DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 1 of 1.1.2008<br /> Decided on : 19.5.2008 <br /> <br /> Kamlesh Rani W/o Sh. Jagdish Chand, R/o Street No. 10/5, Guru Gobind Singh Nagar, Bathinda.<br /> .... Complainant<br /> <br /> Versus. <br /> <br /> 1.Reliance General Insurance Company Limited, 19 Reliance Centre, Walchand Hirachand Marg, Ballard Estate, Mumbai-400 038 through its Manager/C.M.D.<br /> 2.Reliance General Insurance Company Limited, C/o Megma Leasing Ltd., Ist Floor, Above City Centre, G.T. Road, Near Tinkony, Bathinda through its Authorised Person.<br /> 3.Megma Leasing Ltd., Ist Floor, Above City Centre, G.T. Road, Near Tinkony, Bathinda through its Manager. <br /> ... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM :-<br /> <br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member <br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties : Sh. Sunder Gupta, counsel for opposite parties No. 1&2 <br /> Sh. J.S Kohli, counsel<br /> for opposite party No. 3. <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay her Rs. 2,70,955/- alongwith interest @ 18% P.A or repair the vehicle; pay Rs. 25,000/- for mental agony and pains and Rs. 10,000/- as litigation expenses.<br /> 2. Briefly put, the case of the complainant is that she is the owner of new Canter bearing registration No. PB-03Q-9091 model 2007. It has been hypothecated with opposite party No. 3 who has financed it. It was comprehensively insured with opposite parties No. 1 & 2 vide Cover Note No. 1423404 dated 31.1.2007 w.e.f its delivery through opposite party No. 3 for a sum of Rs. 5,38,650/- (Insured's Declared Value) after depreciating 5% value of the invoice value of Rs. 5,67,000/-. Opposite party No. 3 had given undertaking at the time of financing that it is its duty to get the vehicle comprehensively insured every year and that it would recover the premium charges from her in instalments. Insurance was a cashless one. Policy with terms and conditions was not supplied. Vehicle was purchased on 1.2.2007 from Krishna Auto's authorised dealer of the manufacturing company. At the time of issuing cover note, undertaking was given that in case of any damage or loss, they would be liable for repair of the vehicle from authorised dealer of the manufacturing company. As per insurance rules, there is no depreciation in first six months on repairs. Vehicle had met with an accident on 20.5.2007 in the revenue limits of Jhabal with Tractor Trolley. At that time, it was being driven by Vijay Kumar. It was badly damaged. Compromise regarding the accident was arrived at in police Station Jhabal in the presence of the Panchayat. Intimation of the accident was given to the opposite parties by the complainant. Sh. Dinesh Kumar Goyal was deputed by the opposite dparties as Surveyor. After the accident, vehicle was shifted to Krishna Auto's, authorised service centre/dealer of the manufacturer at Bathinda. Final survey was done by Mr. Dinesh Kumar Goyal at M/s. Krishna Auto's which gave the estimated repair cost as Rs. 2,70,955/-. Vehicle is still lying with Krishna Auto's, Bathinda under the custody of opposite parties No. 1 to 3. It was the duty of the opposite parties to get it repaired from authorised dealer under their supervision. Surveyor had obtained signatures on different 5/6 blank papers including blank consent form with the assurance that the vehicle would be got repaired at the expenses of opposite parties no. 1 & 2 as the accident had occurred within six months. Surveyor and the opposite parties did not send copy of the final survey report to her. She and her son were making inquiries but no satisfactory reply was given. Surveyor gave instructions to her that insurance company would not be liable for the repairs and that she should start the repair of the vehicle at her own cost and risk. Due to the non payment of the claim, she has undergone mental agony, pain and sufferings. Vehicle is in the possession of the opposite parties till date and opposite party No. 3 is charging high rate of interest on the loan amount. She withdraws the blank signed consent forms and papers etc. obtained by the Surveyor with immediate effect. In these circumstances, she alleges deficiency in service on the part of the opposite parties.