Haryana

Panchkula

CC/7/2018

SULTAN ALI - Complainant(s)

Versus

THE MANAGER,THE ORIENTAL INSURANCE COMPANY LTD. - Opp.Party(s)

JYOTI RANI

29 Jul 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

 

                                                       

Consumer Complaint No	:	07 of 2018
Date of Institution	:	09.01.2018
Date of Decision	:	29.07.2019

 

 

 Sultan Ali age 34 years son of Sh. Sarajudin Village Manakpur Devilal, Post Office Pinjore, Tehsil Kalka, District Panchkula (Haryana)

 

                                                                           ….Complainant

 

Versus

1.     The Manager, The Oriental Insurance Company Ltd. office address branch office SCO-325, 2^nd Floor, Sector-9, Panchkula.

2.     The Oriental Insurance Company Ltd. through its Managing Director, Regd. & Head Office A-25/27, Asif Ali Road, New Delhi.

3.     Chief Regional Manager, Regional Office, Address SCO-109-110-111, Surindera Building, Sector- 17-D, Chandigarh.

4.     Jatinder Singh Agent of Oriental Insurance Company office address City Document Centre, Near Bus Stand, Pinjore, Tehsil Kalka, District Panchkula.

5.     Garish Sharma, Surveyor, The Oriental Insurance Company Limited resident of HIG 55, Sector-4, Parwanoo(HP)

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh. Deepak Kaushal, Advocate for the complainant.  

Sh. Rajesh Kaul, Advocate for OPs No.1 to 3.

OPs No.4 & 5 already ex-parte.                    

 

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that complainant had got his car insured bearing registration No.HR-49-D-8157 from OP No.4 who is the authorized agent of the Oriental Insurance Company i.e. OP No.2 Vide Insurance Policy No.231304/31/2018/50 dated 03.04.2017 and paid the requisite premium of Rs.6,490/- against the assessed value  of car i.e. 2,30,000/-. On dated 24.06.2017 the car bearing registration no.HR-49-D-8157 was badly damaged due to accident caused by rash and negligent driving of driver of Bus bearing registration no. HR-68-A-9903 and an FIR No.182 dated 27.06.2017 was got registered in this regard by Sh. Noor Din against the driver of Bus. Instantly the complainant informed the OP No.4 about the accident and he advised the complainant to inform the OP No.2 on its toll free number and after this the complainant informed the OP No.2 on its toll free number and told about  the accident to customer care of OP No.2 and the customer care representative  instructed  the complainant to take the vehicle in any authorized agency of Oriental Insurance Company and they preferred  the complainant to take his vehicle to Mohindra First Choice agency at Basola Tehsil Kalka District Panchkula. As per the instruction of the customer car of OP No.2, the complainant towed his car by crane to the authorized service centre of OP No.2 after getting released his vehicle on Superdari from the Court. On 06.07.2017 complainant informed the OPs No.1 & 2 on its toll free number about the parking of vehicle in authorized agency of OP No.2. The surveyor Sh. Garish Sharma i.e. OP No.5 visited the workshop/agency on 12.07.2017 and inspected the accidental car bearing registration  No.HR-49-D-8157 and declared  80% damage to vehicle in question i.e. total loss. The complainant submitted all the requisite documents which were demanded/required for the claim by OP No.5. After one month when the complainant did not get any reply from the surveyor, he contacted him. The OP No.5/surveyor told the complainant that the estimate prepared  by the Mohindra First Choice for repairing  is approximately about Rs.2,50,000/- and the insurance company cannot pay amount exceeding Rs.1,69,000/- and directed the complainant to submit  an affidavit in this regard and in compelling  circumstances the complainant submitted such affidavit.  After submissions of documents the complainant many times contacted the OP No.5 but he did not give any satisfactory reply and delayed the matter on one pretext or another. After three months when complainant contacted the OP No.5, he straightway refused  to issue the claim  of Rs.1,69,000/- and further compelled  the complainant to settle the claim amount to the tune of Rs.1,00,000/- and also directed complainant to submit an affidavit regarding voluntarily acceptance of Rs.1,00,000/-. The complainant requested the surveyor and other OPs that the insurance agent assessed the value of Car 2,30,000/- upon which the requisite premium of Rs.6,490/- was paid but they did not consider  the genuine request of the complainant further he told the OPs that he is paying EMIs regularly of Rs.5,718/- per month against the car loan to the HDFC. The complainant requested the OPs many times to accept the genuine request of the complainant but the OPs did not pay any heed to the genuine  request of the complainant which amounts to deficiency in service on the part of OPs towards the complainant. Hence, the present complaint. 

2.             Upon notice OPs No.1 to 3  appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action and the complainant has not come with clean hands. On merits, OPs No.1 to 3 stated that the complainant himself is responsible for the non-payment of this claim with regard to the damages caused to the car bearing registration No.HR-49-D-8157 in the accident dated 24.06.2017 matter of fact the reported claim with regard to the loss cause to said car of the complainant was duly entertained immediately and one IRDA approved surveyor Sh. Garish Sharma was deputed to assess the loss and to give his fact finding report. Said surveyor immediately contacted the complainant and inspected the vehicle in question and discussed the matter with him as well as with the mechanic at the workshop Mahindra First Choice  Services where the complainant had parked his said car himself for repair and surveyed the vehicle in detail and obtained the estimate of repair, claim form, police report etc. In such like cases where the insured vehicle is involved in any criminal case and is being released on superdari by the court being case property, there is only two options to settle the claim. Firstly if the vehicle is repairable then the vehicle is repaired and if it is beyond repair than it has to be settled on net of salvage basis or cash loss basis since the such insured vehicle cannot be sold out to any third person due to its release by the court on superdari and undertaking of the insured before the court in this regard. Further,  the car in question was damaged beyond repairs and since it was released on superdari by concerned court, thus there was only option  to settle the claim on net of salvage  basis. As per quotations given by the junk dealer,  the salvage was Rs.One Lac and the remaining insured amount of Rs.1,29,000/- out of the total insured amount was offered to the complainant  and accordingly he was asked to furnish  the consent letter on stamp paper of Rs.100/- so that  the claim amount can be released.  But inspite of repeated oral requests and email on dated 11.08.2017 followed by various reminder on 27.10.2017, 07.11.2017, 15.11.2017 and 21.12.2017 sent by the surveyor the complainant ignored the same and failed to comply. The final notice dated 19.03.2018 was also issued to the complainant for providing necessary documents. But the complainant has not complied the same.  Thus there is no deficiency on the part of OPs No.1 to 3 and prayed for dismissal of the  present case.

