DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No: 554 of 2011] Date of Institution : 30.11.2011 Date of Decision : 01.06.2012 ----------------------------------------- Raj Deep Singh s/o Sh. Lal Singh Lamba, R/o SCF No.8, Sector 26, Chandigarh. ---Complainant. VERSUS[1] New India Assurance Limited, SCO 804, Manimajra, through its Senior D.M. [2] Dynamic Motors, a unit of RSA Motors (P) Ltd., Plot No. 5, Indl. Area, Phase-I, Chandigarh, through its Manager. [3] GS Riar, Surveyor, 2692, Phase-VII, Mohali. [4] HDFC Bank Limited, 28 Industrial Area, Phase-I, Chandigarh, through its Manager (Performa Respondent). ---Opposite Parties.BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Sandeep Suri, Advocate for the Complainant. Sh. Sandeep Jasuja, Advocate for the Opposite Party No. 2. Sh. Sukhdarshan Singh, Advocate for Opposite Parties No. 1 & 3. None for Opposite Party No. 4. PER JASWINDER SINGH SIDHU, MEMBER. 1. Complainant has filed the present complaint, against the Opposite Parties, on the grounds, that the Complainant had got his brand new car, bearing Regn. No. CH-01-AJ-6001, insured from the Opposite Party No. 1, for the period from 13.4.2011 to 12.4.2012, copy of the policy, thus, issued, is annexed at Annexure C-1. The vehicle was financed by HDFC Bank, Chandigarh, under the loan account No. 18587601. The Complainant is regularly paying the installments due towards the said loan account. 2. Unfortunately, the vehicle mentioned above of the above, met with an accident, near Apollo International School, G.T. Road, Barhi, Gannaur, District Sonepat, Haryana, on 26.8.2011. A DDR was lodged at PS Gannaur. The copy of the F.I.R. No. 257, dated 26.8.2011 is Annexure C-2. The damaged vehicle of the Complainant was towed from the site of accident to the workshop of Opposite Party No.-2, at Chandigarh, on 27.8.2011, by the Complainant, after paying Rs.5520/- as Towing Charges. The receipt of the same bearing No. 15564 is Annexure C-4. 3. The Complainant lodged insurance claim with Opposite Party No.1, along with the estimate of repair, as provided by Opposite Party No.2, amounting to Rs.9,66,864/- dated 5.9.2011, Annexure C-5. 4. A surveyor (Opposite Party No.3) was appointed by Opposite Party-1 to assess the loss. The surveyor provided a rough report (Annexure C-6) showing the loss of body parts of the vehicle as Rs.6,16,472/- and Rs.50,000/- as labour charges and towing charges of Rs.1500/- were offered against the amount of Rs.5520/- claimed to have been paid by the complainant. The complainant claims that the surveyor prepared the rough report in a casual manner and did not take into consideration the parts which were damaged and could only be assessed after dismantling the vehicle in question. The report (Annexure C-6) was objected upon due to the above mentioned reasons. The Opposite Party-3 alleged to have prepared the said report on the instructions of Opposite Party-1 as is found from the noting appended by Opposite Party-3 in his rough estimate report. Thereafter, the final surveyor report (Annexure C-7) was made and submitted by the Surveyor, without taking the complainant in confidence. 5. The complainant claims that as per the rough estimate, supplied by the surveyor to the complainant, the cost of repair was mentioned in the proximity of Rs.6,66,971.50 being total of Rs.5,42,727/- and Rs.1,24,244/- towards the value of damaged plastic parts and the depreciation applicable on it. This estimate is claimed to be silent about the component of VAT leviable on the charges of parts assessed to be replaced which is claimed to be Rs. 72,000/-. Thus the estimate as assessed by the Opposite Party falls closed to Rs.7,40,000/-. The complainant has also alleged that the surveyor did not consider all the damaged items while making his loss assessment. 6. The complainant has claimed that as per the guidelines applicable to the insurance claims and as prescribed by IRDA, under Indian Motor Tariff Rules, in case the loss exceeds the 75% of IDV then the loss should be considered on constructive total loss basis. Thus entitling the insured to the IDV mentioned in the policy. That the loss for repair as assessed by the surveyor is Rs.666472/- and Rs.1500/- as additional expenses as towing charges. Though the value of un-assessed loss which the surveyor ignored in his rough report actually comes out to be 84.8% of 785345/-, which is the IDV of the vehicle in question. 7. The complainant has also reproduced General Regulations (GR-8) in order to attract the observations. 8. The complainant while insisting that the Opposite Party-1 was repeatedly perused for the claim, all the while insisting that the claim be assessed on the total loss basis. The complainant also claims that the Opposite Party-1 refused to do so and insisted that the vehicle be got repaired, though the same is beyond repair. The complainant had categorically stated that the claim deserved to be assessed on CLT (Constructive Total Loss) basis as per the provisions of GR-8 mentioned above. 