Haryana

Karnal

324/2010

Amit Gupta S/o Shri Ramesh Chander Gupta - Complainant(s)

Versus

National Insurance Company Ltd - Opp.Party(s)

V.K. Gupta

15 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.324 of 2010

                                                             Date of instt.:04.05.2010

                                                              Date of decision:15.12.2016

 

Amit Gupta son of Shri Ramesh Chander Gupta, resident of 288, Sector-14, Urban Estate Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

1. National Insurance Company Ltd., Railway Road, Karnal, through its Divisional Manager.

2. Modern Automobiles, 7^th Meerut Road, Karnal through its Managing Director/Manager.

3. Modern Automobiles, near Namastey Chowk, Old G.T. Road, Karnal, through its Manager.

 

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh.V.K. Gupta Advocate for the complainant.

                    Sh. Rohit Gupta Advocate for the Opposite party no.1.

                    Sh. Amit Gupta Advocate for opposite party no.2.

                  

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he purchased one Wagon-R car bearing chasis no.MA3EED81SOO548773 and  Engine no.F10DN4372806 from opposite party no.2, the authorized dealer of Maruti Udyog Ltd. on 27.6.2007 and the same was registered with Registration Authority (MV) Karnal, vide registration no.HR-05-U-4884. The opposite party no.2, was running a work shop near bye-pass as opposite party no.3. The car was got insured by opposite party no.2 with opposite party no.1 under cashless policy. The car was further insured by opposite party no.1 vide policy no.4312533 for the period from 27.6.2008 to 26.06.2009 and a premium of Rs.8227/- was paid by him. The opposite party no.1 and Maruti Udyog Limited were selling insurance policies jointly in collaboration. On 18.10.2008, an accident took place due to rash and negligent driving on the part of Swift car and in that regard First Information Report no.204 dated 18.10.2008 was registered in Police Station Madhuban. Surveyor and Loss Assessor was appointed by opposite party no.1, who took photographs of the accidental vehicle no.HR-05-U-4884. Thereafter, the vehicle was shifted from the place of accident to the premises of opposite party no.3. The surveyor after inspection of the vehicle declared the vehicle as totally damaged/destroyed and not fit for repair, as the cost of the repair, was more than that of the vehicle. The works Manager of opposite party no.3 also declared the vehicle unfit for repair and as total loss. He submitted the claim to opposite party no.1 alongwith all the documents, but the opposite party no.1 postponed the matter on one excuse or the other. Surveyor of opposite party no.1 had  issued the letters in routine just to harass him knowingly and intentionally, demanding the documents again and again though the documents were already supplied on 7.12.2008 when he visited the premises of opposite party no.2.  He found that genuine spare parts of the vehicle were removed by employees of opposite party no.2. The opposite party no.3 had given the service estimate of the vehicle as Rs.4,08,609.60P. Neither the vehicle was repaired nor payment of amount of total loss was paid to him by the opposite parties due to which he suffered mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no locus standi and cause of action to file the complaint; that the complainant had no privity of contract with opposite party no.1 and as such he was not the consumer; that the complaint is mis-use of process of law; that complicated questions of law and facts are involved, therefore, this Forum has no jurisdiction to entertain and decide the complaint and that there was no deficiency in service or unfair trade practice on the part of the opposite party no.1.

                   On merits, it has been submitted that opposite party no.1 appointed Mr.Ajay Bansal Surveyor and Loss Assessor as spot surveyor, who submitted his motor survey report dated 22.10.2008 and thereafter Dr. Rajesh Wadhawan, Surveyor and Loss Assessor was appointed for final survey who submitted his survey report dated 30.7.2009. The complainant had failed to cooperative with opposite party no1 and did not submit the original repair bills and receipts despite several letters. So, he cannot be allowed benefit of his own wrongs and as such he is estopped from filing the complaint by his own acts and conduct. The other allegations made in the complaint have been specifically denied.

3.                Opposite parties no.2 and 3 filed joint written statement disputing the claim of the complainant. Objections have been raised that the complaint is not legally maintainable; that the complainant has no cause of action to file the complaint and that the complainant has suppressed the true and material facts from this Forum.

                   On merits, it has been pleaded that the vehicle of the complainant was insured by opposite party no.1 under cashless policy which was governed as per terms and conditions of the policy. The said policy was issued under the tie up scheme between MSIL and National Insurance Company. As a matter of fact all insurance policies are issued by opposite party no.1 and the insurer is liable to make payment for repairs as per policy terms. It has further been alleged that the vehicle of the complainant was brought to the work shop of opposite party no.3 in a very badly damaged condition. The job card was opened as per procedure on 22.10.2008 and inventory of the parts were prepared. The complainant refused to get his vehicle repaired asserting that the vehicle was extensively damaged and the insurance company should treat his claim on total loss basis. Thus, there was dispute between the complainant and opposite party no.1 regarding the claim. However, the opposite party no.3 had submitted the required documents alongwith estimate to Divisional Manager of opposite party no.1 for taking action. The opposite party no.3 had always been willing to repair the vehicle, but the complainant did not allow. A legal notice was also got issued to the complainant calling him to lift the vehicle from the workshop of opposite party no.3.  Thus, there was no fault on the part of the opposite parties no.2 and 3 and they have been dragged into litigation unnecessarily. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit EX.C1 and documents Ex.C2 to C6 have been tendered. In additional evidence affidavit of J.K. Sharma Ex.CW2/A and his report Ex.C7 have also been tendered.

