DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 52 of 18.02.2008<br /> Decided on : 05-05-2008 <br /> <br /> 1.Kushal Deep Kaur W/o Late S. Harbir Singh S/o Pargat Singh Maini.<br /> 2.Sehaj Preet Singh Maini minor son of Sh. Harbir Singh<br /> 3.Kanwar Deep Singh minor son of S. Harbir Singh through their mother Kushal Deep Kaur next friend and natural guardian of minor complainants No. 2 and 3 who has no adverse interest to the claim of the minor complainants residents of V.P.Kotha Guru, District Bathinda.<br /> ... Complainants<br /> Versus<br /> <br /> The New India Assurance Company Limited, Divisional Office, The Mall, Bathinda through its Divisional Manager.<br /> ...Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainants : Sh.D.C. Garg, Advocate.<br /> For the Opposite parties : Sh. Sunder Gupta, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Harbir Singh was the husband of complainant No. 1 and father of complainants No. 2 & 3 . He is the owner of Car No. PB-11Y-5354. A comprehensive Insurance Policy was purchased by him from the opposite party him for his Car vide Certificate No. 360600/31/06/01/00003110 which was valid from 31.3.07 to 30.3.08. Car was insured for a sum of Rs. 1,20,000/- (I.D.V.) against Insurance Premium of Rs. 3357/-. Harbir Singh owner cum driver of the car was driving it on 2.6.07. It had met with an accident with Bolero Kemper No. PB-03P-9144 in the revenue limits of Police Station Nahianwala, District Bathinda. Harbir Singh had died. Criminal Case FIR No. 52 dated 2.6.07 was registered in Police Station Nahianwala against the driver of Bolero Kemper. Dead body was subjected to postmortem examination in Civil Hospital, Bathinda. Accident was intimated to the opposite party on 4.6.07. Car was taken on Superdari from the Court of Judicial Magistrate Ist Class, Bathinda. Mother of the deceased pre-deceased him and as such, complainants are only his legal heirs. As per certificate of the opposite party Insured's Declared Value is determined on the basis of the understanding between the Insurer and Insured and Insured's Declared Value shall be treated as market value through out the policy period without any further depreciation for the purpose of total Loss and Constructive Total Loss (CTL) Claims. Policy of the vehicle was not issued by the opposite party. Car was completely damaged and it is a case of total loss. Claim was lodged. The day car was taken on Superdari it was shifted to M/s. Krishna Auto's (Authorised Service Station of the manufacturing company of the car) 40' Road, Namdev Nagar, Bathinda. Opposite party sent letters dated 27.8.07 and 5.9.07 to complainant No. 1 and demanded estimate of repairs although this was not the duty of the complainants. Complainant No. 1 sent registered letter to the opposite party on 3.9.07 requesting the claim of the car. Further request was made for supplying her the copies of the survey report but it was not supplied. She got prepared estimates regarding repair of the car for a sum of Rs. 1,52,346.76 from M/s. Krishna Auto's on 27.10.07 and supplied them to the opposite party. A sum of Rs. 3,000/- was paid by her for preparing the estimates. Opposite party did not appoint final surveyor till 27.10.07. After that M/s. G S Associates, New Kamla Nehru Colony, Bathinda was appointed as final surveyor for assessment of the total loss of the car. In this manner final surveyor was appointed after about four months from the date of loss/first intimation of loss. Final surveyor took the signatures of complainant No. 1 on some blank forms, voucher, blank consent form and some blank papers with the understanding that total claim amount would be paid to them as per Insured's Declared Value as the loss as per estimate was much more than the Insured's Declared Value. Insured vehicle should be treated as a Constructive Total Loss if the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy, exceeds 75% of the Insured's Declared Value. Letter dated 5.2.08 was received by her through which threat was given to complainant No. 1 to file her case as no claim if she was not ready for repair of the car according to their wishes. It is added that copies of the spot survey report and final survey report have not been provided. Complainant No. 1 withdraws all the blank signed forms vouchers, consent form and papers. They allege deficiency in service on the part of the opposite party. In these circumstances, instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred seeking direction from this Forum to the opposite party to pay her claim amount of Rs. 1,20,000/- as per Insured's Declared Value alongwith interest @18% P.A. from the date of accident till payment; Rs. 3,000/- paid for getting the estimate prepared; Rs. 25,000/-as damages on account of mental agony, pain and sufferings and Rs. 10,000/- as litigation expenses.