DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

Baljit Singh, aged 51 years son of S.Gurdev Singh, resident of village & Post Office, Daun Kalan, Tehsil and District Patiala.

                                                                   …………...Complainant

                                      Versus

1. The New India Assurance Co. Ltd., Regd. Head Office: New Indian Assurance Bldg. 87, M.G.Road, Fort, Mumbai-400001 through its Managing Director.
2. The New India Assurance Co. Ltd.,# 7, Chhoti Baradari, The Mall, Patiala through its Branch Manager.
3. Seema Kataria, (NIA 1D6342530) Authorized Agent, The New India Assurance Co. Ltd.,#7, Chhoti Baradari, The Mall, Patiala.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi,Member         

PRESENT:                   Sh.M.P.S.Sahi, counsel for complainant.

                             Sh.D.P.S.Anand, counsel for OPs No.1&2.

                             Complaint against OP No.3 dismissed as withdrawn.

 ORDER                                          

1. The instant complaint is filed by Baljit Singh son of S.Gurdev Singh        (hereinafter referred to as the complainant) against The New India Assurance Co. Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. The averments of the complainant are as follows:

That complainant is owner of vehicle make TATA Truck bearing registration No.PB-11-CB-8895, chassis No.MAT447220G3K23257 and engine No.B591803261K63549100. Complainant got the same fully insured with OPs vide policy No.36140031160100005294 for the period 3.11.2016 to 2.11.2017 and paid premium of Rs.43,957/- to OP No.3. Complainant is earning livelihood from the earnings of this Truck. Complainant got the said truck financed from Kotak Mahindra Bank Ltd. and was paying installments.

