BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 222 of 2017
Date of Institution : 4.9.2017
Date of Decision : 29.10.2018.
Amit Kumar son of Shri Jaswant Singh, resident of C-37, MSG Complex, Village Shah Satnam Ji Pura, Near Shah Satnam Ji Girls School, Sirsa.
……Complainant.
Versus.
1. Padam Motors Pvt. Ltd. Authorized Dealer, General Motors India Pvt. Ltd., Hisar Road, Opp. Police Chowki Traffic Sirsa, through its partner/ prop.
2. Aryaman Automobiles, Plot No.64, Sector-25, HUDA, Industrial Area, Phase-I, Panipat.
3. United India Insurance Co. Ltd., through its Divisional Manager, Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL….. …… MEMBER.
Present: Sh. A.K. Gupta, Advocate for complainant.
Opposite party no.1 exparte.
Sh. Ramphal Narwal, Advocate for opposite party No.2.
Sh. Ravinder Monga, Advocate for opposite party no.3.
ORDER
The case of the complainant in brief is that complainant purchased one Chevrolet Sail Car bearing no.HR-24R/6959 on 29.4.2013 from Padam Motrs Pvt. Ltd. which is the authorized dealers of General Motors Pvt. Ltd. That at the time of purchase of the said car, the op no.1 offered the zero depreciation and cashless insurance under Chevrolet Assured Vehicle Insurance Program. It was assured that in case the car is insured through Marsh India Insurance Brokers Pvt. Ltd., then all the dealers would provide cash less insurance services in case of accident etc. and further assured that the insured shall have no botheration for the settlement of the claim, if any. It is further averred that as offered by op no.1, the complainant paid the premium and got the car insured accordingly. The cover-note was issued, which pertained to United India Insurance Company Ltd., vide cover note no.158568 w.e.f. 27.4.2013 to 26.4.2014. It is further averred that for the next policy period, the ops charged the premium of Rs.16,493/- and issued a policy purporting to have been issued by the New India Assurance Company Ltd. w.e.f. 03.05.2014 to 2.5.2015, vide cover note no.924426 and for the next policy period i.e.. 3.5.2015 to 2.5.2016 a premium of Rs.13,227/- was paid by the complainant to Padam Motors, addressee no.1 against which covernote no.008225 was got issued. The said car was again got insured from op no.3 vide policy no.22150031160160004507 w.e.f. 20.5.2016 to 19.5.2017. The premium of Rs.13,377/- was charged by Padam Motors. All these policies were got issued by Padam Motors through the broker agency of Marsh India Insurance Brokers Pvt. Ltd. It is further averred that on 19th of January, 2017, the car of the complainant met with an accident near Safido, Panipat and was extensively damaged. The complainant immediately informed the office of United India Insurance Company Ltd. at Safidon the nearest office. Accordingly, a spot survey was got conducted by the company surveyor. That the complainant after getting the spot survey conducted shifted the damaged car to show room of Aryaman Automobiles an authorized dealer of Chevrolet and submitted the insurance particulars to the op no.2 regarding the damaged car upon which the op no.2 had assured that after seeking the necessary permission from the insurance company, the repair would be carried out. That thereafter the complainant has been taking rounds to the ops. The op no.2 had assured that the work of repair shall be started only after seeking the permission. The work of repair was started after about one week of shifting the car to the showroom of op no.2 with an understanding that the necessary permission for carrying out the repairs has been granted and op no.2 also told that the surveyor of the company has conducted the survey and has made the assessment of the loss. That op no.2 started claiming a very huge bill of repairs from the complainant and told that the insurance company is not settling the claim of the complainant and started threatening the complainant that the car would be handed over only after making the payment of the bill of the repairs to op no.2. The complainant was stunned upon which the complainant approached the op no.3 and op no.3 has revealed now that the complainant has wrongly availed NCB and as such the claim shall be rejected. It is further averred that ultimately the complainant had to make payment of Rs.1,21,652/- to op no.2 on account of the repairs and get the delivery of the car. That the complainant had not concealed anything at the time of insurance of the car in question and the same was got insured through the dealer who are in arrangement with the insurance company and are brokers of the insurance companies. Every factum of claims is within the knowledge of the op no.1 as well as the insurance company. That the ops have violated the provisions of India Motor Tariff as promulgated by the IRDA and are also acting in utter violation of the provisions of Protection of Policy Holders ordinance. It is further averred that complainant got served notice upon the ops on 8.5.2017 which were duly received by the ops. However, the op no.3 demanded the detailed particulars of the policy, which was sent to them through registered post by way of clarification in the previous notice on 17.5.2017 but thereafter no reply has been received from op no.3. Even the reply given by op no.1 is altogether false. That the complainant had to undergo lot of mental agony, utter dismay and disappointment inspite of making the huge premium. Hence, this complaint seeking a direction to the ops to settle the claim of complainant to the tune of Rs.1,21,652/- alongwith interest at the rate of 18% per annum and to pay an amount of Rs.1,00,000/- as compensation on account of unnecessary harassment and also to pay Rs.11,000/- as litigation charges.
