Punjab

Faridkot

CC/16/83

Neetu Chabra - Complainant(s)

Versus

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

Ashu Mittal

19 Dec 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      83

Date of Institution:  29.03.2016

Date of Decision :   19.12.2016

 

Neetu Chabra w/o Davinder Singh r/o # 2/94 Nandeyana Gate, Faridkot Tehsil and District Faridkot.                                                                                                          

...Complainant

Versus

1. The New India Assurance Company Ltd, Baba Farid Market, Shop No. 69,70, Opposite Kotwali, Faridkot through Incharge.

2. The New India Assurance Company Bldg, 87 M G Road, Fort, Mumbai 40001 through M D.

                               .....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,              

               Sh P Singla, Member.

 

Present: Sh Ashu Mittal, Ld Counsel for complainant,

              Sh Atul Gupta, Ld Counsel for OPs.

 

(Ajit Aggarwal, President)

                                                           Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of Rs 4,01,834/- as insurance amount alongwith toeing charges worth Rs 27,000/- and for further directing OPs to pay Rs.50,000/- as compensation for harassment and mental agony besides litigation expenses.

2                       Briefly stated, the case of the complainant is that complainant is the owner of vehicle make Tata 4018 bearing Registration No. PB04 R 9661 and he got insured the said vehicle vide insurance policy valid from 12.01.2012 to 11.01.2013 on paying premium of Rs.40,927/-. On 15.07.2012, vehicle of complainant met with an accident near Makhal Toll Tax Plaza Padhanpur Kandla Highway. In that accident vehicle of complainant was badly damaged and driver immediately informed complainant regarding accident over phone. In turn, complainant also immediately informed OPs, who sent a Surveyor on 16.07.2016. Said Surveyor of OPs inspected the vehicle, took photographs and told complainant to get the same repaired and on instructions of Surveyor, complainant carried the vehicle by himself paying the toeing charges to Nayyar Motors, Kotkapura on 3.08.2012 for repairs. Said Nayyar Motors, Kotkapura after checking the vehicle gave report that damaged parts can not be repaired due to being twisted and need to be replaced and then, prepared the estimate. Complainant informed about the estimate to OPs, who again sent their Surveyor namely Vinod Kumar and Associates of Ludhiana. After checking the vehicle and estimate bill, said Surveyors allowed complainant to get replaced the damaged parts and on instructions of Surveyor of OPs, damaged part of vehicle of complainant were replaced and complainant had to incur expenditure of Rs.4,01,834/- for repair and replacement of damaged parts and thereafter, complainant submitted bill for processing the insurance claim. In October 2012, OPs again sent a Surveyor, who also inspected the vehicle and confirmed about the repaired or replaced damaged parts. Complainant made many requests to OPs to make payment of her genuine claim, but they kept putting off the matter on one pretext or the other. After that complainant filed complaint with this Forum and this Forum vide order dated 19.05.2015 directed complainant to submit all the requisite documents to OPs and in compliance of this order, complainant furnished all the documents with OPs, but vide letter dated 2.09.2015, they closed the file as ‘No Claim’ alleging that complainant did not complete the claim formalities. Complainant again submitted all the documents to OPs alongwith letter dt 7.09.2015, but despite this, OPs have not made payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice and it has caused harassment and mental tension to her for which she has prayed for directing the OPs to pay Rs.4,01,834/- as insurance amount alongwith toeing charges of Rs 27,000/- and Rs.50,000/-as compensation besides litigation expenses incurred by him. Hence, the complaint.

