DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 205 of 14-05-2013

Decided on 26-09-2013

Honey Jindal, aged about 26 years, S/o Sh. Dharam Paul, R/o House No. 303, Street No. 3, Sarabha Nagar, Bathinda.

…...Complainant

Versus

1. Oriental Insurance Company Ltd., Divisional Office, Bank Street, Ist Floor, Bathinda, through its Senior Divisional Manager

2. Er. Kailash Chandra, R/o Kothi No. 242, Sector 18, Panchkula

3. State Bank of Patiala, Red Cross Building Branch, Opposite Gole Diggi, The Mall, Bathinda, through its Branch Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. Sanjay Goyal, counsel for the complainant.

For the opposite parties : Sh. Sunder Gupta, counsel for opposite party No.1.

Sh. S M Goyal, counsel for opposite party No. 3.

Opposite party No. 2 already exparte.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that he purchased new Chevrolet Cruze Car from Padam Motors, Bathinda for his personal use after availing loan from opposite party No. 3. The opposite party No. 3 has cashless insurance tie-up with opposite party No. 1 and accordingly it got insured the aforesaid car with opposite party No. 1 vide policy No. 233200/31/2012/6809 for the IDV of Rs. 13,30,950/- for the period from 13-03-2012 to 12-03-2013, but no terms and conditions of the policy were supplied to the complainant. The complainant alongwith his family members had gone to Dagshai and while returning on 6-2-2013 at about 5.30 p.m. when the car reached near Pinjore in front of HMT tractor showroom, a stone came under the car and touched its chassis, hit and damaged the same due to which engine oil started leaking. The car was stopped by the side of the road immediately and telephonic intimation was given to opposite party No. 1. The opposite party No. 1 conveyed to the complainant to inform the authorized dealer at Chandigarh i.e. Padam Motors, and accordingly, he intimated them and they sent crane of Lucky Crane Services, Chandigarh, to lift the damaged car to their workshop and the complainant paid Rs. 1900/- as towing charges to the said crane services on 6-2-2013. The complainant also intimated the opposite party No. 1 regarding the said accident in writing on 7-2-2013. The opposite party No. 2 firstly deputed Mr. Rajesh Khanna to assess the loss, but estimate of repairs i.e. 4,11,345/- exceeded the limit of said surveyor, the opposite party No. 1 deputed opposite party No. 2 to inspect the damaged vehicle and assess the loss. The complainant alleged that at the time of accident, the car was being driven by his father namely Dharam Paul Jindal. The opposite party No. 2 was compelling the complainant to get the car repaired from Padam Motors, Chandigarh, whereas the opposite parties denied the cashless insurance. The opposite party No. 2 conveyed the complainant that after repairs, the bills has to be paid by the complainant which will be reimbursed by the Insurance Company thereafter. The complainant did not get the car repaired from Padam Motors, as the loss as assessed by Padam Motors has not occurred to the insured car and he did not give his consent for repair. The complainant brought his damaged car to Billu Motor Workshop, Namdev Road, Bathinda, for repair on 5-3-2013 through Manjit Crane Service and paid Rs. 10,800/- for the same. The complainant further alleged that after bringing the car to Bathinda for repair, the intimation was given to both the opposite parties i.e. 1 & 2, but the opposite party No. 2 did not come at the aforesaid workshop to inspect the damaged car despite repeated requests and reminders of the complainant. The mechanic of Billu Motor Workshop opened the engine and demanded Rs. 32,000/- as labour charges for repair of the same. The complainant incurred Rs. 1,60,000/- for purchase of new parts and Rs. 32,000/- as repair charges totalling to Rs. 1,92,000/- against the estimate of Rs. 4,11,345/- of Padam Motors and in this way, the complainant saved about Rs. 2,50,000/- of the opposite parties in getting the said car repaired. The complainant alleged that the opposite party No. 2 obtained his and his father's signatures on various blank and printed forms. The complainant submitted all the bills and towing charges bills etc, with opposite party Nos. 1& 2, but they failed to settle his claim. The complainant came to know that opposite party No. 2 has assessed only meagre loss and submitted his report with opposite party No. 1 on 28-3-2013 whereby he has mentioned that loss has occurred due to oil starvation as the car has been driven after stone hit the oil sump for a considerable time. The complainant further alleged that after the accident, his father immediately stopped the car and gave intimation to the opposite parties regarding the loss. The complainant wrote a letter dated 22-4-2013 to the opposite party No. 1 for payment of claim and the opposite party No. 1 sent reply of the said letter through its counsel Sh. Sunder Gupta on 27-04-2013 that the opposite party No. 2 vide his report dated 28-3-2013 has assessed the net loss to the insured vehicle to the tune of Rs. 10,585.95 and the insurance company is liable to pay the same if the complainant gives his consent and send his bank account number so that the amount could be transferred in his account through RTGS. The complainant requested the opposite party No. 3 not to charge the loan installment and waive the same for the period for which the car could not be used, but the opposite party is regularly compelling him to deposit the due installments. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to pay Rs. 1,92,000/- with interest alongwith towing charges to the tune of Rs. 10,800/- and Rs. 1900/- besides compensation and cost.

