State Consumer Disputes Redressal Commission
1. United India Insurance Company ... vs 1. Prabhdeep Kaur Bindra on 17 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 179 of 2014 Date of Institution : 06.05.2014 Date of Decision : 17/06/2014 1. United India Insurance Company Limited, having its Office at SCO No.124-125, Sector 8-C, Chandigarh through its Regional Manager. 2. United India Insurance Company Limited, having its Office at SCF No.127-128, Giani Zail Singh Nagar, Ropar, through its Branch Manager. Now all through Smt. Sunita Sharma, Deputy Manager, United India Insurance Company Limited, Regional Office, SCO 123-124, Sector 17-B, Chandigarh. Appellants/Opposite Parties No.1 and 2 V e r s u s 1. Prabhdeep Kaur Bindra, now Known as Prabhdeep Kaur Pahuja wife of Bikrambeer Singh, now resident of 94 to 96 Cavangha Road, Cheltenham, Melbourne, Victoria, Australia, through her duly appointed Special Power of Attorney Sh.Mahabir Singh S/o Late Dr.Satnam Singh, R/o H.No.134, Sector 35-A, Chandigarh. ....Respondent No.1/complainant 2. Swami Automotives Pvt. Ltd., Plot No.72, Phase-I, Industrial Area, Chandigarh, through its Managing Director. ....Respondent No.2/Opposite Party No.3 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Dharam Paul Gupta, Advocate for the appellants.
Sh. Gaurav Bhardwaj, Advocate for respondent No.1 Sh. G.S. Sidhu, Advocate for respondent No.2.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 01.04.2014, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1), and directed the Opposite Parties (now two of which are appellants/Opposite Parties No.1 and 2), as under:-
Resultantly, in view of the foregoings, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed as under:-
i) The OPs NO.1 & 2 are directed to indemnify the complainant to the extent of Rs.11,23,000/- i.e. the IDV of the vehicle in question (Ann.C-2) and pay the said amount along with interest @9% per annum from the date two months after the submission of the surveyors report i.e. 13.10.2012 till realization.
ii) The OP No.3 shall refund the amount of Rs.3.00 lacs to the complainant, within 30 days failing which it shall be liable to pay the same along with interest @12% p.a. from the date of filing the complaint i.e. 8.10.2013 till realization.
iii) The OPs No.1 & 2 are also directed to pay Rs.50,000/- as compensation to the complainant for causing mental & physical harassment.
iv) The OPs NO.1 & 2 shall also pay the litigation cost of Rs.15,000/- to the complainant.
v) Since, admittedly the car in question is lying with OP No.3, the same can be collected by OPs No.1 & 2 from it (OP No.3) after paying the amount of indemnification to the complainant as well as repair cost to OP NO.3.
vi) The complainant is also directed to furnish/handover the required documents to OP Insurance Company for transfer of the said car in their name for disposal at their end, after receipt of the amount awarded against them.
This order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order failing which the OPs No.1 & 2 shall also pay interest on the amount of compensation of Rs.50,000/- @12% p.a. from the date of filing of the complaint i.e. 08.10.2013 till realization, besides paying litigation expenses and refund of Rs.8,42,250/- lacs with interest, as aforesaid.
2. The facts, in brief are that the complainant, being the owner of vehicle bearing Regd.No.PB-10-DC-0134, got the same insured from Opposite Parties No.1 and 2, vide Policy Annexure C-2, valid for the period from 21.10.2011 to the midnight of 20.10.2012, for the Insured Declared Value, to the tune of Rs.11,23,000/-, on payment of premium, to the tune of Rs.23,049/-. The said vehicle met with an accident, on 04.04.2012, near the house of the complainant, as a result whereof, it was extensively damaged. Opposite Parties No.1 and 2 were duly intimated, about the loss, upon which, a Surveyor was appointed by them, to assess the actual loss. Claim was also lodged by the complainant, with Opposite Parties No.1 and 2. However, FIR or DDR was not lodged/registered, as there was no third party loss. The damaged vehicle was taken to Opposite No.3, an authorized dealer of Opposite Parties No.1 and 2, on 05.04.2012, which issued check sheet and estimate of repairs, to the tune of Rs.4,06,972/-. It was stated that, thereafter, Opposite Party No.3, gave supplementary estimate of repairs, to the tune of Rs.4,18,223/-, on 01.05.2012, on the ground that there was an extensive damage to the vehicle, in question, and, as such, the same (estimate) had increased. Thereafter, Opposite Party No.1 was requested to treat the vehicle, as total loss, on the ground that the estimate of repairs, might further increase, as per the repairer. Opposite Party No.3 also sent an e-mail to the Surveyor, with regard to the supplementary estimate. The said email was replied to by Opposite Party No.1. It was further stated that the Surveyor vide letter dated 21.06.2012-Annexure C-9, informed the complainant, to ask Opposite Party No.3 to start the repairs, as the vehicle was repairable. It was further stated that Opposite Party No.3, sent a letter dated 30.06.2012 to Opposite Party No.1, stating therein, that, as per the instructions, the vehicle was further dismantled for repairs, upon which, it was found by the expert engineers, that its engine was totally damaged, and as such, another supplementary estimate, in the sum of Rs.6,81,034.05Ps., was also prepared. In this manner, the total estimate of repairs, came to be Rs.15,06,184/-.
