1.       This order shall dispose of the two appeals No.96/2015 and 81/2015.

2.       The brief facts of the case are that Mr. Mukul Aggarwal and Dassault Systems India Pvt. Ltd. had filed complaint before the State Commission (hereinafter Mr. Mukul Aggarwal be addressed as “Complainant No.1 and Dassault Systems India Pvt. Ltd. as “Complainant No.2) against Ms. Bajaj Allianz General Insurance Company Ltd. (hereinafter shall be referred as “Opposite Party No.1”), an insurance company and M/s BMW India Pvt. Ltd. (hereinafter referred as “Opposite Party No.2”), manufacturer and seller of cars and M/s Bird Automotive Pvt. Ltd. (hereinafter referred as “Opposite Party No.3), car dealer having dealership of BMW series as well. Opposite Party No.1 and opposite party No.2 have filed separate appeals against the impugned orders. Since the same order has been impugned by both the opposite parties, both the appeals be disposed of vide this common order.

3.       The brief facts of the case are that complainant No.1 wanted to purchase a BMW car for his personal use and applied to complainant No.2 for loan under its car lease scheme. Complainant No.1 was employed as a Director Finance and Administration with it. Complainant No.2 sanctioned the loan of Rs.26,92,229/- in May, 2012. On 17.5.2012 complainant No.1 purchased a BMW 3 Series Model Subtype-320D, Car Mfg 2012 for an amount of Rs.23,46,278/-. He also paid a sum of Rs.3,45,991/- to opposite party No.3 towards insurance charges, BMW Secure, registration road tax, logistic and other taxes. The EMIs towards the said loan were regularly being deducted from his salary by complainant No.2 and was being paid to Sundram Finance. Complainant No.1 also paid an amount of Rs.83,989/- plus taxes to opposite party No.3 and his car was insured with opposite party No.1. Two insurance policies one Bajaj Allianz General Insurance for private car and other BMW Secure policy for a sum assured of Rs.29,46,278/- for additional protection in case of total loss within one year of purchase of the vehicle under which the car would be replaced with new one of the same type, inclusive of cost of registration, taxes etc., were issued to him by opposite party No.1.  

4.       Subject car met with an accident in front of DLF Square on the intervening night of 28/29 07.2012 between 12.30 am to 2.00 am. The car got badly damaged. The staff of the complainant called for the help of opposite party No.2 for removal of the car, when they failed, complainant No.1 got car towed to the workshop of BOSCH Car Workshop. A call was again made to opposite party No.3 on 29^th July, 2012 in the morning whereby opposite party No.3 was informed of the accident and was also asked to shift the car to its service station. 29th July, 2012 being Sunday and no staff being available with opposite party No.3, the opposite party No.3 did not remove the vehicle to its garage on 29^th July, 2012. It was only 30^th July, 2012 that opposite party No.3 took the damaged car to its repairing centre. On 29^th July, 2012 the driver in the car also informed the police and the police entered a DDR. The complainant applied for insurance claim on 30^th July, 2012 through opposite party No.3 and he was informed that in the insurance papers the engine number and chassis number had been wrongly mentioned by opposite party No.1. Opposite party No.1 thereafter did the necessary correction in the insurance policy and acknowledged the claim form dated 30^th July, 2012. After the details in the policy were corrected, a fresh claim form dated 9^th August, 2012 was also submitted. The claim submitted was for Rs.29,46,278/- and the replacement of the vehicle in terms of the BMW Secure advanced insured cover was also sought since the car was completely damaged in the accident. Despite him continuously pursuing the matter, opposite party No.1 did not clear his claim and finding no way out, the complainants filed the complaint with the State Commission on 7^th December, 2012. The State Commission vide its order dated 12.12.2012 directed the opposite party No.1 to take decision on the claim of the complainant within a month of the receipt of the order and the order was served on opposite party No.1 on 13.12.2012. Opposite party No.1 vide its order dated 09.1.2013 repudiated the claim of the complainants. Complainant had challenged the said repudiation stating that it was most unfair and unjust.

