Haryana

Ambala

CC/271/2020

Dr. Rajesh Loomba - Complainant(s)

Versus

The New India Assurance Co Ltd - Opp.Party(s)

Pardeep Batra

16 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :    271 of 2020

                                                          Date of Institution           :       6.11.2020

                                                          Date of decision    :     16.08.2022.

Dr. Rajesh Loomba, Loomba Hospital, Jagadhri Road, Ambala Cantt (Haryana)                                                                                                                                                                                         ……. Complainant.

                                                Versus

The New India Assurance Company Ltd, through its Divisional Manager, Divisional office, 172-C, Luxmi Niswas, Rai Market, Ambala Cantt.

                                                                                       ….…. Opposite Parties.

 

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Pardeep Batra, Advocate, counsel for the complainant.

                             Shri Mohinder Bindal, Advocate, counsel for the OP.  

 

Order:        Smt. Neena Sandhu, President

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) and prayed that the complaint may kindly be accepted and the balance amount of Rs.84,069/- along with interest and compensation to the tune of Rs.2 lacs be directed to be paid by the opposite party to the complainant in the interest of justice, law and equity.  

2.           Brief facts of the case are that the complainant is the registered owner of Car bearing registration No. HR01-AK-1301 (in short the vehicle). The said vehicle was insured with the OP vide policy no.35350031170300003909, valid for the period from 31-12-2017 to 30-12-2018. It was a comprehensive policy, which was obtained on making payment of premium of Rs.20,476/- as premium. On 22.04.2018, the said vehicle met with an accident in Hyderabad and was damaged badly. The matter was immediately informed to the OP and accordingly the surveyor was appointed by it, who inspected the damaged car and after accessing the loss,   ordered the repair of the car on 25.4.2018. On 12.6.2018 the vehicle was ready after repair. The complainant informed the OP and as such, its representative again visited the workshop and received the repair bill amounting to Rs.4,05,756/- and the said vehicle was delivered to the complainant after making the full payment of the said bill. Thereafter, on 9.7.2018 the complainant received the cheque amounting to Rs,3,21,687/- from the OP towards full and final payment, against actual amount of Rs.4,05,756/-. As such, the complainant received the said cheque under protest and thereafter sent number of representations in the matter but to no avail. The act and conduct of the OP in not making the entire claim amount, as the vehicle in question was insured comprehensively, amounts deficiency in service. Hence, the present complaint.
3.           Upon notice, OP appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, not come with clean hands and suppressed the material facts etc. On merits, while admitting factual matrix of the case with regard to the fact that the vehicle in question was under insurance cover, when it met with an accident, as mentioned in the consumer complaint by the complainant, it has been stated that  the claim of the complainant was duly entertained in due course and an independent IRDA approved insurance surveyor & Loss assessor Sh. Sushil Chander Pascal was deputed by the Regional Office, Hyderabad where the claim in question was reported by the son of the insured complainant who was driving the vehicle in question at the time of accident. After having the estimate in detail from the authorized workshop M/s Volkswagen Hyderabad where the said vehicle was parked by the son of the insured Mr. Abhinav Loomba for repair, the said surveyor inspected the said vehicle minutely and had the photographs of the vehicle as proof of loss as per norms. After giving consideration to the loss associated with the incident in question and as per insurance byelaws and in consultation with the said workshop and the son of the insured complainant, the surveyor assessed the payable loss to the rune of Rs.3,21,687/-. At the same time, the said surveyor apprised the son of the complainant, about the limitations of the parts and repairs to be allowed as per insurance byelaws and that the wear & tear and the consumable parts like nut bolts etc. are not payable under any claim. However, since the insurance policy availed by the complainant was “No Depreciation policy” so no depreciation was applied upon any part or labour etc. and the same amount which was charged by the workshop was paid to the complainant as it is. The parts which were not claimed by the workshop in the detailed estimate dated 26.04.2018 and its related labour which was otherwise shown later in the invoice was denied by the surveyor being not payable legally being not proved and associated with the alleged accident. After considering all the facts in detail, he assessed the final payable loss without any discrimination vide his detailed report dated 17.06.2018. The opposite party recommended and approved the payable claim to the tune of Rs. 3,21,687/- as per the assessment made by the surveyor by ignoring/denying a sum of Rs.7222/- being the difference in bills amount of Rs.3135/-, depreciation on tyre amounting to Rs.2587/- and Rs.1500/- on