Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-71/18.03.2015
M/s Denizen Pharmaceuticals (India) Private Limited
through its Director: Shri Praveen Kumar Gupta,
WZ-13, Manohar Park, Rohtak Road New Delhi-110026 ...Complainant
Versus
National Insurance Company Limited
through its General Manager, General Claim Hub,
above HDFC Third Floor, 27/25,
Jhandewalan Extension, New Delhi …Opposite Party
Order Reserved on: 27.01.2023
Date of Order: 10.03.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1. This is a complaint of allegations of deficiency in services against the OP that complainant's vehicle bearing registration no. DL 10CD 5410 (Verna Hyundai SX1.6) was insured from the OP under zero depreciation policy, however, when during the currency of policy, the vehicle met with an accident and it was got repaired for which invoice of Rs. 1,73,654/- was raised, the complainant was not delivered the vehicle after repairs, the complainant paid the invoice amount but when he was refunded the amount it was reduced by Rs. 62,954/-. That is why the complaint was filed.
Whereas, the OP denies the allegations of the complaint, since terms and conditions of policy were followed inclusive of provision of zero depreciation policy, however, the permissible items of parts as well as labour charges were allowed and remaining were deducted within the parameter of contract of policy. There is no deficiency in the services.
2.1. The complainant is a company registered under the
Companies Act, 1956. Shri Praveen Kumar Gupta, a Director, has been authorised by
the Board resolution of the company dated 21.01.2015 to
file the present complaint. (
the extract of resolution is at page 7 of the paper book of complainant).The complainant owns a vehicle bearing No.DL 10CD
5410 (Verna Hyundai SX1.6) sleek silver colour diesel car
and the same was insured with the opposite party under
zero depreciation policy bearing No.360400/31/1316100007833 dated 21.09.2013 (copy of the policy is at page 13). However, the vehicle met with an accident on the night of 21.01. 2014 and the opposite party was intimated there and on its advice the vehicle was
sent to M/s Hans Hyundai for the repairs, who raised an estimate vide Invoice
No. 130 dated 27.01. 2014 of the loss and forwarded it to the surveyor M/s. Uppal Associates, appointed by the OP. On 27.02.2014 an invoice for Rs.1,73,654/- for repairs was raised by M/s
Hans Hyundai and accordingly the complainant lodged claim OP. However, the complainant was forced to make payment bill in order to get the delivery of the vehicle, since the repairer refused to release the vehicle without
receiving the full and final payment. M/s Hans Hyundai did not release the vehicle and the benefit of cashless policy was denied to the
complainant by OP. Whereas, the OP is duty bound to make the
payment of entire claim as the policy of the complainant
was cashless policy. The respondent illegally, arbitrarily
deducted Rs.62,954/- from the total claim . That when the vehicle met with an accident, the complainant immediately informed the respondent about same and the vehicle was sent to the repairer on the instructions of the opposite party.
When the surveyor was appointed by the opposite party, it was the duty of the opposite party to intimate about the same to the complainant and to ensure that the damaged vehicle is being inspected by the surveyor in the presence of the complainant. The opposite party failed to discharge its duty to get the inspection of the vehicle by the surveyor in presence of the complainant and the surveyor made a false, concocted report in collusion with the repairer. The surveyor has to prepare his report in presence of the owner and as per the applicable rules and regulations and obtain the his consent on the approved claim but the surveyor failed to do so. The complainant sent a legal notice dated 07.11.2014 (page 15 of paper-book) followed by reminder 06.12.2014 (page 17 of paper book) to the opposite party claiming the amount of Rs.62,954/- along with interest but the opposite party instead of complying with the notice sent a false, concocted and afterthought letter dated 12.11.2014. The opposite party got manipulated the false surveyor report. The surveyor report is illegal. All the damages caused to the vehicle were due to the accident and there were no earlier damages in the vehicle. That is why complaint is filed for a claim of Rs.62,954/- along with interest
@24% p.a. against OP
2.2. The complaint is opposed by OP that there is no cause of action ever arose in favour of the complainant to file the complaint, there is no deficiency of service on the part of the OP.
The OP narrates the other facts that the complainant M/s. Denizen Pharmaceuticals India Pvt. Ltd. has obtained the Private Car Policy & Package from OP vide Policy No. 360400/31/13/6100007833 w.e.f. 21.09.2013 to 20.09.2014 (the copy of policy Annexure-R-3(Colly)/page 11-13) against payment of premium for its vehicle bearing No. DL-10-CD-5410 . The said vehicle met with an accident on 21.01.2014. The complainant gave intimation of the accident to OP. On 27.01.2014 OP had appointed M. S. Uppal & Associates, a Government approved and Licensed Surveyor and Loss Assessor to assess the loss, who assessed the net loss of Rs.1,19,033.52. The surveyor furnished its report dated 13.03.2014 and Bill Check Report dated 19.03.2014 [Annexure-R-2 (Colly) pages 3-7 & 8-9] to OP. Since the policy issued by OP is 'nil depreciation policy' and consequently, no depreciation was provided/deducted but OP considered the claim for all the new parts fitted in the vehicle. The OP after deduction of a sum of Rs.3,0321/- towards salvage and a sum of Rs.2.500/- towards Excess Clause paid, settled the claim for Rs. Rs.1,13.500/- and transferred in the account of the complainant through NEFT on 30.06.2014 in full and final settlement of the claim (Claim disbursement voucher dated 30.06.2014 is Annexure-R-1/page 1-2 of paper book of OP). The OP refers "the Oriental Insurance Co. Ltd. Vs.Sony Cherian" II (1999) CPJ 13 (SC) that "the insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. Therefore, the present complaint is not maintainable under the terms and conditions of the policy of insurance.
