DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No.CC/15/99 of 13.5.2015

                                      Decided on: 15/03/2016     

Mandeep Singh, aged about 30 years S/o Sh.Bhagwan Singh resident of Village Achanak, Tehsil Budhaladha, District Mansa ( Owner of Vehicle No.PB-31-J-4257). Mobile No.98781 58186.

                                                                   …………...Complainant

                                      Versus

1.      The Reliance General Insurance , Regd.Office, Reliance Centre, 19 Balchand Hira Lal Marg Ballard Estate, Mumbai- 400 001.

2.      The Reliance General Insurance, Policy Service Office, 1^st & 2^nd Floor, SCO No.36/37, Leela Bhawan, Patiala, Punjab 147 001.

                                                                   …………….OPs

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh. A.P.S.Rajput, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member                               

Present:

For the complainant:     Sh.Mahesh Puri, Advocate

For OPs:                         Sh.Amit Gupta, Advocate           

                                         ORDER

A.P.S.Rajput, PRESIDENT

1. Complainant Mandeep Singh s/o Sh.Bhagwan Singh R/o Village Achanak, Tehsil Budhladha, District Mansa has filed this complaint against the opposite parties ( hereinafter referred to as the OPs) under Section 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. It is the case of the complainant that he purchased new car make Chevrolet Beat of Sandrift gray having engine No.B12D110AJVZ111520112, chassis No.MA6BFBF2BBT058205 vide invoice No.R00158-A dated 14.11.2011 for an amount of Rs.3,73,434/-The car was got allotted registration No.PB-31-J-4257 from the DTO, Patiala.The car was also got insured from the Ops under a Private Vehicle Package policy having policy No.2010532311009692 for the period  from 3.12.2013 to 2.12.2014.
3. It is the case of the complainant that on 9.11.2014 when Avtar Singh s/o Parsan Singh alongwith Kulwinder Singh s/o Mukhtiar Singh both residents of village Kahangarh P.S.Patran District Patiala and Gursewak Singh and Lakha Singh @ Lakhwinder Singh both sons of Avtar Singh were coming back to their village Kahangarh from village Khanouri at about 11PM due to sudden flashing of lights and turning, the car fell into “Khaitan” and turned turtle  near Ghuman Dhaba in the area of village Paind and the car was totally damaged . At that time the car was driven by Sh.Avtar Singh s/o Parsan Singh who was holding valid driving licence.In the accident Gursewak Singh and Lakha Singh received injuries. Gursewak Singh got treatment from Giani Lal Singh Memorial Hospital, Patiala on 11.11.2014 while Lakhwinder Singh @ Lakha got treatment from Rajindera Hospital, Patiala on 17.11.2014.
4. It is also the case of the complainant that after the accident Avtar Singh , driver of the car lodged the FIR No.6 dated 10.11.2014 with P.S.shatrana. The claim was also submitted with the Ops but the Ops put off the matter without any excuse and repudiated the claim of the complainant vide their letter dated 4.3.2015 which is illegal, arbitrary and against the facts on record.Thus on account of deficiency of service on the part of the OPs, the complainant prayed for a direction to the OPs to pay Rs.2,93,938.98p alongwith interest @ 18% per annum till its actual realization and Rs.20,000/- as litigation expenses.
