| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 346 of 26-12-2018 Decided on : 31-03-2022 Sameer Sachdeva aged about 40 years S/o Sh. Naresh Chander Sachdeva @Naresh Sachdeva C/o M/s Sohan Lal & Company, Main Bazar, Jaitu, District Faridkot. ........Complainant
Versus Oriental Insurance Co. Ltd., D.O. Bank Bazar, Bathinda 151 001 through its Divisional Manager. Er. Dinesh K Goyal, Surveyor & Loss Assessor, 13061, Street No. 8, Namdev Marg, Bathinda 151 005 Toyota EM PEE Motors Ltd., Pioneer Toyota, Dabwali Road, Bathinda 151001, through its Incharge/Manager/Owner/Director
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Naresh Garg, Advocate For opposite parties : Sh. Sunder Gupta, Advocate, for OP No. 1 OP No. 2 exparte. Sh. Sukhwinder Parmer, A.R. of OP No. 3. ORDER Kanwar Sandeep Singh, President The complainant Sameer Sachdeva (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against United India Insurance Co. Ltd., & others (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that he is owner of Toyota Innova Car bearing registration No. PB-04-Q-6208. The said vehicle is comprehensively insured with opposite party No. 1 vide Cover Note No. 679976 w.e.f. 17.10.2017 to 16.10.2018 for the 1DV of Rs.8,00,000/-. It is alleged that opposite party No. 1 never supplied any policy with terms and conditions to the complainant till date. At the time of issuing the above said Insurance Cover Note, the opposite party No.1 took signatures of the complainant on blank proposal Form. It is also alleged that on 18.02.2018 at about 7.30 p.m., the said Innova car met with an accident near Petrol Pump, Village Pipli, District Faridkot in the revenue limits of P.S. Sadar, Faridkot and at that time, it was being driven by Naresh Chander father of the complainant. In this accident, driver Savita Sachdeva mother of the complainant and Viney Sachdeva brother of the complainant i.e. other occupants of car injured. The complainant immediately lodged the claim with opposite party No.1. The opposite party No. 1 sent spot surveyor Mr. Devinder Singh Sandhu from Faridkot. Under the instructions of said surveyor, the vehicle was shifted with one private mechanic at Faridkot. The opposite party No. 1 appointed final surveyor Er. Dinesh Kumar Goyal from Bathinda for the final assessment of the loss. It is further alleged that the said mechanic had no full infrastructure to repair such Toyota Innova vehicle, as such, he showed his inability to repair the vehicle, as the parts were not available at Faridkot. Therefore, under these circumstances, with full consent of opposite parties No. 1 & 2, the complainant shifted the vehicle with opposite party No. 3. The complainant spent Rs.4,500/- as towing charges for shifting the damaged car from spot to Bathinda. The complainant alleged that M/s Toyota Em Pee Motors Ltd. (Pioneer Toyota), opposite party No. 3, being the Service Centre of manufacturer of the Toyota Innova, issued estimates to the tune of Rs.7,99,880/- without GST and Service Tax which is about 18% to 28% (Approx. Rs.10,10,946/- including GST and Service Tax) against the IDV of Rs. 8,00,000/-. The opposite party No. 3 demanded illegal estimate and parking charges of Rs.6,499 – (1,425/- + 5,074/-). The opposite parties No. 1 & 2 were also insisting the complainant to get the vehicle repaired from authorised service center and opposite party No. 3 is the nearest Toyota Service Center from Faridkot. The said estimation and parking charges taken by opposite party No.3 illegally from the complainant whereas the vehicle was never repaired. The opposite parties No. 1 & 2 stated that without estimate of opposite party No.3, they will not release final report. The said estimate is more than the IDV. The opposite parties No. 1 & 2 assured the complainant that as per GR-8 and policy condition, the same is total loss and took signatures of the complainant on some blank documents i.e. claim form, consent letter, and discharge voucher with the understanding that the same are necessary and they physically inspected the vehicle in workshop at Bathinda. The complainant further alleged that thereafter opposite parties No. 1 & 2 started insisting the complainant to get the vehicle repaired. The complainant requested the opposite parties No. 1 & 2 that he has no money to get the vehicle repaired and under coercion, complainant gave affidavit regarding reducing IDV from Rs.8,00,000/- to Rs.7,00,000/- and now complainant withdraws his consent affidavit for reducing the IDV. The opposite party No.2 already given his report on 30.05.2018 wherein he clearly stated that "The Total Repair