STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 311 of 2013 |
Date of Institution | : | 23.07.2013 |
Date of Decision | : | 01.10.2013 |
Raman Kaura R/o H.No.197, Sector 19-A, Chandigarh.
…Appellant/Complainant.
Versus
1.HDFC ERGO General Insurance Co. Ltd., through its Branch Manager, SCO No.124-125, 1st
2.HDFC ERGO General Insurance Co. Ltd., through its Managing Director, 6th
3.Sh. Naveen, (Claim Officer) Claim Department, HDFC ERGO General Insurance Co. Ltd., SCO No.124-125, 1st
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by: Sh. Deepak Aggarwal, Advocate for the appellant.
Sh. Sandeep Suri, Advocate for the respondents.
First Appeal No. | : | 362 of 2013 |
Date of Institution | : | 23.08.2013 |
Date of Decision | : | 01.10.2013 |
1.HDFC ERGO General Insurance Co. Ltd., through its Branch Manager, SCO No.124-125, 1st
2.HDFC ERGO General Insurance Co. Ltd., through its Managing Director, 6th
3.Sh. Naveen, (Claim Officer) Claim Department, HDFC ERGO General Insurance Co. Ltd., SCO No.124-125, 1st
……Appellants/Opposite Parties.
Versus
Raman Kaura R/o H.No.197, Sector 19-A, Chandigarh.
….Respondent/Complainant.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Sandeep Suri, Advocate for the appellants.
Sh. Deepak Aggarwal, Advocate for the respondent.
PER DEV RAJ, MEMBER.
This order shall dispose of two appeals, bearing Nos.311 of 2013 filed by the appellant/complainant and 362 of 2013 filed by the appellants/Opposite Parties, against the order dated 14.06.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it disposed of the complaint and directed the Opposite Parties, as under: -
“15. The complaint is disposed off accordingly. A time of 60 days from the date of receipt of certified copy of this order is given to the Opposite Parties to settle the claim by giving weightage to the points raised by the independent surveyor.
16. Opposite Parties will also pay Rs.7,000/- as costs of litigation.”
2. The facts, in brief, are that Skoda Octavia car of the complainant bearing registration No.CH-03W-2537, was duly insured by Opposite Parties No.1 and 2, vide Policy No.2311200007783600000, for the period from 13.5.2010 to 12.5.2011. Copy of the Cover Note bearing No.0002656 is Annexure C-1. It was stated that unfortunately, the car met with an accident on 24.5.2010 and was badly damaged. It was further stated that necessary intimation was duly given to Opposite Party No.1. It was further stated that spot survey was conducted and on the assurance of Opposite Party No.1, the vehicle was taken to the Auto Workshop i.e. Sunil Auto, 120 Ram Darbar, Industrial Area, Phase II, Chandigarh, which gave an estimate of Rs.72,000/- for carrying out the requisite repairs. It was further stated that a Surveyor was appointed by the Opposite Parties and after necessary verification/inspection/assessment of loss by him, the requisite repairs were carried out, by the Auto Workshop. It was further stated that after making payment of Rs.72,000/- towards the cost of repairs, labour spare parts etc. to the Auto Workshop, the delivery of vehicle was taken by submitting the original bills, and cash memos. The complainant could not retain the photocopies of the same. It was further stated that against the claim of Rs.72,000/-, the Opposite Parties illegally reduced the claim and sent a cheque bearing No.921340 dated 24.8.2010 in the sum of Rs.23,970/- (Annexure C-2) to the complainant. It was further stated that since the Opposite Parties arbitrarily settled the claim without informing the complainant, and not to his entire satisfaction, the matter was taken up with Opposite Party No.3, but no satisfactory justification was received. It was further stated that the complainant returned the cheque, in question, to Opposite Party No.1, vide letter dated 5.10.2010 (Annexure C-3), which was duly received by it, vide receipt (Annexure C-4). It was further stated that vide letter (Annexure C-3), the Opposite Parties were requested to send reply alongwith necessary details/justification within 10 days, but to no avail. It was further stated that the act and conduct of the Opposite Parties, in settling the claim, in an arbitrary manner, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties, to pay Rs.72,000/- alongwith interest @18% per annum, Rs.50,000/- as compensation for physical harassment and mental agony; and Rs.15,000/- as cost of litigation, was filed.
3.
4. Opposite Party No.3, did not put in appearance before the District Forum, despite service and, as such, he was proceeded against exparte vide order dated 2.2.2012.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, disposed of the complaint, vide the impugned order, as stated above.
