Punjab

StateCommission

CC/103/2018

Sudagar Singh - Complainant(s)

Versus

Oriental Insurance Company Ltd. - Opp.Party(s)

Sarthak Gupta

10 Dec 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,      PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.103 of 2018

 

 

                                                          Date of Institution   : 13.02.2018     

                                                         Order Reserved on : 04.12.2018

                                                          Date of Decision     : 10.12.2018

 

Sudagar Singh aged about 53 years, son of Sh. Mohinder Singh, r/o Village Latala, District Ludhiana.

                                                                                      ….Complainant

 

                   Versus

 

1. The Oriental Insurance Company Limited, G.T Road, Khanna, Tehsil Khanna, District Ludhiana, through its Branch Manager.
2. Mahindra and Mahindra Financial Services Limited, G.T Road, Dholewal, Ludhiana.

 

                                                                    ….Opposite parties

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

              Smt. Kiran Sibal, Member.

 

Present:-For the complainant     :  Sh.Sarthak Gupta, Advocate

          For opposite party no.1:  Sh.J.P Nahar, Advocate

          For opposite party no.2:  Sh.H.P.S. Kochhar, Advocate

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs  on the allegations that he purchased a truck amounting to Rs.22,50,000/- from M/s Garryson Automobile G.T Road Sherpur Chowk Ludhiana on 22.02.2017. He got the truck financed from OP no.2 and on insistence of OP no.2, he insured his truck with OP no.1. On 07.05.2017, he was going from Pathankot to Mansa in his above truck. At about 4.00 AM, he reached near Akhara Pul, while he was trying to overtake stationary truck, some cows suddenly appeared from the other side before it and due to this, his truck rammed against the stationary truck and was completely damaged. He immediately informed the police about the above said accident and information was accordingly recorded in general diary of  the police about this accident. He also gave intimation to OP no.1, which after checking all the documents, deputed a surveyor to conduct the spot survey. In the meanwhile, he got an estimate of the repair required for the truck from Garrison Automobiles, which was accordingly submitted on 17.05.2017. As per the said estimate, total repair charges of the truck amounted to Rs.26,22,814/-. He received the report of the surveyor on 24.05.2017. He was assured by OP no.1 that his claim would be settled soon. Even after personally visiting the office of OP no.1, no steps were taken by OPs to settle the claim. He even sent email dated 06.10.2017 to OP no.2 requesting it to take prompt action in the matter, but no response was forthcoming. All the formalities on his part including intimating to OP no.1 on time and filling up of all requisite documents stood completed by him. He used to earn Rs.1 lac from the above truck every month and out of that, he used to pay loan installments amounting to Rs.63,119/- per month. He prayed for below noted reliefs against OPs :-

1. OP no.1 be directed to settle the insurance claim of the complainant amounting to Rs.22,50,000/- being price of the truck as it suffered loss.
2. OP no.2 be directed to waive off the installments till the claim is settled.
3. OPs be directed to pay Rs.10 lac as compensation towards loss of income suffered by  him.
4. OPs be directed to pay Rs.2 lac as compensation for mental harassment and Rs.55,000/- as cost of litigation.

