DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 132 of 19-06-2009<br /> Decided on : 18-12-2009 <br /> <br /> Sham Sunder S/o Teja Ram R/o H. No. 7473, Kartar Basti, Gali No. 3, Near Kali Mata Mandir, Bathinda. .... Complainant<br /> Versus<br /> <br /> 1.Oriental Insurance Co. Ltd., Bank Bazar, Bathinda, through its Divisional Manager.<br /> 2.Oriental Insurance Co. Ltd., D.O. VII, 7 Red Cross Place, Kolkata through its Diviosnal Manager.<br /> 3.Magma Shrachi Finance Coprn. Ltd., Tinkoni, Guru Kashi Marg, Bathinda through its Manager/Authorised Person/Pardep Bansal.<br /> 4.Imperial Motors, (Authorised Dealer of Mahindra), Mansa Road, Bathinda through its Owner/Manager.<br /> 5.Raj Kumar Singla, Surveyor cum Loss Assessor, 88E,. Model Town, Delhi Road, Near Jindal Chowk, Hissar 125005.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Ms. Vikramjit Kaur Soni, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Naresh Garg, counsel for the complainant <br /> For the Opposite parties : Sh. Tejinder Singh, counsel for opposite party Nos. 1 & 2.<br /> Sh. J S Kohli, counsel for opposite party No. 3.<br /> Sh. Narinder Kumar, counsel for opposite party No. 4.<br /> Opposite party No. 5 exparte. <br /> <br /> <br /> <br /> <br /> O R D E R<br /> <br /> VIKRAMJIT KAUR SONI, PRESIDENT<br /> <br /> 1. In brief, the case of the complainant is that he is owner of Mahindra Maxi Pick Up bearing Registration No. PS-03-S-9407 Model August, 1008, financed by opposite party No. 3 and insured for IDV of Rs. 4,56,950/- with opposite party Nos. 1 & 2 vide Cover Note No.105540 w.e.f. 30-08-08 to 29-08-09 which is a cashless Insurance under the agreement between opposite party Nos. 1 & 2 and opposite party Nos. 3 & 4. On 18-01-2009 at about 7.00 A.M. the said vehicle met with an accident near Village Bhaika with road side trees when it was being driven by Resham Singh, driver. The intimation of the accident was given to opposite party No. 3 who deputed Mr. Dinesh Goyal, spot surveyor to assess the loss. The vehicle was shifted with opposite party No. 4 under agreement of cashless insurance and as per directors of the surveyor and opposite party Nos. 1,2 and 3, with the help of another vehicle by spending Rs. 2,000/-, as the vehicle in question was extensively damaged. The opposite party No. 4 prepared estimate to the tune of Rs. 3,12,477/- on the asking of opposite party Nos. 1 to 3 and they appointed final surveyor Mr. Raj Kumar Singla, who also inspected the vehicle in question.<br /> The vehicle is still lying in the custody of opposite party No. 4 as per directions of opposite party Nos. 1 to 3 and 5 as they have cashless agency agreement with opposite party No. 4 and opposite parties have not started the repair of the vehicle. He wrote many registered letters, but no reply was received from the opposite parties. The opposite parties instead of starting repair of the vehicle, demanded illegally 50% of the estimates amount from him prior to starting the repair against cashless rules and also demanded parking charges and estimate preparation charges etc., through their letter dated 15.05-09. Mr. Raj Kumar Singla, final surveyor of the opposite parties, obtained his signatures on some blank documents and assured him that full claim will be paid to the workshop i.e. opposite party No. 4, directly or otherwise the loss will be settled on net off salvage basis as per rules. He alleges that if the loss is assessed by the authorised agent of the manufacturer, the same cannot be reduced. The complainant approached the opposite parties and demanded his claim for the amount of Rs. 3,12,477/-, but no reply was received by him. He suffered mental tension, agony and pains on account of non-payment of his claim. <br /> The complainant asserts that vehicle is hypothecated with opposite party No. 3 on behalf of opposite party Nos. 1 & 2 and he paid all the installments to opposite party No. 3 in time prior to the accident and as such, he is entitled for the claim amount or the payment be directly released to opposite party No 4. He suffered business loss to the tune of Rs. 25,000/- per month from which he used to pay EMI to opposite party No. 3 to the tune of Rs. 11,700/- per month.