M/s Ebony Pharma, through Shri K.K. Middha, Partner, 601, E/13 Society No. 79, Sector 20, Panchkula.

……Appellant/Complainant.

Versus

[1]   The New India Assurance Co. Limited, SCO No. 58, Sector 26-C, Chandigarh.

[2]   The New India Assurance Co. Limited, SCO No. 36-37, Sector 17-A, Chandigarh – 160017.

              ....Respondents/Opposite Parties.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. K. K. Midha, Partner of M/s. Ebony Pharma, appellant in person.

Sh. Sukaam Gupta, Advocate for the respondents.

PER MRS. NEENA SANDHU, MEMBER.

              This appeal is directed against the majority order dated 17.08.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint of the appellant (complainant).

2.           One Member of the District Forum, recorded separate order and disposed of the complaint with the following directions to the parties: -

“[a]  The Complainant shall allow the repairer to repair the vehicle in terms of the estimate/ surveyor’s report. The repairer shall present the final bill to the Complainant as well as the Opposite Parties after repair.

[b]   In case the final bill is beyond 75% of the IDV, the Opposite Parties shall make payment for the Complainant’s claim by treating the vehicle as total loss and thereby making payment in terms of the IDV of the vehicle as per terms of the policy.

[c]   In case, the repair bill is less than 75% of the IDV, then the Opposite Parties shall make payment towards repair as per surveyor’s report in terms of the policy after allowing for depreciation as per rules. The balance amount will be paid by the Complainant.

[d]   No costs.”

3.           The facts, in brief, are that vehicle of the Complainant was comprehensively insured with the Opposite Parties, for the period 14.04.2010 to 13.04.2011, for a sum of Rs.2,94,000/-. It was stated that on 15.02.2011, the car was found burning at the place, where it was parked by the neighbour of Sh. K. K. Middha, Partner. It was further stated that intimation was given to the Fire Brigade and efforts were made to control the fire, but the whole engine of the vehicle was burnt and many parts of the engine including battery, rubber parts etc. completely melted. It was further stated that intimation of the claim was given to the Opposite Parties, and report was also lodged in Police Station, Sector 20, Panchkula. It was further stated that a spot survey was conducted by the Surveyor, deputed by the Opposite Parties, on 16.2.2011 and an estimate was obtained from Joshi Auto Zone, authorized Sales and Service repairers. It was further stated that the claim form, duly completed, alongwith police report, fire brigade report and other relevant documents, were also submitted to the Opposite Parties. It was further stated that survey was conducted by Sh. R.S. Arora, who assured that the claim would be settled soon. It was further sated that M/s Joshi Auto Zone gave an estimate of repair in the sum of Rs.5,85,564/- against the IDV of Rs.2,94,000/-, besides parking charges @250/- per day. It was further stated that Shri K.K. Middha met the surveyor Sh. R.S. Arora, at the premises of M/s Joshi Auto Zone, on 06.04.2011, discussed about the claim, and another estimate was got prepared from the same Workshop. It was further stated that no copy of the estimate was ever supplied by the Surveyor to the Complainant. It was further stated that Sh. K.K. Midha requested the Opposite Parties to treat the vehicle as a total loss, as per the estimate given by the repairer to him, as well as according to the Policy conditions. It was further stated that despite many requests, the Opposite Parties, never supplied either the surveyor’s report or the new estimate to Sh. K.K. Midha. It was further stated that the complainant received a letter from the Opposite Parties, informing therein, that due to non cooperation of the complainant, the claim was filed as no claim. It was further stated that the act and conduct of the Opposite Parties, in closing the claim, as no claim amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties to treat the vehicle as a total loss, and pay the full claim amount of Rs.2,94,000/- alongwith interest @18% per annum, from the date of claim till actual payment; pay a sum of Rs.50,000/- as compensation; Rs.20,000/- on account of delayed settlement and Rs.10,000/- as litigation expenses, was filed.

