| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 331 of 02-12-2020 Decided on : 28-07-2022 Sandeep Kaur aged about 40 years wife of Sh. Khushwinder Singh son of Sh. Harbans Singh, resident of # 657, Bhucho Khurad, Bathinda, Tehsil & District Bathinda, Punjab. ..........Complainant Versus IFFCO Tokio General Insurance Co. Ltd., though it's Managing Director/ Chairman, Regd. Office: IFFCO Sadan, C-1, District Centre, Saket, New Delhi- 110017. IFFCO Tokio General Insurance Co. Ltd., though it's Regional Manager/ Manager, 1st & 2nd Floors, Sohan Singh Complex, Shastri Nagar, Ludhiana. 141001, Punjab. IFFCO Tokio General Insurance Co. Ltd., though it's Branch Manager, Garg Tyre, 2nd Floor, Opposite Nirankari Bhawan, G.T. Road, Bathinda. 151001. Punjab.
.........Opposite parties Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. R.S Jalal, Advocate. For opposite parties : Sh. Vinod Garg, Advocate. ORDER Kanwar Sandeep Singh, President:- Complainant Sandeep Kaur (here-in-after referred to as complainant) has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (here-in-after referred as ‘Act’) before this Commission against IFFCO Tokio and others (here-in-after referred as opposite parties). Briefly stated, the case of the complainant is that he is registered owner of vehicle Honda Amaze/1.5 EX MT' bearing registration No. PB-03AK-1809, Chassis Number MAKDF254AEN 005450 & Engine Number N15A12045241. The complainant got insured the said vehicle with the opposite parties vide Policy No. ITG/82684757 of 30.09.2019 which was valid till 30.09.2020. Policy was issued by opposite party No. 2. The complainant alleged that on 13.08.2020, a truck stuck with said vehicle from the back side. At the time of accident, Mr. Khushwinder Singh (husband of the complainant) was driving the vehicle. Due to accident, loss occured to the vehicle but by the God's grace, no serious injuries were received by her husband. The complainant intimated the loss to opposite party No. 3 and on their instructions, complainant shifted the vehicle to Honda Agency i.e. Deep Honda, Deep Automobiles Pvt. Ltd., Mansa Road, Bathinda, where surveyor of opposite party No.1 inspected the vehicle. It is alleged that the surveyor assessed the claim to the tune of Rs.2,70,979/- but till date no claim has been passed by the opposite parties. The vehicle of the complainant is in possession of the opposite parties which is parked in the premises of Deep Honda as per the instructions of opposite party No. 3. The complainant further alleged that she received a settlement letter dated 25.09.2020 from opposite party No. 1 vide which it was communicated to the complainant that opposite party No. 1 is ready to pay Rs.2,00,250/- i.e. insured value of the vehicle by treating the vehicle Constructive Total Loss (CTL) (Wreck value of Rs.2,60,000/- plus Policy Excess Rs. 1000/- and net liablity of insured Rs.38,250/-) and asked the complainant for her willingness. As per complainant, she gave her consent for the same under compelled circumstances as she was left with no other option, but till date no positive response has been received by the complainant from the opposite parties. It is alleged that complainant repeatedly requested the opposite party No. 3 to admit her geniune and lawful claim, but no action was taken by the opposite parties. The complainant also got served legal notice upon the opposite parties in this regard, but to no effect. The complainant further alleged that opposite parties again sent a letter dated 23.10.2020 to her which was received on 07.11.2020 vide which the complainant was directed to reply within 7 days and the complainant sent reply within prescribed period. The complainant alleged that she has been forced to hire the public transport and private taxis, in the absence of her private car which is in possession of the opposite parties, by paying huge amount in the form of fare. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay to her claim amount of Rs. 2,99,250/- with interest @ 24% p.a. alongwith compensation/damages to the tune of Rs.1,50,000/-; Rs.55,000/- as fare paid to public transports besides litigation expenses to the tune of Rs. 21,000/-. Upon notice, the opposite parties put an appearance through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised preliminary objections that this complaint is a premature case. The complainant has failed to submit documents, mentioned below, despite letters dated 25.09.2020, 23.10.2020, and a detailed explanatory letter dated 04.11.2020 :- i) Consent for Net off salvage settlement (ii) NEFT details of insured/financier (iii) KYC documents of the insured/financier (iv) Copy of buyer / Seller agreement. The complainant has failed to submit the requisite documents and has instead chosen to bring the matter to this Commission. Hence, this matter should be referred to mediation under section 37 of the Consumer Protection Act, 2019. It has been pleaded that vide policy No. MA669660 effective from 01.10.2019 to 30.09.2020 vehicle No. PBO3AK1809, Honda Amaze 1.5 EXMT Motor Car, Chassis No. MAKDF254AEN005450, Engine No. N15Al2045241, was insured for an Insured declared value of Rs. 2,99,250/- A claim dated 13.08.2020 was reported to the opposite parties on 17.08.2020 and as per IRDAI guidelines, Independent IRDAI licensed Surveyor Mr. Prince Khera was appointed to survey the claim. The Surveyor got in touch with the insured, conducted a survey and submitted his assessment. The assessed cost of repair as per the assessment report exceeded 75% of the insured declared value of the vehicle making the same total loss. Hence, an offer of settlement on Net of Salvage (NOS) basis requesting consent and a few documents with the computation was sent to the complainant on 25.09.2020. The complainant has failed to submit the requisite documents and has instead chosen to bring the matter to this Commission. It has been further