Punjab

Ludhiana

CC/22/86

Arsheya Rai - Complainant(s)

Versus

Shriram General Insurance Co.Ltd - Opp.Party(s)

Ashok Mittal

12 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  86 dated 04.03.2022.                                                         Date of decision: 12.06.2024. 

 

Arsheya Rai Dhanda D/o. Sh. Keshav Rai Dhanda, Advocate, Resident of B-I-1315, Opp. Old Courts, Civil Lines, Lludhiana-141001.

                                                                                      ..…Complainant

                                                Versus

1. Shriram General Insurance Company Ltd., SCO 18-19, 3^rd Floor, Jandu Tower, Ludhiana-141003, Through its Branch Manager.
2. Shri Ram General Insurance Company Ltd., E-8, EPIP, Sitapura Industrial Area, Jaipur, Rajasthan-302022, Through its Director/Authorized Signatory.                                                                                                                             …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Suresh Shounik, Advocate.

For OPs                          :         Sh. Vyom Bansal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is owner of car make Hyundai-Elite I20 Asta bearing registration No.PB-43-C-0003, which she got insured from the OPs on premium of Rs.8112/- vide policy No.105029/31/21/010569 w.e.f. 23.01.2021 to 22.01.2022 having Insured Declared Value (IDV) of Rs.3,24,000/-. The complainant stated that on 16.07.2021 her car met with an accident  and matter was reported to the OPs. She lodged a claim No.10000/31/22/N/0029401 dated 11.08.2021 with the OPs upon which the OPs appointed Sh. Sunil Kumar, Surveyor who inspected the vehicle physically and took photographs of the vehicle. According to the complainant, the vehicle is lying with New Happy Motor Workshop Threekay Chowk, Ludhiana since 16.07.2021 and for which she is paying parking charges of Rs.45,00/- per month. New Happy Motor Work Shop assessed the estimate cost of repair of vehicle as Rs.2,41,800/- when the surveyor inspected the vehicle. The complainant further stated that she receive a letter dated 11.08.2021 vide which the OPs assessed the loss of vehicle as Rs.5,33,210/- which is highly exorbitant and totally against the estimated repair cost as per estimate bill issued by New Happy Motor Work Shop. The OPs have further assessed the damage of the vehicle under total loss and net liability of Rs.63,000/- which is also against the terms and conditions of the policy and the same is not acceptable to the complainant. Thereafter, she contacted the OPs and several times conveyed that the vehicle can be repaired at the cost of Rs.2,41,800/- which is less than Rs.3,24,000/- of IDV of the vehicle but the OPs did not pay any heed to her request and dilly dallied the matter on one pretext or the other. As a consideration period has already elapsed since the inspection of vehicle and submission of estimated bill along with requisite documents but the OPs have not sanctioned the claim till date despite repeated phone calls and personal visits by the complainant and her family members. The complainant claimed to have suffered mental harassment as well as loss in business due to non use of the vehicle and financial loss of Rs.4500/- per month as parking charges of the vehicle. The complainant sent a legal notice dated 24.11.2021 upon the OPs but to no effect. Hence this complaint whereby the complainant has prayed for issuing directions to the OPs to pay the amount of Rs.2,41,800/- being estimated loss of vehicle and to pay compensation Rs.1,65,000/- along with litigation expenses of Rs.25,000/-.

