ORDER

06.06.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant is registered owner of vehicle bearing no. HR 55E 6561 (truck). It is stated that the above said vehicle bearing no. HR 55E 651 (truck) was insured with the OP vide certificate policy bearing no. 015227989900 from 29.12.2012 to 28.12.2013. It is further stated that on 09.09.2013 at about 10.00 pm, the above said vehicle was met with an accident and the above said vehicle total damaged in this accident.
2. It is stated that FIR no.154/2013 had been registered with PS Kushtagi, District Koppal, Karnataka U/s 279/304A IPC. It is further stated that the complainant immediately informed the OP and made a claim for the above said vehicle for the damages to the OP vide claim no.620687804 under policy no.0152279899. It is stated that the OP surveyed/inspected the above said vehicle and in that survey, the OP found the above said vehicle is total loss and damages. It is further stated that the OP did not settle the total loss due to the damages of the vehicle, till date. It is stated that the vehicle is total damaged/loss because the cost of repair and services of the above said vehicle is about Rs.5,97,684/- which is an impractical, because the total insured amount declare is Rs.4,80,000/-.
3. It is stated that OP did not settle the total loss of the above said vehicle and the OP provide a settlement offer to the complainant of Rs.2,20,000/- which the complainant did not accepted and the complainant made several requests to the OP for the total loss settlement due to the damages, but the OP did not settle the total loss amount/sum insured. It is further stated that due to non providing any service to complainant is gross negligent and clear deficiency of service on the part of OP. It is stated that the daily loss of the said vehicle is Rs.15,000/- per day due to not providing any  service/repair/payment of sum assured amount of the policy to my  client. It is stated that OP is not giving any response/satisfactory answer as well as service to complainant, thus, cause continuous monitory loss, mental agony, physical  pain and stress etc.
4. The complainant is seeking direction to OP to pay amount of Rs.4,80,000/- alongwith interest @ 18% p.a in favor of complainant, to pass an award of Rs.5,00,000/- for mental agony, pain and harassment alonwith litigation charges and any other order which deems fit and proper by this commission.
5. OP filed WS and taken preliminary objections that the present complaint is barred under section 26 of the Consumer Protection Act, 1986 and therefore, the same is not maintainable and deserves to be dismissed at the threshold. It is stated that the upon receiving the intimation of claim under the policy the answering upon registered the same as claim no.620687804 and appointed an independent IRDA licensed surveyor, Mr. Basant Yadav to inspect and assess the loss. It is stated that the surveyor inspected the said insured vehicle at M/s Shree Motors Pvt. Ltd. Tikri Kalan New Delhi-41 and assessed the loss to the tune of Rs.274,062/- (Rupees two lac seventy four  thousand sixty two and paise fifty seven only) subject to the terms of the policy. The same was duly communicated to the complainant and he was subsequently requested to get the vehicle repaired and submit the bills/invoices towards  repair of the vehicle and D/L verification report along with KYC documents, letters dated 09.12.2013, 17.01.2014, 18.02.2014 and final reminder letter dated 19.03.2014 were sent to complainant to the effect.
6. It is stated that despite repeated requests and reminders, the complainant did not leave the vehicle at workshop for  necessary repairs nor submitted required documents with the surveyor/answering respondent. It is further stated that since, the complainant himself did not take necessary steps for repair of the said vehicle, no act of OP amounts to rendering defective and deficient services to the complainant.
7. It is stated that as per the terms and conditions of the insurance policy in order to settle the claim on total loss basis, repair liability of the insured vehicle must cross 75% of the Insured Declared Value (IDV). It is further stated that in the instant matter, the repair liability has been assessed by the surveyor for a sum of Rs.2,74,062.57/- which is about 57% of the IDV of Rs.4,80,000/- the demand of complainant to settle the claim on total loss basis is unjustified, incorrect, and not maintainable. Simultaneously, in lieu of demand of the complainant to settle the claim on total loss basis, the OP gave on offer to the complainant to settle the claim on Cash Loss basis of Rs.1,50,000/-. However, the complainant did not opt for settlement the claim on cash loss basis also. It is stated that in the instant matter the complainant is not entitled to claim on total loss basis, the present complaint is not maintainable and liable to be dismissed at the threshold.
8. It is stated that complainant is falsely and wrongly assessing the loss to the insured vehicle more than IDV. It is stated that in order to settle the claim on total loss basis, repair liability of the insured vehicle must exceed 75% of the insured declared vale (IDV).  It is further stated that the OP has promptly performed its all duties as per the terms and conditions of the insurance policy, without any delay and/or negligence ; therefore, the OP cannot be held guilty for rendering any defective or deficient services to complainant and therefore the present complaint  is not maintainable  and liable to be dismissed at the threshold. It is stated that complainant has approached this Hon’ble forum with unclean hands, has suppressed, and misrepresented the material facts in the present complaint, therefore, the present complaint is liable to be dismissed on this ground alone.
9. It is stated that complainant has filed the present complaint with his ill and malafide intentions to get undue benefit out of the same and therefore, on this ground alone, the present complaint is not maintainable and liable to be dismissed. It is further stated that no cause of action has arisen in favour of complainant and as against the OP, therefore, in the absence of any cause of action to institute the present complaint against the OP, the present complaint is not maintainable and deserves to be dismissed.