9. The complainant alleging collusion between Opposite Party-1 and Opposite Party-3 to deny him his rightful claim has also mentioned that the act of Opposite Party-1 and Opposite Party-3 has further caused him loss on account of parking charges of Rs 250/- per day, as demanded by Opposite Party-2 through its letter dated 3.10.2011 (Annexure C-8), and on account of hiring of taxi that he was compelled to use for his personal needs and ended up paying Rs.500/- per day for the same. 10. The complainant also served a legal notice dated 27.10.2011 upon Opposite Party No.-1, registering his grievances. The complainant on not hearing anything from the side of the Opposite Party No-1, has preferred to lodge this complaint. 11. Thus, alleging deficiency in service has sought the following relief:- a) The payment of the amount of Rs.785345/- towards the loss caused to the vehicle on total loss basis (Opposite Party No.1). b) Interest @18% on the amount of Rs.785345/- towards the loss caused to the vehicle on total loss basis from 3 months after the date of loss till payment (Opposite Party No.1). c) Opposite Party No.2 be restrained from charging any amount from the complainant towards the parking charges and the same be ordered to be taken / paid by the Opposite Party No.1. d) Pay taxi charges @500 per day. (Opposite Party No.1). e) Pay interest as accruing to the loan account which the complainant is unable to clear on account non payment of the Insurance claims (Opposite Party No.1). f) Pay Rs.1 lac towards mental agony and harassment. 12. The complaint of the complainant is duly supported by his detailed affidavit. 13. The Opposite Parties have contested the claim of the complainant by filing their respective replies. 14. The opposite party No.1 while taking taking preliminary objections to the effect that the present complaint is not maintainable either on facts or under law. The jurisdiction of this forum is also objected upon as the complainant has misled this forum by misstating and twisting the facts to his advantage. The fact with regard to the claim of the complainant being entertained by it is admitted. The appointment of the surveyor to assess the loss of the vehicle in question by it too is admitted. 15. It is categorically stated that the entire processes of the assessment was followed as per the guidelines of the IRDA. The surveyor so appointed was a licensed “A” category surveyor, who thoroughly inspected the vehicle in question and after a detailed discussion with Opposite Party No. 1 and 2, it was assessed that the vehicle in question was fully repairable and the Complainant was given opportunity to discuss this issue. But however, the Complainant did not turn up even on being sent a registered letter for the same. 16. Opposite Party No.1 has further clarified that the settlement of the claim depends upon the status of the vehicle and as per terms and conditions of the policy. Namely there are three parameters for the assessment:- [a] On Total Loss Basis (when the damaged vehicle becomes unrepairable). [b] On Repair Basis (when the vehicle is easily repairable) [c] On Net of Salvage Basis (when the vehicle in question is under legal complications). 17. On merits, Opposite Party No.1 has repeated the preliminary objections and has also categorically stated that the rough estimate prepared by Opposite Party No. 2 was actually found to be on the higher side. The assessed amount for the vehicle in question was assessed by Opposite Party No. 3 as Rs.6,16,472/-. Out of which a component of depreciation of sum of Rs.1,24,244/- was assessed. While replying to the claim of the Complainant that the VAT component on the damaged parts to be replaced, it is stated that no additional VAT is required to be paid as the parts allowed included the VAT component [Annexure R-I-H]. It is also categorically stated that the assessment was strictly as per motor policy terms and conditions and depreciation as applicable under the policy guidelines issued by IRDA. The Opposite Party No. 1 has prayed for the dismissal of the present complaint, with costs, qua it. The version/ written statement is supported by a short affidavit of Sh. Raj Kapoor, Sr. Divisional Manager, Opposite Party No. 1. 18. Opposite Party No. 2 has claimed in its preliminary objections that the present complaint qua it is false, frivolous, vexatious and the dispute raised by the Complainant is actually with regard to Opposite Party No. 1 and 3. The assessment of loss of vehicle in question is factually correct. However, while replying on merits, Opposite Party No. 2 in reply to para 14 of the complaint has categorically admitted that the VAT amount is to be charged on the total amount of estimate and that the total expenditure would have been 7.4 lacs. As far as the averments regarding not considering all the damaged items by the Surveyor, the said application is liable to be answered by Opposite Party No.3 only. Thus, alleging on deficiency in service on its part, towards the Complainant, Opposite Party No. 2 has sought the dismissal of the complaint qua it. The reply/ version of Opposite Party No. 2 is supported by a detailed affidavit of Mr. Ravi Jolly, CEO of Opposite Party No. 2. 