.

Complaint under section 12 of

 

Before:     Sh. Dina Nath Arora, President.

                Sh. Pushpender Kumar, Member.        

                   Ms. Anamika Gupta, Member.                  

               

Present: -  Sh.Rohit Jain, Advocate for complainant.

                Sh.S.R.Bansal, Advocate for OP No.1.

                Sh.Rohit Kaushik, Advocate for OP No.2.

                Sh.Mohinder Bindal, Advocate for OP No.3.   

Order

                In nutshell, the facts of the complaint are that the complainant has purchased a Maruti Swift Dzire from Op No.1 and got it insured with Op Nos.2 & 3 by paying a sum of Rs.12809/- having validity from 01.11.2015 to 31.10.2016 and the policy in question was cashless policy. Unfortunately, the car of the complainant met with an accident on 24.07.2016 when it was being driven by one Raman Batra. A case under Sections 279/304-A IPC was registered with police station Dera Bassi. The complainant informed the OPs about the accident and handed-over the said car to Op No.1 in the end of July, 2016 for its repair. The complainant kept on visiting Op No.1 for getting the repaired vehicle but they started demanding Rs.41,000/- on pretext or charges of repair of the damaged car. Being cashless policy the OPs were bound to pay the amount to be spent on repairing of the vehicle but the Op No.1 did not pay any heed and the complainant requested the Op Nos. 2 & 3 to carry out the repair work of the car as per terms and conditions of the policy but they firstly lingered on the matter and then flatly refused to handover the possession of the repaired car unless and until he makes the payment of entire amount of repairs. The OPs are kept on delaying the claim on pretext that name of the driver is not mentioned in FIR ignoring the fact that a claim had already been passed by MACT, Chandigarh vide award dated 13.01.2017. The Ops have not returned the car to the complainant after repairs which devaluated the car and they further caused mental agony and harassment as complainant is under the burden of installments of said hypothecated vehicle. The complainant got served legal notice upon the Ops for handing over the possession but to no effect. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CW1/A and documents Annexure C1 to Annexure C8.

2.             On notice Ops appeared and filed their separate replies. OP No.1 in its reply has submitted that the vehicle has already been delivered to the complainant on 05.07.2017 after filing of the compliant by making the entire payment of Rs.41,698/-. The Op No.1 is service provider and has charged repairs chargers which were either to be paid by insurance company or by complainant. There is no deficiency in service on its part. Prayer for dismissal of the complaint has been made.

3.             Op No.2 in its reply has submitted that MIBPL is a broking agent and does not issue the insurance policy to its customer and only role is to advice the customer about the benefit of the policy. The policy has been issued by Op No.3; therefore, the grievance of complainant is against Op No.3. Prayer for dismissal of complaint has been made.

4.             OP No.3 in its reply has taken many preliminary objections such as cause of action, territorial jurisdiction, maintainability of the complaint and concealment of material facts etc.  The claim of the complainant has never been denied as he was repeatedly asked to provide copy of challan to know the name of the driver and confirming the identity of the driver at the time of accident and in the judgment passed by Sh.Harish Anand, MACT, Chandigarh Sh.Raman Batra has been shown as driver. The complainant is liable to be prosecuted under criminal law for taking contradictory and wrong stand before two courts of law but in order to show the positive attitude and to given an end of blame game the OP had released the amount as assessed by the surveyor on relying of the pleading of the complainant and said amount of Rs.34750/- as compensation has already been accepted by the complainant before this Forum without protest, therefore, the present complaint is infructuous. In such like cases where there is any third party loss involved than cashless facility cannot be extended due to involving high monetary issue of case involving third party claim as well thus investigation and confirmation of every document and the fact has to be conducted. The complainant himself had parked the vehicle at the workshop of M/s Modern Automobiles. The insurance company has never denied the claim of the complainant but held it no claim due to non compliance of the required papers. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA/1, Annexure RB and documents Annexure R1 to Annexure R7.

