PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The Complainant has prayed that the Opposite Party be directed to pay Rs.8 Lacs being the claim amount payable under the Package Policy obtained by the Complainant from Opposite Party No.1& 2 alongwith interest @ 18% p.a. from 27/7/2005 till its realization. It is also prayed that the Opposite Party No.1& 2 be directed to pay Rs.24,065/- towards towing charges and parking charges @ Rs.300/- per day in respect of the vehicle insured with Opposite Parties No.1 & 2 from 27/07/2005 till the date of realization. The Complainant has also prayed to grant Rs.2 Lacs towards mental agony, harassment, hardships and losses suffered by the Complainant from the Opposite Party No.1 & 2 and cost of Rs.50,000/- towards this proceedings.
2) The facts giving rise to this complaint under Sec.12 of the Consumer Protection Act, 1986, in short are as under –
The Complainant had purchased the vehicle Mercedes Benz E 220 of 1995 having Chassis No.1240226 C 267408 bearing Engine No.11196020040033 of black colour. The Complainant had taken insurance in the name of Package Policy in respect of the said vehicle from Opposite Party No.1 through Opposite Party No.2 bearing Policy No.31/98/961 for the year 1997-98 by paying premium of Rs.51,564/- with the sum insured of Rs.20 Lacs. Thereafter, the said policy was renewed every year without any break by making payment of annual premium as required by Opposite Party No.1 & 2. It is alleged that the said insurance for the year June, 2005 – June, 2006 was in existence for the amount of Rs.8 Lacs upon making payment of premium Rs.16,613/- by the Complainant to the Opposite Party No.1 & 2. The copy of the said policy is marked at as Annexure ‘C1’.
3) It is the case of the Complainant on 26/07/05, when the incidence of heavy rain and deluge took place in Mumbai the said vehicle suffered severe damage and therefore it was given to the Opposite Party No.3 who is the dealer of Mercedes Benz for conducting necessary repairs. The Complainant immediately lodged claim before the Opposite Party No.1& 2 as per Annexure ‘C-2’. The Opposite Party No.3 vide its letter dtd.30/08/2005 addressed to the Complainant issued the estimate in respect of the repairs of the said vehicle to the tune of Rs.8,58,520/-. The copy of the said estimate is Annexure C-3’.
4) According to the Complainant even after 5 month’s of filing of claim when there was no reply from the Opposite Party No.1 & 2 with regard to appointment of Surveyor or assessment of loss the Complainant by letter dtd.19/01/2006 addressed to the Opposite Party No.2 requested to settle the claim immediately as per Annexure ‘C-4’. It is the case of the Complainant that it was reliably learnt that one Dhruva & Co. Surveyors and Engineers were appointed by the Opposite Party No.1 & 2 to assess the loss caused to the vehicle of the Complainant and it submitted the assessment of the loss to the Opposite Party No.1 & 2, however, no intimation of whatsoever, was given to the Complainant in that regard by the Opposite Party No.1 & 2.
5) The Opposite Party No.3 during that period started pressurizing the Complainant to take back the said vehicle on the ground of space constraints. The Opposite Party No.3 by letter dtd.11/02/06 addressed to the Complainant informed the Complainant that the said vehicle has been categorized as total loss and if the Complainant fails to take back the possession of the said vehicle by 17/02/06 the Opposite Party No.3 will charge the parking charges @ 300/- per day. The letter of Opposite Party No.3 is marked as Annexure ‘C-5’. The Complainant by its letter dtd.16/02/06 addressed to Opposite Party No.3 requested to bear for 30 days more as the Complainant was expecting the reply from Opposite Party No.1 & 2. The copy of the said letter is marked as Annexure ‘C-6’. The Opposite Party No.3 again by letter dtd.18/02/2006 addressed to the Complainant declared that the vehicle of the Complainant is un-repairable from their side and informed that since the said vehicle is lying at their works station for last 6 months without any decision being taken in this regard by the insurer. It was requested to shift the said vehicle at the earliest from their workshop failing which they will constrained to levy parking charges. The copy of the said letter is marked at Annexure ‘C-7’.
6) It is alleged that eve after 6 months of filing of claim there was no response from the Opposite Party No.1 & 2 whatsoever requested the Opposite Party No.1 & 2 by letter dtd.21/02/06 to look into the matter and do the needful at the earliest. The copy of the said letter is marked as Annexure ‘C-8’. The Opposite Party No.3 vide invoice no.1222 dtd.16/03/06 charged the Complainant for Rs.24,065/- which was duly acknowledged to the Opposite Party No.2 and further requested to do the needful in that regard. According to the Complainant the Opposite Party No.1 & 2 are liable to pay the expenses incurred by the Complainant towards the parking charges. The copy of letter and invoice issued by Opposite Party No.3 dtd.16/03/2006 is marked as Exh.‘C-9’. The on 24/03/06 Opposite Party No.3 by their letter informed the Complainant that they will park the vehicle of the Complainant outside their workshop if the same would not be collected by 27/03/2006. The copy of the said letter is Annexure ‘C-10’.