2.                Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complainant has not approached this Commission with clean hands.  The present complaint is premature, as OP no.1 has not declined its liability. The present complaint is defective due to non-joinder of necessary party as vehicle is being repaired at M/s Garryson Automobiles Ludhiana. On merits, this fact was admitted by OP no.1 that complainant purchased the vehicle for Rs.22,50,000/- on 22.02.2017 from M/s Garryson Automobiles Ludhiana and registration certificate is a matter of record. Insurance cover was provided to him, vide policy no. 233605/31/2017/5975 valid from 22.02.2017 to 21.02.2018 and IDV of the  vehicle was Rs.30,00,000/-. It was denied that above insured vehicle met with an accident. The vehicle was repairable and was under repairs. On receipt of intimation, OP no.1 deputed surveyor Sh.J.S Khurana for the spot inspection of the insured vehicle. Sh.M.L Mehta surveyor was deputed, who inspected the vehicle at M/s Garryson Automobiles Ludhiana and submitted his report dated 20.11.2017 and assessed the loss thereof for Rs.17,86,246/- only. The surveyor has discussed the estimate with repairer and item-wise assessment has been given for parts requiring replacement and repair charges, wherever the repair was allowed by the surveyor. The damaged unit (cargo box) was not brought to the repairer/dealer for necessary repairs.  The vehicle was repairable, but repair has been stopped as the insured has not given advance to the repairer. As per terms of the insurance policy,  the insured vehicle would be treated as ‘total loss’ if the aggregate cost of retrieval and repair of the vehicle being subject to terms and conditions of policy, if exceeds 75% of the IDV of the vehicle. The IDV of the vehicle was Rs.30 lac and repair cost as per surveyor was Rs.17,86,246, which was only 59.54% thereof. The complainant was well aware that the final survey was conducted by Sh. M.L Mehta and the vehicle was under repair at M/s Garryson Automobiles Ludhiana. Rest of the averments were denied by OP no.1 and it prayed for dismissal of the complaint.

3.                OP no.2 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has not come to this Commission with clean hands. The complainant is not consumer of OPs, as defined in Section 2(i)(d) of Consumer under Consumer Protection Act 1986. On merits, it was admitted by OP no.2 that  complainant purchased a truck amounting to Rs.22,50,000/- from M/s Garryson Automobile Ludhiana on 22.02.2017. It was denied that on the insistence of OP no.2, complainant got his truck insured from OP no.1. It was denied that any assurance was given by OP No.2 that complainant shall be fully indemnified in respect of accidental loss or damage occurring to his vehicle during the period of insurance. It was also denied that complainant visited the office of OP no.2 by requesting it to waive off his installments till his insurance claim was settled. There is no such contract or any term or condition in the loan agreement to waive off the installments of complainant till the claim is settled. Rest of the averments of the complainant were denied by OP no.2 and it prayed for dismissal of the complaint.

4.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-12 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Ms. Alka Bansa Manager as Ex.OP-1/A along with copies of documents Ex.OP-1/1 to Ex.OP-1/5 and closed the evidence on behalf of OP no.1. OP no.2 tendered in evidence affidavit of Sh. Anurag Sharma Authorized Representative of OP no.2 as Ex.OP-2/A along with copy of document Ex.OP-2/1 and closed the evidence.

