District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.366/2020.
Date of Institution: 08.10.2020
Date of Order: 24.08.2022.
Chandan Kumar aged about 33 years S/o Shri Madan Mohan Singh R/o House No.1519, Sector-23A, Ballabgarh, District Faridabad.
…….Complainant……..
Versus
1. The New India Assurance Company Limited, Divisional Office:5-R/2, B.K.Chowk, NIT, Faridabad through its Divisional Manager.
Service also effected at:-
The New India Assurance Company Limited, Registered office: # 87, M.G.Road, Fort, Mumbai – 400 001 through its Director/principal Officer.
2. M/s. NRL Motors Pvt. Ltd., Registered office: Narendra road, Firozabad Rpad, Sharda Crossing, Agra (Uttar Pradesh) through its Director/Principal Officer.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. Sandeep Kumar , counsel for the complainant.
Sh. D.K.Gosain, counsel for opposite party No.1.
Opposite party No.2 ex-parte vide order dated 07.04.2022.
ORDER:
The facts in brief of the complaint are that the complainant purchased a car bearing its registration No. HR-38Z-5426, Chassis No.MALA741CLKM367851, make Hyundai Xcent. The said vehicle was the only source of livelihood for the complainant as defined u/s 2(7)(ii)(a) of the Act. At the time of purchasing of the said vehicle, the representative of opposite party No.1 offered various insurance plan for the said vehicle and the executive of opposite party No.1 suggested the complainant to opt for the Zero Depreciation Policy by paying nominal premium towards the said coverage. Upon enquiry, the complainant informed that in case the complainant opt for zero depreciation policy, then his vehicle would be fully insured with Zero Depreciation and in case of any claims no deductions whatsoever would be made from the damaged/accidental vehicle and every part of the vehicle would be covered till the period of coverage of the policy. The complainant being satisfied with the above stated representation made by the Insurance Advisor opted to avail the said benefit of Zero depreciation by paying additional amount of Rs.4573/- towards the zero depreciation. The complainant paid a total sum of Rs.30481/- towards the policy of his vehicle. The complainant after payment of Rs.30,481/- towards the total premium including the additional premium towards the Zero Depreciation, the opposite party No.1 issued the insurance policy bearing No.11300031190301055252 valid from 09.05.2019 to 08.05.2020 and the said policy was an Zero Depreciation covering all accidental and other claims as per the terms and conditions of the said policy. During the period of insurance of said vehicle, the vehicle of the complainant met with an accident on Express Highway No. 108 at Agra as the same was by unknown truck/vehicle. The complainant immediately called upon the help line number of
the toll and intimated of the accident, however, despite visit by the police no. FIR was lodged by the concerned police officials as the vehicle which hit the vehicle of the complainant had already flew away from the spot. Upon the advice of the toll officials as well as the police officials, the complainant took his vehicle to opposite party No.2 for repairing of the said vehicle and requested the opposite party No.2 for the cashless facility by handing over the insurance policy issued by opposite party No.1. Thereafter the opposite party No.2 estimated the cost of repairing of said vehicle and assessed at Rs.3,00,000/- and told the complainant to seek approval from opposite parties No.1 for getting repairing of the said vehicle. Accordingly, the complainant approached the opposite party No1 and requested to provide cashless facility so the vehicle could be repaired and submitted the estimate issued by opposite party No.2, then the opposite party No.2 told that after due verification through surveyor, the loss could be assessed but the opposite party No.1 did not do so and at last asked the complainant to get the said vehicle repaired and on submission of bill, the opposite party No.1 would disburse the claimed amount. The complainant had left no other option except to get the said vehicle repaired by making the repairing cost on his own pocket and hence the complainant got the said vehicle repaired form opposite party No.2 and opposite party No.2 issued bill bearing invoice No. N3248G201912820 dated 31.12.2019 for Rs.2,01,547/- and invoice No. N3248G201912819 dated 31.12.2019 for Rs.79,833/- total rs.2,81,380/- and the complainant had paid the entire billing amount to opposite party No.2 However, the opposite party No.2 also issued another summary invoice bearing No. B201906970 dated 31.12.2019 for Rs.2,81,380/- to opposite party No.1. Thereafter the complainant submitted that said bill with opposite party No.1 and requested to disburse the said claimed amount/billing amount but opposite party No.1 alleged appointed a surveyor and
said surveyor submitted the inspection report on the back of the complainant, as the complainant was not intimated by opposite party No.1 or its surveyor about alleged checking and opposite party No.1 disbursed a sum of Rs.1,66,309/- in favour of the complainant instead of actual billing amount of Rs.2,81,309/-. The complainant tried his level best to reason out with the opposite prty No.1 as to why his partial claim was settled, but the opposite party No.1 told that opposite party No.2 had sent the bills for the said amount only and therefore, the amount of Rs.1,66,309/- would be payable to the complainant. Thereafter, the complainant approached the opposite party NO.2 to know the reason why he sent the invoice of Rs.1,66,309/- to opposite party No.1 instead of actual bill of Rs.2,81,380/-, which had already received from the complainant. Upon such information the opposite party No.2intimated that the opposite party No.2 had sent the bills of Rs.2,81,380/- to opposite party No.1 i.e. repairing of vehicle, parts, labour charges etc. and opposite party No.1 would give the answer why settled the claim at Rs.1,66,309/- instead of actual billing amount of Rs.2,81,380/-. The complainant sent legal notice dated 26.08.2020 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) pay the above said balance claimed amount of Rs.1,15,071/- alongwith interest @ 18% p.a. from the date of invoice till its realization to the complainant.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.21,000/ - as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant
and submitted that there had been no deficiency in service on the part of the answering opposite party as the claim in respect of the damaged car No. HR-38Z-5426 was got processed and investigated and loss assessed by appointing surveyor and loss assessor on the basis of the estimate provided to the surveyor and the related documents to the surveyor. Upon investigation it had come that the complainant was having driving license of LMV whereas vehicle in question was a commercial vehicle and the insurance policy obtained by the complainant was a commercial vehicle policy. Therefore, the clarification was sought by the surveyor as the D/L of complainant was not having endorsement. The insurance company clarified that in view of the Apex Court authority, the D/L was considered as valid. In the above circumstances, cashless facility was not provided and the complainant was asked to raise reimbursement claim. The surveyor on the basis of estimated provided to him made assessment of the loss of the damaged parts and found that most of the spares damaged in the schedule work estimated and indentified damaged and replaced. The surveyor also found that some spares were not included in the estimate but had been replaced and given in assessment separately as no supplementary estimate was provided to the surveyor as such assessed the net loss as Rs.1,75,508.63 ps. And after deducting salvage amounting to Rs.6200/- and policy excess clause Rs.3000/-, the insurance company settled the claim of the complainant for Rs.1,66,308/- in full and final settlement and made the payment of the said amount to the complainant on 26.05.2020. Opposite party No.1.denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant
and submitted that all the contents were not related with the answering opposite party.
