Order by:

Smt.Priti Malhotra, President

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant is the registered owner of vehicle bearing registration no.PB-29U-6726 and got insured the same from Opposite Parties, vide policy No.2311/69470911/00/00 for the period 10.02.2023 to 09.02.2024. During the aforesaid policy period i.e. on 11.06.2023, the above said insured vehicle met with an accident and damaged badly. After this accident, the complainant immediately informed the opposite parties regarding the accident and claim was registered vide claim number CL23103944 and thereafter, the opposite parties appointed a surveyor who inspected the vehicle at the spot and also got completed all the formalities from complainant for processing the claim and as per instructions of opposite parties the above said vehicle was parked at Remira Motors Pvt. Ltd. Moga on 12.06.2023. Thereafter, the complainant made various requests to the Opposite Parties to settle the claim, but the Opposite Parties were lingering the matter on one pretext or the other. Thereafter the complainant get released his vehicle from Remira Motors Pvt. Ltd. Moga on 08.07.2023 after paying the bill of Rs.2360/-. After getting released his damaged car from Remira Motors, Moga, the said car was parked for repair in Malwa Maruti Centre at Mukatsar. The said car got repaired from Malwa Maruti Centre and total bills of repair charges of Rs.1,33,250.40/- were paid by the complainant and thereafter complainant requested the opposite parties to pay the above said amount but they refused to do so. Alleged that the surveyor has made the false report "That repair liability is exceeded 75% of the IDV of the vehicle" and reported loss calls for the settlement of the claim on "constructive Total Loss Basis". Alleged further that after receiving the letter dated 14.07.2023, the complainant approached the office of the opposite party, but they did not pay any heed to his genuine request. The act of the opposite party is illegal, unwarranted and uncalled for. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to pay the amount of Rs.1,35,610.40  as repair charges alongwith interest @ 18% per annum from the date of payment till its actual realization.

b)      To pay an amount of Rs.50,000/- as compensation on account of mental tension and harassment.

c)       To pay an amount of Rs.33,000/- as cost of the complaint.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is not maintainable; the complainant has got no locus-standi; no deficiency in service has been attributed to the opposite parties; the complaint is false and frivolous; complicated questions of law and facts are involved in the present complaint and lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court; the complainant has not approached this Commission with clean hands rather he has willfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite parties. Averred that the claim intimation was received by the answering opposite party No.1 through Motor Insurance Claim Form, regarding own damage claim for which answering opposite party deputed independent IRDA License surveyor Gurvinder Singh for the assessment of loss, as per survey report total part cost inclusive of taxes and other levies was Rs.1,97,984-05 and repair liability exceeded 75% of IDV of the vehicle i.e. Rs.203,532-00 and as per relevant provision of the Private Car Package Insurance Policy for the treatment of loss on ‘Constructive Total Loss Basis’ where the repair liability exceeds 75% of the Insured Declared Value. The following clause is applied

 "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", Since, the tentative assessed repair liability is far more than 75% of the IDV hence the reported loss calls for the settlement of the clam on "Constructive Total Loss Basis".

In this mode of settlement, answering opposite party's Liability shall be Insured Declared Value (IDV) less wreck Value obtained on as is where is basis less Compulsory excess clause of Rs 1000/- The Highest Estimate wreck value of your vehicle on as is where basis has been quoted as Rs.2,77,700/ through e-auction agency. The vehicle in as is where is basis shall be pulled by the highest bidder of the e-auction agency and shall pay Rs.2,77,700/- to complainant directly. The received online wreck value is more than the IDV of the vehicle, hence no liability falls under the scope of the policy, and this claim is treated as ‘no claim’ in the system subject to policy cancellation. It was asked to complainant to contact and hand over the vehicle to the salvage buyer - (M/S Gaadi Expert Padam Kumar 9267925470). It was also advised to complainant to remove the vehicle from the repair workshop and keep it in your safe custody till the vehicle is pulled up by the salvage buyer, company will not be liable for any parking charges incurred and charged by any vendor or repairer of the vehicle and the e-auction valuation of your vehicle holds good only for the period of 7 days any deterioration of wreck value due to late submission of required documents, the company will not be responsible. The claim has been processed as per terms and conditions of the insurance policy. The complainant is trying to seek wrongful gains from the answering respondent. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Complainant has also filed replication to the written reply of Opposite Parties denying the allegations made by them in their written reply.

4.       In order to prove his case, the complainant has placed on record copies of documents Ex.C1 to Ex.C10 and his affidavit as Ex.C11.

