BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.687 of 2010/ 26/2015

Date of Instt. 1.11.2010/ 28.01.2015

Date of Decision :23.02.2015

Jagdeep Sharma son of N.N.Sharma R/o 61, Ground Floor, H.I.G.Flats, Guru Gobind Singh Avenue, G.T.Road, Bye Pass, Jalandhar-144009.

..........Complainant

Versus

1. National Insurance Company Limited, Divisional Office No.2, GT Road, Near BMC Chowk, Jalandhar City-144001 through its Senior Divisional Manager.

2. National Insurance Company Limited, Divisional Office, GT Road, Moga-142001 through its Divisional Manager.

3. NS Dhillon, Engineer Consultant Surveyor and Loss Assessor H.185, Bhai Ranjit Singh Nagar, Ludhiana-141001.

4. Piara Singh Surveyor and Loss Assessor, Dosanjh Road, near Bhai Jaito Gurdwara, Moga-142001.

5. Satnam Singh son of Maninder Singh Proprietor M/s Auto Care Centre, Opposite GT Road, Moga-142001.

6. Life Insurance Corporation of India, Divisional Office "Jeevan Parkash", Model Town Road, Jalandhar through its Senior Divisional Manager.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.KC Malhotra Adv., counsel for complainant.

Sh.AK Arora Adv., counsel for opposite parties No.1 &2.

Sh.RS Arora Adv., counsel for opposite party No.6.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that complainant is an officer in LIC. He purchased a new Maruti Esteem VX-1 Car on 22.11.2006 financed by LIC under its scheme and later on converted to administrative scheme on 17.5.2008 for granting advance with interest to officers towards four wheeler on principal and interest payable in equated monthly installments. The car was bearing registration No.PB-08AY-4003. It was insured with opposite party No.1 as private vehicle for the period 22.11.2009 to 21.11.2010 before accident. Opposite party No.1 issued certificate-cum-policy schedule to complainant covering risk for the accident loss and damage and liability for third party risk. Opposite party No.1 had agreed and undertaken to indemnify insured against any loss or damage to the insured vehicle occurring during the period of insurance and additional risk for personal accident cover for owner-driver. Policy document has not been issued by opposite party No.1 to the complainant throughout the period of insurance by renewal though it was mandatory and obligatory for opposite party No.1 to have issued policy document which express contract of insurance between insurer and insured. The non supplying/issuing policy to the insured either at the time of issuing cover note or within few days thereafter amounts to deficiency in service on the part of insurance company and terms and conditions and exclusion clause can not be enforced against complainant. The car met within an accident on 22.2.2010 at about 10.00 PM near village Fatehgarh Police Station Dharamkot District Moga. DDR was registered with police station on 1.3.2010 who in turn deputed opposite party No.4 as spot surveyor and complainant extended full cooperation and all possible help to the said surveyor and furnished copies of documents as asked for. Opposite party No.4 submitted spot survey report to opposite party No.2 and car was sent to opposite party No.5. The spot survey report clearly indicated that vehicle was total loss and was beyond repair to make it roadworthy. The car was extensively damaged and was in mangled condition. Complainant who was driving vehicle was extracted out with great difficulty and received multiple fractures due to head on collusion. Opposite party No.2 sent car to opposite party No.5 for repairs knowing fully well that due to extensive damage it was beyond repairs being total loss. Totally unreliable and tailor made report with regard to loss suffered by complainant was obtained which was motivated and intended to benefit insurance company. Opposite party No.2 managed tailor made report from the surveyor who drastically reduced estimate of loss/damage manipulated in such a manner to show that car was not a total loss. The IDV i.e insured declared value as per schedule was Rs.2,88,000/- and estimate for repair was Rs.2,76,417.30/- and repair invoice amounting to Rs.2,75,033/- was given by M/s S.M.Auto Care, Moga. Opposite party No.4 assessed net loss to the extent of Rs.1,81,100/- against total costs of repair of opposite party No.5. Opposite party No.2 in collusion with opposite parties No.3 and 5 managed repairs in such a manner to the prejudice and detrimental to the interest of the complainant. Complainant was harassed and compelled to pay from his own pocket Rs.90,000/-. Opposite parties refused to deliver the car unless and untill cash amount of Rs.90,000/- was paid to opposite party No.5. Complainant at no point of time had ever agreed to loss assessed on cash loss on repair basis in the sum of Rs.1,81,000/- by opposite party No.3. As per guidelines of IRDA and India Motor Tariff, the claim was to be settled on total loss basis and not on repair basis. No notice of assessment of loss was communicated to the complainant. Final and spot survey reports were not furnished to complainant despite repeated requests as per mandate of IRDA guidelines. The final survey report was submitted belatedly incomplete without supplying photographs which has not set out valid and convincing reasons for assessing damage suffered by car. The vehicle remained with opposite party No.5 from 22.2.2010 to 3.8.2010 for no fault of complainant. Opposite party No.3 surveyor has not adhered to fair dealings and truthfulness of code of IRDA. Complainant obtained information and documents under RTI Act which revealed the nefarious design, deficiency in service and unfair trade practice of opposite party No.3 and connivance of opposite parties No.2,3 and 5 in setting own damage claim as cashless without consent of complainant. The final assessment of the surveyor was not fair and not transparent and not as per IRDA guidelines. The repair of the vehicle was not economic proposition nor opposite party No.2 choose to negotiate with the insured/complainant. The procedure for settling losses on repair basis or total loss basis was not followed. Loss of damaged parts replaced by new parts made to be borne by complainant, the value of salvage/sold scrap was neither supplied nor details of their accounts and adjustment made were given. Opposite parties No.1 and 2 are negligent and adopted unfair trade practice. Complainant is entitled to amount of Rs.90,000/- paid by him under compulsion besides Rs.2,00,000/- as damages for harassment, Rs.10,000/- as cost of litigation and Rs.5000/- incurred for filing complaint and to and fro visits to get delivery of repaired vehicle and other misc.expenses.

