Haryana

Charkhi Dadri

cc/95/2020

Sh Bhupender - Complainant(s)

Versus

Universal Sompo General Insurance Co. Ltd - Opp.Party(s)

Sh. Vikas Kumar

09 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI

                              

                                                          Complaint No.:95 of 2020.

                                                         Date of Institution: 21.12.2020

                                                          Date of Decision: 09.07.2024

Bhupender  Propietor of M/s MTC Co. R/O H.No.320, W. No.7, Gandhi Nagar, Charkhi Dadri, Haryana-127306

                                                                   ….Complainant.

 

                                      Versus

1. Universal Sompo General Insurance Co. Ltd., Head office at Unit No.401, 4^th Floor, Sangam Complex, 127, Andheri Kurla Road, andheri East, Mumbai-400059 Branch Office 3^rd Floor, SCF 55, Sector-6, Main Market Karnal, Haryana-132001.
2. M/s Saalegram Motors (Tata Authorized Dealership) Village Ghasola, Mahendergarh Main Road, Charkhi Dadri, Haryana-127306

…...Opposite Parties.

          COMPLAINT UNDER      THE CONSUMER PROTECTION ACT.

 

Sitting:           Hon’ble Shri Manjit Singh Naryal, President,

                        Hon’ble Shri Dharam Pal Rauhilla, Member,

 

Present:          Sh.Vikas Kumar, Advocate for complainant.  

Sh. Rajender Verma, Advocate for OP no.1.

Sh. Manjeet Chahar, Advocate for OP no.2.

 

ORDER

1. The case of the complainant in brief, is that he is registered owner of vehicle TATA LPT 2518 CR6X4 BS-IV bearing registration No. HR-84-4158 and the same was insured vide insurance policy bearing No.USGI/POSWEB/0191109/00/000 for the period from 23.01.2019 to 22.01.2020. Further case of the complainant is that the above said vehicle met with an accident on 25.02.2019 during the subsistence of insurance policy and FIR bearing No.68 dated 25.2.2019 was registered at Police Station, Jhajjar, Haryana.  The complainant further alleged that the vehicle was totally damaged and information regarding the accident in question was given to OP no.1 and claim was submitted with the OP no.1 company after completion of all the formalities. The abovesaid vehicle was taken to M/s Sallegram Motors, Charkhi Dadri (OP-2) for repairing. The official of OP no.2 inspected the damaged vehicle and raised estimate cost for repairing. After 2-3 months, OP no.2 informed the complainant that vehicle was under the total loss and irreparable.  Thereafter the complainant made calls to surveyor for confirmation of the statement of OP no.2 upon that surveyor confirmed that vehicle was under total loss and advised to take the abovesaid vehicle from the service station of the OP-2 to avoid unnecessary parking charges. Thereafter the complainant removed his vehicle from service station and took the same in his custody. It is further alleged that vide letter dated 28.09.2019 OP no.1 had repudiated the claim of the complainant on false grounds. Hence, repudiation of claim of complainant by the respondents vide letter dated 28.09.2019 is arbitrary, against the terms and conditions of insurance policy, bad in law, against the principal of natural justice, null and void and complainant is entitled to the claim amount on account of damage caused to his vehicle in the accident. Complainant is also facing loss due to abovesaid act and conduct of OP no.1 because the abovesaid vehicle is only source of income of earning and the vehicle is financed by the ICICI Bank and officials of the bank create pressure upon the complainant to deposit installment i.e. Rs. 67,700/- per month since 25.02.2019. The complainant was unable to pay the amount to the ICICI Bank and they had imposed illegal and unlawful charges upon the complainant. Hence, the present complaint.
2.  Notice of the complaint was given to the opposite party no.1 which appeared and filed reply. On merits, it has been submitted by the opposite party no.1 that the complainant viz. Bhupinder got insured the vehicle vide policy no.2315/59369461/00/B00 w.e.f 23.01.2019 to 22.01.2020 As per policy, the IDV of the vehicle is Rs.24,30,000/-. OP no.1 informed that intimation with regard to alleged damage of the vehicle was received through complainant (Bhupinder S/o Ranbir) that vehicle was met with an accident on 25.02.2019. It is averred that the Sh. Sanjay Kumar Verma, Surveyor and Loss Assessor had surveyed the matter who submitted final report dt. 29.03.2020. It is further alleged that competent authority of OP no.1 after going through the report of surveyor and other papers available on the file and after due application of mind had rightly repudiated vide letter dated 28.09.2019. So in view of these circumstances, there is no deficiency in service on the part of OP no.1.  Hence, the complaint of the complainant is liable to be dismissed with costs. 
3.             In its written statement, the OP No.2 averred that the vehicle was brought to the workshop of OP no.2 and upon survey the vehicle was found not repairable as cost of repair was above liability amount after which the complainant removed his vehicle from the workshop of OP no.2. So in view of these circumstances, there is no deficiency in service on the part of OP no.2.  Hence, the complaint of the complainant is liable to be dismissed with costs. 

