State Consumer Disputes Redressal Commission
Vishav Jindal vs Icici Lombard General Insurance ... on 19 January, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.370 of 2019
Date of Institution : 21.06.2019
Date of Reserve : 06.12.2021
Date of Decision : 19.01.2022
Vishav Jindal aged about 37 years son of Sh.Manmohan Krishan
Jindal, Resident of H.No.884, Street No.3, New Geeta Colony,
Moga, Tehsil & District Moga.
......Appellant/Complainant
Versus
1. ICICI Lombard General Insurance Company Limited, PF 1/5,
IIIrd Floor, Kunal Towers, 88, Mall Road, Ludhiana.
2. ICICI Lombard General Insurance Company Limited,
Backside of ICICI Prudential SCO Improvement Trust Market,
G.T. Road, Moga, District Moga.
......Respondents/Opposite parties
First Appeal under Section 15 of the
Consumer Protection Act, as amended up to
date, against the order dated 17.05.2019 of the
District Consumer Disputes Redressal Forum,
(now 'Commission'), Moga.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs.Kiran Sibal, Member Present:-
For the appellant : Sh.Devinder Kumar, Advocate For the respondents: Sh.Sachin Ohri, Advocate First Appeal No. 370 of 2019 2 RAJINDER KUMAR GOYAL, PRESIDING MEMBER The appellant/complainant has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 (as amended up to date) for modification of the order dated 17.05.2019 passed by the District Commission, whereby the complaint filed by the complainant was partly allowed and opposite parties were directed to make the payment of Rs.2,86,376/- jointly and severally, as compensation against his claim on the basis of report of surveyor along with interest at the rate of 9% per annum from the date of filing the complaint i.e. 06.10.2017 till realization. They were further directed to pay a lumpsum compensation of Rs.15,000/- for harassment and litigation expenses.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. As per the complaint, the complainant is the owner of vehicle Make Force Tempo bearing Registration No.PB-29-M-9831 which was insured with opposite parties for the period 30.03.2016 to 29.03.2017. On 02.11.2016, the vehicle met with an accident and an FIR was lodged to this effect. The opposite parties were informed about the accident and as per the directions of the officials of the opposite parties, the damaged vehicle was lodged with Nextgen Automobiles, Ludhiana Authorized dealer of the Manufactuer i.e. Force Motors Ltd., who prepared an estimate amounting to Rs.6,78,666/- and the said estimate was handed over First Appeal No. 370 of 2019 3 to the representative of the opposite parties. The complainant lodged the claim, vide Claim No.MOTO6177682 and supplied the documents to the company on 30.06.2017 as per their request. The opposite parties informed that the repair charges are at higher side and the vehicle will be treated under the total loss scheme, to which the complainant agreed to. It was further averred that opposite parties sometimes informed that they will allow the repair and sometimes told that the vehicle is covered under the total loss. Later on, the opposite parties and its representative orally informed that the company has closed this case but without any written intimation. The opposite parties have not settled the claim nor make the payment of the due amount as per the Insurance Policy due to which the complainant is suffering monetary losses. Alleging deficiency in service on the part of the opposite parties, the complainant filed the complaint before the District Commission and sought the following directions against the opposite parties:
i) to pay the insurance claim amounting to Rs.5,14,543/-
or cost of repair i.e. amounting to Rs.6,78,666/- as per the loss estimate.
ii) to pay damages of Rs.30,000/- per month since November, 2016 and as per this upto the filing of the complaint the damages comes to Rs.2,70,000/- from the respondents. The complainant is also entitled to interest on the above referred all the due amount at the First Appeal No. 370 of 2019 4 rate of 12% per annum till the date of occurrence till its realization.
3. Upon notice, opposite parties appeared and filed their reply and took legal objections that intricate questions of law and facts are involved in the complaint which requires voluminous documents and evidence for determination. The complainant has concealed the fact that the vehicle No.PB-29M-9831 is repairable and not a case of total loss but the complainant is adamant to get the same on total loss basis. The complainant has not submitted the invoice and the AML documents although letters dated 28.02.2017, 21.03.2017 and 09.05.2017 were issued to him, thus, the complaint is premature. The complainant has no locus standi or cause of action to file the complaint. On merits, it was submitted that the on receiving the intimation of alleged accident Mr.Gurmeet Singh Bhurjee was deputed as surveyor and loss assessor, who conducted the survey and assessed the loss to the tune of Rs.2,86,376/- and found the vehicle repairable. The complainant is not entitled to the claim on total loss basis. Rest all the averments as averred by the complainant in his complaint have been denied and prayed for dismissal of the complaint.
