DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.
CONSUMER COMPLAINT NO. 802 of 2017/2019
DATE OF INSTITUTION: - 29.08.2017
DATE OF ORDER: - 31.05.2023
Satpal aged about 40 years son of Sube Singh, resident of village Sanga, Tehsil &District Bhiwani.
……………Complainant.
VERSUS
- The Oriental Insurance Company, Registered office, Oriental House P. Box No. 7037, A/25-27, Asaf Ali Road, New Delhi through Branch Officer, Circular Road, Opposite Nehru Park, Bhiwani.
- Sh. Gajanand Sharma son of Sh. Ameshwar Sharma, agent of Oriental Insurance Company Limited, resident of VPO Ranila, Tehsil & District CharkhiDadri.
- M/s Raghu Haundai, Rohtak road, Bhiwani through its authorized signatory.
………….. Opposite Parties.
COMPLAINT U/S 12 & 13OF CONSUMER PROECTION ACT
BEFORE: Mrs. Saroj Bala Bohra, Presiding Member
Sh. D.M. Yadav, Member
Present:- Shri Shankar Sharma, Advocate for complainant.
Shri Sunil Sharma, Advocate for OP no. 1.
Shri Mahesh Bhardwaj, Advocate for OP no. 3.
OP no. 2exparte.
ORDER:-
Saroj BalaBohra, Presiding Member:
1. Brief facts of the case, as per complainant are that complainant had purchased a new passenger car no.HR-10S/0051 i.e, HYUNDAI KAPPASPORTZ in the year 2011 and the same vehicle was got insured with OP no. 1 through OP no. 2 who is authorized agent of OP no. 1 vide policy no. 261202/31/2015/3012 covering the period from 15.9.2014 to 14.9.2015 and the premium was paid to the OPs and the insurance amount of the said vehicle was Rs. 5 lacsalongwith RC. The complainant purchased the abovesaid vehicle from OP no. 3 which was duly insured with OP no. 1.
2. It is alleged that on 7.8.2015, when the said vehicle was being driven by Shri Krishan son of Mahabiralongwith co-passenger Tinku son of Mahpal were coming from village Lohani and when they reached at DevsarMor in the meantime a blue cow (neelgain) came on the mid of road and as a such driver Krishan lost his control and the vehicle hit in a tree for which pillion rider Tinku suffered multiple and grievous injuries whereas driver Krishan suffered some minor injuries. It is further alleged that the said vehicle met with an accident and such type of damages like body band, front portion of vehicle damaged, broken of glass and the vehicle became off road. It is further alleged that on the same day, the complainant informed the OP no. 1 and on the instruction of OP no. 1 the vehicle was taken in authorized service station of Hyundai at Bhiwani and DDR no. 24 dated 17.10.2015 was got registered at police of Sardar Bhiwani.
3. It is alleged that the said vehicle of the complainant was kept by the authorized service station of Raghu Hyundai Bhiwani. The surveyor was deputed by the OP no. 1 to investigate the matter who prepared the survey report. The complainant was directed by the said agency to deposit a cheque of Rs. One lakh and a sum of Rs.10000/- as cash. It is further alleged that after keeping the vehicle for about more three months, the authorized agency of Raghu Hyundai Bhiwani informed the complainant that manufacturing company has now stopped to provide spare parts of the said vehicle which were manufactured in the year 2011. The complainant deposited one lack with OP no. 3 for repair of abovesaid vehicle. The OPs are unable to repair the vehicle and ultimately the vehicle of the complainant was returned in the same condition and Rs.85000/- after deducting Rs.15000/- parking and other charges by the authorized agency from the deposited amount of Rs.1 lakh by way of cheque.
4. The complainant submitted his claim for settlement with the OP no. 1 for which he claimed the entire insured amount against the aforesaid policy issued by OP no. 1 but the matter was being deferred on one pretext or other and on 10.1.2017, the OP no. 1 refused to pass any claim on one pretext or other. It is further alleged that the said vehicle is standing still with the OP no. 3 and the same is not being repaired within the warranty period of five years but the matter is lingering by OP no. 3. The complainant further alleged that due to the act and conduct of the respondents he has to suffer mental agony, physical harassment and financial losses. Therefore, the complainant claimed a sum of Rs.1 lakh for deficiency in service and negligence to give Rs. 1 lakh for harassment, mental pain and mental agony, Rs. 1 lakh on account of loss of income, to replace the damage vehicle or to pay amount of vehicle no. HR-10S-0051 damaged in accident alongwith 24% interest on the amount. Rs.10,000/- for litigation expenses and Rs.25,000/- on account of estimate and parking charges etc.
5. On appearance, OP no. 1 filed written statement alleging therein thatthe complaint is not maintainable in the present form and the complainant has no locus standi and cause of action to file the present complaint. The complainant has not come to the Forum with clean hands and he has suppressed the material facts from the Hon’ble Forum. It is submitted that on receipt of the intimation of the accident of the insured vehicle, surveyor was deputed to inspect the spot, who submitted the report and further loss assessor and investigator was deputed to assess the damages caused to the vehicle and who recommended to settle the claim on repair loss basis at Rs.2,25,000/- less clause Rs.1,000/- subject to final approval as per terms and conditions of the insurance policy. The complainant concealed the factum of availing 35% NCB at the time of renewal of the insurance policy of the insured vehicle and despite various reminders, he failed to submit the clarification regarding NCB taken by him. It is further submitted that the complainant furnished wrong information by submitting declaration which is the breach “utmost good faith” policy and as such the claim was repudiated as No Claim and was intimated vide letter dated 10.4.2017 and there is no deficiency in service on the part of the respondent company to repudiate the claim and the complainant is not entitled to seek compensation any type of compensation.