pleaded that value of wreck is dependent on market forces and is bound to depreciate with time, hence, the liability of any such precursory or prospective depreciation cannot be affixed on the insurers as the same was caused due to the lack of interest at the end of the complainant in the settlement of the matter. The insured was non-cooperative and when was contacted by the buyer, refused the lifting of the wreck and the said bid that was secured then expired. Further preliminary objections are that the complainant has not come to this Commission with clean hands and has suppressed true and material facts. That the complaint is not maintainable. That there is no locus standi or cause of action as there has never been a denial of the claim of the complainant. The opposite parties are willing and in fact are insistent on settling this matter and that the complaint is bad for non-joinder of necessary parties as the complainant failed to implead State Bank of India as a financier of the vehicle. On merits, it has been pleaded that the assessment of the Surveyor is of Rs.2,69,852/- The claim of the complainant has been approved vide letter dated 25.09.2020 and the complainant has been invited for the disbursal of the same several times but she has failed to submit the requisite documents. No consent for settlement has ever been received. There has never been a denial of the claim. The opposite parties have repeatedly invited the complainant to settle the matter but no intention to settle the same has been shown. The legal notice dated 20.10.2020 of the complainant was received on 28.10.2020 and was duly replied vide letter dated 04.11.2020 well within the time of a period of the legal notice. The intention to settle the claim is clear. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of her complaint, the complainant has tendered into evidence her Affidavit dated 27-11-2020 (Ex.C-1) and the documents (Ex. C-2 to Ex. C-15). In order to rebut the evidence of complainant, the opposite parties have tendered into evidence affidavit of Shameer Gupta dated 8-3-21 (Ex. OP-1/8) and the documents (Ex. OP-1/1 to Ex. OP-1/2). The learned counsel for the parties reiterated their version as pleaded in their respective pleadings. We have heard the learn counsel for complainant and gone through the evidence produced by complainant. In nutshell, the case of the complainant is that she got insured her car Honda Amaze bearing registration No. PB-03AK-1809 with the opposite parties vide insurance Policy No. ITG/82684757 for the period from 1-10-2019 to 30-9-2020. The said car met with an accident and on intimation by complainant, opposite parties deputed Sh. Prince Khera, Surveyor & Loss to Assessor to assess loss. The said surveyor, after inspection of vehicle, assessed the loss to the tune of Rs. 2,69,852/- vide survey report (Ex. OP-1/2). A perusal of file reveals that vide settlement letter Ex OP-1/3, the opposite parties settled the claim of the complainant as under :- Insured value of vehicle (IDV) Rs. 2,99,250/- Assessment of surveyor Rs. 2,69,852/- As per policy conditions, the insured vehicle shall be treated as CTL (Constructive Total Loss), if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy exceeds 75% of the IDV of the vehicle. The opposite parties assessed their net liability to the tune of Rs. 38,250/- after deducting Wreck value of vehicle to the tune of Rs. 2,60,000/- and policy excess amounting to Rs. 1,000/-. The pleading of the opposite parties is that the complainant has not furnished NOS (Net of Salvage) basis consent, NEFT details of insured, KYC document and copy of buyer/seller agreement. Admittedly, the complainant got her vehicle insured for the IDV of Rs. 2,99,250/- and since cost of repair as per assessment exceeds 75% of the IDV, the vehicle of the complainant is to be treated as CTL (Constructive Total Loss). The opposite parties have assessed the net liability to the tune of Rs. 38,250/- after deducting wreck value Rs. 2,60,000/- and Rs. 1,000/- policy excess. Surprisingly, On one hand opposite parties admitted the claim of complainant and on the other hand opposite parties put arbitrary terms and conditions of offer of settlement on net of salvage basis just to avoid their liablity. This commission is of the considered view that once opposite parties admitted the claim of the complainant then they would have paid the whole claim amount to complainant in time. Opposite parties can not be allowed to put self serving conditions, prejudical to the interest of consumer. The complainant cannot be forced to accept settlement offered by opposite parties. The complainant is entitled to claim amount, as prayed for, to the tune of Rs. 2,98,250/-(2,99,250-1000/-) as IDV of the vehicle, subject to surrender of salvage/damaged vehicle and furnishing of letter of subrogation and general power of attorney. Thus, there is deficiency in service on the part of the opposite parties in not paying the genuine claim of the complainant and demanding un-necessary documents such as NOS consent and copy of buyer/seller agreement vide letter dated 4-11-2020 (Ex. C-14). In the result, the complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay to complainant Rs. 2,98,250/- with interest @ 8% p.a. w.e.f. 13-11-2020 (3 months period after accident) till payment. The complainant is directed to sign the documents, and complete the other formalities, if any, required by law for release of claim . The complaint could not be decided within statutory period due to Covid pandemic and heavy pendency of cases. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of of receipt of the copy of the order. Copy of order be supplied to parties free of cost as per law. File be consigned to record room.
Announced : 28-07-2022 (Kanwar Sandeep Singh) President
(Shivdev Singh) Member (Paramjeet Kaur) Member
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