4. The parties led their evidence in support of their respective contentions before the District Commission and after hearing the learned counsel for the parties, the complaint was partly accepted, vide order dated 17.05.2019.
First Appeal No. 370 of 2019 5
5. Aggrieved by the said order, this appeal has been filed by the appellant/complainant for modification of the impugned order and to allow the appeal.
6. We have heard the learned counsel for the parties and have carefully gone through the record as well as written arguments filed by the parties.
7. Learned counsel for the appellant vehemently argued that the vehicle, in question, was damaged in the accident. The claim was lodged with the respondents who deputed the surveyor to assess the loss. The appellant/complainant completed all the requisite formalities. Further argued that respondents informed that the repair is more than the IDV value and it is a case of total loss, to which the appellant gave his consent but the claim was not settled. Thereafter, a legal notice dated 08.04.2017 was served upon the respondents. Further argued that the respondents never informed the appellant that they considered the claim of the appellant on repair basis. The District Commission while passing the order has failed to consider this fact. It is also argued that the respondents never supplied the surveyor's report to the appellant/complainant before placing on record before the District Commission. The respondents never intimated the appellant about the assessed loss on the basis of repair. Finally, it is prayed that the appeal be allowed by modifying the order passed by the District Commission.
First Appeal No. 370 of 2019 6
8. On the other hand, learned counsel for the respondents argued that the loss was assessed by the surveyor as per the terms and conditions of the policy. The surveyor found the vehicle repairable and assessed the loss to the tune of Rs.2,86,376/-, which the District Commission found correct and passed the order accordingly. It is further argued that before passing the order, the District Commission had thoroughly gone through the documents available on the record. There is no illegality or infirmity in the order passed by the District Commission. Finally, it is prayed to dismiss the appeal being devoid of merits.
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
10. Brief facts of the case as per documents placed in evidence are that the appellant/complainant obtained a Passenger Carrying Vehicle Package Policy for his vehicle Force Tempo Traveller, Regn. No.PB-29M-9831 for the period 09.04.2016 to 08.04.2017 and paid a premium of Rs.21,403/- to respondents/opposite parties, vide Ex.C-3. The total IDV of the vehicle was fixed as Rs.4,58,120/-. On 02.11.2016, the vehicle met with an accident at Moga to Koteissekhan Road as the said vehicle was hit by another vehicle coming from opposite side due to dense fog. FIR No.44 dated 02.11.2016 was lodged with P.S. Fatehgarh Panjtoor, Ex.C11 by one Jaswant Singh. Also information was given to the respondents-Insurance Company and the vehicle was lodged with Nextgen Automobile, an authorized dealer of Force Motors Ltd. at First Appeal No. 370 of 2019 7 Ludhiana. The respondents/opposite parties deputed Gurmeet Singh Bhurjee, Surveyor and Loss Assessor and Valuer to assess the loss. The appellant/complainant lodged the claim vide Ex.OP- 1/6 giving the details of the driver Karaj Singh and the Garrage. The appellant/complainant also submitted an estimate of repair prepared by M/s Nextgen Automobiles for an amount of Rs.6,78,666.50p, Ex.C-4. The said surveyor submitted survey report Ex.R-1 dated 26.12.2016 with the following observation:
"At the time of survey it was observed that insured was not holding a valid driving licence at the time of accident, hence claim does not come under preview of the policy issued by the underwriters, hence the file may be closed as NO CLAIM in the opinion of undersigned."
11. On the other hand, the surveyor assessed the loss on repair basis amounting to Rs.2,86,376/-. The respondents/opposite parties wrote to the appellant/complainant vide Ex.R-2/3 to submit the documents i.e. Invoice, AML documents and claim was not settled. The complainant filed the complaint in the District Commission which was partly allowed and the opposite parties were directed to pay Rs.2,86,376/- as per loss assessed by the surveyor in the survey report. The appellant/complainant has filed appeal to modify the impugned order by considering the vehicle as total loss and to direct the respondents/opposite parties to pay claim equivalent to the IDV of the vehicle.
12. Now the following issues are to be decided: First Appeal No. 370 of 2019 8
i) Whether the driver was holding a valid Driving Licence at the time of accident or not?
ii) Whether the appellant/complainant is entitled to total loss or claim amount on the repair basis?
