Delhi

East Delhi

CC/127/2019

SUBHASH CHANDRA SH. - Complainant(s)

Versus

AVIVA AUTO. - Opp.Party(s)

04 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

 

C.C. No.127/2019

 

 

 

	Subhash Chandra Sharma, Property Bearing No. 1511, Prateek The Royal Cliff, Crossing Rebulik, Ghaziabad, UP.-201016 Through AR Ms. Anjali Sharma	….Complainant
Versus
1.           2.           3.             4.             5.             6.	M/s Aviva Auto Service Pvt. Ltd. Property Bearing No. 104, New Rajdhani Enclave, Delhi-110092. All are also at: 77-78 Industrial Area, Patparganj, Delhi-110092.   M/s United India Insurance Company Limited, Divisional Office No. 16, Kirti Palace, A-1, Second Floor, Tagore Market (Opp. Metro Pillar No. 330),  Kirti Nagar, New Delhi-110015. OP6 (renumbered as OP2)   Kirti Singhania-Director, M/s Aviva Auto Service Pvt. Ltd. Property Bearing No. 104, New Rajdhani Enclave, Delhi-110092. (Vide order dated 24.04.2019, OP numbers 2 to 5 were deleted from the array of parties)   Ashish Singhania-Director, M/s Aviva Auto Service Pvt. Ltd. Property Bearing No. 104, New Rajdhani Enclave, Delhi-110092. (Vide order dated 24.04.2019, OP numbers 2 to 5 were deleted from the array of parties)   Alok Singhania-Director, M/s Aviva Auto Service Pvt. Ltd. Property Bearing No. 104, New Rajdhani Enclave, Delhi-110092. (vide order dated 24.04.2019, OP numbers 2 to 5 were deleted from the array of parties)   Meenakshi-Executive/Officer-in-Charge, M/s Aviva Auto Service Pvt. Ltd. Property Bearing No. 104, New Rajdhani Enclave, Delhi-110092. (Vide order dated 24.04.2019, OP numbers 2 to 5 were deleted from the array of parties)	……OP1               ……OP2         ……OP3           ……OP4                 ……OP5               ……OP6

 

 

Date of Institution: 12.04.2019

Judgment Reserved on: 25.04.2023

Judgment Passed on: 04.05.2023

                  

CORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Judgment By: Ms. Rashmi Bansal (Member)

 

 

JUDGMENT

 

The present case filed by the complainant against the reduction of the IDV of his insured vehicle by OP2 without his consent and information, alleging unfair trade practice and claiming a refund of the money charged in excess, difference amount to the extent of reduced IDV along with compensation for harassment, mental agony and physical and financial trouble.

The present complaint has been filed by the complainant through his daughter as his authorized representative. Initially, the complaint has been filed against 6 OPs, however, vide order dated 24.04.2019, OP numbers 2 to 5 were deleted from the array of parties and the complaint proceeded against OP1, the automobile dealer and OP6 (renumbered as OP2), the insurance company as per amended memo of parties & the same is being reflected in the cause title.

