Before the District Consumer Disputes Redressal Commission, Rohtak.
Consumer Complaint No. 396
Instituted on : 27.08.2018
Decided on : 18.11.2024
M/s Bala Sales Corporation through its Director Rajesh Saini s/o Sh. Om Parkash Saini r/o H.No.7, Setor-8, Faridabad City, District Faridabad.
….Complainant
Vs
1. The New India Assurance Co. Ltd.,through its Divisional Manager 313, Model Town, Delhi Road, Rohtak.
2. M/s Badhwar Automotive Pvt. Ltd., Through its Manager Sectort-33B, IMT, Sonepat Road, Rohtak.
……Opposite Parties
COMPLAINT UNDER CONSUMER PROTECTION ACT.
BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR. VIJDENER SINGH, MEMBER.
Present: Ms. RenuHooda, Advocate for the complainant.
Sh. Anil Sharma, Advocate for opposite party no.1.
Sh. Naveen Chaudhary, Advocate for opposite party no.2.
ORDER
SH. NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the present complaint, as per the complainant, are thathe is owner of a car bearing registration no.HR-29AG-7300 and the same was insured with the opposite party no.1 for a period from 07.04.2016 to 06.04.2017 vide policy no.35380031160300000226 for the insured amount of Rs.125000/-(amount is wrongly mentioned as the actual value of vehicle is Rs.1250000/-). The said car met with an accident on 27.02.2017 and was badly damaged i.e. total loss. The complainant duly informed the same to the opposite party no.1.As per the instructions of opposite party no.1, the damaged car was taken to respondent no.2 for repairing. The respondent no.1 appointed asurveyor, who duly inspected the vehicle. The complainant furnished all the required documents/particulars as asked by respondent no.1. Respondent no.1 assured the complainant that the claim amount of the damages will be paid to the respondent no.2 after the completion of the repair as the insurance was cashless. The estimate given by the Badhwar Automotive Pvt. Ltd. was Rs.67270/- on 30.03.2017 but during repairing, some other parts were also found damaged which were not given in the previous estimates, hence in addition to the estimate dated 30.03.2017, the estimate of Rs.143760/- was given on 15.05.2017 making total expenses of repairing to the extent of Rs.211030/-.But the respondent no.1 did not make the payment of the repairing charges to respondent no.2 and avoided the matter on one pretext or the other. The respondent no.2 did not hand over the vehicle to the complainant. The respondent no.1 objected the second estimate given by opposite party no.2. The matter was between the respondent no.1 and respondent no.2 but the delay caused a huge loss to the complainant for the negligence of respondents. The complainant requested the opposite party No.1 to pay the claim amount but any heed was not paidto his requests. The complainant had to pay Rs.30000/- on 01.05.2017 and Rs.24880/- on 29.07.2017 to respondent no.2. The act of opposite party No.1 of not disbursing the genuine claim of the complainant is illegal and amounts to deficiency in service. Hence this complaint and it has been prayed that opposite party no.1 may kindly be directed to make the payment of Rs.54880/- alongwith interest @ 18% p.a. from the date of accident till the date of actual realisation and the remaining amount be given to respondent no.2 after properly assessing the repairing charges against the damages of car alongwith costs. Respondents may also be directed to pay a sum of Rs.100000/- as litigation expenses to the complainant.
2. Notice of the present complaint was issued to the opposite parties. Opposite parties appeared and filed their written statements separately. Opposite party no.1 in its reply took some preliminary objections that the present complaint is not maintainable in the present form and complainant has no locus standi to file the present complaint; the complaint is false, frivolous and the same is liable to be dismissed, and further that the complainant has not come before this Commission with clean hands and has suppressed the true and material facts. It is further submitted that after receiving the intimation about the damages , opposite party deputed Sh. Sunil Kumar Kataria, Surveyor and loss assessor for final survey andto assess the loss and the surveyor submitted his report in the office ofopposite party on 22.06.2017. The surveyor inspected the car in the presence of the insured and the repairer and assessed the loss on 01.03.2017. After that the complainant in collusion with the repairer/respondent no.2 submitted the supplementary estimate of Rs.67210/- of dated 30.03.2017 and submitted supplementary estimate no.2 of Rs.143760/- of dated 15.05.2017. The damages mentioned in supplementary estimate no.1 & 2 were not provided at the time of inspection of the vehicle of the surveyor on 01.03.2017, the surveyor allowed the amount of Rs.26872.93P for A.C. condenser and Rs.926.16 of AC Gas and Rediator, Inter cooler, fan schroud, coolant and Bracket, these parts were intact, therefore, the surveyor disallowed the amount of these parts. The parts mentioned in the supplementary no.2 were intact, there was no damages therein, therefore, the surveyor also disallowed the amount of these parts. The surveyor assessed the total loss of Rs.125325/-. The opposite party has paid the said amount to the respondent no.2 on 05.09.2017. The complainant is not entitled to any further amount as the opposite party has already paid the claim amount. As such there is no deficiency in service on the part of opposite party, so, the present complaint is liable to be dismissed. On merits of the case, opposite party reiterated the facts mentioned in preliminary objections and prayed for dismissal of complaint with costs.