2.                Upon notice, the OPs appeared and filed joint written statement and assailed by complaint by taking preliminary objections on the ground of maintainability; lack of jurisdiction; suppression of material facts; non-joinder of IDFC Bank Ltd. as necessary party; lack of cause of action etc.                                Under the column Factual Submission, the OPs stated that the car of the complainant i.e. Hyundai Elite I20 Asta 1.4 CRDI bearing registration No.PB-43C-0003 was insured with them vide policy No.105029/31/21/010569 being Private Car Package Policy-Zone B having validity from 23.01.2021 to 22.01.2022 having IDV of Rs.3,24,000/-. The OPs further averred that an intimation for claim of damage on 16.07.2021 by external means to the insured vehicle was intimated on 24.07.2021 with them by the complainant which was registered vide claim No.10000/31/22/N/0029401. Mr. Sunil Kumar, an IRDA registered independent Surveyor was appointed for conducting survey of the damaged vehicle, who visited the insured, clicked photographs, collected the claim form, required documents and submitted his report on Motoveys Survey Software of the Insurance Company, assessing the net claim liability of the insurance company at rRs.63,000/- in terms of coverage under the policy terms. The OPs further stated that their officials applied mind to the entire facts and surveyor report and noted that the repair cost of insured vehicle was more than 75% of the IDV and the claim of the insured was deemed fit for constructive total loss/net salvage on the independent valuation of the vehicle. The claim was found to be payable, which is reproduced as under:-

IDV	324000
Compulsory Excess	1000
Wreck Value	260000
Net Liability	63000

 

The OPs issued letter dated 14.10.2021 to the complainant to submit consent letter for the said amount which was not replied by her. Thereafter, vide letter dated 16.12.2021, the insured was intimated, which is reproduced as under:-

“Further as per the surveyor during his subsequent visit to M/s. Northern Motors he came to know that you have taken back the delivery of the vehicle without repairs & shifted to another unauthorized garage though the same was not brought into insurer/surveyor notice & shifted without approval.

Even after the several discussions till now you have not submitted your consent for further proceeding as per the above table. As per latest conversation you are requested for work approval and agreed to repair the vehicle at local workshop but as per the latest discussion  with surveyor vehicle was standing in as it as condition. Also we came to know that till date neither your vehicle has been dismantled nor you have submitted the estimate of local garage after dismantling of the vehicle for further review & surveyor assessment.

So you are requested to submit the documents as stated above within 7 days from receipt of this letter. Otherwise we will presume that you are not interested to purse the claim. Hence we will close the claim with final liability of the above claim is Rs.63000/-.”

                   On merits, the OPs reiterated the crux of averments made in the preliminary objections and factual submission of the case. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 and Ex. C2 are the copies of certificate cum policy schedule, Ex. C3 is the copy of RC of the vehicle, Ex. C4 is the copy of claim letter, Ex. C5 and Ex. C6 are the copies of bills, Ex. C7 is the copy of letter dated 11.08.2021 of the OPs, Ex. C8 is the copy of reminder dated 08.11.2021 of surveyor to the complainant, Ex. C9 is the copy of legal notice dated 24.11.2021, Ex. C10 and Ex. C11 are the postal receipts and closed the evidence.

4.                On the other hand, the counsel for the OPs tendered affidavit  Ex. RA of Sh. Amandep Sharma (Legal) of the OPs along with documents Ex. R1 is the copy of certificate cum policy schedule, Ex. R2 is the copy of claim intimation slip, Ex. R3 is the copy of claim details, Ex. R4 is the copy of closer letter dated 14.10.2021, Ex. R5 is the copy of closer letter dated 16.12.2021 and closed the evidence.                      

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavit and documents produced on record by both the parties.

6.                The car Hyundai –Elite I20 Asta Model 2015 bearing registration No.PB-43-C-0003 being owned by the complainant was insured with OPs vide insurance policy No.105029/31/21/010569 (Ex. C1 = Ex. R1) having validity from 23.01.2021 to 22.01.2022. The policy also contains the following clause, is relevant for the adjudication of point of issue under consideration:-

                   “SUM INSURED-INSURED DECLARED VALUE(IDV)

The Insured’s Declared Value (IDV)  of the vehicle will be deemed to be the “SUMINSURED” for the purpose of this policy which is fixed at the commencement of each policy period for the insured vehicle.

The IDV of the vehicle (and accessories if any fitted to the vehicle) is to be fixed on the basis of the manufacturer’s listed selling price of the brand and model as the vehicle insured at the commencement of insurance/renewal and adjusted for depreciation (as per schedule below).

The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/Constructive Total Loss (TL/CTL) claims only.

THE SCHEDULE OF DEPRECIATION FOR FIXING IDV OF THE VEHICLE.

AGE OF THE VEHICLE	% OF DEPRECIATION FOR FIXING IDV
Not exceeding 6 months	5%
Exceeding 6 months but not exceeding 1 year	15%
Exceeding 1 year but not exceeding 2  years	20%
Exceeding 2 year but not exceeding 3  years	30%
Exceeding 3 year but not exceeding 4  years	40%
Exceeding 4 year but not exceeding 5  years	50%

 

IDV of vehicles beyond 5 years of age and of obsolete models fo the vehicles (i.e. models which the manufacturers have discontinued to manufacture) is to be determined on the basis of an understanding between the insurer and the insured.

IDV shall be treated as the “Market Value” throughout the policy period without any further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CTL) claims.

The insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle.”

 

The said vehicle met with an accident on 16.07.2021, regarding which the complainant lodged claim with the OP with estimated loss of vehicle to the tune of Rs.2,41,800/-. Mr. Sunil Kumar, an IRDA registered independent surveyor was deputed to conduct the survey of the damaged vehicle who submitted his report with the OPs after getting the photographs of the vehicle and documents from the complainant. Then surveyor assessed the net claim liability of the OPs at Rs.63,000/-. The OPs scrutinized the report of the surveyor and found that the repair cost of the insured vehicle was more than 75% of the IDV and found the net liability payable as Rs.63,000/- keeping in view the claim for constructive total loss/net salvage on independent valuation of the vehicle. In this regard, the OPs sent letters dated 14.10.2021 and 16.12.2021 Ex. R4 and Ex. R5 respectively to the complainant to close her claim if she fails to submit her consent as well as the demanded documents within 7 days from receipt of the letters but the complainant failed to evoke any satisfactory response to the said letters.

7.                Perusal of documents Ex. C5 and Ex. C6 produced on record by the complainant shows that she had only submitted the estimate of the repair of the insured vehicle with total estimated cost of repair as Rs.2,41,800/-. In their letters Ex. R4 and Ex. R5 the Ops have clearly mentioned that as the surveyor estimated the total loss on superficial damages basis and estimate as Rs.5,33,210/- which is more than 75% of the IDV of Rs.3,24,000/- and after calculating the compulsory excess of Rs.1000/-, wreck value of Rs.2,60,000/-, the total net liability fastened upon the OPs is Rs.63,000/- only and that also payable on submission of consent and required documents by the complainant, to which the complainant did not show any response and the OPs closed the claim as “No Claim”. As such, the OPs were justified in repudiating the claim of the complainant as “No Claim” due to default on the part of the complainant herself.

8.                The complainant in this complaint has claimed that the accidental vehicle is lying in the workshop since 16.07.2021 and she is paying parking charges @Rs.4500/- per month. The complainant has not produced any receipts with regard payment of parking charges. Further the contentions of the complainant stands contradicted by the contents of letter Ex. R5 that during his subsequent visit to M/s. Northern Motors, their surveyor came to know that the complainant had taken back the vehicle without repairs and shifted the same to another unauthorized garage without bringing this fact into knowledge of the insurer/surveyor and without their approval. As such, the complainant has not approached this Commission with clean hands and has suppressed this material fact qua removal of the vehicle from the workshop from this Commission which by itself disentitles the complainant to claim equitable relief. Even otherwise, the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the OPs by any cogent and convincing evidence.

9.                The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. (2000 (1) SCC 66) as well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2020 (9) SCC 424), in para No.19 and 20 has held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

As such, keeping in view the facts and circumstances of the present case, the complaint is not maintainable and the same is hereby dismissed.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:12.06.2024.

Gobind Ram.