5.       The defence taken by opposite party No.1 in its written version was that complainant had no locus standi to file complaint since the private car package policy was issued in the name of complainant No.2 and sought dismissal of the complaint on this ground alone. The plea that the matter could not be effectively heard by the State Commission due to voluminous evidence in the form of survey report, investigation report etc. was also taken by opposite party No.1. It was also contended that although the incident took place on 29^th July, 2012 at about 1.15 am and the police reached at 1.20 am at the spot but the GD entry was lodged after 14 hrs of the incident and the intimation to the insurance company was also given after inordinate delay of 12 days which amounted to breach of conditions of the insurance policy. It was also alleged that the complaint was liable to be dismissed on the ground that the complainants had not come before the State Commission with clean hands. They had fabricated a story of the accident. It was alleged that there were different version of the accident. It was also contended that driver Rakesh Kumar was not driving the vehicle since as per his statement he was not injured in the accident and as per the complainant also, the driver did not receive any injury in the accident, yet the human blood stains were found inside the car as is clear from the Indian Forensic Lab Report dated 9.1.2013. It was also contended that the complainant had alleged that only the driver was present in the car while opposite party No.1 learnt during the investigation from the statement of owner of the third vehicle which was also hit by complainant No.1’s car and that there were three young boys sitting in the car at the time of the accident who after the accident run away. Besides these it is contended that despite the various letters written by the surveyor, dated 23.8.2012, 3.9.2012, 9.10.2012 and 27.11.2012, other communications through emails, the complainants did not furnish any satisfactory and logical explanation to the queries raised in those letters. It is submitted that in the light of these facts no deficiency of service can be attributed to opposite party No.1.

6.       The defence taken by opposite party No.2, as a preliminary objection, was that the complainant was not a consumer. The car was purchased by the Sundram Finance Ltd. who let out the car to complainant No.2 by supplemental lease agreement dated 18.5.2012. The vehicle debit note and tax invoice issued by opposite party No.3 are also in the name of complainant No.2 and that the car is also registered in the name of complainant No.2 at RTO. It is argued that complainant No.1, therefore, had no locus standi. It was also contended that the State Commission had no territorial jurisdiction since no part of cause of action had arisen within its territorial jurisdiction. The car was booked and purchased in Gurgaon from opposite party No.3 The price was paid and delivery was taken at Gurgaon. It was also registered at Gurgaon and the accident had also taken place at Gurgaon and the FIR was also lodged at police station Gurgaon and the insurance claim was also submitted at Gurgaon and, therefore, the State Commission of Delhi had no territorial jurisdiction. It is further contended that the name of opposite party No.3 has been arrayed only with the intention to confer jurisdiction to the State Commission at Delhi since opposite party No.3 had its registered office located at Delhi. Delhi address of opposite party No.1 is also mentioned in the memo of parties only with the same intention. It is also contended that opposite party No.2 had no branch office or other office within Delhi and, hence, Delhi Commission had no jurisdiction. It was also contended that the benefit under BMW Secure policy, for replacement of the damaged vehicle with a new one is available only upon confirmation of total loss of vehicle by a survey report and reimbursement of 75% of the IDV of the vehicle by the insurance company under the insurance policy. Since this has not been done, opposite party No.2 is not liable to give a new car to the complainant. It was denied that the staff of complainant sought any help from opposite party No.2 at the time of accident. It was denied that opposite party No.2 was jointly and severally liable to indemnify the complainants since there was no deficiency in service on the part of opposite party No.2. It was contended that responsibility of opposite party No.2 arises under the B MW Secure policy only when the surveyor report confirms the total loss of the vehicle and insurance company reimburses 75% of the IDV.

7.       The contention raised by opposite party No.3 was that since no relief had been claimed from them, the complaint was bad for misjoinder of parties and liable to be dismissed under order 1 Rule 10 CPC. It was also contended that complainant No.1 had no locus standi to file the complaint. It was also contended that opposite party No.3 is only a dealer. It is denied that he had received any telephonic call after the accident. He, however, admits that the car was brought to his service centre on 30^th July, 2012. It was also admitted that at the time  when the claim was filed by the complainants, opposite party No.3 had pointed out the mistake in the engine number and the chassis number and got the same corrected by the insurance company. He also admits that when the vehicle was brought to his service station on 30^th July, 2012, the matter was immediately brought to the notice of the insurance company.