3                       The counsel for complainant was heard with regard to admission of the complaint and vide order dated 8.04.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                  On receipt of the notice, the OPs filed written statement taking preliminary objections that complaint is false, frivolous and vexatious and complainant has not come to the Forum with clean hands and he has concealed the material facts from this Forum. It is averred that complaint involves complicated questions of law and facts, which cannot be decided in summary proceedings and are required to be referred to Civil Court. Moreover, complainant is not the consumer of OPs as he was using the vehicle in question for commercial purpose. It is further averred that vehicle was never damaged nor any loss of Rs.4,01,834/-was caused to it. After intimation by complainant, Ops appointed Surveyor, who assessed the loss to the tune of Rs.1,00,136/- including salvage value of Rs.2,236/-and thus, loss assessed can not exceed Rs.1,00,136/-. It is further averred that complainant is guilty of non co-operation as insurance is a bilateral contract and both the parties are bound by its terms and conditions and insured is bound to furnish all the requisite documents and information to OPs for settlement of claim. Vide letters dated 23.11.2012; 12.12.2012; 31.12.2012 and 20.02.2013, complainant was called upon to furnish documents mentioned in letters, but he did not do so and therefore, on 20.02.2013, claim of complainant was declared as ‘No Claim’. Moreover, complaint filed by complainant is time barred. It is altogether denied by OPs that they ever asked complainant to get repaired or replaced the damaged parts from Nayyar Motors, Kotkapura. It is further averred that no such loss of Rs.4,01,834/-was ever caused to complainant. However, on merits, OPs have taken the same pleadings as in terms of preliminary objections and refuted all the allegations levelled by complainant being wrong and incorrect and further reiterated that there is no deficiency in service on the part of answering OPs. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                     Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant as Ex.C-1and documents Ex C-2 to C-12 and then, closed his evidence.

6                      In order to rebut the evidence of the complainant, the ld counsel for OPs tendered in evidence, affidavit of D D Aggarwal as Ex OP-1,2/1 and report Ex OP-1,2/2 and then, closed the same on behalf of OPs.

7                      We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

8                     Ld Counsel for complainant argued that complainant got insured her vehicle make Tata 4018 bearing Registration No. PB04 R 9661 with OPs vide insurance policy valid from 12.01.2012 to 11.01.2013 on paying premium of Rs.40,927/-. Unfortunately, on 15.07.2012, vehicle of complainant met with an accident and in that accident vehicle of complainant was badly damaged. Driver immediately informed complainant regarding accident over phone and in turn, complainant immediately informed OPs, who sent a Surveyor on 16.07.2016. Said Surveyor of OPs inspected the vehicle, took photographs and told complainant to get the same repaired and on instructions of Surveyor, complainant carried the vehicle by herself paying the toeing charges to Nayyar Motors, Kotkapura on 3.08.2012 for repairs. Nayyar Motors, Kotkapura after checking the vehicle gave report that damaged parts can not be repaired due to being twisted and need to be replaced and then, prepared the estimate. Complainant informed about the estimate to OPs, who again sent their Surveyor namely Vinod Kumar and Associates of Ludhiana, who after checking the vehicle and estimate bill allowed complainant to get replaced the damaged parts and on instructions of Surveyor, damaged part of vehicle of complainant were replaced and complainant incurred Rs.4,01,834/- for repair and replacement of damaged parts and thereafter, complainant submitted bill for processing the insurance claim. In October 2012, OPs again sent a Surveyor, who also inspected the vehicle and confirmed about the repaired or replaced damaged parts. Complainant made many requests to OPs to make payment of her genuine claim, but they kept putting off the matter on one pretext or the other. After that complainant filed complaint with this Forum and vide order dated 19.05.2015 of this Forum, complainant was directed to submit all the requisite documents to OPs and in compliance of this order, complainant did so, but vide letter dated 2.09.2015, they closed the file as ‘No Claim’ alleging that complainant did not complete the claim formalities. Complainant again submitted all the documents to OPs alongwith letter dt 7.09.2015, but despite this, OPs have not made payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice and it has caused harassment and mental tension to her. Complainant has prayed for accepting the claim alongwith compensation and has stressed on documents Ex C-1 to 12.

9                         In reply to the arguments of complainant, ld counsel for OPs argued that present complaint is false, frivolous and vexatious and complainant has not come to the Forum with clean hands and he has concealed the material facts from this Forum. It is averred that complaint involves complicated questions of law and facts, which can not be decided in summary proceedings and are required to be referred to Civil Court. Moreover, complainant is not the consumer of OPs as she was using the vehicle in question for commercial purpose. Denying all the allegations of complainant, it is  averred that vehicle was never damaged nor any loss of Rs.4,01,834/-was caused to it. After intimation by complainant, Ops appointed Surveyor, who assessed the loss to the tune of Rs.1,00,136/- including salvage value of Rs.2,236/-and thus, loss assessed can not exceed Rs.1,00,136/-. It is further averred that complainant is guilty of non co-operation as insurance is a bilateral contract and both the parties are bound by its terms and conditions and insured is bound to furnish all the requisite documents and information to OPs for settlement of claim. Vide letters dated 23.11.2012; 12.12.2012; 31.12.2012 and 20.02.2013, complainant was called upon to furnish documents mentioned in letters, but she did not supply the same and therefore, on 20.02.2013, claim of complainant was declared as ‘No Claim’. Moreover, complaint filed by complainant is time barred. It is altogether denied by OPs that they ever asked complainant to get repaired or replaced the damaged parts from Nayyar Motors, Kotkapura. It is further averred that no such loss of Rs.4,01,834/-was ever caused to complainant. Ld counsel for OPs have refuted all the allegations levelled by complainant being wrong and incorrect and further reiterated that there is no deficiency in service on the part of answering OPs. He has stressed on documents Ex OP-1 and 2.

10                 The case of the complainant is that her insured vehicle met with an accident during the existence of Insurance Policy and she gave due intimation regarding it to OPs. OPs appointed Surveyor, who assessed loss and asked her to get repaired and replaced the damaged parts of vehicle from Nayyer Motors, Kotkapura. Complainant did so and got repaired and replaced the damaged parts of vehicle by spending an amount of Rs.4,01,834/- and then submitted all the documents for processing the claim with OPs. Despite repeated requests by complainant and even on directions of this Forum, complainant again submitted all the requisite and relevant documents to OPs, but they kept denying the claim on the ground that complainant has not furnished all the required documents with them. In reply, Ops allege that complainant is guilty of non cooperation as he has not furnished the requisite documents to them for processing the claim. To prove the pleadings of complainant, ld counsel for complainant has stressed on documents Ex C-5 to 11, which are all requisite documents for processing the insurance claim and complainant has already submitted all the documents with Ops. Ex C-2 is the copy of order passed by this Forum and as per instructions of this Forum, complainant furnished all documents with OPs. Ex C-4 is the letter written by complainant to OPs, clearly showing the facts that she has already supplied required documents to OPs and has also complied with the direction of this Forum.  Act of OPs in closing the claim of complainant as ‘No Claim’ vide letter dt 2.09.2015, is altogether wrong and illegal and amounts to deficiency in service. On the contrary, OPs have produced no documents to prove their pleadings.