                Notices were issued to the OPs No.4 & 5 through registered post on 18.01.2018 which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.4 & 5; hence, it was deemed to be served and thus, due to non appearance of Ops No.4 & 5, they were proceeded ex-parte by this Forum vide its order dated 14.05.2018.

3.             The complainant while reiterating the facts as contained in the complaint has filed the replication wherein the facts alleged by the OPs  in their written statement has been controverted.

4.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 to 3 tendered affidavit Annexure R1/A alongwith Annexure R1/1 to R1/5 and closed the evidence.

5.             We have heard learned counsel for the parties and gone through the record carefully.

6.             It is evident that the car bearing registration no.HR-49-D-8157 met with an accident on 24.06.2017 due to the rash and negligent driving of the driver of offending vehicle bearing registration no.HR-68-A-9903  during the subsistence of Insurance Policy No.231304/31/2018/50 which was effective from 03.04.2017 to 02.04.2018. There is no dispute with regard to factum of accident, genuineness of driving license of the driver of the aforesaid car as well as intimation to the company. It is also evident that the OPs deputed Sh. Garish Sharma, Surveyor-cum-Loss Assessor to inspect the vehicle and submit the report. The said surveyor submitted his  interim report  Annexure R1/2 assessing the liability of the company on total loss basis to the extent of Rs.2,29,000/-. The grievance of the complainant are that he has submitted all the requisite documents with the company and gave his consent for the release of Rs.1,29,000/-  in lieu of loss caused to him in the car accident. The OPs have contended that the vehicle was released on superdari by the learned Civil Court in favour of the complainant, hence, the claim has been approved on net salvage basis with RC.  The complainant has been asked vide letters dated 06.02.2018 (Annexure R1/3) and 19.3.2018 (Annexure-R1/4) to complete the formalities. The learned counsel for the OPs has contended that the complainant is entitled to a sum of Rs.1,29,000/- after deduction of salvage-wreck value amounting to Rs.1,00,000/- out of IDV amount i.e. Rs.2,30,000/-. The learned counsel contended that there is a lapse on the part of the complainant while not completing the formalities as required vide letter dated 06.02.2018 Annexure R-1/3, 19.03.2018 (Annexure R-1/4) for enabling Ops to release the amount of Rs.1,29,000/- in favour of the complainant.  The learned counsel asserted that there is no deficiency on the part of OPs while providing the services to the complainant.

7.             The IDV of the vehicle to the tune of Rs.2,30,000/- is not disputed. The surveyor vide his interim report dated 20.01.2018 Annexure R-1/2 has assessed the net payable amount of Rs.1,29,000/- to the complainant after making a deduction of Rs.1,00,000/- on account of wreck/salvage value of the vehicle. From a perusal of the said report of the surveyor, we also find that the value of salvage has been assessed as Rs.6000/-. The OPs have claimed that Rs.1,00,000/- has been deducted on account of value of salvage on the basis of quotations as received from the Junk dealer. We do not agree with the contentions of the OPs with regard to the alleged quotations of the Junk dealer as no such quotations have been made available by the OPs on the record. The surveyor has not appended the quotations of the junk dealer with his aforesaid interim report Annexure R1/2. Moreover we are clueless as to when and how the quotations from the junk dealer were invited by the OPs. The particulars of the junk dealer i.e. his name, address etc., who has allegedly given his quotation of Rs.1,00,000/- of the salvage of the accidental car are not available on record.  In the absence of any such particulars of the Junk dealer as also his alleged quotation amounting to  Rs.1,00,000/- , it would not be fair and reasonable to deduct the amount of Rs.1,00,000/- on account of  salvage value.

8.             At this juncture it would be pertinent to mention here that the surveyor vide his interim report Annexure R-1/2 has assessed the salvage value as Rs.6,000/- and thus we treat the same as fair and reasonable in the facts and circumstances of the case as narrated above.  

9.             In view of the aforesaid discussion, we conclude that there has been lapse and deficiency on the part of OPs No.1 to 3 while delivering the service to the complainant. Hence, the complainant is entitled to relief.

10.            As a sequel to above discussion, we partly allow the present complaint against OPs No.1 to 3 and dismiss the same against OPs No. 4 & 5. The OPs No. 1 to 3 are directed to comply with the following directions:-

1. To refund a sum of Rs.2,23,000 /-(Rs.230000-1000-6000) along with interest @ 9% per annum to the complainant w.e.f. the date of filing of this complaint till realization.
2. To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/-as cost of litigation.

 

11.            The OPs No.1 & 3 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 Announced:29.07.2019

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                   Dr. Pawan Kumar Saini                                       

Member