| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.131 of 04-05-2018 Decided on 07-08-2019 Arun Kumar Garg aged about 42 years S/o Surinder Kumar Garg R/o # 82, Model Town, Phase-3, Bathinda. ........Complainant Versus 1.United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager. 2.LIC Of India, Bibi Wala Road, Bathinda, through its Manager. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Manisha, Member. Present:- For the complainant: Sh.Naresh Garg, Advocate. For opposite party No.1: Sh.S.M Goyal, Advocate. For opposite party No.2: Sh.Sanjay Goyal, Advocate. ORDER M.P Singh Pahwa, President The complainant Arun Kumar Garg (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties United India Insurance Co. Ltd. and Other (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that he is owner of New Honda City Car model 2016 bearing registration No.PB-03AP-2800. It is duly hypothecated with opposite party No.2. The car is comprehensively insured with opposite party No.1 vide policy No.2004003116P118268045 w.e.f. 31.3.2017 to 30.3.2018 for IDV of Rs.8,64,000/-. It is alleged that at the time of issuing the insurance, opposite party No.1 also took signatures of the complainant on blank proposal form. On 28.12.2017, the car met with an accident near Bargari, in the revenue limits of P.S. Bajakhana. At that time, the car was being driven by Gursewak Singh. FIR No.138 dated 28.12.2017 was registered at P.S. Bajakhana. Gursewak Singh died in this accident and other occupants of the car were injured. It is further alleged that the complainant immediately lodged the claim with opposite party No.1, it sent spot surveyor Mr.Rajpal Singhal from Bathinda. After getting the car on Spaurdari, it was shifted with M/s Deep Automobiles Pvt. Ltd., being the service centre of manufacturer of the car. Opposite party No.1 also appointed surveyor Mr.Rakesh Kumar Gupta from Bathinda. The complainant spent an amount of Rs.2700/- as towing charges for shifting the damaged car from spot to Bathinda. M/S Deep Automobiles Pvt. Ltd. issued the estimates to the tune of Rs.9,92,547/- on 30.1.2018 against IDV of Rs.8,64,000/- and charged Rs.10,000/- from the complainant vide receipt dated 10.1.2018. These estimates are very much higher than IDV. Original estimates were supplied to the surveyor and opposite party No.1. The surveyor Mr.Rakesh Kumar Gupta assured the complainant that it is case of total loss. He took signatures of the complainant on blank claim form, blank consent letter, blank discharge voucher and on some blank forms with the understanding that these are necessary and without sign on blank forms, he cannot prepare the report. He physically inspected the car in the workshop at Bathinda. Thereafter opposite party No.1 also appointed Gurcharan Singh surveyor. He is third surveyor appointed without any approval of the controller of insurance. The complainant supplied all the papers within time. Thereafter he many times requested opposite party No.1 for his claim, but it did not listen. Thereafter opposite party No.1 also appointed investigator Mr.Satish Bansal, he visited the complainant and again physically verified the damaged car. Opposite party No.1 did not provide any copy of the survey reports and investigation report to the complainant. It is further alleged that opposite party No.1 has illegally withheld claim of Rs.8,64,000/-. It caused him mental agony, pains and suffering. For these sufferings, he has claimed compensation to the tune of Rs.1 lakh with interest and cost of litigation to the tune of Rs.15,000/-. Hence, this complaint. Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing written version. In the written version, opposite party No.1 has raised the legal objections that the complainant has no locus-standi and cause-of-action to file complaint. He has concealed true and material facts from this Forum and he has not come with clean hands. He is fully aware of the fact that his claim already stand approved by competent authority. Earlier, it was under process. During the assessment of claim, the wreckage value was being assessed, then the claimant himself has given in writing vide letter dated 15.3.2018. He agreed to settle the claim as under:- “Net of salvage basis with R.C. Net agreed claim Rs.4,49,000/- Net of salvage basis without R.C- Net agreed claim Rs.6,79,000/-” It is further revealed that the consent was given by claimant after considering all facts, circumstances, pros and cons, with his free and disposing mind, including due to the fact