PER:

Charanjit Singh, President;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 against the opposite parties on the allegations that she is owner of vehicle Volkswagen/Polo Comfortline Diesel-1 having registration No. PB-02-CF-2564 and she got it insured from the opposite party No. 1 for a period 19.12.2016 to 18.12.2017 for insured sum of Rs. 3,20,000/- on payment of Rs. 7,589/- for which private car package DEPCAP Policy No. 2002043116P11251899 was issued by the opposite party No. 1. As such, the complainant is consumer under the definition of Consumer Protection Act. The insured vehicle of the complainant met with an accident and matter was reported to the opposite party for appointment of surveyor. On which the complianant was asked to handover insured vehicle to Hanson Motors Opposite Party No. 2. The opposite party No. 2 issued estimate of repair of the damaged insured vehicle. The surveyor of the opposite party No. 1 visited the spot and checked the damaged vehicle and copy of estimate cost of repair was supplied to the said surveyor by the opposite party No. 2. The surveyor assessed the loss of Rs. 19,343/-. On which the complainant received verbal instructions to get the vehicle repaired. On the instructions and after assessment of the claim amount of Rs. 19,343/- the said vehicle was repaired by opposite party No. 2 but on completion of the repair work, the opposite party No. 2 informed to opposite party No. 1 for release of amount of repair of the vehicle but the opposite party No. 1 had not released the amount of the bill, which is deficiency on the part of the opposite party No. 1 and further it amounts to unfair trade practice as the complainant’s policy was cashless Depcap policy. When the opposite party No. 1 had not released the amount of bill to the opposite party No. 2 then the opposite party No. 2 put pressure on the complainant to make payment and lift the vehicle from their workshop and thereafter claim insurance amount from the opposite party No. 1 at her own level otherwise paid parking charges, which were in thousand of rupees. Therefore, in order to avoid any further loss, the complainant paid Rs. 19,343 vide cheque to opposite party No. 2 against bill NO. 18,945/- dated 23.3.2017. thereafter the complainant made several visits to the office of opposite party No. 1 for payment of the claim amount and ultimately after lapse of two months, the opposite party sent Rs. 10,428/- only through NEFT to the bank account No. 0192191008602  of the complaint with Oriental Bank of Commerce, but for the remaining amount of Rs. 8,915/- no intimation or explanation was given to the complainant.  The complainant served a legal notice dated 2.8.2017 through his counsel sent to the opposite party No. 1 for payment of balance claim amount of Rs. 8915/-. The opposite party No. 1 in reply to the legal notice shrinked to accept their liabilities and simply stated that they have made payment of full amount of Rs. 10,428/- to the opposite party which the surveyor had assessed in this case after deducting compulsory excess and salvage. Neither the opposite party No. 1 nor the opposite party had ever informed the amount of claim assessed by the surveyor before taking the work of repair in hand. He was assured for payment of full payment of claim amount directly to the opposite party being policy of vehicle DEPCAP Policy and cashless Policy. Depcap Policy covers all the losses in full payment of claim.  The complainant vehicle was issued DEPCAP policy by charging high premium by the opposite party No. 1 and as such, the opposite party is not entitled to deduct compulsory excess and salvage. The opposite parties have adopted unfair trade practice. The complainant has prayed that the opposite parties be directed to

(i)      The opposite parties be directed to pay jointly or severally balance sum Rs. 8,915/- along with interest @ 12% p.a. from the date of bill till payment.

(ii)     Opposite parties be directed to pay compensation of Rs. 50,000/- to the compliant jointly or severally for their above acts of unfair trade practice and deficiency in service.

(iii)    Cost of the complaint as deem fit be also awarded against the opposite parties.

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interailia pleadings that the present complaint is legally not maintainable as the same is an abuse of process of the court. The complainant is estopped by his act and conduct from filing the present complaint qua the opposite party no. 1 and no cause of action has arisen in favour of the complainant to file the present complaint against the opposite party No. 1, as there is no negligence or deficiency in service on the part of the  opposite party No. 1. The opposite party No. 1 has made payment of Rs. 10,428/- as per the surveyor report dated 13.5.2017 by surveyor Rajesh Kapoor after deducting compulsory excess and salvage after taking care that it is DECAP policy and no depreciation has been deducted. The opposite party No. 1 never advise the insured regarding where to handover the vehicle for repairs and the insured has himself brought the estimate from Hanson Motors Opposite party No. 2 and got vehicle repaired from opposite party No. 2. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        The opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interailia pleadings that the present complaint is not maintainable qua the opposite party No. 2. the opposite party No. 2 has been wrongly and falsely implicated as a party in the present complaint. The maxim res-ipsa-liquator fully applies in the present complaint. There is nothing on the record which suggest that opposite party No. 2 has done any act qua the complaint. Work done by the opposite party No. 2 was in official capacity and does not carry any resemblance with the complaint. Plain reading of the complaint itself suggest that the opposite party No. 2 has been falsely implicated . The complainant must be estopped by his act and conduct from filing the false complaint. Estimate issued by the opposite party No. 2 order depend upon the nature of special skills and experience. But it does not correlate with the complaint as complainant is not a consumer qua the opposite party No. 2. Opposite party No. 2 has done work according to his nature of job, skills and experience.  the opposite party No. 2 has issued requisite bill for the work done by him and no pressure has been put on complainant as dispute lies with the complainant and opposite party No. 1.  The opposite party No. 2 charged the complainant for the work done by him. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.