cost was more than IDV of the vehicle. There were definite chances of increase of total repair cost after dismantling". The complainant also alleged that he supplied all the papers i.e. photocopy of RC, Insurance, DL, original estimates and DDR etc. to opposite party No. 1 within time, at the time of first Survey. The complainant got issued legal notice dated 17.10.2018 to opposite party No. 1 demanding the claim, but the opposite parties did not release the payment. The complainant repeatedly requested the opposite party No. 1 for his claim but they did not listen the same and having no alternative, the complainant paid the illegal estimate and parking charges to opposite party No. 3 and shifted the vehicle at Faridkot by spending Rs.3,000/- as towing charges. It is further alleged that the surveyors and opposite party No.1 never sent any spot and final survey reports to the complainant, although the same are mandatory under the regulations of IRDA Rules. Now under RTI Act they supplied the final Survey report. The complainant alleged that due to non- payment of total claim of Rs.8,00,000/-, he is suffering mental agony and pains for which he claims compensation to the tune of Rs. 1,00,000/-. The opposite parties have failed to provide service and sitting over total loss of Rs. 8,00,000/- + Rs.7,500/- as towing charges + Rs.6,499/- as estimate & parking charges, illegally taken by opposite party No. 3 and the complainant also now spending Rs.2,000/- per month as garage charges for parking the damaged car. The opposite parties in connivance with each other harassing the complainant. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay :- a) Rs. 8,00,000/- IDV on account of total loss b) Rs. 6,499/- Estimate and parking charges, charged by OP No. 3 c) Rs. 7,500/- Towing charges (Rs. 4,500/- + Rs. 3,000/-) d) Rs. 2,000/- per month as Garrage (parking charges) - interest @18% p.a. on the aforesaid amounts e) Rs. 1,00,000/- compensation and Rs. 50,000/- as litigation expenses. Upon notice, the opposite parties put an appearance through their respective counsel and contested the complaint by filing written reply. The opposite party No. 1 in its separate written reply raised legal objection that the complaint is not maintainable. It has been pleaded that complainant got insured his Toyota Innova Car bearing registration No.PB-04Q-6208 Model 2012 with opposite party No. 1 vide Cover Note No.679976 w.e.f. 17.10.2017 to 16.10.2018 with IDV Rs.8,00,000/- and insurance policy alongwith its terms and conditions was duly supplied to the complainant. After receipt of intimation on 19.02.2018 regarding alleged accident of insured car, Mr.Davinder Singh Sandhu, was deputed for spot survey and thereafter Er. Dinesh Kumar Goyal, Surveyor and Loss Assessor was deputed to assess the final loss, who submitted his report dated 30.05.2018 with opposite party No. 1 and assessed the net loss liability of insurance company on repair basis to the tune of Rs.5,68,000/- and liability of opposite party No. 1 on net of salvage basis to the tune of Rs.4,73,000/-. Since in both the aforesaid reports of the surveyor, loss to the insured vehicle on repair basis regarding liability of opposite party No. 1 was less than 75% of the IDV, so the claim of the complainant was not considered as total loss. The complainant was advised to get his insured vehicle repaired, but he was adamant to consider his loss to the insured vehicle to be as total loss, which is not permissible under the terms and conditions of insurance policy, As such, claim of the complainant has not been settled till today. Further legal objections are that the complainant has not come before this Commission with clean hands, rather has suppressed the true and material facts. The complainant has not disclosed that all the occupants of insured vehicle have received injuries and there is third party loss. That after receipt of investigation report dated 30.05.2018 issued by Er.Dinesh Kumar Goyal, Surveyor and Loss Assessor, complaint was asked by both the aforesaid surveyors as well as by opposite party No. 1 to get his vehicle repaired from authorized repairer but he failed to do so and is adamant to settle his claim of insured vehicle on total loss basis, which is not permissible under law. That opposite party No. 1 wrote letter dated 10.01.2019 to the complainant to get his insured vehicle repaired and inform about the same to opposite party No. 1 within seven days, as the claim of the complainant cannot be kept open for such a long period, but complainant has failed to get his vehicle repaired till today, so his claim is