New Complaint No.247 of 2023.
Date of Institution:27.10.2023.
Old Complaint No:329 of 2018.
Date of Institution: 01.08.2018.
Date of order:12.01.2024.
Harjot Singh Son of Sh. Inderpal Singh, resident of House No. 334 Ward No. 9, Nanak Sahai Colony, opposite Mohan Plaza, Kalanaur Road, Gurdaspur.
…........Complainant.
VERSUS
1. The New India Assurance Company Limited, Branch Office G.T. Road, Gurdaspur, through its Branch Manager.
2. The New India Assurance Company Limited, Regd. & Head Office: New India Assurance Bldg. 87, Mahatma Gandhi Road, Fort, Mumbai – 400001.
3. Hyundai Kosmo Automobiles, opposite Delhi Public School, G.T. Road, Jalandhar, through its DGM.
….Opposite parties.
Complaint u/s 12 of Consumer Protection Act.
Present: For the Complainant: Sh.B.S.Thakur, Advocate.
For the Opposite Parties No.1 & 2: Sh.Sanjeev Mahajan, Advocate.
For the Opposite Party No.3: Sh.Rajat Chopra, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Harjot Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The New India Assurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is owner of Hyundai i20 bearing Registration No. HR26-BU-5419, and get his said vehicle fully insured with the opposite party No.1 vide Policy No. 287427 and as such he is the Consumer/Customer of the opposite parties. It is pleaded that on 04.02.2018, the complainant was travelling to Jalandhar with his family in the above mentioned Car and when he reached Near Village Kahanpur, Main G.T. Road, opposite Hemkunt Public School, some stray animals came in front of the car of the complainant. It is further pleaded that in order to save the stray animals, the complainant applied brakes and the car of the complainant hit at the backside of the Truck on the road. The complainant and his family members escaped very narrowly, but the car of the complainant got damaged badly. A DDR to this effect is also lodged at PS Maqsudan Police District Jalandhar Rural vide G.D. No.24 dated 05.02.2018. It is further pleaded that after that the complainant informed the opposite party No.1 regarding the damage of his car and on the instructions of the opposite party No.1, the complainant in order to get his vehicle repaired took his vehicle to Nearby Hyundai Kosmo Automobiles Workshop, opposite Delhi Public School, G.T. Road, Jalandhar i.e. opposite party No.3. The Estimated Repair Bill was prepared amounting to Rs.7,09,713/-. It is further pleaded that the opposite party No.3 asked the complainant to deposit Rs.1 Lakh to start the repair work and on believing the words of the opposite party No.3, the complainant deposited Rs.1 Lakh vide cheque No.251283 of Punjab National Bank and Kosmo Automobiles also issued the receipt of Rs.1 Lakh to the complainant vide receipt No.370 dated 12.04.2018. It is further pleaded that the Surveyor was got appointed by the opposite party No.1 to access the damage of the car of the complainant. It is further pleaded that complainant received one letter on dated 13.04.2018 i.e. Letter No. JK/Letter/-4/NIA/2018 dated 09.04.2018 in which the Surveyor submitted his report by mentioning the damage of Rs.7,09,713/- and Surveyor himself stated that where the cost of Repair of Vehicle exceeds 75% of IDV Value, the vehicle shall be treated as constructive Total Loss and asked for consent of the complainant to repair or to dis-mental the damaged vehicle. It is further pleaded that after receiving the letter on 13.04.2018 immediately requested to opposite party No.3 and informed him that he does not want to get his car repaired, as the Insurance Company has assured to give the IDV value of the vehicle and requested the opposite party No.3 not to encash the postdated cheque given by the complainant to them on 12.07.2018 amounting to Rs.1 Lakh, but the opposite party No.3 had not paid any heed to the genuine request of the complainant and got the above cheque encashed. It is further pleaded that after which the complainant again contacted the opposite party No.3 to repay/refund the said amount, but of no use. It is further pleaded that to the utter surprise, Ramesh Kapoor, DGM, Body shop, Kosmo Hyundai, Jalandhar on behalf of the opposite party No.3 sent one mail to the