OP denies complainant's allegations that the Surveyor has made a false and concocted report in collusion with the repairer or report is not as per applicable rules and regulations surveyor should have obtained the consent of the
complainant on the approved claim vis a vis OP has nothing to do with the business of OP as the Surveyor is an independent person approved and
licensed by the Government to assess the genuine claim.
2.3. The complainant filed rejoinder to the reply, it is reiteration of the complaint by supplementing the deduction of Rs. 62,954/- from the total claim was illegal.
3. Complainant’s Director Shri Parveen Kumar Gupta, lead evidence by way of detailed affidavit of 05.10.2015, it is supported by the documents filed with the complaint.
Similarly, OP filed affidavit dated 03.11.2015 of evidence of Shri Parveen Kumar Bakshi, Assistant Manager on behalf of OP, it is also supported by documents which were filed with the reply.
4.1. At the stage of final hearing both the parties filed their written arguments and Shri Kuldeep Kumar, Advocate for complainant and Shri Sanjay Kumar, Advocate for OP also made their oral submissions. The counsel for complainant has relied upon Rajiv Bhatt vs Royal Sundaram General Insurance (CS (com): 134/2021 dod 05.02.2022 by Ld. District Judge (Commercial Court)-02, West District, Tis Hazari to support the case of complainant.
4.2. The written arguments on behalf of OP are on the lines of written statement coupled with documents. However, the complainant in its written arguments deciphered new figures that invoice claim was of Rs. 1,73,654/- but in the written argument premium amount of Rs. 21,000/- is added to this figure, apart from addition of Rs. 7,110/- as miscellaneous expenses, the salvage figure of Rs. 3,000/- has been reduced, alike surveyor, and the net amount claimed is Rs. 1,98,764/- and by reducing the claiming amount settled of Rs. 1,13,500/-, the remaining outstanding amount is stated as Rs. 85,264/- (around of Rs. 85,000/-) in place of original claim amount of Rs. 62,964/-. It was not explained on what basis premium amount may be added in the claim amount, apart from the addition of Rs. 7,110/-.
5.1 (Findings): The contentions of both the sides are considered and assessed keeping in view the documentary record and oral narration. At the outset, the feature of this case are distinguishable from case of Rajiv Bhatt vs Royal Sundaram General Insurance (supra) since in that case there was total loss and issue of depreciation was involved apart from delayed intimation to the insurer about the accident, these issues are not directly involved in this case.
It is not a dispute about the relationship of the complainant and the OP of insured and insurer, the tenure of policy, the date of episode of incident as well as repairs of said vehicle at station of M/s Hans Hyundai.
5.2. After analyzing the totality of circumstances, it is held that the complainant could not succeed to establish the complaint and the complaint is dismissed for the following reasons:-
(i). The OP formed the opinion on the basis of motor survey report (Annexure-R2) and this detailed report in its paragraph 13 is regarding assessment of loss, which enumerates the estimate given by Hans Hyundai for Rs. 4,15,575/- (parts), Rs. 70,179/- (labour) and in the same paragraph the specific amounts have been shown with particular of the parts in the form of estimates and assessed loss.
(ii)The detail given of assessed loss is either disallowed or allowed. The allowed amounts are for those parts which are eligible by the insured and disallowed items are those which were not considered permissible in the terms of policy.
(iii) To say, there is no depreciation done to the amount in respect of loss assessed of the corresponding parts permissible under the policy. Consequently, the surveyor had assessed the loss on the basis of items permissible and allowable under the policy. That is why, the ratio of Rajiv Bhatt case (supra) is not applicable.
(iv) The OP had also informed the complainant by letter dated 13.06.2014 as to why certain amounts were not permitted like third wheel rim replaced was not related to the accident, damage to clutch was not found directly associated with the cause of accident. This letter also reflects that the claim was considered as per the policy contract.
(v) The complainant could not show and prove as to how & where was provision of depreciation was invoked by the OP in declining the claim as well as the written arguments filed on 27.01.2023, reflects some other calculations of loss amount, and in that written arguments also or otherwise it could not be explained by the complainant that the loss was on account of invoking the depreciation provision.
5.3. Accordingly, the complaint fails. The complaint is dismissed. No order as to costs.
6. Copy of this Order be sent/provided forthwith to the parties free of cost as per Regulations.
7: Announced on this 10th day of March, 2023 [फागुन 19, साका 1944]. It is necessary to record that great difficulties are being faced for want of stenographer & PA in the regular functioning of this Commission as a single stenographer Gr-III is posted.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
