Delhi

New Delhi

CC/394/2015

J.P Sharma - Complainant(s)

Versus

TATA AIG Ins Co. Ltd. - Opp.Party(s)

Ram N. Sharma

02 Feb 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI, DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/394/2015

 

IN THE MATTER OF:

INDIA OFFSET PRINTERS PVT. LTD.

THROUGH ITS DIRECTOR, SH.J.P.SHARMA,

X-36, Okhla Industrial Area, PHASE IV, 

NEW DELHI 110020                                                                             COMPLAINANT

VERSUS

1.TATA AIG INS. CO. LTD.,

310/311, AURORA ESTATE.,

BARAKRAMBA ROAD,

CONNAUGHT PLACE,

NEW DLEHI.                                                                              OPPOSITY PARTY 1

 

2.BROADWAY AUTOWORLD PVT.LTD.,

15/1, MILSTONE,

MAIN MATHURA ROAD,

FARIDARAD-121001.                                                                  OPPOSITY PARTY 2                                                

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Nain Adarsh, Member

                                                                             Dated of Institution :18.06.2015

                                                                             Date of Order         : 02.02.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

 

1. This is a complaint under section 12 of the Consumer Protection Act, 1986. Briefly stated the facts of the case are that the complainant purchased a new Volkswagon Polo in the year 2011 bearing Regd. No. DL-3CBV-5753 and obtained a comprehensive insurance in respect of the said car.
2. It is further stated that the OP No. 1 is one of the leading Insurance Company. OP No. 2 is an authorized dealer of Volkwagen Polo cars and having its workshop known as Broadway Autoworld Pvt. Ltd., Main Mathura Road, Faridabad. The complainant’s vehicle was insured from the respondent company for a period of one year w.e.f. 19.10.2013 to 18.10.2014. It is also stated that aforesaid car was inspected and insured by the representative of the respondent No.1 for a sum of Rs. 4,81,675/- and cover note bearing No. 12361042 was issued by respondent No. 1. The complainant was asked to pay premium amounting of Rs. 13,741/- for the comprehensive insurance of the same.
3. It is also alleged that the insured vehicle met with an accident and was badly damaged and intimation about the same was immediately lodged by the Complainant with the Respondent No.1 over phone. The respondent No.1 was requested to register the claim, issue necessary form for completion of formalities and depute their surveyor to assess the loss and to pay the claim of the complainant. It is further alleged that the respondent No.1 advised the complainant to remove the vehicle from the place of accident to the authorized workshop. The same was accordingly brought down to the workshop of Respondent No. 2 on 16.10.2014 itself. OP 1 deputed surveyor namely Mr. Jatin Sharma who visited the workshop of OP 2, got a copy of estimate from them for the repair of car, took photographs of damaged vehicle and also got other formalities completed from the complainant.
4. It is further stated that OP No. 2 got all required papers signed from the complainant on claim form, satisfaction note and also took copy of RC, driving License and assured the complainant that the damaged vehicle shall be returned to the complainant after its repair positively by 15.11.2014. It is also alleged that no information was given to the complainant by OP No. 1 and OP No. 2 as what transpired between them after the visit of the surveyor deputed by OP No. 1. However, in reply to a phone call to the executive of OP No. 2, the complainant was informed that the surveyor of OP No. 1 refused to accept the total repair cost as claimed in its estimate by OP No. 2 to repair the car.
5. It is also stated that OP No. 1 or its deputed surveyor failed to discuss the claim with the complainant and inspite of the verbal reminders and visits of the complainant, the car was not repaired and delivered on 15.11.2014 by OP 2 as promised by them in its proforma Invoice /estimate OP No.2 started making false excuses and delayed the process of repairs and delivery of the car. OP 2 failed to repair and deliver the damaged car to the complainant till June, 2015.
6. It is also alleged that complainant was informed by OP 2 that he should deposit an amount of Rs.2,00,000/- apx. as OP No.1 had not paid the entire amount to them. It is alleged that the non delivery of the car after its repair by OP 2 for more than a period of 7 months without any valid reason is a clear case of deficiency in service as it has caused a great financial loss to the complainant's director as he had to take the services of a taxi during this period and was forced to spend a sum of Rs.7,50,000/- on conveyance due to non availability of the aforesaid car.
7. It is also alleged that as per contract of insurance, the respondent No.1 is liable to pay to the complainant of the entire sum of Rs.3,67,423/-which has been demanded by OP No.2 since the car was comprehensively insured and OP NO.1 had no right to deduct any amount along with interest thereon @ 12% interest per annum on the said amount.
8. It is also stated that both the respondents are jointly liable to pay to the complainant, a sum of the Rs.1,00,000/- on account of deficiency of service and for mental agony on the part of officers/employees of both the respondents. Both the respondents are also liable to pay Rs. 21,000/- to the complainant for the cost of litigation and other misc. expenses.
9. It is also alleged that the respondent No.1 has its office situated within the jurisdiction of this Forum and as such this Forum has jurisdiction pecuniary as well as the territorial to deal with the present claim.