neither settled till today nor the same is payable now. That complainant has obtained the estimate of repair from the authorized dealer i.e. opposite party No.3 but the estimate submitted by opposite party No.3 to the complainant is on higher side. It has been pleaded that the insured vehicle is make 2012 and 40% to 50% depreciation on all new parts is applicable i.e. 40% on Metal parts and 50% on Rubber parts and after applying the aforesaid depreciation loss to the insured vehicle is less than 75% of the IDV, as such the insured vehicle cannot be considered to be a total loss. In order to bring his claim in the category of total loss, complainant gave his consent of his own free will without any coercion to reduce the IDV of the vehicle to the tune of Rs.7,00,000/- and to pay him Rs.7,00,000/- but as the liability of insurance company on repair basis do not exceed the amount as assessed by Er. Dinesh Kumar Goyal, vide his report dated 30.05.2018, so claim of the complainant do not fall in total loss category. Further legal objections are that the complainant has got no locus-standi or cause of action to file the complaint. That the amount of compensation claimed is highly excessive and exorbitant one and that the complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, the opposite part No. 1 reiterated its version as pleaded in legal objections and detailed above. After controverting all other averments of complainant, the opposite party No. 1 prayed for dismissal of complaint. The opposite party No. 2 in his written reply also raied legal objections that the complaint is not maintainable. It has been pleaded that opposite party No.1 appointed the opposite party No. 2 as final surveyor for final assessment on 07.03.2018. The opposite party No. 2 duly surveyed the vehicle at M/S Pioneer Toyota, Bathinda on 06.04.2018 in the presence of insured/complainant and thereafter opposite party No. 2 issued Survey Report on 30.05.2018 to opposite party No. 1. It has been further pleaded that during survey Mr. Sameer Sachdeva/complainant agreed for settlement of claim at Rs.7,00,000/- against IDV of Rs.8,00,000/-, but opposite party No.1 was not ready to settle the claim on the basis of Total Loss. As such, opposite party No. 2 issued letter dated 26.10.2018 to complainant to get the vehicle repaired, but the complainant did not get the vehicle repaired till date. The opposite party No. 2 has further pleaded that although total cost of repair is very high but the liability of the Insurance Company (opposite party No. 1) was not more than 75% of the IDV. When the opposite party No. 2 surveyed the vehicle, it was lying with the Service Centre/opposite party No.3 at Bathinda. It has been further pleaded that total cost of repair is about Rs.10,10,946/- as per estimates, but the liability of the Insurance Co. is much less from the same. The opposite party No. 2 is independent surveyor and issued independent report, but the opposite party No.1 refused to settle the claim on total loss basis. After controverting all other averments of complainant, opposite party No. 2 prayed for dismissal of complaint. The opposite party No. 3 in its written reply raised preliminary objections that complaint is not maintainable being false and frivolous, no consumer dispute, no liability, no warranty and no deficiency in service and unfair trade practice, because the vehicle had met with an accident on 18.02.2018, and hence the entire claim of the complainant revolves in between opposite parties 1 & 2 being the Insurance Company and Surveyor. The complainant has nothing to do with opposite party No. 3 because the vehicle met with an accident as Total Loss and to that extent, the complainant has paid the entire amount about parking and estimation charges and he took the delivery on 22.12.18 to his entire satisfaction without any further objection. That the complaint is not maintainable since opposite party No. 3 has been impleaded as a performa party being the service provider. On merits, the opposite party No. 3 admitted that the car was received in accidental position in the workshop of opposite party No. 3, estimate was prepared and handed over the estimate as well as parking charges, to which the complainant has paid to opposite party No. 3. The opposite party No. 3 has received its charges as per business terms and took the delivery as admitted by the complainant in his complaint. It has admitted that opposite party No. 3 demanded parking charges, estimation and garage charges, to which the complainant has paid to the tune of Rs.6499/-. After controverting all other averments of