<br /> 3. On being put to notice, opposite parties No. 1 & 2 filed reply of the complaint taking legal objections that this Forum has got no territorial jurisdiction to entertain and try the complaint as they have no office within the territorial jurisdiction of this Forum; complainant has concealed material facts from this Forum; she is estopped from filing the complaint by her act and conduct; vehicle was hypothecated with opposite party No.3; complainant has no locus standi and cause of action to file the complaint; complaint is not maintainable and it is false and frivolous. On merits, they admit that complainant is the registered owner of the vehicle and it has been hypothecated with opposite party No.3. It was comprehensively insured with them vide cover note dated 31.1.2007 effective from 31.1.2007 to 30.1.2008. They do not deny that the vehicle was purchased on 1.2.2007 from Krishna Auto's authorised dealer of the manufacturing company. They deny that the insurance was cashless. Accident stands admitted. According to them, intimation of the accident was not given immediately. Rather, it was very late. Sh. Dinesh Kumar Goyal was deputed as Surveyor. At the time of visit of the Surveyor, vehicle was lying parked at Krishna Auto's. Surveyor has submitted his final report and has assessed the net liability to the tune of Rs.1,93,401/- after deducting salvage value and Rs. 1,45,050.75 on the basis of cash loss basis as the complainant was not ready to get the vehicle repaired despite repeated requests. She had given consent to receive Rs. 1,29,500/- towards full and final settlement of her claim. Accordingly, this amount was paid to opposite party No. 3 through cheque. Her son had agreed to settle the claim on cash loss basis. She is precluded from contending that any further amount is due. Consent was given by her without any coercion. They deny the remaining averments in the complaint.<br /> 4. Opposite party No. 3 filed its version taking legal objections that complaint is not maintainable in the present form and complainant has not come with clean hands. It does not dispute the ownership of the vehicle and its financing with it. Similarly, it admits that vehicle was insured. It denies that the insurance of the vehicle was cashless and policy with terms and conditions was not supplied. According to it, vehicle was purchased on 1.2.2007 from Krishna Auto's authorised dealer of the manufacturing company for Rs.5,67,000/-. Inter-alia, their plea is that it is the duty of the complainant to get the vehicle repaired from authorised dealer. There is no specific denial regarding the accident of the vehicle with Tractor Trolley. It admits that accident was immediately reported to it and Sh. Dinesh Kumar Goyal was deputed as Surveyor. Complainant is not ready even to pay single penny for repair of the vehicle. In the month of January, 2008, she had signed consent letter and had settled claim on cash loss settlement basis. It has already received Rs. 1,29,500/- vide cheque No. 263983 dated 21.1.2008 drawn by ICICI Bank issued by opposite party No.1 on the basis of consent letter. This amount has already been adjusted in the loan account. They deny the remaining averments in the complaint.<br /> 5. In support of her allegations and averments in the compliant, Kamlesh Rani complainant tendered into evidence her own affidavits (Ex.C.1 & Ex.C.7), affidavit (Ex.C.8) of Sh. Vijay Kumar, photocopy of insurance cover note (Ex.C.2), photocopy of driving licence of Vijay Kumar (Ex.C.3), photocopy of registration certificate (Ex.C.4), photocopy of compromise (Ex.C.5), photocopy of consent letter (Ex.C.6), photocopy of one page of Circular (Ex.C.9), photocopies of Claim Sheets (Ex.C.10 & Ex.C.11), photocopy of temporary registration certificate (Ex.C.12), photocopy of consent letter (Ex.C.13), photocopy of documents list (Ex.C.14),photocopy of letter dated 20.5.2007 (Ex.C.15), photocopy of estimate (Ex.C.16), photocopies of cash memos (Ex.C.17 to Ex.C.19), photocopy of bill of Gupta Hospital (Ex.C.20), photocopy of Motor Claim Form (Ex.C.21), photocopy of intimation letter (Ex.C.22) and photocopy of survey report alongwith photocopies of photographs (Ex.C.23).<br /> 6. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1, Ex.R.2 & Ex.R.11) of S/Sh. Satyan Kapur, Assistant Manager of opposite party No.1, Dinesh Kumar Goyal, Surveyor and Rajiv Jindal, Legal Officer of opposite party No.3 respectively, photocopies of letters dated 2.7.2007,20.9.2007 and 28.12.2007 (Ex.R.3,Ex.R.4 & Ex.R.6), photocopy of consent letter (Ex.R.5), photocopy of Schedule (Ex.R.7),photocopy of Premium Computation Table (Ex.R.8), photocopy of Certificate of Insurance (Ex.R.9), photocopy of email letter (Ex.R.10) and photocopy of one page of ledger (Ex.R.12).<br /> 7. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered the written arguments submitted by the complainant and opposite parties No. 1 & 2.