DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Krishan Kumar Dhaka son of late Shri Basti Ram, SCO No.34, Sector   28-C, Chandigarh.

                                      ---Complainant.

Versus

1.                 HDFC Ergo General Insurance Co. Ltd., 6^th Floor, Leela Business Park, Andheri-Kurla Road, Andheri (East), Mumbai 400059 through its Chairman-cum-Managing Director.

2.                 M/s HDFC ERGO General Insurance Co. Ltd. SCO 124-125, Sector 8-C, Chandigarh through its Manager/Assistant Claims Manager.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. M.K. Malhotra, Adv. for the complainant

                        Sh. Rajesh Sharma, Adv. proxy for Sh. Paras Money Goyal, Adv. for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Krishan Kumar Dhaka has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs against the opposite parties :-

(i)                to pay Rs.9.00 lacs as insurance claim and Rs.3,050/- as towing charges alongwith interest @ 18%.

(ii)             to pay Rs.5.50  lacs (@Rs.2000/- per day) as compensation on account of non use of the vehicle w.e.f. 9.4.2011.

(iii)           to pay Rs.1.00 lac on account of mental agony, harassment etc.

(iv)           to pay Rs.21,000/- as litigation expenses.

2.                           In brief, the case of the complainant is that he got his SKODA Laura car bearing registration No.CH04-B-0015 insured with the opposite parties for the period 20.11.2010 to 19.11.2011.  The IDV of the vehicle was Rs.9.00 lacs.  He paid Rs.21,148/- as premium. 

                   According to the complainant, on 8.4.2011 the vehicle in question was badly damaged in an accident when some stray animal suddenly came in front of it.  At that time the vehicle was being driven by his grandson Mr. Arun Dhaka and his cousin Mr. Suraj Dhaka was sitting beside on the front seat and both received minor injuries in the accident.  It has been pleaded that the opposite parties were immediately informed about the accident on 8.4.2011 itself. Thereafter, the opposite parties appointed its surveyor to assess the loss/damage caused to the vehicle. The matter was also reported to the police and after investigation DDR No.13 dated 12.4.2011 was recorded at Police Station Phase 8, Mohali. 

                   According to the complainant, the vehicle was taken to the authorised dealer i.e. M/s Krishna Auto Sales, Chandigarh for repairs with the help of recovery van and it assessed the estimate for repairs at Rs.15,78,054/-.  It has been averred by the complainant that he was advised by the opposite parties to keep the damaged vehicle at its own parking place in order to avoid payment of parking charges to the authorised dealer. 

                   The complainant submitted the insurance claim form alongwith all the documents.  According to the complainant, the opposite parties declared the vehicle as total loss and forcibly got signed a consent letter dated 17.6.2011 for Rs.7.50 lacs as full and final settlement.  But, they failed to even make the payment of Rs.7.50 lacs within 15 days as stipulated in the consent letter, hence the same became infructuous. 

                   According to the complainant he was shocked to receive letter dated 11.8.2011 (C-11) from the opposite parties where he was asked to submit the driving licence of Suraj Kumar.  He was also informed in the said letter that he had not handed over the vehicle to the salvage buyer.  Thereafter he served a legal notice dated 30.8.2011 on the opposite parties but to no avail.  It has been averred that failure on the part of the opposite parties to pay the insurance claim amounts to deficiency in service and unfair trade practice.

                   In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           In their written statement the opposite parties admitted that the vehicle in question was insured with it and that the same was involved in an accident on 8.4.2011 regarding which intimation was given to them on the same day.  However, it has been pleaded that at the time of accident the vehicle was being driven by Suraj Kumar.  It has been averred that they requested the complainant a number of times to provide the licence of Suraj Kumar to process the claim but the complainant changed his stand and implanted Arun Dhaka in place of Suraj Kumar.  It has been averred that immediate upon intimation, Mr. Mohit Sharma, surveyor inspected the vehicle in question and gave his report dated 28.8.2011 (R-4) in which the complainant was given three options i.e. on repair basis, on total loss basis and on net of salvage basis. 

                   According to opposite parties, there is no deficiency in service on their part and the complaint deserves dismissal.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           Admittedly car in question was insured with the opposite parties and it had met with the accident in which it was damaged.  According to the ld. Counsel for the opposite parties, at the time of accident the car in question was being driven by Suraj Kumar and not by Arun Dhaka who was implanted later on.  However, the opposite parties have failed to adduce any evidence to the effect that at the time of the accident Suraj Kumar was driving the vehicle in question.   On the other hand, the contention of the ld. Counsel for the complainant is that Arun Dhaka was driving the vehicle in question at the time of its accident who was holding a valid driving licence which was duly provided to the opposite parties.   Even in the survey report (R-4) in the column meant for name of the driver name of Mr. Arun Dhaka is mentioned.  Hence, as per the investigations made by the surveyor also, Arun Dhaka was driving the vehicle in question at the time of accident.  Even in the DDR (Annexure C-4), Arun Dhaka is mentioned as driver of the vehicle in question.  So the version of the complainant regarding the factum that Arun Dhaka was driving the vehicle in question at the time of accident is corroborated from the surveyor report and DDR whereas, on the other hand, there is nothing on record to corroborate the version of the opposite parties.  Hence from the material on record it is proved that Arun Dhaka was driving the vehicle in question at the time of accident.

6.                           Hence, refusal to indemnify the complainant for the loss caused to him amounts to deficiency in service. 

7.                           The case of the complainant is that there is total loss of the car and his allegations stand corroborated by the report of the surveyor engaged by the opposite parties who has observed that it would be uneconomical to consider the claims’ liability on repair basis.  It is very much relevant to visit Indian Motor Tariff Regulation GR.8 which clearly mentions that “a vehicle will be considered to be a CTL (Constructive Total Loss), where the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV.”   In the present case, the IDV of the vehicle in question is Rs.9,00,000/-. 75% of the said IDV comes out to be Rs.6,75,000/-  Therefore, in the light of the aforesaid regulation, it is amply clear that the vehicle in question needs to be assessed as a CTL as the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, has exceeded 75% of the IDV. 

8.                           In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

(i)                To pay the IDV of the vehicle i.e. Rs.9,00,000/- less policy clause, if any.  The opposite parties shall take possession of the salvage at their own risk and cost.

(ii)             To pay Rs.50,000/- as compensation for mental agony and harassment suffered by the complainant.

(iii)           To pay Rs.10,000/- as costs of litigation.

9.                           This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii)  shall carry interest @18% per annum from the date of this order till actual payment, besides payment of litigation costs.

10.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

24.10.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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