4.           The Opposite Parties, in their written version, stated that on receipt of intimation regarding loss to the vehicle Sh. Manoj Kukreja was deputed to conduct spot survey of the vehicle on 16.02.2011 (Annexure R-1). It was further stated that after receipt of spot survey, Sh. R.S. Arora was deputed as Surveyor on 25.02.2011 to conduct the final survey and assess the loss. It was further stated that the Complainant was asked to shift the vehicle to the premises of the repairer. The car was shifted to the workshop of Joshi Auto Zone on 18.03.2011. It was further stated that the loss was discussed by the Surveyor, with Shri K.K. Middha, representative of the Complainant, in the Workshop on 06.04.2011 and a revised estimate was prepared by the repairer as the earlier estimate, given by the same repairer, was wrong. It was further stated that the surveyor assessed the amount payable against the loss at Rs.1,39,770/- but, unfortunately, till date no instructions had been given by the Complainant to start the repair of the vehicle. It was further sated that as per the report of the Surveyor, the assessed amount of repairs did not exceeded 75% of the IDV of the vehicle, which was in repairable condition. It was further stated that as per terms and conditions of the policy, a vehicle could be treated as total loss only if the cost of repair exceeds 75% of the IDV. It was further stated that despite requests to the Complainant, by the surveyor, no permission was granted to the repairer, to start the repair of the vehicle. However, the Complainant was only pressing for settlement of the claim as total loss. It was further stated that, as the Complainant, remained silent, the Opposite Parties closed the claim file, as no claim, intimation whereof, was also given to him, vide letter dated 21.07.2011 (Annexure R-12). It was further stated that the estimate annexed by the Complainant, alongwith the complaint was baseless, as it was prepared by the repairer, on imaginary grounds, without inspecting the actual condition of the vehicle, while the estimate dated 6.4.2011 was prepared by the same repairer, after inspecting the condition of the vehicle and discussion with the surveyor, in the premises of the repairer.  It was further stated that the Complainant was never forced to move the vehicle to M/s. Joshi Auto Zone and, hence, there was no deficiency in service, on the part of the Opposite Parties. It was further stated that Complainant had himself formed an opinion that the vehicle was not fit for repair, whereas the surveyor’s opinion and report was otherwise. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining allegations, contained in the complaint were denied. 

5.           The parties led evidence, in support of their case.

6.           After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, vide the majority order, as sated above.

7.           Feeling aggrieved, the appellant/complainant, has filed the instant appeal.

8.           We have heard Sh. K. K. Midha, Partner of the appellant, the Counsel for respondents No.1 and 2, and, have gone through the evidence and record of the case, carefully.

9.           Sh. K. K. Midha, Partner of the appellant/complainant submitted that he took a comprehensive insurance, for his  vehicle, for the period 14.04.2010 to 13.04.2011, in the sum of Rs.2,94,000/-. The said car got burnt on 15.02.2011. Intimation was duly given to the respondents/Opposite Parties, which appointed a spot surveyor, who submitted his report (Annexure R-1). Thereafter, the car was towed to the authorized workshop, for repairs on 23.02.2011, which gave an estimate of repair for Rs.5,85,000/-. As per this estimate, it was a total loss. He further submitted that as Joshi Auto Zone was charging Rs.250/- daily as parking charges, therefore, the car was brought back by the appellant/complainant. He further submitted that the Opposite Parties, appointed another surveyor, who conducted final inspection of the vehicle, in question, and submitted his report assessing the loss to the tune of Rs.1,39,770/-, under pressure and influence of the Opposite Parties. He further submitted that since this claim was not acceptable to the complainant, the matter was agitated with the Opposite Parties, with the request to treat the vehicle as a total loss, but they did not pay any heed to its request and closed the file as ‘no claim’ in any arbitrary manner.

10.         On the other hand, the Counsel for the respondents/ Opposite Parties, submitted that immediately after getting the information regarding the incident, a surveyor was appointed, who conducted the spot survey. Thereafter, final survey was conducted and as per the final survey report, the loss was assessed to the tune of Rs.1,39,770/-. He further submitted that as this loss was less than 75% of the Insured Declared Value of the vehicle, it (vehicle) could not be treated as a total loss. He further submitted despite numerous requests, made to the Complainant, by the Surveyor, no permission was granted by him to the repairer to start the repair of the vehicle. He further submitted that the estimate of repair, annexed by the appellant/complainant, alongwith the complaint, was imaginary and without inspecting the actual condition of the vehicle. According to him, therefore, the claim was closed as ‘no claim’, and intimation of the same, was duly given to the appellant/ complainant vide letter dated 21.07.2011 (Annexure R-12). He further submitted that the impugned order, passed by the District Forum, dismissing the complaint, is legal and valid.