3. On 24.4.2017 said vehicle of the complainant met with an accident at Kishanganj (Bihar) between the borders of Bengal & Bihar at about 1:30 AM, due to sudden application of break by another driver of the truck and ran away from the spot alongwith his truck. FIR/DDR was lodged in this regard. The intimation of accident was also given to OPs No.2&3, who instructed the complainant to bring the vehicle at Patiala for repair. Accordingly complainant brought the vehicle and parked the same at M/s Kalgidhar Automobiles, TATA Authorized service station, Jodiyan Sadka, Near Turna Palace, Opposite HP Petrol Pump-Samana- Cheeka Road, Patiala on 5.5.2017. Thereafter OPs told the complainant to submit the estimate of repair, the same was submitted to them, who further forwarded the matter to their Ludhiana Office.
4. Thereafter, Surveyor Mr.Sandeep Puri, visited the above said service station. M/s Kalgidhar Automobiles gave writing dated 10.5.2017 to the effect that vehicle cabin and chassis frame work are not repairable rather replaceable and recommended for replacement. It further told the surveyor that if the repair work will be done, then vehicle will not give its proper performance and it shall be dangerous to drive the said vehicle after patch work as instructed by him and further its carriage capacity would be adversely effected and it would become difficult to make the alignment of the said vehicle after its repair. Surveyor told the authorized service station to start the repair work of the vehicle in question and asked the complainant to pay the initial bill which would be reimbursed by the OPs. Accordingly submitted an advance payment through cheque No.038051 dated 16.5.2013 drawn of Axis Bank Ltd. Urban Estate Branch, Patiala for a sum of Rs.3,00,000/- in favour  of M/s Kalgidhar Automobiles, out of the joint account of Sh.Harjit Singh & Baljit Singh.
5. Vehicle of the complainant repaired and he submitted bills of Rs.7,07,300/-on 13.6.2017 for clearance but the OPs did not pay any heed and the complainant was forced to pay the entire bill of his own. Legal notice cum reply to OP No.1 on 29./4.2017 to do the needful but all in vain. There is thus deficiency in service on the part of OPs which caused mental agony and harassment to the complainant.
6. Vide statement dated 25.10.2017 withdrew his complaint filed against OP No.3. As such complaint against OP No.3 has been dismissed as withdrawn.
7. Upon notice to OPs No.1&2, they appeared through counsel and filed written statement having raised certain preliminary objections.
8. On merits, insurance of the vehicle in question for a sum of Rs.25,65,000/- for the period 3.11.2016 to 2.11.2017 is admitted. It is denied that truck in question met with an accident as the insured has not lodged any police report nor he got the spot survey of the accidental vehicle, which amounts to violation of terms and conditions of the policy. Complainant intimated the loss on 8.5.2017. OP deputed Sh.Sandeep Puri M/s Eminents Solvserve approved IRDA surveyor and loss assessor, Ludhiana to assess the loss who  inspected the accidental vehicle at M/s Kalgidhar Automobile Patiala and various damages were observed but complainant was adamant to replace chassis frame and assembly bare cabin. Surveyor told him that both are repairable and cannot allow to be replaced under the terms and conditions of the policy. Surveyor clarified this fact by writing a letter and by sending email to the complainant on 13.5.2017.However, surveyor submitted his report dated 28.7.2017 and assessed the loss to the tune of Rs.1,73,800/- on the basis of repair expenses of both the damaged parts. OPs wrote letter dated 3.11.2017 to the complainant to complete the required claim formalities to enable it to settle the claim as per assessment report of surveyor but the complainant did not pay any respond and filed the present complaint. There is no deficiency in service on the part of the OPs. After denying all other averments OPs prayed for dismissal of complaint.
9. In evidence complainant tendered in evidence his affidavit, Ex.CA, affidavit of Harjit Singh, Ex.CB alongwith documents Exs.C1 to C11, copies of spot photographs after the accident, Exs.C12 to C15, copy of driving licence, Ex.C16, copy of authority letter, Ex.C17, copy of circular of TATA Motors, Exs.C18, copies of photographs, Exs.C19 to C22, copy of invoice, Ex.C23, copy of certificate, Ex.C24 and closed evidence.
10. On the other hand, ld. counsel for OPs No.1&2 has tendered in evidence Ex.OPA affidavit of Sh.Rajinder Singh Mahatam, Sr.Divisional Manager, Ex.OPB affidavit of Sh.Sandeep Puri alongwith documents,Ex.OP1 copy of loss intimation letter,Ex.OP2 copy of intimation, Ex.OP3 copy of claim form, Ex.OP4 copy of letter dated 5.6.2017, Ex.OP5 copy of email, Ex.OP6 copy of letter dated 16.8.2017, Ex.OP7 reply to legal notice, Ex.OP8 copy of letter dated 29.8.2017,Ex.OP9 copy of letter dated 4.10.2017, Ex.OP10 survey report, Ex.OP11 copy of email,Ex.OP12letter dated 10.5.2017, Ex.OP13 letter dated 9.6.2017 with postal receipt, Ex.OP14 copy of statement,Ex.OP15 bill dated 4.5.2017, Ex.OP16 bill dated 2.5.2017, Ex.OP17 letter dated 3.1.2017, Ex.OP18 letter dated 3.9.2018, Ex.OP19 copy of RC, Ex.OP20 copy of policy with conditions and closed evidence.
11. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
12. The complainant is the owner of Tata Truck bearing registration No.PB-11-CB-8895, copy of RC is Ex.C1. The said truck was having a national permit valid from 28.11.2016 to 27.11.2021, Ex.C2.The said truck was insured with the OPs vide insurance policy No.36140031160100005294, which was valid from 3.11.2016 to 2.11.2017, Ex.C4. The truck of the complainant met with an accident on 24.4.2017 at Kishanganj (Bihar). No FIR/DDR was lodged by the complainant with the local police. This fact is  disputed by the OPs. It has been alleged by the complainant that the OPs advised him to bring the vehicle to Patiala for repairs. Accordingly said truck was sent for repairs at M/s Kalgidhar Automobiles, an authorized Tata Service Station. Survey was carried out by the surveyor Mr.Sandeep Puri, who in his report advised for the repair of the cabin and chassis by doing the patch work. However, M/s Kalgidhar Automobiles, an authorized Tata Service Station, advised that vehicle cabine and chassis are not repairable and as per the guidelines of the manufacturer i.e. Tata Motors recommended for replacement of the same. The vehicle was repaired by replacing the cabin and chassis frame and a bill of Rs.7,07,300/-,Ex.C23 was prepared by this service station, which was cleared by the complainant of his own, copy of which is Ex.C24. Complainant submitted all the relevant documents to the OPs for settlement of the claim but the same was not finalized by the OPs. Legal notice, Ex.C8 was also served upon the OPs but no fruitful purpose was served.