2. Upon notice, the opposite parties appeared and filed their written replies. In its written reply opposite parties No.1 and 2 pleaded that there is no deficiency in service or unfair trade practice on the part of answering opposite parties. Complainant is not consumer of answering opposite parties since policy of insurance was issued by answering opposite parties in the name of Life Insurance of India, that being so, complaint is liable to be dismissed. The claim of complainant has already been settled as per loss assessed by the surveyor and that being so, there is absolutely no cause of action in favour of the complainant. Complainant being class-I officer of LIC and financing by LIC and conversion to administrative scheme is denied for want of knowledge. As per record, the car was in the name of LIC. It is denied that opposite party no.1 issued only certificate-cum-policy schedule to the complainant covering risk of accidental loss, damage and liability for third party risk. In fact detailed policy of insurance alongwith terms and conditions were supplied to complainant by answering opposite parties. No undertaking to indemnify complainant was ever given since complainant is not insured of answering opposite parties, there is no question of supplying policy document to complainant. Since policy documents alongwith terms and conditions were supplied to the insured and as such there is no question of any deficiency in service on the part of opposite parties No.1 and 2. The appointment of surveyor and intimation to opposite parties No.1 and 2 has been admitted. The preparation of spot survey report by opposite party No.4 is admitted. It is denied that on the basis of report of spot surveyor, the accidental car was sent to opposite party No.5. It is also denied that spot survey report of opposite party No.4 clearly indicated that vehicle was total loss and was beyond repair to make it roadworthy. It is denied that insured car was extensively damaged and was in mangled condition. Complainant or insured might have taken car to opposite party No.5 and not opposite party No.2. It is denied that unreliable and tailor made report with regard to loss was obtained or which was motivated or intended to benefit the insurance company in collusion with opposite party No.5 or deputed opposite party No.3 surveyor from its outfit. It is also denied that opposite party No.2 managed tailor made report from its surveyor who drastically reduced estimate of loss/damage manipulated in such a manner to show that car was not a total loss. The insured declared value of the car and assessment of loss by the surveyor is admitted. It is further denied that opposite party No.2 in collusion with opposite party No.3 and 5 managed the repairs in such a manner to the prejudice and detrimental to the interest of complainant and he was compelled to pay Rs.90,000/- from his own pocket. The delivery of car by opposite party No.5 after receipt of amount of Rs.90,000/- is denied for want of knowledge. It is denied that complainant at no point of time ever agreed to loss assessed or cash loss on repair basis in the sum of Rs.1,81,000/- by opposite party No.3. It is for the surveyor to decide loss on repair basis or total loss basis after taking into consideration accidental loss to the vehicle. It is denied that as per guidelines claim was to be settled on total loss basis and not on repair basis. The spot survey report and final survey report were supplied to complainant by answering opposite parties. The vehicle might have remained with opposite party No.5 due to fault of the insured because he never allowed opposite party No.5 to start repair work of the vehicle. It is denied that opposite party No.3 has not adhered to fair dealings and truthfulness as per code of conduct of IRDA. It is denied that opposite party No.2 was in connivance with opposite parties No.3 and 5 in settling the claim. The delay in preparing surveyor report is on account of fault of complainant since he did not get start the repair work of the car for the reasons best known to him.