 

10. It is prayed that the respondents No. 1 be directed to reimburse to the Complainant the entire amount of repair of the car i.e. a sum of Rs.3,67,423/- as claimed by OP No.2, OP No.2 be directed to pay a sum of Rs.3,50,000/- being the amount spent on the conveyance of the director by complainant along with interest thereon @ 24% w.e.f. 15.11.2014, and Rs. 1,00,000/- on account of mental agony, pain and suffering, loss of business jointly by OP No. 1 and OP No. 2 and a sum of Rs. 21,000/- as the cost.

 

11. OP No.-1 filed written statement opposing the claim alleging that the Complainant is not a consumer as per Section 2(1)(d)(i) of Consumer Protection Act, 1986 as the subject vehicle bearing registration No. DL 3C BV 5753 is registered in the name of M/s. India Offset Printers Pvt. Limited  (The Complainant) and admittedly given for commercial/ official use to Shri. J.P. Sharma, Director of the Complainant company.

 

12. It was also stated that on receiving the intimation of claim under the policy, the OP No.1 registered the said claim as Claim No. 620840455 and immediately appointed Mr. Anil Bansal, a Surveyor to inspect the said vehicle and to assess the loss. The surveyor inspected the said vehicle at Broadway Autoworld, Mathura Road, Faridabad the workshop of OP No.2

 

13. It was further alleged that the said surveyor after inspection of the vehicle submitted his report wherein he assessed the liability of the Insurance company to the tune of Rs.2,08,151/- (Rupees Two Lacs Eight Thousand One Hundred Fifty one only) after deducting the compulsory deductions under the Policy and deducting depreciation @ 15% on metal. parts and @ 50% on plastic/ rubber parts replaced as per the terms and condition of the policy, damage which were found fresh and were in consonance with the nature and cause of loss stated in the claim form. It was also stated that said assessment was done based on invoice /bill dated 20.05.15, raised by the (OP No.2). After the repair of the vehicle, surveyor re-inspected the vehicle and found it to be satisfactorily repaired. Thereafter, the amount of Rs. 2,08,151/- (Rupees Two Lacs Eight Thousand One Hundred Fifty one only) as assessed by the surveyor in full and final satisfaction of the claim was duly paid to the workshop/ OP No. 2 on 16.06.15 through NEFT as the Complainant had availed cashless facility. It was also stated that since, the OP No. 1 has made payment of claim amount as per terms and condition of the policy, the present complaint is not maintainable as against them and deserves to be dismissed at the threshold.
14.  Written Statement also filed by OP No. 2, stating that the complaint was not maintainable and liable to be dismissed as no cause of action arose in favour of the Complainant and against the answering Respondent No. 2, the complaint was nothing but an abuse of the process of law. It was also stated a vehicle bearing registration No.DL-3CBV 5753 was received by the workshop of respondent No.2 on 16.10.2014 for repairs. As the said vehicle was insured with respondent No.1, the service advisor of respondent No.2 intimated the insurance company for the claim. The surveyor of the insurance company inspected the vehicle and refused to give total loss claim. However the customer was adamant and claimed the total loss of the vehicle. The work was delayed for approximately 4 months on account of the discussion between the customer and the insurance company. Meanwhile the respondent No.2 did not get any approval either from the customer or from the insurance company. After 4 months on mutual understanding between the customer and the insurance company, the respondent No.2 received approval from both the customer as well as the insurance company for getting the job done. The vehicle was repaired and after the inspection by the insurance company the car was ready for the delivery on 15.6.2015. Intimation was immediately given to the customer for taking the delivery of the car but the customer came to the workshop for taking the delivery after one week and finally the car was delivered to the customer on 22.06.2015. An amount of Rs. 2,08,151/- was paid by the respondent No. 1 and a sum of Rs. 74,000/- in cash and Rs. 96,328/- through card was paid by the customer. It was also stated the compensation claimed by the Complainant is excessive, exorbitant and base on imaginary grounds and the answering respondent is not liable to pay the same as prayed in the complaint.
15. Rejoinder was filed to Written Statement of OP No. 1 and 2, denying the averments made in their Written Statement of OP No. 1 and 2, and reiterating the allegations made in the complaint. The parties filed their evidences.
16. We have heard the Ld. Counsels for the parties and perused the record.
17. The Ld. Counsel for the Complainant submitted that it was a case of total loss as the vehicle was badly damaged in the accident as such Complainant was entitled to receive the full amount of bill raised by OP No. 2, as the vehicle was comprehensively insured. On the other hand it was submitted on behalf of OP-1 that it had paid the amount Rs. 2,08,151/-as assessed by the surveyor in full and final and satisfaction of the claim to the workshop OP-2, as such the Complainant was not maintainable.
18. It is an admitted case of the parties that the vehicle was purchased in the year 2011, and it met with an accident. It was also an admitted case the vehicle got insured, from OP-1 for the period 19.10.2013 to 18.10.2014. The vehicle met with an accident in the year 2014 claim was lodged with OP-1 immediately after the accident. It is an admitted case the vehicle was insured for a sum of Rs. 4,33,507.50/- .
19. The question is whether the Complainant is entitled to receive the amount for which the vehicle was insured the amount assessed by surveyor after the deduction as alleged. The policy in question provides that company will indemnify the insured against the loss or damaged to vehicle in case of accident subject to deduction of depreciation as mentioned hereinafter.

