Punjab

Rupnagar

CC/14/132

Ashok Kumar - Complainant(s)

Versus

The Oriental Insurance Company Ltd. - Opp.Party(s)

Sh. B.L.Sharma, Adv

03 Mar 2015

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. : 132 of 17.10.2014

                               Date of decision                :  03.03.2015

 

Sh. Ashok Kumar, son of Sh. Hans Raj, earlier resident of VPO Gagret, Tehsil Amb, District Una (H.P.), currently resident of House No.555, Gas Colony, Darva, near Railway Station, Chandigarh.

                                                                             ......Complainant

                                             Versus

1. The Oriental Insurance Company, Regional Office at SCO No.109-

    110-111, Surendra Building, Sector-17-D, Chandigarh, through its

    Chief Regional Manager.

2. The Oriental Insurance Company Limited, Division Office, # 205,

     Railway Road, Nangal, District Ropar (Punjab), through its Senior

     Divisional Manager.

3.  The Oriental Insurance Company Limited, Una Road, Near LIC of

      India, Amb, District Una (H.P.) through its Branch Manager.

 

                                                                            ....Opposite Parties

 

                                       Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SH. V.K. KHANNA, MEMBER

MRS. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. J.S. Walia Advocate for Sh. B.L. Sharma Advocate, counsel for the complainant

Sh. H.C. Verma, Advocate, counsel for Opposite Parties 

 

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

                   Sh. Ashok Kumar, has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’ only) praying for the following reliefs:-

i)       To pay interest @ 18% P.A. from the date of loss i.e. 28.09.2012 till its realization on the whole amount mention in clause (a),

ii)      To pay Rs.1,50,000 as parking charges which are required to be paid to M/s CM Ashok Leyland for release of vehicle from their workshop,

iii)     To pay Rs.1,00,000/- as compensation for loss, harassment, mental agony and inconvenience suffered due to lapses on part of the O.Ps,

iv)     To pay cost of litigation expenses of Rs.50,000/-,

                                      Or

          Any other appropriate order/directions or further relief, which this Forum may deem fit in the facts & circumstances of the case, may be passed.

 

           

 

2.                In brief, the case of the complainant is that he had purchased a new vehicle (Ashok Leyland 2516) on finance, for earning his livelihood and except the said vehicle, he had no other source of income. He got the said vehicle insured from O.P. No.2, by paying a sum of Rs.37,223/- as insurance premium, which was later on registered with Registering Authority vide No.HP-19-B-4895. The O.P. No. 2 had issued insurance policy, namely, “GCCV-PUBLIC CARRIERS OTHER THAN THREE WHEELERS PACKEGE POLICY ZONE C” vide No.231491/31/2012/935, covering the period from 15.12.2011 to 14.12.2012 midnight, for the insured declared value of Rs.17,00,000/-. During the validity period of the said policy, on 28.09.2012, the said vehicle met with an accident by hitting with a tree, for which he immediately lodged DDR No.22 dated 29.09.2012 with the Police Post, Ramgarh, District Panchkula (Haryana). On the same day, he intimated about the said accident telephonically to the O.Ps. , but could not formally lodge the claim with them, immediately, as his son had died in the said accident, and he was busy in performing his last rites. After a few days, he formally lodged claim with the O.Ps. by filling the claim form. The O.Ps. had deputed one surveyor, namely, Mr. G.S. Riar, # 2692, Phase VII, Mohali, District Ropar, to assess the loss. All the documents, as demanded by the said surveyor, were provided by him.  He had sought the survey report under RTI from the O.Ps., which was sent by O.P. No.1 on 21.4.2014. The said surveyor, vide his report dated 7.2.2013 had assessed the loss to the tune of Rs.3,87,733.31. The vehicle was badly damaged and instead of declaring the loss as total loss, the surveyor & the O.Ps. decided to carry out the repairs of the said vehicle. In his report, the surveyor had wrongly mentioned that the insured/complainant did not shown him any paper, whereas all the documents, as desired by him, were handed over to him. No letter was received by him from the surveyor demanding any particular document, which was not supplied to him. The surveyor had further stated in his report that the repairer i.e. M/s CM Automobiles was not giving him any bill or any performa invoice, whereas the surveyor had allowed the claim as per estimates after confirming the rates from store person. It is stated that the accidental vehicle in question was got repaired at M/s CM Automobiles (P) Ltd., authorized dealer of Ashok Leyland, C-155, Industrial Area, Phase-7, Mohali (Punjab). The bill for the said repairs amounted to Rs.7,51,832/-. As the genuine claim has been delayed by the O.Ps. for a considerable period, the repairer is claiming more than Rs.9,00,000/-i.e. Rs.7,51,832/- towards repair bill and remaining amount of Rs.1,50,000/- approx. as parking charges, as the vehicle is lying parked at its premises. To his utter dismay & disappointment, inspite of his repeated requests & lapse of more than 20 months, the O.Ps. have not paid him the genuine claim. As per regulation No. 9.5 of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interest) Regulations, 2002, the insurer is to offer settlement of the claim to the insured or in case, the insurer, for any reasons, to be recorded in writing & communicated to the insured, decides to reject the claim under the policy, it shall do so, within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be, but the O.Ps. have never intimated about the status of the claim to him till 3.10.2013 i.e. uptil 8 months, after receipt of survey report. Thereafter, vide letter dated 13.11.2013, the O.Ps. asked him for consent to accept an amount of Rs.2,81,985/- only, without any rhyme and justified reason and without giving any calculations, whereas the repair bill was for Rs.7,51,832/- and the surveyor had assessed the loss to the tune of Rs.3,87,733.31. The O.Ps. did not pay any heed to his requests to pay the entire amount of Rs.7,51,832/-  i.e. the repair expenses of the said vehicle, therefore, he had got issued a legal notice dated 26.2.2014 upon the O.Ps. Due to non-payment of the claim amount by the O.Ps., his vehicle is lying parked with the repairer and he is unable to ply the same, which is the only source to earn his livelihood, and he is unable to pay the installments of loan amount & his loan account has already become irregular/NPA. The above said acts of the O.Ps. tantamount to deficiency in service and adoption of unfair trade practice,  due to which , he has suffered undue mental agony, humiliation and harassment for his no fault. He had earlier filed a complaint before the District Consumer Disputes Redressal Forum-I, U.T. Chandigargh, but due to lack of territorial jurisdiction, the said complaint was dismissed as withdrawn vide order dated 29.8.2014, however, liberty was granted to him approach the appropriate Forum, having jurisdiction. Hence, this complaint.

 

3.                On being put to notice, a joint written statement was filed on behalf of all the O.Ps. in the form of affidavit of Sh. A.K. Ahmad, Senior Divisional Manager, resisting the complaint taking preliminary objections; that the complainant had no locus standi and no cause of action to file the present complaint; that the complaint is not maintainable and is liable to be dismissed; that this Forum has no jurisdiction to entertain and try the same; that there is no deficiency in service on the part of the O.Ps.; that the complainant has suppressed the material fact from this Forum, in order to mislead and exploring the possibility of having some pecuniary advantage by abusing the process of law, because it has been filed without giving reference of the notice dated 27^th November, 2013 served upon O.P. No.3  through Sh. Jai Kumar Sharma Advocate, in which, in its para No.4, he had admitted regarding “No Spot Survey” and  that the complainant having not come to the Forum with clean hands is not entitled to any relief. On merits, it is admitted that the vehicle in question was got insured from the O.P. No. 3 vide policy and the period, as mentioned in the complaint, and it met with an accident by hitting with a tree on 28.09.2012 and DDR No. 22 dated 29.09.2012 was lodged with the Police Post, Ramgarh, Distt. Panchkula (Haryana). It is stated that a careful perusal of the DDR reveals that it is not DDR No. 22 dated 29.09.2012, but it is DDR No. 20 dated 28.09.2013. Even in the index to this complaint ‘Date of DDR’ is mentioned as 28.09.2013 and not 29.09.2012. This discrepancy in date and number of DDR creates doubt about ‘correctness of date of accident’ and ‘genuineness and correctness of contents of DDR’, in the background of which fact, it needs to be seen that the complainant did not inform O.P. No. 3 immediately about the accident. It is specifically denied that the complainant intimated about the accident to the O.Ps. on phone. Due to the said reason, no spot survey could be done, as admitted by the complainant himself in the legal notice dated 27^th November, 2013, referred to above. It is stated that in order to claim damages from the O.Ps., the complainant informed the O.P. No. 3 on 2.11.2012 i.e. after 34 days of the date of accident. Immediately after receipt of information on 2.11.2012, surveyor was deputed by the O.Ps. to assess cause, nature and extent of loss/damage caused to the vehicle, subject to the terms, exceptions & conditions of the insurance policy, who inspected the vehicle in question on 3.11.2012 and on subsequent dates, at CM Automobiles Pvt. Ltd., Mohali and gave his final report on 7.2.2013, assessing the cost of damage payable as Rs.3,87,733.31. The said surveyor is an independent qualified chartered engineer and the O.Ps. cannot be expected to answer on his behalf with regard to his report/findings. The settlement of claim made by the O.Ps. is perfectly in line with the guidelines of IRDA Regulations, 2002, because for settlement of the claim for damage caused to the vehicle has no link with bill for repair of the same. Terms & conditions of the policy in question clearly provides that 25% will be deducted from the claim amount in the absence of spot survey report. The O.Ps. have, thus, fairly asked the complainant vide letters dated 3.10.2013 & 13.11.2013 to give his consent for settlement of the claim in the sum of Rs.2,81,985/-, after deduction of 25% from the assessed amount, on account of ‘No Spot Survey’. Sh. Janardhan Chaudhary was driving the vehicle in question at the time of accident. In his driving license, he has been shown as resident of Village & PO Barta, Patti, Distt. Betia (Bihar), whereas his driving license was issued by the Licensing Authority, Mokokchung (Nagaland), for LMV, HMV, for the period from 28.09.2009 to 27.09.2015 i.e. for 6 years. As per Section 14(2) (a) of Motor Vehicles Act, 1988, it should have been issued for a period of 3 years. The surveyor had also doubted about the genuineness of the said driving license. Therefore, before settlement of the claim for damage caused to the vehicle in question, the genuineness of the said driving license was required to be verified from the issuing authority concerned, which took time. The O.Ps. had acted strictly in accordance with terms, exceptions & conditions of the insurance policy and final survey report dated 7.2.2013 of the surveyor and IRDA’s guidelines with regard to settlement of the claims. Payment of claim amount to the complainant is pending for want of his consent, as asked by the O.Ps. vide letters, referred to above. It is admitted that legal notice dated 26.2.2014 was served upon the O.Ps. by the complainant, but it is stated that in the said notice, intentionally, no reference was made about serving of the earlier notice dated 27^th November, 2013 upon O.P. No. 3  and registered head office of the O.Ps., through Sh. Jai Kumar Sharma Advocate, to suppress the material fact regarding “No Spot Survey”, which stands admitted in its para No. 4. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal of the same with costs.

