Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 163
Instituted on : 12.03.2020.
Decided on : 05.07.2022.
Sanjay Rohila son of Sh. Ram Roop Rohila resident of 679/15 Saini Pura Rohtak.
......................Complainant.
Vs.
- Srishti Hyundai Opp. New Power House Jind Bye Pass Road Rohtak Through its Manager/Incharge
- ICICI Lombard General Insurance Company Ltd.(earlier Bharti AXA General Insurance Company Ltd.) First Floor, Ashoka Plaza Opp. Maina Tourist Complex Delhi Road Rohtak Through its Manager.
...........…….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. SHYAM LAL, MEMBER
Present: Sh.R.N.Saini, Advocate for the complainant.
Sh. Deepak Jain, Advocate for opposite party No. 1.
Sh.Gulshan Chawla Advocate for the opposite party No. 2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the complaint, as per the complainant are that he is registered owner of car no.HR-12Y-0120 and he got the same insured with opposite party No. 2 through opposite party no. 1 vide policy/certificate No. HAX/S6600449 for the period 08.09.2018 to 07.09.2019. On dated 14.10.2018, car in question met with an accident and was completely damaged. FIR No. 621 dated 15.10.2018 u/s 279,337,338 IPS was registered in PS Shivaji Colony Rohtak. The complainant informed opposite party regarding the incident. Complainant took the vehicle to the workshop of opposite party no. 1 for repair. The vehicle was fully insured with the opposite party no. 2 under zero depreciation and as such nothing was payable by the complainant for repair of the said vehicle. The complainant has completed all the necessary formalities and submitted all the documents as required by opposite party but till today the vehicle has not been handed over to the complainant duly repaired. The opposite party No. 1 has issued a letter to the complainant vide which he was asked to take the vehicle and to pay the charges @ Rs.350/- per day including bill. However, he is not liable to pay any amount for repair of the vehicle because the vehicle was fully insured. The act of opposite parties is illegal and amounts to deficiency in service. Hence, this complaint and it is prayed that opposite parties may kindly be directed to release the vehicle in fully repaired condition to the complainant without receiving any amount of bill or any other charges from him and also to pay another amount of Rs.2,00,000/- to the complainant for causing financial loss and litigation expenses as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party no.1 in its reply has submitted that the complainant brought the damaged vehicle in the workshop of answering respondent on 06.09.2019 and since then it is stationed in the workshop of answering respondent in same condition because his insurance claim has been treated as “No Claim” by the opposite party No. 2. At the time of parking his vehicle, the complainant was told that in the event of non-repairing of his vehicle, the answering respondent is entitled to charge parking charges at the rate of Rs.350/- per day from the complainant and he was requested to take his vehicle from the workshop thrice by way of letters as well as telephonically, but he has not come forward to take his vehicle back. It is further submitted by opposite No. 1 that they cannot repair the said vehicle without payment either from the complainant or from the insurance company. All the other contents of the complaint were stated to be wrong and denied and opposite party no. 1 prayed for dismissal of complaint with costs.
3. Opposite party No. 2 in his reply has submitted that the vehicle in question suffered loss as on 14.10.2018, whereas intimation regarding the same has been given to the answering respondent after an un-explained delay of 328 days i.e. 07.09.2019. It is further submitted that on the receipt of the claim intimation, answering respondent registered the claim of the complainant and allotted the claim number ZA032212 for better communication in regard to the present loss and appointed an Independent surveyor-Magnum Surveyor to assess the loss to the vehicle. That to settle the claim of the complainant on merits, the answering respondent served a letter dated 12.09.2019 requesting him to provide the below mentioned documents i.e. late intimation reason, NCB Endorsement Letter, towing Bill, KYC form with document, 2 Passport Size photos, Driver License and Registration Certificate Release Order(copy of court), MLC copy all injured Passengers. Workshop Job Card and Gate Entry Copy, Full fill on a plane paper accident description. On getting no response, the answering respondent again served letter dated 01.10.2019, but the complainant opted not to revert on the same. Thus the answering respondent left with no other option except to treat the present claim as No Claim for want of submission of documents. Thereafter the claim of the complainant was rightly closed vide letter dated 18.10.2020 duly served upon the complainant. All the other contents of the complaint were stated to be wrong and denied and opposite party no.2 prayed for dismissal of complaint with cost.