8.       The parties led their evidences. After hearing the arguments of learned counsels for the parties and perusing the evidences on record, the State commission rejected the contentions of opposite parties and issued following directions: -

“38.  In view of the above discussion, the following order is passed:-

i.       OP-1 and OP-2 are directed to indemnify the complainants for the total loss of BMW 3 Series 320D car in question by replacing the vehicle with a new car of the same make/model with all incidental registration road tax and logistics charges paid and duly insured as earlier.

ii.      OP-1 & 2 are further directed to pay a sum of Rs.50,000/- towards compensation for harassment, mental agony and pain etc., and Rs.10,000/- towards litigation charges.

iii.     The complainants are also directed to complete all formalities regarding the transfer of ownership of the damaged vehicle in favour of the insurer.”

9.       I have heard the arguments of the learned counsel for the parties and have perused the record. My findings are as under. Common arguments of both the learned counsel is that the complainant No.1 had no locus standi to file the complaint since the private car policy was issued in the name of complainant No.2 and that the car also belongs to complainant No.2 by virtue of supplemental lease agreement dated 18.5.2012 between the Sundaram Finance Ltd., who purchased the car and subsequently let out the car to complainant No.2. It is also contended that the tax invoices etc. are also in the name of complainant No.2 and the car is also registered in the name of complainant No.2. It is argued that the complaint No.1 had no locus standi to file the complaint and the complaint was liable to be dismissed on this count.

10.     It has been argued on behalf of the complainant that that the vehicle was purchased for the benefit of complainant No.1 Mr. Mukul Aggarwal who is working as Director (Finance & Administration) with complainant No.2. The complainant No.2 had also sanctioned a loan amount in favour of complainant No.1 for purchase of the said car and that regular EMIs against the loan are being deducted from the salary of complainant No.1. It is argued that the definition of Consumer includes the user of the goods other than the person who buys it and, therefore, it cannot be said that complainant No.1 has no locus standing.

11.     Under Section 2 (1) (d) of the Consumer Protection Act, 1986 defines the expression “Consumer.” It reads as under: -

“(d) “consumer” means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) ¹² [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ¹² [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ¹³ [but does not include a person who avails of such services for any commercial purpose]”

[Emphasis supplied]

12.     The definition itself includes the user of the goods and the beneficiary of the services. From the evidences on record it stands proved that the car was purchased for complainant No.1. For that purpose a loan was also sanctioned to him by complainant No.2 and that complainant No.1 is regularly paying the EMIs. The car was also being used by complainant No.1. He, therefore, is the user and beneficiary of the services under the insurance policy. This common argument of both the appellants, therefore, has no merit and is hereby rejected.

13.     Next contention which both the appellants have raised is that the State Commission has no jurisdiction to entertain the complaint. It was contended that the car was booked and purchased in Gurgaon from opposite party No.3 M/s Bird Automotive Pvt. Ltd. and it was also registered with the transport department of Haryana at Gurgaon. The car also met with the accident at Gurgaon and the FIR was also lodged with the police station at Gurgaon and since the insurance policy was also taken at Gurgaon and the insurance claim was also lodged at Gurgaon, it is apparent that no part of cause of action has since arisen within the territorial jurisdiction of Delhi, hence the State Commission had wrongly exercised its jurisdiction and the impugned order is liable to be set aside on this ground. Reliance is also placed on the findings of the Hon’ble Supreme Court in the case of M/S. Sonic Surgical vs National Insurance Company Ltd. vs. National Insurance Co. Ltd. AIR 2010 SCW 298. Learned counsel for the complainants has submitted that the insurance company and Ms. Bajaj Allianz General Insurance Co. Ltd. have their branch offices at Delhi and under Section 17 (2) of the Act, the complaint can be filed at any place where office of the respondents is situated. It is also argued that the findings of Hon’ble Supreme Court in Sonic Surgical case (supra) do not apply on the facts and circumstances of this case.