“Loss or damage to vehicle insured:

1. The Company will indemnify the Insured against loss or damaged to the vehicle insured hereunder and /or its accessories whilst thereon:

 

 

Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced:
1.	For all rubber/nylon/plastic parts,tyres and tubes, barriers and air bags
	For fibre glass components
	For all parts made of glass

 

AGE OF VEHICLE		% of DEPRECIATION
1.	Not exceeding 6 months	Nil
2.	Exceeding 6 months but not exceeding 1 year	5%
3.	Exceeding 1 year but not exceeding 2 year	10%
	Exceeding 2 year but not exceeding 3 year	15%
	Exceeding 3 year but not exceeding 4 year	25%
	Exceeding 4 year but not exceeding 5 year	35%
	Exceeding 5 year but not exceeding 10 year	40%
	Exceeding 10 years	50%

 

20. In the present case as per the report of the surveyor the total cost of repair of the vehicle in question was Rs. 2,33,647/-. Thus, keeping in view of the terms of the policy, the deduction of 15% for depreciation is justified. Hon’ble Supreme Court has held in the case of Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International 2013 (1) Scale 410,
    1. “that insured cannot claim anything more than what is covered by the Insurance Policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely”.

 

In the instant case the IDV value of the vehicle as stated in the Insurance Policy is Rs. 4,33,507.50/- The report of surveyor shows that it estimated the value of parts at Rs. 2,32,647.84/- and deducted the depreciated

 

 

parts amounts of Rs. 79,143/-. The liability of insurer as Rs. 2,08,151/- and that of insured at Rs. 92,671/- as per the report of surveyor. Thus, as per the condition of the insurance policy, Insurance Company was to be justified in after deducting the depreciation of 15%.

 

21. It is to be noted that Hon’ble Supreme Court has held in the case of Sri Venkateshware Syndicate Vs. Oriental Insurance Company Limited & Anr, (2009) 8 SCC 507,

“That the report of surveyor cannot be brushed aside without any cogent reasons.”

22. It is also to be noted that the survey or report is not the final word, the same may be the basis for settlement of the claim by the insurer but the same is not binding on either the insurer or insured as held by Hon’ble Supreme Court in the case titled New India Assurance Co. Ltd vs. Pradeep Kumar in Civil Appeal No. 3253/2002. On perusal of the estimate/proforma invoice order no. SO 145388 dated 10.10.2014 of surveyor report the amount of most of the components i.e. check ROD parts No. 6R4837249 (Metal), Cross panel with C no. 6RG803147 (Metal), Wheel Housing Part No. 6R080511B (Metal), Section parts No. 6R4809835A (Metal), Regulator parts No. 6R4837461L (Metal), as given in the estimate/ repair estimate. We accordingly allow a lump sum amount of Rs. 75,000/- in respect of those parts. The surveyor has not allowed these items covered under the policy and existing  survey practices.
23. OP No. 1 is also directed to pay to the Complainant Rs. 30,000/- as compensation for mental agony and harassment and Rs. 10,000/- as cost of the litigation. The order be complied with OP No. 1 within 30 days from the date of receipt of the copy of the order, failing which it will be liable to pay an interest @12% p.m. for the delayed period.

 

24. A copy of the order be uploaded on the confonet website (www.confonet.nic.in) and also supplied to all the parties/ Ld. Counsel  free of cost. File be consigned to record room.
25. Announced in Open Commission on 02.02.2022.

 

 

(POONAM CHAUDHRY)

President

 

 

                                                        (BARIQ AHMAD)                                                                 

                                                           MEMBER