 

4.                On being called upon to do so, the learned counsel for the complainant tendered his affidavit & photocopies of documents Ex. C1 to C12 and closed the evidence. On the other hand, the learned counsel for the O.Ps. tendered affidavit of Sh. A.K. Ahmad, Senior Divisional Manager, Ex. OP-1 & photocopies of documents Ex. OP-2 to Ex. OP-12 and closed the evidence.

 

5.                We have heard the learned counsel for the parties and gone through the record of the file, including the written arguments filed by them, carefully.

 

6.                The learned counsel for the complainant submitted that the vehicle, which the complainant purchased for earning his livelihood, was duly insured with the O.Ps. for the period from 15.12.2011 to 14.12.2012, the insured declared value of Rs.17,00,000/-. On 28.9.2012, the said vehicle met with an accident, and it got badly damaged and his son also lost his life. On 29.9.2012, the complainant lodged DDR with the Police and also informed the O.Ps. telephonically about the said accident, but could not formally lodge the claim with the O.Ps. immediately, as his son had died in the said accident.  After performing last rites of his son, he lodged a formal claim with the O.Ps., who deputed surveyor, to assess the loss, who vide his report dated 7.2.2013 had assessed the loss to the tune of Rs.3,87,733.31 against the repair bills of Rs.7,51,832/-. The report of the surveyor is not based on real & cogent proof, as he has not even verified the original repair bills/GR/invoices of the authorized dealer, who repaired the vehicle, and the same is based on conjectures and surmises. Subsequently, after deduction of 25% from the amount as assessed by the surveyor, the Nangal branch/Divisional office of the O.P. Company intimated that the claim has been settled at Rs.2,81,985/-, arbitrarily. As the claim for repairs and parking charges exceeded Rs.9.00 lacs, the complainant requested the O.Ps. to pay claim to that extent, but to no use. The learned counsel further submitted that the surveyor had submitted his report with the O.Ps. on 7.2.2013, inspite of that the O.Ps. intimated the complainant regarding settlement of his claim only on 3.10.2013 i.e. after a delay of 8 months, after receipt of the report from the surveyor, whereas as per regulation No. 9.5 of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interest) Regulations, 2002, the insurer is to offer settlement of the claim to the insured within a period of 30 days from the receipt of the survey report. Hence, there is clear-cut deficiency in service on the part of the O.Ps.

 

7.                The learned counsel for the O.Ps. submitted that the vehicle in question had met with an accident on 28.9.2012, whereas the complainant had informed the O.P. No. 3 on 2.11.2012 i.e. after the expiry of 34 days from the accident, therefore, spot survey could not be conducted. On receipt of claim form from the complainant the O.Ps. deputed surveyor, who after taking into consideration all the documents submitted by the complainant, has assessed the loss to the tune of Rs.3,87,733.31. After adding towing charges of Rs.2500/- and deducting salvage value of Rs.14253/-, the amount of claim came to Rs.3,75,980/-.