14.     I have given thoughtful consideration to the arguments of the learned counsels on this point. It is not denied that insurance company as well as Bird Automotive Pvt. Ltd. have their branch offices in Delhi and they are carrying out business from those offices. Section 17 (2) deals with the territorial jurisdiction of the State Commission. It reads as under: -

“[(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.]”

15.     From the bare reading of this provision it is clear that where there are more than one opposite parties then either with the permission of the State Commission or with the consent of the opposite parties, who do not reside or carry on business or have a branch office or personally works for gain at that place, complaint can be instituted at a place where any of the opposite party at the time of institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain. This provision does not require that at such place cause of action should also have arisen.  Under Section 17 (2) complaint can be filed at the place where cause of action has arisen. This provision gives liberty to complainant to file complaint either at the place where all the opposite parties are carrying on business etc. or where any of the opposite party, if they are more than one, carry on the business and that can be done either with the consent of other opposite parties or with the permission of the State Commission or at a place where cause of action wholly or in part arises. All the clauses are independent to each other. In the present case, the complaint was filed within the territorial jurisdiction of State Commission of Delhi on the ground that insurance company (OP-1) and M/s Bird Automotive Pvt. Ltd. (OP-3) are carrying on their business from their office situated at Delhi. It is therefore clear that out of three opposite parties, two of them are carrying on their business within the territorial limits of the State Commission of Delhi. State Commission has also entertained the complaint and therefore had granted permission for filing complaint within its territorial jurisdiction. The judgment of Hon’ble Supreme Court in Sonic Surgical case (supra) has been given in the light and circumstance of that case. The State Commission in its impugned order has rightly held that the decision in Sonic Surgical case (supra) has a restrictive application which fact has also been observed by Hon’ble Supreme Court in para-10 of its judgment wherein it has held as under: -

          “In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.”

16.     In the present case, the appellants have failed to point out any reason for departure from the plain and literal words of Section 17 (2) (b) of the Act. Hon’ble Supreme Court in its order has clearly held that departure shall be made when it is necessary to avoid absurdity. In the present case, since out of three opposite parties two are carrying on their business within the territorial limits of the State of Delhi, there exists no reason to depart from the plain and literal meaning of Section 17 (2) (b). The arguments of learned counsel therefore have no merit in it. State Commission has rightly exercised its territorial jurisdiction.

APPEAL NO.96/2015 of OP-1 Bajaj Allianz General Insurance Co. Ltd.

17.     Learned counsel for the insurance company OP-1 has argued that repudiation vide letter dated 09.01.2013 is a valid repudiation. It is submitted that although the accident had occurred on the night of 28/29.07.2012 between 12.30 am to 2.00 am., intimation of the accident was given late and also that the vehicle was removed from the spot and the insurance company had thus lost the opportunity to verify the fact relating to damage to the vehicle and the circumstances which led to loss. It was also contended that the insurance company vide letters dated 23.08.2012, 03.09.2012, 09.10.2012 & 27.11.2012 in addition to other communications through emails, sought explanation and the insured failed to provide satisfactory and logical explanation to the queries in those letters. It is also argued that the fact of accident and the manner of accident in the claim form dated 30.07.2012 and 09.08.2012 are different than the manner of accident reported to the police. It is further argued that human blood stains were found on the steering wheel scatter in different part which shows that the driver had been injured but this fact was concealed from the police and OP-1. It is argued that the forensic investigation report dated 09.01.2013 tested the blood samples collected from the steering wheels, driver seat and dash board and it was reported that it was human blood. It is also argued that the driver of the third vehicle which was also hit during that incident, had reported that besides driver there were 3 to 4 persons in the vehicle who after the accident ran away and these facts are concealed by the insured and this shows that insured had not come up before the Commission with clean hands, has also tried to mislead OP-1. It is argued that the contract of insurance is based on doctrine of Uberrimae Fidei (of utmost good faith) and since the complainants have not reached the Commission with clean hands they are guilty of breach of the doctrine and the insurance company has rightfully repudiated the claim. It was also argued on behalf of the OP-1 that there is also a delay in informing the insurance company and therefore the claim is liable to be rejected and the impugned order be set aside.

