Haryana

Panchkula

CC/133/2015

AMARNATH SINGLA. - Complainant(s)

Versus

M/S ORIENTAL INSURANCE CO.LTD. - Opp.Party(s)

PANKAJ CHANDGOTHIA.

19 Nov 2015

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM PANCHKULA.

 

CC No.133 of 2015.

Date of Instt. 23.07.2015.

Date of Order  19/11/2015.

 

Mr. Amarnath Singla s/o Late Sh.Mangat Ram # 791, Sector 7, Panchkula.

 

..Complainant.

     Versus

 

1.M/s Oriental Insurance Company Ltd. SCO 325 IInd Floor, Sector 9, Panchkula through its Manager.

2.M/s Oriental Insurance Company Ltd. SCO 109-111, Surendera Building Sector 17-D, Chandigarh, through its Manager.

 

          ..Opposite parties.

         

Complaint under Section 12 of the Consumer

 Protection Act, 1986

 

Before:                  Mr.Dharam Pal, President.

                             Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member

 

For the parties:     Mr.Pankaj Chandgothia, Advocate for the complainant.

                             Mr.J.P.Nahar, Advocate for the Opposite parties.

 

ORDER

(Dharam Pal, President)

 

                   Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.

2.                 Brief facts of the present complaint are that complainant is registered owner of vehicle car Skoda Octavia Car bearing registration No.HR15E-0066 and got the said vehicle insured with OP No.1 for the period of 14.02.2014 to 13.02.2015 having IDV of Rs.6,20,000/- in the current policy. Unfortunately, said vehicle met with an accident on the night of Ist January, 2015 and regarding this an FIR No.1 dated 01.01.2015 was registered. At the time of accident son of the complainant was driving the vehicle in question. The complainant intimated the Ops about the accident  and thereafter the car was taken to M/s Krishna Auto Sales, Chandigarh after completion of police formalities.  Thereafter surveyor of the OPs inspected the car at the premises of the repairer. The officials of the repairer informed the complainant that the damage to the car is so extensive and it is not practically possible to restore the same in its original position. The complainant took the estimate for the repairing of the car which was more than the IDV of the vehicle.  The complainant kept on visiting the Ops for the settlement of the claim but they delayed the mater. However, the Ops offered the complainant a claim settlement on lower side as they offered Rs.4,22,900/- against the IDV of Rs.6,20,000 without explaining any reason despite the fact that the claim was approved as TOTAL LOSS BASIS.  Due to the act and conduct of the OPs the complainant has to face financial loss, mental agony and harassment which amount to deficiency in service and unfair trade practice on their part. Hence, this complaint. In evidence the complainant has submitted affidavit and documents Annexure CA, Annexure C1 to Annexure C9.

3.                           On being served, the OPs have contested the complaint of the complainant by filing joint reply. It is submitted that the OP were informed regarding the said accident only on 19.01.2015. as per condition No.3 of the policy in the vent of the vehicle being disabled by reason of loss or damage covered under this policy the company will bear the reasonable cost of protection and re-delivery to the insured but not exceeding, in all, Rs.1500/- in respect of any one accident.   The surveyor vide his report dated 21.03.2015 has assessed the total loss for Rs.4,22,900/- minus the salvage value of the damaged car amounting to Rs.75,000/- and the net liability worked out to be Rs.3,47,900/-. The surveyor had arrived at the market value for Rs.4,30,900/- on the basis of value available at Carwale site  as the car was the model of 2009. The claim was revised to Rs.5,78,250/- on production of price list of the vehicle by the complainant and the surveyor also recommended for settlement. After considering the correct IDV after application of depreciation slab of 50 % (as per policy condition regarding schedule for depreciation for fixing IDV of the vehicle since the vehicle is five years old) on price of Rs.11,70,500/- which comes at Rs.5,85,250/-. The IDV of the vehicle is to be fixed on the basis of manufacturer’s listed selling price of the brand and model as the vehicle proposed for insurance at the commencement of insurance/renewal and adjusted for depreciation.  The amount of Rs.5,85,250/- had been reduced to Rs.5,78,250/- as per excess clauses and Rs.7,000/-would be payable after completion of formalities as mentioned in letter dated 16.07.2015. The Ops are not liable to pay the IDV of Rs.6,20,000/- because after deducting the compulsory deductions payable amount comes to Rs.5,78,250/-.  The complainant was fully aware of the contents of the survey report. There is no deficiency in service and unfair trade practice on the part of OPs. Other allegations of the complainant have been controverted and prayer for the dismissal of the claim has been made. The OPs have tendered in evidence affidavits and documents Annexure RA and RB, Annexure R1 to Annexure R6.

4                           Heard. The counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the reply and prayed for its dismissal.

