Haryana

StateCommission

A/798/2017

KISHIV MOTORS - Complainant(s)

Versus

HEENA VERMA - Opp.Party(s)

S.R.BANSAL

09 Mar 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.798 of 2017

                                                Date of Institution: 21.06.2017

                                                          Date of final hearing: 09.03.2023

Date of pronouncement: 28.03.2023

 

Kishiv Motors Pvt. Ltd. Ambala-Jagadhri Road, Village Khuddi Distt. Ambala through its Manager Mr. Mohinder Kumar.

…..Appellant

Versus

1. Heena Verma W/o Sh.Rakesh Verma, R/o H.No. 131-BL, Model Town, Yamuna Nagar, Tehsil Jagadhri Distt. Yamuna Nagar.
2. United India Assurance Co. Ltd., Opp. Rampura, Yamuna Nagar through its Branch Manager.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr.S.R.Bansal, Advocate for theappellant.

                   Mr.Karan Singh,Advocate for the respondent No.1.

                   Mr.B.R.Madan, Advocate for respondent No. 2.

 

First Appeal No.841 of 2017

Date of institution:14.07.2017

Date of final Hearing: 09.03.2023

Date of pronouncement: 28.03.2023

 

Heena Verma  age 23 years W/o Sh.Rakesh Verma, R/o H.No. 131-BL, Model Town, Yamuna Nagar, Tehsil Jagadhri Distt. Yamuna Nagar.

…..Appellant

Versus

1. United India Assurance Co. Ltd., Opp. Rampura, Yamuna Nagar through its Branch Manager.
2. Kishiv Motors Pvt. Ltd. Ambala-Jagadhri Road, Village Khuddi Distt. Ambala through its Manager Mr. Mohinder Kumar.

…..Respondents

CORAM:    S.P. Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr. Karan Singh, Advocate for theappellant.

                   Mr.B.R.Madan, Advocate for the respondent No.1.

                   Mr.S.R.Bansal, Advcoate for respondent No. 2.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

Vide this common order above mentioned two appeals bearing No.798 of 2017 and F.A. No.841 of 2017will be disposed of as both the appeals have been preferred against the same order dated 15.05.2017 passed by the District Consumer Disputes Redressal Forum, Yamuna Nagar at Jagadhri (in short ‘District Commission), which was partly allowed.

2.      Delay of 23days  in filing the appeal  bearing No.841 of 2017is condoned for the reasons stated in the application filed for condonation of delay.

3.      The brief facts of the case are that complainant was registered owner of Honda city car bearing registration No.HR-02V-9977. The vehicle was insured with opposite party No.1.  The insurance was valid from 15.02.2014  to 14.02.2015  for an IDV of Rs.5,00,000/-.  Unfortunately on 23.02.2014, the vehicle met with an accident and got extensively damaged.  Intimation about this incident was given to the insurance company.  Surveyor was appointed, who visited the spot and obtained some papers from her.  Thereafter she received a call from the office of OP No.1 advising her to bring the vehicle from Pathankot to agency of OP No.2. She brought the damaged car in a truck on 02.03.2014 by spending a sum of Rs.12,000/- in the agency of OP No.2 and official of OP No.2 gave the estimate amount of repair as Rs.3,50,000/-, whereas the IDV of the car in question was Rs.5,00,000/-.  OP No.1 appointed another surveyor, who after taking the estimate and in consultation with the OPs sent an e-mail on 12.05.2014 to the OP No.2. The complainant received telephonic call from the surveyor that her vehicle was not repairable as the cost of repair was exceeding 75% of the IDV, so the complainant was asked to deposit Rs.1,50,000/- with the OP No.2 and accordingly, the complainant deposited Rs.50,000/- on 14.05.2014 vide cheque No.462913 and Rs.1,00,000/- on 12.06.2014 vide cheque No.462914 respectively with the OP No.2. She requested the OPs  to pay the IDV value of the car but to no avail.  The complainant received an email from OP No.2 on 21.08.2014 at 1.12 p.m. by which the OP No.2 was asked to pay approximately a sum of Rs.5,52,000/-, whereas the IDV of the vehicle was Rs.5,00,000/- and how  a sum of Rs.7,02,000/- (5,52,000/- + 1,50,000/- already received) can be spent on the repair of the car in question.   As per instructions of IRDA and GR of Motor Vehicle rules that if the repair amount exceeds 75% of the IDV then the vehicle will be treated as total loss or the amount will be paid on cashless basis but OP No.1 and 2 in collusion with each other has neither treated the car in question as total loss and paid its IDV value to her nor the OP No.2 has refunded the amount charged by them.  Thus there being deficiency in service on the part of the OPs, hence the complaint.

