Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.45/20.01.2016
Ravinder Sharma s/o Sh. Lakshmi Narayan Sharma
r/o F-133, Block-F, Rajdhani Park, Village Mundka,
Nangloi, New Delhi-110041 …Complainant
Versus
OP1. National Insurance Company Limited
[General Claim Hub], 2-E/25, Jhandewalan,
New Dehli-110055.
OP2. Sh. Avichal Dhingra, Manager
M/s Sincere Marketing Services Pvt. Ltd.
806, Vishal Bhawan, 95, Nehru Place,
New Delhi-110019 ... Opposite Party
Date of filing: 20.01.2016
Coram: Date of Order: 10.12.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.29)
1.1. (Introduction to case of parties) –The complainant is registered owner of vehicle bearing registration no. DL1G C-2121 (hereinafter referred as the vehicle or subject vehicle) which was insured from OP1 vide policy no. 360804/31/14/63001669 for period 10.07.2014 to 09.07.2015 having IDV of Rs. 9,50,000/- (hereinafter referred as insurance policy). However, he has grievances that when his the vehicle met with an accident and it was badly damaged but OP1 failed to reimburse the insurance claim. There is negligence and deficiency of services on its part.
1.2. The OP1/Insurer opposed the complaint that it is not maintainable for want of cause of action, it is premature case since the complainant himself is at fault for want of furnishing the documents asked for time and again, it cannot be construed deficiency of services. The parties are strictly bound by terms and conditions of the policy.
The OP2/Shri Avichal Dhingra, of M/s Sincere Marketing Services Pvt. Ltd. is Manager the service centre where complainant’s subject damaged vehicle was repaired, however, the OP2 failed to file its written statement/defence and also for want of appearance, it was proceeded ex-parte on 13.05.2019. However, during the last phase of case, the OP2 put the appearance on 19.04.2023 consequent to notice issued by the complainant to verify the bills raised by it in respect of repairs to the subject vehicle, the verified bills were furnished.
1.3 Financer – It is revealing from the contents of complaint r/w insurance policy schedule that the subject vehicle was financed by HDFC Bank Ltd under hypothecation agreement.
2.1. (Case of complainant) –The complainant’s insured vehicle with the OP1 met with an accident on 23.05.2015 (during the currency of insurance policy) and accident had happened at Express Highway, Greater Noida, UP. The vehicle was badly damaged to the extent that it was irreparable. The OP1 was immediately informed, who appointed the surveyor and survey of the vehicle was done on 24.05.2015; the complainant was asked to pay the fees Rs. 1800/-, which he paid.
2.2. The vehicle was left with OP2/service station. The OP2 issued estimate of Rs. 10,90,000/- for repairs, however, it was more than IDV of Rs. 9,50,000/-. Thus, complainant requested the OPs to treat the matter as of total accident loss case but surveyor Sh. R. K. Jain and OP2 were in collusion and connivance told complainant that vehicle is repairable at the cost between Rs. 5,00,000/- to 5,50,000/- that too against cashless facility and it will be ready to be handed over on 25.08.2015. Thus, at the request of OP2, the complainant issued cheque of Rs. 1 lakh, ;who got it encashed so that the vehicle may be repaired.
In the last week of September 2015 when complainant visited OP2, he was apprised that estimate bills of repairs are around of Rs. 7 lakh and complainant was asked to pay the same, it shocked and surprised the complainant that the vehicle was of total loss case and the complainant had agreed for repairs at the insistence of OPs. Therefore, on 30.09.2015 the complainant sent speed post letter dated 29.09.2015 to OPs of his grievances and to make reply within three days but it was not responded by either of them. The vehicle was under loan repayments by EMIs and complainant had paid Rs. 2,61,520/- till date being seven EMIs of Rs. 37,360/- each. The complainant also issued legal notice dated 08.10.2015 which was sent by post on 13.10.2015 to the OPs seeking return of the vehicle and repair charges besides compensation in lieu of mental harassment and torture suffered, the EMIs paid but they failed to respond the same. The OPs caused harassment and deficiency in services, even cashless facility was not extended. That is why the complaint for amount of Rs.1800/- paid as surveyor fee, Rs. 1 lakh given to OP2 towards repairing of the vehicle, EMIs of Rs.2,61,520/-, legal expenses of Rs. 25,000/- and compensation of Rs. 2 lakh in respect of mental pain and harassment which makes out total claim of Rs. 5,88,320/- and other appropriate reliefs.