deponent demanding more Rs.1,00,000/- from the deponent to carry out the repair work. It is further pleaded that deponent already submitted his reply to the surveyor J.K. Kharbanda for dis-mantling the damaged vehicle and for getting the IDV Value of the vehicle insured. After that, the complainant is requesting the opposite parties No.1 and 2 to pay the IDV value of the vehicle i.e. Rs.4,00,000/-, but of no use and they are lingering on the matter on one pretext or the other. It is further pleaded that the opposite party No.3 is sending anonymous intimation to the complainant for depositing Rs.1 Lakh more with them to get his vehicle repaired, but the cost of repair is more than IDV value and the complainant already told them that he does not want to get his vehicle repaired and also requested them to refund/return Rs.1 Lakh already paid by him, but the opposite party No.3 is continuously harassing the complainant and demanding more money from him, arbitrarily. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties No.1 and 2 to pay the IDV value of the vehicle insured to the complainant alongwith interest @ 18% per annum from the date of accident and the opposite party No.3 be directed to refund/return the amount of Rs.1,00,000/- to the complainant with interest @ 18% per annum and the complainant may be awarded the amount of Rs.1,00,000/- for physical harassment and mental agony at the hands of the opposite parties and Rs.20,000/- as a cost of litigation, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not maintainable as the complainant has filed this complaint against the terms and conditions of the Insurance Policy and hence, the same is liable to be dismissed as the complainant has miserably failed to disclose deficiency, if any, in the services of the answering opposite parties. It is pleaded that all allegations made in the complaint, which are not specifically denied herein, are denied being false and baseless. The complaint is absolutely false and frivolous. At the very outset the answering opposite parties denies all the allegations, facts and averments stated in the complaint filed by the complainant except to the extent it is expressly admitted therein. The non-traversal of any paragraph should be read as categorical denial. It is further pleaded that the complaint filed by the complainant is not legally maintainable against the answering opposite parties and is liable to be dismissed, as the complainant has attempted to misguide and mislead the Hon'ble Commission and as such, the complaint is liable to be dismissed on this ground alone and no cause of action has ever arisen in favour of the complainant against the answering opposite parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed. It is further pleaded that complaint filed by the complainant is not legally maintainable against the answering opposite parties being premature and is liable to be dismissed. It is further pleaded that after getting intimation from the complainant the opposite party No. 1 deputed J.K. Kharabanda Engineer, Surveyor & Loss Assessor Jalandhar to assess the loss to the vehicle No.HR-26-BU-5419 of the complainant. It is further pleaded that the true facts are that after marking the claim to the J.K. Kharabanda Engineer, Surveyor & Loss Assessor Jalandhar, the complainant did not co-operate with the Surveyor to finalize his claim as per terms & conditions of insurance policy. The J.K. Kharabanda Engineer, Surveyor & Loss Assessor Jalandhar has conveyed to the complainant that your policy being normal policy, depreciation is applicable as such does not satisfy constructive total loss mode of settlement and requested you to give your consent to repairer to dis-mantle the damaged vehicle so repair can be made. It is further pleaded that the complainant did not give his consent to the repairer opposite party No.3 and due to that the matter was getting delayed at the complainant end. It is further pleaded that Surveyor had again sent a letter dated 09.04.2018 to the complainant being remainder as the matter was getting delayed as complainant failed to give consent to the repairer opposite party No.3 to dis-mantle the damaged vehicle