Order dictated by:
Sh.Anoop Sharma, Presiding Member
1 Ms. Kajalpreet Kaur has brought the instant complaint u/s 11, 12 & 13 of the Consumer Protection Act, 1986 against the opposite parties on the allegations that complainant purchased one Maruti Swift Vdi car bearing registration No. PB CU 9298 from Mrs. Parminder Kaur wife of Vishveshwar Singh resident of H.No. 2-3, Kanwar Avenue, Amritsar on 11.3.2016. Mrs. Parminder Kaur purchased this vehicle from Jay Cee Motors, opposite party No.4 on 10.12.2015. The aforesaid vehicle got insured by Parminder Kaur from National Insurance Co.i.e. opposite party No.1 vide policy No. 35101031156137642569 commencing from 10.12.2015 to 9.12.2016. As per the terms and conditions of this policy, this policy is Nil depreciation policy. It was also assured by the agent of opposite party No.1 that as per terms and conditions of the policy, if they got any claim in case of any damage or loss occurred to the vehicle, they are only eligible to pay Rs. 1000/- as compulsory deduction and nothing more is required to be paid by the owner of the vehicle. After purchase of the aforesaid car from Parminder Kaur, complainant got transferred the RC of the vehicle and also same Insurance policy of the vehicle in her own name on the same day i.e. 11.3.2016 thereby paying the endorsement charges and got endorsed in her own name vide endorsement No. 35101031156137642569/1132016/1 dated 11.3.2016 of the policy bearing No. 35101031156137642569. At the time of endorsement/transfer of the policy in the name of the complainant, the agent of the opposite party No.1 stated that this is Nil depreciation policy , according to which the complainant is also entitled to pay only Rs. 1000/- towards compulsory deduction. As per the version of the agent, the terms and conditions of the Insurance policy remain same which is previously with previous owner of the vehicle and between the company. According to the agent only name of the vehicle/owner is changed but all other terms and conditions remain same of previous policy. On 28.4.2016 unfortunately the vehicle met with an accident with a truck due to which left side of the vehicle damaged which includes doors of the vehicle , side mirror etc. Complainant immediately informed the Insurance company, who sent one surveyor on the spot , who advised the complainant to get her vehicle to opposite party No.4. Complainant immediately brought the vehicle to opposite party No.4 but due to heavy rush in the aforesaid workshop of opposite party No.4, the surveyor and opposite party No.4 advised the complainant to come on 4.5.2016. But on 4.5.2016 again they showed their inability to get repair vehicle of the complainant due to heavy rush and advised the complainant to get repair the vehicle from opposite party No.5. On 4.5.2016 complainant went to opposite party No.5, where Mr.Ashwani Mittal surveyor came to see the condition fo the complainant and prepared estimate of loss . Said surveyor assured the complainant that she needs not to pay any money more than compulsory deduction of Rs. 1000/- as per terms and conditions of the policy because policy falls under Nil depreciation policy and the complainant handed over the vehicle to opposite party No.5. However, on the same day when complainant reached her home, she received SMS on her mobile from Maruti Insurance i.e. opposite party No.3 that one claim of the complainant is admitted and complainant has left one claim more according to Insurance policy. The complainant made telephonic call to opposite party No.5, who told that surveyor of opposite party No.1 told them that this vehicle is not covered under the Nil depreciation policy. On 6.5.2016 complainant went to workshop of opposite party No.5 and she was surprised when opposite party No.5 told her that she should pay bill of the repair as according to normal policy because the policy is not covered under Nil depreciation policy. Then complainant immediately met with opposite party No.2, but they flatly refused to listen the genuine request of the complainant . Complainant also contacted the higher officials of opposite parties No.1 & 3, but to no avail. Then on 7.5.2016 complainant went to opposite party No.5 for getting her vehicle , who showed the repair bill of the vehicle and the complainant has to pay Rs. 6485/- + compulsory deduction i.e. Rs. 1000/- to them. According to them the policy of the complainant is not covered under Nil depreciation policy as per the version of surveyor and opposite party No.2. On 8.5.2016 complainant got her vehicle after paying Rs. 1000/- as compulsory deductions and also gave undertaking that if her policy is not covered under Nil depreciation then she will pay the whole of the amount of the bill. However, till date inspite of various communications and also personal requests made by the complainant from time to time, no final decision conveyed to the complainant . If the policy was not covered under Nil depreciation policy, then it was the fault on the part of the opposite parties at the time of endorsement of transferring the Insurance policy in her name and it was never disclosed to complainant that this is not under Nil depreciation policy. Rather, on the contrary agent of opposite parties assured the complainant that previous policy remain continue and terms and conditions of the previous policy which is under Nil depreciation remain continue after the transfer of the policy in the name of the complainant. The complainant vide instant complaint has sought for the following reliefs:-
(a) Opposite parties be directed to pay compensation to the tune of Rs. 2,00,000/- for causing lot of mental pain, agony and hardship to the complainant ;
(b) Opposite parties be also directed to recall the bill of Rs. 6485/- ;
( c) Complainant be also awarded adequate litigation expenses.
Hence, this complaint.
2. Upon notice opposite parties No.1,2 ,3 & 5 appeared and filed separate written versions. Whereas opposite party No.4 did not opt to put appearance despite service, as such it was ordered to be proceeded against ex-parte.
3. Opposite parties No.1 & 2 in their written version have submitted that complainant has purchased the Maruti Swift Car bearing registration No. PB-02-CU-9298 from Mrs.Parminder Kaur alongwith Insurance policy. The case of the complainant is that as the said policy was with benefit of Nil depreciation, therefore, same benefit also passed on her.However, this preposition is not correct one because as per agreed clause in the said policy, it has been clearly agreed that the benefit of Nil depreciation is only available to the original owner and as soon as he/she sells the vehicle to some other person, Add on Coverage under Zero depreciation will expire and thereafter the claim is to be decided as per normal comprehensive policy of the vehicle. The case of the complainant is that after purchase of vehicle, the insured vehicle met with an accident and the left side of the said vehicle damaged including doors of the vehicle , side mirrors etc. On intimation to the Insu. Co., surveyor visited the spot and informed that she should get the vehicle dismantled with the concerned repairer and finally the complainant got the vehicle repaired from opposite party No.5, who demanded the payment from the insured for bills of repair as per normal policy on the ground that the said policy is not covered under Nil depreciation policy. The said demand was perfectly correct because the benefit of Zero depreciation stands expired in case the original owner sold the vehicle to other person. However, complainant remained adamant only to pay Rs. 1000/- being compulsory deduction and did not agree to pay Rs. 6485/- on account of depreciation . The plea of the complainant that she was explained by the agent of opposite party No.1 that she will also get same benefit of Nil depreciation is totally wrong and denied. While denying and controverting other allegations, dismissal of complaint was prayed.
4. Opposite party No.3 in its written version has submitted that the Insurance policy which is the subject matter of the dispute has been issued by National Insurance Company Limited in lieu of the premium they had received and the endorsement on that policy on account of transfer of ownership of the vehicle has also been effected by them. The answering opposite party has no role to play in the instant case and the name of answering opposite party is liable to be deleted from the array of parties on their ground alone. The answering opposite party is a mere facilitator of Insurance who is licensed with The Insurance Regulatory and Development Authority of India and its role is to apprise the customers about the features and benefits of various motor insurance policies of the Insurance companies. Thereafter the role of the answering opposite party ends and the customer buys insurance as per their own will and volition . While denying and controverting other allegations, dismissal of complaint was prayed.