[It is relevant to mention during the phase of final argument certain clarifications were sought and it was apprised that complainant was delivered that vehicle after seven months by the OPs]
2.3 The complaint is accompanied with documents/copies of – identity proof of complainant, registration certificate (also showing that it is under hypothecation which HDFC Bank Ltd.), insurance policy schedule, letter dated 29.09.2015 by post, legal notice dated 08.10.2015 with postal receipt and track report.
3.1 (Case of OP1)-The complaint is opposed by the OP1, its grounds are already mentioned in paragraph 1.2 above. In addition, the OP1 had appointed Sh. Piyush Singhal, a Government approved and licenced Surveyor and Loss Assessor for spot surveyor; he furnished his survey report dated 31.05.2015. Further after receipt of spot survey report, the OP1 further appointed Sh. R. K. Jain, a Government approved and Licenced Surveyor and Loss Assessor to assess the loss caused to the vehicle; he furnished his report dated 11..09.2015 and also assessed claim of Rs. 4,85,014/- after deduction of salvage of Rs. 19,500/- which was subject to terms and conditions of insurance policy and final approval by the OP1/Insurer. It was followed by his re-inspection report dated 24.01.2016.
As per report of surveyor, the repair liability is less than 75% of IDV, therefore, the claim of complainant cannot be considered on total loss/net on salvage basis.
3.2. The OP1 also denies all other allegations made in the complaint against OP1, either with regard to total loss of the vehicle or estimate of Rs. 10,90,000/- or allegations of connivance etc. In addition, the OP1 had requested complainant to furnish requisite document and information of the complainant on merits as per terms and conditions of policy but complainant neglected and failed to furnish original FIR, repairs bills cum receipt, cash memo of repairs part, payment voucher duly discharge by insured/complainant, original cancelled cheque alongwith NEFT/RTGS form and MLC of driver, if any. The complainant failed to comply this requisition asked by letter dated 11.03.2016. There is no deficiency of services, the complaint is not maintainable for own fault of complainant. The circumstances are not making out deficiency of services or negligence on the part of OP1 to make it liable for any claim as prayed in the complaint.
The parties are bound to the contract of insurance and its terms and conditions, as held in Oriental Insurance Company Ltd. Vs. Sony Cherian II 1999 CPJ 13 SC and Surajmal Niwas Oil meals Pvt. Ltd. Vs. Oriental Insurance Company Ltd. 2010 (10 SCC 567) .
3.3 (Case of OP2)- It is already stated that OP2 was ex-parte and so far other proceedings; are concerned, it has already been mentioned in sub-paragraph 1.2 above.
4. (Replication of complainant) –The complainant filed detailed replication to the written statement of OP1, briefly the replication reaffirms the complaint. In addition, the complainant also denies allegations of written statement that all requisite documents were furnished with the claim form to the OP1, besides following other directions, therefore, for want of settlement of valid claim of the complainant, there is deficiency of services, negligence on the part of OPs and the complainant is entitled for the claim made in the complaint since it is not the case of loss of less than 75% of IDV.
5.1. (Evidence)- In order to prove the complaint, the complainant Shri Ravinder Sharma led his evidence by detailed affidavit of evidence with documents filed with the complaint. In addition, the complainant also led additional evidence with permission regarding estimate bills and repairs, furnished by OP2 on appearance despite it was not appearing earlier.
5.2. Similarly to prove the defense version, the OP1 also led evidence of Shri Surendra Rai AO by filing detailed affidavit of evidence; but the OP1 introduced the documentary with the affidavit, which were just referred in the written statement. No separate permission was taken by OP1 to file the documents at later stage, which was duty of OP1, legally or otherwise. Moreover, the affidavit of evidence is replica of the written statement.
5.3. There is no pleading or evidence of OP2, since it remained ex-parte by order dated 13.05.2019.
6. (Final hearing)- At this stage, the complainant and OP1 filed their written arguments. The parties were also given opportunity to make oral submissions, then Shri Chiranjiv Chauhan, Advocate for the complainant, made oral submissions. However, OP1 took adjournment to make oral submissions before fixed date of order but no such submissions were made on behalf of OP1 despite the Commission accommodated by giving adjournment, therefore, written arguments are being considered.
7.1 (Findings) - The case of the parties, their contentions and material on record are considered and assessed besides the provisions of law and case law referred.