5. Notice of the complaint was given to the Ops, who appeared and filed the written version. The insurance of the vehicle for the period from 3.12.2013 to 2.12.2014 is not denied by the Ops but subject to the terms and conditions of the policy. The submission of the claim on 10.11.2014 i.e. during the currency of the policy has also been admitted by the Ops. It is also alleged by the Ops that the surveyor Sh.Damanjit Singh was appointed for final survey and Investigating agency M/s Cross Check Consultant to ascertain the material facts relating to the accident has also been deputed by them. In the report of the investigating agency it has been stated that at the time of accident the car was driven by Gurdev Singh whereas in the DDR it has been submitted that the car was driven by Avtar Singh but in a duly notarized affidavit, the complainant had intimated that the vehicle was driven by Sh.Kulwinder Singh who was not having a valid driving license at the time of accident, in violation of the terms and conditions of the policy and the claim of the complainant was repudiated vide letter dated 4.3.2015. The Ops have denied all other averments made in the complaint and it is prayed to dismiss the complaint.
6. In order to prove his case, the complainant tendered in evidence Ex.CA his sworn affidavit, Ex.CB, the sworn affidavit of Gursewak Singh alongwith the documents Exs.C1 to C23 and his counsel closed the evidence.
7. On the other hand, on behalf of the Ops, their counsel tendered in evidenceEx.OPA, the sworn affidavit of Sh.Amit Chawla, Dy.Manager, Reliance GIC alongwith documents Exs.OP1 to OP4 and closed the evidence.
8. The ld. counsel for the complainant has submitted that the claim of the complainant was repudiated on the basis that Kulwinder was driving the said vehicle and he did not possess a driving license. The ld. counsel stated that as per the investigation report i.e Ex-C19 it has been proved that the said vehicle was borrowed by Gursewak Singh and the said car was also being driven by Gursewak Singh at the time of the accident. The ld. counsel also stated that in the survey report i.e Ex.OP1  the name of the driver is also mentioned as Gursewak Singh.   He further stated that Gursewak Singh is having a valid driving license i.e Ex.C-22. The ld. counsel pleaded that the Survey Report i.e Ex.OP1 cannot be fully relied upon as the same had been prepared under the influence of the OPs. The ld. counsel also pleaded that the accidental car was taken to the authorized dealer of the car manufactures and the authorized dealer prepared the estimate and the bills i.e Ex.C1.He stated that the OPs were bound to settle the claim on the basis of the IDV value as mentioned in Ex.OP4(colly).He argued that while calculating the total cost, the surveyor did  not include the kept open assembly cost i.e Rs.64,042.60/- mentioned on page no.4 of survey report i.e Ex.OP1.He further argued that it is well established that the OPs had acted negligently and committed deficiency of service by repudiating the claim of the complainant and the complainant deserves to be compensated for the same. To support his contentions the ld. counsel relied upon the following case law;National Insurance Company Ltd., Versus Saboo Tor Pvt.Ltd. & Ors.2013(4)C.P.J.464 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in which in paras No.9,10& 13 it has been observed: “9. It is apparent that the respondent No.1 herein was not interested getting the car repaired or even get it assessed for damaged sustained. It also appears that Respondent No.1 was all along coercing the surveyor and the petitioner to get the claim on total loss basis even without ascertaining the extent of damages and deliberately with ulterior motive avoided cooperating with assessment of damages on one pretext or the other. Hence , the petitioner had no option but to close the claim as “NO CLAIM”.

