DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

 U.T. CHANDIGARH

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Kumar Gaurav son of Sh.Rajinder Pal Sharma, r/o H.No.176, Sector 15, Dashmesh Nagar, Kharar, District Mohali.

…..Complainant

                           V E R S U S

1.    Hyundai Motor India Ltd., 5th and 6th floor, Corporate One (Baani Building), Plot No.5, Commercial Centre, Jasola, New Delhi-110076.

2.    The Chief Regional Manager, Regional Office, M/s Hyundai Motor India Ltd., B-2, 3rd floor, DLF, IT Park, Chandigarh.

3.    The Chief Regional Manager, New India Assurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh.

4.    The Senior Divisional Manager, New India Assurance Company Ltd., SCO No.804, Manimajra, Chandigarh.

5.    M/s Ultimate Automobiles Pvt. Ltd., 155, Industrial Area, Phase I, Chandigarh. 

                                  ……Opposite Parties

CORAM:  SH.RAJINDER SINGH GILL                                                                 PRESIDING MEMBER

              DR.(MRS) MADANJIT KAUR SAHOTA

                                                       MEMBER

Argued by: Sh.Jagjeet Singh, Counsel for complainant.

                Sh.Gaurav Bhardwaj, Counsel for OPs No.1 & 2.

                Sh.Sukhdarshan Singh, Counsel for OPs No.3 & 4.

Sh.Aman Singla, Proxy Counsel for Sh.Aftab Singh, Counsel for OP No.5.  

PER DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER

              Briefly stated, the complainant purchased Hyundai Verna Car on 23.4.2010 from OP No.5 and got it insured from OPs No.3 & 4.  Unfortunately, the said car met with an accident on 16.5.2011 and was badly damaged. The complainant informed the Insurance Company about the accident and took the car to OP No.5 for repair, who in turn, gave an estimate of Rs.7,38,252/-.  The body shell of the car was also required to be replaced. The Insurance Company gave the instructions to the dealer for repair of the vehicle but the same was not repaired because the body shell of the car has not been received by the dealer from the manufacturer. The complainant received a letter dated 13.1.2012 from OP No.5 that the body shell of the said vehicle is not available. The complainant sent a legal notice to the OPs, but to no avail. Hence, this complaint.

2]           OPs No.1 & 2 (Hyundai Motor India Limited) filed joint reply, wherein, it has been pleaded that the replying OPs informed the OP No.5 that body shell of the same model and VIN number is not serviced. However, individual parts can be provided. It was also informed that the car will not come into its original shape and strength by replacing the individual parts, keeping in view the extensive damages caused to the vehicle in the accident. Thus, the OP No.5 requested OPs No.3 & 4 to settle the claim as total loss.  It is submitted that the estimated repair cost of the vehicle in question, as prepared by OP NO.5, is for an amount o Rs.738252/-, which comes to 88.84% of price of the car i.e. Rs.8,30,980/-.  After discussions, the OPs No.3 & 4 sent a letter dated 30.4.2012 to the complainant offering an amount of Rs.2,50,000/- along with salvage value of the vehicle on cash loss basis but till date, no response has been received from the complainant. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on their part and prayer for dismissal of the complaint has been made.

3]           OPs NO.3 & 4 (New India Assurance Company) also filed reply and admitted the factual matrix of the case.  It is stated that Sh.Balinder Singh, Surveyor appointed to assess the loss, inspected the damaged vehicle at the workshop and collected the estimates prepared by Ultimate Automobiles/Repairer.  It is also stated that based on the Surveyor’s report, the answering OP decided to allow the replacement of body-shell of the damaged vehicle with new one, which was to be provided by OPs No.1, 2 & 5.  The complainant has been intimated that with the replacement of new body shell, the vehicle will come to its original position.  It is submitted that the claim was settled strictly as per Survey Report and as per the motor policy terms & conditions.  If the vehicle is fully repairable, the same cannot be declared as total loss, as the vehicle is insured for Rs.7,15,000/-, whereas as per Survey Report, the loss is being assessed to the tune of Rs.3,86,168/-.  Therefore, the vehicle cannot be declared as total loss when there is partial loss to the vehicle.    

4]           OP No.5 (Ultimate Automobiles) filed the reply, wherein, it has been pleaded that the replying OP showed its inability to repair the car, as the manufacturer could not provide the complete body shell. Thus, the replying OP in order to provide better quality service refused to repair the same. The vehicle in question is still lying at the workshop of replying OP for the last 7 months as the complainant failed to settle their insurance claim with the Insurance company. Rest of the allegations have been denied and a prayer for dismissal of the complaint has been made

5]           Parties led evidence in support of their contentions.

6]           We have heard the learned Counsel for the parties and have also perused the record.

7]           Admittedly, the car of the complainant, manufactured by Hyundai Motors (OPs No.1 & 2), sold by Ultimate Automobiles (OP No.5) being the authorized dealer, duly insured with New India Assurance Company (OPs No.3 & 4), met with an accident on 16.5.2011 and was badly damaged. 

8]           It is not disputed that the OP No.5 (authorized dealer) gave estimate of repair of the said damaged vehicle to the tune of Rs.7,38,252/-, whereas the Surveyor in its Interim Survey Report has assessed the loss for Rs.3,86,168/- only. 

9]           After going through the entire facts & circumstances of the case, perusing the documents on record and hearing the parties, it has been made out that the Surveyor in its report, in the end, has categorically specified that “The above assessment is for apparent damages and it is interim report.  Final assessment will be submitted after inspection of dismantled and repaired car”.   Further, the Surveyor, in its report, had also recommended the replacement of New Body Shell.  More so, the Surveyor Sh.Baljinder Singh, in his affidavit filed along with the report, has categorically stated that “As the major loss to the vehicle was of Body Shell which was required to be replaced by New Body shell and the vehicle was fully repairable.”  

10]         On the other hand, the Repairer/Authorized Dealer i.e. OP No.5 vide letter dated 13.1.2012 (Ann.C-1) intimated the complainant that OP No.1 & 2, who are the manufacturer, have informed it that the body shell for Verna Vehicle i.e. the vehicle in question, for the said model and VIN number is not available. The relevant portion of the said letter Ann.C-1 reads as under:-

“HMIL had informed that Body shell for Verna for above model & Vin no. is not serviced however individual parts as per requirement can be provided.

We are of the view that the car will not come into its original shape and strength by replacing the individual parts keeping in view the damages cause to be car in the accident.”

11]         Now the main question which needs to be determined is that whether the vehicle in question, on account of non-availability of its body shell, should be treated as total loss or not.  The answer to this question is in the affirmative.

12]         In our view, when the manufacturer (OPs No.1 & 2) of the car in question itself had made it abundantly clear that the body shell is not available and only the parts, as per requirement can be provided and further that the car will not come into its original shape & strength by replacing the individual parts keeping in view the damages caused to the car in the accident, then there was no reason or justifiable cause with the OP Insurance Company to deny the justified claim of the complainant by treating it as a case of total loss.  Once, the manufacturer of the Car had clarified that the car will not come into its original shape & strength by replacing the individual parts in view of the damages caused to the car in the accident, then the OP Insurance Company cannot escape from their legal liability to settled the claim as a total loss, just under the garb of Surveyor’s Report, which cannot, by any means, supersede the view/opinion expressed by the Manufacturer of the car itself.  In such a factual position/situation, there remains no doubt in arriving to the just conclusion that the vehicle in question should have been treated as ‘Total Loss’ and the claim of the complainant  should have been settled accordingly.  More so, the complainant, cannot be made to suffer any losses as well as harassment and inconvenience, for any such deficient act & conduct on the part of the OPs.

13]         Keeping in view the peculiar circumstances of the case as well as forgoing discussion, we came to the conclusion that it would be appropriate & justified to direct the OP Insurance Company (OPs NO.3 & 4) to treat the claim of the complainant as a case of ‘Total Loss’ and should pay the Insured Declared Value of the car to the complainant, as per insurance cover (Ann.C-6 & C-7).  Therefore, the present complaint having lot of merit, weight and substance is hereby allowed.  Accordingly, the OPs No.3 & 4 (Insurance Company) are directed to jointly & severally pay the Insured Declared Value of Rs.7,15,000/- (Ann.C-7) to the complainant by treating his claim as total loss.  The salvage shall be taken over/remain with OPs NO.3 & 4.  The OP No.3 & 4 are also directed to jointly & severally pay compensation of Rs.50,000/- for causing inconvenience, mental & physical harassment to the complainant, apart from paying litigation cost of Rs.15,000/-.

              This order be complied with by the OP No.3 & 4 jointly & severally within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay the above awarded amount of Rs.7,65,000 (Rs.7,15,000/- + 50,000/-) along with interest @12% p.a. from the date of filing this complaint i.e. 20.04.2012 till its actual payment, besides paying litigation costs, as aforesaid.

14]        However, the complaint qua OP NO.1,2 & 5 stands dismissed.

              Certified copies of this order be sent to the parties free of charge. The file be consigned.