4.                     The complainant tendered into evidence affidavit Ex. CW-1/A,CW1/1,CW1/2 and documents Annexure  C1 to Annexure C4 and closed the evidence on 19.07.2022.

5.                     On the other hand, the OP No. 1 tendered into evidence documents Annexure R1 to Annexure R5 and closed the evidence on 27.10.2023. However, the OP No. 2 failed to tender any evidence and therefore, the evidence of OP No.2 was closed on 27.10.2023 by the order of this Commission.

6.                     We have heard the arguments of learned counsel for the parties and have gone through the entire evidence so placed on record by the parties very carefully and minutely. It has been observed that the complainant has also filed its written submissions.

7.  

In support of his contention, learned counsel for complainant placed reliance on orders/judgments rendered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi as well as Hon’ble Supreme Court of India on the cited subject which are detailed as under:-

1. ICICI Lombard General Insurance Co. Ltd. and others Vs. Mayur Batra and Anr. in F.A. No. 101 of 2009 decided on 28.07.2020 wherein Hon’ble National Consumer Disputes Redressal Commission has held that “Consumer Protection Act, 1986 Section 21 Consumer Protection Act, 2019, Section 51 – Insurance – Vehicle in question met with an accident during validity of insurance – Alleged deficiency in service – Unfair trade practice – State Commission directed to pay to complainant insured value of vehicle in question, less 5% depreciated value, cost of litigation of Rs.10,000/- to complainant and entire amount of Rs.4,81,148/- for repairs of vehicle – Though vehicle was badly damaged and needed replacement, Insurance Company insisted on repair of vehicle by dealer –Fact that the brakes of the vehicle were not functioning was not denied by Respondent No. 2 – Respondent No. 2 could not admit that the vehicle was restored to its original condition and take the responsibility for the smooth running of the vehicle and safety of the occupants – Though the vehicle got damaged badly in the accident, the Appellant – Insurance Company was not willing to concede to declare total loss of the vehicle and give the sum assured to the Complainant – State Commission, rightly held that Appellant shied away from their obligation under the contract of insurance – Appellant failed to point any illegality or irregularity in the order passed by the State Commission – Appeal Dismissed.”
2. National Insurance Company Limited Vs. Tushar Goswami & Others in Revision Petition No. 1130 of 2017 decided on 17.01.2018 wherein Hon’ble National Consumer Disputes Redressal Commission has held that “Since the cost of repair, as estimated by Bhandari Motors Pvt. Ltd., was more than 75% of the IDV of the vehicle, the fora below were fully justified in treating this to be a case of total loss and awarding the amount of Rs.11,60,100/- to the complainant. The revision petition, being devoid of any merits, is hereby dismissed. The salvage shall belong to the insurer.”
3. Bajaj Allianz General Insurance Co. Ld. Vs. Mukul Aggarwal & Ors in Civil Appeals No. 1544 & 1545 of 2023 decided on 20.11.2023 wherein Hon’ble Supreme Court has held that “as per clause (3) of the Motor Insurance Policy, it is provided that for the constructive total loss of the vehicle, the liability of the insurer shall not exceed the IDV of the vehicle minus the value of the wreck. As held earlier, the amount payable by the insurer will have to be quantified at Rs.25,83,012.45Ps.”
8. On the other hand, learned counsel for OP no.1-Insurance Company argued that as per Motor Claim Form (Annexure R4), subject vehicle No.HR-84-4158 met with an accident on 25.02.2019 and spot survey was conducted by Sh. Sanjay Kumar Verma, Independent Surveyor and Loss Assessor on 29.03.2019  (Annexure R3). As per Surveyor’s Report the vehicle was total loss  and based on the said report the claim was repudiated vide OP no.1 letter dated 28.09.2019 stating that-