13. Ld. counsel for OPs has argued that no complaint was lodged by the complainant regarding the accident and first intimation was given on 8.5.2017, Ex.OP1. No FIR was lodged by the complainant and no spot survey could be carried out. Complainant was never advised to bring the vehicle to Punjab and the complainant on his own brought the vehicle at M/s Kalgidhar Automobiles, Patiala, where the same was inspected by Sh.Sandeep Puri, Surveyor and Loss Assessor who gave his report on 28.7.2017, Ex.OP10.As per the said report, loss assessed was to the tune of Rs.1,73,936/- wherein it has also been remarked by the surveyor that the cabin and chassis is repairable . It has also been remarked in the report that M/s Kalgidhar Automobiles is merely a Tata Authorized Service Station and the complainant was advised to get the vehicle repaired through Tata Motors authorized dealer point like Dada Motors Mehndipur from where the service station had purchase both the items for replacement. The complainant was specifically asked to take out the vehicle from Kalgidhar Automobiles Motors and take it to another Tata Authorized point for repairs, on 13.5.2017, Ex.OP11, which was not acceptable to the complainant. Legal notice served by the complainant was duly replied by the OPs on 30.9.2017, vide Ex.OP7. The complainant was then asked to submit various documents vide letter dated 29.8.2017, Ex.OP8 and letter dated 4.10.2017, Ex.OP9. The same were not submitted by the complainant.
14. Ld. counsel for the OPs has placed reliance upon the case titled as National Insurance Co. Ltd. Vs. M/s Kiran Collection & Boutique 2019(1) CLT 384 decided on 24^th July,2018 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, wherein it has been held that, “…general rule is that the surveyors are appointed under the Insurance Act,1938 and their reports are to be considered for settlement of insurance claims-The reports cannot be brushed aside without any cogent reasons-Appeal partly allowed.”  As such ld. counsel for OPs has argued that report of the surveyor cannot be over looked and the complainants were bound to get the vehicle repaired as per the surveyor report.
15. Ld. counsel for the OPs has further argued that no FIR was lodged by the complainant and no spot survey was got carried out. On this point he has placed reliance upon the judgment in the case titled as Oriental Insurance Co. Ltd. Vs. Dilip Kumar Kar, 2014(1)CLT 613 decided on 17^th February,2014 by the Hon’ble Tripura Consumer Disputes Redressal Commission, Tripura, wherein it has been held that , “..In Insurance policy there is a provision for deduction of 25% from the claim amount in the absence of spot survey-Insurance company also delayed in appointing surveyor for spot survey-Both parties negligent-The straightway deduction of 25% of the claim amount as is done in the judgment under appeal is found unjustified-that the justice will be met if 15% is deducted from the amount of compensation instead of 25% considering the negligence on the part of complainant as well as insurance company”.
16. Ld. counsel for the OPs has thus argued that a cut of 25% be made from the claim to be given to the complainant. However, he has failed to show any such clause in the insurance policy, brought on record by the OPs which is Ex.OP20. As such, in the absence of any such clause in the insurance policy, the above said citation does not extent any held to the OPs.
17. Ld. counsel for the complainant has placed on record copy of letter issued by Tata Motors Limited having declared that M/s Kalgidhar Automobiles, Patiala is an authorized service station of M/s Tata Motors. As such he has controverted the arguments raised by the OPs that M/s Kalgidhar Automobiles is not a Tata Authorized Service Station and the vehicle may be got repaired from Tata Authorized Service point only.
18. From the above, it transpires that M/s Kalgidhar Automobiles, Patiala is an authorized service station of Tata Motors and as such is authorized to repair the vehicle in question..Moreover, as per the survey report of the OPs, Ex.OP10, the cabin and chassis which are replaced by the above said service station were duly procured from Tata Authorized dealer. Ld. counsel for the complainant has also placed reliance upon the report of M/s Kalgidhar Automobiles,Ex.C5, as per which vehicle cabin was found damaged from right hand side and rear side  and floor of the cabin joint was also found to be cracked and was declared to be not repairable. It has also recommended that as per the manufacturer guidelines i.e. M/s Tata Motors Ltd. chassis frame is not repaired and only replacement is done.
19. We have carefully gone through the arguments addressed by ld. counsel for the parties and the record of the file.
20. The truck of the complainant was registered during 29.11.2016 and met with an accident on 24.4.2017 i.e. merely after five months of the registration. As such the truck was brand new at the time of accident. The truck in question was duly brought to the authorized service station of the manufacture for repairs who had recommended for the replacement of the cabin and chassis of the same as per the guidelines of the manufacturer i.e. Tata Motors Ltd., as the repair of the same was not recommended by the manufacturer. Moreover, repair of the cabin and chassis could not bring the vehicle to its original shape and there are lead to be deficiencies in the repairs thereby leading to the improper performance and shortcoming of the life of the vehicle. As such the guidelines of the manufacturer cannot be over looked.
21. Keeping in view the above facts and circumstances of the case, we are of the opinion that cabin and chassis were rightly replaced by M/s Kalgidhar Automobiles, authorized service station of Tata Motors Ltd..We therefore, partly allow the complaint and direct OPs No.1&2 as follows:

To settle the claim of the complainant to the tune of Rs.7,07,300/- only within 30 days from the date of receipt of certified copy of this order.

No order as to interest and costs as the complainant was also deficient to the extent that he had moved the vehicle without lodging the FIR.

The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.

DATED: 31.3.2023

                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President