JUDGMENT Per Justice Sham Sunder , President This appeal for enhancement of compensation is directed against the order dated 19.10.2010 , rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which the complaint was accepted and OP Nos.2 & 3 (now respondents) were directed to pay to the complainant(now appellant) the assessed amount of Rs.27,888/- alongwith interest @ 9% p.a., from the date of payment to M/s Speed Motors by the complainant. It was also directed that the OPs shall pay the aforesaid amount within thirty days from the date of receipt of a copy of the order, failing which they shall be liable to pay the same with interest @ 18% p.a. till actual payment. 2. The complainant bought a car from M/s Speed Motors, Chandigarh in 2008 bearing Regn. No.CH-04-B-8840. OP No.1 is the authorized agent of Tata Motors and deals in financing vehicles. The complainant got the aforesaid vehicle insured against the Policy effective from 14.1.2009 to 12.1.2010. It was stated that OP NO.1 without any notice 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) of its own. It was further stated that this change was done in the 11th month of already existing policy, on 17.12.2008 ,for the period mentioned above. On account of this change, the complainant lost 20% ‘No Claim Bonus’ in the second year of insurance. It was further stated that vehicle met with an accident in Sept., 2009, and it was sent for repairs to OP No.1, an 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 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. It was stated that OP No.3 only allowed Rs.24,038/- towards repairs of vehicle. It was further stated that the Surveyor left out 23 items, out of total list of 44 items replaced, by taking the excuse of not being covered under IMT 23 cover. It was further stated that the complainant had no knowledge of any such provision. It was further stated that vehicle of the complainant was fully covered for insurance. The complainant approached the OPs for payment of the amount spent by him, on repairs, but his claim was not settled. Thereafter, he had to issue a legal notice to OP No.1 on 14.4.2009 and to OPs No.2 & 3 on 4.11.2009 through registered post. It was further stated that by not paying the full amount of repairs, the OPs were deficient, in rendering service, and also indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called to as the Act only) was filed by him. 3. OP NO.1, in its reply, stated that, it was not concerned, in any manner, with the amount, to be awarded under the Policy of Insurance as it was only a financier of the vehicle. It was further stated that the Policy was taken out, prior to the date of its expiry. The complainant accepted the Policy without raising any dispute or objection. 4. OPs No.2 & 3, filed joint written reply, wherein, it was stated 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 said amount was duly paid to the complainant, who accepted the same without any agitation, as full and final settlement of his claim. It was further stated that the complainant was estopped from claiming the amount again. It was further stated that the Policy was provided to the complainant, well in advance, under which all exclusions and inclusions were clearly stated. It was further stated that the complainant now raised the plea of non-inclusion of IMT 23 for the first time, and that too, after a lapse of more than 1 year from the date of issuing the Policy. It was further stated that the complainant was using vehicle for commercial purpose. It was further stated that the complainant was entitled to the damages, which were covered under the Policy. It was further stated that the vehicle of the insured was a commercial vehicle and as per IMT 23, there were certain body parts/equipments which are not covered, until and unless premium for coverage of the same was taken. In the present case, the premium under IMT 23 was not paid by the complainant at the time of taking the Insurance Policy, and, as such, the Insurance Company could not be saddled with the liability for the coverage of such parts, for which there was no coverage. It was further stated that special exclusions and compulsory deductible under IMT 21 Clause of the Policy were applicable to all commercial vehicles, excluding taxis and motorized two wheelers carrying passengers for hire or reward. IMT 23 is coverage for lamps, tyres, tubes, mudguards, bonnet, side parts bumpers, headlights and paintwork of damaged portion only. It was further stated that all these parts could be allowed only subject to depreciation, if covered under the policy. It was further stated that there was no deficiency, in service, on the part of the OPs, nor they indulged into unfair trade practice. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of this judgment. 7. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant for enhancement of compensation. 8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case ,carefully. 