<br /> 2. Opposite party filed its version taking legal objections that since the complainants have not got repaired the vehicle, insured could not be indemnified as exact loss which has occurred cannot be assessed; complaint is bad for non-joinder of all legal heirs of the deceased; no succession certificate has been produced; complainants are estopped from filing the complaint by their act and conduct as another complaint under Section 12 of the Act was preferred by them and it was registered as Consumer Complaint No. 261 of 5.9.2007 which was decided on 13.12.2007 and that complainants claimed compensation only regarding the personal accident of owner insured. Hence they relinquished the claim of own damage of insured car. Claim has not been filed by duly authorised person. Complainants have failed to supply the requisite documents despite repeated requests and reminders by M/s. G S Associates and complaint is false and frivolous. They admit that Harbir Singh has died on 2.6.07. Insured's Declared Value has been mentioned in the policy. It is considered only for the total loss of the vehicle or in case of theft of the vehicle. In this case car was fully repairable as per survey report. Proposal Form was submitted by Harbir Singh insured on 28.3.05 for which policy was issued. Thereafter it was renewed. Policy was duly issued to Harbir Singh and despatched to him on 16.5.07 as per entry No. 6104 in the despatch register at page No. 265. Death of Harbir singh in the accident was intimated through letter dated 4.6.07. Spot inspection was done by Rajpal Singhal. Report dated 7.6.07 was submitted by him. M/s. G S Associates was deputed for final survey. Complainants did not supply the requisite documents for final settlement of the claim. M/s. G S Associates was left with no option except to submit its report without documents which were demanded on 30.1.08. M/s. G S Associates assessed the net loss to the vehicle to the tune of Rs. 73,647.67. Salvage value of the damaged parts has been assessed as Rs. 3,000/-. If the Forum comes to the conclusion that it is liable to pay compensation them its liability is to pay only Rs. 70,647.67 after the deduction of value of the salvage or to pay Rs. 73,647/- on deposit of salvage. As per terms and conditions of the policy, opposite party may at its option repair, reinstate or replace the motor car or part thereof and its liability shall not exceed the actual value of the parts damaged and or loss less depreciation. M/s. G S Associates, Surveyor and Loss Assessor s sent letters dated 15.12.07, 3.12.07 and 20.11.07 but complainants failed to get the vehicle repaired. It had issued letters dated 23.10.07, 5.9.07, 11.10.07, 27.8.07 and 5.2.08. Despite this, complainants did not submit the repair bills. Hence it was left with no option except to file the claim as no claim on 18.2.08. Reports of the surveyors are confidential and copies of them cannot be supplied to the complainants. Wrong estimates were got prepared by the complainants in-connivance with M/s. Krishna Autos. Complainants have already received the compensation regarding personal accident death claim of Harbir singh as per order dated 13.12.07 passed by this Forum. It denies deficiency in service and the remaining averments in the complaint.<br /> 3. In support of their averments contained in the complaint, complainants have produced in evidence affidavit of complainant No. 1 (Ex. C-1), photocopy of certificate of Insurance (Ex. C-2), photocopy of F.I.R. (Ex. C-3), photocopy of driving licence of deceased Harbir Singh (Ex. C-4), photocopies of esimates/quotations (Ex. C-5 & Ex. C-6), photocopies of letters dated 4.6.07 & 27.8.07 (Ex. C-7 & Ex. C-8) respectively, photocopy of letter (Ex. C-9), photocopy of postal receipt (Ex. C-10), photocopies of letters dated 5.9.07 and 5.2.08 (Ex. C-11 & Ex. C-12) respectively, photocopy of Court Order (Ex. C-13), photocopy of application dated 20.7.07 (Ex. C-14), photocopy of order dated 17.12.07 (Ex. C-15), photocopy of Circular (Ex. C-16), photocopy of letter dated 23.2.08 alongwith postal receipt (Ex. C-17), photocopy of letter dated 18.2.08 (Ex. C-18), photocopy of envelop (Ex. C-19), and photocopy of release order (Ex. C-20).<br /> 4. In rebuttal, on behalf of the opposite party affidavit of Er. Gurjinder Singh (Ex. R-1), Specimen of terms and conditions of Policy (Ex. R-2), photocopy of despatch register page No. 265 (Ex. R-3), photocopy of Motor Survey Report Final (Ex. R-4), photocopy of Motor Claim Form (Ex. R-5), photocopy of spot Surveyor Report (Ex. R-6), photocopy of letter dated 15.12.07 alongwith postal receipt (Ex. R-7), photocopies of reminders (Ex. R-8 & Ex. R-9), photocopy of claim Intimation letter (Ex. R-10), photocopies of letters dated 23.10.07, 11.10.07, 5.9.07, 27.8.07 (Ex. R-11 to Ex. R-14) respectively, affidavit of Sh. P K Jain, Senior Divisional Manager (Ex. R-15) and photocopy of certificate of Insurance (Ex. R-16) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the parties.