At the outset, there is no dispute of insurance policy issued by the OP1 to the complainant in respect of insured vehicle, the said vehicle met with an accident during the currency of insurance policy, it was damaged and serviced/repaired at the workshop of OP2. The dispute are on other counts, whether or not the complaint is premature, is it bar by non-joinder of financer or the complainant is entitled for reliefs claimed.
7.2.1 The case of OP1 is that for want of furnishing documentary record and any decision on the claim lodged by the complainant, the complaint is premature. On the other side, the case of complainant is that all documents were furnished with the claim form and other appropriate assistance was also extended by complying the directions, therefore, in case the OP1 withheld the decision for settlement of claim, the complainant cannot be blamed thereto.
7.2.2 The answer of this issue lies in the record itself, it is just to highlight them. The OP1 has filed the letter dated 11.03.2016 seeking original FIR. MLC of injured, and cash memo from the complainant, which is opposed by the complainant. However, the OP1 has brought on record motor spot survey report dated 31.05.2015, which also mentions that FIR was registered with the police. The other motor inspection survey report dated 11.09.2015 is also proved by the OP1 followed by another re-inspection report dated 24.01.2016. The report dated 11.09.2015 enumerates its enclosed documents, which also includes claim form, estimates, FIR, court order for releasing the vehicle and other documents. When the documents were already with the OP1, which also appearing from the the surveyor report, was there is any justification of OP1 to ask for original FIR? The original FIR always remain in the paper book of police record and original is never handed over to the informant because the original FIR is public document. Was there any justification to OP1 to ask for original FIR. Similarly, the MLC of injured, if any, remains with the record of police file or in the record of hospital, it is not supplied to the informant being subject matter of sec.207 CrPC 1973; subject to exception of DAR proceedings. Lastly, the letter dated 11.03.2016 is not appended with any mode or proof of service upon the complainant.
Therefore, it is held when the complainant had already furnished the record available with the claim form and the claim was not decided by OP1 vis-à-vis it also makes out from the written statement that OP1 has opinion that in all the eventualities the complainant is not entitled for claim more than amount of Rs. 4,85,014/- [after deduction salvage of Rs. 19,500/-]. The complaint cannot be treated as premature complaint particularly the OP1 could not decide the claim for long time.. Accordingly, this issued is disposed off against OP1.
7.2.3. It would not be out of context to mention but relevant that surveyor in his report dated 11.09.2015 remarked (remark no.6) that insured has not produced arrest papers and bail papers of driver despite demands. The arrest memo and bail papers are matter of police file at the during investigation, how the insured/complainant could obtain and produce them? The OP1 has acted upon such remarks too. In case, those papers were required the licenced surveyor could approach the police authorities but such requisition from the complainant shows that OP1 was not acting bona-fide but unacceptable devise were adopted by the OP1 and its surveyor, reflecting from remarks.
7.3.1 The other issue is regarding non-joinder of HDFC Bank Ltd. as a party to the complaint and the complainant has clearly mentioned in the contents of complaint that he has been paying EMIs.
7.3.2 The answer to this issue of that HDFC Bank Ltd is not a necessary party since the dispute is between the Insurer/OP1 and the Insured/complainant regarding non-settlement of accident loss claim. The consumer dispute can be determined in the absence of HDFC Bank Ltd.. Although, the Financer has preferred right because of insurable interest in the vehicle. Thus, this it is held that the complaint is not bad for non-joinder of HDFC Bank being not a necessary party to the complaint.
7.3.3. Moreover, in view of evidence on record, it is abundantly clear that the OP2 is service station, the dispute of release of insurance claim is between the Insurer/OP1 and Insured/complainant, therefore, no case is made against OP2.
8.1. By taking into account the stock of all materials, inclusive of analysis, discussion and conclusions in the aforementioned paragraphs, for the purposes of other issues, the following conclusions are drawn:-
(i) The OP1 has vehemently asserted about want of furnishing certain record like original FIR, etc, it has already determined that documents like original FIR could not be in possession of the insured besides arrest memo, bail orders, which are within the domain of police and/or concerned court.
By considering this plea of OP1 as well as the documents produced, especially the surveyor report dated 11.09.2015 depicting estimates and the loss assessed by the surveyor, the complainant has also proved those verified estimates showing total amount of Rs. 11,89,689/- and correspondingly same estimates amount is mentioned as original estimates in the surveyor's report. To say, the complainant had furnished those record to the OP1 and /or its surveyor and that is why the same were mentioned in the report dated 11.09.2015.
