Haryana

Panchkula

CC/450/2021

RAJIV KUMAR SAINI - Complainant(s)

Versus

THE ORIENATL INSURANCE COMPANY LTD. - Opp.Party(s)

BHIM SINGH

09 Aug 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	450 of 2021
Date of Institution	:	22.10.2021
Date of Decision	:	09.08.2023

 

 

Rajiv Kumar Saini, Advocate, resident of House No.34-C, Aastha City, Peermuchalla, Zirakpur, SAS Nagar.

    ..….Complainant

Versus                                                                  

1.     The Oriental Insurance Company Limited, Branch Office:- SCO   325, 2^nd Floor, Sector-9, Panchkula, Haryana-134109.

2.     The Oriental Insurance Company Limited, SCO 5, Sector-17E,    Chandigarh-160017.

3.     The Oriental Insurance Company Limited, Regd. & Head Office:-        A-25/27, Asaf Ali Road, New Delhi-110002.

4.     Ultimate Automobiles Pvt. Ltd. 355, Industrial Area, Phase-II,    Panchkula-134109.

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Sh. Bhim Singh, Advocate for the complainant.

                         Sh. Krishan Kant, Advocate for the OPs No.1 to 3.

                         None for the OP No.4.

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are that the car bearing registration no.HR78-A-1712 model Hyundai Excent owned by the complainant, which was insured with OP No.2 vide policy no.231203/31/2020/5245 w.e.f. 29.10.2019 to mid-night 28.10.2020, met with an accident on 25.10.2020, wherein back portion of the car along with its front mirror had got damaged; on 26.10.2020, the complainant had approached the OP No.4 in-connection with the repair of the car; the OP No.2 was informed about the accident as well as repair work; It is stated that rough estimate amounting to Rs. 29,044/- was given and accordingly, the claim form was filed with insurance company; on 28.10.2020, the OPs i.e. the insurance company had allowed the repair of the front mirror only as expenses incurred thereon were on lower-side in comparison to expenses to be incurred in the repair of the back side of the car. It is stated that the rejection of the claim was wrong and incorrect. A legal notice was sent to Ops on 20.06.2021 through counsel. An email was also sent to OPs on 20.06.2021 & 17.08.2021. The OP No.4 had also taken a sum of Rs. 1,000/- as file charges. It is averred that the complainant got repaired the damaged part of the car on its back side from private denter and painter by paying a sum of Rs.5,000/-. It is averred that the Ops have failed to redress the grievances of the complainant despite the receipt of legal notice. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notices, the OPs No.1 to 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; the complainant is not a consumer as defined under the Consumer Protection Act. It is submitted that the privity of contract or relationship of consumer and service provider between the parties, if any, came to an end as the complainant had accepted the amount unconditionally. The claim of the complainant was settled in cashless mode & a sum of Rs.4,856/- has already been paid to OP No.4/repairer and thus, the relationship of the consumer has come to an end. The complainant never raised any protest for the alleged short payment & nor alleged any coercion, undue influence, fraud or misrepresentation on the part of OPs No.1 to 3.

                On merits, it is admitted that the car in question was insured vide Private Car Package Policy No.231203/ 31/2020/5245 valid for the period 29.10.2019 to 28.10.2020, and  the same had met with an accident. It is denied that the said vehicle got damaged from the rear side(back side) as well as from the front side. It is submitted that on receipt of the intimation/information about the accident from the complainant, the OPs deputed an IRDA Licensed Surveyor i.e. Select Technical Services to conduct the survey of the accidental vehicle, who had assessed the loss to the tune of Rs.4,856/-. It is submitted that the surveyor did not allow the repair of the damaged parts on the rear side of the vehicle, which were not related to the cause of accident. It is admitted that the repair estimate amounting to Rs.29,044/- was prepared by the repairer. The surveyor has stated that the losses as claimed by the complainant were old and were not related to the present cause of accident. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 to 3 and as such, the complaint is liable to be dismissed.

                The OP No.4 has filed its written statement mentioning therein that the car in question was brought to it for carrying out the necessary accidental repairs. The OP No.4 had followed the standard operating procedure for obtaining the approval from the insurance company. It is stated that OP No.4 had carried out the repair of the car as per approval received by it from Oriental Insurance Company.

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs No.1 to 3 has tendered affidavit as Annexure R-1/A & R-1/B along with documents as Annexure R-1/1 to R-1/5  and closed the evidence. The evidence of the OP No.4 was closed by the Commission vide its order dated 22.03.2023.

4. We have heard the learned counsels for the complainant and OPs for OPs no.1 to 3 and gone through the entire record available on file including written arguments filed by the complainant, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as well as affidavit Annexure C-A of the complainant contended that the OPs No.1 & 2  had wrongly disallowed the repair of the damages as sustained by the car in its rear portion in the accident on 25.10.2020. It is contended that the complainant had got repaired the rear portion from private denter and painter by incurring an expenses of Rs.5,000/- and thus, the OPs No.1 to 3 were  deficient in rendering services to the complainant.

