MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the complainant against order dated 21.8.2009 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1384 of 2008.

2.            Briefly stated the facts of the case are that the complainant purchased the Passenger Carrying Commercial Vehicle Policy for his vehicle bearing No.CH-02-1275 on 17.11.2006 from the OP which was valid till 16.11.2007 by paying the requisite premium of Rs.10,940/- with IDV of Rs.3,72,600/-. The vehicle was hypothecated with OP No.2, who had financed the vehicle. Unfortunately on 31.5.2007 the vehicle of the complainant met with an accident at Manali when it was being driven by the complainant himself and occupied by the passengers also who along with the complainant sustained serious multiple injuries. The vehicle fell into deep depth of about 100 ft. while skidding from the road and DDR to this effect was lodged with concerned Police Station, Manali. The complainant was admitted to the private hospital and from there he was referred to PGI, Chandigarh as his condition was critical. The complainant remained hospitalized for about two weeks and prescribed complete bed rest for about three months by the concerned Medical Officer and in the meantime the complainant suffered heart attack for which he was again hospitalized for a number of days and prescribed for not to do any manual works. The complainant duly informed the OP No.1 about the accident who deputed the surveyor and all the relevant documents demanded by the OP No.1 supplied by the complainant. It was submitted that the complainant could not lift the vehicle from the spot of occurrence on the reasons mentioned above as he however urged to the officials of OP No.1 to lift the vehicle from the spot of occurrence and assessed the loss of the vehicle for the processing of claim. But to an utter surprise to the complainant, the OP No.1 instead of lifting the vehicle and processing the claim by assessing its loss, issued a letter dated 26.5.2008 and closed the file of the case with remarks “No Claim” by observing that the complainant has not brought the vehicle for the final assessment of loss etc. It was further submitted by the complainant that since he was not able to approach the OP No.1 physically, however he made a request in writing to OP No.1 to process his claim at the earliest. It was submitted that he had not violated the terms and conditions of the policy in any manner and the claim of the complainant was rejected by OP No.1 on flimsy grounds. The OP No.2 refused to listen thte complainant and constantly pressurizing the complainant to make the payment of EMI’s regularly. The complainant wrote the letter to OP No.2 explaining the correct factual position but to no avail. The complainant was using this vehicle to earn his livelihood and the harassment caused to the complainant was without any fault of his part. The above said act of OPs amounts to deficiency in service. Hence, the complaint was filed.

3.         Reply was filed by OP No.1 and took preliminary objection regarding the maintainability of the complaint. It was admitted that the complainant purchased policy for his vehicle, which was valid upto 16.11.2007 and submitted that the said vehicle met with an accident on 31.5.2007 and DDR was lodged with the concerned Police Station at Manali. It was pleaded that the answering OP was intimated vide letter dated 1.6.2007 and again on 8.6.2007 about the accident and Sh.Sanjay Vaidya, Surveyor and Loss Assessor was deputed to assess the loss of the damaged vehicle. He conducted the spot survey, examined the vehicle, took photographs from the spot of occurrence and submitted its report to the insurance company. It was further pleaded that the complainant was intimated vide letter dated 26.6.2007 to submit the estimate of loss along with the other papers for final assessment and thereafter reminders were sent vide letters dated 28.7.2007, 19.9.2007, 14.11.2007 and 3.12.2007. The complainant submitted the estimate of loss but did not produce the vehicle for the assessment of loss even when the Kullu Office of the answering OP wrote him letters dated 19.11.2007 and 12.2.2008 but the complainant did not produce the vehicle for the assessment of loss. The answering OP sent registered notice to the complainant again vide letter dated 31.1.2008 and 5.5.2008 for doing the needful but he did not produce the same. Due to non-cooperation by the complainant and non-completion of formalities by the complainant, the OP insurance company intimated the complainant vide letter dated 26.5.2008 as having closed his claim file “as no claim”. Rest of the allegations leveled by the complainant in the complaint were denied and prayed that there is no deficiency in service on the part of answering OP and prayed for dismissal of the complaint.

4.         Reply was filed by OP No.2 and pleaded that there was no deficiency in service on its part as the complainant made a prayer and sought compensation only against OP No.1 and OP No.2 had only financed the vehicle to the complainant. The vehicle stands hypothecated to OP No.2 as the financer and the outstanding dues with regard to the term loan granted by OP No.2 to the complainant for the purchase of vehicle along with interest accrued upto date recoverable from the complainant from the claim amount, if paid by the OP No.1. Hence, it was further pleaded that there was no deficiency in service on its part and prayed that the claim of the complainant may kindly be allowed qua OP No.1 and OP No.1 may kindly be directed to pay the amount of claim to OP No.2 in the capacity of financer.      

5.         The parties led their evidence in support of their contentions.

6.         The learned District Forum dismissed the complaint of the complainant as the present complaint has no basis, weight and substance.

7.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant.  Sh.R.K.Samyal, Advocate has appeared on behalf of appellant, Sh.R.K.Bashamboo, Advocate has appeared on behalf of respondent No.1 and Sh.Sanjiv Ghai, Adovcate has appeared on behalf of respondent No.2.

