BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 19th October 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 141/2015
Complainant/s: Dr.Chetankumar s/o. Dr.V.V.Chiniwalar, Age: 30 years, Occ: Private Medical Practitioner, R/o.Near Amar Talkies, Chiniwalar Dental Care, Chiniwalar Hospital, Gangavati.
(By Sri.S.G.Soudatti, Adv.)
v/s
Respondent/s: 1. Nagashanti Renault Auto Cars LLP, Opp: P.C.Jabin College, Vidyanagar, Hubli 580021 R/by its Managing Director.
(By Sri.M.G.Gadgoli, Adv.)
2. Bharati Axa General Insurance Co. Ltd., 1st Floor, Central BUILDING, Vidyanagar, Dharwad Road, Hubli 580021. R/by its Branch Manager.
(By Sri.S.S.Karegoudar, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents 1 and 2 to treat damaged vehicle as constructive total loss and to pay IDV value amount to the complainant, in alternative to direct the respondent 1 to deliver new vehicle, to order for payment of Rs.10 lakhs as damages for harassment and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant had purchased Renault Pulse RXZ 4 wheeler vehicle from the respondent.1 on 25.12.2012 bearing registration No. KA 37 M 6464 and was insured with the respondent.2. On 27.04.2014 the said vehicle met with the accident near Hospete, Bellary District and recklessly damaged. No injury or loss to the life of the inmates. Immediately after the accident same was informed to the respondent 1 and 2. On informing to the respondent 1 and 2 the respondent 1 took the said vehicle for repair on 30.04.2014 from Gangavati. Since the vehicle was extensively damaged the respondent 1 and 2 assured to treat the said vehicle as total loss and accordingly the complainant gave his approval. Thereafter the vehicle was auctioned through online in Car Trade for Rs.1 lakh. Again in the month of August 2014 respondent 2 stated the estimation made by the respondent.1 is incorrect as such after dismantling the vehicle only they will give the approval for total loss or repair of the vehicle. On the request of respondent 1 and 2 on 15.09.2014 the complainant gave approval for dismantle. Though the respondents have assured after dismantle they will furnish estimation. But after dismantle did not furnish estimation as assured by them. Further the respondent 1 assured the complainant that if the vehicle could be repaired, it will be repaired within 60 days from the date of estimation or from the day the consent given by the complainant or insurance company for which also the respondent 1 and 2 never informed nor taken consent from the complainant for repair. Inspite of it the complainant himself repeatedly requested and contacted the concerned persons of the respondents through phone and e-mails. Even for approach and e-mails the respondents did not responded properly. According to the terms and conditions of the insurance company if the vehicle repair charges exceeds 75% of the IDV value then it shall be treated as constructive total loss. Even though as per the estimation 22.05.2014 given by the respondent 1 for Rs.10,73,934/- the respondent 2 did not considered the damaged vehicle as CTL. The respondent 1 assured they will start repair work immediately after respondent 2 gave approval for repair. Even though respondent 2 given approval for repair on 15.09.2014 the respondent 1 did not repaired the vehicle within 60 days from the date of approval and delivered the vehicle. On the assurance given by the respondent 1 the complainant waited for 3 months with an expectation that the respondent 1 will deliver the repaired vehicle within 60 days as assured but prolonged without any reason. Even the complainant approaches the respondent 1 on 07.10.2014, 13.11.2014, and on 02.12.2014 to enquire with regard to the repair the respondent neither delivered the vehicle nor given proper reply for not repaired the vehicle. When the brother of the complainant personally met respondent 1 for enquiry on 05.12.2014 the brother witnessed the vehicle was kept idle and no proper protection was taken for garaged vehicle apart from e-mail on 06.12.2014, finally complainant got issued legal notice to the respondents on 09.12.2014. Even though the said notice delivered the respondent neither replied nor complied. Since the complainant is a medical practitioner he was very much need of the said vehicle for his day today profession. Due to non delivery of the vehicle the complainant put to untold hardship and the action of the respondents in non compliance amounts to a deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents.1 & 2 appeared and filed their written version in detail.