<br /> 8. There is no dispute about the ownership of the Canter, its insurance with opposite parties No. 1 & 2, accident dated 20.5.2007, deputing of Sh. Dinesh Kumar Goyal as Surveyor and hypothecation of the vehicle with opposite party No.3. Even otherwise, Ex.C.4, Ex.R.12 and Ex.C.2 are the copies of the registration certificate of the vehicle, account statement of the complainant kept by opposite party No.3 and copy of the cover note respectively. Vehicle had met with an accident within six months from the date of its purchase. After the accident, compromise was got effected by the respectables and copy of the same is Ex.C.5. Opposite parties have not placed on record complete policy. They have got exhibited Ex.R.7 to Ex.R.9 which are insurance certificates and premium computation table. Vehicle was purchased on 1.2.2007 from Krishna Auto's authorised dealer of the manufacturing company. As per Ex.C.9, no depreciation is permissible if the age of the vehicle is less than six months as is in this case. Opposite parties No. 1 & 2 have paid Rs.1,29,500/- to opposite party No. 3 during the pendency of this complaint. This amount has been adjusted in her account on 22.1.2008.<br /> 9. Mr. Garg, learned counsel for the complainant argued that intimation of the accident was given immediately to the opposite parties by the complainant as is evident from Ex.C.22 and Sh. Dinesh Kumar Goyal Surveyor was deputed by the opposite insurance company as is evident from Ex.C.15. After accident, vehicle was brought to Krishna Auto's authorised service centre/dealer. Final survey was done. Authorised service centre gave the estimated repair cost as Rs. 2,70,955/- as is clear from Ex.C.16, besides Rs.25,000/- for labour charges for Chassis and frame and Cabin. He next argued that since Krishna Auto's is the authorised dealer of the manufacturing company, loss assessed by it should be awarded.<br /> 10. Mr. Gupta, learned counsel for opposite parties No. 1 & 2 argued that after receipt of information of the accident, Sh. Dinesh Kumar Goyal was deputed to assess the loss. He made repeated requests and gave reminders to the complainant for getting repairs of the vehicle started as is clear from Ex.R.3 & Ex.R.4 but she failed to get the vehicle repaired. It being so, Surveyor was left with no other option but to assess the loss as visible and submit his report on 2.12.2007, copy of which is Ex.C.23 and affidavit of Mr. Goyal is Ex.dR.2. He has assessed net loss to the tune of Rs. 1,45,050.75 on cash loss basis.<br /> 11. We have considered the respective arguments. First point for determination is as to whether complainant was bound to get the vehicle repaired for obtaining the insurance claim amount. The answer to our minds is in the negative. Learned counsel for opposite parties no. 1 & 2 could not show us any provision according to which repair of the vehicle is mandatory for receiving the claim amount. Matter has been set at rest by the Hon'ble State Commission of Punjab in the case of Sadeev Singh Sandhu and Sons Vs. United India Insurance Company Limited-II(1999)CPJ-118 in which it has been held that it is immaterial whether the owner of the truck gets the truck repaired or not. Accordingly, the contention of the learned counsel for opposite parties No. 1 & 2 that complainant failed to get the vehicle repaired, is not tenable.<br /> 12. Mr. Gupta, learned counsel for opposite parties No. 1 & 2 argued that since complainant was unable to get the vehicle repaired, she had agreed to settle the claim for Rs.1,29,500/- towards full and final settlement in the presence of her son without any coercion. She had issued consent letter, copy of which is Ex.R.5. Accordingly, payment of Rs.1,29,500/- has been made to opposite party No. 3 towards full and final settlement of the claim which has been adjusted by opposite party no. 3 in her account and as such, there is no deficiency in service on the part of opposite parties No. 1 & 2. For this he drew our attention to the authority Chandigarh Petro Foam Pvt. Ltd. Vs. United India Insurance Co. Ltd. & Another-2008(1)CLT-290. He further argued that report of Surveyor is an important document and sufficient reasons must be shown to reject it. For this, he referred authority Paam Eatable Ltd. Vs. United India Insurance Co. Ltd.-2004(3)CLT-163.<br /> 13. Mr. Garg, learned counsel for the complainant argued that complainant did not agree to receive Rs.1,29,500/- towards full and final settlement of her claim. Infact, Surveyor of opposite parties No. 1 & 2 at the time of survey had obtained her signatures on different 5/6 blank papers including blank consent form with the assurance that vehicle would be got repaired at the cost of opposite parties No. 1 & 2. This fact stands established when Ex.C.6 is compared with Ex.C.13.