complainant, the opposite party No. 3 also prayed for dismissal of complaint. In support of his complaint, the complainant has tendered in to evidence his affidavit dated 26-12-2018 (Ex. C-1), photocopy of R.C. (Ex. C-2), photocopy of DL (Ex. C-3), photocopy of Cover Note (Ex. C-4), photocopy of DDR (Ex. C-5), photocopy of bill (Ex. C-6), photocopy of estimate (Ex. C-7), photocopy of bills (Ex. C-8 & Ex. C-9), photocopy of survey report (Ex. C-10), photocopy of circular (Ex. C-11), photocopy of bill (Ex. C-12) and photocopy of letter (Ex. C-13). In order to rebut the evidence of complainant, opposite party No. 1 has tendered into evidence affidavit dated 20-3-19 of Ashwani Kumar (Ex OP-1/1), photocopy of survey report (Ex. OP-1/2), photocopy of repudiation letter (Ex. OP-1/3), photocopy of letter (Ex. OP-1/4), photocopy of e-mail (Ex.OP-1/5), photocopy of reports (Ex. OP-1/6), photocopy of affidavits of complainant (Ex. OP-1/8 & Ex. OP-1/9), photocopy of claim form (Ex. OP-1/10), photocopy of letters (Ex. OP-1/11 & Ex. OP-1/12) and photocopy of claim intimation letter (Ex. OP-1/13). The opposite party No. 2 has tendered into evidence his affidvit dated 20-2-2019 (Ex. OP-2/1) and photocopy of letter dated 26-10-18 (Ex. OP-2/2). The opposite party No. 3 has tendered into evidence photocopy of gate pass (Ex. OP-3/1), photocopy of letter (Ex. OP-3/2), photocopy of gate entry (Ex. OP-3/3), photocopy of receipts (Ex. OP-3/4 & Ex. OP-3/5). The learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. In the case in hand, there is no dispute between the parties that Toyota Innova bearing registration No. PB-04-Q-6208 of complainant is insured with opposite party No. 1 vide Cover Note No. 679976 w.e.f 17-10-17 to 16-10-18 for the IDV of Rs. 8,00,000/- (Ex. C-4). The said car met with an accident on 18-2-18 near Petrol Pump, Village Pipli, District Faridkot. The complainant intimated the loss to opposite party No. 1 and opposite party No. 1 appointed Devinder Singh Sandhu, as spot surveyor. After that opposite party No. 1 appointed Er. Dinesh K Goyal (opposite party No. 3) as final surveyor. Thereafter vehicle in question was shifted with opposite party No. 3 being authorised service centre. The opposite party No. 1 has not settled the claim of the complainant till date. The dispute between the parties is that the complainant alleged that loss to the vehicle is a total loss whereas the version of the opposite party No. 1 is that liability of insurance company on repair basis do not exceed the amount as assessed by Er. Dinesh K Goyal vide his report dated 30-5-2018, so claim of the complainant do not fall in total loss category. OP-1/2 is the final survey report of Dinesh Kumar Goyal. For the sake of convenience, the relevant portion of this report is reproduced :- “ The undersigned was deputed for the final survey of the vehicle on 7-3-18. At that time, the vehicle was lying at a workshop at Faridkot. But that workshop owner showed his inability to repair the vehicle. So the insured shifted the vehicle at M/s. Pioneer Toyota, Bathinda, authorized Toyota repairer. The dealer issued an estimate for Rs. 10,10,946/-. Then the vehicle was inspected there on 6-4-18 and the loss was discussed with workshop Incharge Mr. Amarveer Singh. The vehicle was found extensively damaged. The repair of the body shell was discussed with him. He told that due to severe damages to front floor, Dash panel and Fr. Side body panel LH the body shell was not repairable upto the level of satisfaction. The necessary photographs of the vehicle were arranged. The estimate was scrutinized. The net repair liability of the vehicle was not more than 75% IDV of the vehicle. But the total repair cost was more than IDV of the vehicle. There were definite chances of increase of total repair cost after dismantling.” Thus, Er Dinesh Goyal, final surveyor vide above said report has finally assessed the loss to the tune of Rs. 5,70,574/-. The said surveyor in his affidavit Ex. OP-2/1 has deposed that although total cost of the repair is very high but the liability of the insurance company was not more than 75% of the IDV. Hon'ble State Commission in First Appeal No. 20 of 2012 case titled ICICI Lombard General Insurance Company Limited Vs. Rajinder Singh, decided on 22-1-2013 held that - “Vehicle is to be declared total loss if the cost of retrieval and/or cost of repair exceeds 75% IDV. Thus, it is the cost of repair involved and not the liability of the insurer that determines the vehicle is a total constructive loss or not. Therefore, in the case in hand, as per estimate of authorised repair centre of the