18.     It is argued on behalf of the complainants that there was no delay in informing the opposite party and also in lodging the FIR. It is argued that the complainants have not concealed any material fact and immediately informed all the concerned authorities about the accident. They even informed the opposite party No.3 immediately after the accident but opposite party No.3 showed its inability to remove the vehicle after the accident. Therefore, the vehicle was removed to a garage on account of the fact that the accident took place at a busy road i.e. NH-8 and the vehicle could not have been left unattended at this place. It is also argued that condition No.4 of insurance policy read with clause (b) of the claim form put burden on the insured to protect the damaged vehicle and park it at a safer place to avoid any subsequent loss or damages and the complainant did the same. Opposite party No.3 did not remove the vehicle on 29.07.2012 as its staff was not available due to Sunday and removed it only on 30^th July, 2012. It is further submitted that the complainant had received only one communication from the insurance company which is a letter dated 23^rd August, 2012 and it was immediately replied by the complainant. It is argued that no other letter was received by the complainant. It is argued that there is no illegality and infirmity in the impugned order which is based on the proved evidences on record and the appeal is liable to be dismissed.

19.     I have given thoughtful consideration to the rival contentions. Admittedly till the time the complaint was filed, no decision had been taken by the insurance company on the claim of the complainants and it was only after the direction of this Commission to take a decision, that the claim was repudiated vide letter dated 09.01.2013. The repudiation letter is reproduced as under: -

“i.     There has been considerable delay in providing the intimation of reported claim to our company. At the same time the vehicle was removed from the spot without providing us an opportunity to verify the facts related to the damage to vehicle and the circumstances leading to loss. The same was necessary to determine the admissibility of the claim which is violation of policy condition no. 1 which reads as, Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.

ii.            You failed to provide satisfactorily and logical explanations to the queries of our letters dt. 23/08/2012, 03/09/2012, 27/09/2012 and 07/12/2012 in addition to various communication through mails.

iii.          You provided two claim forms dt. 30/07/2012 and 09/08/2012 wherein fact of manner of accident mentioned and fact of manner of accident reported to the police is quite different and misleading one.

iv.          As per your goodself there was no injury to the driver but as per investigation/survey report blood stain found available on steering and found blood stain scatter in different part of IV.

However you have failed to report about the same, thus leading us to believe that there is suppression of actual facts related the reported loss.”

20.     From the documents on record and from the testimonies of the parties it stands proved that after the accident on the intervening night of 28/29.07.2012, the complainant sent a communication to opposite party No.3 M/s Bird Automotive Pvt. Ltd. and requested them to remove the vehicle to their garage. M/s Bird Automotive Pvt. Ltd. is a dealer of BMW but they showed their inability since 29^th July, 2012 being Sunday no staff was available with them to toed the vehicle to their garage. In terms of condition No.4 of insurance policy read with clause (b) of the claim form, it was the duty of the insured to secure the vehicle after the accident so that it does not suffer further damages. The accident had taken place on a busy highway i.e. National Highway No.8. In order to secure the vehicle from further damage the insured shifted it to BOSCH workshop on the same night. The vehicle was taken to its garage by opposite party No.3 M/s Bird Automotive Pvt. Ltd. only on 30^th July, 2012. The FIR was lodged on 29^th July, 2012 by the driver of the car and the DD was registered for that reason. It is also clear that the police had immediately reached at the spot. It also stands proved by way of evidences and also admitted by opposite party No.3 that immediately after the accident the insurance company was informed and a claim was filed through it. That time it was found that the insurance company had wrongly mentioned the chassis number and engine number of the vehicle on the policy. Receiving this intimation, admittedly, the insurance company did the necessary corrections in the policy and therefore a fresh claim was submitted by the insured. Therefore, these circumstances clearly show that the insured had immediately lodged the claim but due to the fact that chassis number and engine number were wrongly mentioned by the insurance company in the insurance policy, the said claim was not accepted and his claim was accepted only after the insurance company corrected the wrong. In this circumstance, it cannot be said that there was any delay on the part of insured to lodge its claim. This argument of the learned counsel for the insurance company therefore has no merit.