7) According to the Complainant despite of continuous follow with the Opposite Party No.1& 2 they neither bothered to reply to any of the letters of the Complainant nor considered it worth to assess the loss caused to the Complainant’s vehicle. The Complainant then also again requested the Opposite Party No.1 to settle the claim immediately by its letter dtd.04/04/06. The copy of the said letter is Annexure ‘C-11’. The Complainant again requested the Opposite Party No.1 & 2 vide letters dtd.01/07/06, 15/09/06, but the Opposite Parties No.1 & 2 failed and neglected to reply or to look into the matter. It is alleged that the copies of the said letters are Annexure ‘C-12’. The Opposite Parties No.1 & 2 are therefore, guilty of deficiency of service and have indulged into unfair practice. The Complainant therefore, suffered hardship and financial loss. It is alleged that the Opposite Party No.1 & 2 failed to follow the norms laid down by IRDA and protection of Policy Holders Regulations, 2002 and therefore, they are liable to compensate the Complainant. The Opposite Party No.1 & 2 are also liable to pay Rs.8 Lacs as per the sum insured under the Package Policy as well as the other reliefs claimed in para 1 of this order.
8) The Opposite Parties No.1 & 2 contested the claim by their written statement. It is contended that the complaint is malafide, misconceived, vexatious and is an abuse of the Consumer Protection Act, 1986 and the same ought to be dismissed with cost. It is contended that when the claim of the Complainant has been fully investigated by the Insurance Company and after having satisfied itself that the claim as claimed by the Complainant is not maintainable the consumer complaint will not lie against the Opposite Parties. It is admitted that the Complainant is insured of the Opposite Party under the motor policy but with all the terms, conditions, exceptions and limitations. It is stated that the Opposite Party had given due consideration to the claim of the Complainant and only after a thorough survey and application of mind it was found that the Complainant is entitled to only sum of Rs.2,94,000/- after deducting excess. The said assessment was based on cash loss basis. Opposite Party as well as their Surveyors M/s. Dhruva & Co. informed the same to the Complainant. However, the Complainant did not respond to the offer for the best reason known to them. The Surveyor also opined that if the subject car is repaired at any other workshop the Insurer’s liability will be within 75% of IDV i.e. within Rs.6 Lacs. Therefore, after due consideration it was decided to offer the Complainant a sum of Rs.2,94,000/- net of excess on cash loss basis. The Survey Report and letter of Surveyor dtd.16/06/2006 addressed to the Opposite Parties are marked as Exh.‘A’ & ‘B’. The rest of the contentions raised by the Complainant in the complaint are totally denied. It is also denied that the Opposite Parties are guilty of deficiency in service and unfair trade practice. It is contended that the complaint is filed beyond the period of limitation and as such, the same is liable to be dismissed. The estimate of Rs.8,58,520/- was done on the request of the Complainant by the Opposite Party No.3. The said estimate was beyond the IDV of the vehicle. The Complainant did not bother to carry out estimate from any other repairer as the same would have been much lesser and within 75% of the IDV. The Opposite Party therefore, submitted that the Complainant is not entitled to any relief sought in the complaint and the same may be dismissed.
9) The Opposite Party No.3 also filed written statement and contended that the Complainant is customer of the Opposite Party. The car of the Complainant had suffered server damage due to heavy rains and flooding dtd.26/07/2005 in Mumbai. On 18/08/2005, the said car was taken to the Opposite Parties service station to carryout the repairs. The Opposite Party submitted preorder bearing No.1222 dtd.18/08/2005 to the Complainant for the repairs to be carried out on the said car. Opposite Party categorized the subject car as a total loss. The Opposite Party thereafter, made several correspondence with the Complainant and Opposite Party No.2 as per Exh.‘A’ to ‘K’ filed with the written statement. It is contended that no cause of action has been made out against the Opposite Party No.3. The Complainant is not entitled to any relief against the Opposite Party, hence, the same be dismissed with exemplary cost.
10) The Complainant has filed the affidavit in proof of evidence of Shri. Prakash Khulchiani, Authorized Signatory of the Company. The Opposite Party No.1 & 2 filed affidavit of B.S.Chilana. The Opposite Party No.3 filed affidavit of Roshan Mendonca, Sr. Service Manager. The Complainant has filed written argument. Opposite Party No.1 & 2 also filed the written argument. We heard the oral arguments of Ld.Advocates Smt. R. Manne, for the Complainant and Smt. S. Bhuptani, for Opposite Party No.1 & 2 and Shri. S. Gupte, for the Opposite Party No.3.