10. On merit all the allegations made in the complaint are denied by OP and reiterated contents of preliminary objections. It is stated that the surveyor concluded the loss was of Rs.2,74,062.57/- and complainant is not entitled to any amount over and above the same. It is stated that the estimate projected of the expense which may occur cannot be considered for evaluating the claim heading for a total loss. It is stated that complainant has failed to get his vehicle repaired despite repeated requests and follow up. It is stated that complainant is not entitled to the relief claimed in  the complaint.
11. Complainant filed rejoinder to the WS of OP and denied all the allegations made therein and reiterated contents of complaint.
12. Complainant filed evidence by way of affidavit and reiterated contents of complaint. Complainant relied on copy of legal notice dated 22.01.2015 Ex.CW1/1, copy of receipt of speed post Ex.CW1/2, copy of repair estimate bill Ex.CW1/3, copy of claim form Ex.CW1/4, copy of insurance policy Ex.CW1/5, copy of driving license Ex.CW1/6, copy of FIR Ex.CW1/7, copy of national permit Ex.CW1/8, copy of final reminder letter Ex.CW1/9 and copy of PUC form Ex.CW1/10.
13. OP filed evidence by way of his affidavit of Mohd Azhar Wasi Head North Zone Claims and reiterated contents of WS. OP relied on copy of intimation cum preliminary claim form Ex.RW1/1, copy of motor survey report dated 24.09.2013 Ex.RW1/2, copy of surveyor (loss assessment) report dated 29.03.2014 Ex.RW1/3, copy of letters  dated 09.12.2013, 17.01.2014, 18.02.2014 and 19.03.2014sent by surveyor to complainant Ex.RW1/4 to 1/7 and copy of letters dated 11.04.2014 to 21.04.2014 Ex.RW1/8 to 1/9.
14. Written arguments filed by complainant as well as by OP.
15. We have heard Sh. Karan Kakkar counsel for complainant and Sh. Raghav Goel counsel for OP and perused the record.
16. It is admitted case of the parties that complainant is the owner of truck having no. HR 55E 6561 which was insured with OP1 for the period 29.12.2012 to 28.12.2013. It is admitted on record that on 09.09.2013 at about 10 PM the said truck met with an accident and FIR no.154/2013 with police station Kushatagi Distt. Koppal Karnataka was registered under section 279/304A IPC. It is further admitted that complainant filed claim having no.620687804 with OP on the basis of total loss for about Rs.5,97,684/- however OP offered to complainant to settle the claim for Rs.2,20,000/-. The complainant has challenged the offer and claimed Rs.4,80,000/- alongwith interest @ 18% per annum.
17. As per OP after receiving the  intimation of the claim of complainant an independent IRDA licensed surveyor Mr. Basant Yadav was appointed to inspect and assess the loss. The surveyor inspected the vehicle at M/s Shree Motors Pvt. Ltd. Tikri Kalan New Delhi 110041 and assess the loss to the tune of Rs.2,74,062/- which was communicated to complainant and also request for repair, thereafter OP sent letter dated 09.12.2013, 17.01.2014, 18.02.2014 and 19.03.2014 asking for the repair bills DL verification report and KYC documents. As per OP the assessment of loss if 57% of the IDV value which is admittedly Rs.4,80,000/-, therefore, it is not a case of total  loss.
18. It is pertinent to mention here that as per  terms and conditions of the policy the complainant has to establish the total loss and repair liability of the insured vehicle exceeding 70% of insured IDV i.e insured declared value of the value. Admittedly, the IDV value of the vehicle is Rs.4,80,000/-. The complainant neither in the complaint nor in the rejoinder pleaded that the damaged vehicle was taken to M/s Sincere Marketing Service Pvt. Ltd. Rangpuri New Delhi for repair estimate on 28.04.2014, however in the pleadings it is stated that the cost of the repair is Rs.5,97,684/-. The complainant has not filed the evidence of the assessor of M/s Sincere Marketing Pvt. Ltd. to establish the veracity and proper assessment of the repair cost. The OP filed on record  detailed surveyor report of Mr. Basant Yadav in which the estimated cost given by insured complainant mentioned to be Rs.5,83,667.00 and after scrutiny by the assessor the loss was assessed at Rs.3,65,883.01, however assessor also taken into consideration the depreciation of 40% of metal and 50% of rubber parts which is Rs.1,46,353.20. The surveyor included 12.5% VAT and labour charges Rs.42,135/- and cost of parts Rs.267,015.87, towing Rs.2500 and less salvage value Rs.36,588.30 and also deducted Rs.1000 as less policy clause if any. The assessor finally assessed the total repairing cost Rs.2,74,062.57. We have also gone through the repair  assessment filed by complainant. The assessment by the  M/s Sincere Market Service Pvt. Ltd. is not as per standard principle of assessment and also not taken into consideration. The salvage value and depreciated value of metal and rubber parts. We are of considered view that as per surveyor report the vehicle in question after damage is not a total loss vehicle. The complainant admittedly did not get repair of the vehicle and also not provided the requisite documents to OP. It is pertinent to mention here that the complainant had suffered the loss of the damage of the vehicle due to accident, therefore he is entitled for the loss.
19. On the basis of above observation and discussion we direct OP to pay the claim of Rs.2,74,062.57 alongwith 6% interest per annum from the date of filing of complaint till realization and also pay compensation of Rs.30,000/- and cost of litigation Rs.15,000/- within 30 days from the receipt of the copy of the order. In case of default OP is directed to pay interest @ 9% per annum on Rs.2,74,062.57 till realization. File be consigned to record room.
20. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  06.06.2024.

      SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER