R.K. AGRAWAL, J., PRESIDENT

1. The challenge in First Appeal Nos. 354 of 2020 and 464 of 2020, filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) by Mr. Ravish Singh (hereinafter referred to as the Complainant) and the IFFCO TOKIO General Insurance Company Ltd. (hereinafter referred to as “Opposite Party Insurance Company”) respectively, is to the Order dated 29.01.2020 passed by the Haryana State Consumer Disputes Redressal Commission, (hereinafter to be referred to as “State Commission”), in Complaint Case No. 429 / 2018 whereby the Complaint filed by the Complainant was partly allowed and the Opposite Party Insurance Company was directed to pay Compensation of ₹29,31,140/- less salvage value of ₹1,00,000/- and less Policy excess of ₹2,000/- with interest @9% p.a. from the date of accidenttill realization.The Opposite Party Insurance Company was also directed to pay compensation of ₹50,000/- for mental harassment and agony alongwith ₹20,000/- towards litigation expenses. The Opposite Party Insurance Company was also directed to comply with the Order within 45 days failing which it would be liable to pay interest @15% per annum for the defaulting period.

    

2. Briefly stated the facts of the case as enumerated in the Complaint are that the Complainant purchased a second hand BMW X5 3.0 7 Seater SUV, 2010 make Car bearing Registration No. HR26AU-0010 from M/s Zara Infrastructure Pvt. Ltd. and got transferred the Insurance Policy No. 30343167 issued by the Opposite Party Insurance Company, which was valid from 30.03.2017 to 29.03.2018. The Insured Declared Value of the said Vehicle was ₹29,31,140/- (Rupees Twenty Nine Lacs Thirty One Thousand One Hundred and Forty only).The Opposite Party Insurance Company charged premium of ₹1,19,915.85/- (Rupees One Lac Nineteen Thousand Nine Hundred and Fifteen only). The Policy also included “Add on Covers” falling under Value Auto Coverage, i.e., ‘Depreciation Waiver Cover’ and ‘New Vehicle Replacement Cover’ for which additional premium of ₹35,906.46/- towards “Depreciation Waiver Cover” and ₹20,954/- towards “New Vehicle Replacement Cover” were paid to the Opposite Party Insurance Company.The wording ‘Depreciation Waiver’ and ‘New Vehicle Replacement’ as provided in the Insurance Policy reads as follows:-

   “DEPRECIATION WAIVER”

    

   If the insured vehicle is damaged as per Section B, “Scope of Coverage” and for which ITGI has the ability in Standard Motor Package Policy, then the benefits of Depreciation Waiver’ will be provided to insured subject to the following:-

    

   1.   ITGI will pay the amount deducted towards the depreciation on parts as per the Survey Report in the partial loss claims under own Damage Section of Standard Motors Package Policy.

    

   2.   The benefits of depreciation Waiver will be provided only if the replacement of parts is considered necessary, not that this benefits will be used to change each and every part of the insured vehicle under the claim of OD Section of Standard Motor Package Policy. The irreparability of part (s) will be decided by the Surveyor as approved by ITGI and not by the insured of the Repair Shop.’’

    

   NEW VEHICLE REPLACEMENT

    

   If the insured vehicle is lost, damage as per Section B ‘’Scope of Coverage”, then the benefits of New Vehicle Replacement will be given as per following condition:

    

   1.   If the insured vehicle Becomes a Total Loss within the prescribed age of the Vehicle, ITGI will pay for the actual amount difference between the IDV (Insured Declared Value) of the vehicle and the current Ex-showroom price of New Vehicle of same make, model, features, specification.

    

   2.   The Insured Vehicle is available for sale as New Vehicle in India and is not out of production; otherwise for such vehicle which are out of production the claim will be settled as per Condition No. (3) (a) i.e., Total Loss claim settlement of Standard Motor Package Policy.

    

   3.   If the Insured Vehicle goes out of production after commencement of insurance, then the difference between the last available Ex-showroom price of the Insured Vehicle and IDV (Insured Declared Value) will be paid.

    

   4.   The available Ex-showroom price for the Replacement of the vehicle cannot be for a date after the settlement of Total Loss Claim for the insured vehicle under Own Damage Section of Motor Policy.