4. The case was fixed for filing evidence on behalf of opposite party No.2 with costs. Cost not paid. Case called several times since morning but none appeared on behalf of opposite party No.2. Hence, opposite party No.2 was hereby proceeded against ex-parte vide order dated 07.04.2022.
5. The parties led evidence in support of their respective versions.
6. We have heard learned counsel for the parties and have gone through the record on the file.
7. In this case the complaint was filed by the complainant against opposite parties –The New India Assurance Company ltd. & Ors. with the prayer to : a) pay the above said balance claimed amount of Rs.1,15,071/- alongwith interest @ 18% p.a. from the date of invoice till its realization to the complainant. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs.21,000/ - as litigation expenses .
To establish his case, the complainant has led in his evidence Ex.CW1/A – affidavit of Chandan Kumar, Ex.C-1 – RC, Ex.C-2 – Commercial Vehicle Package policy , Ex.C-3 - Customer Invoice(Part), Ex.C-4 – Customer Invoice (Labour), ex.C-5 – Invoice summary,, Ex.C-6 – Credit voucher, Ex.C-7 – legal notice, Ex.C-8 – Postal receipts, Ex.C-9 (Colly) – track reports.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party No.1 , Ex.RE1/A – affidavit of Anju Narad, Asst. Manager, Legal Department, New India Assurance company
Limited, Faridabad,, Ex.R1 – Commercial Vehicle Package Policy Enhanced Covers, Ex.R-2 – Motor spot Survey Report, Ex.R-3 – payment Voucher.
8. It is evident from Ex.C-1 the complainant purchased a car bearing its registration No. HR-38Z-5426, Chassis No.MALA741CLKM367851, make Hyundai Xcent. The opposite party No.1 issued the insurance policy bearing No.11300031190301055252 valid from 09.05.2019 to 08.05.2020 and the said policy was an Zero Depreciation covering all accidental and other claims as per the terms and conditions of the said policy. During the period of insurance of said vehicle, the vehicle of the complainant met with an accident on Express Highway No. 108 at Agra as the same was by unknown truck/vehicle. The complainant immediately called upon the help line number of the toll and intimated of the accident, however, despite visit by the police no. FIR was lodged by the concerned police officials as the vehicle which hit the vehicle of the complainant had already flew away from the spot. The complainant took his vehicle to opposite party No.2 for repairing of the said vehicle and requested the opposite party No.2 for the cashless facility by handing over the insurance policy issued by opposite party No.1. The opposite party No.2 estimated the cost of repairing of said vehicle and assessed at Rs.3,00,000/- and told the complainant to seek approval from opposite parties No.1 for getting repairing of the said vehicle.
9. As per the surveyor report vide Ex.R2, spare parts replaced not given original in estimate by opposite party No.2 and the amount was deducted from the claim of the complainant. On the other hand, the policy of the complainant was comprehensive and Zero Depth policy. Hence, the deficiency in service on the part of opposite party No.2 has been proved who is already proceeded ex-parte.
Resultantly, the complaint is allowed with the direction that opposite party No.2 will pay rest of the amount to the complainant after deducting an amount of Rs.6200/- and Rs.3000/- as per the policy of excess clause. The complainant will get the total claim amount after deducting the excess clause. But in the interest of justice, the first the insurance company will pay the amount to the amount to the complainant and after that insurance company is at liberty to recover the amount from the opposite party No.2. The details are as under:
Actual bill amount :Rs.2,81,309/-
Disbursed amount : Rs.1,66,309/-
Balance : Rs.1,15,000/-
Deducted Salvage : Rs. 6,200/-
:Rs.1,08,800/-
Deducted excess clause : Rs 3,000/-
Total :Rs. 1,05,800/-
10. Opposite party No.1 is directed to :
a) pay Rs.1,05,800/- to the complainant alongwith interest @ 6% p.a from the date of filing of complaint till its realization.
b) pay Rs.5500/- as compensation on account of mental tension, agony and harassment.
c) pay Rs.5500/- as litigation expenses to the complainant.
Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 24.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