2. The opposite party No. 1 filed its written statement and admitted that car bearing registration No. PB-03Z-5929 was insured with it vide policy No. 233200/31/2012/6809 effective from 13-03-2012 to 12-03-2013 and after receipt of intimation regarding the accident, Er. Kailash Chander was deputed to assess loss who vide his report dated 28-03-2013, has assessed the net loss to the tune of Rs. 10,585.95. The opposite party No. 1 wrote a letter to the complainant asking him to send his consent and bank account number so that the claim amount could be transferred in his account through RTGS, but the complainant neither sent his consent nor his account number due to which assessed amount has not been paid to the complainant. The opposite party No. 1 has denied that it has any cashless insurance tie-up regarding the policy in question with opposite party No. 3 or with Padam Motors or terms and conditions were not supplied to the complainant. The opposite party No. 1 has also denied that opposite party Nos. 1 & 2 compelled the complainant to get his insured car repaired from Padam Motors at Chandigarh. No intimation regarding bringing of car to Bathinda for repair at Billu Motors, was ever given to opposite party No. 1. The opposite party No. 1 has pleaded that the complainant has obtained the estimate of repair worth Rs. 4,10,345/- from padam Motors on higher side in connivance with Padam Motors. Moreover, Padam Motors has issued mere estimate without opening engine of the insured car and exact loss can be assessed only after opening the engine. The opposite party No. 1 has further pleaded that it is still ready to pay Rs. 10,585.95 to the complainant as assessed by the surveyor but it is not liable to pay any other amount as further damaged to the insured vehicle as per report of surveyor has occurred due to oil starvation as the car in question has been driven after the stone hit the oil sump for a considerable time.

3. Registered A.D. notice of complaint was sent to opposite party No. 2, but despite service of notice, none appeared on his behalf and as such, exparte proceedings were taken against him.

4. The opposite party No. 3 filed its separate written statement and pleaded that the complainant purchased the car in question from M/s. Padam Motors, Bathinda, for his personal use and he obtained financial assistance of Rs. 11,90,000/- from it on the terms and conditions detailed in the loan agreement. The car was duly hypothecated with the opposite party No. 3 and comprehensively insured with opposite party No. 1 for the period from 13-02-2012 to 12-03-2012. The opposite party No. 3 has further pleaded that it has got no concern with the services to be provided by opposite party Nos. 1 & 2, rather as and when any claim amount of the insurance of the vehicle in question becomes payable, the same be paid to the opposite party No. 3 because the insured car is duly hypothecated with opposite party No. 3. The complainant has obtained loan from opposite party No. 3 for the purchase of the car and had executed loan documents agreeing to pay the loan amount in monthly installments alongwith agreed rate of interest. Hence, the complainant is liable to pay monthly installments of the loan regularly and if the vehicle in question had met with an accident, it does not give immunity to the complainant to delay or defer the payment of monthly installments. The complainant is defaulter of the opposite party No. 3 as a sum of Rs. 10,51,388.65 is due and outstanding against the complainant. The opposite party No. 3 has further pleaded that the complainant cannot take benefit of delay in release of insurance claim amount from opposite party No. 1 and as per the hypothecation agreement, the bank is entitled to take possession of the vehicle and to sell the same in market to recover its dues as the complainant willfully failed and neglected to repay the loan installments regularly.

