DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.327 of 2016

                                                Date of institution:  01.06.2016                                             Date of decision   :  23.07.2019

Sewa Singh son of Gurdev Singh aged 72 years resident of Village Sil, Tehsil Kharar, District SAS Nagar, Mohali, Punjab.

…….Complainant

Versus

1.     The Oriental Insurance Company Limited, SCO-20, Phase-1, Mohali, Punjab.

2.     Raj Motors, Authroised Dealer Mahindra & Mahindra Ltd. NH-21, Chotti Gandhon, Chandigarh Road, Ropar.

                                                            ……..Opposite Parties   

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Ms. Savita, counsel for complainant.

                Shri Satpal Dhamija, counsel for OP No.1.

                OP No.2 ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

              Complainant, an aged fellow of 72 years, approached OP No.1 for getting his Mahindra Xylo E8-ABS BS III vehicle insured with OP No.1 because OP No.1 claimed as if it is providing best services of insurance of vehicles. Premium of Rs.14,014/- was paid and thereafter complainant signed documents containing conditions. Cover note dated 31.10.2014 of insurance policy was issued for showing validity of insurance for period from 01.11.2014 to midnight of 31.10.2015. On 13.10.2015 when complainant was returning from his work to his home in the night, then he met with an accident because an unknown truck coming from front all of sudden applied his brakes due to coming of stray animal in front of it. Insured vehicle of complainant was fully damaged. DDR on 14.10.2015 regarding this accident was lodged at P.S. City Kharar, District Mohali. Thereafter, OP No.1 deputed surveyor who estimated the loss. Assurance was given to complainant to pay total loss as per conditions of insurance policy, but after getting requisite formalities completed.  Complainant after waiting for sometime again approached OP No.1 on 19.03.2016. However, instead of paying claim amount, OP disclosed complainant that he (OP  No.1)  has got the vehicle repaired, which was got done without written or verbal consent of complainant. Bill of repairs issued by Raj Motors of amount of Rs.4,90,295.14 N.P. was raised by OP. Complainant was called upon to pay Rs.2,50,000/- out of this bill amount. Despite approach to OP No.1 many times for redressal of grievance, OP No.1 has not considered the representations submitted by complainant. Earlier complaint No.274 of 2016 filed by complainant in this Forum was withdrawn for want of documents. Liberty to complainant to file fresh complaint was granted at that time. IDV of the insured vehicle is Rs.3,60,000/- and as such complainant has sought direction to OP No.1 to  refund amount of Rs.3,60,000/-. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.40,000/- more claimed.

2.             In reply submitted by OP No.1, it is claimed that complaint is premature; more over the same is framed in violation of provisions of Consumer Protection Act and the Rules framed thereunder.  It is also claimed that complainant has no cause of action or locus standi to file complaint because not an iota of document produced on file for proving deficiency in service. Complainant alleged to be not a consumer. In view of involvement of complicated and complex questions, matter should be got decided from civil court of competent jurisdiction because detailed evidence and cross examination of witnesses will be required. Admittedly complainant is owner of vehicle bearing registration No.PB-65-J-3170, which he got insured with OP No.1 with IDV of Rs.3,60,000/- for period from 01.11.2014 to 31.10.2015 through insurance cover note. On accidental loss to the vehicle, intimation was given to OP No.1 and thereafter Engineer Vinod Kumar Sharma was appointed as surveyor, who submitted report on 27.03.2016 for assessing net loss to the tune of Rs.2,44,899/- as per terms and conditions of the policy, but after making deduction towards metal and plastic parts as per age of vehicle. This loss was assessed by considering alleged loss of Rs.5,38,995/- through submitted documents by complainant. Even after receipt of report of surveyor on completion of formalities, complainant has not submitted proof of making of all payments to the repairer. In absence of such proof, OP No.1 is unable to release payment of Rs.2,44,899/- even.  Loss was assessed by surveyor after taking into consideration the estimates and prices mentioned in invoices of different parts and after finding as to which parts are repairable. Complainant is not entitled to amount of Rs.3,60,000/-, but he is entitled for amount of Rs.2,44,899/- assessed by surveyor subject to completion of formalities like that of verification of driving license and registration certificate from the concerned authorities. As the vehicle is still lying with OP No.2 and as such it is claimed that complainant has not paid any amount to the repairer i.e. OP No.2. In the absence of consent of complainant, OP No.1 is not in a position to release assessed amount to OP No.2.  Other averments of the complaint denied by praying for dismissal of complaint.