4. The respondent 1 admits his written version taking contention that the complaint as brought is false, frivolous, vexatious as such it is not maintainable either in law or on facts and also taken contention that the complainant is not a consumer as such the complaint is not a consumer dispute as defined under CP Act and no cause of action as there is no deficiency in service as alleged and also taken contention that the matter involved is a complicated one which requires voluminous trial. Hence, the present complaint is not to be dealt within the jurisdiction of this Forum under summary trial and prays for dismissal of the complaint. Among such other admissions and denials the answering respondent disputes the complaint on the sole ground that the accident in question is not sustainable as there is no police complaint. Also disputes the alleged cause of action. The answering respondent in toto denied and disputes the complaint averments made in para 3 to 6 of the complaint, denied the auction of the vehicle through online Car-trade as alleged. Also denied the estimation of Rs.10,73,934/- by the answering respondent, instead reveals estimation is made for Rs.5,08,574/-. Earlier estimation dtd.22.05.2014 made for Rs.10,73,934/- was not correct as some parts of the vehicle was considered twice as such again as per invoice dt.31.01.2015 estimation was made for Rs.5,08,574/-. This fact was intimated to the complainant. Hence, considering the earlier estimation does not arise and puts the complainant to strict proof of the same. The repair work was done as per invoice dt.31.01.2015 at Rs.5,08,574/- said matter was discussed with the respondent 2, after dismantle and as per the instructions of the respondent 2. In pursuance of joint inspection on 08.09.2014 vehicle was dismantled. During that time it was found, no physical damages to the gear box and engine assembly and the vehicle was found fit for repair. Accordingly as decided repair was carried out as per the invoice dt.31.01.2015. Then insurance company estimated damages at 75% insured declare value at Rs.5,78,000/- and agreed to pay Rs.3,10,853/-. According to invoice and as per admission of the liability of the insurer restricting to Rs.3,10,853/- still there will be Rs.1,97,721/- that has to be paid by the complainant towards the repair charges. Though Mahesh Kubasad, Manager of the respondent.1 called the complainant to take delivery of the vehicle the complainant visited the respondents workshop on 20.02.2015 but did not take delivery of the vehicle, contrary made false allegation against the respondent. The respondent did not delayed, even for the e-mails the respondent replied through e-mails. Under those circumstances there was no need to reply for legal notice issued on 09.12.2014. There is no cause of action as contended and the alleged cause of action is an imaginary as such the present complaint as brought is not maintainable and to be dismissed. Accordingly the complainant is not entitled for any relief and prays for dismissal of the complaint with exemplary cost.
5. The respondent 2 also admits written version in the same line as the respondent 1 admits the written version. Further the answering respondent taken contention that the complaint is bad for non joinder of financier of the respondent and also on the ground no police complaint is made after the accident & prays for dismissal of the complaint on the said grounds also. Further denies the damaged car was not in a position of repair and the complainant is deserved for claim under total loss. The respondent 1 had submitted the estimation before dismantle. After dismantle of the IDV value it is found there was no necessary to change gear box, housing and engine assembly. As per the IDV the value of the insured vehicle was Rs.6,42,485/-. Based on the invoice of the respondent 1 to the tune of Rs.5,08,574/- the surveyor assessed the loss by deducting depreciation amounting to Rs.3,04,735/-. Hence, there does not arise question of treating the damaged vehicle as constructive total loss and puts the complainant to strict proof of the same & reveals the details of assessment on which the surveyor arrived. Asserting the surveyor opinion the answering respondent justified the liability arrived and in support of justification relied on apex courts judgments. Among such other admissions and denials the answering respondent reveals in detail the nature of the contract and insurance business and bindings of the contracting parties and denied deficiency in service contending that at no point of time the respondent denied the liability but ever ready and willing to pay the amount as assessed by the surveyor and prays for dismissal of the complaint with exorbitant cost.
6. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit and relied on documents. Heard. Perused the records.
Finding on points is as under.
- Affirmative
- Accordingly
- As per order
Reasons
Points 1 and 2
7. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the vehicle in question is covered with the policy risk issued by the respondent to the date of accident. Further there is also no dispute with regard to the fact that the insured vehicle met with the accident and got damaged.
8. Now the question to be determined is, whether the damaged vehicle is fit to be determined constructive total loss and non consideration of CTL by the respondent 2 amounts to a deficiency in service, if so, for what relief the complainant is entitled.
9. On going through the pleadings of both the parties, evidence and argument it is evident that the respondent 2 insurer has not disputed any facts with regard to the claim except to the extent of liability of the insurer. Even respondent 2 contended and it is also the case of the respondent 1 that the respondent 2 is ever ready and even now also ready to pay and to settle the claim in accordance with the surveyor report. At any stretch the respondent.2 not ready to settle the claim by considering the damages as constructive total loss.
10. It is also admitted fact by the respondent.2 that after the accident the accident was informed to the insurer, in turn the respondent insurer deputed its surveyor and the surveyor submitted his report as per Ex.C-10 on 16.06.2014 assessing the loss to an extent of Rs.11,39,641/-. Based on the report the respondent.1 got repaired the damaged insured vehicle at the cost of Rs.5,08,574/- as per invoice Ex.R(1) (2). The cover note issued by the respondent.2 relied by the complainant Ex.C2 reveals the IDV value of the insured vehicle is Rs.5,78,236/-. But for the fun of the instant the respondent.2 in its written version stated, the insured vehicle IDV value is Rs.6,42,485/-. Except saying this figure either complainant or the respondent.2 did not produced the policy bond in question.
11. It is also amazing point to note when new branded car of the model damaged insured vehicle is of value of about Rs.6/- lakhs as submitted by the LC for complainant, how respondent.2 surveyor that too IRDA licensed surveyor assessed the damages as per Ex.C-10 assessing to a tune of Rs.11,39,641/- which is not imaginable why can’t these persons shall not be kept in dock by cancelling the license. Based on the report of these persons the courts are deciding the disputes. Under those circumstances this Forum has to accept Ex.C2 to consider the IDV value and is Rs.5,78,236/-. The invoice value is Rs.5,08,574/- as per Ex.R(1)(2) and the amount is very nearer to the IDV value & the repair charges and is exceeding 75% of the total IDV value. Taking this fact for consideration the learned counsel for complainant drew the attention of this Forum to the Ex.C9 the document belonging to the respondent 2 company Smartdrive- Private car insurance policy/policy wordings and take attention to the column 5 of the said policy wordings under the head “sum insured- insured declared value (IDV)”. Wherein it is specifically mentioned- the insured vehicle will be treated as a CTL if the aggregate cost of retrieval and / or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of IDV of the vehicle.
12. The very prayer of the complainant in the complaint prayer column 14 (a) is a prayer to this Forum to direct the respondent.1 and 2 to treat the damaged vehicle to consider as constructive total loss & to direct the respondent.2 to remit IDV amount. In support of this prayer and also on the averments of the complaint para.4 the learned counsel for complainant argued that though the respondent.2 surveyor submits survey report as per Ex.C-10 assessing the loss to the tune of Rs.11,39,641/- the respondent.2 assuring the claim of constructive total loss will be considered the permission was sought for dismantle the vehicle then only the complainant given consent and accordingly vehicle was dismantled. On the verification and joint discussion by respondent.1 and 2, respondent.1 taken repair works and done repair as per Ex.R (1) (2). Thereafter the respondent.2 without informing to the complainant nor entrusting 2nd survey prepared suemoto repair assessment cum processing sheet as per Ex.R2-(2) without any norms or details admitting the liability only to an extent of Rs.3,04,735/- without any basis. So, it shall not be considered and asserted arguing further when their own policy schedule Ex.C9 clearly mentioned when damaged vehicle will be treated as constructive total loss as such his vehicle and claim will comes within the purview of constructive total loss. In further support of contention and argument of the complainant to treat his claim as constructive total loss the complainant relied on Ex.C-11 & C-12 wherein the said document auction rate is quoted only Rs.1,00,100/- on the damaged insured vehicle. With regard to this either respondent.1 or respondent.2 did not said anything whether it was concerned to them or not, also not made clear. But the learned counsel for complainant submits that the respondent.2 only put it for auction during that time intending purchaser has quoted the said price. By seeing the auction quoted price also it reveals the damaged vehicle is totally scrap.
13. The respondent.2 except showing its readiness for settlement of the claim in accordance with the survey report the respondent.2 did not putforth any document before this Forum how the surveyor arrived to the liability amount as per Ex.R(2) (2) no explanation. Even e-mail correspondence Ex.C17 also reveals the complainant strongly agitate to consider his claim to be constructive total loss. Even otherwise by looking into the survey report Ex.C-10, Invoice Ex.R(1) (2) coupled with Ex.C9 policy schedule. This is a fit case to treat the insured damaged vehicle to be constructive total loss. Accordingly complainant with apulsive and cogent evidence established his case to consider the claim to be constructive total loss and non settlement of the claim by the respondent.2 by considering the claim as constructive total loss amounts to a deficiency in service. Accordingly complainant is entitled for the relief, compensation and cost of the proceedings. As admitted by both the parties this is a case of policy claim on the basis of cashless. Thereby the payment of insured amount shall be made accordingly.
14. In view of the above discussions we have arrived and proceed to held issue.1 and 2 affirmatively and accordingly.
15. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
Order
Complaint is partly allowed. The respondent.2 is directed to pay the invoice Ex.R(1) (2) amount to the respondent.1 along with Rs.3,000/- as compensation towards mental agony and harassment and Rs.2,000/- towards cost of the proceedings to the complainant within 60 days from the date of receipt of copy of this order. Accordingly respondent 1 shall deliver the repaired car in good condition immediately after service of the certified copy of order and to recover the invoice amount from respondent.2 thereafter without delay. In the event of delayed payment by respondent.2 to respondent.1 the respondent.1 is entitled for the interest on the amount @9% P.A. from thereon till realization.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 19th day of October 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
