ORDER

07.02.2024

Sh. Sanjay Kumar, President

1. In brief facts of the present case are that the deceased complainant Akhtar Khan had insured vehicle Model Force One bearing registration no DL-1CP-0569, make Force Motor Ltd., type of body SUV, C.C 2149, Chasis no.MC1J7AEA4CP001689, Engine no.D62001352, manufacturing year 2012, vide certificate of insurance cum policy no. 3001/73522468/01/000 issued on 24.08.2013 and valid upto midnight 24.08.2014. It is stated that the vehicle met with an accident on 01.06.2014 at about 9.30 PM within jurisdiction of police station Mahavi, Darbanga, Bihar. The intimation to the officials of OP2 was given immediately and to OP Mahavi Darbanga, Bihar vide complaint no.16/11 dated 02.06.2014.
2. It is stated that office bearers of OP2 advised to the complainant to sent the vehicle at showroom situated at 33, A Shivaji Marg Industrial Area, Rama Road, New Delhi and the vehicle was sent there. The complainant spended approximately Rs.20,000/- freight expenses. It is further stated that the vehicle was surveyed by the surveyor Mr. N.K Jha deputed by OP2 who estimate the damage and settle the claim. It is stated that complainant filed a claim no.MOTO3835615 with the office of OP2, thereafter many a times complainant approached for settlement of claim and also talked to Mr. Sunny Bhalla and Mr. Yugal Kishore at the office of OP2 situated at Green Park New Delhi.
3. It is stated that the officials namely Mr. Amit Sharma and Sh. Yugal Kishore called the complainant at there Janakpuri office and advised not to repair the vehicle as it is total loss. The complainant made all efforts and several visits to settle the claim also sent letters through mail but claim not settled by OP. It is further stated that the complainant suffered a loss of Rs.8,95,000/- which was the insured declared value of the vehicle in the insurance policy. There is deficiency in service and unfair trade practice which costs immense mental pain and agony to the complainant.
4. It is stated that a legal notice dated 20.03.2015 sent to OP but no reply given by OP, hence present complaint filed seeking direction against OP to pay Rs.8,95,000/- towards the sum insured, Rs.6,00,000/- towards financial loss suffered by complainant, to pay Rs.6,00,000/- towards mental pain and agony suffered by complainant, to pay Rs.25,000/- for litigation charges and any other order which this Forum deem fit and proper.
5. OP1 and 2 file WS and taken preliminary objection that the Private Car Package policy are subject to terms and condition and complainant has not approached the Hon’ble Forum with clean hands and concealed the material facts.  It is stated that there is no deficiency of service as alleged by the OP, therefore, present complaint is liable to be dismissed.
6. It is stated that the underline policy being the cashless policy the claim amount arising as a result of repair of insured vehicle is being paid directly to the authorized service conducting such repair. It is further stated that complainant was requesting to get the insured vehicle in the authorized service  center, however, the complainant choose not to do so on the pretext that the complainant wants to sell the vehicle from his end and to settle the claim on cash loss basis. It is stated that it was informed that to the complainant that OPs are not liable for any other losses arising out of the cannibalization of parts and parking charges due to delay in taking decision by the complainant, On this sole ground the complaint is liable to be dismissed and a letter dated 08.12.2014 filed on record.
7. It is stated that insurance is the contract of indemnity and based on certain terms and conditions. Company is not liable merely on the ground that a person has taken a policy. Insured has to follow certain terms and condition of the policy wording which is always provided to the purchaser. It is further stated that as soon as the OP was informed by the complainant about mishap occurred with the insured vehicle, OP immediately appointed an eligible surveyor for the purpose of conducting survey of accident. As per governing law, loss is assessed less than 75%, hence the company is liable to pay only the loss assessed by surveyor as per report whose copy filed on record. It is further stated that simultaneously an investigator was also appointed to carry out the investigation into the genuineness of the accident and the claim arising there too and copy of investigation report is filed on record.
8. It is stated that the law is well settled that a survey report of the appointed IRDA license independent surveyor is an important peace of document carrying legal sanctity under section 64 UM of the Insurance Act 1938, which is to be given due consideration while determining the liability of the insurance company. It is further stated that the complainant is demanding total loss which is against the terms and conditions, therefore, present complaint is liable to be dismissed.
9. On merit all the allegations are denied and contents of preliminary objections reiterated. It is stated that complainant was advised to take the insured vehicle immediately to the service center for repairs. It is further stated that the OPs sent a letter to the complainant informing him that according to the survey report loss is assess less than 75% IDV of the vehicle and it cannot be considered as total loss but the complainant was adamant to consider the loss as a total loss. The complainant verbally informed the OPs that he wants to sell the vehicle from his end and to settle the claim from cash-loss basis. However, the complainant was requested so many times to get the vehicle repaired and submit the original repair invoices alongwith AML, one photograph of insured, copy of address proof and copy of ID proof of insured. It is stated that complainant was informed that company shall not be liable for any losses arising out of cannibalization of parts and parking charges due to delay in taking decision.
10. It is stated that OPs under the insurance contract of indemnity and under obligation as per terms and conditions. The OPs took the claim of complainant with all sincerity and has always be ready to  process the claim of the complainant in accordance with terms of policy. It is further stated that the high headness attitude on the part of complainant that despite the insured vehicle being able to be repaired but complainant is adamant in dictating his own terms contrary to the contractual terms of the policy. It is stated that complainant has mentioned wrong, false, fabricated and just a concocted and manipulated story to extort money by way of harassing and defaming the well reputed the OP insurance company.
11. It is stated that OPs took the claim of complainant with all sincerity and has always be ready to process the claim of complainant in accordance with the terms of the policy. It is further stated that the entire cause of action arose within the territory of Darbanga Bihar where accident occurred therefore, this Hon’ble forum has no territorial jurisdiction. It is stated that present complaint is liable to be dismissed.
12. Complainant filed evidence by way of affidavit and reiterated contents of the complaint. The complainant relied on copy of policy Ex.CW1/1 (colly), copy of photograph and complaint dated 02.06.2014 Ex.CW1/2 (colly), copy of freight expenses Ex.CW1/3, copy of mails Ex.CW1/4(colly) and copy of legal notice and postal receipts Ex.CW1/5 (colly).
13. OP1 and 2 also filed evidence by way of affidavit of Mr.Vikash Goyal Legal Manager and reiterated contents of the WS. OP1 and 2 relied on copy of private car package policy Ex.RW1/B, copy of letter dated 08.12.2014 Ex.RW1/C, copy of survey report Ex.RW1/D and copy of investigation report Ex.RW1/E.
14. Written arguments filed on behalf of complainant as well as OP1 and 2. We have heard Sh. Saket Kumar counsel for LRs of complainant. None appeared on behalf of OP1 and 2 for oral arguments despite ample opportunities given and we have also perused the record.
15. Ld. Counsel for complainant submitted that deceased complainant Akhtar Khan was the owner of vehicle no. DL1CP0596 make Force Motor Ltd. SUV having manufacturing year 2012. A policy taken from OP on 24.08.2013 which was valid up to 24.08.2014. Ld. Counsel argued that the vehicle met with an accident on 01.06.2014 at about 09:30 PM at Darbangha, Bihar and OP-2 immediately informed. Bihar Police registered complaint no. 16/11 dated 02.06.2014 at Police Station, Mahavi regarding the accident. He further alleged that as per advise of OP-2 the accidental vehicle was brought to Shivaji Marg Industrial Area, Rama Road, New Delhi. As per advise and expense of about Rs. 20,000/- were incurred. Thereafter, a surveyor Sh. M.K. Jha was appointed. He further  alleged that a claim was filed at the office of OP-2. The Ld. Counsel further alleged that one Mr. Amit Sharma and Sh. Jugal Kishore Janakpuri office of OP advised the deceased complainant for not to get repair of the vehicle and claim total loss. He further argued that the OPs did not settle the claim and complainant suffer loss of Rs. 8,95,000/- which the same was insured with OP and also financial loss of Rs. 6,00,000/-, therefore, present complaint filed to claim total loss and other losses suffered by the complainant.
16. Ld. Counsel on behalf of OP in written arguments refuted all the allegations and submitted that the Private Car Package Policy taken by complainant is subject to terms and conditions. In the written arguments it is submitted that as soon as information about accident received by OP, immediately eligible surveyor licensed by IRDA appointed for conducting survey of the accident. The insurance company is liable to assess  the loss less than 75% as per surveyor report. In the written arguments  further submitted that complainant insisted for total loss claim which is against terms and conditions of the policy. In the written arguments further submitted that the complainant was advised to get the vehicle repaired and submitted the original repair invoices but complainant was adamant to get total loss claim and delayed the process of claim. Ld. Counsel in written arguments submitted that as per terms and conditions of the policy it is not a case of total loss as the surveyor assess  the loss to the tune of Rs. 6,07,250/- and the surveyor had taken all the factors into consideration. In the written arguments further submitted that according to surveyor report the loss of repair basis is Rs. 6,32,842/- which is on very higher side therefore it may be settled on the basis of net of salvage basis but complainant did not agreed. In the written arguments further submitted that the complainant is entitled only the loss assess by the surveyor in the report and it is not a case of total loss claim.
17. We have considered respective submission of both the counsels and also gone through the terms and conditions of Private Car Package Policy. It is admitted case of the parties that deceased complainant’s vehicle no. DL1CP0596 met with an accident on 01.06.2014 at Darbangha, Bihar and police complaint no. 16/11 dated 02.06.2014 registered. It is further admitted that the accident vehicle brought by complainant to Delhi at his own expenses. It is further admitted case of the parties that surveyor Sh. N.K. Jha deputed to prepare surveyor report after thorough examination and investigation. The complainant has not challenged the surveyor report. The complainant was informed as per letter of OP dated 08.12.2014 with regard to assess claim of loss of Rs. 6,32,842/- and it is less than 75% of IDV therefore, it cannot be considered under total loss and the option was also given in this letter to deceased complainant if he is interested to settle the claim on cash loss basis, as there was interest of complainant to sell  the vehicle however, the same proposal was not materialized. It is admitted that IDV value of the vehicle was Rs. 8,95,000/- on the day of accident. The surveyor assess the loss to the tune of Rs. 6,32,842.05/- after deducting salvage value and assess policy clause.
18. On the basis above observations and discussion the complainant established and proved his claim and OPs are guilty of deficiency of service, therefore, we direct OPs to pay Rs. 6,32,842/- along with 6% P.A. interest from the date of filing of complaint till realization. The OPs is further directed to pay to complainant expenses  for toeing the accidental vehicle from Darbangha, Bihar to Delhi as per Bill annexed by the complainant to the tune of Rs. 13,600/- . The OPs is further directed to pay compensation to the tune of Rs. 25,000/- for sufferings mental agony and harassment. The OPs is further directed to pay to complainant litigation cost of Rs. 10,000/-.

19. The OPs are directed to comply the order within 30 days of the receipt of the order failing which OP will be liable to pay the aforesaid amount along with interest @ 9% P.A from the date of receipt of order till realization. File be consigned to record room.
20. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  07.02.2024.

     SANJAY KUMAR                                                                         RAJESH

       PRESIDENT                                                                               MEMBER