Therefore, there is no deficiency in service on the part of OPno. 1. It is prayed that the complaint be dismissed.
6. No one has appeared on behalf of OP no. 2, hence he was proceeded against exparte vide order dated 6.11.2018.
7. On appearance, OP no. 3 filed written statement alleging therein that the complainant has neither any locus standi nor any cause of action accrued to him for filing and maintain this complaint and the complainant has not come with clean hands and concealed the true and material facts before this Forum The OP no. 3 had prepared the estimate of loss and the same was handed over to complainant as well as OP no. 1. It is further submitted that on getting approval from the complainant the OP no. 3 placed the order for the parts with Hyundai Motor India Ltd. And the Hyundai Motor India Ltd. had stopped supplying the parts like body shell of the car in question because this car was being obsolete at the time of placing the order of parts. It is further submitted that the OP no. 3 had refunded the balance amount of the complainant except the estimate and the parking charges. It is mentioning here that the vehicle of the complainant was insured with OP no. 1 through OP no. 2 and there is no deficiency in service on the part of OP no. 3 and the alleged occurrence is 7.8.2015 why the complainant got rectified DDR on dated 17.10.2015 after delay of 103 days.Therefore, there is no deficiency in service on the part of OP no. 3 and the complainant is not entitled to any relief as prayed for and the same is liable to be dismissed.
8. To prove its complaint, thecounsel for complainant has tendered in evidence affidavits as Exhibit CW1/A and Exhibit CW2/A and documents Annexure C1 to Annexure C9 and closed the evidence vide his separate statement dt.15.07.2019. Counsel for the OP no.3 tendered in evidence affidavit Exhibit RW1/A and closed the evidence vide his separate statement dated 19.12.2019. Evidence not produced on behalf of OP no. 1 and the same deemed to be close vide order dated 17.8.2022 but on 22.9.2022 OP no. 1 moved an application alongwith certain documents seeking to place on record documents by treating the evidence but OP no. 1 neither paid cost nor produced evidence and the same is ordered to be return to the counsel for the OP no. 1.
9. We have gone through the record of the case carefully and have heard the learned counsels forthe parties. Written arguments filed on behalf of OP no. 1.
10. In the present case the claim of the complainant has not been paid by the insurance company. There are two grounds on which the claim has been repudiated by the insurance company. It is admitted fact that complainant has suffered a loss of Rs.225000/- in his vehicle which has been proved after perusal of the written statement filed by the respondent no. 1. As per surveyor the complainant has suffered loss of Rs.225000/- in the vehicle in question. As per written statement filed by the respondent no. 3 the Hyundai Motor India Ltd. has stopped supplying the spare parts i.e. body shell of the car in question of the said vehicle because the model of the complainant’s car was being obsolete at the time of placing the order of parts by the respondent with the manufacturer. Hence the vehicle of the complainant could not be required because the manufacturing company i.e. Hyundai Motors India Ltd. has not supplied the damaged parts to the respondent no. 3 i.e. M/s Raghu India, Bhiwani. On the other hand, insurance company denied the claim of the complainant on another ground of concealment of material fact. As per the respondent no. 1 the complainant has availed the 35% NCB at the time of renewal of insurance policy. The complainant has wrongly availed 35% NCB from the respondent no. 1 and he submitted the wrong declaration before the respondent no. 1. The claim of the complainant was repudiated by the insurance company on the ground vide letter dated 10.4.2017.
11. We have perused the documents placed on record by the respondent no. 1. In fact respondent no. 1 did not file any evidence and his defence was struck off. But some documents have been placed on file at the time of arguments with the written submission. In fact the opposite party no. 1 has failed to place on record any document to prove the fact that the complainant has wrongly availed 35% NCB. No such type of document has been submitted by the opposite party no. 1 with the written statement.
12. In the present case the complainant has not impleaded the manufacturer of the vehicle as necessary party because it is the prime duty of the manufacturer to supply the relevant parts which were required for the repair of the vehicle. But only the dealer/service centre has been impleaded as necessary party. As per our opinion it is established that thre is a loss of Rs.225000/- in the vehicle in question due to the accident and the insurance company i.e. respondent no. 1 indemnified the loss to the vehicle. It is also established that the vehicle could not be repaired. So the insurance company i.e. opposite party no.1 is liable to pay the claim amount to the complainant as assessed by the surveyor and the remaining amount shall be paid by the opposite party no. 3 being authorized agent/dealer of the manufacturing company.
13. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party no. 1 to pay the amount of Rs.225000/- (Rupees two lac five thousand only) alongwith interest @9% from the date of filing the present complaint i.e. 29.8.2017 till its realization and shall also pay a sum of Rs.5000/- (Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/- (Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
14. In the present case IDV of the vehicle is Rs.500000/-. As such, as per our opinion, the remaining amount of Rs.275000/- shall be paid by the respondent no. 3 after deducting the salvage value of the vehicle as Rs.75000/- i.e. Rs.200000/- (Rupees two lac only) alongwith interest @9% p.a. from the date of filing the present complaint i.e.29.8.2017 till its realization. However, opposite party no. 3 is at liberty to recover the alleged amount from the manufacturer. It is the prime duty of the dealer to repair the vehicle of the complainant as he is dealer of the manufacturing company and he can recover the same from the manufacturer. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Commission.
Dated: - 31.05.2023
(D.M.Yadav) (SarojBalaBohra)
Member. Presiding Member,
District Consumer Disputes
Redressal Commission, Bhiwani.
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