7. Feeling aggrieved, the complainant as well as the Opposite Parties, filed the instant appeals.
8. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that the Surveyor’s Report (Annexure R-2) is not supported by an affidavit and, as such, the same cannot be acted upon. It was further submitted that the appellant/complainant was offered only an amount of Rs.23,970/- against the claim of Rs.72,000/-. It was further submitted that labour charges were also reduced significantly, and there was no provision in the Insurance Policy, for imposing deductions in the same. It was further submitted that finding the amount of Rs.23,970/- to be on the lower side, a protest letter dated 5.10.2010 was sent by the complainant to Opposite Party No.2, with a copy to Opposite Party No.1, which duly acknowledged the same on 6.10.2010, vide receipt/stamp (Annexure C-4). In support of his contentions, the Counsel for the appellant/complainant relied on the affidavit of Shri Vinod Kumar Sharma, a licensed Surveyor. He also placed reliance on the cases titled as
10. On the contrary, the Counsel for the appellants/Opposite Parties, in Appeal No.362 of 2013, submitted that Sh. Vinod Kumar Sharma, Licensed Surveyor, whose affidavit was placed, on record, by the complainant, in support of his case, neither checked the vehicle nor saw the photographs and the original report of the Surveyor appointed by the Opposite Parties nor was he an independent Surveyor and, therefore, no weightage could be attached to the same (affidavit). While referring to Para No.6 of the impugned order, wherein the District Forum, extracted the issues raised by Sh. Vinod Kumar, Surveyor, it was submitted that he (Vinod Kumar) could not sit in judgment over the report given by the Surveyor, who was appointed by Opposite Parties No.1 and 2, under IRDA Regulations. It was further submitted that the vehicle, in question, had already been repaired. It was further submitted that while assessing the claim for various items, depreciation on account of metal parts @35% and for plastic parts @50% was made.
11. No doubt, the report (Annexure R-2) of the Surveyor is not supported by an affidavit but the Counsel for the appellant/complainant admitted that assessment made by him in respect of various parts was correct. The appellant/complainant relied upon the affidavit of Sh. Vinod Kumar Sharma, independent Surveyor, and photocopies of the bills amounting to Rs.70,950/- were also produced on record. The Surveyor appointed by the Opposite Parties in his report (Annexure R-2) disallowed those parts, bills for which had not been brought, in evidence, by the appellant/complainant. The major disallowed claim pertains to the items like Front Bumper, Bumper Reinforcement etc. Non production of bills, for these parts, fortifies the fact that the same were not actually replaced/repaired.
12.
“The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon
i. xxxx
ii. xxxx
iii. xxxx
iv. xxxx
v. xxxx
vi. by accidental external means;
vii. xxxx
viii. xxxx
ix. xxxx
x. xxxx
Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced:
1. For all rubber/nylon/plastic parts, tyres and tubes, Batteries and air bags - 50%
2. For fibre glass components - 30%
3. For all parts made of glass - Nil
4. Rate of depreciation for all other parts including wooden parts will be as per the following schedule:
AGE OF VEHICLE | % OF DEPRECIATION |
Not exceeding 6 months | Nil |
Xxxx | xxxx |
Xxxx | xxxx |
Xxxx | xxxx |
Xxxx | xxxx |
Exceeding 4 years but not exceeding 5 years | 35% |
Xxxx | xxxx |
Xxxx | xxxx” |
Thus, the claim of the appellant/complainant was to be regulated, in terms of the provisions of the Policy, as extracted above. The report (Annexure R-2) of the Surveyor, submitted by the Opposite Parties, no doubt, is unsigned and undated, yet the Counsel for the complainant partly relied upon the same. The complainant also submitted the affidavit of Sh. Vinod Kumar, Surveyor, who neither inspected the vehicle nor saw the report (Annexure R-2) of the Surveyor of the Opposite Parties. Annexure R-2 Report of the Surveyor and affidavit of Sh. Vinod Kumar are required to be co-related to arrive at the correct assessment of loss.
13. Annexure R-2, contains the details of estimate and loss assessed by the Surveyor as under:-
A)PARTS
| | | A S S E S S E D |
Sr. No. | DESCRIPTION | ESTIMATED | METAL | PLASTICS | GLASS | TOTAL |
1. | FRT BUMPER | 6000.00 | NA | | | |
2 | MOULDING FRT BUMPER | 2000.00 | | 2000.00 | | |
3 | GRILL SET | 5000.00 | | 1800.00 | | |
4 | BONNET | 8300.00 | 5500.00 | | | |
5 | HEAD LIGHT2 | 6000.00 | | 6000.00 | | |
6 | CORNER LAMPS 2 | 900.00 | | 900.00 | | |
7 | FRT END CARRIER | 2900.00 | 2900.00 | | | |
8 | BUMPER REINFORCE-MENT | 5500.00 | NA | | | |
9 | RADIATOR | 6200.00 | NA | | | |
10 | CONDENSOR | 4500.00 | NA | | | |
11 | FAN RADIATOR | 5800.00 | | 5000.00 | | |
12 | FAN AC | 4800.00 | | 3500.00 | | |
13 | AC GAS | | | | 600.00 | |
| TOTAL | 57900.00 | 8400.00 | 19200.00 | 600.00 | 28200.00 |
| VAT | 7237.50 | 1050.00 | 2400.00 | 0.00 | 3450.00 |
| TOTAL | 65137.50 | 9450.00 | 21600.00 | 600.00 | 31650.00 |
LESSDEPRECIATION: ON METALS @35%ON PLASTIC @50% | 3307.50 | 10800.00 | 0.00 | 14107.50 |
| 6142.50 | 10800.00 | 600.00 | 17542.50 |
B) LABOUR 17800.00 7900.00
The summary of amount, assessed by the Surveyor, is extracted below:-
SUMMARY OF ASSESSMENT | ESTIMATED | ASSESSED |
A) | TOTAL COST OF SPARE PARTS | 65137.50 | 17542.50 |
B) | TOTAL LABOUR CHARGES | 17800.00 | 7900.00 |
C) | TOTAL (A+B) | 82937.50 | 25442.50 |
D) | LESS COMPULSORY DEDUCTIBLE | | 1000.00 |
E) | NET ASSESSED LOSS | | 2442.50 |
F) | LESS SALVAGE VALUE | | 472.50 |
G) | NET PAYABLE AMOUNT | | 23970.00 |
14. As per above details, culled out from Annexure R-2, against the total estimated amount of Rs.82937.50, the amount found payable to the appellant/complainant was Rs.23,970/-, for which, the appellants/Opposite Parties sent a cheque to the complainant, who, in turn, returned the same to them vide letter dated 05.10.2010 (Annexure C-3).
15. The claim of the appellant/complainant was for Rs.72,000/- and the photocopies of bills are for an amount of Rs.70950/-. Thus, the estimate of Rs.82,937.50 in the face of claim of the appellant/complainant, and bills is clearly exaggerated.
16. During the course of arguments, the Counsel for the appellant/complainant admitted that the assessment with regard to parts at Serial Nos.2, 4 to 7, 11 and 12 was correctly made. It was further submitted that in regard to the remaining items, the assessment was not in accordance with the terms of the Insurance Policy. The Counsel submitted his own calculation sheet, according to which, the amount worked out to be Rs.70,822/-. While doing so, the Counsel did not keep in mind the fact that the payable amount was required to be worked out, with reference to the complainant’s claim of Rs.72,000/- and bills, which were for an amount of Rs.70,950/-. He also did not deduct 35% and 50% for metal and plastic parts. Considering all the aforesaid facts, the admissible amount is worked out as under: -
Sr. No. | A)PARTS DESCRIPTION | ESTIMATED | GIVEN | ACTUAL ADMISSIBLE Metal Plastic |
1. | FRT BUMPER | 6000.00 | NIL | Nil | |
2 | MOULDING FRT BUMPER | 2000.00 | 2000.00 | - | 2000.00 |
3 | GRILL SET | 5000.00 | 1800.00 | - | 5000.00 |
4 | BONNET | 8300.00 | 5500.00 | 8300-00 | - |
5 | HEAD LIGHT2 | 6000.00 | 6000.00 | | 6000.00 |
6 | CORNER LAMPS 2 | 900.00 | 900.00 | | 900.00 |
7 | FRT END | 2900.00 | 2900.00 | 2900.00 | - |
CARRIER | | | |
| | | |
8 | BUMPER REINFORCE-MENT | 5500.00 | NIL | Nil | |
9 | RADIATOR | 6200.00 | NIL | 6200.00 | - |
10 | CONDENSOR | 4500.00 | NIL | 4500.00 | - |
11 | FAN RADIATOR | 5800.00 | 5000.00 | | 5800.00 |
12 | FAN AC | 4800.00 | 3500.00 | | 4800.00 |
13 | AC GAS | | NIL | | Nil |
| TOTAL | 57900.00 | 27600.00 | 21900.00 | 24500.00 |
| LABOUR BILLS | 17800.00 | 7900.00 | | |
| VAT | 7237.50 | 3450.00 | | |
| | | | | | | | | |
Less :35% of Rs.21900 (metal parts) 7665.00 12250.00
14235.00 12250.00
Summary
Metal Parts | Rs.14235.00 |
Plastic Parts: | Rs.12250.00 |
Vat as per bills | Rs. 5200.00 |
Labour (as per bills) | Rs.17400.00 |
Total | Rs.49085.00 |
Less compulsory deductible | Rs. 1000.00 |
Less salvage value | Rs. 472.50 |
Total payable | Rs.47612.50 |