5. Opposite party No.5 in its written version has submitted that the present complaint is not legally maintainable against the replying opposite party as no cause of action has arisen in favour of the complainant to file the present complaint against the replying opposite party No.5. The complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. The real facts are that neither the vehicle in question was delivered by replying opposite party to the complainant nor the policy was issued through the replying opposite party nor any terms and conditions were explained by the representative of opposite party to the complainant. The complainant approached the opposite party for the repair of the vehicle on 4.5.2016 for which estimate was prepared by the opposite party and a surveyor namely Ashwani Mittal was appointed, but later on insurance company refused to pay the claim to the claimant, as such necessary intimation was given to the complainant and thereafter the complainant himself approached the opposite party for the repair of the vehicle and he agreed to pay the requisite charges of repair . As such on the assurance of the complainant that he will pay the necessary charges of the repair, replying opposite party repaired the vehicle to the satisfaction of the complainant and delivered the said to the complainant as the complainant has paid all the requisite charges of repair to the opposite party. While denying and controverting other allegations, dismissal of complaint was prayed.
6. In her bid to prove the case complainant tendered into evidence her duly sworn affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-7 and closed the evidence .
7. Opposite party No.3 tendered into evidence affidavit of Sh.Surendra Srivastava, CEO Ex.OP3/1 and closed the evidence.
8. Opposite parties No.1 & 2 tendered into evidence affidavit of Sh. Harish Anand, Sr.Divisional Manager Ex.OP1,2/1 alongwith documents Ex.OP1,2/2 to Ex.OP1,2/7 and closed the evidence.
9. Opposite party No.5 tendered into evidence affidavit of Sh.Sanjay Guleria, Representative of opposite party No.5 Ex.OP5/1 alongwith documents Ex.OP5/2 to Ex.OP5/5 and closed the evidence.
10. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of complainant as well as opposite parties No.1,2,3 & 5.
11. Ld.counsel for the complainant has vehemently contended that complainant purchased one Maruti Swift Vdi car bearing registration No. PB-02-CU-9298 from Mrs. Parminder Kaur on 11.3.2016 alongwith the Insurance Policy. Mrs. Parminder Kaur purchased this vehicle from Jay Cee Motors, opposite party No.4 on 10.12.2015 and got the same insured from National Insurance Co.i.e. opposite party No.1 vide policy No. 35101031156137642569 commencing from 10.12.2015 to 9.12.2016. As per the terms and conditions of this policy, this policy is Nil depreciation policy. It was also assured by the agent of opposite party No.1 that as per terms and conditions of the policy, if they got any claim in case of any damage or loss occurred to the vehicle, they are only eligible to pay Rs. 1000/- as compulsory deduction and nothing more is required to be paid by the owner of the vehicle. After purchase of the aforesaid car from Parminder Kaur, complainant got transferred the RC of the vehicle and also same Insurance policy of the vehicle in her own name on the same day i.e. 11.3.2016 thereby paying the endorsement charges and got endorsed in her own name vide endorsement No. 35101031156137642569/1132016/1 dated 11.3.2016 of the policy bearing No. 35101031156137642569. Even at the time of endorsement/transfer of the policy in the name of the complainant, the agent of the opposite party No.1 stated that this is Nil depreciation policy according to which the complainant is also entitled to pay only Rs. 1000/- towards compulsory deduction and she needs not to pay even a single penny more in case she get claim from the company in case of any damages or accident to the aforesaid vehicle. As per the version of the agent, the terms and conditions of the Insurance policy remain same which is previously with previous owner of the vehicle and between the company. According to the agent only name of the vehicle/owner is changed but all other terms and conditions remain same of previous policy. It has been alleged by the complainant that on 28.4.2016 unfortunately the vehicle met with an accident with a truck due to which left side of the vehicle damaged which includes doors of the vehicle , side mirror etc. Complainant immediately informed the Insurance company, who sent one surveyor on the spot , who advised the complainant to get her vehicle to opposite party No.4. Complainant immediately brought the vehicle to opposite party No.4 but due to heavy rush in the aforesaid workshop of opposite party No.4, the surveyor and opposite party No.4 advised the complainant to come on 4.5.2016. But on 4.5.2016 again they showed their inability to get repair vehicle of the complainant due to heavy rush and advised the complainant to get repair the vehicle from opposite party No.5. On 4.5.2016 complainant went to opposite party No.5, where Mr.Ashwani Mittal surveyor came to see the condition of the vehicle of the complainant and prepared estimate of loss . Said surveyor assured the complainant that