5.             We have heard learned counsel for the parties and gone through the case file very carefully.

6.             Admittedly, the complainant had purchased the said policy for the period from 01.11.2015 to 31.10.2016 from insurance company (Annexure C5). It is not disputed that vehicle was insured by the company met with an accident on 24.07.2016 and FIR has been lodged by the police on 25.07.2016 under Sections 279/304-A IPC with police station Dera Bassi. In the accident the car in question has been damaged and complainant got it repaired from OP No.1. The service centre had demanded the amount of Rs.41000/- as repair charges. The insurance company has deputed the surveyor for assessment of loss and amount Rs.34572.54 as per Annexure R5 but the company has not paid the above said amount either to the service centre on the ground that complainant has not submitted the copy of challan issued by the police confirming the name of the driver at the time of accident alongwith the bank account particulars and sent the registered notice Annexure R1 dated 17.01.2017 as well as Annexure R2 dated 05.01.2017 but insurance company has paid the insured amount in the court on 04.10.2017 after filing of the complaint and same was received by counsel for the complainant under protest. The OP No.1 had not handedover the vehicle to the complainant on the ground that payment of repair charges have not been paid either by the company or by the complainant.

7.                     The main grievance of the complainant is that   repaired vehicle remained in the service centre from the date of accident till the payment was made to the service centre on 05.07.2017 and OP/ insurance company has not paid the repair charges/assessed amount to the service centre or the complainant due to this reason the complainant could not receive the vehicle in time and complainant has to pay the repaired amount to the OP No.1 then he got received the vehicle from OP No.1 on 05.07.2017 after period of 11 months. The complainant is claiming the compensation on the ground of delay in making the payment and for handingover the vehicle by the Op no.1 on 05.07.2017 due to not paying the payment by the insurance company to the service centre. As far as the compensation against Op No.1 the complainant has paid the repair charges to Op No.1 and Op No.1 has delivered the vehicle after receiving the amount. There is no fault on the part of OP No.1 as amount has been paid by the complainant they had handedover the vehicle to the complainant.

8.                     So far regard the compensation on account of delay the payment to the complainant or the service centre it is clear that the insurance policy was cashless policy and Op No.3 has to pay the repair charges to the service centre but they have not paid the assessed amount as assessed by the surveyor on the ground that name of the driver/particulars of bank account had not been disclosed. From the perusal of award passed by MACT, Chandigarh it is very much clear that name of driver is mentioned in the judgment and MACT case has been filed by the claimant on 05.08.2016 and MACT, Chandigarh has decided the case titled as Smt.Neelu Singh etc. Vs. Raman Batra & New India Insurance Company on 13.01.2017 and insurance company was a party in that case, therefore, it was very much in knowledge about the name of driver as per order passed on 13.01.2017 as verification report of DL record of driver, which is already on the above said file, which was produced in evidence by the claimant in the court as per the MACT, judgment. As the Motor Accident Tribunal has already given the findings against the driver and insurance company i.e. OP No.3 in this case and such finding is well within the knowledge of the insurance company than in that eventuality availability of stand of OP in the present complaint regarding denial of the accident is totally unbelievable. Conduct of the op insurance company while dealing with the claim of the complainant in this case is quite depreciable. Award passed by the MACT has attained the finality and OP insurance company has not placed on record any evidence regarding the pendency of any proceedings before any higher court against MACT award. It is unbelievable as to why the insurance company is demanding the copy of challan as well as the name of driver only to avoid in making the assessed amount to the complainant which was paid during the pendency of the compliant, so we hold that the insurance company is deficient in providing service by withholding the assessed amount by the surveyor on 05.09.2016, therefore we are of the view that OP is liable to pay the compensation for indulging the complainant into unwarranted litigation. Accordingly, we allow the present complaint against Op No.3 only with costs and dismissed against Op Nos. 1 & 2. The OP insurance company/ OP No.3 is further directed to comply with the following direction within thirty days of the receipt of copy of the order:-

1. To pay the interest on the assessed amount Rs.34570/- @ 9 % per annum after the decision of the MACT case i.e. on 13.01.2017 till 04.10.2017 when the payment was made in the Forum.
2. To pay Rs.10,000/- on account of mental agony, harassment as well as cost of litigation etc.

 

 Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on: 18.05.2018

 

                                                               

PUSHPENDER KUMAR      ANAMIKA GUPTA        D.N. ARORA MEMBER                                MEMBER                        PRESIDENT