5        To prove his case, Ld. counsel for the complainant tendered in evidence affidavit of complainant Ex. CW1/A, copy of RC Ex. C-1, copies of the bill Ex. C-2 and C-3, copy of the cheque dated 3.4.2017 Ex. C-4, copy of the application dated 23.3.2017 addressed to the opposite parties Ex. C-5 and C-6, copies of the insurance policies Ex. C-7 to C-10, copy of the cover note Ex. C-11 and C-12, copy of the bank pass book Ex. C-13, copy of the legal notice dated 2.8.2017 Ex. C-14 and closed the evidence. On the other hands, Ld. counsel for the opposite party No. 1 has placed on record affidavit of Ashok Kumar sharma Ex. OP1/1, copy of the survey report Ex. OP1/2, affidavit of Rajesh Kapoor, Surveyor Ex. OP1/3, Original Surveyor report Ex. OP1/4, original estimate of Hanson Motors Ex. OP1/5 and OP1/6, Photographs Ex. OP1/7 to Ex. OP1/18, copy of policy Ex. OP1/19  and closed the evidence.   Ld. counsel for the opposite party No. 2 tendered in evidence affidavit of Sh. Vinod Partner Hanson Motors Ex. OP2/1 and closed the evidence.

6        We have heard the Ld. counsel for the parties and have gone through the record on the file.

7        The combined and harmonious reading of pleadings and documents placed on record is going to prove that the vehicle of the complainant met with an accident and the matter was reported to the opposite party No. 1 for the appointment of surveyor. The complainant further stated that on the advice of opposite party No. 1 the complainant handed over the vehicle to opposite party No. 2. The surveyor of opposite party No. 1 visited the spot and checked the damaged vehicle and copy of estimate cost was supplied to the surveyor by opposite party No. 2. The surveyor assessed the loss to the tune of Rs. 19,343/- as the insured was cashless depcap policy. The vehicle was repaired by the opposite party No. 2 and complainant paid Rs. 19,343/- vide cheque to opposite party No. 2 against bill No. 18945 dated 23.3.2017. The opposite party No. 1 sent Rs. 10,428/- only through NEFT to the bank account of complainant but the opposite party No. 1 has not paid remaining amount of Rs. 8915/- till date, however, legal notice was served upon the opposite party No. 1 which was duly replied. The opposite party No. 1 stated that they have made the payment of Rs. 10,428/- as per surveyor report dated 13.5.2017 by Surveyor Rajesh Kapoor after deducting compulsory excess and salvage after taking care that it is DECAP policy and no depreciation has been deducted. The opposite party No. 1 has never advised the insured to hand over the vehicle for repair to the opposite party No. 2. The complainant himself took the vehicle to the opposite party No.2. The opposite party No. 2 has stated the repair work done according to his nature of Job, skill and experience.  The whole controversy revolves around the point that being depcap policy the complainant was forced to deposit Rs. 19,343/- for repair work.  Rajesh Kapoor, Surveyor & Loss Assessor has submitted his report alongwith affidavit Ex. OP1/3 where by it has been stated that the insured and repairer demanded replacement of front bumper, time member, front grill upper front Lower grill and LH fog lamp cover alongwith repair of bonnet assembly and on initial inspection undersigned found front bumper and LH fog lamp broken & bonnet dented & further got the vehicle dismantled and observed tie member, front upper grill and front lower grill in intact condition (photos attached), hence not considered for replacement and he further mentioned in his report dated 13.5.2017  the allowed damages correlate with cause mentioned and assessed accordingly. During the repair inspection on 13.3.2017 he found front bumper replaced and bonnet repair but till that time front tie member was not in question but in the final invoice front tie member was billed. Hence, the opposite party has made the payment of Rs.10,428/- as per surveyor report dated 13.5.2018 by Surveyor Rajesh Kapoor  after deducting compulsory excess and salvage as per terms and conditions of the policy and after taking core that it is depcap policy. Hence no depreciation was deducted. The Hon’ble National Commission held in “Suryachem Industries Vs. Oriental Insurance Co. Ltd.” I (2007) CPJ-278 (NC) that the surveyor report, being an important document, has to be given due weightage, unless rebutted by some cogent evidence on the record. The complainant has not produced any cogent and convincing evidence to rebut the report of the surveyor and there is no reason to disbelieve the said report. The opposite party No. 1 has made the claim as per terms and conditions of the policy. The Hon'ble State Commission has relied upon the ruling of the five judge bench of the Apex Court in General Assurance Society Ltd. Vs. Chandmull Jain and Anr. AIR 1966 Supreme Court 1644. It has been further held by the Hon'ble Apex Court in case M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd Vs. United India Insurance Co.Ltd & Anr that in a contract of insurance the rights and obligations are governed by the terms of the contract. Terms of contract of insurance have to be strictly construed. No exception can be made on the ground of equity- in construing the terms of a contract of insurance, the words used therein must be given paramount importance and it is not open for the court to add, delete or substitute any word. In this case also contract of insurance between the parties is based on terms and conditions of the policy and must be followed in letter and spirit . Opposite party deducted the amount from the claim amount of the complainant as per terms and conditions of the policy which was the base of the contract of insurance between the parties.

8. In view of the above discussion, the complaint is without merit and the same is hereby dismissed with no order as to cost. Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

15.09.2022