4.      In its written version,OP No.1filed separate reply and raised preliminary objections with regard tomaintainability, negligence and deficiency in service alleged in the complaint. The claim intimation was received by Pathankot office of OP No.1 on 23.02.2014.  Upon intimation, surveyor was appointed, who conducted the spot surveyor on 23.02.2014 and submitted his  report dated 15.03.2014 to the insurance company.  Thereafter OP No.1 deputed another surveyor, who assessed the loss of Rs.2,95,487/- vide his report dated 29.08.2014.  Mr.Sudhir Dhingra surveyor was deputed to conduct the re-inspection of the car, who submitted his report dated 10.10.2014 mentioning that “after inspection he found that all the parts/repairs job allowed by the final survey had been carried out fully and vehicle was in good running condition.  OP  No.1 vide its registered letter dated 31.12.2014 sanctioned an amount of Rs.2,95,487/- to be released to her. The claim of the complainant was rightly assessed. Thus there being no deficiency in service on the part of the OP No.1, the complaint deserves dismissal.

5.      OP No.2 filed separate written version. It was alleged that the entire liability to bear with the loss was with OP No.1-insurance company and the vehicle was ready for delivery since September 2014. A huge amount was spent by OP No.2 but neither OP No.1 nor complainant made any payment to it despite repeated requests. The complainant was bound to pay the repair charges  alongwith parking charges. Thus there was no deficiency in service on the part of the OP No.2 either.

6.      After hearing both the parties, the learned District Commission, Yamuna Nagar at Jagadhrihas partly allowed the complaint vide order dated 18.05.2017, which is as under:-

“Resultantly, we partly allow the complaint of complainant and direct the OPs to comply with the following directions:

1. OP No.2 insurance company is directed to pay Rs.4,25,000/- to the complainant on account of damages to the car on cash loss basis alongwith interest at the rate of 9% per annum from the date of filing of complaint till its realization and;
2. To pay Rs.20,000/- as compensation for mental agony and harassment as well as unfair trade practice and;
3. Further to pay Rs.5500/- as litigation expenses.
4. OP No.2 is also directed to refund the amount of Rs.1,50,000/- to the complainant alongwith interest at the rate of 9% per annum from the date of deposit by the complainant with the OP No.2 till its realization and;
5. To pay further Rs.30,000/- as compensation for mental agony, harassment as well as unfair trade practice placed by the OP No.2.
6. The complainant is also directed to transfer the registration certificate or execute the documents in favour of OP No.2 in respect of the car bearing registration No.HR-02V-9977 to enable the OP No.2 to recover his loss, if any.”

7.      Feeling aggrieved therefrom, O.P Nos.2-appellanthas filed an appeal No.798 of 2017 as well as Heena Verma-complainant-appellanthas preferred an appeal No.841 of 2017.

8.      These argumentswere advanced by Sh.S.R.Bansal, learned counsel for the appellantsin appeal No.798 of 2017 and  respondent No.2 in appeal No.841 of 2017 as well as Sh.Karan Singh, learned counsel for respondent No.1in appeal No.798 of 2017 andappellant in appeal No.841 of 2017and Mr. B.R.Madan, Advocate for the respondent No.2 in appeal No.798 of 2017 and respondent No.1 in appeal No.841 of 2017. With their kind assistance entire record of appealsas well as that of the District Commission including whatever evidence has been led on behalf of  both the parties has been properly perused and examined.

9.      It is not disputed that during the continuation of the insurance policy, the vehicle got damaged.  It is also not disputed that upon intimation about the accident, the insurance company appointed surveyor, who assessed the loss to the tune of Rs.2,96,487/-.  It is also not disputed that the IDV value of the vehicle was Rs.5,00,000/-.  It is admitted case that as per instructions of IRDA and GR of Motor Vehicle rules that if the repair amount exceeds 75% of the IDV then the vehicle will be treated as total loss or the amount will be paid on cashless basis but OP No.1 and 2 in collusion with each other has neither treated the car in question as total loss and the paid IDV value of the car to her nor the OP No.2 refunded the amount charged by them.  It is admitted that as per request of the OPs,the complainant deposited Rs.50,000/- on 14.05.2014 vide cheque No.462913 and Rs.1,00,000/- on 12.06.2014 vide cheque No.462914 respectively with the OP No.2.  It is not disputed that the vehicle in question  was also shifted to a safe place. It is also not disputed that after repair of the vehicle, the vehicle in question was parked at the site of OP No.2.

10.     How the opposite party-insurance company has received Rs.1,50,000/- from her as share of complainant.  The insurance company did not pay IDV of the vehicle to her.  Perusal of the file shows that the after accident, the engine of the car was badly damaged. Vide email dated 21.08.2014  Annexure C-22 vide which OP No.2 asked her to pay Rs.5,52,000/- on account of repair of car, whereas as per annexure J  approximate estimate amount of repairs was Rs.thee lacs which can be re-assessed at the visit of surveyor it may exceed or reduce.  Since the IDV of the vehicle was Rs.5,00,000/- how OP No.2 asked the complainant to pay Rs.5,52,000/- .   It is admitted that spot survey was conducted by Sh.Vinnay Kumar Nayyar Annexure R-1/2 dated 15.03.2014, the nature of damage reported in the spot survey report was as under:-

Name of parts affected	Nature of damage
Bumper & Brackets	Front Bumper with Grill Assy. Broken
Car Assembly	Front wind screen glass broken, bonnet hood badly pressed/damaged. Front Tie Member pressed/damaged. Front fender both LH & RH pressed/damaged. Apron Leg RH pressed/dealigned. Front Door RH badly pressed/damaged. Door glass broken, rear door RH deshaped/damaged. Rear view mirron RH broken. Side body RH pressed/damaged. Apron Leg LH badly pressed/damaged. Front Door LH badly pressed/damaged. Door glass broken. Rear Door LH pressed/damaged. Qtr. Panel LH pressed/dented. Side body LH pressed/damaged. Rear view LH broken. Roof panel badly pressed/damaged. Dash Board displaced/damaged. Front both Air Bags brust/damaged.
Load body	N.A.
Chasus	Bent/Dealigned
Front Axle	Frt. Axle LH bent/dealinged. Axle RH affected
Suspension	Front comp. suspension ssy. Both LH & RH dealigned/damaged.
Real axle	Intact
Steering system	Steering wheel deshaped/dealigned. Steering ssy.affected
Radiator	Radiator Assy. Pressed/damaged
Coolling fan  & W P	Condensor assy. With fan motor pressed/damaged. Compressor assy.affected
Engine	Engine displaced from its position. To be checked
Clutch & Gear Box	Gear housing cracked/damaged.
Propeller Shaft	N.A.
Fuel feed system	Affected
Brake system	Affected
Wheels	Front wheel Rim LH deshaped/dealigned
Tyres	Front LH tyre torn out/damaged
Silencer	Affected
Battery	Intact
Air Cleaner	Air cleaner broken
Electrical equipment	Head lights both RH & LH cracked/damaged. Combination switch assy. Broken.

 

 In view of the above, the vehicle was badly damaged and it was a case of total loss.