9. The Counsel for the appellant, submitted that, the appellant had paid Rs.82,000/- as down payment and the balance price of the vehicle was Rs.3,25,000/-. He further submitted that the appellant paid Rs.15,130/- for Policy No.OG-09-1901-1803-00011333 of the vehicle dated 17.12.2008 for the duration from 14.1.09 to 13.1.10. He further submitted that the premium for three consecutive years i.e. 2nd, 3rd and 4th stood already paid. He further submitted that respondent NO.1 without giving any intimation and taking any consent, from the complainant, changed the Insurer from Reliance General Insurance Company to Bajaj Allianz General Insurance Company Ltd.- respondent No.2. He further submitted that this changeover was done in the 11th month of already existing Policy of Reliance General Insurance Company, which was likely to expire on 17.12.2008. He further submitted that on account of change of Insurer, the complainant suffered loss of 20% of no claim bonus, on the Insurance Policy of 2nd year. He further submitted that his car was fully insured and he was not aware of exclusion or inclusion clause contained in the Insurance Policy. He further submitted that as per IMT23 cover of the Insurance Policy, plastic and glass items, or other remaining items of vehicle were covered, but it was only on account of change of the Insurer from respondent No.1 to respondent No.2,without intimating the appellant, that these items were excluded. He further submitted that the District Forum was wrong in awarding meagre compensation and not the entire amount spent by the complainant for repairs. 10. On the other hand, the Counsel for the respondents, submitted that, the District Forum was right, in coming to the conclusion, that the Surveyor had rightly disallowed certain metal, rubber and plastic parts which were not covered under the Insurance Policy. He further submitted that the District Forum rightly held that as the premium under IMT 23 was not paid by the complainant, at the time of taking Insurance Policy, the coverage of such parts for which no premium was paid could not be provided. He further submitted that no ground for enhancement of compensation is made out. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 11. After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. Annexure C-1 is the Policy, in respect of car of the complainant. This policy is of Reliance General Insurance Company. There is nothing, in the Policy, to show that the Insurance amount was paid by the complainant for coverage under IMT 23. Annexure C-3 is the Policy of Bajaj Allianz respondent No.3. This Policy was duly received by the complainant. He did not raise any protest, regarding the change of insurer immediately after receipt of policy. In case, he was not satisfied with the terms and conditions contained therein, it was his duty to raise a protest, in regard thereto, immediately on receipt of the Policy. He could also write a letter to Bajaj Allianz General Insurance Company, that the terms and conditions of the Policy were not the same, as were told to him. He could also write a letter that the parts, covered under IMT23, be also insured and that he was ready to pay premium for the same. He kept mum throughout, and when his vehicle met with an accident, he raised such a plea, regarding change of Insurance Policy, from one Insurance Company, to other Insurance Company. Once he accepted the Policy and did not raise any protest immediately, it did not lie in his mouth, later on, to say that the terms and conditions thereof, were changed, without his consent. In these circumstances, the submission of the Counsel for the appellant, being without merit , must fail, and the same is rejected. 12. The second question, that falls for determination, is, as to whether, the Surveyor was right in excluding the parts, which were not covered under IMT 23, and in respect whereof no insurance cover was obtained by the complainant by paying insurance premium. Report of the surveyor is R-2. He inspected the vehicle, after the same was repaired and, ultimately, came to the conclusion, that the complainant was entitled to a sum of Rs.27888.70. He excluded the rubber/plastic parts as the same were not covered under the terms and conditions of the Policy and the amount of insurance premium, in respect thereof, had not been paid by the complainant. The parties were bound by the terms and conditions of the Policy. They could not go beyond the same. The report of the surveyor, being in consonance with the terms and conditions contained in the Policy, could not be faulted with. The District Forum was, thus, right in accepting the report R-2 of the Surveyor, being based on correct facts and circumstances, as also the terms and conditions of the Policy. In these circumstances, the District Forum was right in holding that amount of Rs.2788.70p which was assessed by the surveyor, was the one, to which the complainant was entitled, as the same had not been paid to him. Observations of the District Forum, in this regard, being correct, are affirmed. 13. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 14. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed, with no order as to costs. 15. Certified Copies of this order be sent to the parties, free of charge. 16 . The file be consigned to the record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
