Haryana

Ambala

CC/216/2017

Dr.Anita Bhushan - Complainant(s)

Versus

UII - Opp.Party(s)

Anu Sareen

03 May 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

                                                                      Complaint case no.        :  216 of 2017

                                                          Date of Institution         :  28.06.2017

                                                          Date of decision    :  03.05.2019

 

 

Dr. Anita Bhushan w/o Sh. D.K. Bhushan 33,  Gobind Nagar, Ambala Cantt. 

……. Complainant.

 

 

1.       M/s United India Insurance Co. Ltd. Divisional office at Tirloki Chambers, Opp. Municipal Corporation Office, Ambala Cantt.

2.       M/s United India  Insurance Co. Ltd. Regional  Office at SCO 123-124, Sector-17-B, Chandigarh.

3.       M/s Globe Toyota, Opp. Springfield School, Village Sadopur, Ambala-Chandigarh Highway, Ambala.

4.       Insurance Regulatory & Development Authority, Gate No.3, Jeevan Tara Building, First Floor, Sansad Mard, New Delhi-110001.

 

 ….…. Opposite Parties.

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.

                  

                            

Present:       Sh. U.SChauhan, Advocate, counsel for complainant.

Sh. Mohinder Bindal, Advocate, counsel for OPs No.1&2.

Sh. G.S.Antal,  Advocate, counsel for OP No.3.

None for OP No.4

 

 Order:        Smt, Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To pay Rs.56,500/- which was illegally deducted from the amount as assessed by the surveyor.
2. To pay Rs.10,000/- as litigation expenses.
3. To pay Rs.10,000/-on account of delay of more than six months in settlement of claim.
4. To pay Rs. 20,000/- charged by the OP No.3 as  garage charges from the complainant, for parking the damaged car in its workshop, before settlement of the claim.
5. To pay Rs.10,000/- on account of inconvenience, mental agony and physical harassment suffered by the complainant.   

 

In nutshell, brief facts of the present complaint are that the complainant got insured her Innova car No.HR37C-5707 from the OP No.1, vide policy no.1101003113P107405273, for the period from 14.02.2014 to 13.02.2015, by paying premium of Rs.14,497/. On 05.12.2014, son-in-law of the complainant was going to Delhi in the above said car, at about 8.00PM near Patti Kalyana, District Sonepat, a truck going ahead suddenly applied breaks, inspite of best efforts to save the accident, the car could not be stopped and banged in the truck causing damages. Complainant informed about the above said accident to the police station, Samalkha and also to OP No.1. As advised by the OP no.1, the damaged car was shifted to Globe Toyota Ambala, OP No.3. The car of the complainant was inspected by Sh. Sanjeev Mahajan Surveyor, appointed by OP No.1, who after inspection declared the car of complainant as total loss, on the basis of estimate prepared by the OP No.3. The surveyor Sh.Sanjeev Kumar assured the complainant that OP No.1, will pay all the claim amount as assessed by him. After few days, the said surveyor insisted the complainant to retain the damaged car for Rs. 1,50,000/- and assured that he will get the customer for the purchase of the damaged car. Although there is no provision/condition in the policy that in case of total loss, the insured will retain the salvage, yet just to avoid delay in settlement of the claim and the assurance given by the surveyor, complainant had got no option except to accept the unfair proposal. The surveyor, Sh. Sanjeev Mahajan issued his report no.UII-512 dated 06.01.2015 for settlement of the claim, on the net of salvage basis for Rs.5,48,000/-,after deducting the salvage value of Rs.1,50,000/- with the observation that this mode of settlement “On net of settlement  basis” will relieve  the OP no.1 of spending extra  amount on transfer of R.C.,warehousing charges for storing salvage and advertisement  charges for sale of salvage etc. The OP No.1 did not process the claim as assessed by the surveyor Sh. Sanjeev Mahajan but other report dated 01.02.2015 was obtained by the OP No.2, from the said surveyor, and sent to OP No.1. The said surveyor in his second report assessed the loss on net of salvage basis but had reduced the IDV of the car from Rs.7 lacs to Rs. 6,23,926/- and by deducting salvage value of Rs.1,50,000/- had reduced the liability of the OP No.1 from Rs.5,48,000/- to Rs. 4,71,926/- Complainant approached the OP No.1, various times and convinced it that there is no provision in the policy to reduce the IDV, which is fixed at the time of issuance of policy. The complainant also informed the OP No.1 that the OP No.3, had asked her to pay Rs.100/- per day as garage charges, for keeping the damaged car in its workshop.  Complainant also requested the OP No.1 to approve the claim, so that the garage charges can be avoided and the salvage may be disposed off, before its value decrease further. Although it was in the knowledge of the OP No.1 that garage charges are to be borne by the complainant for retaining the damaged car in the workshop of OP No.3, after certain period, yet it just to give undue benefit to its partner OP No.3, had not given approval within the time frame fixed by the IRDA. Thereafter, the surveyor Sh. Sanjeev Mahajan issued his third report on the instructions of OP No.2, wherein he considered the IDV of the car as Rs.7 lacs, but to fulfil the evil design of OP No.2, increased the salvage value from Rs.1.50 to 2.03 lacs. Moreover the third report of Sh.Sanjeev Mahajan was not with the OP No.2 while processing/approving the claim, as the same was received in the office of OP No.1,after settlement on 01.07.2015. Complainant immediately raised the objection with regard to short payment/settlement of claim and asked the OP No.1 to pay the balance, amount wrongly deducted by It but her grievances was not redressed by the OP Nos.1 & 2, which amounts to deficiency in service. Hence, the present complaint.

