BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt.Case No : 1501 of  2009

Date of Institution:    17.12.2009

Date of Decision  :    19.10.2010

Rajinder Parsad son of Sh.Jai Lal, Aged 34 years, resident of H.No.1737, Phase-II, Ram Darbar, Chandigarh.

……Complainant

V E R S U S

1]     Tata Motors Finance Ltd., SCO No.1124-1125, Sector 22-B, Chandigarh through Sh.Karuna Kant Tripathi, Operational Manager

2]     Bajaj Allianz General Insurance Co. Ltd., through its Managing Director, G.E. Plaza, Airport road, Yerwads, Pune – 411006

3]        Branch Manager, Bajaj Allianz General Insurance Co. Ltd., SCO No.329, First Floor, Sector 9, Panchkula.

.…..Opposite Parties

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.Sanjeev Kundal, Adv. for complainant.

Sh.Sandeep Suri, Adv. for OP-1

Sh.Gaurav Bhardwaj, Adv. proxy for OPs No.2 & 3.

PER MADHU MUTNEJA, MEMBER

                The present complaint has been filed by Sh.Rajinder Parsad against the OPs under Section 12 of the Consumer Protection Act.

1]             The complainant is a resident Chandigarh. He bought a car from M/s Speed Motors, Chandigarh in 2008 bearing Regd. No.CH-04-B-8840.  The complainant has submitted that he bought this vehicle for earning his livelihood and he drives the same himself for earning his livelihood.  OP No.1 is the authorized representative of Tata Motors and deals with financing the vehicles while OPs No.2 & 3 were the insurers of the vehicle. 

                The complainant has submitted that he paid premium of Rs.15,130/- against the insurance policy effective from 14.1.2009 to 12.1.2010.  The complainant has alleged that OP No.1 had without any intimation to him or without obtaining his consent changed the insurer from Reliance General Insurance Co. Ltd. (OP-2) to Bajaj Allianz General Insurance Co. (OP-3) at their own.  This change was done in the 11^th month of already existing policy on 17.12.2008 for the period mentioned above.  On account of this change, the complainant also lost 20% No Claim Bonus in the second year of the insurance.

                The vehicle met with an accident in Sept., 2009 and the vehicle was sent for repair to OP No.1, who is the authorized dealer of Tata Motors on 28.9.2009.  The insurer was duly informed and OP No.3 appointed a Surveyor to inspect the vehicle at the workshop.  The Surveyor once again inspected the vehicle when it was ready for delivery after repairs.  A total bill of Rs.62,049/- was raised for repairing the vehicle by M/s. Speed Motors.  The complainant was surprised when OP No.3 only allowed Rs.24,038/- towards the repair of the vehicle.  Copies of the repair bills have been placed at annexures.  The complainant has alleged that the Surveyor left out 23 items out of the total list of 44 items replaced, by taking the excuse of not being covered under IMT 23 cover.  The complainant was not in the knowledge of any such provision and as far as he was concerned, his vehicle was fully covered for insurance.  The complainant had to pay the full amount raised on the repair of the vehicle from his own pocket even though a cashless facility for repair had been provided by OP-1.  Thereafter, the complainant approached the OPs for payment of the amount.  The complainant has alleged that he issued a legal notice to OP No.1 on 14.4.2009 and to OPs No.2 & 3 on 4.11.2009 vide regd. post for redressal of his grievance but no positive response was ever received from them.  The complainant has thus filed this complaint against the OPs for redressal of his grievance.  He has prayed that the Ops be directed to refund the full amount of repairs as well as pay compensation for harassment and inconvenience caused.

2]             After admission of the complaint, notices were sent to the OPs.

OP No.1 in its reply has submitted that OP No.1 is not in any manner concerned with the amount granted under the policy of insurance.  They are only financers and in case of any loss to the vehicle, the amount has to be paid by the insurance company only.  The policy was taken out prior to the date of expiry so that complete period was insured without a break.  The complainant being aware of the same admittedly did not take out any further policy himself.  The policy was duly provided to the complainant and he has never raised any objection/dispute except now.  He cannot therefore now be permitted to take the same once he has accepted the policy without demur.

                OPs No.2 & 3 have filed joint reply.  In their reply, they have said that as soon as the claim was intimated to them by the complainant, an IRDA approved Independent Surveyor was appointed, who assessed the loss at Rs.27,888.70.  the assessed amount was duly provided to the complainant, who accepted the same without any hesitation or agitation as full and final settlement of his claim.  The complainant is thus bound by the principle of estoppel as he has accepted the amount and cannot now forego from it.  Further, they have submitted that the concerned policy was provided to the complainant well in advance under which all exclusions and inclusions were clearly stated.  The complainant has now raised the query regarding non-inclusion of IMT 23 for the first time and that too after a lapse of more than 1 year from the issue of the policy.  They have submitted that the complaint needs to be dismissed on both these grounds alone. 