Since no spot surveyor was got conducted in this case, therefore, after deducting 25% of the said amount, as per provision of Chapter X & XI of Motor Vehicles Act, 1988, as mentioned in policy terms & conditions (Ex. C4), forming part of the policy in question, the claim was settled at Rs.2,81,985/- and the complainant was asked to give his consent to receive the said amount vide letters dated 3.10.2013 & 13.10.2014 issued to him by the O.Ps. Since, till now, no consent has been received from him, that is why the claim amount could not be paid to him. Therefore, the complainant himself is at fault and he cannot raise this objection that his vehicle is lying parked in the workshop for non-processing/payment of insurance claim by the O.Ps. and that they are liable to pay the parking charges.

 

8.                The complainant has alleged that the surveyor has assessed the loss by ignoring the repairs bills submitted by him, but has produced nothing to the contrary to rebut the loss assessed by the surveyor. Even he has not specifically pointed out that the value of which part has been under estimated or under-assessed by the said surveyor. Perusal of the surveyor’s report (Ex. OP-12) reveals that it is detailed one and while assessing the loss he has discussed, in detail, the damages of the major parts and also that of the small parts, alongwith their respective cost, and thereafter, after deducting the depreciation and including labour charges has assessed the loss to the tune of Rs.3,87,733.31. Thus, in this view of the matter, the contention of the learned counsel for the complainant that report of the surveyor is based on conjectures and surmises is baseless. In the case of ‘New India Assurance Co.Ltd. vs. Roshan Lal Oil Mills’ 2000(10) SCC 19, the Hon’ble Supreme Court has already held that the surveyor’s report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary. In the case, 2006 (2) CLT NC 349, ‘National Insurance Co. Ltd. & others Versus Aleyamma Verghese & others’ it has been held that surveyor’s report is an important document, which cannot be brushed aside, as such, assessment made by him has to be specifically agreed or rebutted. In 2012 (1) CLT (NC) 555, ‘Khimjibhai & Sons versus New India Assurance Co. Ltd.’ it has been held that discarding of surveyor’s report and bill scrutiny report by the District Forum is without any cogent & convincing reasons and mere production of bills or estimate cannot be the basis for discarding the same.

 

9.                Admittedly, in the instant case, after receipt of surveyor’s report, vide which he had assessed the loss at Rs.3,87,733.31, the O.Ps. after including towing charges of Rs.2500/- and deducting salvage value to the tune of Rs.14,253/-, had calculated the net payable loss at Rs.3,75,980/- and further as per provision of Chapter X & XI of Motor Vehicles Act, 1988, as mentioned in policy terms & conditions (Ex. C4), the O.Ps. have rightly deducted 25% amount  from the amount of Rs.3,75,980/- and assessed the amount payable to the complainant at Rs.2,81,985/-  and he was offered to give his consent for payment of the said amount to him vide letter dated 3.10.2013. It may be stated that the surveyor had furnished his report on 7.2.2013, whereas, the O.Ps. have offered the amount of Rs.2,81,985/- to the complainant vide letter dated 3.10.2013 i.e. almost after a delay of  8 months, after receipt of the surveyor’s report, whereas as per regulation No. 9.5 of the Insurance Regulatory and Development Authority (Protection of Policyholders’ Interest) Regulations, 2002, they were to offer settlement of the claim to the insured/complainant within a period of 30 days from the receipt of the survey report. It is a fact that the O.Ps. had only offered the payment to the complainant, but have not made any efforts to actually pay the same to him. Our view is supported by the order passed by the Hon’ble Punjab State Commission in the case ‘M/s Shital International versus United India Insurance Company Ltd.’, 2012 (1) CLT Pb. 326, wherein it has been held that settlement of claim within 30 days is mandatory as per regulation 9 of Regulations, 2002, but it has not been done by the O.Ps., therefore, interest at the rate of 9 per cent was awarded w.e.f. one month, after the date of submission of report by the surveyor. Hence, we do not hesitate to conclude that to that extent, the O.Ps. are deficient in providing services, and the O.Ps. are liable to pay the due claim amount alongwith interest at the rate of 9 per cent w.e.f. 09.03.2013  i.e. one month after the date of submission of report by the surveyor. Not only this, due to non-payment of claim amount in time, the complainant has suffered financial loss because he could not take delivery/ply his vehicle till date. The complainant is also entitled to get the compensation on account of mental agony & physical harassment suffered by him, in addition litigation expenses.

10.              In view of the aforesaid discussion, we partly allow the complaint and direct the O.Ps. in the following manner:-

i)       To pay Rs.2,81,985/- to the complainant alongwith interest @ 9% P.A. w.e.f. 09.03.2013, till realization,

ii)      To pay Rs.25,000/- as compensation,

iii)     To pay Rs.3000/- as litigation costs.

 

The O.Ps. are further directed to comply with the order within 30 days from the date of receipt of certified copy of this order.

 

11.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

ANNOUNCED                                           (NEENA SANDHU)

Dated 03.03.2015                                       PRESIDENT

 

 

(V.K. KHANNA)                    (SHAVINDER KAUR)

                    MEMBER                                MEMBER.