BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

========

Complt.  Case  No: 559 of 2009

Date of Institution:   22.04.2009

Date of  Decision :   31.05.2010

Vinod Kumar Sehdev s/o Late Sh.Goverdhan Lal, R/o H.No.5109/2, Modern Housing Complex, Manimajra, Chandigarh.

 ……Complainant

V E R S U S

1]       The National Insurance Company, SCO No.57, Sector 26, Chandigarh, through its Manager/Authorized Signatory.

2]          Bhagat Ford, A.B.Moters Private Limited, 19, Industrial Area, Mohali, through its Manager/Authorized Signatory.

3]          Mr.Sohal Agent/Server of the National Insurance Company, C/o SCO No.57, sector 26, Chandigarh through its Manager/Authorized Signatory.

.…..Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     None for the complainant.

Sh.Sandeep Suri, Advocate for OPs No.1 & 3.

None for OP No.2.

PER MADHU MUTNEJA, MEMBER

                This compliant has been filed by Sh.Vinod Kumar Sehdev, complainant under Section 12 of the Consumer Protection Act.  He has prayed that the OPs be directed as under:-

(i)        To release the vehicle to the complainant and insure the car free of cost.

(ii)      To pay Rs.10,00,000/- on account of mental agony, harassment, humiliation and inconvenience and damages.

(iii)     To pay Rs.10,000/- taken by the Opposite Party No.3.

(iv)     To pay Rs.11,000/- as a cost of this litigation.

1]             The complainant had purchased a Ford Fiesta Car bearing Regd. No.CH-03Y-7372.  This car was insured from OP No.1 as per insurance policy at Ann.C-1 from 29.2.2008 to 28.2.2009.  This car met with an accident on 11.5.2008 at Panipat.  According to the complainant, the car was totally damaged in the accident and a complaint was lodged with the Police Post Sector 29, Distt. Panipat (Haryana).  A DDR No.3, dated 11.5.2008 was recorded by the police. 

                Thereafter, the complainant informed OP No.1 regarding the accident.  An official of the company came to the spot and took photographs of the accidented car.  According to the complainant, the official of the OP had said that the car was a total loss and that the complainant would get a claim against the vehicle as a total loss.  The complainant thus took the accidented car to OP No.2 and informed OP No.1 accordingly.

                OP No.1 had deputed OP No.3 for inspection of the accidented car.  The Surveyor inspected the vehicle and informed the complainant that the car would not fall under total loss and if the complainant wishes that the car should fall under total loss, then it was the policy of the company that the complainant would pay a sum of Rs.25,000/- to him as fee.  Accordingly, OP No.3 was paid Rs.10,000/- by the complainant as initial amount to pass the estimate.  However, no receipt was issued to him for the said amount.

                Thereafter the complainant visited OP No.1 where he was informed that as per report of the Surveyor (OP No.3), the car could not be declared as total loss and an estimate for the repair of the car was required from OP No.2.  When the complainant informed the Manager about the demand of Rs.25,000/- by OP No.3, the Manager told the complainant that there was no such policy of the company. 

                It needs to be mentioned here that OP No.2 had given an estimate bill as per Ann.C-3 and a further supplementary estimate as per Ann.C-4 to the complainant.  These estimates were forwarded by the complainant to OP No.1.  The complainant has alleged that in March, 2009 OP No.2 had got certain blank documents signed from him which also included the satisfaction/discharge note, which is at Ann.C-6. OP No.2 has also told the complainant that the vehicle would be ready in 10 days.  However, the complainant has still not got back his vehicle till the time of filing of the complaint.

                OP No.1 had passed the claim of the complainant as per letter issued to OP No.2 at Ann.C-5.  The letter is reproduced as under:-

                “D/Sir,

With reference to above our Competent authority approved the claim for Rs.2,44,260/-.  As soon as we received funds against this case, we issued the cheque in your favour.”

                Not able to receive his car or insured amount thereon, the complainant has filed instant complaint seeking redressal of his complaint against all the OPs for deficiency in service and has prayed for directions as already mentioned above.

2]             After admission of the complaint, notices were sent to all three parties.

3]             OP No.1 in its reply has admitted that the car of the complainant was insured with them for the period mentioned above.  When the car met with an accident they had deputed a Surveyor to assess the loss.  The complainant was also directed to supply estimate for repair for the said vehicle.  The Surveyor had inspected the vehicle and given his report.  The OP No.1 has stated that the complainant remained silent for more than 6 months for the reasons best known to him.  They have admitted that the complainant had not only given them an estimate as per Ann.C-3 mentioned above but also a supplementary estimate as Ann.R-4.  However, the loss could be assessed only as per the report of the Surveyor.  The Surveyor had issued his report dated 29.1.2009 as per Ann.R-5 and had allowed a sum of Rs.2,54,116.36Ps. as assessed loss.  After deducting Rs.7500/- as Salvage Value, they had made payment to OP No.2 for an amount of Rs.2,44,620/- on in full and final settlement of the claim under the policy.  Calculation of claim has been shown at Annexure R-9.

                OP No.2 had also issued a receipt to them, which has been placed at Ann.R-10.  All claims of the complainant with regard to any amount paid to the Surveyor are baseless.  They have prayed that after this payment, the complainant is not entitled to any further relief from them.

4]             OP No.2 have repaired the car of the complainant after preparing its estimate.  In the reply filed by them they have submitted that the complainant came to them for repair of his car which was completely damaged in an accident and they have prepared an estimate for the repair of his car.  They had informed the complainant many times that his total bill amounting to Rs.1,56,259/- (Rs.1,20,259/- for the repair plus parking charges @Rs.200/- per day from 1.10.2008 to 2.4.2009 i.e. total Rs.36,000/-) was pending.  He was asked to pay the outstanding amount of the bill for repairs and pick-up the car. The copy of said intimation letter dated 2.4.2009 is at Ann.R-1 of their reply.

                Since the complainant had not paid his dues, he has not been able to collect his car from them.  They have admitted that they had prepared an estimate of Rs.6,79,148/- for repair of the damaged car.  However, they have denied that they have taken any signature on any blank papers from the complainant.  It is very important to mention here that they have not made any reference to the receipt signed by them at Ann.R-10 on receiving Rs.2,44,620/- from OP No.1 on 24.3.2009.  How could they demand payment a second time is best known to them.

                Keeping in view the submissions made, OP No.2 has prayed that the complaint filed against them be dismissed with costs and the complainant be made liable for the default of outstanding bills payable to them.

5]             OP No.3, who is the Surveyor of the car, has submitted in his reply that he was only the Surveyor appointed by OP No.1 to make an estimate of loss of the car by the complainant, which was damaged in an accident.  The Motor Surveyor Report, dated 29.1.2009 was issued by him without prejudice in respect of any cause, nature and extent of loss/damage and subject to the terms & conditions of the insurance policy upon which the claim had been made.  The story pertaining to the alleged demand of Rs.25,000/- from the complainant, and payment of Rs.10,000/- by the complainant to OP No.3 is false and baseless.

                The vehicle in question is lying at the premises of OP No.2 due to the fault of the complainant himself since he has failed to collect it from the workshop.

6]             We have heard the learned counsels for OPs No.1 and 3 and perused the evidence led by all parties in support of their contentions.  At the time of arguments, the ld.Counsel for the complainant as well as OP No.2 were not present.  However, since the case has been adjourned many times for arguments, we decide to proceed and dispose of this complaint on merits under rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in absence of OP No.2 and complainant.

7]             From the facts of the case, it is evident that OP No.1 has made payment of the claim against the damaged car to Op No.2 as per Survey report of OP No.3.  OP No.2 in their reply have stated that they raised a bill of Rs.1,56,259/-.  This amount included Rs.1,20,259/- for the repair  and the rest was parking charges @Rs.200/- per day from 1.10.2008 to 2.4.2009.  This charge is probably still continuing since the car has yet not been collected from them.  OP No.1 has already made payment of Rs.2,44,620/-, which is far more than the bill raised by OP No.2.  In these circumstances, it is evident that there is no deficiency on the part of either of OP NO.1 or OP No.3.  Deficiency, if any, is on the part of OP No.2. 

8]             OP No.2 has not returned the repaired car back to the complainant.  Also OP No.2 has received money in excess from OP No.1.  This extra amount should be returned back to OP No.1 since they cannot keep the amount beyond the bills raised by them. 

9]             In view of the above, this complaint is allowed with the following directions:-

i)         OP No.2 shall handover the repaired car back to the complainant immediately.

ii)        OP No.2 shall not charge any parking charges from the complainant as they have already been paid in excess on 24.3.2009 than the bill raised by them.  The delay, if any, in clearance of claim by OP No.1 may be because of the initial inflated assessment of repair prepared by OP No.2.  This fact is clear from estimate of Rs.6,79,148/- as per Ann.C-3 and the actual bill of repair of Rs.1,20,259/- at Ann.R-1.

iii)       OP No.2 must return to OP No.1 the excess amount received by them against their bill of Rs.1,20,259/-.

iv)      OP No.2 will also pay compensation of Rs.20,000/- to the complainant.

10]            This order be complied with within 15 days from the date of receipt of its certified copy, failing which the OP No.2 shall be liable to pay the amount stated above and payable to complainant as well as OP No.1 with an interest @12% per annum from the date of filing of complaint till the date of actual payment.

11]            In case the car is not handed over to the complainant by OP No.2 within 15 days, as stated above, they shall further pay Rs.1000/- per day to the complainant for each day of delay.

12]            Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

31.05.2010                                                                      Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                          Sd/-

(MADHU MUTNEJA)

MEMBER

‘Om’