5.       On the other hand, Opposite Parties have placed on record affidavit of Smt.Ankita Bose, Authorized Officer of Universal Sompo General Insurance Co. Ltd. as Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP11.

 6.      We have heard the ld. counsel for both the parties and also gone through the record.

7.       It is not disputed that the complainant is owner of vehicle bearing registration no.PB-29U-6726 and the said vehicle was duly insured with Opposite Parties, vide policy No.2311/69470911/00/00 for the period 10.02.2023 to 09.02.2024. It is also not disputed that during the policy coverage on 11.06.2023, the above said insured vehicle met with an accident and due intimation about the said accident was given to Opposite Parties. It is also not disputed that on receipt of claim intimation, the opposite parties appointed a surveyor who inspected the vehicle at the spot and also got completed all the formalities from complainant for processing the claim and thereafter the above said vehicle was parked at Remira Motors Pvt. Ltd. Moga on 12.06.2023. It is also not disputed that the complainant get removed his vehicle from Remira Motors Pvt. Ltd. Moga on 08.07.2023 after paying the bill of Rs.2360/- and thereafter the complainant get it repaired from Malwa Maruti Centre and Rs.1,33,250.40/- were paid by the complainant. Now, the only grievance of the complainant is that till date the Opposite Parties have failed to settle and pay the claim of the complainant.

8.       On this, the plea taken by Opposite Parties is that on receipt of claim intimation, the opposite parties deputed their surveyor for the assessment of loss, as per survey report, he assessed the loss of Rs.1,97,984/- and repair liability exceeded 75% of IDV of the vehicle i.e. Rs.203,532/- and as per ‘Private Car Package Insurance Policy’ where the repair liability exceeds 75% of the Insured Declared Value, the claim be settled on ‘Constructive Total Loss Basis.’ Contended further that opposite party's Liability shall be ‘Insured Declared Value (IDV)’ less wreck Value obtained on as is where is basis less Compulsory excess clause of Rs 1000/-.  The Highest estimated wreck value of the vehicle of the complainant has been quoted as Rs.2,77,700/-  through e-auction agency and online wreck value is more than the IDV of the vehicle, hence no liability falls under the scope of the policy. Also it has been submitted that Opposite Parties made an offer to the complainant to contact and hand over the vehicle to the salvage buyer M/s Gaadi Expert Padam Kumar and the e-auction valuation of the vehicle in question holds good only for 7 days. Since the complainant failed to do the needful, so the Opposite Parties are not liable to pay any claim.

9.       It is on record that the surveyor duly appointed by Opposite Parties assessed the loss to the tune of Rs.1,97,984/- and stated that as the repair liability exceeds 75% of the Insured Declared Value of the vehicle, so the claim of the complainant be settled on ‘Constructive Total Loss Basis’. It has been observed that the Opposite Parties despite paying the claim of the complainant on the Constructive Total Loss Basis asked him to hand over the vehicle to the salvage buyer for the assessed value of Rs.2,77,700/- on e-auction, which the complainant opted to decline the offer. It is proved on record that complainant get his vehicle repaired from Malwa Maruti Centre at Muktsar by paying Rs.1,33,250/- vide Ex.C4 to Ex.C8 and in this way, the repair charges of the vehicle in question does not exceed 75% of the IDV, which as per the policy document Ex.C2 is Rs.2,03,532/- . As such, the objection raised by the Opposite Parties that the repair liability exceeds 75% of the Insured Declared Value of the vehicle and online wreck value is more than the IDV of the vehicle,  so there is no liability of Opposite Parties under the scope of the policy is not maintainable. Further the surveyor duly appointed by the Opposite Parties already declared the vehicle in question as ‘Constructive Total Loss Basis’. In these circumstances, we are of the considered view that the complainant is duly entitled for Rs.1,33,250/- spent by him on the repair of the vehicle in question.

10.     In such a situation non settlement of the genuine claim of the complainant by the Opposite Party-Insurance Companies is unjustified. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is wherein it was held that

“Insurance Company being in a dominant position, often fully attracted, acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims.”

11.     In view of the discussion above, the instant complaint is allowed in part. and Opposite Parties are directed to pay Rs.1,33,250/- (Rupees One Lakh Thirty Three Thousand Two Hundred Fifty only) to the complainant. Further Opposite Parties are directed to pay compository cost of Rs.20,000/-(Rupees Twenty Thousand only) as compensation on account of deficiency in service and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission