DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.300 of 29-07-2013

Decided on 28-11-2013

Swastik Educational Charitable Trust, St.No.9 B, Ajit Road, Bathinda, through its Authorized person/Chairman Amit Jindal S/o Krishan Jindal.

........Complainant

Versus

National Insurance Company Ltd., Divisional Office, The Mall, Bathinda, through its Senior Divisional Manager.

.......Opposite party

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt.Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Shanky Jindal, counsel for the complainant.

For Opposite party: Sh.Vinod Garg, counsel for opposite party.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The instant complaint has been filed under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act') by the complainant. The brief facts of the complaint are that the complainant is a charitable trust, duly registered with the Registrar of Firms, Punjab, having its work place and registered office at Bathinda. Mr.Amit Jindal S/o Krishan Jindal R/o Bathinda is the authorized person to file the present complaint being the Chairman of the trust and to do all necessary works in this regard and has duly been authorized by the trust in its meeting held on 26.7.2013 to sue on behalf of the trust to file suit/complaint and engage counsel etc. The complainant is/was the owner of the car Maruti Ertiga VDI BS IV, purchased vide invoice dated 28.4.2012 for the private use and the same is registered with the Transport Authority, Bathinda with registration No.PB-03F-9595 and was comprehensively insured with the opposite party vide insurance policy bearing No.35101031126130157003, valid from 27.4.2012 to 26.4.2013. The car in question met with an accident on 12.7.2012 near village Singo, Tehsil Talwandi Sabo, Distt. Bathinda and was totally damaged and DDR No.28 dated 19.7.2012 was lodged with the police at PS Talwandi Sabo, District Bathinda. An intimation regarding the accident was given to the opposite party. On the directions of the opposite party, the car in question was shifted with the help of Crane to M/s Tara Automobiles, Bathinda and the complainant had incurred Rs.4500/- to shift the same. The opposite party appointed the surveyor and assessed the loss as total loss. The opposite party assured the complainant that the due payment of loss suffered shall be made without any delay. The surveyor of the opposite party took the signatures of the complainant on various papers for making the payment of his claim. The complainant has completed all the formalities as required by the surveyor/opposite party. The opposite party has not made any payment to the complainant, rather it is delaying the payment on one or the other pretext. The opposite party is pressurizing the complainant to accept the total loss by deducting Rs.3 lacs as the value of salvage. Actually, the salvage value of the car in question is much less than Rs.3 lacs. The opposite party is required to make the payment of the full insurance amount i.e. IDV of the car in question to the complainant and dispose off the salvage at its own end. The complainant further alleged that the opposite party has failed to make the due payment of the loss till date, rather vide letter dated 20.2.2013, the surveyor informed him that the regional office at Chandigarh has given the approval for the mode of settlement on cash loss under net of salvage basis and the value of the damaged car, as such the accidental condition with R/C for Rs.3 lacs only to be retained by the complainant. The opposite party never issued any terms and conditions of the abovesaid policy to the complainant. The complainant has paid parking charges @ Rs.150/- per day as per letter dated 8.12.2012, sent by M/s Tara Automobiles, Bathinda. The complainant visited number of times to the opposite party and requested it to make the payment of the due claim amount but the opposite party flatly refused to adhere to his requests. Hence the complainant has filed the present complaint to seek the directions to the opposite party to pay the loss/claim amount of Rs.7,63,504/- alongwith interest; Rs.4500/- as shifting charges and Rs.150/- per day from the date of accident till date of payment as parking charges besides cost and compensation.

2. The opposite party after appearing before this Forum has filed its written statement and pleaded that the complainant has concealed the fact from this Forum that the opposite party has already processed the claim on cash loss under net of salvage basis to the tune of Rs.4,62,000/-, which is being processed and paid on the basis of the final/interim report of the surveyor Mr.Chander Shekhar. The opposite party is not pressurizing the complainant to keep the salvage with RC to the tune of Rs.3 lacs, rather the value of the salvage is Rs.3 lacs as per the report of the surveyor and the complainant had also agreed to keep the salvage to the tune of Rs.3 lacs. Thus there is no deficiency in service on the part of the opposite party.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. Admitted facts of the parties are that the abovesaid car of the complainant was comprehensively insured with the opposite party vide insurance policy bearing No.35101031126130157003, valid from 27.4.2012 to 26.4.2013. The car in question met with an accident on 12.7.2012 and DDR No.28 dated 19.7.2012 was lodged with the police at PS Talwandi Sabo, District Bathinda.

6. On dated 8.10.2013, the counsel of the complainant has received the cheque bearing No.002420 dated 1.10.2013 for Rs.4,62,000/- in the name of Swastik Education Charitable Trust as a part payment against this complaint from the opposite party under protest.

7. The disputed facts are that the complainant submitted that he has lodged the claim with the opposite party and has completed all the formalities as required by the surveyor/opposite party. On receiving the intimation from the complainant regarding the accident, the opposite party appointed the surveyor, he has taken the signatures of the complainant to settle his claim. The opposite party is pressurizing the complainant to accept the total loss by deducting Rs.3 lacs as the value of salvage. Actually, the salvage value of the car in question is much less than Rs.3 lacs. The opposite party is required to make the payment of the full insurance amount i.e. IDV of the car in question to the complainant and dispose off the salvage at its own end. The complainant has received the letter dated 20.2.2013, in this letter, the surveyor informed him that the regional office at Chandigarh has given the principle approval for the mode of settlement on cash loss, under net of salvage basis and the value of the damaged car, as such the accidental condition with R/C for Rs.3 lacs only to be retained by the complainant. The complainant further submitted that the opposite party has unnecessarily deducted the amount of Rs.3 lacs out of the claim amount on the pretext of value of salvage by inflating the value of salvage. The complainant has paid parking charges @ Rs.150/- per day as per letter dated 8.12.2012 and the damaged vehicle is still lying parked with M/s Tara Automobiles, Bathinda. The car in question was shifted with the help of Crane to M/s Tara Automobiles, Bathinda and the complainant had incurred Rs.4500/- to shift the same.

8. On the other hand the submission of the opposite party is that it has already settled the claim on cash loss net of salvage basis to the tune of Rs.4,62,000/- on the basis of survey report of the surveyor, Ex.OP1/1, which is duly supported with the affidavit of the surveyor, Ex.OP1/13. The complainant had agreed to keep the salvage to the tune of Rs.3 lacs and the value of salvage was worked out to the tune of Rs.3 lacs after thorough enquiries and conformations in an around the local market. The amount of Rs.4,62,000/- has been paid to the complainant vide cheque, Ex.C12 that has duly been received by him on 8.10.2013. The surveyor has sent the letter dated 20.2.2013 to the complainant vide Ex.C10, but he never refused to keep the salvage of Rs.3 lacs. No parking charges are payable as per terms and conditions of the abovesaid policy and the complainant is estopped from claiming any such amount after the receipt of the letter dated 20.2.2013, Ex.C10 at this stage. The opposite party further submitted that if this Forum comes to the conclusion that the complainant is entitled to claim on the basis of the total loss i.e. Rs.7,62,504/- less Rs.4,62,000/- already paid, only in that case he may be directed to deposit the salvage at his own cost with the opposite party and also to handover the R.C. with ownership thereof transfer in favour of the opposite party before the said payment is made to him.

9. As per the prayer clause of the complaint, the complainant has sought the claim amount of Rs.7,62,504/- alongwith interest; Rs.4500/- as shifting charges of the abovesaid vehicle and Rs.150/- per day as parking charges from the date of accident till the date of payment.

10. The complainant has received the payment of Rs.4,62,000/- during the pendency of this complaint on dated 8.10.2013 vide cheque bearing No.002420 dated 1.10.2013 in the name of Swastik Education Charitable Trust as a part payment. As the complainant has received this part payment during the pendency of this complaint, he has vehemently argued that he is entitled for the interest on account of the delay in making the part payment of Rs.4,62,000/- and also entitled to get the amount of Rs.3 lacs.

11. Considering the abovesaid vehicle as total loss, the opposite party has settled the claim of the complainant to the tune of Rs.7,62,504/-. As per Ex.OP1/1, Clause E, on total loss basis:-Less maximum expected salvage value of the vehicle in question worked out after thorough enquiries and confirmation in and around the local market in case to be disposed of shortly by the way of tendering i.e. ± 5%, Rs.2,60,000/-. As per Clause F, loss on cash loss under net of salvage basis:-Less maximum retainable salvage value worked out after thorough enquiries and confirmations in and around the local market, Rs.3,00,504. After deducting the salvage value to the tune of Rs.3 lacs, the opposite party has paid Rs.4,62,000/- to the complainant. In Ex.OP1/1, Para No.12 of the Conclusion, it has been mentioned by the surveyor:-

“12) Conclusion:-On going through the details of mode of settlement on 'Repair basis', 'Total loss basis' and 'Cash loss under net of Savage basis' and studying the relevant aspect in every individual case. The most appropriate settlement would be on 'Cash loss under Net of Salvage basis' for Rs.4,62,000/- only which is the maximum liability of the Insurers under the scope of the terms and conditions of the issued policy. Therefore, in my opinion, the settlement on 'Cash loss under net of salvage basis with R/C' recommended for Rs.4,62,000/- or on total loss basis with R/C for Rs.7,62,504/- only, (in case of Total loss settlement opinion, the R/C to be got transferred into the name of the Insurers and salvaged vehicle to be retained before full and final settlement) stands to be the most appropriate and economical for the Insurers as well as Insured, subjecting to the compilation and completion of the pending documents, if any, proven genuineness of the documents submitted by the Insured, terms and conditions of the issued and effective Insurance Policy, before full and final settlement/disposal of the file.”

