Smt. Sahana Ahmed Basu, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The fact of the case in brief is that the complainant purchased one Toyota Etios GD car from OP-3 in his name on 10.10.2015 by loan account from OP-6 at the rate of EMI of Rs. 17,742/- for 48 months. Through OP-5 (Job Spares Pvt. Ltd.) the Complainant credits an insurance policy (policy No. 5574/97242412/000/00) of the said vehicle being no. WB-04G-5791, engine number IND-1428630 and CHESSIS NUMBER MBJB49BT800114183 in the year 2016 against a sum of Rs. 30,662/- and the insured declared value of Rs. 6,16,792/- to be paid to the insurer i.e. OP-1 and 2 (CholamandalanMs General Insurance). The Subject vehicle was running as a luxury taxi in OLA AND 04.12.2016. The said car drove by the paid driver met with an accident at about 12.35 am in collusion with a heavy car on 04/12/2016. On the same day the Complainant lodged Complaint of the occurrence before Bhawnipore P.S. The duty officer had drawn M.C.R. being number 222 date 04.12.2016 released the subject vehicle. After that the Complainant immediately informed the occurrence to OP-2 on their toll free number 1800-200-5544. Due to his illness as stated by the Complainant he took the car to OP-4 on 14.12.2016 at Mahestala (South 24 Pgs). There he provided the claim from of OP-1 and 2 by the OPs-3 and 4 and that was duly filled up and submitted by the Complainant with M.C.R. being the claim number 97242412/093073. The Complainant mentioned that the claim number given by the OP-1 and 2 is differ from actual claim number of letter date 13.02.2017 by OPs 1 and 2. The OP-4 called the Complainant on 13.02.2017 to inform him that the towed car was not same as the insured car. Therefore, the Insurance Company unable to pay the claim. The Complainant was stated that he was requested that he may repair the damaged car from his own pocket. Then the petitioner rushed to the OP-4 and saw the survey report prepared by OP-3 where it was found that the estimate of repairing the said vehicle amounting to Rs. 12,33,017/- which is higher than the original price of the said vehicle i.e. 7,70,989/-. As per the Complainant OP-3 and 4 pressurized the Complainant to withdraw the claim and the Complainant had to pay the garage rent to the OP-3. On 27.03.2017 the Complainant wrote letter to all OPs regarding rejection of the said claim. OPs 1 and 2 replied the letter arising some vague points upon the subject car then the Complainant went before the Asst. Director, Consumer Grievance Redressal Cell on 12.04.2017 and made a report against OP-1 to 4 for seeking justice. OPs 1, 3 and 4 appeared the Redressal Cell and they were not willing to settle the claim. Finding no other alternative way the Complainant approached before this Ld. Forum.
All the OPs contested the case by filing their W.V. OPs 1 and 2 in their joint W.V. stated that the instant case is false, malicious and incorrect. OPs 1 and 2 received on own Damage claim on 20.12.2016 and they registered the claim and appointed a surveyor for inspection of the damages and assessment of the loss caused to the vehicle. During the survey the surveyor collected the necessary documents including the copy of the Gd entry and vehicle papers and also took the photographs of the vehicle in question. During the procession and while going through all the documents and photographs collected it was noticed by the Motor Team that the photographs submitted bythe insured prior to the insurance of the policy and the damaged vehicle in question are not same. But are of two different vehicles. There are many discrepancies. The OPs 1 and 2 sought for written declaration from the insured on 13.02.2017 vide their letter on (1) delay in intimation (2) mismatch of the vehicle produced (3) mismatch of the cause of loss with M.C.R. As per OPs 1 and 2 instead of clarifying the discrepancies the Complainant with draw the claim on 15.02.2017 by notifying about the same to the call center of the insurance company. OPs-1 and 2 further stated that there was a vast gap between the pre-inspection odometer reading and in the copy of the estimate prepared by Topsel Toyota Pvt. Ltd. on 20.01.2017. There was also delay of 16 days in intimating the claim by the insured which is a breach of policy team. In view of the above the OPs 1 and 2 repudiate the claim on 03.04.2017. They prayed before the Ld. Forum to reject the Complaint.
OPs 3 to 5 filed their W.V. jointly and claimed that they are the service provider for Toyota vehicles. They duly informed the Complainant regarding renewal in advance. But they were informed that the Complainant is out of station would contact arrival. They were contacted the Complainant again on 23.11.2016 and 24.11.2016 after expiry of the previous insurance policy. As the failed insurance policy need pre-inspection of the vehicle the Complainant requested the OP-3 to help him, because his vehicle was in Siliguri. On good faith the OP-3 told the petitioner to send a set of photographs in the existing condition and the Complainant sent the same through whatsApp and OP-3 forwarded those to OP-1. The vehicle was renewed by the OP-1 for the period from 24.11.2016 to 23.11.2016. On 14.12.2016 the same vehicle was towed to premises of OP-4 in a badly damaged state and it was informed that the car had met with an accident on 04.12.2016. The OPs 3 and 4 provided all the necessary assistance to the petitioner required by him. The petitioner submitted the claim form and required documents to OP-4 on 20.12.2016 and the claim was lodged on the same day. On 21.12.2016 the surveyor came for inspecting the vehicle on behalf of the OP-1 and on 13. 02.2017,the OP-1 informed them about the rejection on the same day.Then the Complainant willingly took away his vehicle from the custody of OP-4 on 15.12.2017 after paying the garage rentals. The Complainant raised a question regarding repair cost being higher than that of the original price of the vehicle. OPs 3 to 5 submitted that it is not unusual as the repair costs are calculated in a difficult method and manufacturing costs is calculated differently. They denied the allegation of the Complainant regarding pressurization to withdraw the claim. They had duly appeared before the Asst. Director, Consumer Grievance Redressal Cell and submitted their finding and facts in writing. OP-5 is an only service provider for facilitating issuance of new and renewal policies under Toyota Protect. They had no further role in this instant case.
OP-6 submitted separate W.V. and stated that the Complainant pleaded no grievance against the OP-6 also no relief/reliefs claimed. OP-6 is not at all necessary party. Relationship of OP-6 with the Complainant is of a financer and borrower in respect of the four wheeler is concerned. It is limited to the terms and conditions of the said Loan Agreement. Rather the Complainant suppressed, misrepresented and distorted the material fact. The Complainant had no justifiable rights to rule the OP-6. The OP-6 submitted to exonerated from the case.
Point for Decision
- Is the complaint maintainable in its present form and in law ?
- Is the repudiation dated 03/04/2017 justified ?
- Are the O.Ps. deficient in rendering services to the complainant ?
- Is the complainant entitled to get relief / reliefs as prayed for ?
Decision with Reasons
Points No.-1 to 4.
All the points are taken up together for the sake of convenience and brevity in discussion.
Both parties have tendered evidence through affidavit. They have also given reply to the questionnaires set forth by their adversaries. The complainant and O.Ps.-1 and 2 andO.Ps.-3 to 5 have also filed BNAs.
It remains undisputed that the complainant purchased a Toyota Etios GD from the O.P.-3 (Engine No.IND-1428630, Chassis No.-MBJB49BT800114183) after obtaining loan from O.P.-6. It is also undisputed that the complainant obtaining insurance policy of the subject vehicle met with an accident on 04/12/2016 at the rate of 12-35 AM and the complaint was lodged to Bhowanipore P.S. Complainant immediately informed about the accident to O.P.-2 in their toll free No.-1800-200-5544. The The subject vehicle was towed to the O.P.-4 (Toyota Workshop) on 14/12/2016 and the complainant submitted the claim form to the O.Ps.-1 and 2. The complainant was asked for some clarification through a letter dated 13/02/2017 by the O.Ps.-1 and 2 and the complainant withdraw his claim on 15/02/2017. After that, on 27/03/2017 the complainant sent a legal notice to all the O.Ps. regarding settlement of his claim. Then O.Ps.-1 and 2 replied that the claim is not admissible on the basis of their inspection. All these are established facts which are on record.
All the O.Ps. raised maintainability point regarding the complaint. It has been argued by the O.Ps. that the complainant sold the said vehicle to his younger brother namely Mr. Subhankar Deb. Therefor, he is not the owner of the subject vehicle anymore and not entitled for any claim. On perusal of the record we find that an agreement was signed between the complainant and Mr. Subhankar Deb. It is clearly mentioned in the said agreement “that the 2nd party after clearance the loan must apply for transfer of ownership of the vehicle in his / her name at concerned Motor Vehicles Department within 15 days from the date of receipt of No Objection Certificate from the Bank.” O.Ps. did not furnish any document or receipts to prove that the complainant sold the subject vehicle to Mr. Subhankar Deb or Mr. Subhankar Deb is the owner of the subject vehicle as per their survey report. Therefore, we are of opinion that the complainant is the registered owner of the subject vehicle involved in the accidentas per Section-2(30) of the Motor Vehicle Act, 1988, which indicates that the person in whose name a motor vehicle is registered as the owner and the only two exceptions to that principles where the subject vehicle is under hire purchase agreement.So the maintainability point does not stand.