8.         We have heard the arguments of the learned counsel for the parties and have perused the record.

9.         The learned counsel for the appellant has argued that he could not retrieve the vehicle due to his ill health and long standing medical treatment and he had rather requested OP No.1 to retrieve the vehicle at his cost and he was even ready to pay the towing charges which otherwise are to be paid by the OP No.1 to him. It is contended that even inspite of requests made by him and intimating to them his medical treatment, the OP No.1 was adamant that the vehicle should be retrieved by him and produced before the insurance authorities for assessment of loss  without any provision in this respect in the insurance policy. The learned counsel for the OP No.1/respondent No.1 admitted at the bar that there is no such terms and conditions of the policy under which it is the duty of the insured to produce the damaged vehicle before the surveyor. In view of the condition of the complainant, who had suffered injuries in the accident and continuously remained under treatment, it was necessary for the OP No.1 to be considerate and should not have insisted for the production of vehicle by the complainant especially when it was never his responsibility under the terms of the policy to produce the vehicle. It was, therefore, clear deficiency in service on the part of OP No.1.

10.       The learned counsel for the appellant has also argued that the vehicle was not lying at such a place where the surveyor could not have reached or that he was not able to inspect the vehicle without the assistance of the complainant. He referred to the report (Annexure O-1) issued by Sh.Sanjay Vaidya, Surveyor and Loss Assessor who had examined the damaged vehicle at the spot. His report makes it clear that the body-shell of the vehicle was completely pressed and misaligned badly from all the sides. The cosmetic items such as Wiper Arms and Blades were misaligned, Front and Rear Bumper were broken, Front Ornamental Grill was broken, Glass Wind Shield was broken, Right and Left Front & Rear Door Glasses were broken, Right and Left Quarter Panel Glasses broken, Dickey Glass, RVM Outer and Inner were broken, Panel Instrument was pressed, Right and Left Head Lamps were broken, Right & Left Tail Lamps and Front Right & Left STS were broken. The Interior Decoration was badly damaged.  The Engine & Gear Mountings were pulled due to impact. The Radiator and Condenser were pressed, Cooling Fan and Fan Motor impact was to be checked, Radiator Hose Pipe was damaged, Steering Wheel was misaligned along with Steering Links and attachments like R/L Knuckle, Tie Rod, Ends, Stablizer Bar and Steering Rack etc. were under heavy impact. The Front Right and Left Upper and Lower Suspension Arms were under heavy impact, Rear Right and Left Leaf Springs Hanger and Shackles were under impact, the Battery was broken and the Chassis Frame was under heavy impact. It, therefore, would not have been difficult for the surveyor to assess the loss at the spot especially when the contention of the complainant had all along being that it is a case of total loss and he should be paid the compensation accordingly. We are, therefore, of the opinion that the stand taken by the OP No.1 not to get the assessment done at the spot was wrong under the circumstances mentioned above.

11.       The learned counsel for the OP No.1 has also argued that it was necessary for the complainant to submit the estimate and bills of the vehicle and only thereafter they should have got the assessment conducted from the surveyor. This argument also is devoid of merit. The complainant had already submitted the claim form mentioning that it was a case of total loss. The Motor (Spot) Survey Report (Annexure O-1) confirmed the said view. If the OP No.1 felt that vehicle could be repaired, OP No.1 was required to obtain the report of the surveyor by inspecting the vehicle, which was not far away from their Kullu Office but for the reasons best known to the OP No.1, it did not do it. We may mention it for the sake of repetition that there was no obligation on the part of complainant under the terms of the insurance policy to produce the vehicle before the OP No.1 for inspection. It is argued by the learned counsel for the complainant that even if the damaged vehicle was to be brought to their Kullu Office, it was the duty of the OP No.1 to pay the towing charges, otherwise, if it was a case of total loss, the OP No.1 should have obtained the report from the surveyor and should have assessed the value of the salvage and sold the same “as is where is” basis. This procedure was not adopted by the OP No.1 for the reasons best known to it.

12.       In view of the above discussion, we are of the opinion that the OP No.1 was liable to pay the amount of compensation treating the vehicle as a total loss. The complaint was, therefore, liable to be accepted but has been wrongly dismissed by the learned District Forum. We, therefore, allow the appeal as well as the complaint and the complainant is entitled to compensation of Rs.3,72,600/-. He, however, had taken a loan from OP No.2 i.e. Delhi Financial Corporation. The OP No.2 should intimate to the appellant regarding the amount due from the complainant and the said amount shall be sent by the OP No.1 to OP No.2 within 15 days from the date of receipt of the letter from OP No.2. If any further amount is due under this policy, the same shall be paid to the complainant within the next 15 days. In case the above order is not complied with, the OP No.1 would be liable to pay the same with interest @ 12% p.a. since 10.7.2007 (one month after the Motor (Spot) Survey Report, Annexure O-1) till the amount is actually paid in accordance with the above directions.

13.       The complainant would be entitled to Rs.5,000/- as costs of litigation from OP No.1.

14.       Copies of this order be sent to the parties, free of charge.