19. Opposite Party No. 3 in its version has claimed that he is a qualified Category ‘A’ Surveyor licensed by the IRDA. While replying to the averments of the complaint, Opposite Party No. 3 has categorically stated that he has made the assessment of the vehicle in question as per the rules and regulations applicable. While preparing this report, the issue was thoroughly discussed with Opposite Party No.1, however, the Complainant failed to turn up, for necessary queries and discussion, even though, he was sent a registered letter, to come forward for the discussion. But as the Complainant did not cooperate, the report was prepared and submitted with Opposite Party No.1, for processing the claim of the Complainant. 20. Opposite Party No.3 too has categorically stated at the end of Para 4 it is mentioned that the parts allowed vide his assessment include the VAT. Opposite Party No.3 has requested that the present complaint deserves dismissal also on the ground as the Complainant is not a consumer qua him. Opposite Party No.3 has prayed for dismissal of the present complaint qua him with costs.
21. Opposite Party No.4, in its preliminary objections to the complaint, has prayed that there is no deficiency in service on its part qua the dispute, as mentioned in the present complaint, and thus, it deserves to be dismissed on this score. The claim of the Complainant that he is regularly paying the installments, towards the loan availed from Opposite Party No.4 is admitted and is further stated that Opposite Party No.4 is not privy to the developments that had happened with regard to the vehicle in question, after its accident. 22. Parties led their respective evidences. 23. Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsels for the parties, we have come to the following conclusions. 24. It is the admitted case of the parties that the Complainant had purchased a new car and got it insured from Opposite Party No. 1, valid from 13.4.2011 to 12.4.2012. The copy of the policy dated 17.4.2011 is at Annexure C-1. The vehicle in question met with an accident and the claim was lodged with Opposite Party No.1, who deputed Opposite Party No.3 as a Surveyor. The surveyor inspected the vehicle while it was lying at the premises of Opposite Party No.2. The Complainant had provided the rough estimate as prepared by Opposite Party No.2 to the tune of Rs.9,66,864/- dated 5.9.2011, which is annexed at Annexure C-5. Original copy of the same was brought on record by Opposite Party No. 1 and the same is annexed at Annexure R-I-B at Pg. 8 of their reply. 25. The Surveyor while submitting his rough estimate which is annexed at Annexure C-6 has assessed the loss of the damaged parts, less depreciation as 4,92,227/-, Rs.50,000/- was assessed as labour charges, Rs.1500/- was found payable against the towing charges, and the necessary less policy clause for Rs.1000/- was included. Thus, bringing the total amount of loss payable towards the claim of the Complainant was assessed to Rs.5,42,727/-. It is found that while submitting his final private and confidential report (Annexure C-7), Opposite Party No.3 has repeated the entire contents of Annexure C-6, along with other relevant investigations done by him. While submitting this report, which is annexed at Pg. 43, the VAT component @12.5% is shown to be ‘Nil’. Even in his version/ reply Opposite Party No. 3 has categorically stated in Para No. 4 that the parts allowed included the VAT. 26. The claim of the Complainant that the vehicle in question was to be assessed on the basis of CTL (Constructive Total Loss); whereas, the Surveyor Opposite Party No. 3, in his assessment, has assessed the vehicle “on repair basis”, which according to the Complainant, is completely wrong, as per the General Regulations No.8, which was applicable to his case, as the loss calculated and passed by the surveyor (Opposite Party No.3) was approx. 84% of the IDV [Rs.7,85,345/-] of the vehicle in question. Reason being, the surveyor in his assessment has failed to include the VAT component, which was to be charged by Opposite Party No. 2, on the parts to be replaced, if the vehicle was to be repaired. This aspect has become crystal clear from the version, as well as the detailed affidavit of Opposite Party No. 2, wherein, in para no. 14, Opposite Party No.2 has categorically stated that the VAT amount is to be charged on total amount of estimate and that the total expenditure would have be Rs.7.4 lacs. However, the reliance placed by Opposite Party No. 1 and 3 on the document of Opposite Party No.2 (Annexure R-I-H), which is an office communication of Opposite Party No. 2 to Opposite Party No.1. We feel that while relying on this document, Opposite Party No. 1 and 3 have tried to amend their versions, by appending an additional line in handwriting and is found to be written in ‘Green Ink”, which to our mind, indicates that it was an afterthought, and an act of cover-up of their fault, by Opposite Parties No.1 and 3. In the present circumstances, the version of Opposite Party No. 1 is to be believed, thus, finding that Opposite Parties No. 1 and 3 have failed to assess the value of the damaged parts of the vehicle in question, without the VAT component, which was to be charged by Opposite Party No. 2. Finding that the clause of G.R.8, as mentioned in para 13 of the complaint, and reproduced below:- “The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/ Constructive Total Loss (TL/ CTL) claims only. A vehicle will be considered to be a CTL, where the aggregate cost of retrieval and / or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV. is squarely applicable to the present case, as the claim of the Complainant that after adding VAT component, the loss for repair as assessed by the Surveyor would not be Rs.6,66,442/-. But was likely to fall close to Rs.7.40 lacs, which is approx. 