<br /> Hence, he has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act) and sought direction from this Forum to the opposite parties to pay Rs. 3,12,477/- either to him or to opposite party No. 4 directly on account of loss and to pay him Rs. 25,000/- per month on account of business loss; Rs. 30,000/- as compensation for mental agony and pains and interest @ 18% P.A. on the loss amount from the date of loss till payment. He also seeks directions that parking charges and estimate charges etc., if any, demanded by opposite parties No. 4 be paid by opposite party Nos. 1 to 3 directly to opposite party No. 4. He prays that opposite party Nos. 1 to 3 and 5 be directed to issue the directions to opposite party No. 4 to repair the vehicle and hand over the same to him without any further delay. <br /> 2. The opposite party Nos. 1 & 2 filed reply taking legal objections that present complaint is not maintainable; they do not admit allegations; this Forum has got no jurisdiction; complainant has got no locus standi or cause of action; he has not come before this Forum with clean hands; there is no deficiency in service on their part; complaint is false and vexatious and the complainant is guilty of his own wrongs. It has been admitted that Mahindra Maxi Pack Up No. PB-03-S9407 is insured with opposite party No. 3 under agreement with them but it has been denied that it is a cash less insurance policy and any direction was issued by the spot surveyor on their behalf for shifting the vehicle to the workshop of opposite party No. 4. It has also been denied that any direction was issued by them or their surveyor to opposite party No. 4 for preparation of estimate. It has been submitted that the estimate amounting to Rs. 3,12,477/- was prepared under the instructions of complainant and the surveyor submitted his report dated 29-05-09 assessing net loss to the tune of Rs. 1,20,507/- only.<br /> It has been stated that surveyor (opposite party No. 5) gave remarks on Motor Survey Report that insured was asked several times to get the vehicle repaired but he always insisted for settlement of claim on Total Loss basis and the damages to vehicle are not of the nature which may not be repaired. The said surveyor visited Bathinda on 25-03-09 and discussed the matter with 6-7 people including Megma Finance persons & representative of insurer and insured and the insured was offered that he may get replaced the damages parts with new including chassis also and he promised to get the vehicle repaired. Since the insured has not started repairs, independent assessment as per damages observed was carried out by him.<br /> It has been pleaded that claim amount becomes payable only after completion of repairs of the vehicle in which he is not interested as he wants to extract money by settlement of claim on Total Loss Basis. <br /> 3. Opposite party No. 3 filed its reply stating therein that vehicle in question is hypothecated with it and the complainant is in default of Rs. 46,820/- amount of approximately four installments and also future installments which are required to be paid by him are for Rs. 3,77,928/- . It has been prayed that if this Forum comes to conclusion that any amount is to be paid, it be paid to it being first entitled for the claim and also in compliance to the terms and conditions of the Hire Purchase Finance Agreement executed between complainant and it.<br /> 4. Opposite party No. 4 filed separate reply taking legal objections that complainant has no locus standi; vehicle in question is a commercial one and as such, complaint is not maintainable; there is no privity of contract between opposite party Nos. 1 to 3 and opposite party No. 4 as alleged by the complainant; no cause of action arose to the complainant and there is no deficiency in service on the part of the opposite parties. On merits, it has been submitted that there is no Cashless Insurance Agency agreement of opposite party No. 4 with opposite party Nos. 1 to 3 and as such, question of any direction of opposite party Nos. 1 to 3 or of the spot surveyor to opposite party No. 4 does not arise at all. It has been specifically denied that the estimate was prepared by opposite party No. 4 under the supervision or direction of surveyor of opposite party Nos. 1 to 3. It has been pleaded that complainant had himself requested opposite party Nos. 4 to prepare the estimates as he wants to produce the same to the Insurance Company to lodge his claim and otherwise too, it is mandatory to be prepared in such like damages because the opposite party No. 4 used to receive half amount of estimate in advance before starting the repair work. <br /> 5. None appeared on behalf of opposite party No. 5 despite service of notice, and as such, exparte proceedings were taken against him.