PER SHRI. S. G. CHABUKSWAR – HON’BLE MEMBER
1) This is a complaint filed on the grounds that the Opposite Party had adopted unfair trade practice and there is deficiency in service, as laid down under Sec.2(r)(g) of the Consumer Protection Act, 1986, for the reliefs of recovery the Insurance Declared Value Rs.4,25,700/- with interest @ 12% p.a., Rs.66,800/- towards the parking charges, Rs.1,00,000/- compensation for mental torture and Rs.20,000/- cost of litigation.
2) Following facts are not in dispute –
The Complainant was the owner of Toyota Innova Car bearing Registration No.MH-04-CE-7521. The said vehicle was insured with Opposite Party and it’s Insured Declared Value was Rs.4,25,000/- which was valid from 29/09/2009 to 28/09/2010. On 19/07/2010 at 11.00 a.m. the accident of the insured car in question took place on the road in the vicinity of Khardi Village, Dist. Nasik. The said incident was reported to the Police Station Shahapur and Crime No.99/2010 has been registered therein on the basis of said report on 19/07/2010.
3) The case of the Complainant is that after the accident vehicle in question was taken to the authorized service station Millennium Toyota for repairs. The Complainant had submitted his claim with the Opposite Party. Thereafter, Opposite Party issued letter to the Complainant contending that the competent authority has decided to settle the claim on total loss basis and asked him for submitting original documents by the letter Exh.C-4 on 23/10/2010. Accordingly he submitted the original documents with the Opposite Party on 08/11/2010. The car in question was totally damaged in the accident hence, it remained at the Millennium Service Station. The said agency asked the Complainant for payment of parking charges at the rate of Rs.200/- per day by the letter dtd.23/03/2011. The Opposite Party had made him queries about chassis number of the insured vehicle in question and he clarified it by the letter dtd.23/04/2011. There was no communication about settlement of the claim therefore, he wrote a letter to the Opposite Party for settlement of the claim. The service centre was demanding him parking charges Rs.66,800/- hence, he asked the Opposite Party by the letter dtd.05/07/2011 for including the said parking charges in the final claim which was pending for consideration. The Opposite Party had sanctioned claim only for Rs.2,67,700/- whereas the claim of Complainant was on total loss basis for Rs.4,25,700/- as per the Insured Declared Value mentioned in the policy. He informed to the Opposite Party by the letter dtd.26/07/2011 that the said settlement is not accepted by him. He also requested Opposite Party by the letter dtd.10/04/2012 for settlement of claim as per full amount of Insured Declared Value as there is total loss of the car but in vain. The Opposite Party has adopted unfair trade practice and there is deficiency in service by keeping claim in abeyance. Hence, this complaint.
4) The Opposite Party has resisted the claim by filing written statement dtd.29/04/2013. The contention of the Opposite Party is that the cause and nature of accident mentioned in the claim form by the Complainant is different from the statement given in the complaint and the police report. The Opposite Party had appointed Mr. S.S. Nagpal, the Automobile Engineers, Surveyors, Assessors & Valuers (Motor) to assess the loss of damage to the Complainant. Mr. S.S. Nagpal assessed the loss on Net of Salvage Basis for Rs.2,64,700/- after deducting Rs.1,60,000/- towards salvage value and Rs.1,000/- towards the Excess from the total claim of Rs.4,25,700/- and the same was intimated to the Complainant. The Opposite Party has no concerned with the amount of parking charges and it is only between the service station person and the Complainant. There is no defect and deficiency in service rendered by the Opposite Party. After due scrutiny liability under the policy was partly sanctioned after receipt of the survey report. The liability under the policy was partly repudiated on the grounds available to the Opposite Party under the law as well as under the terms and conditions of the policy. The Opposite Party has fully and finally settled the claim of the Complainant but he failed to accept the same. The Opposite Party has denied all other rival contentions of the Complainant and prayed for dismissal of complaint with cost.
5) Considering the evidence produced on record and oral arguments of Shri. Ganesh Shirke, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party, following points arises for determination and our findings thereon are noted against each of them for the reasons given below –
Points Findings
1. Whether the complainant has proved that
the Opposite Party has adopted unfair trade Yes.
practice and there is deficiency in service ?
2. Whether the partly repudiation of claim of
the Complainant has been justified by the
Opposite Party ? No
3. Whether the Complainant is entitled to the Yes, as regards to the
Insurance Declared Value, compensation towards IDV & cost.
mental torture & cost as claimed ? In the negative as regards to the
compensation for mental torture.