5.                          After hearing both the counsels for the parties and going through the material available on the file it is clear that  the vehicle of the complainant is insured with the OPs vide policy number 231202/31/2014/12304 having validity from 14.02.2014 to Midnight of 13.02.2015 as is evident through Annexure C1. It is also not disputed that the said vehicle met with an accident and regarding this FIR No.1 dated 01.01.2015 has been registered under Sections 279/283/336/427 IPC as is evident through Annexure C4.  The complainant has placed on file receipt dated 10.01.2015 regarding towing of the accidental vehicle Annexure R5. Annexure R6 is estimate of the accidental car issued by Krishna Auto Sales. Annexure R7 is retail invoice issued by Krishna Auto Sales. Annexure C8 is approval letter of the claim of the complainant issued by the Ops. Annexure C9 is the correction of the approval value in respect of the damaged car of the complainant. Perusal of the material available on the case file reveals that the Ops are not acting fairly because at the time of taking the business the IDV of the vehicle has been treated as Rs.6,20,000/-  and  took the premium on the IDV from the insured but when the insured has submitted his claim for settlement then the Ops have approved the claim of the complainant on lower side without any reason and explanation. Moreover, at this stage the Ops cannot call back and say that the market value of the vehicle is less than the IDV. The act and conduct of the Ops is not sustainable because insurance company after having accepted the value of particular insured good, disown that very figure on one pretext or other when they are called to pay compensation. This “take it or leave it” attitude is unwarranted being bad in law and ethically indefensible. Hon’ble National Commission in case titled as The New India Assurance Co. Ltd Vs. Devrajbhai Mepabhai Bhojani while deciding the Revision Petition No. 1571 of 2012 on 12^th July, 2012 has held that :

 

8.Ld. Forum has totally relied on surveyor’s report and passed the impugned order.  It is true that survey report is an important document and cannot be brushed aside, but contract of insurance is more important where in terms and conditions of insurance policy are agreed between the parties and they are to be read as it is.  Appellant has produced private car package policy along with terms, conditions and warranties for private car at page no.20 to 23 of main file.  Wherein, the policy condition is very clear that “IDV shall be treated as market value throughout the policy period without any further depreciation for the purpose of total loss claims.

 

9.       In view of the above condition, appellant is entitled for total loss amount which was agreed and decided by both sides i.e. Rs.4,64,400/- throughout the policy  period without any further depreciation.  As per condition no.3 of policy, it is an option available with insurance company that in case of claims, “the company may at its own option repair, reinstate or replace the vehicle.” So reading this condition as it is, insurance company is supposed to replace the vehicle but certainly cannot offer the amount of replacement value of vehicle.  If insurance company wants to pay the amount, then it has to offer the market value IDV of vehicle (Rs.4,64,400/-) as agreed between the parties at the time of agreement.  As per terms of policy, IDV of obsolete model of vehicle is to be determined on basis of an understanding between the insurer and insured.  Insured vehicle was obsolete model and at the time of agreement, insurance company has accepted the market value of vehicle in question @ Rs.4,64,400/- and got the premium on said amount.  So now insurance company cannot fall back and say that replacement value or market value of vehicle is Rs.1,75,000/-.

 

10.     Ld. Advocate for insurance company submitted that the cost of repairing comes more than 75% of IDV and moreover the cost of repairing is on very higher side, uneconomical and not viable.  Therefore, insurance company decided to settle the claim on replacement value i.e., at Rs.1,75,000/-.Further, it is submitted that insurance company has made payment on 19.5.2008 of Rs.2,26,938/- to the appellant as per the order of Ld. Forum in CC No.181/2005 and appellant has said amount with objection.

11.     Ld. Advocates for both the sides have produced judgments on which they relied upon.  We have gone through them carefully. The recent judgment of Hon’ble National Commission reported in III (2010) (PJ 445 CNC) New India Assurance Co. Ltd. Vs. Ramesh Rao Bhounsle, wherein the National Commission has relied on Dharmendra Goel Vs. Oriental Insurance Co.(2008) 8 SCC 279.  Here, we have similar point in issue and same stands concluded by a judgment of Hon’ble The Supreme Court of India in Dharmendra Goel Vs. Oriental Insurance Company in which it has been held that “Insurance Company after having accepted the value of particular insured good, disown that very figure on one pretext or other when they are called to pay compensation.  This “take it or leave it” attitude is unwarranted being bad in law and ethically indefensible”.

 

12.   In the light of the fact that a price of a vehicle had already been agreed by both the parties at Rs.4,64,400/- at the time of issuing policy.  We accordingly hold that in these circumstances, the insurance company was bound by the value put on the vehicle while issuing policy following the law laid down by the Supreme Court in the cited judgment (supra).  We are of the view that appellant shall be entitled as per the policy condition amount of Rs.4,64,400/- (without any depreciation) with interest @ 9% p.a.  From the date of the complaint and cost and compensation as awarded by the Ld. District Forum.  Respondent insurance company shall make the payment after deducting the amount paid to the appellant.  In this view of the matter, we modify the impugned order passed by the ld. Forum.”

 

6.                Keeping in view the above discussion and the law laid down by Hon’ble National Commission in case titled as The New India Assurance Co. Ltd Vs. Devrajbhai Mepabhai Bhojani  (supra) we allow the present complaint and direct the Ops as under:

1. To make the payment of Rs.6,20,000/- as IDV of the vehicle (Annexure C2) alongwith interest @ 9 % from the date of filing of the complaint.
2. To make the payment of Rs.1500/- on account of towing/lifting of the vehicle to the repairer
3. To make payment of an amount of Rs.10,000/- to the complainant as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iv)    To make the payment of Rs.5,000/- for litigation expenses.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 alongwith the interest @ 12 % per annum till realization besides complying with the directions at serial No.(ii), (iii) and (iv) above. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced

19.11.2015 S.P.ATTRI          ANITA KAPOOR            DHARAM PAL                                                  MEMBER            MEMBER               PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

                  

                                            

                                                          (DHARAMPAL)                                                                                        PRESIDENT