she needs not to pay any money more than compulsory deduction of Rs. 1000/- as per terms and conditions of the policy because policy falls under Nil depreciation policy and the complainant handed over the vehicle to opposite party No.5. However, on the same day when complainant reached her home, she received SMS on her mobile from Maruti Insurance i.e. opposite party No.3 that one claim of the complainant is admitted and complainant has left one claim more according to Insurance policy. The complainant made telephonic call to opposite party No.5, who told that surveyor of opposite party No.1 told them that this vehicle is not covered under the Nil depreciation policy. On 6.5.2016 complainant went to workshop of opposite party No.5 and she was surprised when opposite party No.5 told her that she should pay bill of the repair as according to normal policy because the policy is not covered under Nil depreciation policy. Then complainant immediately met with opposite party No.2, but they flatly refused to listen the genuine request of the complainant . Complainant also contacted the higher officials of opposite parties No.1 & 3, but to no avail. Then on 7.5.2016 complainant went to opposite party No.5 for getting her vehicle , who showed the repair bill of the vehicle and the complainant has to pay Rs. 6485/- + compulsory deduction i.e. Rs. 1000/- to them. According to them the policy of the complainant is not covered under Nil depreciation policy as per the version of surveyor and opposite party No.2. Finally on 8.5.2016 complainant got her vehicle from the workshop of opposite party No.5 after giving undertaking that if Insurance company not covered the vehicle under Nil depreciation, then she will pay whole amount of the bill to the opposite party No.5. It has been alleged by the complainant that due to the act of the opposite parties, complainant has to suffer mental pain, harassment at the hands of the opposite parties .
12. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complaint filed by the complainant does not disclose any deficiency in service or unfair trade practice on the part of the opposite parties. The contention of the complainant that she has purchased the vehicle from one Mrs. Parminder Kaur, who was enjoying the benefit of Nil depreciation in the said policy, therefore, the same benefit also gets transferred to her being purchaser and the policy has been transferred in her name. But this plea taken by the complainant is not legally maintainable because in the original policy which was issued in the name of Mrs. Parminder Kaur, it has been clearly agreed under the head Nil depreciation that the said benefit is only applicable to the original insured and i.e. too only for two claims. However, once the vehicle is transferred with the said policy, the said clause ceases and is not available to the purchaser of the vehicle , rather the purchaser is governed under the Normal Package Policy.In this regard opposite parties No.1 & 2 have placed on record copy of certificate cum policy schedule Ex.OP1,2/7 which includes terms and conditions of the policy and under head “Nil depreciation” ,it has specifically been mentioned that in the event of transfer of ownership, the cover shall cease. The complainant in his complaint has not taken any plea that she has not received the terms and conditions of the policy at the time of endorsement /transfer of vehicle alongwith policy in her own name. Rather , it was the case of the complainant that the agent of the opposite parties told that the terms and conditions of the Insurance policy remain same which was previously with previous owner of the vehicle . So the terms and conditions of the policy are well within the knowledge of the complainant. Terms and conditions of the insurance policy are binding inter-se parties. Reference in this regard can be made to Supreme Court authority titled as M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co.& Ltd and another respondents 2010(IV) RCR (Civil) 845 wherein it has been held that in a contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has been further held in this judgement that the words used therein must be given paramount importance and it is not open for the court to add, delete or substitute any words. It has been further held by the Hon’ble Supreme Court of India in this judgement that where there is breach of condition of Insurance contract by the insured, the Insurance company was not liable to pay compensation in case of loss. Further reliance can be placed on M/s. V.K.Kariyana Store Vs. The Oriental Insurance Co.Ltd & Others 2014(3) CLT page 47 (NC) wherein it has been laid down that it is well settled principle of law that parties are bound by the terms and conditions of the Insurance policy and none of the parties can seek any relief beyond those terms and conditions.
13. The complainant cannot wriggle out from the terms and conditions of the Insurance policy in dispute. There is absolutely no deficiency of service or use of unfair trade practice on the part of the opposite parties, in issuing insurance policies in dispute. Instant complaint is nothing but an abuse of process of law. As such, instant complaint fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 10.4.2017