account of towing due to non furnishing of towing bill in original. The complainant was very much aware about the scope and limitations of the OP while receiving the compensation amount on 09.07.2018 and was thereafter apprised about complete details of assessment vide letter dated 07.02.2019 & 27.02.2019 in response to his letter dated 24.01.2019 & 23.02.2019. The complainant was even apprised in detail again vide letter dated 26.03.2019 when he sought clarification in this regard by writing to higher offices vide his letter dated 09.03.2019. It is the basic principle of insurance and assessment that the report of surveyor is based upon the estimate/supplementary estimate of repair submitted by the insured/workshop to fix the liability of the insurer and the insured so that no manipulation or exaggeration of loss can be initiated from any side and the parts subject to wear and tear with usage and consumables are also not to be the part of any claim. Moreover, the parts or the repair of a particular job is also liable to be rejected and out of assessment which does not coincide with the nature and cause of loss. Thus besides the cost of such parts which are not part of the estimate and are consumable parts, its associated labour charges are also not considered thus there was a difference in the amount invoiced by the workshop and the assessment made by the surveyor and there was no discrimination or discrepancy in the assessment and payment against the claim of the complainant as alleged. Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint with heavy costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-16 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP tendered affidavit of Shri K.K. Sachdeva, Sr. Divisional Manager and Authorized Signatory, New India Assurance Co. Ltd., Divisional Office, Ambala Cantt. as Annexure OP-A, alongwith documents Annexure OP-1 to OP-7 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the vehicle in question was insured with the OP under “No Depreciation” category, for which he paid additional amount of premium, therefore, the OP was not entitled to deduct any amount towards deprecation or labour charges, even it was mentioned in the estimate or not, but, charged by the repairer, yet, by doing so, the OP has indulged into unfair trade practice and was also deficient in providing service. As such, the remaining amount is payable by the OP to the complainant. 
7.           On the contrary, the learned counsel for the OP submitted that  the claim amount of Rs.3,21,687/- has rightly been paid to the complainant, in accordance with the calculation arrived at by the Surveyor deputed by it, strictly as per terms and conditions of the insurance policy in question, therefore, the complainant is not entitled to any other amount. 
8.           It may be stated here that OP paid the claim amount of Rs.3,21,687/- against the claim amount of Rs.4,05,756/-. The plea of the complainant is that since the policy in question was no depreciation policy therefore, the OPs are liable to pay the remaining amount of Rs.84,069/-.   
9.           It is significant to mention here that to justify its stands of deducting the aforesaid part amount of Rs.84,069/-, learned counsel for the OP has placed reliance on the surveyor’s report dated 17.06.2018, Annexure OP-5 and stated that the cost of such parts which were not the part of the estimate and are consumable parts, its associated labour i.e. Rs.61,381/- (Rs.35,940.87 plus (+)  Rs.25,440.97) and also supplementary estimate of Rs.24,600/- towards repair of floor which was not visible externally, was not payable. We have also gone through the surveyor’s report dated 17.06.2018, Annexure OP-5 and found that the Surveyor has deducted the total amount of Rs.35,940/- towards consumable parts like wheel hub, bearing, ring, bolts, nuts, screws, adhesives, rubber valves, frame, sealants, support, clips, distilled water, rivets, brackets, couplings, bulb, trim etc. on the ground that the same were not  a part of the initial estimate and are not allowed, yet, billed by the repairer. Similarly, the labour charges to the tune of Rs.25,440/- for carrying out the work or fender, fender painting, run board dent and its paint etc.  have also been  deducted by the surveyor, though some amount towards windscreen and body sealant was approved by him. Similarly, it is also found that the surveyor has deducted amount of Rs.5000/- towards expected salvage value; Rs.2000/- towards compulsory excess and at the same time, added only an amount Rs.1500/- towards towing charges against Rs.7500/- claimed by the complainant. In this manner, the surveyor came to the conclusion that the complainant is entitled to Rs.3,21,687/- only against amount of Rs.4,05,756/- paid by him.
10.           Under these circumstances, the only question which needs to be decided by this Commission is, as to whether, the  OP was justified in deducting partial amount of claim  amount to the tune of Rs.84,069/- i.e. (Rs.4,05,756/-  (-)  Rs.3,21,687/-), on the ground that the same was not payable on account of the reason that  cost of some parts referred to above, which were not the part of the estimate and are consumable parts, its associated labour i.e. Rs.61,381/- (Rs.35,940/- plus (+) Rs.25,440/-) and also supplementary estimate of Rs.24,600/- towards repair of floor which was not visible externally, was not payable. Before coming to any conclusion, we need to refer the relevant part of the insurance policy/cover note Annexure C-16, as under:-