21.     The insurance company also raised certain pleas relating to the different versions about the nature of accident given by the driver and also that as per their forensic investigation report the driver had received injuries but this fact was not mentioned either by the driver or by anyone else at any time either to the police or to the insurance company and there was also suppression of the fact that there were three more persons in the vehicle at the time of accident and those persons ran away after the accident. This contention of learned counsel for the insurance company is based on the statement given by the driver of the third vehicle which was also damaged in the accident. Learned counsel for the complainant submits that none of it affects the claim of the complainants. The complainants have not filed any claim for the injuries suffered by anyone in the accident. Their claim relates to damage to vehicle in an accident. It is submitted that the insurance company has not denied anywhere that the car was not damaged in the accident. Since the car was damaged in the accident and had suffered total loss, the denial of the claim on unwarranted pleas, certainly amounts to deficiency in service.

22.     I have given thoughtful consideration to these contentions of learned counsel for both the parties. There is no denial on the part of the insurance company that car had got damaged in an accident on NH-8 in the intervening night of 28/29.07.2012 between 12.30 to 2.00 am. It is also apparent that the claim submitted by the insured only relates to the damage caused to the vehicle on account of this accident. There is no plea on the part of the insurance company that the accident had taken place due to the fault on the part of the drive of this car. In view of this fact, the manner of the accident is of no consequence. It is also of no consequence if the driver of the subject vehicle had or had not received injuries in the accident. The procedure to be followed by the Commission is a summary procedure and facts are not required to be proved therein beyond reasonable doubts unlike criminal cases. If there are contradictory statements of the witnesses to the accident relating to manner of accident, the benefit of doubt to the driver of that offending vehicle can be given only in criminal trial. It has no bearing on the claim under an insurance policy. This argument therefore had been rightly rejected by the State Commission in the impugned order and there is no illegality or infirmity in these findings.

23.     As regards the doctrine of Uberrimae Fidei (of utmost good faith) is concerned, it is apparent that the insured had not hidden anything from the insurance company. He had allowed the vehicle to be inspected, samples to be taken and informed the dealer of BMW vehicle as well as the insurance company and the police immediately. There is nothing on record to show that the complainants have not acted in good faith or have not come before the State Commission with clean hands. Although the appellant insurance company contends that it had sent four letters 23.8.2012, 3.9.2012, 27.09.2012 and 07.12.2012, the insured had admitted of having received only one letter dated 23.08.2012 which he immediately replied and the insurance company had not placed on record any proof of service of other three letters dated 3.9.2012, 27.09.2012 and 07.12.2012. The learned counsel for the appellant insurance company therefore has failed to point out any illegality or infirmity in the impugned order. The present appeal has no merit.

APPEAL NO.81/2015 of OP-2 BMW India Private Limited

24.     Besides taking the plea of territorial jurisdiction and that complainants are not consumers, the appellant has also taken the plea that there is no cause of action against them and therefore the compliant was liable to be dismissed. It is argued by learned counsel for the complainants that opposite party had issued BMW secure policy and had charged premium of Rs.24,719/- and therefore it is liable to give a new car when the car had suffered total loss within one year. On record it stands proved that the complainants had taken a BMW secure policy by paying an additional premium. Under this policy they are entitled for a new car on confirmation of the total loss of the vehicle by a surveyor report and reimbursement of 75% of IDV of the vehicle by insurance company under the insurance policy. The surveyor had reported that there is a total loss to the vehicle. Now, since it has been held that the repudiation of the claim by the insurance company was wrong and amounted to deficiency in service and since the surveyor had already assessed the loss which is more than 75% of IDV, under the BMW secure policy, the complainants are entitled for a new car from the appellant. The argument of learned counsel for the appellant, therefore, has no merit. The present appeal also has no merit.

25.     In view of the above discussion, it is apparent that the impugned order does not suffer from any illegality and infirmity. It is based on the cogent evidences produced on record. Both the appeals have no merit and are hereby dismissed. Order of the State Commission is hereby confirmed.