<br /> 6. Some facts do not remain in dispute. They are that Harbir Singh was the owner of Car No. PB-11Y-5354. He had purchased comprehensive Insurance Policy for the period from 31.3.07 to 30.3.08 in which Insured's Declared Value is Rs. 1,20,000/- and copies of the Certificate of Insurance are Ex. C-2 & Ex. R-16. Harbir Singh has died in the accident on 2.6.07. Matter regarding accident was reported to the police and copy of the FIR registered in Police Station Nahianwala is Ex. C-3. Claim concerning the damage to the vehicle was submitted by the complainant on 29.10.07 and copy of the Claim Form is Ex. R-5. Through letter dated 5.2.08, opposite party directed complainant No. 1 to get the damaged vehicle repaired within 10 days from its receipt failing which it will close the file as no claim. Vide letter dated 18.2.08 copy of which is Ex. C-18, opposite party has closed the claim file on the ground that vehicle has not been got repaired and required formalities have not been completed despite repeated reminders.<br /> 7. One of the objections taken by the opposite party is that complaint is bad for non-joiner of necessary parties as all the legal heirs of the deceased have not been impleaded. This objection is not tenable as opposite party has not disclosed as to who are the other legal heirs of Harbir Singh. This Forum has already observed in its order dated 17.12.07 passed in Consumer Complaint No. 261 of 5.9.07 which was preferred by these complainants against the opposite party that they are the only legal heirs of the deceased and he has no other class-I legal heir. <br /> 8. Another objection of the opposite party is that no succession certificate has been produced by the complainants after the death of the Insured for the purpose of present claim. This objection cannot be entertained. Succession Certificate can be granted only in case of debts or securities to which deceased was entitled. Complainants are claiming the loss to the vehicle being legal heirs of deceased. It was not an asset belonging to the deceased. Complainants can claim this amount of their own. For this, we get support from the observations of the Hon'ble Supreme Court in the case of Smt. Rukhsana & ors. Vs. Smt. Nazrunnisa & Anr JT 2000 (4) SC-346. Similar view has been held in the case of Chitrapu Chinabapanalah & Ors. Vs. Union of India I(2005) ACC 822.<br /> 9. Admittedly complainants had preferred another complaint against the opposite party which was registered as Consumer Complaint No. 261 on 5.9.07. It was decided on 17.12.07 by this Forum. Plea of the opposite party is that complainants are estopped from filing this complaint by their act and conduct as another Consumer Complaint No. 261 was filed by them on the same cause of action under the same policy on account of Personal Accident of the Owner Insured. Further contention of the learned counsel for the opposite party is that this complaint is not maintainable in view of the fact that another previous complaint has already been decided on 17.12.07 and copy of the order is Ex. C-15. No weight can be attached to this contention as the claim under the previous complaint was not regarding damage to the vehicle as is in this case. Complainants have independent right for claiming the amount regarding the loss to the vehicle. Moreover, claim regarding damage to the vehicle has been repudiated vide letter dated 18.2.08 whereas previous complaint was decided on 17.12.07. Repudiation has given fresh cause of action to them.<br /> 10. Learned counsel for the complainants argued that terms and conditions of the policy were not supplied to the deceased and on that account complainants are not bound by the specimen of the terms and conditions of the policy copy of which is Ex. R-2. Ex. R-2 is the general proforma of the private car policy and not the copy of the original policy and as such it cannot be read. No policy number has been given on it. Only Certificate of Insurance was sent by the opposite party. Opposite party wrongly alleges that Insurance Policy alongwith terms and conditions was sent by making an entry in the despatch register at Serial. No. 6104 copy of which is Ex. R-3. To support his submissions, reliance is placed on the affidavit Ex. C-1 of complainant No. 1 in which she has stated that contents of the complaint be read as an integral part of her affidavit Ex. C-1. <br /> 11. Mr. Gupta, learned counsel for the opposite party argued that Insurance Policy alongwith terms and conditions were sent to Harbir Singh and it does not lie in the mouth of the complainants that they were not supplied.<br /> 12. We have given our careful consideration to the rival contentions and we feel ourselves inclined to agree with the learned counsel for the opposite party on this aspect of the matter. Ex. R-3 is the copy of the Despatch Register. Opposite party claims that copy of the Insurance Policy alongwith terms and conditions were sent to deceased by way of making entry in the despatch register at Sl. No. 6104 dated 16.5.07. No reliance can be placed on Ex. C-1 regarding this fact. Had Harbir Singh been alive, he could say that only Certificate of Insurance copy of which is Ex. C-2 was received by him and terms and conditions of the policy were not supplied. Certificate of Insurance alongwith terms and conditions were to be sent to him and not to the complainants. In such a situation, how can complainants say that they were not supplied by the opposite party. Document Ex. R-3 and the version of the opposite party get support from the Affidavit Ex. R-15 of Sh. P K Jain, Senior Divisional Manager who has stated in so many words that Harbir singh has got his car insured with the opposite party for the period from 31.3.07 to 31.3.08. Policy was the second renewal of the earlier policy. After the issuance of the cover note, policy alongwith its terms and condition was supplied on 16.5.07 vide Sl. No. 6104 as per despatch register maintained by the opposite party. Mere fact that opposite party has brought on record Ex. R-2 specimen of terms and conditions of the policy and it does not bear the policy number as has been given in the certificate of insurance copy of which is Ex. R-16 does not advance the cause of the complainants on this aspect of the matter particularly when learned counsel for the complainants could not tell that there are other terms and conditions with regard to the Insurance Policy purchased by the deceased. In these circumstances, we come to the conclusion that Certificate of Insurance and terms and conditions of the policy were supplied to the deceased.<br /> 13. Accident was reported to the opposite party vide letter dated 4.6.07 copy of which is Ex. C-7. Opposite party had appointed Sh. Rajpal Singhal as spot surveyor. He inspected the vehicle at site on 4.6.07. and submitted his report dated 7.6.07 copy of which is Ex. R-6. Damaged parts have been mentioned by him in his report. Opposite party wrote letters dated 27.8.07, 5.9.07 and 11.10.07 copies of which are Ex. R-14, Ex. R-13 and Ex. R-12 respectively seeking estimates regarding repair of the car. Car was lying in the Police Station in Criminal Case having FIR No. 52 dated 2.6.07 under Section 304, 279,337 ,472 IPC Police Station Nahianwala. An application was moved by complainant No. 1 for getting the Car on Superdari as is evident from Ex. C-14. Order was passed by Judicial Magistrate on 20.9.07 for allowing Superdari of the Car. Car was released on Superdari on 21.9.07 as is evident from Ex. C-20. Complainants got the estimates prepared from Krishna Autos (Maruti Authorised Service Station), copies of which are Ex. C-5 & Ex. C-6. According to them the car could be repaired for a sum of Rs. 1,52,346.76. Claim has been repudiated by the opposite party. Justification for repudiation of the claim is to be given by the Insurer. Counsel for the opposite party could not show us any term and condition of the policy according to which complainants were bound to get the car repaired before claiming the amount regarding loss to it. Insurance Company cannot wriggle out of its liability to pay the legally due insurance claim merely on the ground that vehicle has not got repaired by the concerned person or his legal heirs. In this view of the matter, we are fortified by the observations of the Hon'ble State Commission, Punjab, Chandigarh in the case of Sadeev Singh Sandhu and Sons Vs. United India Insurance Company Limited II(1999) CPJ 118. Hence contention of the learned counsel for the opposite party that vehicle was not got repaired, is not tenable. <br /> 14. Opposite party had appointed M/s. G S Associates as final surveyor on 29.10.07. Complainants were required to submit the estimate. Car was got released on superdari on 21.9.07. Thereafter estimates dated 27.10.07 were submitted. Before that final surveyor could not be appointed. In these circumstances, complainants cannot avail any benefit from the fact that final surveyor was appointed on 29.10.07.<br /> 15. Opposite party appointed M/s. G S Associates as final surveyor. Report of the final surveyor is dated 30.1.08 copy of which is Ex. R-8. According to it total loss has been assessed as Rs. 73,647.67p. Depreciation on metal parts has been considered as 25% and on rubber parts as 50%. Despite the fact that final surveyor has given the report copy of which is Ex. R-4 opposite party has repudiated the claim vide repudiation letter dated 18.2.08 copy of which is Ex. C-18. Atleast this amount could be allowed by the opposite party particularly when its surveyor has assessed the loss as Rs. 73,647.67p. Accordingly, there is deficiency in service on the part of the opposite party and the repudiation of the claim made by the opposite party by way of closing the file as No Claim is totally illegal and arbitrary. Accordingly, it is set aside.