11.         Admittedly, after getting the information of the burning of the vehicle, in question, the Opposite Parties, appointed a spot surveyor and subsequently, final survey was also conducted. As per the final survey report/estimate, the loss assessed was to the tune of Rs.1,39,770/-, whereas, the Insured Declared Value of the vehicle, in question, was Rs.2,94,000/-. As the loss assessed by the surveyor, was less than 75% of the total Insured Declared Value of the vehicle, thus, as per the terms and conditions of the Insurance Policy, the vehicle could not be treated as a total loss, as alleged by the appellant/complainant. Since, the vehicle, in question, was in repairable condition, the Opposite Parties, agreed to get it repaired, but the same could not be repaired because the appellant/complainant did not give consent for repairs. The complainant is entitled to a sum of Rs.1,39,770/-. However, the Opposite Parties, without affording an opportunity to the complainant, by asking it to collect a sum of Rs.1,39,770/- (the loss assessed by the surveyor), arbitrarily, closed the file as ‘no claim’ and it (complainant) was deprived of getting the genuine claim. To this extent, the respondents/Opposite Parties were deficient, in rendering service, to the complainant.

12.         Admittedly, the loss was assessed by the Surveyor within six months, from the date of the fire incident. Thus, there was no delay on the part of the Surveyor in assessing the loss. Since, the Opposite Parties failed to write any letter to the complainant, to accept the amount, so assessed by the surveyor, therefore, it was entitled to interest on the amount of Rs.1,39,770/- from 21.07.2011, when the claim was arbitrarily closed as ‘no claim’ vide Annexure R-12.

13.         On the other hand, the estimate of repair, given by the authorized service station to the tune of Rs.5,85,000/-, is more than double the Insured Declared Value of the vehicle, in question. Hence, the plea of the appellant/complainant that it is entitled to a sum of Rs.5,85,000/-, is not sustainable.

14.         Since, the respondents/Opposite Parties, willfully withheld the amount, assessed by the surveyor and arbitrarily closed the claim as ‘no claim, the complainant is definitely entitled to compensation, for this act of deficiency, in rendering service, on their part. In our considered opinion, compensation of Rs.15,000/-, on this count would be adequate, to meet the ends of justice.

15.         No other point, was urged, by the appellant, as also by the Counsel for the respondents.

16.         The impugned order, therefore, suffers from illegality and perversity, warranting the interference of this Commission.

17.         For the reasons recorded above, the appeal filed by the appellant/complainant, is accepted with costs. The impugned majority order, rendered by the District Forum, is set aside, and the complaint filed by the appellant/complainant, before the District Forum, is partly allowed. The respondents/Opposite Parties are directed as under: -

“(i)   to pay Rs.1,39,000/- to the complainant, alongwith interest @9% per annum from 21.07.2011 (the date when his claim was closed as ‘no claim’;

(ii)   to pay Rs.15,000/- to the complainant, as compensation, for deficiency, in rendering service;

(iii)  to pay Rs.5,000/- to the complainant, as costs of litigation.

       This order be complied with, by the appellants/Opposite Parties, within a period of 45 days, from the date of receipt of its certified copy, failing which, they would be liable to pay the amounts mentioned in Clauses (i) and (ii) (i.e. Rs.1,39,000 + Rs. 15,000) alongwith interest @12% p.a. instead of 9% p.a. from the date of default till the date of actual payment to the appellant/complainant, besides paying litigation costs as aforesaid.”

18.         Since the appeal has been accepted, and the majority order of the District Forum, has been set aside, the minority order, passed by the Single Member, is modified to the extent indicated above.

19.         Certified Copies of this order be sent to the parties, free of charge.

20.         The file be consigned to Record Room, after completion.

Pronounced.

8^th January, 2013.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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STATE COMMISSION

(First Appeal No.358 of 2012)

Argued by:  Sh. K. K. Midha, Partner of M/s. Ebony Pharma, appellant in person.

Sh. Sukaam Gupta, Advocate for the respondents.

Dated the 8^th day of January, 2013.

ORDER

              Vide our detailed order of even date, recorded separately, this appeal filed by the appellant/complainant, has been partly accepted with costs, as per the directions.

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