11.      Annexure R-3 another surveyor Mr. Vinod Bhan reported that  total amount assessed was Rs.3,06,317/- and after deduction net amount was assessed as Rs.2,95,487/-.  It was abundantly clear that surveyor was under pressure of OP No.1 insurance company to  asses the loss of the car in question below 75% of the IDV so that it could not be treated as a total loss case. There are some ambiguities in the report of the surveyor, which is on record for example total amount assessed was Rs.3,06,317/- and after deduction net amount assessed was Rs.2,95,487/-.  It means that the complainant’s vehicle  suffered total loss in the said accident.   Nobody can spent huge amount of Rs.5,52,000/- on the car repair having IDV value of Rs.5,00,000/- as per insurance policy. The case law relied upon by the counsel for the complainantplaced on record authority of Hon’ble National Commission in Revision petition No.2382 of 2015 titled United India Insurance co. Ltd. Vs. Manjeet Kaur &Ors decided on 04.12.2015, it was held that IDV shall be treated as a market value throughout the policy period without any further depreciation for the purpose of total loss of constructive total loss claims, which is relevant in the case in hand.

12.    It is a matter of common experience, insurance companies often repudiate claims on grounds of non-disclosure of material information by the consumer. However they conveniently forget that there is an even greater statutory obligation cast on them to give full information to the consumer about the products they sell.

The responsibilities of the insurer towards full disclosure is even more because (a) the Insurance Regulatory and Development Authority’s (IRDA) Regulation on the protection of Policyholders’ Interests’ specifically mandates this and (b) the contracts of insurance, which are ‘Adhesion Contracts’ or ‘Standard Form Contracts’ are drawn up unilaterally by the dominant party-the insurer. The consumer, being the weaker party has no bargaining power, nor knowledge of the terms of the contract. So, the apex court has often said that these contracts, therefore, demand a very high degree of fairness, good faith and disclousure on the part of the insurer.

          Here are two cases where the Supreme Court has reminded insurers of their obligation in this regard and warned them against violations. The two cases also show-case the kind of unfair practices indulged in by insurers.

          In Texco Marketing Pvt. Ltd. Vs TATA AIG General Insurance (CA No. 8249 of 2022, date of judgment: November, 9, 2022), for example the insurance company insured after due inspection, a shop loacated in a basement under the Standard Fire and Special Perils Policy, despite the fact that the policy specifically excluded basements. Subsequently, following a fire, when the policyholder made a claim, the insurer repudiated it on the basis of the exclusion clause!

          While ruling in favour of the consumer, the apex court observed that first and foremost, the insurer did not bring the exclusion clause to the notice of the consumer. And then, despite having knowledge of the exclusion clause, it insured the basement and received the premium benefits. After this, repudiating the policyholder’s claim on the basis of the exclusion clause was certainly an unfair trade practice. “This view is fortified by the finding that the exclusion clause is an unfair term, going against the very object of the contract, making it otherwise un-executable from its inception,” the apex court said.

          Some of the observations of the court in this case would go a long way in upholding the rights of the policyholders. For example, the court made it clear that an exclusion clause, if not brought to the notice of the consumer by the insurer or agent, would not be binding on the consumer. Similarly, an unfair term in an insurance contact would be un-executable. The Supreme Court also reminded insurers that an exclusion clause “is not a leverage or safeguard for the insurer, but is meant to be pressed into service on a contingency, being a contract of speculation”.

          Said the court: “Before we part with this case, we would like to extend a word of caution to all the insurance companies on the mandatory compliance of Clause (3) and (4) of IRDA Regulation, 2022. Any non-compliance on the part of the insurance companies would take away their right to plead repudiation of contract by placing reliance upon any of the terms and conditions included thereunder”.

13.      The complainant has not violated the terms and conditions of the insurance policy.The learned District commission has righty partly allowed the complaint of the complainant.

14.    Resultantly, the contentions raised on behalf of both of the appellants stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, both appeals bearing No.798 of 2017 and F.A. No.841 of 2017stands dismissed on merits.

15.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal bearing No.798 of  2017be refunded to the complainant-Heena Verma-respondent No.1 in appeal No.798 of 2017 and appellant in appeal No.841 of 2017 against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

16.              Application(s) pending, if any stand disposed of in terms of the aforesaid order.

17.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

18.              File be consigned to record room.

19.              The original judgement be attached with appeal No.798 of 2017 and certified copies be attached with appeal No.841 of 2017.

28^thMarch, 2023       Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

 

S.K(Pvt. Secy.)