<br /> 6. In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of Insurance Cover Note Ex. C-2, photocopy of important Information Ex. C-3, photocopy of RC of vehicle Ex. C-4, photocopy of driving licence of Resham Singh Ex. C-5, photocopy of letter dated 9-02-09 Ex. C-6, photocopy of postal receipts Ex. C-7, photocopy of letter dated 13-04-09 alongwith postal receipt Ex. C-8, photocopy of postal receipts Ex. C-9, photocopy of spot survey report Ex. C-10, photocopy of final survey report Ex. C-11, photocopy of motor claim form Ex. C-12, photocopy of estimate Ex. C-13, another affidavit of complainant Ex. C-14, photocopy of Gazette Notification Ex. C-15 and photocopies of letters and receipts Ex. C-16 to Ex. C-19.<br /> 7. To controvert the evidence of the complainant, the opposite parties No. 1 & 2 tendered in evidence affidavit of Dr. J L Ahuja Ex. R-6, photocopy of list of papers Ex. R-7, photocopy of commercial vehicle package policy Ex. R-8, photocopy of certificate-cum-policy Ex. R-9, photocopy of Insurance Finance Coverage Ex. R-10, opposite party No. 3 produced on record affidavit of Sh. Rajiv Jindal Ex. R-1, photocopy of account statement Ex. R-2, letter dated 9-2-09 Ex. R-3, reply dated 20-02-09 Ex. R-4, postal receipt Ex. R-5 and opposite party No. 4 tendered documents affidavit of Sh. Sanjeev Devga Ex. R-11, photocopy of Job Car Ex. R-12, photocopies of letters and postal receipt Ex. R-13 to Ex. R-15 and a copy of Resolution Ex. R-16.<br /> 8. We have heard learned counsel for the parties and have gone through the record and written submissions of the parties.<br /> 9. In paras No. 11 & 18 of the written reply on merits, the opposite party Nos. 1 & 2, have pleaded that Sh. Raj Kumar Singla, Surveyor & Loss assessor appointed by them, went to Bathinda on 25-03-2009 and had a meeting and discussion in detail with 6-7 persons including the complainant, his representative as well as Megma Finance, opposite party No. 3 and he had offered the complainant that he should get damaged parts including chassis replaced and that the complainant had promised to get it repaired. It has been further pleaded that they have come to know that complainant has not got started repair of the vehicle so far. This fact also stands mentioned in survey report Ex. C-11. Hence the intent and content of these paragraphs of the written reply is that the opposite party Nos. 1 & 2 were prepared to bear all the expenses of the new parts which were required for the repair of the vehicle in question. Therefore, the opposite party Nos. 1 & 2 have themselves admitted their liability to bear all the expenses of the damaged parts of the vehicle in question and also the labour charges notwithstanding the assessment of the surveyor of opposite party Nos. 1 & 2 and that of opposite party No. 4 regarding loss caused to the vehicle in question. In short, opposite party Nos. 1 & 2 are to bear all the expenses of reinstatement of the vehicle in question to its condition as it was before accident.<br /> 10. The following clause of Commercial Vehicle Policy Ex. R-8 also corroborates the fact that Insurance Company is bound to reinstate the vehicle in question in its condition as it was at the time of obtaining the Insurance Policy :<br /> “The Company may at its own option repair reinstate or replace the vehicle insured or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed :<br /> a) for total loss/constructive total loss of the vehicle the Insured's Declared Value (IDV) of the vehicle including accessories thereof as specified in the Schedule less the value of the wreck.<br /> b) for partial losses are losses other than Total Loss/Constructive Total Loss of the vehicle – actual and reasonable costs of repair and/or replacement of parts lost/damaged subject to depreciation as per limits specified.”