5. Parties have led their evidence in support of their respective pleadings.

6. Arguments heard. Record alongwith written submissions submitted by the parties perused.

7. These are undisputed facts between the parties that the Chevrolet Cruze Car bearing registration No. PB-03Z-5929 of the complainant was comprehensively insured with opposite party No. 1 vide Ex. C-2 policy No. 233200/31/2012/6809 for the period from 13-03-2012 to 12-03-2013. The car in question is hypothecated with opposite party No. 3. The said car met with an accident near Pinjore and the complainant gave intimation regarding the accident to the opposite party No. 1 and accordingly it deputed Sh. Kailash Chandra, as surveyor to inspect the vehicle in question and assess the loss. The said surveyor, assessed the loss vide his report Ex. C-11 to the tune of Rs. 10,585/- and till today the claim has neither been paid nor repudiated by the opposite party No. 1.

8. The submission of the learned counsel for the complainant is that a stone came under the car, hit and damaged the same, due to which engine oil started leaking and car was stopped by the side of the road immediately. The complainant gave intimation to opposite party No. 1 who conveyed him to intimate the authorized dealer at Chandigarh i.e. Padam Motors, Chandigarh, and upon intimation it sent crane for which the complainant paid Rs. 1900/- to Lucky Crane Services, Chandigarh. The opposite party No. 1 deputed opposite party No. 2 as surveyor to inspect the damaged vehicle and assess the loss. Padam Motors, prepared estimate worth Rs. 4,11,345/- and the opposite party No. 2 compelled the complainant to firstly get the car repaired at his own expenses thereafter the amount will be reimbursed by opposite party No. 1. The complainant conveyed to the opposite party No. 2 that the loss assessed by Padam Motors has not occurred to his car and accordingly, the complainant did not give his consent for repair of his car and ultimately, brought the damaged car to Billu Motors Workshop, Bathinda through Manjit Crane Service and paid Rs. 10,800/-. The learned counsel for the complainant submitted that despite intimation regarding bringing of the car at Bathinda to opposite party Nos. 1 & 2, the opposite party No. 2 did not come at the said workshop to inspect the same. The complainant purchased new parts from Modi Maruti Centre, G.T. Road, Bathinda, for Rs. 1,60,000/- and paid Rs. 32,000/- as repair charges to Billu Motors, Bathinda totalling Rs. 1,92,000/- against the estimate of Rs. 4,11,345/- of Padam Motors. The submission of the learned counsel for the complainant is that the complainant wrote letter dated 22-4-2013 for payment of his lawful claim and sent copies of bills and in reply to the said letter, the opposite party No. 1 conveyed that opposite party No. 2 has assessed the net loss to the insured vehicle to the tune of Rs. 10,585.95 and asked for his bank account number and required his consent for transferring the assessed amount in his account. He submitted that the opposite party No. 2 has opined in his report that the car had been driven after the stone hit the oil sump for a considerable time whereas after the hit, the father of the complainant immediately stopped the car.

9. On the other hand, the submission of opposite party No. 1 is that after receipt of intimation regarding the accident, Er Kailash Chander was deputed to assess the loss who vide his report dated 28-3-2013 has assessed the net loss to the tune of Rs. 10,585.95. The opposite party No. 1 wrote a letter to the complainant asking him to send his consent for the aforesaid amount and also requested him to send his account so that aforesaid amount could be transferred in his account through RTGS, but the complainant neither sent his consent nor sent his account number due to which amount as assessed by the surveyor has not been paid to the complainant. The learned counsel for the opposite party No. 2 submitted that liability of opposite party No. 2 is limited to Rs. 10,585.95 as assessed by the surveyor and it is not liable to pay any other amount as further damage to the insured vehicle as per report of the surveyor has occurred due to oil starvation as the car in question has been driven after the stone hit the oil sump for the considerable time.

10. The submission of the opposite party No. 3 is that since the vehicle in question was hypothecated with the opposite party No. 2 and as per the terms and conditions, the opposite party No. 3 is deemed to be the owner of the vehicle and in case the opposite party Nos. 1 & 2 are directed to make the payment of insurance claim to the complainant, then the same is liable to be actually paid and given to opposite party No. 3 for credit the same in the loan account of the complainant.

11. A perusal of file reveals that Sh. Kailash Chander, final surveyor vide his final report Ex. C-11 has assessed the net loss to the tune of Rs. 10,585/- as against the estimate of Rs. 4,54,603.60. He has opined in his report under the heading ' Detailed Assessment' that :-

    “...On thorough inspection of the car, it was noticed that there were deep scoring marks on the walls of the cylinder and the bearing shells had seized on the big end bearing journals. This is only due to oil starvation. The car, I am of the considered opinion, had been driven after the stone hit the oil sump for a considerable time. Had the car been stopped and engine switched off, the loss had been too less, to the extent, it is assessed.”