2. Opposite party no.1 not appeared despite publication and was proceeded against exparte.
3. On notice, opposite party no.2 appeared through counsel and filed written statement taking certain preliminary objections regarding locus standi; suppression of true and material facts and that complainant does not come under the definition of consumer, as such the complaint of the complainant is liable to be dismissed on this score alone. It is submitted that complainant served a legal notice to op no.2 through his counsel and the same was replied in which it was clearly mentioned that op no.2 is dealing in sale, purchase and repair of vehicles etc. The complainant has already taken the No claim bonus of 25% i.e. Rs.2124/- from the insurance company as per cover note attached, hence the complaint is liable to be dismissed on this score alone. On merits, it is submitted that the damaged car was brought in the workshop of op no.2 and same was repaired. The complainant has filed the false complaint against op no.2 only to harass and humiliate the op. The complainant himself told the op no.2 that the car will be repaired after getting permission. The op no.2 has only charged the amount for its repair and change of parts of the car in question. Remaining contents of complaint are also denied.
4. Opposite party no.3 appeared and filed reply taking certain preliminary objections regarding suppression of true and material facts, that complainant has averred self contradictory pleas in his complaint, locus standi and cause of action, estoppal, no consumer dispute and no deficiency in service and that the dispute raised by the complainant is a mixed and complicated questions of law which could be decided by the Civil Court and this Forum has no jurisdiction to try and entertain such type of complaint. On merits, it is submitted that allegations and the relief, if any, sought by the complainant is against the remaining ops not against the answering op. Upon checking their data base, they do not find any claim lodged with them under the said policy till date. Neither any intimation was ever given nor any claim was lodged before the answering op, so the complaint is liable to be dismissed only on this score. Remaining contents of complaint are also denied.
5. Then the parties led their respective evidence by way of affidavits and documents. Ld. counsel for complainant has tendered affidavit of complainant Ex.C1 and documents Ex.C2 to Ex.C26. On the other hand, ld. counsel for op no.2 tendered affidavit of Sh. Vishal Chopra, Workshop Manager Ex.RW1 and copy of policy schedule Ex.RW2. Ld. counsel for op no.3 has tendered affidavit of Sh. K.R. Jain, Sr. Divisional Manager Ex.RW3/A and copy of policy Ex.R3
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. The complainant in order to prove his complaint has furnished his affidavit Ex.C1 wherein he has reiterated all the averments made in his complaint. He has also placed on file copy of certificate cum policy schedule Ex.C2, copy of legal notice Ex.C3, postal receipts Ex.C4 to Ex.C6, reply to legal notice Ex.C7, copy of clarification Ex.C8, postal receipts Ex.C9 to Ex.C11, reply to notice Ex.C12, registered covers and acknowledgements Ex.C13 to Ex.C16, copies of invoice Ex.C17 to Ex.C19, copy of mail Ex.C20, copies of cover note Ex.C21 to Ex.C23, copy of receipt Ex.C24, copy of policy schedule Ex.C25, copy of receipt of Rs.1800/- by Surveyor Ex.C26. On the other hand, op no.2 produced affidavit of Sh. Vishal Chopra Workshop Manager Ex.RW1 and copy of policy schedule Ex.RW2. OP no.3 produced affidavit of Sh. K.R. Jain, Sr. Divisional Manager Ex.RW3/A and copy of insurance policy Ex.R3.