vehicle in question, cost of retrieval and/or cost of repair is Rs. 10,10,946/- which is more than IDV meaning thereby it exceeds 75% IDV. Hence, the opposite party No. 1 cannot compel the complainant to get the accidental vehicle repaired by taking shelter of final survey report considering liability of the Insurance Company whereas it stands admitted by final surveyor, as detailed above, in his report as well as in his affidavit (Ex. OP-2/1) that repair liability of the vehicle was not more than 75% IDV of the vehicle, but the total repair cost was more than IDV of the vehicle. Hon'ble Punjab & Haryana High Court in the case titled New India assurance Co. Ltd., Vs. Usha Yadav 2008(3) RCR Civil 111 has observed that : “Cash rich Insurance Company indulging in luxury litigation to repudiate claim of the insured – It seems that the Insurance companies are only interested in earning the premiums and find ways and means to decline the claim, Hence, the complainant is entitled to claim amount as per IDV of vehicle in question and there is deficiency in service on the part of the opposite party No. 1 in not settling/paying the said claim to complainant. Now the question is regarding quantum of loss to which complainant is entitled to. The plea of opposite parties No. 1 is that the complainant in order to bring his claim in the category of total loss, gave his consent of his own free will without any coercion to reduce the IDV of the vehicle to the tune of Rs.7,00,000/- and to pay him Rs.7,00,000/- but as the liability of insurance company on repair basis do not exceed the amount as assessed by Er. Dinesh Kumar Goyal, vide his report dated 30.05.2018, so claim of the complainant do not fall in total loss category whereas Er Dinesh Kumar Goyal, Final Surveyor (OP No. 2) of opposite party No. 1 in his affidavit (Ex. OP-2/1) deposed that during survey Mr. Sameer Sachdeva/complainant agreed for the settlement of the claim at Rs. 7,00,000/- against the IDV of Rs. 8,00,000/- but the opposite party No. 1 did not ready to settle the claim on the basis of total loss. Insurance Regulatory and Development Authority of India vide Circular No. IRDA/NL/CIR/Misc/173/09/2015 dated 24-9-2015 advised to insurer as under :- “Where the liability and quantum of claim under a policy is established, the insurer shall not withhold claim amounts. However, it should be clearly understood that execution of such vouchers does not foreclose the right of policy holder to seek higher compensation before any judicial fora or any other fora established by law.” Thus, this Commission is of the considered opinion that complainant is entitled to IDV of the vehicle i.e. Rs.8,00,000/-. The complainant has claimed Rs. 6499/- as Estimation and parking charges, charged by opposite party No. 3. The opposite party No. 3 in para No. 22 its written reply admitted that opposite party No. 3 charged Rs. 6499/- from complainant as parking, estimation and garage charges. So, complainant is entitled to this amount. The complainant also claimed Rs. 7500/- (Rs. 4500/- and Rs. 3,000/-) as towing charges. To prove this fact, complainant has placed on file bill No. 4979 dated 12-3-18 of Rajdeep Crane & Recovery Service for Rs. 4500/- and bill No. 85 of 22-12-18 of Mittal Crane & Recovery Service for Rs. 3,000/-. These are admitted facts of the parties that complainant got shifted the vehicle in question from accidental place/spot, Faridkot to opposite party No. 3 at Bathinda and then he got it removed/shifted from opposite party No. 3 to his place/garage. Thus, complainant is entitled to these expenses. The complainant has also claimed Rs. 2,000/- per month and garage and parking charges, but he has not placed on file any document to prove these expenses. In view of what has been discussed above, this complaint is partly allowed with Rs. 10,000/- as cost and compensation against opposite party No. 1 and dismissed qua opposite parties No. 2 & 3. The opposite party No. 1 is directed to pay to complainant Rs. 8,00,000/- + Rs. 6499/- + Rs. 7,500/- = Rs. 8,13,999/- (Rupees Eight lacs thirteen thousand nine hundred and ninety nine only) with interest @9% p.a. w.e.f. 19-5-2018 (3 months period after accident) till payment. The complainant is directed to sign the documents, if any, required by opposite party No. 1 and complete the other formalities, if any, required by law for release of claim . The compliance of this order be made by opposite party No. 1 within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 31-3-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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