6.The Ops No.1 to 3 has contested the complaint, apart from merits, by raising several preliminary objections. The learned counsel for OPs No.1 to 3, during arguments, contended that the claim of the complainant was settled in the cashless mode by paying a sum of Rs.4,856/- to OP No.4/ repairer and thus, the relationship of consumer and service provider between the complainant and OPs No.1 to 3 had come to an end. The learned counsel vehemently contended that the complainant had never raised any protest for the alleged short payments nor alleged any coercion, undue influence, fraud or misrepresentation. Reliance has been placed on the case decided by Hon’ble NCDRC on 22.01.2015 titled as M/s MJRJ Medichem Surgicals Vs. National Insurance Co. Ltd & Ors. in Revision Petition No.1927 of 2013.

7.The aforesaid contention raised by the learned counsel for OPs No.1 to 3 is not tenable as no acknowledgment was ever given by the complainant to the OP in respect of full and final settlement of the accident claim. The law laid down by the Hon’ble National Consumer Commission, New Delhi in case supra is not disputed but the same is not applicable to the facts of the present complaint being distinguishable on facts.

8.On merits, the learned counsel for the OP No.1 to 3 has argued that the claim was settled for a sum of Rs.4,856/- on the basis of surveyor report. It is contended that the surveyor’s report cannot be brushed aside or overlooked while settling the claim. Reliance has been placed on the case titled as D.N.Badoni  Vs. Oriental Insurance Co. Ltd. reported in 1 (2012) CPJ 272(NC).

9.Admittedly, the car bearing registration no.HR-78-A-1712 met with an accident on 25.10.2020 during the subsistence of the insurance policy, which was valid w.e.f. 29.10.2019 to 28.10.2020. The repair estimate qua the damages sustained by the said vehicle amounting to Rs. 29,044/- prepared by the repairer/OP No.4 is also not disputed.

10.As per arguments advanced by the learned counsel for the parties, it emerges that the dispute between the complainant and OPs No.1 to 3 is about the surveyor’s report(Annexure R-1/2), wherein the expenses incurred on some mechanical parts were not allowed.

11.We have perused the surveyor report dated 27.10.2020 (Annexure R-1/2) and find that the expenses qua certain mechanical parts were not allowed by the surveyor. The relevant part of the surveyor report, for the sake of clarity and convenience, is reproduced as under:-

Sr. No.	Parts Description	Remarks	Estimated Amount(Rs.)
1.	Panel Assy Trunk LId	Not allowed	2838.79
2.	Hinge Assy Trunk LID LH	Now allowed	2600.22
3.	Hinge Assy Trunk LID RH	Now allowed	2600.22
4.	Latch Assy Trunk LID	Not allowed	696.47

 

12.Upon raising the dispute by the complainant qua the rejection of the claim about replacement of certain mechanical parts, the surveyor furnished the reasons vide email dated 19.07.2021 (Annexure R-1/5). As per the said email, the surveyor has stated that the damages on the rear portion of the car were not fresh. It is further stated that the damages to the vehicle were not related to the cause, nature and impact of the accident.  

13.Pertinently, the surveyor vide his report dated 27.10.2020 (Annexure R-1/2) had not given any reason, on the basis of which, he had not allowed the repair of certain mechanical parts as mentioned in the above para. The justification furnished by the surveyor vide email dated 19.07.2021(Annexure R-1/5) lacks credibility as it is against the findings given in his report dated 27.10.2020(Annexure R-1/2), wherein under the head of “notes”, it was clearly mentioned that “the damages were found fresh, do confirm  with cause, nature and impact of accident”. We are unable to understand the factors, which had led the surveyor to disallow the repair of four mechanical parts amounting to Rs.8735.70(Rs.2838.79+2600.22+2600.22+696.47). The damages sustained by car in accident were not disputed as the rough estimate amounting to Rs. 29,044/- prepared by the repairer i.e. OP No.4 is not disputed. The case law supra as relied by Ops is not disputed but the same is not applicable to the facts and circumstances of the present case. Therefore, in view of the aforesaid discussion, we are of the considered view that the OPs No.1 to 3, jointly and severally, had been deficient, while rendering services to the complainant; hence, he is entitled to relief. The present complaint is dismissed qua OP no.4 as no deficiency has been found against it.

14.Coming to relief, it is found that the complainant as per averments made in para no.11 of the complaint as well as corresponding para of his affidavit Annexure C-A has claimed the payment of an expenses amounting to Rs.5,000/-, which allegedly had been incurred by him in getting  the necessary repairs qua the damaged parts of the car. Therefore, it would be reasonable and justified to allow the present complaint partly and accordingly, the OPs No.1 to 3, jointly and severally, are directed to pay a sum of Rs.5,000/- to the complainant, which he had incurred in getting the necessary repairs of the car from the private repairer. Keeping in view the factual position stated above, the prayer of the complainant qua grant of compensation on account of mental agony, harassment and litigation charges is declined.

15.  The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be entitled to the interest at @9% (s.i.) per annum on the amount of Rs.5,000/- from the date of receipt of copy of this order till actual realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties of the complaint and file be consigned to record room after due compliance.

Announced on: 09.08.2023

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President