8. It is proved on record that complainant is owner of a Chevrolet sail car bearing registration No.HR-24R/6959 which he had purchased from opposite party no.1. It is also proved on record that complainant got his said vehicle insured from time to time and lastly from opposite party no.3 for the period 20.5.2016 to 19.5.2017 on payment of premium of Rs.13,377/- which is also evident from the copy of the policy schedule relied upon by complainant as well as policy relied upon by insurance company. It is further proved fact on record that vehicle of the complainant met with an accident on 19.1.2017 during the validity period of insurance policy and after the accident vehicle was taken to op no.2 for carrying out necessary repairs of the vehicle and after repairing vehicle, op no.2 issued a bill of Rs.1,21,652/- which allegedly paid by complainant to op no.2. The bone of contention between the parties is qua payment of amount of Rs.1,21,652/- which was allegedly paid by complainant to op no.2 on account of repair charges of the vehicle.
9. During the course of arguments, learned counsel for complainant has strongly contended that it was a cashless policy of the vehicle which was issued by op no.3 at the instance of op no.1 and under terms and conditions of the policy, the complainant was not required to pay even a single penny on account of repair charges of the vehicle as vehicle was covered with a cashless policy. But however, the ops in connivance with each other tried to escape from their liability on the ground of No Claim Bonus. It has also been contended that as per provision of GR.27 of the Indian Motor Tariff, it was the legal obligation of the insurance company to verify the NCB from the previous insurer within 21 days of the issuance of the insurance coverage to the vehicle of complainant. But once it is proved that the insurer did not comply with the provision and did not take any step to verify NCB within stipulated period of 21 days, the insurer became liable to indemnify the damage of the vehicle. It has also been contended that claim of the complainant is duly covered under the terms and conditions of the policy and ops are liable to pay the same alongwith amount of compensation and litigation charges. It has also been contended that after the accident due intimation was given to the branch of the insurance company which was situated near to the place of accident and spot survey was got conducted by the representative of the insurance company and a sum of Rs.1800/- was paid by the complainant to the Surveyor namely Sh. Raghbir Singh against the receipt Ex.C26. It has also been contended that due intimation was also given by op no.2 to op no.3 before opening the vehicle for repair and thereafter the issue of NCB was raised by ops. Further more, a legal notice was sent to all the ops and in reply to that notice insurance company had demanded particulars of the registration of the vehicle and also number of the policy which were duly supplied to the insurance company. The op no.3 has taken a wrong plea that they have no intimation regarding accident of the vehicle and claim of complainant. It is only a vague plea in order to escape from liability.
10. On the other hand, there is specific contention of learned counsel for op no.2 that they only carried out necessary repair of the vehicle at the instance of complainant after verifying that the vehicle of the complainant is not covered under the cashless policy as complainant had already availed NCB while getting policy issued. They have charged amount of Rs.1,21,652/- on account of repair charges and there is no liability of op no.2 from any corner.
11. Learned counsel for op no.3 though has contended strongly that complainant has not placed on record any copy of intimation letter, copy of survey report, copy of claim lodged, if any with op no.3, so the complaint of complainant is not maintainable at all and same is pre-mature and does not make complainant entitled for the reimbursement of the amount of Rs.1,21,652/- allegedly spent by complainant on account of repair charges paid to op no.2. Non providing of intimation of accident, opportunity of spot survey and final survey etc. have definitely prejudiced right of op no.3 in defending the present complaint.