2.                Upon notice Ops No.1 & 2 appeared through counsel and filled written version, raising preliminary objections qua complaint is not maintainable being false and frivolous; not come with clean hands.; estoppel and  no cause of action. On merits, it is stated that the on receipt of intimation on 05.12.2014 about the accident of the Innova car of the complainant having registration no.HR-37C-5707, a surveyor Sh. Sanjeev Mahajan was deputed to assess the loss, by the regional office in whose financial power and competence this claim fell. The said surveyor visited the workshop of M/s Globe Toyota and submitted his preliminary survey report dated 06.01.2015 suggested an estimated loss of Rs.5,48,000/- on net of salvage basis with an estimated value of salvage  as Rs.1,50,000/-. The said report alongwith all the papers related to this claim were forwarded to regional office but on going through the said set of papers, the competent authority noticed that the IDV of the said car was on higher side, against the norms and as per insurance byelaws, it could have been Rs.6,23,926/-as per its invoice value of Rs. 10,39,878/- and the years as on the date of its insurance for the period from14.02.2014 to 13.02.2015. Although on being questioned, the actual IDV of the said car was ascertained afresh as Rs.6,23,926/- on the basis of which the surveyor again submitted his preliminary survey report dated  03.03.2015, whereby he revised the assessment of claim to Rs.4,71,926/- on the same mode ‘net of salvage basis’. However, on the recommendation of the Divisional Manager in support of the complainant, the competent authority, gave its nod to treat the IDV as Rs.7lacs/-. In between, the actual buyers came forward with quotations for the purchase of salvage of the said car, whereupon the surveyor, after getting the consent of the complainant and introducing the buyer M/s Darshan Motors, Chandigarh to the complainant, gave his final report of assessment on 29.06.2015, on the basis of quotation of said buyer, who offered Rs.2,03,000/- for the damaged car with RC. Thereafter, as per the surveyor report, the claim was approved by the competent authority to the tune of Rs.4,91,500/- and same was received by the complainant  as full and final settlement of the claim. Since the complainant has received the claim amount as full and final settlement of the claim, therefore, there was no question of paying of any garage charges etc. There is no deficiency in service on their part and prayed for dismissal of the present complaint.

Upon notice, OP No.3, appeared through counsel and filled written version, raising preliminary objections qua complaint is not maintainable being false and frivolous; not a consumer as defined u/s 2(d)of the C.P.ACT. On merits, it is stated that it has been wrongly alleged by the complainant that OP No.1, just  to give undue benefit to its business partner, OP No.3 has not given approval within the time frame as fixed by IRDA and she was forced to pay Rs.20,000/- as parking charges. It is pertinent to mention that the OP No.3 deals in the sale and after sale services of Toyota Vehicles and does not deal in insurance business or have any business partnership with OP No.1. It promptly provided its estimate of repair and vehicle remained parked with it in the absence of any approval of start the repair work. Neither the approval for repair was given nor the vehicle was lifted by the complainant despite various requests, so the OP No. 3 was entitled to recover the parking charges. The complainant negotiated the parking charges and paid the negotiated amount of parking charges without any protest.  Hence, there is no deficiency in service on its part and prayed for dismissed the complaint.

