DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 264 of 19-09-2008<br /> Decided on : 02-04-2009 <br /> <br /> 1.Sushil Sabbarwal S/o Sh. G M Sabbarwal, R/o 26/23, East Punjabi Bagh Delhi, through his special power of attorney holder Amit Goyal S/o Punjab Rattan Goyal R/o Ghaniya Bagria Wali Gali, New Market, Rampura Phul (Regd. Owner of Car No. DL-8CG-4076).<br /> 2.Amit Goyal S/o Sh. Punjab Rattan Goyal R/o Ghaniya Bagria Wali Gali, New Market, Rampura Phul. ... Complainants<br /> Versus<br /> <br /> 1.United India Insurance Co. Ltd., Branch Office, Khati Bazar Rampura Phul, through its Branch Manager.<br /> 2.United India Insurance Co. Ltd., Head Office 24 Whites Road, Chennai through its Managing Director. <br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr.Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> Present : Sh. Naresh Garg, Advocate, counsel for the complainant<br /> Sh. Sunder Gupta, Advocate, counsel for the opposite parties<br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT<br /> 1. This complaint has been filed by Sh. Sushil Sabbarwal and Sh. Amit Goyal, a resident of Rampura Phul against United India Insurance Company Limited, through its Branch Manager and Managing Director under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') for payment of Rs. 1,50,000/- alongwith interest at the rate of 18 per cent per annum against claim of damages to his Ford Icon Car , Rs. 20,000/- for mental and physical agony and Rs. 10,000/- as litigation expenses. Briefly stated the case of the complainant may be described as under :<br /> 2. That Sh. Sushil Sabbarwal, complainant No. 1, was the owner of Ford Icon Car manufactured in the year 2001. The complainant No. 2 has been appointed by him as his general attorney but car stood in his own name till 14-05-2007 when it was transferred in the name of complainant No. 2. The car of the complainant was comprehensively insured with opposite party No. 1 vide Cover Note No. 899676 for the period 29-03-2007 to 28-03-2008, but the opposite parties have not issued the policy in terms of Cover Note till date. The complainant declared Insured Declared Value of his car as Rs. 1,50,000/-. As per rules of the IRDA, Indian Motor Tariff and Insurance company, the IDV shall be treated as the market value throughout the policy period without any further depreciation for the purpose of total loss and constructive total loss claims.<br /> 3. On 13-04-2007 at about 3.30 A.M. in the revenue limits of Town of Gidderbaha, car of the complainant met with an accident with truck. It was being driven by complainant No. 2, who alongwith other occupants had to jump from the said vehicle after the truck dragged their car and speeded away. The DDR was got registered by complainant No. 2 at Police Station Gidderbaha on account of said accident. However, the car of the complainants was recovered parked near Guru Nanak Dev Thermal Plant and Ambuja Cement Factory by the police officials posted at Thermal Plant, as unclaimed vehicle. The incident was published in the new paper after which complainant No. 2, was contacted by police officials posted in the said Police Station. The vehicle was got released by complainant No. 2, from Deputy Commissioner, Bathinda on 22-06-2007 and registration of the vehicle was changed in his name on 14-05-2007. The complainants gave intimation about the accident of the car to opposite party No. 1, who deputed their surveyor Sh. Vinod Kumar Goyal. At the asking of the surveyor of opposite party No. 1, complainants shifted their car to the premises of M/s. A.B. Motors Pvt. Ltd., Bhagat Ford authorised dealer and repairer of manufacturing company who prepared the estimate in the sum of Rs. 2,39,734/- in addition to Sales Tax at the rate of 12.36 percent. The complainants delivered the original estimate, copy of registration certificate, driving licence of complainant No. 2, cutting of news about accident published in the news paper and Insurance cover note to the surveyor of opposite parties who took the signatures of the complainants on blank papers and forms. The surveyor appointed by the opposite parties also gave assurance that car is not repairable and loss exceeds IDV declared by them. The ownership of the car still stood in the name of complainant No. 1, on the date of accident who continued to approach the opposite parties, but on receipt of letter of repudiation on 30-05-2008, addressed to complainant No. 2, he came to know that his claim has been illegally or arbitrarily rejected by the opposite parties because of which he has been subjected to mental and physical harassment and there is deficiency in service on the part of the opposite parties. Hence, this complaint.<br /> 4. On being put to notice, opposite parties filed written version resisting the complaint by taking preliminary objections that there is no privity of contract between complainant No. 2 and the opposite parties as the owner and insured Sh. Sushil Sabarwal had transferred the ownership of his car to him prior to the date of accident and no intimation regarding the said fact has been conveyed to the opposite parties as required under the provisions of Motor Vehicle Act and Indian Motor Tariff; that the Insurance policy has also not been transferred in the name of complainant No. 2 , within the period stipulated; that complainants have got no insurable interest in the car on the date of accident; that complainants have no locus standi and cause of action to file the complaint; it is bad for non-joinder of necessary parties; that complaint is not maintainable and has been rightly repudiated by the opposite parties; that liability of the opposite parties is limited to Rs. 70,000/- i.e. the amount assessed by the surveyor ; that claim made by the complainants is highly exorbitant and has been based on forged estimate and complaint being false and vexatious, is liable to be dismissed with costs. On merits, it is admitted that complainant No. 1, was registered owner of Ford Icon car bearing registration No. DL-8CG-4076. It is submitted that regarding appointment of complainant No. 2, as attorney by complainant No. 1, they be put to strict proof. It is also contended that complainant No. 2 had purchased the car insured with the opposite parties from complainant No. 1, in the month of October, 2006, whereas its accident has taken placed on 03-07-2007, as such, both the complainants are not entitled to payment of any compensation because they have not got Insurance Cover Note transferred. The fact of submission of documents, lodging of claim and that Sh. Vinod Kumar Goyal was deputed as surveyor to assess the loss caused to the car of the complainants involved in the accident, have been admitted but it is denied that said vehicle was shifted to the premises of M/s. A B Motors Pvt. Ltd., at the instance of the surveyor. It is denied that vehicle is not repairable but it is submitted that surveyor deputed by the opposite parties has assessed the loss to the car of the complainant in the sum of Rs. 69,500/- on net salvage basis. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.<br /> 5. On being called upon, by this Forum, to do so, the learned counsel for the complainants tendered affidavit of complainant No. 2 Ex. C-1, and copies of documents Ex. C-2 to Ex. C-9, before he closed their evidence. On other hand, counsel for the opposite parties tendered in evidence affidavits of Sh. Balwinder Singh, Divisional Manager and Sh. Vinod Kumar Goyal, Surveyor & Loss Assessor Ex. R-1 and Ex. R-8 respectively and copies of documents Ex. R-2 to Ex. R-7and he closed their evidence.<br /> 6. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully,<br /> with their kind assistance.<br /> 7. At the out, learned counsel for the complainant Sh. Naresh Garg, Advocate, has submitted that complainant No. 1, was a registered owner of the car on the date of accident, which had not been transferred in the name of complainant No. 2 till then. Learned counsel for the complainant has argued that accident has taken place during the validity period of policy and complainant No. 1, has appointed complainant No. 2 as his Attorney, as such, he deserves to get the amount payable under the policy. Learned counsel has argued that complainants shifted the damaged car to the repairer of manufacturer, but he was not justified in reducing the amount of claim on account of depreciation because as per the facts borne on record, car of the complainant involved in the accident was completely damaged. Learned counsel argued that at the instance of the surveyor of the opposite parties, car has been got repaired from repairer of manufacturing company by the complainant by spending amount more than its IDV, but the surveyor appointed by the opposite parties reduced the substantial amount without mentioning any cogent reason and has given the report favourable to his pay masters, as such, reliance cannot be placed on the same especially when there is no evidence to the contrary to disbelieve the estimate given by the repairer of the manufacturing company submitted to the surveyor of the opposite parties by the complainant. In support of his contentions, learned counsel has placed reliance upon 2007(I) 349 Harjit Singh Vs. New India Assurance Co. Ltd, wherein complainant was the original owner. Case of theft was lodged and Insurance policy was also issued in his name. It is held by our own Hon'ble State Commission, Chandigarh, that original owner alone has locus standi. Learned counsel has also relied upon 2007(1) CPJ 150 Oriental Insurance Company Limited Vs. Dharam Pal, wherein plea of the insurer was that on the date of theft, complainant was not owner of the vehicle as he had sold it to some other person. It was held that registration certificate continue to stand in the name of the complainant, as such, insurer is not absolved of its liability to indemnify the insured. Learned counsel has further relied upon 2007(I) CPJ 423 Jai Pal Singh and Another Vs. National Insurance Co. Ltd., and another, wherein registration and Insurance policy were not transferred in the name of transferee by real owner on account of which it was held by Hon'ble State Commission, Rajasthan, that transferee cannot claim compensation from insurer and complaint is maintainable by the original owner. Learned counsel has also relied upon 1997(III) CPJ 143 Aleyamma Verghese Vs. The Chairman-Cum-Managing Director, National Insurance Co. Ltd., & Ors., wherein no cogent reason has been shown by the insurer that insurance claim should not exceed the amount proposed by their surveyor and charges for repair of the vehicle actually paid were declined. It was held by the Hon'ble West Bengal State Commission, Calcutta, that claim of repair and repairing charges put forth by the complainant should be accepted subject, however, to the limit of Insurance coverage.<br /> 8. On the other hand, learned counsel for the opposite parties Sh. Sunder Gupta, Advocate, has submitted that both the complainant have no Insurable interest on the date of accident because as per documentary evidence produced on record, complainant No. 1, had sold the vehicle involved in the accident and complainant No. 2, has failed to give intimation of the said fact within the prescribed period to the insurer. Learned counsel further argued that there is no privity of contract between the insured and complainant No. 2, as such, he has no locus standi to file the complaint. Learned counsel has further submitted that even otherwise also complainant are not entitled to payment of any amount beyond the IDV and amount assessed by the surveyor, appointed by the opposite parties to assess the damage, is payable if this Forum comes to the conclusion that either of the party liable for payment under the policy for damage caused to the vehicle, involved in the accident.<br /> 9. The argument advanced by the learned counsel for the opposite parties has failed to sound well with us. Admittedly under vehicle reference was the ownership of complainant No. 1 Sushil Sabbarwal and Insurance policy was issued in his name for the period 29-03-2007 to 28-03-2008. It is also not disputed that said vehicle was damaged in road accident at about 3.00 A.M. On 13-04-2007, in the area of Police Station, Gidderbaha in District Ferozepur while being driven by complainant No. 2. As per copy of DDR registered at the said Police Station and cutting of news article published in the news papers, Ex. C-13 & Ex. C-14, complainant No. 2 was also accompanied by 3 members of his family at the time of accident and all of them including him were injured as they had to jump from the moving vehicle after the same was caught of rear side of offending truck whose driver inspite of their cries, did not stop and they got down one after another. It was also come on record that all the occupants of the car were injured and admitted in hospital and vehicle was recovered parked near Thermal Plant and Ambuja Cement Factory, at Bathinda, whereas the identity of the offended truck has not been established. The opposite parties have repudiated the claim on the ground that Sh. Sushil Sabbarwal, complainant No. 1, has transferred ownership of the vehicle damaged in the accident during the period of policy secured by him whereas complainant No. 2 Amit Goyal vendee under him failed to prove the factum of transfer to the notice of the Insurance company concerned and because of that reason he had neither insurable interest nor there is any privity of contract between him and the Insurer. As per the copy of order of District Magistrate, Bathinda, Ex. C-3, on 22-06-2007, vehicle has been released to complainant No. 2 on the basis of ownership after the same was recovered from Police Station Thermal, Bathinda. The perusal of special power of attorney Ex. C-8, executed by complainant No. 1 reveals that he has appointed complainant No. 2 as attorney. In the said document, it is mentioned that complainant No. 1, has sold his car to complainant No. 2 on 14-05-2007. Date of transfer is also mentioned as 14-05-2007 in the copy of Registration Certificate Ex. C-6. There is neither privity of contract between complainant No. 2 and the opposite parties qua Insurance cover secured by complainant No. 1 for his damaged vehicle nor complainant No. 2 has any insurable interest. However, the fact remains that on the date of accident complainant No. 1 was registered owner of the vehicle and insurance cover has also been secured by him. In view of these facts and proposition of law laid down in the authorities relied upon by the learned counsel for the complainant, we have no hesitation in holding that Insurance company cannot escape liability to make payment of the damage caused to the vehicle of the complainant to complainant No. 1 alone. As such, in our opinion, the opposite parties were not justified in repudiating the claim and there is deficiency in service on their part.<br /> 10. The surveyor appointed by the opposite parties Sh. Vinod Kumar Goyal, has submitted his report Ex. C-11 after assessing the loss that value of the spare parts required for making the damaged vehicle in roadworthy, as per list 303, approximate value is Rs. 1,82,635/- and depreciation value thereof is Rs. 75,520/- whereas accepted salvage value is Rs. 3,000/-. In his detailed report, given after valuation of the estimate submitted by the complainant, he has mentioned that a sum of Rs. 90,520/- is required for repair of the damaged vehicle involved in the accident including a sum of Rs. 15,000/- on account of labour charges. He has further mentioned that Ex. Show room price of the vehicle involved in the accident is Rs. 4,75,500/- but IDV as declared by the Insured is Rs.1,50,000/-. At the same time, he has mentioned that present market value of the vehicle is Rs. 1,25,000/-. In the concluding para, he found that Radiator, fan and motor. Condenser assembly, both head lights, grill and battery of the vehicle were missing, but keeping in view the impact, nature and circumstances of the accident, it is very much clear that these parts must have been broken or damaged in the accident. He has not given cogent reason for reducing such a huge amount from the estimate Ex. C-7, submitted by repairer of manufacturing company. He has treated the head lamps to be rubber articles whereas these articles made of fibre. Against damage to Cross member and Shocker front, mentioned at Sl. No. 15 and 25, he has mentioned that these articles are likely to be damaged but has not awarded any amount against them. Against article No. 13 i.e. Tube assembly ; out let and article No. 41 i.e. Panel cowl top, he has allowed the repair, but has failed to award any amount.<br /> 11. From the facts and circumstances of the case, affidavit of the complainant and report of the surveyor appointed by the opposite parties, it is evident that vehicle of the complainant sustained damaged beyond IDV as claimed by him. Section '1' of Indian Motor Tariff Ex. C-9, provides that IDV shall be treated as “'Market Value” through out the policy period without any further depreciation for the purpose of Total loss/Constructive Total Loss claims and insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75 percent of the IDV of the vehicle. In the instant case, the cost of repairs, as mentioned by the complainant, has exceeded 75 percent of IDV, declared by him at the time of securing the Insurance cover as evident from copy of estimate Ex. C-7 of repairer of manufacturing company, submitted by him. This fact has been ignored by the surveyor appointed by the opposite parties. As such, the opposite parties, in our opinion, were not justified in <br /> <br /> <br /> awarding compensation on the basis of his report by over looking the estimate submitted by the complainant after repair of his vehicle from the repairer of manufacturing company. In our opinion, the complainant No. 1 is entitled to receive the amount under the Insurance policy to the extent of IDV i.e. Rs. 1,50,000/-. The complainant No. 1 is also entitled to payment of interest at the rate of 9 percent from the date of repudiation of claim i.e. 30-05-2008 till the date of actual payment. However, as the compensation and interest cannot be awarded simultaneously by us, complainant No. 1 is entitled to adequately compensated for the costs incurred by him for filing of instant complaint.<br /> 12. In the light of our above discussion, we dismiss the complaint on behalf of complainant No. 2 and accept the same on behalf of complainant No. 1 Sh. Sushil Sabbarwal and set aside the letter of repudiation dated 30-05-2008 and direct the opposite parties to make a payment under Insurance policy to Sh. Sushil Sabbarwal, complainant No.1, in the sum of Rs. 1,50,000/- alongwith interest at the rate of 9 percent per annum from the date of repudiation till the date of actual payment. They are further directed to pay him a sum of Rs. 1,000/- on account of costs for filing of this complaint. The above said payment be made by the opposite parties to complainant No.1 within a period of two months from the date of receipt of copy of this order. In case complainant No. 1, does not deposit the salvage of repaired parts, then, the opposite parties is at liberty to deduct a sum of Rs. 3,000/- on that score from the amount of claim, as assessed by their surveyor. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject. <br /> <br /> <br /> <br /> File be indexed and consigned. <br /> Pronounced :<br /> 02-04-2009 (Pritam Singh Dhanoa)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul)<br /> Member <br /> <br /> <br /> <br />