10. As per GR-8 of India Motor Tariff- a vehicle can be declared as a Total Loss “A vehicle will be considered to be a CTL, where the aggregate cost of retrieval and / or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV.” Thus it is imperative for the petitioner to ascertain the repair cost of the vehicle before arriving at a decision to declare it a total loss.

13.    The Ops contended that the claim of the Complainant was duly considered in due course but the surveyor turn down the request of the Complainant as the car was within the scope of repair. It was admitted fact that the car of the Complainant insured with the OP for L 5,38,296 and due to accident it was badly damaged and the loss of vehicle assessed at repair basis by the surveyor of Insurance Company. The accident took place after nine months of the commencement of the policy therefore the Complainant is entitled to insured benefits of the vehicle by deducting depreciation at the rate of 10% of the cost of vehicle”,  Vinit Poonia Versus New India Assurance Co.Ltd. and Anr. 2012(2) C.P.J. 163: 2012(3) CLT 454 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, wherein in paras No.9 and 10 it has been held: “9. A perusal of the reports submitted by M.C.Chitra, Spot Surveyor and A.S.Duggal, Surveyor and Loss Assessor shows that the vehicle in question was extensively damaged. As per report of the Spot Surveyor, apart from the damage to the body of the vehicle, basic components based on which the vehicle runs were badly damaged, chassis frame was bent/disaligned, all sheets frame/channel were disturbed, all leaf springs assembly damaged, radiator assembly and accondenser assembly were damaged and engine was found to be dead as the engine oil drained out. Similarly, as per report submitted by A.S.Duggal, Surveyor and Loss Assessor, the complete body shell of the vehicle both sides were badly pressed, dented and pushed inside; the steering assembly was pressed, bent and hard in movement; the chassis frame both side longitudinal members, cross member were pressed, bent and buckled, the engine mountings with brackets were pressed, sheered and cut and the engine assembly was seized as the complete engine oil leaked out from the sump. His conclusion was that the accident was caused due to mechanical failure as the engine assembly has run without engine oil for a sufficient time. This conclusion of the Surveyor cannot be accepted as he never opened the engine assembly. The vehicle met with an accident while it was running. Because of the impact of the vehicle many parts of the body of the vehicle were damaged/destroyed and possibly the engine oil leaked out at the spot itself. He also concluded  that the vehicle could be repaired and, accordingly, assessed the loss on repair basis. From the report of the Spot Surveyor and the Loss Assessor, it is evident that the damage to the vehicle was extensive. Both sides of the body shell of the vehicle had been badly pressed; right front  suspension including the right front wheel rim, suspension arm were pressed, pushed inside and bent; steering assembly was pressed, bent and hard in movement; chassis  frame both side longitudinal members, cross members were pressed, bent and buckled; the engine mountings with brackets were pressed, sheered and cut which show that all the vital parts of the vehicle including the chassis engine alignment, etc., had been damaged. Looking to the extension damage caused to the vehicle we are of the opinion that the vehicle could not be repaired. It was a fit case of total loss as the car was not in a repairable condition.

10.    For the reason stated above, the Revision Petition is allowed and the order of State Commission is set aside. Since the vehicle was insured on 15.1.2013 and it met with an accident on 17.10.2013, we direct the Respondent Insurance Company to pay the insured sum of L 4,40,000 after deducting 15% towards the depreciation and cost of the salvage, to the complainant alongwith interest @ 9% p.a. from the date of repudiation till realization within a period of 8 weeks from the date of receipt of copy of the order. If any amount is already paid to the Complainant in terms of the order of the State Commission, the same may also be adjusted against the amount payable to the Complainant”,  Rugha Ram 125, Vivekanand Colony Near Telephone Exhange, Sumrepur Pali Rajasthan Versus New India Insurance Co.Ltd. Ist Mandal Office, Abhay Chamber, Jalori Gate Jodhpur 2015(2) C.P.J.132 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, wherein in para no.13 it has been observed: “13. We have analysed the report of the final survey and find that following important aspects emerge from the analysis, which could not be disputed:-

(i)      Besides burning of the body of the vehicle including the wooden parts thereof, most of the 275 parts particulars of which are recorded in the report, got melted and the remaining few parts were either burnt or damaged.

(ii)    The 9 major parts, details of which are given in para 11, have been simply shown to have been heated up and damaged without proper assessment in respect of the amount required for their repair and restoration ( if at all the same was feasible).

(iii)   No specific points of contradiction or loopholes have been recorded by the surveyor in respect of the estimates provided by Aruna Motors which is an authorized workshop and which carried out the work of assessment of damage and loss to the vehicle after the incident” and New India Assurance Company Limited Versus Pardeep Kumar 2009(8) JT 141 : 2011(7)R.C.R.(Civil) 395: 2009(7) SCC 787: 2009(6) Scale 253: 2010(1) J.C.R. 199 : 2009(4) C.P.J. 46 : 2009(3)SCC (Civil) 314 : 2009(4) ALL WC 3373 :2010(1) PLR 626 : 2010(1) CLT 266 of the Hon’ble Supreme Court of India, wherein in para no.23 it has been observed: “B.Consumer Protection Act,1986, Section 2(1)(g)-Insurance Act,1938, Section 64UM-Insurance claim-Claim for repair of accidental truck- Supported by original voucher, bills and receipts-Considering actual expenses incurred and payment of interest on loan amount District Forum awarded a sum of Rs.1,58,409/- - Not interfered with.”     