84% of Rs.7,85,345/- (the IDV of the vehicle). 27. The claim of the Complainant that he has suffered a loss on account of parking charges claimed by Opposite Party No.2 as well as the expenses incurred by him, on hiring of taxi, for Rs.500/- per day, and the interest payable by the Complainant towards the loan availed by him from Opposite Party No.4, does not deserve any observation, as to our mind, these are consequential losses, which are not to be considered by us, while deciding the present complaint. 28. We feel that the grievance of the Complainant with regard to the ignorance of VAT component applicable to the assessment of the claim is definitely a deficiency in service on the part of Opposite Parties No.1 and 3, as the claim of the Complainant definitely falls under the CTL category as per GR-8. Thus, we feel that the present Complaint deserves to be allowed against Opposite Parties No. 1 and 3. Since nothing is made out against Opposite Party No. 2 and 4, hence, the present complaint is dismissed qua them. 29. Hence, in the light of above observations, we find a definite deficiency in service on the part of the Opposite Parties No.1 & 3. The present complaint of the Complainant succeeds against the Opposite Parties No.1 & 3, jointly & severally, and the same is allowed. The Opposite Parties No.1 & 3 are directed:- [a] To assess the claim of the Complainant on CTL (Constructive Total Loss) basis, and release the amount of Rs.7,85,345/- being the IDV of the vehicle, less the value of the wreck (salvage), as mentioned in GR.8. [b] To pay a compensation of Rs.20,000/- for mental harassment and agony to the Complainant; [c] To pay Rs.7,000/- as litigation costs. 30. The above said order shall be complied within 45 days of its receipt by Opposite Parties No.1 & 3; thereafter, Opposite Parties No.1 & 3 shall be liable for an interest @18% per annum on the awarded amount of compensation Rs 20,000-/ + the assessed amount on CTL basis, from the date of filing of the present complaint i.e. 1.6.2012, till it is paid. 31. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 01st June, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER ‘Dutt’ =================================================================================================================================================================================================================================================== Raj Deep Singh vs. New India Assurance Ltd. & Ors (Complaint No.554 of 2011) Date of Order: 11.06.2012 DISSENTING ORDERPER MADHU MUTNEJA, MEMBER I have read the order, written by Sh. Jaswinder Singh Sidhu, Member and duly signed in agreement by Hon’ble President Sh. Lakshman Sharma, wherein Opposite Parties No.1 and 3 who are the Insurance Company and the Surveyor respectively, have been held liable to pay the claim. I do not agree with the order in its entirety. In my opinion, Opposite Party No.3 (Surveyor) cannot be asked to indemnify the Complainant due to the following reasons:- 1] A contract of insurance is always between the insurer and the insured, wherein the insurer agrees to indemnify the loss suffered by the insured in return for a consideration, which is called “Premium”. In the instant case, the Ld. Member seems to have gone beyond the terms of contract of insurance, as the Surveyor has also been held liable to indemnify the insured. There is no contract between the Complainant and the Surveyor. 2] The Surveyor is only an officer appointed by the Insurance Company to assess the loss, which has occurred to the Complainant’s vehicle. His report may be rejected by the Insurance Company by giving reasons. Even the Complainant has the right to challenge the report given by the Surveyor. But under no circumstances can the Surveyor be held liable to indemnify the loss suffered by the insured, in case his assessment is found to be incorrect or improper or he has gone beyond his functions. In this situation, only the insurance company has a right to proceed against him, if the cause arises. 3] Hence, in my opinion, the complaint should be allowed against Opposite Party No.1 only, as the Surveyor (Opposite Party No.3) has no privity of contract with the Complainant. The complaint against Opposite Party No.3 is accordingly dismissed. 4] Certified copies of this order be communicated to the parties, free of cost. After compliance file be consigned to record room. Announced 11.06.2012 Sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | |
