Haryana

Ambala

CC/303/2020

Madan Lal Aggarwal - Complainant(s)

Versus

Cholamandlam MS General Inss Co Ltd - Opp.Party(s)

Udai Singh Chauhan

03 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA

Complaint case no.	:	303 of 2020
Date of Institution	:	02.12.2020
Date of decision	:	01.04.2023

Madan Lal Aggarwal S/o Sh. Basheshar Dass, Age about 67 years R/o ward no.10, Urban Estate, Sector 7, Ambala City, Tehsil & District Ambala.

          ……. Complainant.

                                                Versus

1. Cholamandalam MS General Insurance Company Ltd. through its Office- Branch Office, S.C.O. 2463-2464, 2nd Floor, Sector 22-C, Chandigarh-160022.
2. GLOBE Automobiles Pvt. Ltd., Globe TOYOTA Village Sadhopur, Opp. Springfield School, NH-22, Baldev Nagar, Ambala City Haryana-134007.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri U.S. Chauhan, Advocate, counsel for the complainant.

                             Shri R.K. Vig, Advocate, counsel for the OP No.1.

                   Shri G.S. Antal, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the difference amount i.e. Rs.22,400/- along with interest @ 18% p.a.
2. To pay Rs.1,00,000/- for causing mental agony, harassment and monetary loss to the complainant.
3. To pay Rs.21,000/- as litigation costs.OR

Grant any other award which this Hon’ble Commission may deems fit.

      

2.           Brief facts of the case are that the complainant is the registered owner of Motor Car (in short the vehicle) bearing its registration No. HR-08-E- 0009, Annexure C-3 and the same was insured by OP No.1 valid for the period from 29/05/2020 to 28/05/2021, vide Policy No. IRDAN123RP0018V01201819 for which he paid premium of Rs. 26,694/-. Renewal of the insurance of the vehicle was delayed because of the lockdown induced due to COVID-19 across the nation. As soon as the government had announced the unlock measures, the complainant had approached OP No.1 for renewal of the insurance. OP No.1 had informed the complainant that it will undertake pre- inspection because of the delay before renewing the insurance. As informed, the OPs completed the pre-inspection and had renewed the insurance of the vehicle, vide inspection report Annexure C-2. As per the inspection report, OP No.1 had pointed out that the front and back bumper of the vehicle had some scratches/dents and the rest of the car was perfectly fine. On 08/09/2020 the vehicle of the complainant driven by son of the complainant met with an accident near Shahabad (Markanda) due to negligence and rash driving of a truck driver. The vehicle of the complainant was hit from the left side and was thus badly damaged. The said incident was timely intimated to OP No.1 and as per the instructions of OP No.1 the complainant took his vehicle to the workshop of OP No.2 to get the damage assessed and repair. A surveyor was deputed on 10/9/2020 by OP No.1 to assess the loss of the car in question and OP No.2 had prepared the estimate of actual loss on 16/09/2020. After conducting the survey, OP No.1 had instructed the OP No.2 to get the vehicle repaired as per the estimate and as per the approval of OP No.1, the OP No.2 started repairing the vehicle of the complainant. The complainant was under the impression that OP No.1 will pay the entire amount by the virtue of his insurance but on 17/09/2020 the son of the complainant received a call from OP No.2 where he was informed that OP No.1 has not approved the entire loss and if the complainant wants to get his vehicle repaired as per actual estimated loss then the complainant will have to bear the remaining expenses. As the repair work was already in progress so the complainant had no other option that to bear the expenses because otherwise he would be able to use his vehicle because of its condition. The complainant had requested several times to OPs No.1 & 2 to heed to the terms of his insurance contract. Moreover, OP No.1 & 2 was under legal obligations to inform the complainant of this situation prior to commencing the repair work. Finding no other alternative, the son of the complainant had given an undertaking which is under protest to bear the remaining expenses. When the complainant asked OP No.1 as to why it did not sanction the entire claim amount as per the estimated loss, instead of giving any genuine and satisfactory reply, it kept delaying the matter on one pretext or other. In the meantime when the car got completely repaired, OP No.2 had prepared the final bill of Rs.1,02,315/- out of which OP No.1 had only approved Rs.82,494/- and the rest was to be paid by the complainant i.e. Rs.22,400/-. From the said amount, the complainant had already paid Rs.10,000/- on 17/09/2020 and the balance i.e. Rs.12,400/- on 26/09/2020. The said amount was paid before taking the delivery of the car. Whereas, on the other hand, as per terms and conditions of the policy, the complainant was not liable to pay even a single rupee for the damages incurred to the vehicle in the said accident because the complainant had bought the zero depreciation policy in question. The complainant had made the payment of the said bill under protest because he was not left with any other option, as the vehicle was in the custody of OP No.2 and it was not ready to release the vehicle without payment of the bill. The complainant requested OP No.1 to either justify the reason for not approving the claim or pay the entire claim, upon which OP No.1 gave baseless reason that at the time of pre-inspection the bumpers of the vehicle of the complainant were already scratched so the same was not covered in the accident whereas as a matter of fact it is apparent from the photos that the bumpers were fully damaged due to accident and required to be replaced. The complainant had asked OP No.1 to give reasons in writing but it refused to do so which clearly proves the malafide intention and deficient services of OP No.1. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that maintainability and no cause of action etc. On merits, it has been stated that the complainant informed OP No.1 regarding damage of the vehicle in question on 08.09.2020. OP No.1 consequent upon the information, appointed approved surveyor Mr.Rajat Sharma who lost no time and prepared the report on the basis of physical verification & the surveyor report prepared its report on the basis of actual & physical verification of the vehicle & accordingly the loss assessed come to Rs.82,494/-. Since after due procedure, when everything was found in order, the required amount of sanction was paid as per satisfaction of the complainant. OP No.1 has paid Rs.82,494/- as per final survey report & due the reasons mentioned as below parts are disallowed due to the following reasons:-

(a) RR Bumper and its spares disallowed as damages are same as BIR.

(b) FR Bumper part cost 50% disallowed as there were previous damage in BIR & multiple damages.

(c) Tail Lights are not allowed as they are not correlating.

Perusal of photographs depicts that only left side of the vehicle in question was damaged whereas the complainant wanted to get his claim which is not admissible as per terms and conditions of the Policy. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint.

4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that the complainant is not a consumer as defined under the Consumer Protection Act etc. On merits, it has been stated that the vehicle in question was reported to OP No.2 for accidental repair on 10.09.2020 and the estimate for repair was prepared by it. Thereafter OP No.1 completed its formalities qua processing of Insurance Claim and the concerned Insurance Company vide its e-Mail dated 15.09.2020, Annexure OP-2/2, authorized repair/ replacement of certain parts in the vehicle in question. The same was informed to the complainant by OP No.2 and instructions were sought from the complainant whether to carry out the remaining repair work not approved by the concerned Insurance Company on payment basis or not. Upon this the son of the complainant visited the dealership of OP No.2 on 17.09.2020 and gave approval to the OP No.2 to carry out the remaining repair work of the vehicle in question which was not approved by the Insurance Company on payment basis and assured that he will make the payment of such work. The son of the complainant informed OP No.2 that he has no grievances against the dealership but he is signing the undertaking under protest so that the same could not be treated as waiving off the Insurance Claim qua job works not approved by it and his claim against the concerned Insurance Company remains unprejudice. Thereafter the son of the complainant gave the token amount of Rs.10,000/- to OP No.2 and gave approval to start the repair work and assured that he will make the payment of the job work carried out by OP No.2 qua the job works not approved by the concerned Insurance Company. On that very day the son of the complainant also requested for doing exterior beautification work and other misc. work of the vehicle in question on payment basis. Thereafter the repair work along with other work as requested by the complainant was carried out by the dealership of OP No.2. OP No.1 on 23.09.2020, issued the DO to OP No.2 and approved the claim amount of Rs.82,494/-. The same was informed to the complainant. Complainant informed OP No.2 that he will make the balance payment at the time of taking delivery of the vehicle in question. Thereafter on 26.09.2020, complainant made the payment of balance amount of Rs.12,400/- and took the delivery of the vehicle in question. The approval or rejection of Insurance Claim is subject to terms and conditions/ policies of the concerned Insurance Company and OP No.2 has no role or concern with it, as there is no privity of contract between OP No.2 and the complainant qua the contract of Insurance.  Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-8 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Abhishek Nigam, Assistant Manager, Chola M/s General Insurance Company Limited, 2^nd Floor, Plot No.39, Pusa Road, Karol Bagh, opposite Metro Pillar No.120, New Delhi, and affidavit of Rajat Sharma, Surveyor, #354, Harmilap Nagar, Phone-1 Baltana, Zirakpur as Annexure OP-1/A and OP1/B respectively alongwith documents Annexure OP-1/1 to OP-1/15 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of OP No.2 company-Globe Automobiles Pvt. Ltd. alongwith documents Annexure OP-2/1 to OP-2/8 and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by deducting an amount of Rs.22,400/-  from the amount of Rs.1,02,315/-  charged by OP No.2 for repairs of the accidental vehicle, despite the fact that the policy in question was zero depreciation policy, OP No.1 has indulged into unfair trade practice and also deficient in providing service.
8.           On the other hand, learned counsel for OP No.1 submitted that since OP No.1 has made the payment strictly as per the opinion given by the surveyor in its final survey report, as such, OP No.1 cannot be held deficient in providing service to the complainant.
9.           Learned counsel for OP No.2 submitted that instructions were sought from the complainant whether to carry out the remaining repair work not approved by the concerned Insurance Company on payment basis or not, to which he gave approval on 17.09.2020. He further submitted that thereafter the son of the complainant gave the token amount of Rs.10,000/- to OP No.2 and gave approval to start the repair work and assured that he will make the payment of the job work carried out by OP No.2 qua the job/works not approved by the concerned Insurance Company. He further submitted that thereafter, OP No.1 on 23.09.2020, issued DO to OP No.2 and approved the claim amount of Rs.82,494/-, which was informed to the complainant. He further submitted that the complainant informed OP No.2 that he will make the balance payment at the time of taking delivery of the vehicle in question and as such, on 26.09.2020, the complainant made the payment of balance amount of Rs.12,400/- and took the delivery of the vehicle in question. He further submitted that approval or rejection of Insurance Claim is subject to terms and conditions/ policies of the concerned Insurance Company and OP No.2 has no role or concern with it as there is no privity of contract between OP No.2 and the complainant qua the contract of Insurance. 
10.           The moot question which falls for consideration in this case is, as to whether, the complainant is entitled to get remaining amount of Rs.22,400/- paid by him to OP No.2, which was not approved by OP No.1, qua repairs of his vehicle from OP No.2 or not. It may be stated here that the OPs have not disputed the fact that the policy in question issued in favour of the complainant was a Zero Depreciation Policy. It is also an admitted fact that out of the total amount of Rs.1,02,315/- raised by OP No.2 towards repair charges in respect of the insured accidental vehicle, OP No.1 has passed only an amount of Rs.82,494/- and the remaining amount of Rs.22,400/-  has been denied by OP No.1, which had been paid by the complainant from his own pocket vide receipts dated 17.09.2020 in the sum of Rs.10,000/-, Annexure C-7 and 26.09.2020 in the sum of Rs.12,400, Annexure C-8, issued by OP No.2. The basis of denial of this amount of Rs.22,400/- by OP No.1 is the surveyor report dated Annexure OP-1/3 which reveals that the surveyor has come to the conclusion that the complainant is entitled to Rs.82,494/- only. But in the said report it has We have gone through the said surveyor report and are of the considered opinion that it has not been clarified in the said report, as to why and how, an amount of Rs.22,400/- stood deducted when the policy in question was a Nil depreciation policy as is evident from the policy schedule Annexure C-1. In-fact, perusal of the said report reveals that not even a single reason has been assigned by the surveyor, as to why an amount of Rs.22,400/- stood deducted from total amount of Rs.1,02,315/-. In the absence of any valid and legal reason, in our considered opinion,  the said amount of Rs.22,400/- should not have been deducted by the surveyor, especially, when the policy issued was a nil depreciation policy. 

No doubt, in the written version filed by OP No.1 it has been stated that the deduction of Rs.22,400/- has been made because of damages of RR Bumper and its spares are same as BIR; FR Bumper part cost 50% disallowed as there was previous damage in BIR and multiple damages; and that tail lights are not allowed as they are not correlating, yet, in our considered opinion,once OP No.1 has already issued the nil depreciation policy in respect of the vehicle in question, after getting the vehicle in question inspected vide vehicle inspection report dated 23.05.2020, Annexure C-2 before issuance of the policy in question, as such, thereafter deduction of substantial amount qua damaged Bumpers (which had been also found scratched/dented during inspection on 23.05.2020 itself), by OP No.1 has no value in the eyes of law. It is not the case of OP No.1 that the bumpers of the vehicle in question were not damaged after insurance and were not damaged in the said accident and that it was an old damage.

As far as plea taken to the effect that tail lights are not allowed as they are not correlating with the accident, it may be stated here that in the absence of any evidence in that regard, the bald plea of OP No.1 taken in that regard did not merit acceptance. Even otherwise, since in the surveyor report no such opinion was ever given by the surveyor, therefore, the insurance company cannot raise such a plea to defeat the genuine claim of the complainant. In the peculiar facts and circumstances of this case, we are of the considered opinion that the surveyor has fell into an error in preparing his report, as he failed to take into consideration the fact that the policy in question was a nil depreciation policy and on the other hand, deducted an amount of Rs.22,400/- without assigning any cogent and convincing reason.  It is therefore held that there are some flaws in the surveyor's report and as such the same is not binding upon the complainant. The Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" has held that that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.

11. Since no deficiency in service is proved on the part of OP No.2 as such, the complaint filed by the complainant against it is liable to be dismissed.
12.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the same against OP No.1 and direct it, in the following manner:-
    1. To pay/reimburse the remaining claim amount of Rs.22,400/- to the complainant alongwith interest @4% p.a. from the date of respective payments onwards.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.

The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.   

 Announced:- 03.04.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President