No.HR-26-BU-5419. It is further pleaded that complainant again did not respond to the letters of the Surveyor. It is further pleaded that the repair of vehicle No.HR-26-BU-5419 is being delayed due to non-cooperative attitude of the complainant. J.K. Kharabanda Engineer, Surveyor & Loss Assessor Jalandhar failed to submit his report due to non-cooperative attitude of the complainant by not giving consent to him. It is further pleaded that complainant rather responding to letters of Surveyor approached pre-mature to this Hon'ble Court which is legally not tenable. The complainant mis- interpreted the letter of Surveyor dated 09.04.2018.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the outset the answering opposite party No.3 denied each and every averment and allegation made in the complaint save and extent to what is specifically admitted hereinafter. The present complaint is not maintainable as the same is knowingly false and purposely vexatious to the knowledge of the complainant. It is pleaded that the place of accident is mentioned in the complaint is Village Khanpur, Main G.T. Road, opposite Hemkunt Public School, Jalandhar, which the jurisdiction of the P.S. Rama Mandi, but regarding this accident a DDR was lodged at P.S. Maqsudan which is a Approximately 6 to 8 Km for from the place of accident and that police station comes under the jurisdiction Rural Police Department and one of the uncle of the complainant is at the higher post in the Police Department and every correspondence of the mail with the company is being sent to the Jalandhar Rural Police in order to get undue benefit and to pressurize the answering opposite party, on this ground only the present complaint liable to be dismissed. It is further pleaded that cause of action occurred at Jalandhar and the Hon'ble Commission is not having any jurisdiction to entertain the complaint, on this ground only the present complaint is liable to be dismissed. It is further pleaded that the answering opposite party No.3 is the authorized service Centre of the Hyundai and used to repair the vehicle of the customer and charge for the same. It is worthwhile to mention here that the complainant brought his car to the answering opposite party on dated 04.02.2018 with the off condition vehicle and the complainant requested to the answering opposite party to compensate the loss with the New India Insurance Co. and the car of the complainant insured by the New India Insurance Co. It is further pleaded that after the completion of documents/formalities by the complainant, the intimation was sent to the Jalandhar Office. After that a surveyor was deputed by the opposite party No.2 of Jalandhar Office, the surveyor gave the assessment which is less than the IDV Value regarding this intimation was sent to the complainant telephonically and the complainant agreed for the repair of the above said vehicle by the answering opposite party. It is further pleaded that every terms and conditions was explained to the complainant with regard to the repair invoice and the complainant has also agreed that the complainant will pay full amount of repair invoice at the time of taking of the delivery of the car, regarding this a written consent for the repair approval was received from the complainant on dated 12.04.2018 alongwith this complainant gave а token money of Rs.1,00,000/- on account of advance for repairs and the complainant assured that the remaining amount will be deposited by the complainant within few days. Regarding this many E-mails were sent to the complainant for the payment of the due amount but the complainant did not paid any heed on the genuine request of the answering opposite party No.3.
On merits, the opposite party No.3 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Harjot Singh, (Complainant) as Ex.C-1/A alongwith other documents as Ex.C-2 to Ex.C-13.
6. Learned counsel for the opposite parties No.1 and 2 has filed documents as Ex.OP-1,2/1 to Ex.OP-1,2/4 alongwith reply.
7. Learned counsel for the opposite party No.3 has filed an affidavit of Sh. Ramesh Kapoor, (D.G.M Insurance, Kosmo Hyundai, Jalandhar) alongwith other document as Ex.OP-3/A alongwith reply.