5.                We have heard learned counsel for the parties and have also examined the record of the case. It is an undisputed fact in this case that complainant got his truck bearing no. PB-13-AW-3161 insured with OP no.1 on 22.02.2017 against premium. The IDV of the truck was Rs.30,00,000/-, which was insured under policy bearing no.233605/31/2017/5975 from 22.02.2017 to 21.02.2018. OPs have admitted this fact regarding insurance of truck purchased by the complainant from OP no.1 in this case. The truck met with an accident on 07.05.2017 in the area near Akhara Pul. A cow had suddenly appeared from the other side before his truck, while it was overtaking a stationary truck and above accident took place due to that count. The insured truck was taken to Garrison Automobiles on 17.05.2017, which prepared estimate of repair of insured truck as Rs.26,22,814/-. The version of the complainant is that loss is more than 75% of the insured value of the truck and as such it will have to be considered as case of total loss to the insured vehicle justifying the payment of IDV of the truck to the tune of Rs.30,00,000/- to complainant. OPs appointed surveyor for final assessment of loss, who submitted his report on 20.11.2017, whereby he found truck to be repairable and assessed the loss in the accident to the tune of Rs.17,86,246/- as per report of M.L Mehta Surveyor, who inspected the insured vehicle at M/s Garrison Automobiles Ludhiana. The report of surveyor is Ex.OP-1/3  finding the net assessment of loss to vehicle as Rs.17,86,246/- and he reduced labour charges from estimate of complainant of Rs.3,05,620/- to Rs.1,35,110/- and assessment of other parts of the insured vehicle from Rs.26,01,572.56 to 16,52,136.00. As per his report Ex.OP-1/3, net assessment of loss to the tune of Rs.17,86,246/-  and assessment of salvage of Rs.1,25,000/- was only. OPs relied upon the writing of the complainant Ex.OP-1/4 dated 05.01.2018  to the effect that he has no objection, if insured vehicle is subjected to repair. Now the  dispute pertains to quantum amount of the insured claim  between the parties in this case. The complainant relied upon the service estimate by Garyson Automobile as Ex.C-6 dated 22.02.2017 showing the total amount of repair as Rs.2324043.74 and labour charges Rs.298770.00 and net bill amount of Rs.2622814.00. The dispute is between variation of estimate of loss by Garyson Automobile estimate report as well as report of surveyor in this case. The surveyor M.L Mehta found the loss to the vehicle to the tune of Rs.17,86,246/- as assessed by him. The surveyor reduced the amount on labour charges from Rs.3,05,620/- to Rs.1,35,110/-. We are of this view that surveyor has reduced the amount of labour  charges arbitrarily in this case. The labour is quite costly in the present set up and skilled labourers, who are mechanics charged quite a lot for repair of vehicle, so this amount has been reduced by the surveyor arbitrarily without any data to support it. We increase the amount of labour  charges from Rs.1,35,110/-  to  Rs.2,50,000/-, which seems quite justifiable keeping in view the total dilapidated condition of the insured vehicle, as depicted in photocopies of the photographs of damaged vehicle, which are part of the report of surveyor on the record. Similarly, the surveyor reduced the amount of spare parts from Rs.26,01,572.56 to 16,52,136.00 drastically. The Garyson Automobiles being authorized service station also showed amount of the damaged spare parts of the vehicle in the accident. We find that surveyor again arbitrarily reduced this amount without any substance drastically and some of the damaged spare parts involved have also been omitted in the report of surveyor for repair of the vehicle, which are also to be replaced.  So, in this view of the matter, we enhance the amount of spare parts from Rs.16,52,136.00 as assessed by the surveyor to Rs.20,00,000/- in this complaint.  The report of the surveyor is accepted on other counts. Since actual bills have not been produced by the complainant and it is difficult to state as to whether, it was a case of total loss to vehicle or not as surveyor has not found it to be a case of total loss and found it to be repairable one only. The complainant is, thus, entitled to above referred enhanced amount on account of valuation of spare parts to the extent of Rs.20,00,000/- and  enhanced  labour charges to the tune of Rs.2,50,000/-

6.                For the reasons recorded above, in addition to the above amount of Rs.17,86,246/- as assessed by the surveyor, the complainant is further held entitled to recover the additional amount of Rs.4,50,000/- (increased price of spare parts and labour charges) in this case also. The complainant is, thus, held entitled to recover the total amount of Rs.22,36,246/- (twenty two lac, thirty six thousands, two hundred and fourty six rupees only) as insurance claim. He is also entitled to compensation of Rs.40,000/- for mental harassment and Rs.20,000/- as cost of litigation as well. OP no.1 is directed to pay the above-referred amount of insurance claim with interest @ 8% per annum from the date of accident till actual payment. Since insured vehicle is hypothecated with OP no.2, hence OP no.1-insurance company shall pay the above referred amount of insurance claim to OP no.2/financer of this vehicle for payment of loan amount at the first instance and balance amount, if any remained due thereafter, shall be paid by financer /OP no.2 to complainant.  The financer shall pay the amount for repair of the offended vehicle to Garryson Automobile by keeping strict account of the payments thereof.

7.                Arguments in this complaint were heard on 04.12.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

8.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                               

                                                                          (KIRAN SIBAL)

                                                                                MEMBER

December  10, 2018                                                                

(ravi)