11) In this case the Advocate for the Complainant Smt. Rashmi Manne submitted that the Opposite Party No.1 & 2 neither repudiated the claim lodged by the Complainant as per Exh.‘C-2’ nor informed anything about it to the Complainant. She made submission that as the Opposite Party No.1 & 2 has failed to intimate the denial partially or totally within a period of stipulated in IRDA Regulation, it shall be treated that the Insurance Company has accepted the said claim statutorily. In support of her submission she relied the provisions of IRDA Regulation and the judgement of the Hon’ble State Commission in the case of M/s. Jyoti Impex V/s. The New India Assurance Co. Ltd., in Complaint No.CC/09/152 pronounced on 29/04/2013. She also relied the observations of the State Commission in Complaint case No.CC/99/292 between M/s. Our India Sports Centre V/s. The New India Assurance Co. Ltd. She submitted that the report of the surveyor which is relied by the Opposite Party No.1 & 2 was not communicated to the Complainant. She relied the estimate of repairs issued by Opposite Party No.3 to the Complainant dtd.30/08/2005 and submitted that the Opposite Party No.3 is the authorized dealer for Mercedes Benz. The Opposite Party No.3 estimated the loss to the tune of Rs.8,58,520/-. She submitted that as the policy issued for the relevant period in favour of Complainant was of Rs.8 Lacs the Opposite Party No.1 & 2 are liable to pay that much amount to the Complainant alongwith interest. She also submitted that the Opposite Party is also liable to pay parking charges demanded by Opposite Party No.3 to the tune of Rs.24,065/- and Rs.2 Lacs as compensation for the mental agony, harassment and hardship and losses suffered by the Complainant due to deficiency in service and for not allowing the claim lodged to the Opposite Party No.1 & 2 within stipulated time.
12) The advocate for the Opposite Party No.1 & 2 Smt. S. Bhuptani relied the report of surveyor and the letter addressed by the Surveyor to the Opposite Party No.1& 2 dtd.16/06/06 and pointed out that there was discussion between the Opposite Party No.2 and Complainant’s representative and agent and it was decided to offer Rs.2,94,000/- on cash loss basis in full and final settlement with cancellation of policy. She therefore, submitted that the Complainant has brought false and vexatious claim and the same is liable to be rejected. She also relied the observation in the case of 1) United India Insurance Co. Ltd. V/s. Roshanlal Oil Mills (2000) 10 Supreme Court Cases 19, 2) M/s. Narain Cold Storage V/s. Oriental Insurance Ltd. 2003 (3) CPR 114 (NC), 3) Shri Ganesh Spinners V/s. United India Insurance Co. Ltd. 1997(1) CPR 22 (NC), 4) M/s. Essen Enterprises V/s. The National Insurance Co. Ltd. 2005(1) CPR 99 (NC), 5) United India Insurance Co. Ltd. V/s. Jadhav Kirana Store 2005(1) CPR 96 (NC) and submitted that report of the Surveyor in insurance claim is an important document and the same should not be shunned without sufficient reasons. She therefore, made submissions that as the Surveyors has estimated the loss to the 2,94,000/- only the Complainant is not entitled to any other relief.
13) The Advocate for the Opposite Party No.3 Shri. Gupte submitted that the Complainant has not claimed any relief and the Opposite Party No.3 is the formal party, the complaint against Opposite Party No.3 may be dismissed with cost.
14) While considering the rival contention it is necessary to be considered that it is undisputed fact the Motor Package Policy obtained by the Complainant from the Opposite Party No.1 & 2 was in force when the 3rd incident occurred in Mumbai due to heavy rains on 26/07/2005. The said policy was for Rs.8 Lacs is also an admitted fact. From the estimate given by the authorized dealer of Mercedes Benz i.e. Opposite Party No.3 it has been categorized as total loss and the estimate was provided for Rs.8,58,520/- to the Complainant of the insured car. It is also a fact that the report of the Surveyor, Dhruva & Co. is of the date 28/02/06 i.e. after submitting the claim by the Complainant of more than six months. The Opposite Party No.1 & 2 in their written statements have specifically contended that they informed the Complainant about settlement of the claim before filing of the present complaint. The Opposite Party No.1 & 2 for that relied the letter of Surveyor at Exh.