O.Ps. have contended that the insured vehicle and the said accident vehicle is not identical. They raised this point on the basis of the pre-inspection photographs submitted by the insured prior to issuance of the insurance policy. The points are –
- The photograph of the vehicle sent for renewal of insurance had alloy wheels but no claddings were there in the said damaged vehicle.
- The pre renewal vehicle had side claddings but no claddings were there in the said damaged vehicle.
- There was no sticker of OLA on the pre-renewal vehicle. Whereas there was OLA sticker / marking on the accident vehicle.
- The pre-renewal vehicle had white chrome lock handles whereas the accident vehicle had normal lock handles.
- The pre-renewal vehicle had white mirror cover on the side view mirror whereas the accident vehicle had a black one.
- The photographs of the accident vehicle shows that the air bags of the driver and co-passenger ride were deployed as a consequence of the head an collision. But in the copy of G.D. Entry it is clearly mentioned that driver was alone in the vehicle.
In reply the complainant has submitted before the Hon’bleConsumer Grievance Redressal Cell as below-
“I said again that the vehicle at insurance renewal and accidental vehicle is same. On the basis of internal parts of the vehicle none can prove that there are two different vehicle in this case. External parts can be changed any time due to damage by small accident or over crowd. It is also be changed know fully own self for modification of the vehicle. Two different vehicle must have two different chassis number. In this case, the chassis number plate’s photo which is used to renew insurance and the photo taken at the time of survey is same.”
We find logic in this submission. Moreover, all the O.Ps. never denied that the said accidental vehicle has same engine number and the chassis number. Even, they did not submit that those numbers were polished and tampered. So this this point is also be dismissed.
We also observed that O.Ps. at first sought clarification from the complainant regarding (a) delay in intimation of 15 days (b) mismatch of vehicle produced at the time of insurance for photos to that brought for an accident claim (c) cause of loss in mismatch with MCR and nature of loss.
The complainant replied the above points in his submission before the C.G. Cell. The complainant submitted that he filed up the claim form on 14/12/2016 toO.Ps. but the claim registered by the O.Ps. on 20/12/2016. O.Ps. did not controvert this submission. Therefore, delay is the fault of the O.Ps. The complainant further submitted that the survey report submitted on 21/01/2017 but O.Ps. asked for his clarification on 13/02/2017. O.Ps. did not bother for this delay on their part. Moreover, O.Ps. expressed their reluctance to meet up the claim of the complainant before the Hon’ble Consumer Grievance Cell and Hon’ble Forum.
In view of the above facts and circumstances of the case coupled with evidence and documents on record, we find that O.Ps.-1 and 2 and O.Ps.-3 to 5 deliberately repudiate the claim and it is a clear case of deficiency in service and unfair trade practice on the part of the O.Ps.
We observed that there is inconsistency in complainant’s part also regarding the delay to took the car to the Workshop. Before the Hon’ble Grievance Cell the complainant submitted that his cousin brother became ill soon after the said accident. But in his complaint before the Hon’ble Forum it is submitted that he himself became ill.
Although the complainant submitted that he withdraw the claim on 15/02/2017 as a result pressurization by the O.P.-4. But in the withdrawn letter the complainant wrote “Due to my personal reason I want to withdraw may claim (Request No.3083513) and also take my car at my own risk.” It is surely a major fault on the complainant’s part. But as soon as he realized the mess he started correspondences with O.Ps.
We find that by withdrawing the claim the complainant weaken his case. But as a consumer he should get the relief for what he paid and kept paying after the dismissal of his claim.
Therefore, we are of the opinion that the merit of the case succeeds against O.Ps.-1 and 2 and dismissed against O.Ps.-3 to 6.
Hence,
Ordered
That the complaint case be and the same is allowed in part on contest against the O.Ps.-1 and 2 with cost of Rs.5,000/- and dismissed on contest against the rest.
O.Ps.-1 and 2 are directed to release Rs.6,00,000/- in favour of the complainant along with litigation cost within a period of 30 days from the date of this order.
O.Ps.-1 and 2 are also directed to pay Rs.20,000/- to the complainant towards compensation for causing harassment and mental agony to the complainant.
Liberty be given to the complainant to put the order into execution,if the OP transgress to comply the order.
Copies of the order be supplied to the parties when applied for.