4. What order ? As per final order
Reasons :-
6) Point Nos.1 & 2: The Complainant has submitted affidavit of evidence of Mr. Mukesh Ratillal Gandhi, a partner of Shriji Automobile Hirers in support of it’s case. The Opposite Party has submitted affidavit of evidence of Sushim Dhakate, Divisional Manager of Opposite Party in support of it’s case. Admittedly the Complainant was the owner of tourist taxi bearing RTO Registration No.MH-04-CE-7521. The said vehicle was insured with the Opposite Party and it’s Insured Declared Value was Rs.4,25,700/- and it’s validity was from 29/09/2009 to 28/09/2010. On 19/07/2010 at 11.00 a.m. insured vehicle in question was met with an accident on Mumbai-Nasik Road in the vicinity of Khardi Village. The incident of accident has been reported to the Shahapur Police Station and Crime No.99/2010 has been registered by the police on the basis of said report. The Opposite Party has partly repudiated the claim of Complainant. The dispute between the parties is only about partial repudiation of the claim. As per the case of the Opposite Party, Mr. S.S. Nagpal, a Surveyor has assessed the loss of the tourist taxi Rs.2,64,700/- after deducting Rs.1,60,000/- towards the salvage value and Rs.1,000/- towards the Excess from the total claim of Rs.4,25,700/-. However, the Opposite Party neither submitted affidavit of Mr. S.S. Nagpal, alleged Surveyor nor produced on record the report of said Surveyor. In the absence of above such affidavit and report we cannot rely on the above contention of Opposite Party.
7) The Complainant has produced a letter issued to him by the Opposite Party on 23/10/2010 which is marked as Exh.C-4. The Opposite Party had informed to the Complainant by the said letter that the competent authority has decided to settle the claim of the Complainant on total loss basis. The Opposite Party has admitted the claim of the Complainant on total loss basis by the aforesaid letter. Thereafter on 21/07/2011 the Opposite Party sent to the Complainant voucher of Rs.2,64,700/- towards the full & final settlement of claim of Complainant. The copy of said voucher and letter have been produced on record vide Exh.C-11. The Complainant refused to accept the said voucher and informed his denial about acceptance of said amount to the Opposite Party by the letter Ex.C-12 on 26/07/2011. The Opposite Party has not explained as to how they have calculated the above amount of claim. The Opposite Party after admission of claim of Complainant on the basis of total loss partly repudiated the said claim. This act of Opposite Party comes within the meaning of unfair trade practice. The evidence available on record clearly goes to show that the partial repudiation of claim by the Opposite Party is not justifiable. Hence, point no.1 is answered in the affirmative and point no.2 in the negative.
8) Point No.3 : Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Party has argued that, the claim of Complainant has been assessed correctly on net of salvage basis for Rs.2,64,700/- by deducting Rs.1,60,000/- towards salvage value and Rs.1,000/- toward the excess from the total claim. The Opposite Party has not produced report of S.S. Nagpal - Surveyor and details of salvage value. Hence, argument of the advocate for the Opposite Party can not be accepted.
Shri.Ganesh Shirke, Ld.Advocate for the Complainant has argued that Opposite Party has admitted claim of the Complainant on total loss basis hence, Complainant is entitled to the Insurance Declared Value. The Advocate for the Complainant in support of his argument relied on the judgment reported in 2008 CTJ 917 (Supreme Court) (CP), Dharmendra Goel V/s. Oriental Insurance Co. Ltd. In the said case the policy of vehicle was renewed on 13/02/2002 upto 12/03/2003 on a premium of Rs.8,498/- on the value assessed by the Company at Rs.3,54,000/-. The vehicle met with an accident on 10/09/2002. The said accident took place after seven months of the renewal of insurance policy. The Hon’ble National Commission had directed the Company for part payment of amount Rs.1,80,000/- to the Complainant. The Complainant had approached to the Hon’ble Supreme Court. The Hon’ble Supreme Court observed that –
“It is admitted position that the vehicle had been declared to be a total loss by the surveyor appointed by the company through the value of the vehicle on total loss basis had been assessed at Rs.1,80,800/-. We are, in the circumstances, of the opinion that as the company itself had accepted the value of the vehicle at Rs.3,54,000/- on 13th February, 2002, it could not claim that the value of the vehicle on total loss basis on 10th September, 2002 i.e. on the date of the accident was only Rs.1,80,000/-.”