“"PRIVATE CAR PACKAGE POLICY –ENHANCED COVER”

(Endorsement Wording for Add on cover NIL Depreciation)

 

UIN Number -

 

THE FOLLOWING ENDORSEMENT IS TO BE ATTACHED TO THE POLICY WHEN THE "PRIVATE CAR PACKAGE POLICY -ENHANCED COVER (NIL Depreciation Cover)"IS PROVIDED WITH ADD ON COVER OF NIL DEPRECIATION:

PRIVATE CAR PACKAGE POLICY-ENHANCED COVER (NIL Depreciation Cover) ENDORSEMENT ATTACHED TO AND FORMING PART OF POLICY NO. 35350031170300003909 Additional Premium: Rs.5400

 

Notwithstanding anything contained to the contrary in the within mentioned policy it is hereby declared and agreed that subject to the insured having paid the additional premium as applicable the cover under Section I of the within mentioned policy is hereby extended to the effect that in the event of any partial loss claim admissible under this policy no depreciation shall be deducted, except on tyres and tubes which are damaged in the accident and are replaced…….”

11.           A bare perusal of the afore-extracted condition of the policy in question clearly goes to show that over and above the normal premium amount, the complainant has paid an additional premium amount of Rs.5400/- to the OP towards ADD ON COVER OF NIL DEPRECIATION under which policy was extended to the effect that in the event of any partial loss claim admissible under the said policy, no depreciation shall be deducted, except on tyres and tubes which are damaged in the accident and are replaced.  Thus, in our considered opinion by receiving the additional amount of Rs.5400/- from the complainant, he was made to believe that Zero Depreciation is an add-on cover that will  nullify the depreciation value of his vehicle components during claim settlement and that it will cover complete coverage without considering the depreciation amount of the damaged parts of the vehicle and that he need not pay the depreciation value of such parts and receive a 100% claim amount apart from any specified deductibles or other applicable costs.
12.           In this view of the matter, it is held that by deducting substantial amount, referred to above, towards  some parts of the vehicle referred to above and its associated labour i.e. Rs.61,381/- (Rs.35,940/- plus (+)  Rs.25,440/-) and also supplementary estimate of Rs.24,600/- towards repair of floor of the vehicle, the Surveyor has fell into a grave error. In his surveyor report, the Surveyor has failed to justify, as to how and why he has deducted the amount towards replacement of the said parts and also the cost of its labour, despite the fact that the vehicle in question was insured under ENHANCED COVER- NIL Depreciation. Whether the said parts were shown in the estimate or not, the fact of the matter is that it is clearly evident from the Tax Invoice dated 12.06.2018, having been issued by the repairer-PPS Motors Pvt. Ltd. that an amount of Rs.4,05,756/- has been incurred on repair of the said vehicle, which admittedly has been paid by the complainant, yet, against the said amount only an amount of Rs.3,21,687/- has been paid by the OP to the complainant. Similarly, the  said surveyor has also not justified his  stand in deducting an amount of Rs.6000/- out of Rs.7500/- actually paid by the complainant towards towing charges of his  accidental vehicle from the spot of accident to the workshop. Had the surveyor in some doubt with regard to the photocopy of towing invoice supplied by the complainant, he could have easily visited the transporter about authenticity thereof, but he did not do so. This action on the part of the surveyor is not justified. Similarly, the surveyor has failed to justify in his report as to how he has deducted the amount of Rs.5000/- towards salvage and Rs.2000/- towards excess clause, especially when the policy in question was issued in respect of the vehicle in question under ENHANCED COVER- NIL Depreciation.
13.           In the peculiar facts and circumstances of this case, we are of the considered opinion that since the policy in question was no depreciation policy, as such, it was not required to make any deductions on the ground of depreciation of any part of the vehicle, except on tyres and tubes which are damaged in the accident and are replaced/repaired. It is therefore held that there are some flaws in the surveyor's report and as such the same is not binding upon the complainant. The Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" has held that that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. In this view of the matter, we are of the considered opinion that the complainant is held entitled to an amount of Rs.84,069/-.
14.  In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-
    1. To pay Rs.84,069/-, to the complainant alongwith interest @5% p.a. from the date of filing of the complaint i.e 06.11.2020, till its realisation.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/-, as litigation expenses.

          The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 16.08.2022.

 

 

     (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

         Member                             Member                            President