<br /> 11. Thus, above extracted clause gives an option to the Insurance Company either to get the vehicle in question repaired or to reinstate it into its original conditions or to replace it or to pay cash amount of the loss subject to certain conditions. As discussed in the preceding paragraphs, the Insurance Company has offered to exercise its option of getting the vehicle in question repaired so as to reinstate it to its original condition in which it was at the time of purchasing the Insurance policy and that is why the surveyor had made the above said offer. <br /> 12. The vehicle in question had met with an accident within a period of 6 months from the date of commencement of policy as also of its purchase. Therefore, it was a new vehicle. As per IRDA policy formula, no depreciation for the valuation of the vehicle in question shall be applicable. Hence, a finding is recorded that opposite party Nos. 1 & 2 are liable to get the vehicle in question repaired so as to reinstate it to its original condition.<br /> 13. The stand between the parties is that the complainant alleges that estimate for repair of the insured vehicle prepared by opposite party No. 4 is for Rs. 3,12,477/- whereas opposite party Nos. 1 & 2 allege that their surveyor had assessed the loss caused to the vehicle in question to the tune of Rs. 1,20,507/-. The opposite party Nos. 1 & 2 has assessed the estimate of repair of the vehicle in question so as to reinstate it to its condition in which it was at the time of purchasing the Insurance Policy.<br /> 14. A perusal of survey report Ex. C-11 would show that the surveyor has estimated loss to the vehicle in question to the tune of Rs.3,15,255.38 whereas he assessed the loss to the tune of Rs. 1,20,507.25 by discarding many of the estimated claims and allowing depreciation on fibre and rubber parts to the extent of 30% and 50% respectively as per GR 9 of the schedule of depreciation for arriving IDV. Therefore, if the report of surveyor for grating a sum of Rs. 1,20,507/- only is accepted, the vehicle in question, would not be fully repaired and consequently, would not be reinstated to the conditions when it was got insured.<br /> 15. As already held above, the opposite party Nos. 1 & 2 are bound to get the vehicle repaired so far as to get it reinstated to its position when it was got insured. Thus, in these circumstances, we found that instead of assessing any damage caused to the vehicle in question, it would be most appropriate to direct opposite party Nos. 1 & 2 to get the vehicle in question repaired from an authorised dealer of the vehicle of this make at its own cost so as to get is reinstated to its condition in which it was at the time of its Insurance. <br /> 16. In the instant case, the vehicle has been lying with opposite party No. 4 since 21st January, 2009. The complainant alleges that he had shifted the vehicle to opposite party No. 4 on the directions of opposite party Nos. 1 to 3. However, they have denied this assertion. The assertion of the complainant has been corroborated by first survey report Ex. C-10 whereby surveyor Sh. Dinesh Goyal, had directed the former to shift the vehicle in question to Bathinda and not to start its repair before final survey. Certificate-cum-policy schedule Ex. R-9 also say so.<br /> 17. The vehicle was extensively damaged. Therefore, it was not supposed to remain parked at the place of accident. Had it been remained there, the vandalizer would have stolen away all of its parts. Therefore, it was to be shifted to some safe place and the only such place was opposite party No. 4, which is an authorised dealer of the vehicles of Mahindra Trade mark to which the damaged vehicle belongs to. Hence, even if, opposite party Nos. 1 to 3 did not direct the complainant to shift the vehicle in question to opposite party No. 4, action of the complainant to shift the vehicle to that place was judicious in the facts and circumstances of the case.