9. On the other hand, the ld.counsel for the OPs has submitted that the claim of the complainant had rightly been repudiated keeping in view the terms and conditions of the policy. He further submitted that as per the DDR at the time of the accident, the said car was being driven by Kulwinder Singh and he was not possessing driving license. He also pleaded that as per the investigation report it is established that the said car was being driven by Kulwinder Singh. He stated that the surveyor has assessed the loss taking into consideration the market value of the vehicle and the deprecations, hence his report be accepted.     
10. After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral argument, we find force in the submissions made by the ld. counsel for the complainant. After perusing the investigation report i.e Ex-C19, survey report i.e Ex-OP1 and the conversation between the complainant and the OPs representative i.e Ex.OP2,we are of the opinion that it is established that the said vehicle at the time of accident was  driven by Gursewak Singh and he was having a valid driving license i.e Ex-C22.It has also come to our notice that the surveyor has not accessed the value of the claim as per the Insured’s Declared Value (IDV) i.e Ex.OP4(colly) and the same reads as; Sum insured –Insured’s Declared Value (IDV) The Insured’s Declared Value (IDV) of the vehicle will be deemed to be SUM INSURED for the purpose of this policy which is fixed at the commencement of each policy period for he insured vehicle.

The IDV of the vehicle ( and accessories if any fitted to the vehicle) is to be fixed on the basis of the manufacturer’s listed selling price of the brand and model as the vehicle insured at the commencement of insurance/renewal and adjusted for depreciation (as per schedule below)

The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/Constructive Total Loss(LT/CTL)claims only

11. We have also noted that the surveyor while calculating the Insurance Company’s liability has not added the expenditure of Rs.64,042.60/- as mentioned under the Kept Open Assembly. Moreover there is lots of difference between the loss assessed by the surveyor and  the estimate and the bills issued for approval from the authorized dealer of the manufacture i.e Ex.C8 (colly) amounting to sum of Rs.2,07138.21/- . Thus we feel that the report of the surveyor i.e. Ex-OP1 is not sustainable and cannot be relied upon .
12. The vehicle was insured for a sum of Rs.2,50,000/- and the estimate issued by authorized dealer amounts to Rs. 2,07,138.21/-,it is evident from the estimate of repair and photographs attached with the survey report that the present case is that of total loss.The surveyor has also assessed the loss on net salvage basis amounting to Rs. Rs.25000/-.The estimate of repair of the said vehicle is more than 75% of the total IDV of vehicle.    
13. Accordingly in view of our aforesaid discussion and the case law relied and titled as National Insurance Company Ltd., Versus Saboo Tor Pvt.Ltd. & Ors., Vinit Poonia Versus New India Assurance Co.Ltd. and Anr.,  Rugha Ram 125, Vivekanand Colony Near Telephone Exhange, Sumrepur Pali Rajasthan Versus New India Insurance Co.Ltd. Ist Mandal Office, Abhay Chamber, Jalori Gate Jodhpur and New India Assurance Company Limited Versus Pardeep Kumar (Supra) by the ld. counsel for the complainant, we accept the present complaint, with direction to the OPs to pay                   ( Rs.2,50,000/- IDV) - ( Rs.25,000/-Salvage cost) a sum of Rs.2,25000/- in lieu of his claim alongwith 6% interest p.a from the date of institution of the present complaint till its realization, as per  the Insured’s Declared Value (IDV) i.e Ex.OP4 (colly).
14. In our opinion the OPs have acted negligently while repudiating the claim of the complainant, thereby causing unnecessary mental as well as physical harassment to the complainant. Thus complainant is entitled to compensation amounting to Rs.10000/- on account of mental agony alongwith litigation cost amounting to Rs.5000/-.The OPs are directed to comply with the order of this Forum within 45 days from the date of receipt of this order otherwise the OPs shall be liable to pay 9% interest on the total awarded amount till its realization.  
15.  The arguments on the complaint were heard on 25.2.2016  and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:15.03.2016

               Sonia Bansal           Neelam Gupta                        A.P.S.Rajput

        Member                Member                                  President