Haryana

Karnal

186/2012

Ram Avtar Solanki S/o Desh Ram Solanki - Complainant(s)

Versus

Sidak Automobile Pvt. Ltd - Opp.Party(s)

Sh. Ravinder Chaudhary

10 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.186 of 2012

                                                             Date of instt.:03.04.2012

                                                               Date of decision 10.3.2017

 

Ram Avtar Solanki son of Shri Desh Ram Solanki, resident of house no.1671, sector-70, Mohali, SAS Nagar(Punjabi)

 

                                                                   ……..Complainant.

                                      Vs.

1. Sidak Automobiles Pvt. Ltd. authorized dealer of Skoda Auto India Pvt. Ltd. 71/3 Milestone, G.T. Road Karnal-132001 (Haryana).

2. Reliance General Insurance Company Limited Branch Issuance office # 202-210, 2^nd floor, Mercantile House, 15, K.G. Marg, Delhi-110 001.

3. Reliance General Insurance Company Limited, Branch office: SCO 135-136, Top Floor, Sector-9C, Chandigarh.

                                                                    ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri Rajan Gupta Advocate for complainant.

                    Shri Vinod Dogra Advocate for opposite party no.1.

                    Shri Pankaj Malhotra Advocate for opposite parties no.2 and 3.                  

                    

 ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer protection Act, 1986, on the averments that he got insured his car bearing registration no.HR-05-W-5339 with opposite part no.2 for the period of 30.07.2010 to 29.07.2011. The said car met with an accident on 27.7.2011 and badly damaged in the said accident. The car was toed to the work shop of opposite party no.1. Intimation of the accident was given to opposite party no.2 on the same day. Opposite party no.1 prepared estimate of Rs.4,87,806/- for repair of the car. He requested the opposite parties no.1 and 2 to declare the car as “total loss” because the insured’s declared value (IDV) of the car was Rs.5,51,700/- and the estimated amount of repair was Rs.4,87,806/-, which exceeded 75% of the IDV. On 23.8.2011 the opposite party no.1 informed him that the surveyor of opposite party no.2 suggested repair of the vehicle and the policy was not cashless, therefore, the total cost of the repair would be paid by him. In the said letter the opposite party no.1 also declared that it would charge Rs.200/- per day as parking charges w.e.f.25.4.2011. The opposite party no.2 did not declare the vehicle as a “total loss” and insisted upon repair of the same without disclosing how much amount could be paid by it for repairs. Inspite of his repeated requests, the opposite party no.2 remained adamant for repair of the car. While the opposite party no.1 insisted upon him that he should give conditionless approval so that repair process could be started. He was not given even the breakup of the repair amount. On 9.3.2012, he approached the opposite party no.1 for collecting the car after depositing the parking fee at the rate of Rs.200/- per day, but opposite party no.1 refused to give the vehicle and raised demand of Rs.250/- per day alongwith 2% of the estimate amount without giving any explanation, therefore, he refused to pay such amount. The car damaged to such an extent that even after spending Rs.4.87 lakhs, the same would not be repaired to its original position or value. He approached the opposite parties no.1 and 2 a number of times to settle the matter, declare the car as total loss and pay him the ID value thereof, but to no effect. The opposite party no.2, vide e-mail dated 12.3.2012 informed that his claim was closed. Thus, the acts and conduct of the opposite parties amounted to deficiency in service, due to which he suffered mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to opposite parties. Opposite party no.1 put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complainant has not approached this forum with clean hands; that the complainant is estopped from filing the complaint by his own acts and conduct and that the complaint is false and baseless.

                   On merits, it has been submitted that the vehicle of the complainant was insured with opposite parties no.2 and 3, therefore, they were liable to indemnify the claim of the complainant or declare the insured vehicle as total loss or direct the opposite party no.1 to repair the same at their cost. The vehicle in damaged condition was brought by the complainant to the workshop of opposite party no.1 and then opposite parties no.2 and 3 were informed. The surveyor to inspect the vehicle was appointed. Thus, the opposite party no.1 had nothing to do with the matter. The dispute is between the complainant and opposite parties no.2 and 3. The opposite party no.1 was/is ready to repair the vehicle after getting direction from the complainant, but the complainant is playing hide and seek game. Neither he has got the vehicle repaired nor has taken the same from the workshop and as such the vehicle is lying parked since 27.7.2011 in damaged condition. It has further been pleaded that at the time of inspection of the vehicle by the surveyor, the opposite party no.1 prepared estimate. Surveyor directed the opposite party no.1 to repair the vehicle under insurance claim, but as per discussion regarding the cashless clause the depreciation was to be borne by the complainant. Accordingly, the complainant was informed, vide letter dated 23.8.2011 that total cost of repair will have to be paid by him. It was also clarified that direction be given to opposite party no.1, to start the repair work, because opposite party no.1 could not hold the vehicle for long time without any job work and the complainant would be liable to pay Rs.200/- per day as parking charges w.e.f. 25.8.2011. However, inspite of repeated requests, the complainant neither removed the vehicle from the workshop nor issued any direction for repair of the same at his cost. Thus, there was no deficiency in service on the part of the opposite party no.1.