11                                  From the foregoing discussion, this Forum is of considered view that it is not disputed between the parties that complainant is the owner of vehicle in question which was insured with OPs and same met with an accident during the insurance period. The complainant gave intimation regarding the accident to OPs, who appointed a Surveyor to assess the loss to the vehicle. The dispute between the parties is regarding the extent of loss caused to vehicle in accident. As per complainant, on the instructions of Surveyor, he brought his vehicle to Nayar Motors for repairs, who gave estimate to the tune of Rs.5,71,332/-. The copy of estimate is Ex C-8, whereas for actual repairs of vehicle he spent Rs.4,01,834/- and paid to Nayar Motors. The copy of tax invoice is Ex C-10. On the other hand, the OPs submitted that on the intimation they appointed Surveyor to assess the loss to the vehicle and Surveyor vide his Survey Report Ex OP-1, 2/2 assessed the loss to the vehicle in question to the tune of Rs.1,00,136/- and complainant is entitled for only this much amount and nothing more than it. The main dispute between the parties is regarding loss to the front cabin of the vehicle. As per complainant, the Repairer gave opinion that cabin of the vehicle cannot be repaired and it can only be replaced and for the same Repairer gave estimate of Rs.4,45,800/- and in final bill price of cabin body shell Rs.3,05,000/-and Rs.12,000/-as labour charges for replacement. On the other hand, the OPs submitted that as per report of Surveyor, there is no need to replace the cabin and it can be very well repaired. They put reliance on Survey Report Ex OP-1, 2/2. We have carefully gone through this report. In this Survey Report, the Surveyor observed that since the vehicle had sustained impact on front portion due to result of which cowl accessories are pushed backwards after damaging its mounting brackets. Both the front side show panels, front panel, left door, back wall, cabin floor sheets and bottom support channels were found bent/damaged. Insured was insisting very hard for the                  replacement of the bare cowl accessory since the vehicle was hardly seven months old and was of the opinion that the repairing of cowl accessory will affect its market value. On the request of insured, the matter was discussed with R.O. Ludhiana, but ultimately decided that repair of cowl accessory was very reasonable and accordingly, loss was assessed keeping the above facts in mind. The decision taken by R.O. Ludhiana was passed on to Branch Office, Faridkot but by the time, the insured had got replaced the cowl accessory on his own. The ld counsel for complainant argued that Repairer recommended and opined that cowl accessory can not be repaired as it is badly damaged and it can only be replaced and gave estimate for the same. The Repairer also gave certificate to this effect, copy of same is Ex C-11. Moreover, in his Survey Report, the Surveyor himself admitted that vehicle sustained impact on its front portion due to which cowl accessories were badly damaged. Both the front side show panels, front panel, left door, back wall, cabin floor sheets and bottom support channels were found bend/damaged. So, in these circumstances, the cowl accessories cannot be repaired and it can only be replaced for the safety of vehicle in question. He contended that conclusion of the Surveyor that cowl accessory of vehicle in question can be repaired is based on surmises and conjectures and it is a matter of common knowledge that Surveyor generally gives report in favour of parties who engage him. Even Surveyor is not a technical expert to give opinion regarding loss to vehicle. As per IRDA regulations, the Surveyor is required to take expert opinion regarding loss and its nature of vehicle. There is no independent evidence or corroborative evidence to the report of Surveyor that cowl accessory of the vehicle in question can be repaired. The Insurance Companies can not evade their responsibility only on the basis of wrong report of Surveyor. The ld counsel for complainant put reliance on the case law decided by the Hon’ble State Commission, U. T. Chandigarh in F.A. No. 549 of 2013 decided on 24.02.2014 titled as Bharti Axa General Insurance Company Limited Vs Brij Lal and others, wherein the Hon’ble State Commission, U.T. Chandigarh held that as per IRDA regulations under the duties and responsibilities of a Surveyor and Loss Assessor, a Surveyor is required to take expert opinion in respect of defect in engine of  the  vehicle. But  in  the  present  case,  the  Surveyor       has  not  taken  any  independent  expert  opinion  regarding            the loss to the vehicle in question, whereas the complainant produced copy of certificate issued by Repairer to the effect vide which he certified that cowl accessories are not repairable, rather need to be replaced. He has also put reliance on case law 2016(4) C.P.R.386 titled as Tapas Kumar Sukul Vs Branch Manager, National Insurance Company Ltd, wherein our Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that Consumer Protection Act, 1986 Sections 15, 17, 19 and 21 Vehicle Insurance – Damage done due to accident of vehicle – State Commission modified the order of the District Forum, allowing the Complainant’s appeal to the extent of enhancing the compensation to Rs.30,000/- in additions to Rs.10,260/- towards the loss of damage of the vehicle and costs of Rs.10,000/- - Even the report of the First Surveyor, MVI (T) and Technical personnel of Tata Motors confirmed that the damaged body, Deskboard, mechanical and other structures occurred due to accident – Assessment of natural wear and tear by Mr C. Without any basis – Keeping in view report of MVI certifying that there was an accident, estimate of Authorised Commercial Dealer of subject vehicle amounting to Rs.2,30,892/-, their certificate that chassis behind damaged engine ws completely cracked, twisted and there were other parts to be replaced absolutely for safety and security of passengers, amount of Rs.60,000/-was considered just and equitable which includes Rs.45,800/-estimated towards assembly frame and other minor repairs – That amount would be in addition to Rs.10,260/-granted by State Commission – Fit case to award amount of Rs.1,00,000/-for loss of earnings, delay and inconvenience caused to complainant – Order of State Commission modified enhancing compensation amount from Rs.30,000/-to Rs.1,00,000/-and damages awarded to Rs.60,000/-, in addition to Rs.10,260/- together with costs of Rs.15,000/- - Revision partly allowed.

12                            From the above discussion and case law produced by ld counsel for complainant, we are of considered opinion that Surveyor did not assess the loss to the vehicle correctly and wrongly gave opinion that vehicle can be repaired whereas as per report of Repairer, he gave opinion that cabin of vehicle can not be repaired. Moreover, admittedly, the complainant got replaced the cabin of his vehicle. So, in these circumstances, the present complaint in hand is hereby allowed. The Ops are directed to pay Rs.3,50,000/-to complainant for loss sustained to his vehicle alongwith interest at the rate of 9 % per anum from 2.09.2015 when they closed the claim of complainant as ‘No Claim’ till final realization. OPs are further directed to pay Rs.3000/-to complainant as litigation expenses incurred by him. Compliance of this order be made jointly and severally within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 19.12.2016                 

 

                    Member                          President

                                                 (P Singla)                      (Ajit Aggarwal)