                On merits, OPs No.2 & 3 have submitted that the complainant was using the vehicle for commercial purpose.  The policy was taken in Dec., 2008 and the complainant is raising the objection for the first time in the complaint, which has been filed after one year of taking the policy. 

                Further, the Surveyor appointed in the case physically inspected the vehicle vis-à-vis the insurance policy and gave his report dated 9.10.2009 as per which the total amount payable came to Rs.27,888/-.  The report of the Surveyor is placed at Ann.R-2.  OPs have also submitted that the insurance policy is liable for damages which are only covered under the policy.  The vehicle of the insured is a commercial vehicle and as per IMT 21, there are certain body parts/equipments which are not covered until and unless premium for the coverage of the same is taken.  In the present case, the premium under IMT 23 was not paid by the complainant at the time of taking the insurance policy, as such the insurance policy cannot now be saddled with the liability for the coverage of such parts for which there was no coverage.  The special exclusions and compulsory deductible under IMT 21 clause of the policy is applicable to all commercial vehicle excluding taxis and motorized two wheelers carrying passengers for hire or reward.  IMT 23 is the cover for lamps, tyres, tubes, mudguards, bonnet, side parts bumpers, headlights and paintwork of damaged portion only.  All these parts would be allowed subject to depreciation only if covered under the policy. 

                Further, in Para No.12 of the reply, OPs No.2 & 3 have stated that there was no need to reply to the legal notice as the claim of the complainant was already approved for a sum of Rs.27,888/- as per the report of the Surveyor, which the complainant chose not to take; rather he went ahead in filing the present complaint.

                Relying on the above averments, the OPs No.2 & 3 have prayed for dismissal of the complaint.

3]             We have heard the ld.Counsel for the parties and have also perused the evidence and documents led by the parties in support of their contentions.

4]             At the time of arguments, the ld.Counsel for the complainant wished to rely on the judgment in case United India Insurance C. Ltd. Vs. Dwarka Minerals and Chemicals Pvt. Ltd. and Others, 2003(3) CLT of Hon’ble Chandigarh State Commission wherein it has been held :-

“Commercial purpose – Using a machinery for commercial purpose does not debar a ‘consumer’ from claiming ‘Deficiency in service’ – The bar for use of goods for commercial purpose under the Act is only applicable to sub para (1)(d)(i) of Section 2 of the C.P.Act.”  ]

                The ld.Counsel for complainant also emphasized on the judgment of Hon’ble Supreme Court of India in New India Assurance Co. Ltd. Vs. Pradeep Kumar, IV(2009) ACC 356 (SC) wherein it has been held:-

“Insurance Act, 1938 – Section 64UM(2) – Insurance – Assessment of loss – Pre-requisite for settlement of claim – Surveyor’s report not last and final word – It may be basis for settlement of claim but neither binding upon insurer nor insured – Complainant’s claim accepted by Consumer For a as duly supported by original vouchers, bills and receipts – No interference required in appeal.”

5]             This case involves consideration on two facts.  Firstly, the amount spent by the complainant against the amount allowed by the Surveyor.  A perusal of the bill shows that certain metal, rubber and plastic parts have been dis-allowed by the Surveyor.  The labour charges have also not been allowed in toto.  We feel that there is nothing wrong in this assessment of the Surveyor and hence the amount allowed by him should be the amount payable to the complainant. 

6]             We also feel that the contention of Ops that they  cannot go beyond the statutory requirements to pass the claim of complainant is justified.  They have also submitted that the complainant was well informed about the terms, conditions, limitations and exclusions of the policy.  He has raised his objections after more than a year of taking the policy.

7]             However, it is interesting to note, that, in the reply filed by OPs No.2 & 3, it is stated in the preliminary objection that the assessed amount was duly provided to the complainant, who accepted the same without any hesitation towards full & final settlement of his claim.  But on merits in Para No.12, they have stated that the claim of the complainant was approved as per the report of Surveyor, which the complainant chose not to take but rather went ahead in filing the present complaint.  These averments are absolutely contrary.

8]             It seems from the above that the OPs No.2 & 3 have not yet made the payment of Rs.27,888/- to the complainant, as assessed by the Surveyor,  We feel that we need not to go beyond the report of the Surveyor and the amount allowed by him to the tune of Rs.27,888/- should only be paid to the complainant. 

9]             In view of the above, we allow this complaint and directed the OPs No.2 & 3 to pay to the complainant the assessed amount of Rs.27,888/- along with interest @9% per annum from the date of payment to M/s Speed Motors by the complainant.  it must be reiterated here that the policy was a cashless policy.  This amount be paid by the OPs within 30 days of this order, failing which they shall pay the amount along with interest @18% per annum till the actual date of payment to the complainant.

                Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

19^th Oct., 2010                                                            Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Om’