4. Ld. counsel for complainant in his evidence has tendered affidavit Ex.C-1, documents Ex.C-2 to Ex.C-11 and closed his evidence on dated 29.01.2021. Thereafter ld. Counsel in his additional evidence has also tendered document Ex.C12 to Ex.C15 on dated 06.07.2021, Ex.C16 to Ex.C19 & affidavit Ex. C20 on dated 01.12.2021 and document Ex.C21 on dated 01.07.2022 and closed his evidence on 01.07.2022. Ld. Counsel for opposite party no.1 has tendered affidavit Ex.RW1/A, document Ex.R1 and closed his evidence on dated 10.03.2021. Ld. Counsel for the opposite party no.2 has tendered affidavit Ex.RW2/A, documents Ex.R2/1 to Ex.R2/6 and closed evidence on dated 13.04.2021. Ld. Counsel for OP No. 2 has also tendered document Ex. R2/7 and closed his additional evidence on 20.01.2022.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case, the claim of the complainant has been repudiated by the opposite party on the ground that the complainant had intimated the opposite party belatedly. At the time of arguments, ld. counsel has also taken the plea that complainant was under the influence of alcohol at the time of accident. In the present case there are some questions to know that i) Whether the complainant gave an intimation just after the accident to the insurance company, ii)whether the complainant parked his vehicle with the Shristhi Hyundai respondent no.1 on dated 11.02.2019, iii) Whether the vehicle is repairable or not and iv) Whether the policy was zero dep. policy or not. The main contention is regarding intimation. As per the respondent intimation was given in the insurance company on dated 07.09.2019 whereas the complainant suffered a loss in his vehicle on 14.10.2018 and intimation was given belatedly. As per Ex.R4 dated 12.09.2019 and as per Ex.R2/5 dated 01.10.2019 surveyor has sent a letter to the complainant for submitting some documents and clarifications regarding the delayed intimation and as per letter Ex.R2/6 dated 18.10.2020 the opposite party issued a no claim letter to the complainant. Whereas the surveyor has submitted the report to the insurance company alongwith the estimate, FIR and other relevant documents dated 19.10.2019. Hence action has been taken by the insurance company belatedly. Regarding the consumption of alcohol, opposite party has only placed on record document Ex.R2/7 i.e. C.R.file of complainant of PGIMS, Rohtak. In this document in the column of case summary & discharge notes, alcohol smell is mentioned. In this we have placed reliance upon the ratio of law laid-down in FAO No.2546 of 2015 of Hon’ble Punjab & Haryana High Court, Chandigarh in case titled as Randhir Vs. Bhag Singh and others , whereby Hon’ble Court has also held that : “To confirm that the inured was under the influence of liquor the analysis of his blood sample was required and his breath could also have been analyzed, which was not done in the present case”. Hence the smell of alcohol is not the conclusive proof of consuming the alcohol by the complainant and this plea of opposite party is turned down.
7. Now the point of consideration is that whether the information is given to the insurance company well within time by the complainant. We have minutely perused the documents placed on record by both the parties. Ex.R16 is a mail sent by the complainant to the insurance company and obtained an information regarding the date of intimation of the claim. A mail has been reverted by the insurance company to the complainant that: “We would like to inform you that your claim intimation date is 14.10.2018” and another mail was also sent by the insurance company to the complainant i.e. Ex.C17 and in that mail it has been submitted that : “We would like to inform you that claim date is 07.09.2019”. The perusal of the mail Ex.C16 itself shows that claim has been intimated to the insurance company on the date of accident i.e. on 14.10.2018. The intimation was well within time when the vehicle was parked in the Shrishti Hyundai. As per the documents placed on record by the complainant the vehicle has been released on superdari vide order dated 08.02.2019 by Sh. Vivek Singh, JMIC. As per reply filed by the respondent no.1, the vehicle has been parked in the workshop of respondent no.1 on dated 06.09.2019. We have minutely perused the documents placed on record by the complainant i.e. Ex.C9, a letter issued by Sh. Som Dutt Sharma Bodyshop Manager Shrishti Hyundai which was delivered to the complainant by the respondent No.1 and the perusal of this document itself shows that the vehicle has been parked in the workshop of opposite party no.1 on dated 11.02.2019 and it has been specifically mentioned in this letter that claim has been considered as no claim by the insurance surveyor so you are requested to take the vehicle back from the workshop. It has been further mentioned in this letter that Rs.350/- will be charged as parking charges from 19.02.2019. Meaning thereby the complainant has intimated the insurance company well within time and insurance company taken wrong plea that it has not been intimated well within time and the complainant has given the information to the insurance company on 07.09.2019. In his additional evidence complainant has placed on record copy of register of workshop of opposite party no.1, as per which the vehicle was parked w.e.f. 09.02.2018 to 09.02.2019 in the premises of opposite party No.1 and the vehicle number and signatures of the complainant are mentioned on the alleged register.
8. It is also on record that the policy in question is zero dept. policy and it was the prime duty of the insurance company to remove the defect of the vehicle but the same has not been done by the opposite party, which amounts to deficiency in service on the part of opposite party No.2. Now the question arises that whether the vehicle in question is repairable or not? In this regard we have observed Ex.C19 which is the repair estimate dated 02.08.2021 , as per which the estimate of repair cost of vehicle is Rs.876939.37/- whereas the IDV of the vehicle is Rs.5 lacs. Hence the complainant is entitled for the IDV of the vehicle after deducting the salvage value, which we have assessed as Rs.40000/- i.e. to pay Rs.500000/- less Rs.40000/- = Rs.460000/-. As per the document Ex.C21 placed on record by ld. counsel for the complainant, the complainant had taken loan from HDFC bank and the same has been repaid by the complainant and the status of the loan account is shown as ‘CLOSED’.
9. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.2 to pay Rs.460000/-(Rupees four lac sixty thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 12.03.2020 till its realization and shall also pay Rs. 10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant and the salvage shall be retained by the complainant. However complainant is directed to complete the formalities e.g. letter to the RTO for cancellation of R.C. and to send the copy of the same to the insurance company for information within 15 days from today and thereafter opposite party shall comply with the order dated 05.07.2022 of this Commission within one month from the date of submission of alleged document by the complainant.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
05.07.2022.
........................................................
Nagender Singh Kadian, President
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Tripti Pannu, Member.
……………………………….
Shyam Lal, Member