that car was lying with him, after getting it released on Sapurdari and till the decision of criminal case and without prior written permission of concerned court, he was not competent or entitled to transfer, sell or handover the same, to any third person. In view of consent and accepting the claim amount, opposite party No.1 settled the claim for Rs.4,49,000/- i.e.. Rs.8,64,000/- IDV – Rs.4,14,000/- as salvage value accepted by claimant-Rs.1000/- being excess clause as per policy. The claimant has already been informed in this regard and he was asked to furnish the requisite documents, but he has not furnished the required documents till date i.e. No objection Certificate from financier i.e. LIC of India alongwith cancelled cheque. These were demanded by opposite party No.1 vide letter dated 15.5.2018. The claimant has knowingly and willfully not disclosed the material fact. He has taken false, malafide, dishonest, wrong and concocted plea that surveyor has obtained his signature on blank papers. The claim has already been settled, but the payment is being delayed only due to non-compliance of mandatory terms and conditions. Further legal objections are that the complaint has not been filed by duly authorized and competent person because legally when any vehicle is financed and hypothecated with financier, then it takes the command of owner and becomes entitled to all such claims of vehicle and it is legally regarded as owner for such claim. It is entitled to file any such complaint. The complaint is premature as on the date of filing the complaint, case was under process. The complainant is estopped from filing the complaint due to his conduct, admissions, omissions and acquiescence. The car was being used for commercial purpose. The complainant does not fall within definition of 'consumer'. He has knowingly and intentionally violated the terms and conditions of insurance policy. The complaint is bad for non-joinder and mis-joinder of necessary parties. It is false, frivolous and vexatious. On merits, ownership of complainant is stated to be matter of record. Issuance of policy is admitted. IDV of vehicle as revealed by the complainant is also not disputed. All other averments of the complainant are denied. In further written version, opposite party No.1 has reiterated their stand as taken in the legal objections and detailed above. In the end, it has prayed for dismissal of complaint. In the written version, opposite party No.2 has revealed that the vehicle is hypothecated with it. If any claim is passed with respect to the vehicle, same is payable to it. In the end, it has prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence his affidavit dated 24.8.2018, (Ex.C1); photocopy of policy, (Ex.C2); photocopy of R.C, (Ex.C3); photocopy of D.L, (Ex.C4); photocopy of FIR, (Ex.C5); photocopy of estimate, (Ex.C6); photocopy of receipt, (Ex.C7); photocopy of bill, (Ex.C8); photocopy of survey report, (Ex.C9) and photocopy of letter, (Ex.C10) and submitted written arguments. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence photocopies of letters, (Ex.OP1/1 and Ex.OP1/2); photocopy of claim note, (Ex.OP1/3); photocopy of e-mail, (Ex.OP1/4); photocopy of investigation report, (Ex.OP1/5); affidavit of Baldev Singh dated 3.10.2018, (Ex.OP1/6); photocopy of survey report, (Ex.OP1/7); photocopy of order, (Ex.OP1/8); photocopies of e-mails, (Ex.OP1/9 and Ex.OP1/10) and closed the evidence. Opposite party No.2 has tendered into evidence affidavit of Krishan Kumar Aora dated 26.6.2018, (Ex.OP2/1) and closed the evidence. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant. Learned counsel for parties have reiterated their stand as taken in their respective pleadings and detailed above. We have given careful consideration to these rival submissions. Admitted facts are that the complainant being owner of car in question got it insured from opposite party No.1. The insurance was valid from 31.3.2017 to 30.3.2018 with IDV of Rs.8,64,000/-. The car met with an accident on 28.12.2017 i.e. within cover period and complainant lodged the claim with opposite party No.1. As per complainant, opposite party No.1 has failed to decide the claim. First objection raised by opposite party No.1 is that the complaint is pre-mature for the reason that the claim was not processed. It is also revealed that same has already been settled vide letter dated 15.5.2018 and complaint has become infructuous. It is relevant to mention that this complaint was filed on 4.5.2018. By that time, opposite