4.                On the other hand, in evidence of the opposite party no.1, affidavit of Ravi Goswami Assistant Manager Ex.OW1/1 and documents Ex.O1 to Ex.O19 have been tendered.

 5.               In evidence of the opposite party  no.2, the affidavit of D.P.Chopra General Manager Ex.OP2/1, affidavit of D.S. Jaglan Ex. OP2/2 and documents Ex.OP2/3 to Ex.OP2/9 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The complainant got insured his Wagon-R car bearing registration no.HR-05-U-4884 with opposite party no.1. The said car met with an accident on 18.10.2008. Spot surveyor Ajay Bansal was appointed by opposite party no.1, who submitted his report dated 22.10.2008. Thereafter, Dr. Rajesh Wadhawan was appointed as Surveyor for final survey, who submitted his report dated 30.7.2009. The estimate of repair was prepared by opposite party no.3, the copy of which is Ex.C4, according to which an amount of Rs.4,08,609.60 was required  for repairs. The report of Ajay Bansal Surveyor appointed by opposite party no.1 has not been produced on the file by either of the parties. However, the report of Rajesh Wadhawan Surveyor has been produced by opposite party no.1 as Ex.O16. The correspondence produced by the opposite parties indicate that the complainant did not allow repair of his vehicle and he asserted that he was entitled to claim total loss as the car was not repairable, whereas Rajesh Wadhawan Surveyor assessed the loss on repair basis as Rs.1,39,286.59. The complainant also got prepared estimate from Neelkanth Motor Workshop, the copies of which are Ex.C5 and Ex.C6, according to which the cost of the repairs was estimated as Rs.5,08,704/-. The mechanic of the said workshop at the end submitted that despite investing such huge amount the functional capacity of the car was to remain doubtful. The complainant further got inspected his car from Mr. J.K. Sharma Automobiles Engineer, independent IRDA approved surveyor and loss assessor, who submitted his report Ex.C7 and filed affidavit Ex.CW2/A in support of the report. As per his report, the loss on repair basis was assessed as Rs.2,32,698/-which was on the higher side, therefore, repair of the vehicle was not viable. He also assessed the loss on total loss basis and market value basis as Rs.1,40,000/-. He also opined that 5% may be added in the total loss depending upon the market trends.

8.                From the reports of Rajesh Wadhawan and J.K. Sharma, it is emphatically clear that the body shell of the car was badly damaged from front and left side. The front portion was mutilated and bonnet panel, front members, dash panel, side body panels, pillars, door panels left side were damaged. The floor panel was also damaged and bent. The body line of the shell was misaligned and it was deshaped due to the impact.W/S frame was deshaped. Left side apron was mutilated. In such condition of the body shell no expert could say definitely that the car would became complete normal functional after repairs of the body shell. The report of Rajesh Wadhawan shows that the value of some parts which were damaged, was not taken into consideration, as those parts were not allowed being intact or damaged due to wear and tear. J.K. Sharma had taken into consideration the value of all the damaged parts. Therefore the difference in the total amount of loss as assessed by these two surveyors stands explained, because Rajesh Wadhawan assessed the loss as Rs.1,39,286.69 by not considering the value of some parts, whereas J.K. Sharma assessed the loss of Rs.2,32,698.68 after taking into consideration the value of all the parts even damaged due to wear and tear. Thus, the evidence on record shows that the cost of repairs must be more than 75% of the value of the car. Therefore, in such a situation, repair was not viable and the complainant was certainly entitled to get compensation on market value or total loss basis. J.K. Sharma has assessed the loss on market value as well as total loss basis as Rs.1,40,000/-. Even Rajesh Wadhawan in his report Ex.O15 opined that the reasonable liability of the insurance company would be approximately Rs.1,40,000/- on the basis of condition of the vehicle without its dismantling and the liability could vary. Under such facts and circumstances, after considering the report of  Rajesh Wadhawan Surveyor the opposite party must have offered payment of an amount of Rs.1,40,000/- to the complainant, because after dismantling of the vehicle it could be possible that the inner parts of the engine might have been damaged resulting into more loss. Not making the payment to the complainant as per the report of the surveyor amounted to deficiency in service on the part of the opposite party no.1. Looking into all the facts and circumstances of the case, the complainant cannot be made to suffer only for the reason that he did not allow the repair of the vehicle, rather asserted for total loss. He was certainly entitled to get the compensation of Rs.1,40,000/- on total loss basis or even on market value loss basis. Consequently, opposite party no.1 is held liable to pay the amount of Rs.1,40,000/- to the complainant.

9.                As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party no.1 to pay Rs.1,40,000/- to the complainant on total loss basis  alongwith interest thereon @ 9% per annum from the date of filing of complaint till its realization. We further direct the opposite party no.1 to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 15.12.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member`