3.             OP No.2 is ex-parte in this case.

4.             Complainant in order to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-6 and Mark-A and then his counsel closed evidence.  On the other hand counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Rama Mehndiatta, Dy. Manager alongwith surveyor report Ex.OP-1 and thereafter closed evidence.

5.             Written arguments submitted by complainant and OP No.1. Oral arguments heard and records gone through.

6.             After going through pleadings of parties and the submitted affidavits, there remains no doubt that vehicle in question was got insured by complainant with OP No.1 for IDV of Rs.3,60,000/- for period from 01.11.2014 to midnight of 31.10.2015 through insurance cover note –cum- policy schedule placed on record as Ex.C-1. Photographs of accidental vehicle in question produced as Ex.C-2 alongwith copy of DDR Ex.C-3. OP No.1 in its written reply even has not denied about taking place of accident and of lodging of complaint by complainant because OP No.1 admitted in reply as well as through affidavit Ex.OP-1/1 of its Deputy Manager that on lodging of claim, Surveyor Vinod Kumar Sharma was appointed. Ex.OP-1 is report of surveyor-cum-loss assessor dated 27.03.2016 produced by OP No.1. After going through this report, it is made out that damages to the vehicle were found fresh and accidental in nature by this surveyor. Being so, damages to the vehicle in question certainly caused in course of accident and that is why DDR Ex.C-3 immediately after the accident was lodged by complainant with police.

7.             Contentious issue remains as to whether complainant failed to comply with requirements of submission of verification report of driving license and registration certificate as projected through written reply of OP No.1 or not. After going through report of surveyor Ex.OP-1, it is made out that registration certificate of vehicle, as produced before surveyor, was checked and found in order. Moreover, driving license even was produced and checked by surveyor is a fact borne from report Ex.OP-1 itself. If the driving license and registration certificate were checked by surveyor, then it was the duty of insurance company to get verification reports of driving license and registration certificate for finding their genuineness and validity. However, instead of undertaking this obligation by OP No.1, burden is sought to be put on complainant by claiming through written reply as if complainant has not got verification of driving license and registration certificate obtained from concerned authorities. There is no requirement in the terms and conditions of the insurance policy that such verification reports to be obtained by insured. Rather such reports of verification from the concerned Motor Vehicle Licensing Authority always obtained by insurer and as such OP No.1 virtually failed to discharge its duty of getting verification reports of driving license and registration certificate just for denying claim of complainant. That is an act of grave deficiency in service on part of OP No.1 and as such for compensating complainant, interest @ 8% per annum from the date of surveyor report Ex.OP-1 dated 27.03.2016 must be allowed, so that an insurer like OP No.1 does not unnecessarily harasses its customers (insured) for its own fault of not getting verification reports obtained from concerned authorities.

8.             Another reason for denying claim amount is that complainant has not submitted his consent. There is nothing on record to suggest that OP No.1 ever issued any letter to complainant for calling upon him to submit consent letter for settlement of claim. However, complainant sent reminders Ex.C-5 and Ex.C-6 on 21.03.2016 and 01.04.2016 for calling upon OP No.1 to settle the claim. No response to these letters shown to be given by OP No.1 and as such virtually OP No.1 or its officials themselves dilly dallied the matter by not settling the claim.