1. The complainant’s vehicle number UP14 CB8293, make Polo 1.2 Volkswagen insured by OP2 through OP1 at the IDV of Rs.4,21,000/- for a period from 22.11.2017 to 21.11.2018 at the premium of Rs.18,118/-. The insurance was renewed by OP2, for which OP1 has received the premium from AR of the complainant as the complainant was not in town amounting to Rs. 13,313/-, on behalf of OP2 on declaring IDV of Rs.3,78,900/-. The said amount was paid by the AR of the complainant through her SBI credit card. The cover note dated 21.11.2018 was given to the AR/Daughter of the complainant, but the policy was not given by OP2 despite repeated requests and reminders to OP1 through emails dated 21.11.2018, 23.11.2018, and 26.11.2018 and even telephonically.
2. That on 26.11.2018 the AR of the complainant received an email from OP1, with an attached copy of the insurance policy and a cheque (which was forwarded by OP1 to OP2 towards the premium of the insurance policy), mentioning that the IDV and the premium amount of Rs.13,312/- of the vehicle have been changed by OP2 and the excess amount paid by the complainant would be refunded to the complainant and asked to provide a cancelled cheque of complainant so that the excess amount could be transferred in his bank account.
3. The AR of the Complainant submits that the change in the IDV or the premium amount has been done without the complainant’s consent & even without AR’s consent & information was given by OP1 or OP2 prior to such reduction. Moreover, since the payment of the premium has been paid by her, therefore, the excess amount was requested to be refunded to her account AR of the complainant further submits that it has also not been clarified to her as to how and why OP2 has reduced IDV from Rs. 3,78,900/- to Rs. 2,44,000/-, while as per the cover note dated 21.11.2018issued by OP2, the IDV of the aforesaid vehicle is mentioned as Rs. 3,78,900/-. The complainant submits that OP1 and OP2, in connivance with each other are practicing unfair trade practices by giving high IDV at the time of giving insurance policy and after receiving the premium amount, deliberately delayed the insurance policy initially and later on, suo-moto reduce the IDV value. Moreover, OP1 forced her to give a cheque leaf of the complainant’s bank account despite having the knowledge that the complainant is out of the country. The legal notice sent by AR of the complainant was not replied to by OP1 and OP2. The AR of the complainant alleges negligence, deficiency in service and unfair trade practice on the part of OPs because of which the complainant and his AR have suffered mental agony, harassment and inconvenience, praying for a refund of Rs. 3201/- as the excess payment made by the complainant and  Rs.1,34,900/- towards difference of IDV along with interest at the rate 18% per annum from the date of payment till its realization and the compensation towards damages on account of mental harassment and frustration.
4. OP1 has filed its reply stating that fixing the IDV and the other allied issues related to the insurance and w.r.t. renewal of the policy is not related to OP1 and is the exclusive prerogative of the OP2. The OP1 has only a limited role as a facilitator, making the complainant understand the proposal subject to reduction/revision of the IDV by OP2 and submitting the proposal on behalf of the complainant. The OP1 is an absolute non-privy thereto. The acceptance or rejection of the proposal form is the sole prerogative of OP2. Therefore, there is no deficiency of services on its part nor OP1 has adopted any unfair trade practice, as there is no cause of action against it.
5. OP2 has also filed its reply stating that the present complaint is not maintainable being without any cause of action against it. The complaint is false and frivolous and liable to be rejected with cost. OP2 submits that the complainant himself has not approached the commission with clean hands and has suppressed the material facts from the scrutiny of this commission. The real fact is that the complainant has never been in a conversation with OP2 at any point of time and had not approached OP2 for a refund of the excess amount of the premium. It is also stated that from the email conversation dated 26.11.2018, it is clear that to get the excess amount refunded, the complainant’s cancel cheque is required and the complainant failed to give the same due to which OP2 was not able to refund the excess amount of premium to the complainant, which clearly shows that due to the fault of the complainant himself, the same amount could not be refunded to the complainant, despite its approval dated 12.12.2018. The OP2 further states that the policy in question was taken up through the agent by the complainant and the proposal form bears the signature of the complainant, which shows the consent of the complainant in taking the policy from the OP2. It is further submitted that it has never been approached by the complainant and all the conversations were done between the complainant and OP1. It is also submitted that the IDV of any vehicle is decreased every year and as per the rules and regulations of IRDA, the vehicle of the complainant was insured and the complainant had agreed to the same through her agent who had signed the proposal form on behalf of the complainant after which answering party had issued the renewed policy of the same to the complainant. It is also stated that if any party had given the excess premium then as per procedure it was to be returned after getting the cancelled cheque of the party and in the present case since the complainant failed to handover the cancelled cheque therefore, the excess amount could not be returned back to the complainant & as such it is prayed that the complaint of the complainant be dismissed.
6. The complainant has filed a rejoinder to the reply of OP1 and OP2 reiterating his contentions taken in the complaint that the consent was given by the daughter of the complainant for the quotation containing IDV of the car as Rs.3,78,900/- with a premium of Rs. 13,312/- and not for the IDBI of the car of Rs.2,44,000/- and the fact of less premium and reduced IDV came into the knowledge of AR of the complainant at a later stage. The complainant has also placed on record the next insurance policy of the vehicle for a period from 22.11.2019 - 21.11.2020 taken from ICICI Lombard, with IDV of Rs. 3,77,999/- which clearly shows the mala-fide and unfair trade practice on the part of OP1 and OP2 as the IDV of the complainant’s car is still higher than what is provided by the OPs.
7. In support of his complaint, the following documents are filed by the complainant:
   1. Copy of the letter in favour of AR of the complainant, Ann. A;
   2. Copy of the RC of the vehicle, Ann. B;
   3. Copy of the cover note dated 09.11.2017, Ann. C;
   4. Copy of an email dated 21.11.2018 along with insurance policy for the period 22.11.201 7–21.11.2018, Ann.  D;
   5. Copy of cover note dated 21.11.2018, Ann. E;
   6. Copy of payment slip by AR of the complainant, Ann. F;
   7. ID proof, with respect to the renewal of the policy, Ann. G;
   8. E-mail dated 21.11.2018, 23.11.2018, and 26.11.2018, sent to OP1, Ann. H (colly);
   9. Copy of email dated 26.11.2018, Ann. I;
   10. Copy of cheque number 051395 dated 21.11.2018 of Rs.13,312/- issued in favour of OP2, Ann. K;
   11. Copy of legal notice dated 26.11.2018, Ann. L;
   12. Copy of insurance policy issued by ICICI Lombard, Ann. M;
8. In support of his case, OP2 has filed
   1. Certificate in compliance with section 64 VB of the insurance act, EX.OP2-1/1;
   2. Copy of document showing the approval of the refund of excess premium by OP2, Ex. OP2–1/2;
   3. Copy of the proposal form, showing the consent of the complainant, in which reduced IDV is accepted by the agent on behalf of the complainant, Ex. OP2-1/3,
9. The Commission has heard the Ld. Counsels for the parties and perused the documents. The proposal form filed by the OP2 shows the IDV as Rs. 3,78,900/- which digits have been cut and an amount of Rs. 2,44,000/-mentioned on its with countersigned in margin with the date 26.11.18. The amount of premium showed as Rs. 13,312/-. OP2 has also placed on record an approval for the refund of Rs.3201/- (excess premium paid) generated on 12.12.2018. No document placed on record by OP2 to show that consent to reduce the IDV from Rs. 3,78,900/- to Rs. 2,44,000/- has been obtained from the complainant or his AR or any information has ever been given to them.  In the absence of the same, this cannot be said that the complainant agreed to get the renewal of the policy at the reduced IDV. Reducing the IDV at a later stage on its own amounts to deficiency in service & unfair trade practice on the part of OP2. This is also noticed that the AR of the complainant agreed to accept the refund of the excess premium amount of Rs. 3201/- but to her account. Considering the facts and circumstances of the case, this Commission is of the view that since the insurance premium amount was paid by the AR of the complainant from her own account and OP2 has proceeded with the same, therefore, there is no hindrance in refunding the excess amount in the account of the AR of the complainant. Also, this commission is of the view that the ends of justice would meet if the complainant is compensated by exemplary compensation to the tune of Rs. 5000/- for such deficiency & unfair trade practice on the part of OP2. Specially considering the fact that the next following insurance of the vehicle was at Rs. 3,77,999/- by ICICI Lombard. The claim of the complainant for the payment of the difference in the IDV of an amount of Rs. 1,34,900/- is not sustainable because the vehicle was insured throughout the period and the complainant has not cancelled the same. Since insurance of the vehicle is not the responsibility of OP1, therefore we find no deficiency in service on the part of OP1.
10. Therefore, OP2 is directed to refund the excess premium amount paid of Rs.3201/- to the account of the AR of the complainant without interest along with compensation of Rs.5000/- for deficiency in service & unfair trade practice subject to the indemnity bond given by the complainant to the OP2 that at any later stage, he will not make any claim of any type with respect to the said insurance from OP2. The said order be complied with within 30 days from the date of the receiving of the order failing which the OP2 shall be liable to pay the interest @6% p.a. on Rs. 8501/- w.e.f. date or order till actual realization by the complainant.
11. The order is uploaded on the website after providing a copy of the same to the parties as per CPA and thereafter the file be consigned to the Record room.
12. The order contains 10 pages, each bearing our signature.

Pronounced on 04.05.2023.