(ii) The complainant has proved the verified bills issued by OP2 and on comparison it depicts those spare parts, which are correspondingly matching with the spare parts mentioned in the report of surveyor. It is also not disputed that the OP2 has repaired the subject vehicle and complainant was released the vehicle subsequently.
(iii) The OP1 has formed an opinion based on the loss assessed by the surveyor that net loss amount payable is Rs. 4,85,014/- (after salvage deduction of Rs. 19,500/-). There is no other contrary evidence by the complainant to rebut the net loss assessed by the surveyor, therefore, the net loss assessed by the surveyor can be accepted. In Sikka Papers Ltd. Vs. National Insurance Co. Ltd. & Ors. reported as (2009) 7 SCC 777, (para 21) it was held that it is true that the surveyor’s report is not the last word but then there must be legitimate reasons for departing from such report].
(iv) Since the OP1 was already having sufficient material either furnished by the complainant or gathered by the surveyors or opinion of surveyor based on information collected from the spot or otherwise, despite it the OP1 raised those objections, which are not tenable and acceptable to say that complainant failed to furnished original FIR or documents which were in the domain of police/court.
It proves the case of complainant of deficiency of services for want of settlement of valid claim that too on non-acceptable reasons on the part of OP1.
8.2. In view of the conclusion drawn in paragraphs above, it stand established that there was accidental damages to the vehicle and the complainant has proved its claim repairs and replacement of spares of vehicle against the OP1. The complainant is entitled for such repairs, spare parts and labour charges of Rs.4,82,514/-. The surveyor are appointed by the Insurer, therefore, spot fees of Rs.1,800/- paid by the complainant is to be borne by the OP1, the complainant is also entitled for refund of this amount.
8.3. The complainant has also claimed interest. However, there is no agreed rate of interest, therefore, considering that complainant was deprived of his eligible amount, interest @ 5% pa on the amount of Rs. Rs.4,82,514/-+Rs.1,800/- from the date of filing of complaint till its realisation of amount is determined and allowed in favour of complainant and against the OP1.
8.4. The complainant also seeks compensation of Rs.2,00,000/- in lieu of facing hardship, mental agony and harassment besides costs of Rs.25,000/-. Since its valid claim was not settled by OP1; it would justify both ends to allow reasonable compensation and costs; compensation of Rs.20,000/- and costs of Rs. 10,000/- are determined and allowed in favour of the complainant & against the OP1.
9.1 So, the OP1 is directed to pay claim amount of Rs.4,82,514/-+ Rs.1,800/- along-with interest at the rate of 5% pa from the date of complaint till realisation of amount besides compensation of Rs.20,000/- and costs of Rs.10,000/- to the complainant. The amount will be payable within 45 days from the date of this order, failing which there will enhanced rate of interest of 8%pa (on amount of Rs.4,82,514+Rs.1,800/-). The OP1 is at liberty to deposit the payable amount with the Registry of this Commission by way of valid instrument in the name of the complainant. But, it is subject to further directions being given hereunder.
9.2. The vehicle was under hypothecation with HDFC Bank Ltd.- Financer and the Bank has also insurable interest, therefore, it has preferred right in the claimed amount. The complainant will cooperate by furnishing within 45 days from the receipt of this order requisite documents to OP1 and of balance amount payable to the Bank since complainant's own averments are that he had paid many installments. Therefore, general directions are given that OP1 will release the amount to that Bank, which it deserves to receive as outstanding amount, subject to receipt of details of balance amount and requisite documents, for which the Bank will also cooperate in this regard. The excess amount, if any left with OP1, shall be paid by the OP1 to the complainant. It is obvious that complainant will be entitled for appropriate “no due certificate” from lender Bank after payment of amount besides consequence update of record.
In case complainant and/or HDFC Bank do not furnish further details required of amount and other requisite documents within 45 days, then such period of 45 days or other longer period will be excluded, while computing interest @ 5% pa, or 8% pa as the case may be. Further, in case HDFC does not cooperate to furnish the detail even to complainant or to OP1, then OP1 will release the amount to the complainant.
9.3. The complaint against OP2 is dismissed.
10. Announced on this 10th day of December, 2024 [अग्रहायण 19, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs156]
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