Notice was duly served upon the OP No.4 and this Forum received written version from it through registered post on 31.10.2017.  In the written version, the OP No.4 has stated that complaint is not maintainable being false and frivolous and complainant is not a consumer. The grievances of complainant is against the OPs No.1 to 3 and not against it and no specific relief has been sought against it.  It is also stated that OP No.4 has put in place a system called Integrated Grievance Management System(IGMS) whereby any policy holder can register a complaint which  will be flagged to the insurance company for quick resolution. If any complaint is lodged with the OP No.4 against any insurance company then same is always forwarded to the concerned insurance company for resolution.  The insurance company is required to examine the complaint and attend to it within prescribed period of time by responding to the complainant. The action taken on the complaint has to be updated by the insurance company in the IGMS. The status of the complaint and the description of action taken can be checked by the complainant from the IGMA or by calling up the Grievance call Centre of OP nO.4, by using the token number assigned to the complaint. In case the complainant does not come back within eight weeks after attending to the complaint and recording the action taken by the insurance company, the complaint will be closed by the insurance company. In case the company does not respond after reasonable/ prescribed period of time or if the complainant is not satisfied with the action taken, the consumer can again lodge a complaint with the OP No.4. It will then take up the complaint with the company for its resolution and responding to the complainant. In case of dissatisfaction with the resolution of the insurance company, the complainant may approach the insurance Ombudsman or any other appropriate legal authority. As such no further role of OP No.4 i.e IRDAI arises in the matter. Prayer has been made for dismissal of the present complaint.

3.                To prove her version complainant tendered affidavit as Annexure C-A along with documents as annexure C-1 to C-7 and closed the evidence. On the other hand, learned counsel for Ops No.1 & 2 tendered affidavits as Annexure RW-1/A & RW-1/B alongwith documents as Annexure R-1 to R-8 and closed the evidence. Learned counsel for OP No.3 made a statement that written statement filed on behalf of OP No.3 may be read as part of evidence of OP No.3.  No evidence has been tendered by OP No.4.

4.                 We have heard the learned counsel for the parties and carefully gone through the case file and also gone through the judgments referred by the learned counsel for the complainant and the OPs No.1&2.

5.                 The learned counsel for the complainant has argued that the duly insured car of the complainant met with an accident. Complainant informed the OP No.1 about the said incidence and on its directions shifted the car for repair to OP No.3. The surveyor appointed by the OP No.1 inspected the car at the workshop of the OP No.3 and on the basis of the assessment of loss prepared by the OP No.3 declared the damaged car as a total loss. The said surveyor insisted the complainant to keep the damaged car as salvage for Rs.1,50,000/-. Complainant was in need of money and just to avoid delay, she agreed to keep the damaged car with her. The said surveyor submitted his report dated 06.01.2015, Annexure C-1, with the OP No.1 for settlement of the claim on the net of salvage basis for Rs.5,48,000/-after deducting the salvage value of Rs.1,50,000/-. But the OP No.1 did not process the claim and another report dated 01.02.2015, Annexure C-2, was obtained by the OP No.2 from the said surveyor. In the said report, although the surveyor has assessed the loss on the net of salvage basis yet reduced the IDV of the car from Rs. 7lacs to Rs.6,23,926/- and after deducting Rs.1,50,000/- as salvage value has assessed the loss for Rs.4,71,926/- instead of Rs.5,48,000/- as assessed by him earlier.  Thereafter, the OP No.1 & 2 obtained a third report dated 29.06.2015, Annexure C-6 from the said surveyor, wherein he has mentioned the IDV of the car of Rs.7lacs as mentioned in the policy documents but has increased the salvage value from Rs.1,50,000/- to Rs.2,03,000/-without giving any reason and assessed the claim for Rs.4,95,000/-. As the complainant has financial crunch and just to avoid further delay in getting the claim, under the compelling circumstances, agreed to take the amount determined by the insurance company and under the pressure of OPs No.1 & 2 signed the discharge voucher. Since the Ops No.1 & 2 have given her less claim amount, therefore, she sent an e-mail to the OPs No.1 & 2, Annexure C-7 that she has signed the discharge voucher under coercion and undue pressure and requested the Ops No.1 & 2 to pay the remaining amount but they did not pay any amount to her. It is prayed that the application dated 09.01.2019 filed by the Ops No.1 & 2 may be dismissed and the complaint filed by  the complainant may be allowed.