<br /> 16. Complainants are placing reliance on the copy of the Circular of Insured's Declared Value page No. 283 which is Ex. C-16. According to it Insured's Declared Value was to be treated as market value throughout the policy period without any further depreciation for the purpose of Total Loss/Constructive Total Loss claims and the insured vehicle was to be treated as Constructive Total Loss if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the Insured's Declared Value of the vehicle. Arguments of Mr. Garg, learned counsel for the complainants is that in this case Krishna Autos which is the authorised Service Station of manufacturing company i.e. Maruti Sazuki has issued estimates of Rs. 1,52,346/76p vide estimates Ex. C-5 & Ex. C-6. Insured's Declared Value is Rs. 1,20,000/- as mentioned in Ex. C-2 and as per Ex. C-16 car comes under Constructive Total Loss. It is beyond repairs as per Ex. C-16 and no depreciation can be considered and complainants are entitled to the total amount of Rs. 1,20,000/- which is the Insured's Declared Value. In our view complainants cannot get any benefit from Ex. C-16. Constructive Total Loss of the vehicle is to be considered subject to the Terms and Conditions of the Policy. Complainants have failed to establish that terms and conditions of the policy were not supplied to the deceased. Copy of the relevant terms and conditions of the policy is Ex. R-2. In this case, complainant No. 1 herself submitted the estimates for the repair of the car. As per terms and conditions, the Company may at its own option repair reinstate or replace the Motor Car or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed the actual value of the parts damaged and or loss less depreciation. Copy of the Final Motor Surveyor Report is Ex. C-4. It stands duly supported with the affidavit Ex. R-1 of Er. Gurjinder Singh Engineer of M/s. G S Associates. Complainants did not prefer objection against the report. Learned counsel for the complainants could not show that depreciations allowed by the final surveyor are not as per rules and regulations. Report of the surveyor is an important document and sufficient reasons must be shown to reject it or reasons for not accepting it as has been held by the Hon'ble National Commission, New Delhi in the case of Paam Eatables Limited Vs. United India Insurance Company Limited 2004(3) CLT 163. No sufficient reasons have been shown on the basis of which report copy of which Ex. R-4 can be thrown to the winds. Accordingly, it is accepted. Claim of the complainants that damage to the vehicle be treated as Constructive Total Loss is not acceptable as a Constructive Total Loss if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the Insured's Declared Value of the vehicle. As per terms and conditions of the policy, opposite party is liable to pay for the repairs of the damaged vehicle and loss has been assessed as Rs. 73,647.67 by final surveyor. Parties are bound by the contract of insurance. Terms and conditions of the policy are to over ride Ex. C-16. Accordingly complainants can claim the amount assessed by final surveyor and not the Insured's Declared Value.<br /> 17. Now question arises as to which relief should be accorded to the complainants. In the facts and circumstances of this case, direction deserves to be given to the opposite party to pay Rs. 73647.67 (Rupees 73648/- in round figure) on deposit of salvage by the complainants or Rs. 70,648/-after deduction of the value of the salvage if it is not deposited, alongwith interest @9% P.A. from 18.2.08 i.e. from the date of repudiation of the claim till payment. Complainants are craving for compensation of Rs. 25,000/- for mental agony, pains and sufferings. There is no case to allow it in view of the relief which is going to be accorded as above. Moreover, out of interest and compensation one can be allowed.<br /> 18. In the result, complaint is partly allowed against the opposite party with cost of Rs. 2,000/-. Complainants and opposite parties are directed to do as under :-<br /> i) Complainants to deposit salvage of the damaged parts of the vehicle with opposite party within 15 days from the date of receipt of copy of this order against receipt.<br /> ii) In case the salvage is deposited by the complainants with the opposite party, they would pay Rs. 73,648/- to the complainants alongwith interest @9% P.A. From 18.2.08 till payment within one month from the date salvage is received by it.<br /> iii) In case salvage of the damaged parts is not deposited by the complainants within 15 days from the date of receipt of copy of this order, opposite party would pay to the complainants Rs. 70,648/- alongwith interest @9% P.A.from 18.2.08 till payment (Rs. 73,647.67( Rs. 73,648/- in round figure) less Rs. 3,000/- within one month from the expiry of the above prescribed 15 days.<br /> Compliance with regard to the payment of cost be made within 30 days from the date of receipt of copy of this order.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 05-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br />