3. The opposite party no.2 in its reply has submitted that the estimate of Rs.156889/- was prepared initially, which was submitted to the opposite party No.1 by way of e-mail dated 01.03.2017, however during course of repair of the vehicle in question, certain other parts were also found to be damaged, hence a supplementary estimate dated 30.03.2021(wrongly mentioned as the date is 30.03.2017 as per Ex.C5)amounting to Rs.67210/- was submitted to the opposite party No.1 by way of email dated 31.03.2017. After fitting of estimated parts as per initial and supplementary estimate, when thecar in question was diagnosed by way of Cruze Diagnostic Equipment, damage in electronic parts was also observed. Accordingly, the opposite party again submitted one more estimate dated 15.05.2017 amounting to Rs.143760/- to the opposite party No.1 by way of email dated 16.05.2017. As the insurance policy was cashless, the complainant was asked to deposit some amount, however the complainant refused to get complete repair work of the vehicle and instead, the complainant requested to do the necessary repairs so as to bring the vehicle in question roadworthy. Accordingly, the opposite party repaired the car in question vide invoice no.310 dated 15.06.2017 amounting to Rs.180206/- against which the opposite party no.1 paid the claim amount of Rs.125325/- and remaining amount of Rs.54880/- was paid by the complainant and the vehicle in question was released to the complainant. It is submitted that an estimate is the estimated cost of repair and it cannot be treated as the exact cost of repair. Exact costs of repair always vary from the estimated costs of repair. It is further submitted that the insurance is a contract between the insurer and the insured i.e. between the complainant and opposite party No.1 and opposite party no.2 has nothing to do with the insurance or any of its claim. All the other contents of the complaint were stated to be wrong and denied and opposite party No.2 prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C-1 to Ex.C-12 and closed the same on 19.01.2024. Complainant has also placed on record page no.1 of Ex.C7 as Annexure-JNA. On the other hand, learned counsel for the opposite party no.1 has tendered affidavit Ex. RW 1/A, documents Ex. R1 to Ex. R2(5 pages) in the evidence and closed the same on dated 20.08.2024. Learned counsel for opposite party no.2 made a statement that reply already filed on its behalf be read as affidavit, and documents Ex. R2/1 to Ex. R2/5 in the evidence and closed the same on dated 20.03.2024.
5. We have heard the arguments of learned counsel for both the parties, perused the documents placed on record and have gone through the written submissions/arguments on behalf of opposite party no.1 as well as material aspects of the case very carefully.
6. In this case the written statement has been filed by the opposite party No.1, wherein it has been submitted that after receiving the information regarding the damages in the vehicle in question, Sh. Sunil Kumar Kataria surveyor and loss assessor submitted his report with the insurance company. The surveyor has minutely inspected the car in the presence of insured & repairer and assessed the loss on dated 01.03.2017. As per written statement and affidavit,respondent no.1 has submitted that there were no damaged in the vehicle as mentioned in the supplementary estimate no.2 and all the parts were found in intact condition. As per the written statement filed by respondent no.2, during the repair of the vehicle some more damages were found in the vehicle in question. So two supplementary damages have been given by way of email dated 31.03.2017 and 15.05.2017 i.e. estimate no.1 of Rs.66210/- and supplementary estimate no.2 of Rs.143760/- on dated 15.05.2017. As per the respondent No.1, the surveyor has assessed the loss of Rs.125325/- and same has been paid to the complainant on 05.09.2017. It has been submitted that there is no deficiency in service on the part of respondent No.1.
7. It is an admitted fact that in the survey report, two supplementary estimates have been received in the office of respondent No.1 and thereafter, after assessing all the documents, the surveyor Sh. SunilKumar Katariasubmitted his report with the insurance company. We have minutely perused the documents. During the course of arguments, a document Annexure-JNA has been placed on record. As per our opinion, the surveyor has disallowed so many parts in his survey report, the estimated cost and billed amount of which is as under:
Name of part Estimated amount Billed amount
Radiator 14800/- 10196/-
Nature Caller 20289 16985/-
Fan series 13285 5539/-
OSRUM-RH 11118/- 8979
In this report, the surveyor has not mentioned anywhere that why he has disallowed these parts and not considered the actual bill placed on record by the complainant as Ex.C7 and Annexure JNA in his report. The reason of disallowing the parts has not been mentioned in the report anywhere. The complainant has placed on record two documents i.e. Ex.C7 and Annexure JNA to prove the fact that he spent an amount of Rs.180206/- on the repair of the vehicle. As per our opinion, complainant is also entitled for the amount of alleged 4 parts i.e. Rs.10196/- + Rs.16985/- + Rs.5539/-+ Rs.8979- i.e. total Rs.41699/-. As he has already received the amount of Rs.125325/-, hence he is entitled for the amount of Rs.41699/- from the opposite party No.1 in addition to the claim amount already received by him.
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 to pay the amount of Rs.41699/- (Rupees forty one thousand six hundred and ninety nine only) alongwith interest @9% p.a. from the date of filing the present complaint i.e. 27.08.2018 ill its realisation and also to pay Rs.10000/-(Rupees ten thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant.
9. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
18.11.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member.