The claim totaling Rs.11,500/- for parts at Sr.No.1 and 8 was not allowed by the Surveyor as these parts do not find mention, in the bills of the appellant/complainant. Therefore, we do not find any justification for allowing claim qua these parts. The Surveyor was right in declining claim for these items. The facts of the judgments in the cases
17. Since, the report of the Surveyor did not assign the reasons for allowing or disallowing the claim, the aforesaid admissible amount has been calculated by co-relating the Surveyor report with the bills of the appellant/complainant and deductions @35% for metal parts and 50% for plastic parts, as per the terms of the Policy. Considering the law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and Hon’ble Supreme Court, the report of the Surveyor, to the extent it is not in consonance with the terms and provisions of Insurance Policy, is not required to be given weightage. We are, therefore, of the considered opinion that the complainant is entitled to an amount ofRs.47,612.50, as calculated above. In these circumstances, the appeal filed by the appellant/complainant is liable to be partly accepted, whereas the appeal filed by the appellants/Opposite Parties is liable to be dismissed.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, the appeal bearing No.311/2013, filed by the appellant/complainant, is partly accepted, with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;
“(i) Appellants/Opposite Parties are directed to pay an amount ofRs.47,612.50to the complainant, being the total amount payable as against his claim of Rs.72,000/-, alongwith interest @9% per annum from the date of filing the complaint.
(ii) The direction given in Para 15 of the impugned order, is set aside.
(iii) The order of the District Forum awarding costs of litigation to the tune of Rs.7,000/- is upheld.
(iv) This order be complied with, by the Opposite Parties, within a period of 45 days, from the date of receipt of its certified copy, failing which, they shall be liable to pay the aforesaid amount ofRs.47,612.50, as mentioned in Clause (i) alongwith interest @12% from the date of default till the date of actual payment to the complainant.
(v) Any other direction, given by the District Forum, which is contrary to and in variance with this order, subject to the modification, aforesaid, shall stand set aside.”
20. However, the appeal bearing No.362 of 2013 filed by the appellants/Opposite Parties, is dismissed with no order as to costs.
21. Certified copy of this order be placed in First Appeal No.362 of 2013.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after due completion.
Pronounced.
1st
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
Ad
STATE COMMISSION
(First Appeal No.311 of 2013)
Argued by: Sh. Deepak Aggarwal, Advocate for the appellant.
Sh. Sandeep Suri, Advocate for the respondents.
Dated the 1st
ORDER
Vide our detailed order of even date, recorded separately, this appeal filed by the appellant/complainant has been partly accepted whereas the cross appeal bearing No.362 of 2013 filed by the appellants/Opposite Parties has been dismissed, with no orders as to costs.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER(RETD.)) PRESIDENT | |
Ad
STATE COMMISSION
(First Appeal No.362 of 2013)
Argued by: Sh. Sandeep Suri, Advocate for the applicants/appellants.
Sh. Deepak Aggarwal, Advocate for the respondent.
Dated the 1st
ORDER
An application for condonation of delay of 31 days was filed by the applicants/appellants alongwith the appeal.
2. Since First Appeal No.311 of 2013, arising out the impugned order, has already been filed by the appellant/complainant, and both the appeals are to be decided together, by passing a common order, we find sufficient cause for condonation of delay of 31 days. The delay of 31 days, in filing the appeal, is condoned.
3. The application is disposed of accordingly.
4. Admitted. It be registered.
5. Arguments already heard.
6. Vide our detailed order passed in Appeal No.311 of 2013, this appeal has been dismissed with no order as to costs.
7. Certified copies of the order be sent to the parties free of charge.
Sd/- (DEV RAJ) MEMBER | Sd/- (JUSTICE SHAM SUNDER(RETD.)) PRESIDENT | |
Ad