9.             Complainant has produced on record estimate of repairs Ex.C-4 obtained from Raj Motors for claiming that total suffered loss is of Rs.4,90,295.14 N.P., but that amount certainly cannot be allowed because amount in excess of IDV of Rs.3,60,000/- fixed through Ex.C-1 cannot be allowed, more so when age of the vehicle also to be taken into consideration for assessing the amount permissible for carrying necessary repairs. After going through Ex.C-1, copy of insurance cover note as well as surveyor report Ex.OP-1, it is made out that the insured vehicle in question was manufactured in 2009, but accident took place on 13.10.2015 i.e. after 6 years of its manufacturing and as such full amount estimated through bill Ex.C-4 cannot at all be allowed. That estimate of the vehicle was taken into consideration by surveyor while preparing report Ex.OP-1. Assessment of loss is done through this report Ex.OP-1 by keeping in view estimates prepared by M/s. Raj Motors is a fact borne from perusal of Pages 3 to 5 of Ex.OP-1. Total assessed loss is of Rs.2,44,899/- by  keeping in view  depreciation, worth of the metaled  and plastic parts and age of the vehicle and as such complainant entitled to this assessed amount of Rs.2,44,899/-, but in view of fault of OP No.1 in not responding to representations Ex.C-5 and  Ex.C-6, entitlement of complainant for interest @ 8% per annum should be with effect from the date of preparation of report Ex.OP-1 namely 27.03.2016.

10.            It is also contended by counsel for OP No.1 that complainant has not produced bills for settlement of claim amount and as such fault lay with complainant. This submission again has no force because bill of estimate of repairs Ex.C-4 has been produced by complainant and thereafter it was for OP No.1 to call upon complainant to submit bills, if so required. No communication to complainant sent for calling upon him to submit bills of repairs, despite the fact that in the last page of surveyor’s report Ex.OP-1, it is mentioned that vehicle has been re-inspected after repair and it is found that all the parts allowed by surveyor have been replaced and necessary labour work has also been carried out. When after inspection of repaired vehicle the surveyor himself has found that necessary replacement of damaged parts has been done by paying necessary labour work charges, then certainly OP No.1 or its officials must have recorded reasons for recording dissent note to this observation of surveyor recorded in Ex.OP-1. No such dissent note shown to be recorded by OP No.1 or its officials and nor comments for such dissent note sought from complainant and as such fault lay with OP No.1 in this respect also. As the surveyor after inspecting vehicle for repair, found the repairs to be carried out in order and as such denial of claim must not have been ordered or withheld just due to non submission of bills of repairs by assuming that such bills have not been obtained by complainant because of vehicle lying with OP No.2 still at present. In view of this, complainant entitled to somewhat more compensation than that of one contemplated through report Ex.OP-1 of surveyor. Surveyor through report Ex.OP-1 has found that salvage of the damaged components would be the property of insurers, which they may collect from the insured/repairers before making final payment or in the alternative they may deduct the value of same in lieu thereof, but as major fault lay with OP No.1 in not settling the claim at earliest and as such deduction on account of salvage value must not be allowed in favour of OP No.1 or against complainant. Entitlement of value of damaged components in such circumstances is held to be of complainant, so that loss sustained by him for the above pointed out lapses of OP No.1 may be made good to complainant. In addition thereto complainant entitled to compensation for mental agony and harassment and to litigation expenses, because his representations remained unattended to or un-responded due to which he had no other option except to file this complaint. So contentions of Shri Satpal Dhamija, Advocate representing OPs No.1 has no force that amount will be paid to complainant as assessed through Ex.OP-1 on completion of formalities by complainant. Virtually no formalities remained to be complied with by complainant, as held above and as such OP No.1 must release the assessed amount through report Ex.OP-1 to complainant at earliest.

11.            As a sequel of above discussion, complaint allowed against OP No.1 by directing OP No.1 to pay assessed amount of Rs.2,44,899/- by the surveyor through report Ex.OP-1 with interest @ 8% per annum from the date of survey report namely 27.03.2016 till payment. Compensation for mental agony and harassment of Rs.20,000/-  (Rs. Twenty Thousand only) and litigation expenses of Rs.10,000/-   (Rs. Ten thousand only) more allowed in favour of complainant and against  OP No.1.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Complaint against OP No.2, however, is dismissed.  Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

July 23, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member