<br /> 14. Thoughtful consideration has been given by us to these rival arguments. Question for determination is as to whether Ex.C.13 which the copy of the consent letter-cash loss settlement was voluntarily signed by the complainant and her son and there was no misrepresentation. So far as the affidavit Ex.R.2 of Sh. Dinesh Kumar Goyal Surveyor that complainant of her own free will and consent, without any coercion in the presence of her son and opposite party No. 3 had agreed to settle the claim for Rs. 1,29,500/- as full and final settlement of her loss is concerned, it stands amply rebutted with the abundant evidence on record. Complainant is coming with the plea that her signatures were obtained on different 5/6 blank papers including blank consent form that the vehicle would be fully repaired at the cost of opposite parties No. 1 & 2. In the complaint itself, she withdraws the blank consent form and papers etc. obtained by the Surveyor. She has also given her affidavit to the effect that she never gave any authorisation/consent letter to opposite party No. 3 regarding the settlement of her claim with opposite parties No. 1 & 2 nor opposite party No. 3 ever demanded or asked or brought to her notice that her claim is being settled by it with opposite parties No. 1 & 2. She was not in the knowledge till the filing of the reply of the complaint by opposite party No. 3 that any part of the claim amount has been paid to it. On 26.3.2008, opposite party No. 1 had produced the claim file but it did not contain payment discharge voucher. It is further in her affidavit that act and conduct of the opposite parties and the Surveyor are coercive,unlawful and against the principles of natural justice and that they have dealt with her at her back by using unlawful means. Likewise is the affidavit of her son Vijay Kumar who has deposed that Surveyor had obtained his signatures and the signatures of her mother on blank consent letters and forms with the understanding that loss as per estimate would be paid. Complainant filed this complaint raising demand of Rs. 2,70,955/- as per loss assessed by the authorised dealer through estimate Ex.C.16. Complaint was filed by her on 1.1.2008. Notice of the complaint was issued on 4.1.2008. After receiving the notice, opposite parties No. 1 & 2 released payment of Rs. 1,29,500/- to opposite party No.3. This fact came to the knowledge of the complainant when opposite parties filed their replies of the complaint. Complainant kept the copy of the consent letter got signed from her. Its blanks were not filled in at that time. Copy of the same is Ex.C.6. Subsequently, blanks have been filled as is evident from Ex.C.13. In these circumstances, blank consent form given by the complainant cannot be said to be her voluntary act. Rather, it appears to have been taken by misrepresentation giving assurance as has been referred to above and not for receiving Rs. 1,29,500/- towards full and final settlement. Wrong practice is followed by Insurance Company in not paying single pie without having discharge voucher. Mere execution of discharge voucher and acceptance of insurance claim, do not estop insured from making further claim. This coercive bargaining is indulged in by the Insurance Company. Hence, complainant is not estopped from filing the complaint. In this view of the matter, we get support from the observations of the Hon'ble National Commission in the cases of Oriental Insurance Co. Ltd. & Ors. Vs. Government Tool Room and Training Centre-I(2008)CPJ-267(NC)and National Insurance Co. Ltd. Vs. Vasavi Traders-I(2008)CPJ-487(NC).<br /> 15. Complainant submitted the estimate of repairs copy of which is Ex.C.16 of M/s. Krishna Auto's. Amount for repairs has been assessed by it as Rs. 2,70,955/-. No-doubt, M/s. Krishna Auto's is an authorised dealer of the manufacturing company but its estimate cannot be accepted as it has given the price of the new parts. It did not make it clear that damaged parts are repairable or not. To the contrary, Surveyor Sh. Dinesh Kumar Goyal found the Chassis frame of the vehicle repairable. As against Rs.38,200/- estimated by Krishna Auto's, he allowed labour for repairs as Rs.5,000/-. No-doubt, report of the Surveyor is an important document but report should not be arbitrary. Surveyor should allow the permissible deductions only. He should give reasons howsoever brief as to on what basis and for what reason claim of the complainant is not justified. For this, reference may be made to the authorities Mrs. Gurmeet Dhillon Vs. The branch Manager, New India Assurance Co. Ltd. & Ors.-II(2000)CPJ-453, Virendra Singh Rathore Vs. Regional Manager, United India Insurance Company Ltd.-III(2000)CPJ-431, Oriental insurance Company Ltd. Vs. Ramesh Singh-I(2007)CPJ-236, Sangat Singh Chauhan Vs. State Bank of India & Anr.