party No.1 has neither rejected the claim nor decided it. The complainant was not expected to wait for indefinite period for the decision of claim. When the claim was not decided within reasonable period, the complainant was having remedy to approach this Forum for redressal of his grievances. Therefore, the complaint cannot be held pre-mature. Of-course, opposite party No.1 has allegedly settled the claim vide letter dated 15.5.2018, (Ex.OP1/2). It is after filing of complaint. In this letter, amount settled is not revealed. Therefore, complaint cannot be held infructuous only for the reason that opposite party No.1 has allegedly settled the claim. Even otherwise, if the complainant is not feeling satisfied with the settlement of opposite party No.1, the complaint cannot be held infructuous and complainant is well within his right to file complaint. Now, coming to the controversy on merits. Admittedly, opposite party No.1 appointed surveyor Rakesh Kumar Gupta. His interim report and final survey report are on file as Ex.OP1/17 and Ex.C9 respectively. Vide interim report dated 15.3.2018, he assessed the loss to the tune of Rs.7,33,520/-, which is on repair basis. IDV of the vehicle is Rs.8,64,000/-. Therefore, this loss is more than 75% of IDV, which is Rs.6,48,000/-. As per final survey report, (Ex.C9) also, assessment is Rs.6,88,384/- as cost of parts and Rs.67,136/- as labour charges. This assessment is also more than 75% of IDV. Therefore, it is undisputed that it is case of total loss. Opposite party No.1 has tried to prove that the complainant has agreed to settle the claim vide his letter dated 15.3.2018 addressed to it. There is nothing to show that this letter is officially received in the office of opposite party No.1. It is stated to be dated 15.3.2018. By that time, there was only interim report of surveyor. The complainant and opposite party No.1 were not aware about the exact loss by that time. Opposite party No.1 has also got conducted the final survey on 15.5.2018. Opposite party No.1 has also placed on record copy of letter, (Ex.OP1/9) from which it emerges that after interim report of Rakesh Kumar Gupta, opposite party No.1 has also obtained second evolution report from M/s G.C Singh & Associates. Therefore, it further proves that opposite party No.1 was not able to settle the claim by 15.3.2018 i.e. date of alleged letter from the complainant. Opposite party No.1 has also placed on record copy of letter dated 15.05.2018, (Ex.OP1/2). It has tried to project that the claim has been settled vide this letter. A perusal of letter reveals that exact amount for which the claim is settled is not mentioned. The claim is stated to be settled on net of salvage basis with R.C, but it is nowhere mentioned that this claim is settled on the basis of offer made by the complainant vide letter allegedly dated 15.3.2018, (Ex.OP1/1). Therefore, it is not to be accepted that the claim has been settled on the basis of acceptance of the complainant. Opposite party No.1 also cannot force the complainant to settle the claim on the basis of net salvage basis with R.C or without R.C unless he has specifically agreed to accepting the offer of opposite party No.1. The net conclusion is that the claim is not finally settled vide letter dated 15.3.2018. At the cost of repetition, it is case of total loss. Therefore, the complainant is entitled to Rs.8,64,000/- i.e. IDV of vehicle in question. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost of litigation against opposite party No.1 and dismissed qua opposite party No.2. Opposite party No.1 is directed to pay IDV of vehicle in question i.e. Rs.8,64,000/- to the complainant. The complainant is held entitled to interest by way of compensation @ 9% per annum on amount of Rs.8,64,000/- from the date of filing of complaint i.e. 4.5.2018 till payment. The complainant will be liable to handover the damaged vehicle to opposite party No.1 and execute the requisite documents as required for transfer of ownership of vehicle. Opposite party No.1 will be at liberty to get ownership transferred at its own cost. Admittedly, vehicle was financed by opposite party No.2. Therefore, opposite party No.2 will be entitled to receive outstanding amount, if any, out of the awarded amount and remaining amount will be payable to the complainant. The compliance of this order be made 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:- 07-08-2019 (M.P Singh Pahwa) President (Manisha) Member
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