‘B’ dtd.16/06/2006, wherein it is mentioned that in presence of the Opposite Party No.2, agent and insured’s representation it was decided to offer Rs.2,94,000/- on cash loss basis in full and final settlement with cancellation of policy, however, the Opposite Party No.1 & 2 have not filed affidavit of Surveyor M.J. Dhruva in support of its contention. The Surveyor in the report dtd.28/02/06 has mentioned that original estimate was for Rs.8,58,520/- and the car being of 1995. The repair liability will be within 75% of IDV. However, it is pertinent to note that there is no reason mentioned in the survey repot to declare the car of the Complainant at 75% of IDV i.e. Rs.6 Lacs. It appears from the documents produced by the Opposite Party No.1 & 2 i.e. letter dtd.16/06/06 again reduced the claim amount from Rs.6 Lacs to Rs.2,94,000/-. The said conduct of the Opposite Party No.1 & 2 necessarily show that at later stage they tried to consider the claim of the Complainant unilaterally, arbitrarily and reduced the claim amount from Rs.8 Lac to Rs.2,94,000/-. As the Opposite Party No.1 & 2’s contention regarding the entitlement of the claim of the Complainant is not supported with affidavit evidence of surveyor as held by the State Commission in Complaint Case No.CC/99/292 cited Supra, decided on 19/11/2012 the report relied by the Opposite Party of the surveyor cannot be read and taken as documentary evidence as provided under Sec.13(4) of the Consumer Protection Act, 19986. Moreover, as the Opposite Party No.3 who is a dealer of Mercedes has declared the car of the Complainant as of total loss condition and given estimate for its repairs of Rs.8,58,520/- we hold that the Complainant is entitled for the amount of Rs.8 Lacs which is the IDV value estimated by the Opposite Party for the period 2005-06 and for which the policy was issued in favour of the Complainant. It is also pertinent to note that the Opposite Party has failed to intimate the denial partially or totally within a period stipulated in regulation 8 or 9, as observed by the Hon’ble State Commission in Complaint Case No.CC/09/152 by order dtd.29/04/2013 and therefore, it is required to be treated that the Insurance Company has accepted the said claim statutorily. The objection raised by the Opposite Party that the complaint is filed beyond the period of limitation also cannot be just and proper in view of the observation in the aforesaid case wherein it is held that limitation shall be calculated from the date of denial of the claim, which was deemed to be accepted under the Regulations as a result of not intimating denial or disclaimer of claims with the reasons to the claimant/consumer. In the present case as the Opposite Party has not informed anything in writing to the Complainant and as such, in our view said objection is raised by the Opposite Party is devoid of merits. We hold that the authorities relied by the Opposite Party No.1 & 2 cited Supra are not at all applicable in view of the peculiar facts of this case as the survey report placed on record and the letter dtd.16/06/06 are inconsistent with each other. The report of the Surveyor also cannot be read and taken as documentary evidence as per the observations of Hon’ble Station Commission in Complaint Case No.CC/99/292. We therefore, hold that the Complainant is entitled for Rs.8 Lacs from the Opposite Party No.1 & 2 as per the IDV admitted in the Package Policy issued in favour of the Complainant for the relevant period. The Complainant has claimed interest @ 18% p.a. from 30/08/05 till the actual payment on the amount of Rs.8 Lacs in our view is totally unreasonable and excessive. We hold that interest @ 6 % p.a. would be just and reasonable on the amount of Rs.8 Lacs granted in favour of Complainant.
15) The Complainant has claimed Rs.24,065/- as per the invoice issued by Opposite Party No.3 dtd.16/03/06, however, the Complainant has not produced any documentary evidence showing that he had paid the said charges to the Opposite Party No.3. The Complainant has also not produced any evidence showing that the Complainant has incurred expenses @ 300/- per day towards parking charges from 27/07/05 in respect of the subject car. We therefore, hold that the said claim made by the Complainant against Opposite Party No.1 & 2 is liable to be rejected. The Complainant has claimed Rs.2 Lacs being the compensation towards the mental agony, harassment, hardship, etc. In this respect the Complainant is an private firm and not an individual human being. Therefore, compensation for mental agony etc. is not tenable. Therefore, the claim of the Complainant for mental agony etc. is rejected. In our view the Opposite Party is liable to pay cost of Rs.8,000/- towards legal and incidental expenses incurred by the Complainant for this proceeding from the Opposite Party No.1& 2. There is no specific claim made against the Opposite Party No.3 and the Opposite Party No.3 prayed for discharge from the complaint by its application dtd.30/11/2011 we hold that the same needs to be allowed. In the result the following order is passed -
O R D E R
i. Complaint No.148/2007 is partly allowed against Opposite Party No.1 & 2 and the Opposite Party No.3 is discharged from this complaint by allowing the application filed by Opposite Party No.3, dtd.30/11/2011
ii. Opposite Party No.1 & 2 are directed to pay Rs.8,00,000/- (Rs. Eight Lacs Only) to the Complainant alongwith interest @ 6% p.a. from 30/08/2005 till the actual payment.
iii. The Opposite Party No.1 & 2 are directed to pay cost of Rs.8,000/- (Rs. Eight Thousand Only) to the complainant towards legal and incidental charges of this proceeding.
iv. The Opposite Party No.1 & 2 are directed to comply with the above order within one month from the date of service of this order.
v. Certified copies of this order be furnished to the parties.