3. In its separate written reply opposite party No.3 pleaded that he was telephonically deputed by opposite party No.2 to conduct survey of accidental vehicle on 18.3.2010. He visited the workshop of M/s S.M.Auto Care Centre, Moga on same date and inspected the damaged vehicle thoroughly and took some photographs for the claim loss at the time of visit. Nobody from the insured side was present. he requested representative of Jagdeep Sharma on telephone to complete the claim formalities. It was informed that he was unfit due to injuries in the accident. He reminded insured through speed post letters dated 29.3.2010 and 7.4.2010 for completion of claim formalities and necessary instructions to the repairer to start repair work as the vehicle was observed to be repairable by the repairer. Thereafter representative of the insured instructed repairer to start repair work. On calling from repairer at different time/dates, opposite party no.3 again and again visited and inspected the vehicle during course or repair and also took photographs. After completion of vehicle, he again visited workshop and inspected vehicle after complete repair. Thereafter he released detailed assessment report to opposite party No.2 that his total assessment was Rs.2,42,129/- against estimate given by the repairer for Rs.2,76,417/-. The net payable amount was assessed at for Rs.1,76,410/- after deducting depreciation, excess clause and salvage value as per terms and conditions. The assessment was carried out without being prejudice subject to the terms and conditions of the policy for the insurer consideration only.

4. In its separate written reply opposite party No.4 pleaded that on 23.2.2010 he was deputed by Senior Divisional Manager of opposite party No.2 to conduct spot survey of the vehicle. On reaching the spot, insured representative Sh.J.K.Battu met him. The answering opposite party conducted spot survey. It was informed that complainant has received major injuries and shifted to hospital at Moga. During the survey no document such as policy, RC, Driving License were found. It was informed that police report, RC, book policy and driving license would be submitted later on. Thereafter documents were submitted on 12.3.2010 and detailed report dated 15.3.2010 was submitted to opposite party No.2. He has not mentioned in his report that said vehicle is total loss and beyond repair. He has mentioned visible damage in detail.

5. In its separate written reply, opposite party No.5 pleaded that it has no concern because all details are to be between complainant and opposite parties No.1 and 2. On the directions of Sh.JK Battu, Branch Manager, LIC, Moga, the vehicle was brought from the site of accident to M/s SM Auto Care Centre, Moga and vehicle was lying in the workshop for more than one month. On 25.3.2010 Sh.JK Battu informed opposite party No.5 to prepare estimate of accidental vehicle. It was total at Rs.2,76,417.30/- and handed over to opposite party No.2. It is denied that opposite party No.5 compromised with other opposite parties. After preparation of estimate, vehicle was again lying with workshop for one month as documents required were not presented by the complainant due to his injuries in the accident. Opposite party No.5 is not involved in the allegations mentioned in the complaint. The damage to the vehicle was extensive and it took quite long time for the repair and collection of required spares from the manufacturer. The documents related to vehicle were not handed over to opposite party No.5 for long time. Opposite party No.4 has to furnish survey report to opposite party No.2 but opposite party No.5 has got no concern. As the vehicle was insured in Maruti Insurance cashless policy, the damaged parts remained with the repairer in lieu the LIC reduces the amount to be paid to the repairer. Opposite party No.5 has taken every care to avoid unnecessary damage to the complainant and fairly and smoothly prepared the vehicle against the amount legally due. The vehicle was made ready on the date the bill was prepared and complainant was informed to pay the amount of Rs.90,000/- to opposite party No.5 and collect the vehicle on 29.6.2010. Lastly on many requests of opposite party No.5, the complainant gave a cheque No.276027 of ICICI Bank of Rs.90,000/-. The said cheque bounced and opposite party No.5 did not file any complaint against the complainant. On request of complainant cheque was again presented and it was cleared. Rest of payment of Rs.1,76,411/- was made by National Insurance Company totaling Rs.2,66,411/- less Rs.8622/- then bill of Rs.2,75,033/- which opposite party No.5 has to get. Rs.90,000/- was blocked by complainant for one month after vehicle was made ready. Interest on Rs.90,000/- and demurrage charges of Rs.200/- per day as per Maruti Rules were not charged from the complainant by opposite party No.5. The vehicle was repaired totally on the direction of LIC and opposite party No.5 has not done anything on its own.