As per Clause 13.5 Salvage:-The same has been deducted while adjusting the loss under the respective Head of liability for all modes of settlement.

12. The opposite party has assessed the salvage value of the abovesaid vehicle to the tune of Rs.3 lacs after verifying the market value and during the pendency of this complaint, on 8.10.2013, the opposite party has paid the amount of Rs.4,62,000/- after deducting the amount of Rs.3 lacs to the complainant. The complainant never gave the consent that the salvage value to the tune of Rs.3 lacs be deducted from the IDV of the abovesaid vehicle or he ever agreed to keep the salvage with him. Moreover the opposite party has failed to place on file any consent letter or any quotation from the market through which the value of the abovesaid vehicle has been assessed as Rs.3 lacs (in salvage). Mr.Chander Shekhar, Surveyor, Loss Assessor, Investigator and Valuer had written a letter dated 20.2.2013 i.e. Reminder-IV & Last, to the complainant vide Ref. No.CSK/NI/R/I/CH/D/BTI/MI/285213, Ex.C10. The relevant portion of this letter, Ex.C10 is reproduced:-

“Further, it was brought into your notice on 14.2.2013 and 19.2.2013 telephonically that the competent authority at Regional Office-I Chandigarh have given the principle approval for the mode of settlement on cash loss under net of salvage basis and the value of the damaged car in its as such the accidental condition with R/C for Rs.3 lacs only to be retained by you, rest of amount/payment after deducting the value of the said car and policy clause would be released by the Insurers, subjecting to the compilation and completion of the pending documents, if any, proven genuineness of the documents submitted by the Insured, terms and conditions of the Insurance Policy.”

The opposite party has submitted that many reminders have been sent to the complainant and he agreed to keep the salvage and no protest has been raised by him for the same, but no postal receipt of the reminder-I, II and III are placed on file by the opposite party to show that these reminders were ever sent to the complainant by it.

13. At the cost of repetition a perusal of entire file shows that no 'consent' was ever given by the complainant to the opposite party to keep the salvage with him.

Thus in view of what has been discussed above we are of the considered opinion that as no consent was given by the complainant to keep the salvage by him. The opposite party will keep the salvage and pay the balance amount of Rs.3 lacs, the amount of Rs.4,62,000/- has already been paid during the pendency of this complaint out of the IDV of the vehicle. The complainant is not entitled for the parking charges as Rs.150/- per day as these are on the exorbitant side. The complainant has claimed Rs.4500/- as shifting charges. The receipt, Ex.C2 has been produced on file by the complainant to this effect.

14. The amount of Rs.4,62,000/- has already been paid during the pendency of this complaint on dated 8.10.2013, whereas the abovesaid car has met with an accident on dated 12.7.2012, hence the opposite party has paid the amount of Rs.4,62,000/- after the delay of more than one year from the date of accident, whereas the claim is to be settled and paid within the period of 3 months from the accident. The value of the salvage to the tune of Rs.3 lacs has been deducted by the opposite party without seeking any consent of the complainant, thus he is entitled to get this amount and also entitled to get the shifting charges to the tune of Rs.4500/-, Ex.C7 and some amount on the account of parking charges.

15. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite party. Hence this complaint is accepted with Rs.5000/- as cost and Rs.20,000/- as compensation including the amount of parking charges against the opposite party. The opposite party is directed to pay the amount of Rs.3 lacs alongwith interest @ 9% per annum since 12.10.2012 (the date calculated on expiry of three months from the date of accident of vehicle i.e. a period required for processing the claim in an effective manner in a normal course); Rs.4500/- as shifting charges and interest @ 9% per annum on the amount of Rs.4,62,000/- after 90 days of the accident till payment i.e. on 8.10.2013 to the complainant and at the same time he will deposit the salvage to the opposite party at his own cost and will sign the letter of sabrogation alongwith other documents which are required for the transfer of the ownership of the vehicle in question in the name of insurance company.

16. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

17. In case of non-compliance, the interest @ 9% per annum will further yield on the amount of Rs.3,04,500/- plus interest till realization.

18. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

28-11-2013

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member