Shri.Ganesh Shirke, Ld.Advocate for the Complainant has further relied on the judgment reported in III (2012)CPJ 48 (NC) Rekha Jain V/s. National Insurance Co. Ltd. In the said case the vehicle was insured for a sum of Rs.1,75,000/- by paying the premium of Rs.6,375/- and it was valid for the period from 31/12/1997 to 28/12/1998. On the intervening night of 29/30.08.1998 the car was stolen form the house of the Complainant and FIR was lodged with the police station. The Hon’ble National Commission observed that –
“While issuing the policy on 31/12/1997, the value of the vehicle was put at Rs.1,75,000/-. Vehicle was stolen after eight months of the taking of the policy on 29/08/1998. In view of the law laid down by the Hon’ble Supreme Court, it is held that the Respondent would be liable to pay Rs.1,75,000/- being the Insured Declared Value (IDV)at the time of taking the policy after deducting 10% towards depreciation. After deducting 10% towards deprecation the amount payable comes to Rs.1,57,500/- which is rounded off to Rs.1,60,000/-.”
In the present case the Opposite Party issued policy of the vehicle in question which was valid from 29/09/2009 to 28/09/2010. The accident took place on 19/07/2010 i.e. after 9 months of the policy. In view of the observations made by the Hon’ble Supreme Court and the Hon’ble National Commission in the above cited cases we cannot accept the contention of Opposite Party to say that within the span of 9 months from 29/09/2009 to the date of accident the value of tourist car in question had depreciated from Rs.4,25,700/- to Rs.2,64,700/- As per the observation made by the Hon’ble Supreme Court and the Hon’ble National Commission if the amount of 10% is deducted from the Insured Declared Value Rs.4,25,700/- (Rs.4,25,700/- - Rs.42,570/-) it comes to the tune of Rs3,83,130/- The Complainant is entitled for the said amount towards the loss of tourist taxi in question.
9) The Complainant comes with the case that, after the accident the damaged tourist taxi was taken to authorized service station – Millennium Toyota. The said vehicle was at the said garage as the claim of the Complainant was pending with the Opposite Party. The Millennium Toyota Service Station has made demand from the Complainant of parking charges of the damaged vehicle @ Rs.200/- per day total Rs.42,400/-, Towing charges from workshop to Bhiwandi stockyard Rs.1000/- and estimation charges Rs.5,000/- by the letter 23/03/2011 which is filed vide Exh.C-6. The Complainant had asked the Opposite Party by the letter Exh.C-10 dtd.05/07/2011 for including in his claim parking charges of the period 01/08/2010 to 30/06/2011 Rs.66,800/-. The Complainant has only produced demand letters vide Exh.C-6 and Exh.C-10. He has not produced any document on record to show that he paid the above amount to the Millennium Toyota Service Station. The Complainant has not produced evidence about the payment of above amount to the service station. However, the question of payment of parking charge is only between the Complainant and the Millennium Toyota Service Station. This Forum has no concern with the said issue. Under these circumstances Complainant is not entitled for Rs.66,800/- towards parking charges from the Opposite Party.
10) The Complainant had claimed Rs.1,00,000/- from the Opposite Party towards mental harassment. The Complainant has submitted the original documents with Opposite Party by the letter Exh.C-5 on 08/11/2010. The said letter shows that Kirti Gandhi is one of the partner of the Complainant. The witness Mukesh Ratilal Gandhi is also one of the Partner of the Complainant Shrij Auto Hirers. The Complainant is partnership firm. The mental torture can be caused only to individual person and not to the firm or company therefore, the claim of Complainant of compensation towards mental harassment cannot be taken into consideration. The Complainant has claimed interest on the awarded amount @ 12% p.a. from January, 2011. The said interest amount claimed by the Complainant in our view is exorbitant. We hold that the interest @ 9% p.a. would be justified from 01/01/2011 as the Opposite Party vide letter dtd.23/10/2010 marked at Exh.C had informed the Complainant that the competent authority has decided the claim on total loss basis, however, the Opposite Party later on compelled the Complainant to settle the claim for Rs.2,64,700/- only by letter dtd.21/07/2011. We therefore, hold that the Complainant is entitled for interest @ 9% p.a. from 01/01/2011 on the awarded amount of Rs.3,83,130/- and cost of Rs.5,000/- towards this litigation. Therefore, point no.3 is answered accordingly.
In the result complaint is deserves to be partly allowed with cost hence, we proceeds to pass following order –
O R D E R
i. Complaint No.139/2012 is partly allowed with cost.
ii. The Opposite Party is directed to pay to the Complainant Insured Declared Value Rs.3,83,130/- (Rs. Three Lacs Eighty Three
Thousand One Hundred Thirty Only) with interest @ 9% p.a. from 01/01/2011 till the date of realization of the said amount.
iii. The Opposite Party is directed to pay to the Complainant cost of the complaint Rs.5,000/- (Rs. Five Thousand Only).
iv. The Opposite Party do pay to the Complainant amount mentioned in above para Nos.2 & 3 within two month from the receipt of
this order.
v. The claim of the Complainant as regards the mental torture and parking charges is rejected.
vi Certified copies of this order be furnished to the parties.