-II(1999)CPJ-12 and Pankaj Variety Hall Vs. Oriental Insurance Co. Ltd. & Anr.-I(2008)CPJ-4(NC). In this case, Surveyor has deducted Rs. 13,200/- regarding complete Cabin, for the cost of Painting & Fenders, Head lights( Not payable items as per IMT-27). There is no mention of this IMT-27 in the cover note. Copy of the IMT-27 was not produced before us. To the contrary, learned counsel for the opposite parties referred to IMT-23 under which deduction of Rs.13,200/- has not been shown by the Surveyor in his report, copy of which is Ex.C.23. In his affidavit Ex.R.2, Sh. Dinesh Kumar Goyal does not say that infact he was to write IMT-23 in place of IMT-27 and that IMT-27 be read as IMT-23. In these circumstances, deduction of Rs. 13,200/- out of the estimated cost of the complete Cabin is not justified. Net liability on repair basis has been assessed by the Surveyor as Rs. 1,93,401/-. Net liability on cash loss (75% of the repair liability) has been assessed by him as Rs.1,45,050.75. Learned counsel for opposite parties No. 1 & 2 was specifically asked during the course of arguments as to how and under which rule Surveyor deducted 25% out of Rs. 1,93,401/- i.e. net liability on repair basis but he could not explain it. At the risk of repetition, it is again mentioned that the vehicle was new one. Accident had occurred within six months of its age and as such, no depreciation is permissible. Accordingly, complainant becomes entitled to Rs. 1,81,601/- (Rs. 1,93,401/- + Rs.13,200/- minus Rs. 25,000/- of salvage value) out of which Rs. 1,29,500/- have paid to opposite party No. 3 during the pendency of this complaint. Since admissible amount has not been paid, there is deficiency in service on the part of opposite parties No. 1 & 2. So far as opposite party No. 3 is concerned, no deficiency in service on its part is proved.<br /> 16. Now question arises as to which relief should be accorded to the complainant. As per affidavit of the complainant, loss was reported to the opposite insurance company immediately. Ex.C.22 is the intimation of Motor OD Claim. On its basis, Surveyor was deputed on 18.6.2007. Surveyor was required to submit his report within one month. Despite this, he gave his report on 2.11.2007. Insurer is required to decide the insurance claim within three months. In this case, opposite parties No. 1& 2 sent the amount of Rs.1,29,500/- to opposite party No. 3 which has been adjusted by it on 22.1.2008 in the account of the complainant. In these circumstances, direction deserves to be given to opposite parties No. 1 & 2 to pay interest on Rs.1,81,601/- @ 9% P.A from 21.8.2007 (The date calculated on expiry of three months period from the date of intimation of the accident, a period required for processing the claim in an effective manner in normal course) till 21.1.2008 as on 22.1.2008 a sum of Rs.1,29,500/- sent by opposite party No. 1 to opposite party No. 3 has been adjusted in her account. Further direction which is required is to direct opposite parties No. 1 & 2 to pay balance claim amount of Rs. 52,101/- out of Rs.1,81,601/- alongwith interest @ 9% P.A from 22.1.2008 till payment. Complainant is also raving for compensation of Rs.25,000/- for mental agony and pains. There is no case to allow it in view of the relief which is going to be accorded as above. Out of compensation and interest, one can be allowed.<br /> 17. In the result, complaint is allowed against opposite parties No. 1 & 2 with costs of Rs.1,500/-. Opposite parties are directed to do as under :-<br /> ( i ) Opposite parties No. 1 & 2 to pay interest amount of the complainant on Rs.1,81,601/- @ 9% P.A from 21.8.2007 to 21.1.2008 to opposite party No.3.<br /> ( ii ) Opposite parties No. 1 & 2 to pay balance claim amount of the complainant i.e.Rs.52,101/- alongwith interest @ 9% P.A from 22.1.2008 till payment to opposite party No.3.<br /> (iii) In case, the amount as referred to above is paid by opposite parties No. 1 & 2, opposite party No.3 would adjust it in the loan account of the complainant. In case any amount out of the amount received by it is found excess, it would remit the same to the complainant within 7 days from the date of receipt, failing which it would be liable to pay interest on this remaining amount @ 9% P.A till payment.<br /> ( iv ) Compliance of this order be made by opposite parties No. 1 & 2 within 30 days from the date of receipt of copy of this order.<br /> 18. Copy of this order be sent to the opposite parties free of cost and file be consigned.<br /> <br /> Pronounced (Lakhbir Singh) <br /> 19.05.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) <br /> Member<br /> <br /> 'bsg'