12. We have considered the rival contentions of the parties and have gone through the record carefully.
13. It is apparently clear from the affidavit as well as evidence of complainant that vehicle of complainant was having insurance coverage for the period 20.5.2016 to 19.5.2017 during which accident of the vehicle took place on 19.1.2017. It is also undisputed fact that vehicle of complainant was damaged and same was got repaired from op no.2 at the cost of Rs.1,21,652/-. Though, op no.2 has taken a plea that they have carried out necessary repairs at the instance of complainant but they have not placed on record any consent letter qua carrying out any repair at the instance of complainant. Further more, if they were carrying any repair at the instance of complainant then what was the necessity to go through the record/ NCB of the vehicle from prior insurer and further there was no need to place on record copy of the NCB by op no.2 meaning thereby that due intimation of the accident of vehicle as well as the repair of the vehicle was given to op no.3 by op no.2 which reflects lapses on the part of op no.2 and op no.3.
14. It is also proved on record that spot survey was got conducted by concerned branch of the insurance company to whom due intimation was given by complainant which is evident from the copy of payment receipt Ex.C26 issued by Raghbir Singh Surveyor of Jind. The perusal of the record reveals that after placing on record documents by complainant, opportunity to lead evidence was given to the ops but op no.2 did not rebut the receipt of the surveyor in their affidavit. The officials of the ops did not rebut nor led any such evidence from which it could be presumed that no spot survey was conducted by official of the insurance company to whom intimation of the accident was given and who passed order of spot survey of the vehicle. So, under these circumstances, it cannot be presumed that there was no intimation to the insurance company qua accident of the vehicle, spot survey and other proceedings which took place at the spot and after carrying vehicle to the premises of op no.2.
15. The perusal of the affidavit of Sh. K.R. Jain, Sr. Divisional Manager reveal that he has reiterated the averments made in the written statement. He has deposed in para no.7 of the affidavit that for the first time he received a legal notice issued by Sh. Anil Gupta, Advocate on behalf of complainant. The deponent in response to the legal notice specifically requested that on going through the contents of legal notice the company note that neither the complainant have mentioned the vehicle number nor the particulars of alleged repudiation letter and in absence of this vital information the company is unable to check the record. He has further deposed that as per the record of the company, this claim has never been reported to the company, so the question does not arise to issue any repudiation letter by the company. The complainant does not intimate the name of surveyor who had conducted the spot and final survey of the vehicle. It also shows that no survey of the vehicle was completed by any surveyor. The perusal of this affidavit reveals that before executing this affidavit, Senior Divisional Manager, United India Insurance Company has not gone through evidence of complainant in which complainant has placed on record payment receipt of Rs.1800/- which was paid by complainant to the surveyor namely Raghbir Singh of Jind nor company has ever made efforts to inquire on his mobile number which is mentioned in the receipt. Nor the op no.3 has placed on record any letter written to Safidon branch nor placed on record any document from which it could be presumed that op no.3 made any effort to inquire from United India Insurance branch at Safidon. Rather in the written statement filed by op no.3, the op no.3 has not specifically denied that no intimation was given to the United India Insurance branch at Safidon. So, it appears from the record that due intimation was given to the United India Insurance company having its office at Safidon which may be one of the branch of the United India Insurance Company Ltd. Moreover, by serving a legal notice upon ops and further in reply to the query raised by insurance company it was duly intimated to op no.3 qua registration number of the vehicle and policy number of the vehicle, even then op no.3 did not make any sincere efforts to trace out the record and proceed further in order to settle the claim of complainant.
16. In view of above discussion, we partly allow this complaint and direct the opposite party no.3 to call upon the complainant to produce required documents within 15 days from the date of receipt of copy of this order. The complainant will submit the documents to the op no.3 which they require within further period of 15 days and thereafter the op no.3 will consider, settle and pay claim of complainant as per terms and conditions of the insurance policy within further period of 45 days. However, keeping in view the facts and circumstances of the present case, the parties are left to bear their own costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:29.10.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