6. In its separate written reply, opposite party No.6 pleaded that opposite party No.6 owes no liability to the complainant. The case against opposite party No.6 is to be viewed in the background that complainant was given on 22.11.2006 under its scheme VI(Revised) Marusti Esteem Car No.PB-08AY-4003 when he was branch manager at Kartarpur. On his de-rotation to administrative side, the car was withdrawn from the scheme and on written down value was converted to conveyance scheme applicable to officers on the administrative side. In this scheme advance is adjusted to 96 EMI with interest and complainant was to effect insurance at his own level. The car met with an accident and hence complaint against insurer and its privies alone.

7. In support of his complaint, learned counsel for the complainant has tendered affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.

8. On the other hand, learned counsel for opposite parties No.1 and 2 has tendered affidavit Ex.R1 and Ex.R7 alongwith copies of documents Ex.R2 to Ex.R6 and closed evidence. Further learned counsel for opposite party No.6 has tendered affidavit Ex.OA6 and closed evidence.

8. After going through the evidence on record and hearing learned counsels for the parties, the complaint was earlier dismissed by Additional Bench of this Forum vide its order dated 14.8.2012. However in appeal the case has been remanded back to this Forum for deciding the same afresh on merits after hearing learned counsels for both the parties vide order dated 16.12.2014.

9. We have carefully gone through the record and also heard the learned counsels for the parties.

10. It is not disputed that the insured car of the complainant met with an accident. The opposite party insurance company appointed a surveyor who submitted his report dated 18.8.2010 Ex.R5 assessing the net total loss at Rs.1,81,100/-. Report dated 3.9.2010 Ex.R6 is supplementary report whereby he clarified that net assessment was Rs.1,76,411/- instead of Rs.1,81,100/-. He has also mentioned that the reasons which forced him to submit the report on repair basis. Counsel for the complainant contended that the estimate given by the repairer was Rs.2,75,033/- against insured declare value of Rs.2,88,000/- and as such it was total loss. He further contended that the surveyor has assessed the loss on repair basis in connivance with the insurance company. He further contended that the complainant has paid Rs.90,000/- to the repairer and he is entitled to refund of the same as car was a total loss and wrongly assessed by the surveyor on repair basis. On the other hand, it has been contended by learned counsel for the opposite parties No.1 and 2 that surveyor has assessed the net loss at Rs.1,76,411/- on repair basis according to the terms and conditions of the policy after deducting the depreciation. He further contended that since the cost of repair was not more than 75% of the IDV as such the loss can not be assessed on total loss basis. He further contended that the surveyor has rightly assessed the loss and same stand paid to the repairer. He further contended that the remaining amount has been paid by the complainant to the repairer and taken the delivery of the car from him since long. We have carefully considered the contentions advanced by learned counsels for both the parties. The report of surveyor is an important document and its report can not be brushed aside lightly. No doubt the report of the surveyor is not conclusive but in the present case there is nothing on record to come to the conclusion that surveyor has given the wrong report to favour the insurance company. We do not find any convincing reason to disbelieve the report of surveyor. The surveyor has assessed the net loss after taking into consideration depreciation of the various parts as per terms and conditions of the policy. The fact that the complainant has paid Rs.90,000/- to the repairer and taken away the car from him after repair clearly shows that the car was in repairable condition and not a total loss. The insurance company has paid the net loss assessed amount to the repairer. In case the car was total loss and complainant was not satisfied with the repair of the car, he would not have taken the car from the repairer after paying the remaining amount of Rs.90,000/- to him. The loss assessed by repairer already stand paid to the repairer by the insurance company.

11. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

23.02.2015 Member President