3.                Opposite parties no.2 and 3 filed joint written statement disputing the claim of the complainant. Objections have been raised that the complainant has no locus standi and cause of action to file the complaint; that the complaint is not maintainable in the present form and the complaint is bad for non-joinder of necessary parties; that the complaint is hopelessly time barred; that complicated questions of law and facts are involved, which cannot be decided by his forum under summary jurisdiction; that there was no deficiency in service or unfair trade practice on the part of the opposite parties and that this forum has no territorial jurisdiction to entertain and adjudicate the present complaint.

                    On merits, it has been pleaded that the vehicle of the complainant was repairable so the claim could not be settled on total loss basis. Deepankar Soni was deputed as surveyor to inspect the vehicle and assess the loss. Preliminary survey was done by the surveyor and he observed that the car was very much repairable. The surveyor sent letter on 11.8.2011 and reminders on 20.8.2011 and 14.10.2011 requesting the complainant to proceed with the repairs under intimation to the surveyor to quantify the loss, but the repair of the vehicle never started. It was entirely the decision of the complainant to keep the vehicle at the garage at his costs and expenses. A registered letter to that effect was written to the complainant on 6.12.2011. Therefore, the opposite parties no.2 and 3 are not liable to pay any damages or any garage charges. Thus, there was no negligence or deficiency in service on the part of the opposite parties no.2 and 3. The other allegations made in the complaint have been denied.

4.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C1 to C8 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Abhilesh Chander Ex.O1 and documents Ex.O2 to Ex.O9 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The car of the complainant bearing registration no.HR-05-W-5339 was insured with opposite party no.2 for the period of 30.7.2010 to 29.7.2011 and the same met with an accident on 27.7.2011 during subsistence of the policy. The car was brought to the workshop of opposite party no.1 and on the asking of the surveyor of opposite parties no.2 and 3 estimate of repair, the copy of which is Ex.C3, was prepared by opposite party no.1 for total amount of Rs.4,87,806/-. The complainant claimed that his car be declared as total loss, because the repair charges i.e. Rs.4,87,806/- were more than 75% of the Insured Declared Value (IDV)  of Rs.5, 51,700/-. However, the opposite parties no.2 and 3 did not declare the car as total loss, rather asserted that the same was repairable.

8.                The opposite parties no.2 and 3 have produced the report of surveyor Ex.O2 according to which the net claim amount was assessed Rs.2,40,779/-. The total cost of the parts was assessed Rs.3,11,662/- and labour charges as Rs.60,885/-. The total loss was assessed as Rs.3,72,547/-, but after making necessary deductions net claim amount was assessed Rs.2,40,779.20. Letters of opposite parties no.2 and 3 Ex.O3 to O5 indicate that the request was made to the complainant for getting started the repair work of the car and submit the final bills of the repairs alongwith satisfaction/discharge voucher. Last letter was issued by opposite parties no.2 and 3 on 6.12.2011, the copy of which is Ex.O7, whereby the complainant was requested to accord his priority to proceed with the repair of the vehicle under intimation to the surveyor to quantify the loss. However, the complainant always asserted that there was total loss and he did not want to get the car repaired. The report of the surveyor has significant evidentiary value unless it is proved otherwise. The report is to be given due importance unless there are sufficient grounds not to agree with the assessment made by him. Non-consideration of the report of surveyor may result in serious miscarriage of justice. In this context reference with advantage may be made to D.N. Badoni Vs. Oriental Insurance Co. Ltd. 2012 CPJ 272 (NC), United India Insurance Co. Ltd. & others Versus Roshan Lal Oil Mills ltd. & Others 2000(10) SCC 19 and Sri Venkateshwara Syndicate Versus Oriental Insurance Co. Ltd. and another 2009 (8) SCC-507. Therefore, assessment of repairs prepared by opposite party no.1 is not sufficient ground to rebut the report of surveyor, wherein details of each part and the cost thereof alongwith labour have been given. Consequently, the report of surveyor regarding the loss is to be accepted as correct. The complainant is entitled to the said amount of Rs.2,40,779.20 as the loss assessed by the surveyor, even if, he does not get the car repaired. The opposite parties no.2 and 3 had not offered the amount of loss as assessed by the surveyor to the complainant, whereas such offer should have been given when the complainant was not interested in getting the car repaired.

9.                As a sequel of aforesaid discussion, we accept the present complaint partly and direct the opposite parties nos. 2 and 3 to pay Rs.2,40,779/- the loss assessed by the surveyor  to the complainant  within 30 days from the receipt of the copy of this order. It is made clear if the abovesaid amount is not paid within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. This order shall be complied with accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 10.03.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member