<br /> 18. The vehicle in question has not been repaired so far because of the directions as contained in preliminary survey report Ex. C-10 and certificate-cum-policy schedule Ex. R-9 and the claim has not been settled so far. As is evident from Clause '4' of the Commercial Vehicle Package Policy Ex. R-8, extracted above, one of the option available with the Insurance Company was to get the vehicle in question repaired at its own and to reinstate it to its condition in which it was at the time of its Insurance. Another option was to assess its loss and to pay that amount to the owner/insured of the vehicle. Therefore tone and tenor of this clause and according to commercial vehicle package policy, the insurance of the vehicle in question was cashless policy meaning thereby that owner of the insured vehicle was not to spend anything on the damaged vehicle from his own pocket and it was to be reinstated to its condition in which it was at the time when he had purchased the insurance policy. <br /> 19. The vehicle in question has not been repaired so far because of the above pointed out deficiency in service on the part of opposite party Nos. 1 & 2. The complainant is a poor cab owner deprived of a only source of his income as a result of damages caused to his cab and as such, was neither supposed to bear the expenses of its repair nor he was having such financial resources. The insurer neither settled the claim within reasonable period of 3-4 months nor got the vehicle in question repaired. It was brought to the premises of opposite party No. 4 as per directions of opposite party Nos. 1 to 3. The complainant agreed to pay Rs. 200/- per day as parking charges to opposite party No. 4. Since ambivalent conduct of opposite party Nos. 1 & 2 has prolonged parking of the vehicle in question with opposite party No. 4, the parking charges of the vehicle in question are to be borne by opposite party Nos. 1 & 2.<br /> 20. The parking charges of Rs. 200/- per day appears to be on the higher side. In our opinion, a sum of Rs. 1,000/- per month would be adequate compensation to opposite party No. 4 as parking charges. Therefore, opposite party Nos. 1 & 2 will pay parking charges to opposite party No. 4 w.e.f. 21st January, 2009 till repair of the vehicle in question commences.<br /> 21. The complainant has got the vehicle in question on higher purchase basis from its financer, opposite party No. 4, for eking out his livelihood. The accident of his vehicle in question on 18-01-2009 had deprived him of his livelihood also. The vehicle in question was damaged on 18-01-2009 as a result of an accident and it was shifted to opposite party No. 4 on 21-01-09. Therefore, had the opposite party Nos. 1 & 2 settled the claim within a reasonable period of 3-4 months and the vehicle could have been repaired within a period of two months or so, he would have started eking out his livelihood by plying his cab at the most w.e.f. August, 2009. But, he was not been able to earn his livelihood so far. The complainant has claimed Rs. 25,000/- per month on account of loss to his business. This amount also appears to be on higher side. The vehicle in question had met with an accident on 18-01-2009. Thus it is not earning anything for the complainant. He has purchased this vehicle on higher purchase basis as a result of which he has to pay E.M.I. to opposite party No. 3 @ Rs. 11,700/- per month. Therefore, in our opinion, Rs. 11,700/- per month as compensation for loss to his business w.e.f. August, 2009 till the vehicle in question is on the road, would be justifiable amount.<br /> 22. In view of the findings recorded above, this complaint is accepted with Rs. 5,000/- as costs with following directions to the opposite parties :-<br /> i) Opposite party Nos. 1 & 2 shall get the vehicle in question repaired within a period of 30 days from the date of receipt of copy of this order.<br /> ii) Opposite party Nos. 1 & 2 shall pay parking charges @ Rs. 1,000/- per month, to opposite party No. 4 w.e.f. 21-01-2009, till the date the repair of vehicle in question is started.<br /> Iii) Opposite party Nos. 1 & 2 shall pay to the complainant compensation for loss to his business @ Rs. 11,700/- w.e.f. July, 2009 to date of this order, within 30 days from the date of receipt of copy of this order.<br /> iv) Remaining amount shall be paid within 30 days after the vehicle in question becomes roadworthy after its repairs.<br /> Copy of this order be sent to the parties concerned free of costs and the file be consgined.<br /> Pronounced :<br /> 18-12-2009 <br /> (Vikramjit Kaur Soni)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul) Member <br />