13. As per survey report, the driver was holding Driving License No.PB0520110090051 to drive Light Motor Vehicle - Non Transport, which was valid upto 28.12.2018. As the Registration Certificate of the vehicle, Ex.C-9, the weight of the vehicle is less than 7500 kg. First of all, it would relevant to reproduce definition of "light motor vehicle" as given in Section 2 (21) of the Motor Vehicles Act, 1988, which is as under:
"light motor vehicle" means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kilograms."
14. The above reproduced definition of 'light motor vehicle' includes transport vehicle, a motor car or tractor or road roller, the unladen weight of which does not exceed 7500 kilograms. As per the above, the driver was holding a valid Driving License at the time of accident.
15. We are further fortified the judgment of the Hon'ble Supreme Court in case Mukund Dewangan v. Oriental Insurance Co. Ltd. 2017 (IV) CPJ 13 (SC); wherein it has been minutely discussed the various provisions of the Motor Vehicles Act, 1988 and categorically held in Para No.46 (relevant portion) as under: First Appeal No. 370 of 2019 9
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre- amended position as well the postamended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48).
Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, First Appeal No. 370 of 2019 10 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
16. From the ratio of the aforesaid authority of the Hon'ble Supreme Court, it cannot be said that the driver was not holding a valid and effective driving license at the time of accident and accordingly the appellant/complainant is entitled to claim the damages.
17. Now the second issue is to decide whether the appellant/complainant is entitled to total loss or claim amount on repair basis as per survey report. In the instant case, repair estimate amounting to Rs.6,78,666/- has been prepared by the M/s Nextgen Automobiles authorized dealer of manufacturer i.e. Force Motors. However, the surveyor has reduced the said amount to Rs.2,86,376/-. On perusal of the survey report, the surveyor has assessed the loss on account of parts upto an amount of Rs.4,38,722/-, whereas the estimate was submitted for Rs.5,84,021/-. Similarly, again labour charges quoted by the authorized dealer for Rs.44,620/- on parts and Rs.50,022/- on painting, the surveyor has only allowed Rs.20,000/- on parts and First Appeal No. 370 of 2019 11 Rs.27,500/- on painting. The surveyor has worked out cost of parts for Rs.4,38,722/- and if we consider 10% of labour cost to replace the parts then even labour cost of parts should have been Rs.43,872/- whereas the surveyor has allowed only Rs.20,000/-. The surveyor has assessed the loss amounting to Rs.2,42,813.87 without giving any cogent reason to reduce the labour as well as other material / parts cost as estimated by the authorized dealer i.e. Nextgen Automobiles. Further, the surveyor has deducted depreciation w.e.f. 30.05.2012, salvage without giving any justification. We are of the opinion that the total repair cost was more than 75% of the IDV i.e. Rs.3,43,590/-.
18. In this regard, it is relevant to mention here that generally where the repair cost exceeds 75% of the IDV, total loss is declared and in that case the IDV is required to be paid to the insured and vehicle is accordingly to be transferred/handed over by the insured in the name of the Insurance Company to receive the payment.
19. In the present case, IDV was Rs.4,58,120/-, therefore, if the repair cost is more than 75% then the vehicle is required to be considered as total loss.
20. We are of the opinion that if there are some flaws in the surveyor's report, it is not binding upon the insured/insurer. We are further fortified with the judgment of the Hon'ble Supreme Court reported in (2009) CPJ 46 (SC) titled "New India Assurance Company Limited v. Pardeep Kumar" wherein it has been laid First Appeal No. 370 of 2019 12 down that surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.
21. From the above, we are of the opinion that the order passed by the District Commission requires modification as it did not consider the fact that repair work amount exceeds the 75% of the IDV of the vehicle, in question. Therefore, in our view, the appellant/complainant is entitled to the amount of Rs.4,58,120/- i.e. IDV of the vehicle, in question.
22. Sequel to the above, the appeal is partly allowed and the order of the District Commission is modified as under:
i) opposite parties are directed to pay Rs.4,58,120/-
instead of Rs.2,86,376/-, jointly and severally along with interest at the rate of 7% per annum from the date of filing of the complaint i.e. 06.10.2017 till realization, subject to transfer of the vehicle in the name of the respondents/opposite parties and handing over the same to the respondents /opposite parties-Insurance Company.
First Appeal No. 370 of 2019 13
ii) opposite parties are further directed to pay Rs.15,000/-
as lumpsum compensation as awarded by the District Commission.
23. The respondents/opposite parties are directed to comply with the order within one month from the date of receipt of certified copy of the order.
24. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER January 19th ,2022 parmod