“It is observed that at the material time of accident of the vehicle, the load body of the vehicle was extended from the provided by OEM.”

The OP no.1 has referred the terms and conditions of the insurance policy wherein alteration in vehicle is not allowed. Therefore, there is no any deficiency in service on the part of OP no.1-Insurance Company and learned counsel requested for dismissing the complaint of complainant with special costs.

9.  

As per policy conditions, the insured vehicle shall be treated as Constructive Total Loss (CTL), if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle.

So, in view of the above, the repair estimate tendered by OP-Insurance Company amounting to Rs.20,04,105/- is 82.47% of Insured Declared Value (I.D.V.) of the vehicle in question i.e. Rs.24,30,000/- and thus very well comes in the purview of Total Loss (TL)/Constructive Total Loss (CTL) claims as per own Damage Policy of OP no.1-Insurance Company (Ex.R8), which says as under:-

“IDV shall be treated as the Market Value throughout the policy period without any further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CTL) Claims.”

“The 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% of the IDV of the vehicle.”

The OP no.1 has taken reference of Survey Report of Suveyor viz. Mr. Sanjay Kumar Verma appointed by them in repudiation letter dated 28.09.2019 (Annexure R5) and claim was repudiated  mainly on the ground tha at the time of accident the load body of vehicle was extended from the  provided  by the original  equipment manufacturer  (OEM). However, OP has failed to produce any document in regard to quantum of extended load body at the time of accident. The surveyor’s Report referred by the OP and placed on record vide Annexure R3 does not have any mention about extended load body. This is a total loss and is to be dealt accordingly. The conditions annexed to the insurance policy provides as under:-

For total loss/Constructive Total Loss of the vehicle- the Insured’s Declared Value (IDV) of the vehicle (including accessories thereon) as specified in the schedule less the value of the wreck.”

In view of this condition the IDV of Rs. 24,30,000/- minus wreck value is payable to the complainant. Here wreck value has not been given either by the OP/ its surveyor or the complainant. In the absence of any documentary proof, the wreck value may be taken  10% of IDV which arrives  at Rs.2,43,000/- being 10% of IDV of Rs.24,30,000/-

10.                   Keeping in view of the facts, case laws and legal position enunciated above, we have no hesitation in holding that the OP no.1-Insurance Company is admittedly deficient in providing proper services to the complainant and has adopted unfair trade practice by passing their own policy in not treating the insured vehicle in question as a Total Loss and therefore, we allow the present complaint with a direction to OP no.1-Insurance Company to comply with the following directions within 45 days from the communication of this order:-

1. To pay a sum of Rs.21,87,000/- (Rs. 24,30,000/-  the IDV of the insured vehicle less wreck value of Rs.2,43,000/-) to the complainant alongwith interest @ 6% per annum from the date of accident of the complainant’s vehicle i.e. w.e.f. 25.02.2019 till its realization, subject to submission of subrogation letter, no dues certificate from the financer/loan account statement of insured vehicle, if any, alongwith Form 26, 27, 29 and 30(A) to the insurance.
2.  To pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards compensation for causing harassment, mental agony etc. to complainant.
3. Also to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) in lump sum on account of costs of litigation charges including counsel fee etc. incurred by the complainant.

Further, the award in question/directions issued above must be complied with by the OP no.1-Insurance Company within the stipulated period of 45 days failing which all the awarded amounts mentioned at (i) to (iii) above shall further attract simple interest @ 9% per annum for the period of default. Copy of this order be supplied to the parties concerned, as per rules. File be consigned to the records, after due compliance.