    

3. During the currency of the Policy, i.e., on 06.11.2017, unfortunately the insured Vehicle met with an accident and was severely damaged.The Opposite Party Insurance Company was informed immediately and the claim was submitted. A Surveyor was appointed by the Opposite Party Insurance Company who reported that the Vehicle was non-repairable and it was a case of Total Loss. It is submitted that despite receiving additional premium of ₹35,906.46/- and ₹20,954/- towards Add on Covers, i.e., ‘Depreciation Waiver Cover’ and ‘New Vehicle Replacement Cover’ respectively, the Opposite Party Insurance Company did not replace the damaged Vehicle of Complainant with a New Vehicle. The Complainant also served legal notice dated 04.04.2018 upon the Opposite Party Insurance Company, to pay the cost of New Vehicle alongwith registration charges as per the terms and conditions of the Policy, but to no avail. Alleging Deficiency in Service and Unfair Trade Practice on the part of Opposite Party Insurance Company, the Complainant filed a Consumer Complaint before the State Commission seeking the following reliefs:-

   “i.)   To pay to the Complainant an amount of ₹87,79,662/- (Rupees Eighty Seven Lacs Seventy Nine Thousand Six Hundred Sixty Two only) being the on Road Price of BMW-X5 as per the quotation of Bird Automotive, Gurgaon.

    

   ii.)    To pay to the Complainant interest on the said amount of ₹87,79,662/- (Rupees Eighty Seven Lacs Seventy Nine Thousand Six Hundred Sixty Two only) @12% p.a. from the date of the loss of the said vehicle till its realization..

    

   iii.)   To pay to the Complainant ₹3,00,000/- (Rupees Three Lacs only) towards inconvenience caused to him and towards pain and sufferings..

    

   iv.)   The Complainant is also entitled to ₹1,00,000 (Rupees One Lac Only) towards the litigation cost of the present Complaint.

    

   v.)    Any other relief which this Hon’ble Court may deem fit and proper.

    

   AND / OR

    

   Any other order or direction which this Hon’ble Forum may deem fit and proper in the peculiar facts and circumstances be issued in favour of the Complainants and against the OPs.”

    

4. The Opposite Party Insurance Company contested the Complaint before the State Commission by filing Written Statement. In the Written Statement, they submitted that a Surveyor was appointed by them to assess the loss and as per Surveyor’s Report dated 06.02.2018, the net liability of the Opposite Party on Net Salvage basis is ₹21,98,000/-. Thereafter, taking into account the Surveyor’s Report, and the provisions of the New Vehicle Replacement Cover, the Opposite Party identified the replacement Vehicle of the same Make, Model and year of Manufacture as of the insured Vehicle.In view of the fact that new Vehicle of the same make, model, features and specifications as of the insured Vehicle was out of production and was not available for sale in India, they had written a letter dated 26.02.2018 to the Complainant to visit the location of the Vehicle which was available at CARTRADE Website, within 10 days for giving his concurrence and consent for purchase of said Vehicle for the Complainant, failing which, his claim shall be settled and the liability of the Opposite Party under no circumstances shall exceed ₹ 23,00,000/-, i.e., the market value of the insured Vehicle and the price of the Vehicle identified with the seller for replacement of the Vehicle to the Complainant. However, as the Complainant had not given the aforesaid concurrence/consent within the prescribed time, they wrote another letter dated 28.03.2018 to the Complainant intimating him that as per policy terms and conditions, his claim has been approved to be settled on Net of Salvage basis for ₹21,98,000/-. Further reminders dated 13.06.2018, 16.08.2018 and 19.09.2018 were also sent to the Complainant to submit the aforesaid documents however, the same are still awaited. Thus, in view of the submissions made above, it is clear that the claim of the Complainant is still active and pending and final decision could be taken only after the consent of the Complainant to the above said Offer is received. Therefore, the present Complaint deserves dismissal being premature as the Complainant has directly approached this Hon’ble Commission despite the fact that the Claim is still active and is not repudiated and Opposite Party is willing to settle the same as per the terms and conditions of the Policy. They submitted that there was no deficiency in service on their part and prayed that the Complaint be dismissed.

    

5. After hearing both the parties and perusal of material on record, the State Commission partly allowed the Complaint in aforementioned terms by observing as under:-

   “As per the terms and conditions of the Insurance Police Ex.C-1 there can be new vehicle replacement only if the model of the vehicle is in production. However, in the case in hand, it is proved that model of X5 BMW car is out of production and now it can be replaced with the vehicle of same make and model which is available in the market and according to OPs its value is ₹23,00,000/-(₹ Twenty three lacs). However, it is the contention of OPs that Complainant is entitled only to ₹21,98,000/- (Rupees Twenty one lacs ninety eight thousand) after deducting the salvage access clause, but it is not convincing because admittedly when the IDV of the vehicle is ₹29,31,140/-(Rupees Twenty nine lacs thirty one thousand one hundred and forty only) then in case of total loss and non availability of the model in the market as the model is out of production then certainly, OPs have to compensate the Complainant by granting compensation equal to IDV minus salvage and excess clause. It is pertinent to mention here that as per the definition, the IDV will be as per Standard Motor Package policy for private car, two wheelers and the commercial vehicle as the case may be. In the given circumstances, it cannot be said that if the vehicle of the same model is available in the market and its price is ₹23,00,000/-(Rupees Twenty three lacs) then IDV at the time of policy would not be taken into consideration because so called price of ₹23,00,000/-(Rupees Twenty three lacs) is not objective but it is subjective being at variance on demand. As per the insurance Policy, the claim is to be settled as per condition No.3 (a) i.e. Total Loss Claim Settlement of Standard Motor Package Policy. Since, the IDV is assessed under the Standard Motor Package Policy, therefore, compensation in case of total loss when model is out of production is to be granted equivalent to IDV of the vehicle minus salvage and excess insurance policy.”

    

6. Aggrieved by the Order dated 29.01.2020 passed by the State Commission, while the Complainant has filed FA No. 354 of 2020 for enhancing the Compensation, the Opposite Party Insurance Company has filed FA No. 464 of 2020 for setting aside the impugned Order dated 29.01.2020 passed by the State Commission.

    

7. Mr. Harpreet Singh Gupta, learned Counsel appearing for the Opposite Party Insurance Company submitted after taking into account the Surveyor Report dated 06.02.2018 and the provisions of ‘New Vehicle Replacement Cover’, they had taken steps to identify a Vehicle of the same Make, Model, Features and Specifications as of the insured Vehicle since it was out of production and was not available for sale in India, they found a suitable vehicle at ‘CARTRADE’ Website and accordingly, vide letter dated 26.02.2018 and reminder dated 13.06.2018, they requested the Complainant to visit the location of the Vehicle within 10 days for accepting the offer of replacement Vehicle, failing which his claim would be settled at ‘Net Salvage Basis’, i.e., ₹21,98,000/-Despite that Complainant neither visited the site of the Car nor submitted the required document, i.e., Registration Cancellation Letter.The State Commission has erroneously awarded ₹29,31,140/-, i.e., IDV of the Vehicle to the Complainant, whereas he is entitled to only for ₹21,98,000/-.He prayed that the Order dated passed by the State Commission be set aside and their Appeal be allowed.

    

8. Per contra, Mr. Vibhor Agrawal, learned Counsel appearing on behalf of the Complainant submitted that the State Commission is not justified in awarding compensation to the tune of ₹29,31,140/-, whereas in terms of Add-on Cover ‘New Replacement Vehicle’ for which the Opposite Party Insurance Company has been paid extra Premium, he is entitled for either new Car or its value, i.e., ₹87,79,662/-.  He prayed that the Impugned Order dated 29.01.2020 passed by the State Commission be modified and the amount of compensation be enhanced to the extent as prayed for in the Complaint Case No. 429 / 2018.  

    

9. We have heard Mr. Vibhor Agrawal learned Counsel for the Complainant and Mr. Harpreet Singh Gupta, learned Counsel for Opposite Party Insurance Company, perused the Impugned Order passed by the State Commission, the Complaint, the Written Statement and all the documents on Record.    

    

10. From the record, we find that it is not in dispute that the BMW X5 SUV, i.e., the Insured Vehicle met with an accident on 06.11.2017 when the Insurance Policy was in force.The Surveyor appointed by the Opposite Party Insurance Company reported that the Vehicle was non-repairable and it was a case of Total Loss.He, however, assessed the net liability of the Opposite Party Insurance Company at ₹21,98,000/- by taking ₹23,00,000/- as market value of the Insured Vehicle and deducting a sum of ₹1 lakh being the Salvage Value without documents and Policy Excess of ₹2,000/-.The loss assessed by the Surveyor had been accepted by the Opposite Party Insurance Company.The Opposite Party Insurance Company was prepared to replace the damaged Vehicle with the Vehicle of the same Make and Model available with CARTRADE Website as the Manufacturer discontinued the production and sale of the BMW X5 SUV vehicle.The Complainant, however, did not give his consent for purchase of the Vehicle of the same Make and Model from CARTRADE and instead insisted upon payment of ₹87,79,662/- being the On Road price of BMW X5 SUV Vehicle.The State Commission after considering the entire material on record as also the submissions made by the learned Counsel for the Parties directed the Opposite Party Insurance Company to pay a sum of ₹29,31,140/- being the IDV of the Insured Vehicle less Salvage of ₹1 lakh and ₹2,000/- towards Excess Clause.Admittedly, under the Depreciation Waiver Clause of the Insurance Policy, benefits of Depreciation Waiver had to be provided if the replacement of parts is considered necessary otherwise benefits of Depreciation is not to be considered.Under the New Vehicle Replacement Clause, the Opposite Party Insurance Company is liable to pay the actual amount difference between the IDV, i.e., Insured Declared Value of the Vehicle and the current Ex-showroom price of New Vehicle of same Make, Model, features and specifications if the Vehicle becomes total loss.If the Insured Vehicle is available for sale as New Vehicle in India and is not out of production, otherwise for such vehicle which is not available, the Claim has to be settled as per Total Loss Claim settlement of Standard Motor Package Policy.If the Insured Vehicle goes out of production after commencement of Insurance, then the difference between last available Ex-Showroom price of the Insured Vehicle and IDV, i.e., Insured Declared Value has to be paid.

     

11. As the Vehicle, in question, had been declared by the Surveyor as non-repairable and a case of Total Loss and the Complainant had taken the Policy with Add on Covers of New Vehicle Replacement and Depreciation Waiver Cover, the Complainant is entitled for payment of amount to be determined under the Clauses of New Vehicle Replacement and Depreciation Waiver contained in the Insurance Policy.

     

12. From perusal of the conditions of Depreciation Waiver and New Vehicle Replacement, we are of the considered opinion that as it had been assessed as a case of Total Loss and no parts can be replaced, Depreciation Waiver clause is not attracted.Further, the Manufacturer has discontinued the production and sale of Vehicle BMW X5 SUV, i.e. the Make and Model of the Insured Vehicle, thus, the Opposite Party Insurance Company is liable to pay the value as per New Vehicle Replacement Clause of the Insurance Policy.The last available Ex-showroom Price of the Vehicle has neither been stated by the Manufacturer nor by the Opposite Party Insurance Company.However, it is being claimed by the Complainant as per the quotation of Bird Automotive, Gurugram.The price given by Bird Automotive, Gurugram has not been proved, in the absence of which the difference between the price quoted by Bird Automotive and the Insured Declared Value cannot be applied in the present case.Thus, the liability, if any, of the Opposite Party Insurance Company would be the Insured Declared Value which in the present case is ₹29,31,140/- less the Salvage Value which has been assessed at ₹1,00,000/- and Policy Excess of ₹2,000/-, which the State Commission while disposing off the Complaint has rightly ordered.

     

13. In view of the foregoing discussions, we do not find any error or illegality in the Order dated 29.01.2020 passed by the State Commission.Both the Appeals are dismissed.

     

14. The Registry is directed to release the amount deposited by the Opposite Party Insurance Company alongwith accrued interest, if any, in favour of the Complainant within one week from today.The balance amount in terms of the Order dated 29.01.2020 passed by the State Commission, shall be paid by the Opposite Party Insurance Companyto the Complainant within four weeks from today.

     

The pending applications, if any, shall stand disposed off.