12. The complainant has deposed in para No. 14 of his affidavit Ex. C-9 that after the accident, his father immediately stopped the car and intimated the opposite party No. 1 and Padam Motors, authorized dealer of the company who sent crane at the spot to lift the vehicle from the site of accident. Ex. C-10 is the affidavit of Paramjit Singh, proprietor of M/s. Billu Motor Works, Bathinda. He has deposed in the aforesaid affidavit that :-

    “..4. That the complainant purchased and brought crank, main begane, ring set, piston set, packing kit, valve set, valve guide, selves set and turbo charges from Moti Maruti Centre, G.T. Road, Bathinda and the deponent fitted the aforesaid parts in the aforesaid car.

    5. That the deponent charged Rs. 32,000/- as repair charges for the complainant.

    6. That Padam Motors, Chandigarh for the repair of the aforesaid car, issued estimate worth Rs. 4,11,345/- and the aforesaid car has been fully repaired for an amount of Rs. 1,92,000/-.

    7. That had the car run after stone struck the car from below, then connecting rod (Piston rod) would have broken and that would have blasted the entire engine i.e. Cylinder block would have burnt, which has not occurred in this case which proves that car was stopped then and there immediately after the accident.”

13. The opposite parties have not placed any document on file to rebut this evidence of the complainant and even no affidavit of the surveyor has been placed on file. A perusal of document Ex. OP-10 shows that the said discharge voucher has been got signed from the complainant when it was blank. This act of the opposite party No. 1 shows its contention that how the blank documents are got signed from the insured and the insured signs the same under forced circumstances to get the claim which thereafter are filled as per convenience of the Insurance company.

14. The opposite party No. 2 whose survey report has been placed on file and is the basis of the reduction of claim of the complainant, neither appeared before this Forum nor tried to send his version by post despite service of notice. A perusal of file reveals, as discussed above, that the opposite party No. 1 has not placed any document on file to rebut the evidence of the complainant. The opposite party No. 1 has only relied upon the survey report of the surveyor The Hon'ble Supreme Court in Civil Appeal No. 3253 of 2002 in the case titled New India Assurance Company Limited Vs. Pradeep Kumar has observed in para No. 15 that :-

    “.....but surveyor's report is not the last and final word. It is not the sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.”

15. Hence, keeping in view the facts, circumstances and the evidence placed on file this Forum is of the considered opinion that there is deficiency in service on the part of opposite party No. 1 in not paying the actual claim of the complainant and reducing the same without any basis. Thus, complainant is entitled to the expenses actually incurred by him on the repair of his car i.e. Rs. 1,54,010/- cash bill vide Ex. C-4 of Modi Maruti Centre ( after depreciation if applicable), plus Rs. 32,000/- labour charges received and admitted by Paramjit Singh vide his affidavit Ex. C-10 alongwith towing charges to the tune of Rs. 10800 + 1900. Vide Ex. C-8, the learned counsel for opposite party No. 1 has admitted that the complainant has submitted the bills of repair with the opposite party No. 1.

16. The opposite party No. 3 has pleaded that it is entitled to the claim. This direction cannot be given as it is a case of partial loss and not the total loss.

17. In view of what has been discussed above, this complaint is accepted with Rs. 15,000/- as compensation and cost against opposite party No. 1 and dismissed qua opposite party nos. 2 & 3. The opposite party No. 1 is directed to pay the cost of parts as per bill Ex. C-5 for Rs. 1,54,010/- to the complainant after deducting amount of depreciation, if any, payable as per rules on any part, and furnish him the summary of deductions. The opposite party No. 1 is further directed to pay Rs. 32,000/- as labour charges and Rs. 12,700/- as towing charges to the complainant. The opposite party No. 1 is directed to pay to the complainant the total aforesaid claim amount excluding the amount of cost and compensation, alongwith interest @ 9% P.A. w.e.f. 6-05-2013 (The date calculated on expiry of three months from the date of accident, a period required for processing the claim in an effective manner in normal course).

18. The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which the total aforesaid claim amount plus interest, excluding the amount of cost and compensation, will yield further interest @ 9% P.A. till realization.

    A copy of this order be sent to the parties concerned, free of costs and the file be consigned to the record.

    Pronounced in open Forum

    26-09-2013 (Vikramjit Kaur Soni)

    President

     

     

    (Sukhwinder Kaur)

    Member