8. Rejoinders filed by the complainant.
9. Written arguments filed by the opposite parties No.1, 2 and 3 but not filed by the complainant.
10. Counsel for the complainant has argued that complainant is owner of Hyundai I20 car which is insured with opposite party No.1. It is further argued that on 04.02.2018 the said car of the complainant met with an accident. It is further argued that DDR in respect of accident was lodged at P.S. Maqsudan. It is further argued that intimation regarding damage to the car was given to the opposite party No.1 and complainant was directed to get his vehicle repaired from opposite party No.3. It is further argued that opposite party No.3 issued estimate repair bill of Rs.7,09,713/-. It is further argued that opposite party No.3 had received Rs.1 Lakh from the complainant for starting repair. It is further argued that opposite party No.1 appointed a surveyor to assess the loss and the complainant received letter from opposite party No.1 in which surveyor had mentioned the loss to the vehicle as Rs.7,09,713/- and surveyor had himself mentioned that where the cost of the repair of the vehicle exceeds 75% of the IDV value, the vehicle shall be treated as constructive total loss and asked for consent of the complainant to repair or to dismantle the damaged vehicle. It is further argued that argued that after receiving the letter complainant had informed the surveyor that the complainant does not want to vehicle repaired and the complainant be given IDV of the vehicle i.e. Rs.4 Lakh. It is further argued that complainant had demanded back the amount of Rs.1 Lakh paid to opposite party No.3 but on the contrary opposite party No.3 raised further demand of Rs.1 Lakh. Failure to pay IDV value of Rs.4 Lakh amounts to deficiency in service on the part of opposite parties No.1 and 2 and failure on the part of opposite party No.3 to refund the amount of Rs.1 Lakh also amounts to deficiency in service and complainant is entitled to receive IDV value of Rs.4 Lakh from opposite party No. 1 and 2 and refund of Rs.1 Lakh from opposite party No.3.
11. On the other hand counsel for the opposite parties No.1 and 2 has argued that the claim was marked to J.K. Kharbanda engineer and loss assessor Jalandhar but the complainant did not corporate the surveyor to finalize the claim as per terms and conditions of the policy. It is further argued that surveyor had conveyed to the complainant that the policy being normal policy depreciation is applicable as such does not satisfy constructive total loss mode of settlement and complainant had requested the complianant to give consent to repairer to dismantle the damage vehicle so that repair can be made but the complainant did not give consent. Accordingly, there is no deficiency in service on the part of opposite parties No.1 and 2 and the surveyor could not submit his report due to fault of the complainant.
12. Counsel for the opposite party No.3 has argued that after surveyor having been deputed, the surveyor gave the assessment which is less than the IDV value and the intimation was sent to the complainant telephonically and complainant agreed for the repair of the above said vehicle and the complainant further agreed to pay the full amount of repair at the time of taking delivery. Complainant also deposited Rs.1 Lakh as token money and promised to deposit the remaining amount. It is further argued that the amount of Rs.7,09,713/- was estimated and not the final bill. It is further argued by the counsel for the opposite party No.3 that opposite party No.3 is entitled to receive remaining charges from the complainant and parking charges as well and not laible to refund any amount.
13. We have heard he Ld. counsels for the parties and gone through the record.
14. To prove his case complainant has placed on record his affidavit Ex.C-1/A, copies of E-mails Ex.C-9 to Ex.C-12, copy of insurance cover note Ex.C-2, copy of GD No.24 Ex.C-3, copy of cheque Ex.C-6, copy of receipt Ex.C-5, copy of estimate Ex.C-4, copy of letter dated 09.04.2018 Ex.C-7, copy of postal envelop Ex.C-8 and copy of R.C. Ex.C-13 whereas opposite parties No.1 and 2 has placed on record copy of policy of insurance Ex.OP-1,2/1, copy of letter dated 09.04.2018 Ex.OP-1,2/2, copy of envelop Ex.OP1,2/3 and copy of E-mail Ex.OP-1,2/4. Opposite party No.3 has placed on record affidavit of Ramesh Kapoor D.G.M. and copy of repair order Ex.OP-3/A.
15. It is admitted fact that complainant is registered owner of Hyundai I20 Car bearing registration No.HR-26-BU-5419 and the said car is insured with opposite party No.1. It is further admitted fact that car owned by the complainant met with an accident on 04.02.2018. It is further admitted fact that car owned by the complainant was taken to Hyundai Kosmo Automobiles for repair. It is further admitted fact that opposite party No.3 issued estimate of repair as Rs.7,09,713/-. It is further admitted fact that opposite party No.3 received Rs.1 Lakh as advance for repair. It is further admitted fact that Mr.J.K. Kharbanda was appointed as surveyor to assess the loss. It is further admitted fact that Mr. J.K. Kharbanda failed to assess the loss and has suggested that the policy being normal, depreciation is applicable and constructive total loss mode of settlement is not provided and issued directions to the complainant to get the vehicle dismantle for repair. The only issue for adjudication before this Commission is whether complainant is entitled to receive IDV value of Rs.4 Lakh or that the vehicle can be repaired.
16. Perusal of E-mail Ex.C-9 issued by opposite party No.3 shows that the opposite party No.3 has suggested the estimated repair cost between Rs.7,25,000/- whereas the IDV of the vehicle is Rs.4 Lakh. Similar is the E-mails Ex.C-10 and Ex.C-11. Perusal of copy of estimate Ex.C-4 shows that the estimate cost of repair given by opposite party No.3 is Rs.7,09,413/-. However, as per letter Ex.C-7 the surveyor has given opinion that on physical examination of various parts demanded in estimate provided by you, I had detailed discussion with repairer representative and is of opinion that your policy being normal policy, depreciation is applicable as such does not satisfy constructive total loss mode of settlement, I may highlight following condition of your motor policy. The insured vehicle shall be treated as constructive total loss if the aggregate cost of repair of the vehicle exceeds 75% of the IDV and conveyed for repair of the vehicle. We are of the view that opposite party No.3 has given estimated cost of repair as Rs.7.25 Lac and IDV of the vehicle is Rs.4 Lakh meaning thereby it shows that even if vehicle is repaired for Rs.4 Lakh or more even then in that case also it will be beneficial for both the parties to declare the vehicle as total loss as the cost of repair of the vehicle exceeds 75% of the IDV of the vehicle. We are unable to understand on what account the surveyor has written letter Ex.C-7 by mentioning that policy of insurance is a normal policy and depreciation shall be applicable. We are of the view that the IDV of the vehicle is already mentioned as Rs.4 Lakh after applying depreciation as per the model of the car as such what was the difficulty with the surveyor to assess the loss and settle the claim on total loss basis but in the present case the entire record shows that surveyor of opposite parties No.1 and 2 Mr. J.K. Kharbanda was forcing the complainant to get the vehicle repaired on false excuses. Even perusal of E-mail Ex.OP-1,2/4 shows admission on the part of surveyor that the estimated repair cost mentioned is 7 Lakh and IDV is Rs.4 Lakh. We are of the view that forcing the complainant to get the vehicle repaired without making any assessment by the surveyor itself amounts to deficiency in service and the opposite parties No.1 and 2 cannot compelled the complainant to get the vehicle repaired when the cost of repair exceeds 75% of the IDV of the vehicle. Accordingly, we are of the view that complainant is definitely entitled to receive the IDV as per the policy of insurance i.e Rs.4 Lakh after deduction of Rs.1000/- on account of excess clause and failure to settle the claim on total loss basis amounts to deficiency in service on part of opposite parties No.1 and 2. The second issue regarding demand of Rs.1 Lakh by opposite party No.3 is concerned, we are of the view that since the vehicle had suffered loss and the estimated cost of repair was Rs.7 Lakh as such demand of Rs.1 Lakh by opposite party No.3 for repair was not justified and since the vehicle has not been repaired and opposite party No.3 has kept the amount with them without carrying out any repair as such opposite party No.3 is liable to refund the amount of Rs.1 Lakh to the complainant.
17. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay the amount of Rs.3,99,000/- to the complainant as IDV of the vehicle after deducting excess clause amount of Rs.1,000/- alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties No.1 and 2 are further directed to pay Rs.5,000/- for mental tension and harassment including Rs.3,000/- as cost of litigation. Opposite party No.3 is also directed to refund the amount of Rs.1 Lakh to the complainant alongwith interest @ 9% P.A. w.e.f. 12.04.2018 till realization. Opposite parties No.1 and 2 can retain the salvage of the vehicle with R.C. Complainant is directed to hand over the original R.C. to the opposite parties No.1 and 2 and issued letter of subrogation if necessary. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
19. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Jan. 12, 2024 Member
*YP*