The learned counsel for the OPs no.1 & 2 has argued that before filing the  present complaint the complainant had already sold the car in question to some other person as is evident from the Form No.24 (Motor Vehicle Register) issued by the concerned registering authority annexed alongwith application dated 09.01.2019 filed by the Ops No.1 &2. As such the complainant has no insurable interest in the car in question thus the complainant ceases to be a consumer. He further argued that  no doubt in the first report dated 06.01.2015 which was a preliminary  survey  report, the surveyor has determined the value of the salvage for Rs.1,50,000/-. However, after receiving the quotations from the market, the said surveyor  had assessed the salvage value of the damaged car of Rs.2,03,000/- and vide final survey report dated 29.06.2015 has assessed the claim amount for Rs.4,95,000/-. Accordingly, the insurance company paid the said amount to the complainant which was duly accepted by her as full and final settlement of the claim and signed the discharge voucher without any protest. The e-mail sent after getting  the claim is just a afterthought. There is no documentary proof regarding signing of discharge voucher under coercion and undue pressure.  Since, the complainant  has already  received the claim amount as full and final settlement of the claim, therefore,  she has no occasion to file the present complaint. It is prayed that the application dated 09.01.2019 filed by the OPs No.1 & 2 may be allowed and the complaint may be dismissed with cost. 

 The learned counsel for the  OP No.3 has argued that  no  specific allegation has been levelled by the complainant against the OP No.3, therefore the present complaint filed against it may be dismissed with cost.

 The learned counsel for the Ops No.1 & 2, in support of this contention that before filing the present complaint, the complainant had already sold the car in question and she has no insurable interest thus she ceases to be a consumer has placed reliance on the order dated 05.10.2018 passed by Hon’ble State Commission, Haryana in first appeal no.223 of 2018 in the case of Vijay Kumar Vs. The Iffco Tokio General Insurance Company Ltd. On the other hand, the learned counsel for the complainant has contended that the complainant has sold the car in question after getting the claim from the insurance company. Since her grievances is regarding less payment of claim amount pertaining to  the period when she was owner of the said car thus she is a consumer. In support of this contention he has placed reliance on the order dated 22.07.2014 of the Hon’ble National Commission in Revision Petition No.3001 of 2008 in the case of United India Insurance Co. Ltd. Vs. Deepak Mathur & Anr.

6.                In the case Vijay Kumar Vs. The Iffco Tokio Gen. Ins. Co. Ltd.(supra), the Hon’ble State Commission Haryana, vide its order dated 05.10.2018 has dismissed the appeal by placing reliance on the order dated 11.10.2013 passed by the Hon’ble National Commission, in the case of M/s Honda Car India Limited Vs. Jatinder Singh Madan and Anr., wherein it has been that in case the car has been sold during the pendency of the appeal, the complainant ceases to be a 'consumer'. Thus, complainant does not fall under the definition of the 'consumer' because he has already the sold the car before filing the complaint.

In the case of United India Insurance Co. Ltd. Vs. Deepak Mathur & Anr.(supra), the Hon’ble National Commission has held that  since the insurance policy  is nothing but a contract between  the insurer and the insured, the  insurance company, in a case  of theft  or damage to the vehicle, which  does not involve  a third  party right,  would be liable to pay  only to the insured  and not to the transferee  of the vehicle in a case where the transferor did have an insurable interest  in the vehicle  at the time  the insurance policy  was taken  as well as at the time  the loss took place. If, however, the insured did not have such an interest in the vehicle at the time the policy was taken as well as at the time the loss occurred,  he would  not be entitled to any payment from the insurance company.

In the case of New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd -04.12.2015(SC), the Hon’ble Apex Court in Para no.18 of the judgement has held that there is one more reason to follow the law laid down in the case of Dr.J.J.Merchant & Ors. Vs. Shri Nath Chaturvedi, which was decided in the year 2002 whereas the case of Kailash Vs. Nanhku & Ors. was decided in the year 2005. As per law laid by this Court, while deciding  the case of Kailash(supra), this Court ought to have respected the view expressed in Dr. J.J.Merchant(supra) as the judgement delivered in the case of Dr. J.J.Merchant (supra) was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in Dr. J.J.Merchant (supra)should be followed.

In view of the law laid down by the Hon’ble Supreme Court in the case of New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd(supra), we respectfully follow the judgment of the Hon’ble National Commission, passed in the case of M/s Honda Car India Limited Vs. Jatinder Singh Madan and Anr.(supra) being earlier in point of time.

 

7.                In this view of the matter, we hold that since the complainant has already sold her car before filing the present complaint, therefore, she ceases to be a consumer and does not fall under the definition of the consumer. Therefore, the complaint filed by her deserves dismissal. Accordingly, we hereby dismiss the present complaint leaving the parties to bear their own costs.  Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :03.05.2019

 

 

 

    (Vinod Kumar Sharma)          (Ruby Sharma)     (Neena Sandhu)

             Member                            Member               President