3. It was further stated that the complainant raised the matter, with Opposite Parties No.1 and 2, that the car had been lying with Opposite Party No.3, for the last three months, yet, nothing had been done and the repairer would charge parking charges, for the said period. It was further stated that the said Surveyor replied that the second supplementary estimate, prepared by Opposite Party No.3, could not be considered, as the damage to engine, was due to normal wear and tear or mechanical breakdown. It was further stated that Opposite Party No.3, vide letter Annexure C-15, informed the Surveyor, that the vehicle had only covered less than 4000 kms., before the accident and the damage to the engine, could not be due to wear and tear or mechanical breakdown. The complainant also wrote a letter Annexure C-16 to Opposite Party No.2, informing it that the vehicle had not been repaired, and he could not afford to pay the parking charges. It was further stated that Opposite Party No.3, submitted the accidental estimate of repairs, in the sum of Rs.1,74,059.91Ps., to Opposite Party No.1, towards repair of the engine, on 04.08.2012. Hence, the total estimate of repairs, came to be Rs.9,99,225/-Thereafter, the repair of the vehicle was started and the complainant was informed to deposit Rs.3.00 lacs, which were duly deposited by her, with Opposite Party No.3, on 21.05.2013. Tax invoice, in the sum of Rs.8,46,050/-, was also given to the complainant, by Opposite Party No.3. It was further stated that, after repairs also, the vehicle was not in running condition, as its battery was lying dead, and the tyres were damaged, as the same had not been used for more than a year.
4. It was further stated that Opposite Parties No.1 and 2 pressurized Opposite Party No.3, to repair the engine, despite the fact that its expert engineers, categorically stated that the damage to the same (engine) could not be due to wear and tear or mechanical breakdown, as the vehicle had covered only 2948 Kms., till the date of accident. It was further stated that Opposite Parties No.1 and 2, always asked the complainant to take the vehicle, and submit the bill of repairs, but she could not take the delivery, as the repair of the vehicle was against the expert advice, and she could not risk her life. It was further stated that since the repair amount was more than 75% of the IDV, as such the vehicle was liable to be treated as a total loss, but Opposite Parties No.1 and 2 tried to manipulate the things, and were avoiding to declare the same (vehicle) as a total loss. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to treat the vehicle, as total loss, and pay the IDV of the same; pay compensation, to the tune of Rs.3 lacs, for deficiency, in rendering service, and expenditure incurred for hiring taxi; and cost of litigation to the tune of Rs.55,000/-
5. Opposite Parties No.1 and 2, in their joint written version, admitted that the complainant, being the owner of the vehicle bearing Regd.No.PB-10-DC-0134, got the same, insured from them, vide Policy Annexure C-2, valid for the period from 21.10.2011 to the midnight of 20.10.2012, for the Insured Declared Value, to the tune of Rs.11,23,000/-, on payment of premium, to the tune of Rs.23,049/-. It was stated that the insured informed Opposite Parties No.l and 2, about the alleged accident, on 03.04.2012, and had taken the vehicle to the workshop of Opposite Party No.3, which gave estimate of repairs, to the tune of Rs.4,06,972.37Ps., to her. It was further stated that, on receipt of information, from the complainant about the said accident, Opposite Parties No.1 and 2, appointed Mr. Gurcharn Singh, of M/s G.C. Singh & Associates, Surveyor and Loss Assessor, to survey the accidental vehicle, and assess the loss. The Surveyor and Loss Assessor, after conducting the survey, in pre-dismantled condition of the vehicle, asked the repairer to repair the same (vehicle). The said Surveyor and Loss Assessor, submitted his survey report on 13.08.2012. It was further stated that Opposite Party No.3, gave first supplementary estimate of repairs, to the tune of Rs.4,18,223/-. It was further stated that the major part of this first supplementary estimate was gearbox of the vehicle, in question, costing Rs.3,68,158.50Ps. On receipt of the first supplementary estimate, the Surveyor and Loss Assessor, again visited the workshop of Opposite Party No.3, and noted that casing of the vehicle, was broken. Opposite Party No.3, told the Surveyor and Loss Assessor, that the said child part was not available, and, as such, whole gearbox was to be replaced. It was further stated that, later on, it was found that casing of the gearbox, was available, with the manufacturer of the said vehicle, cost of which was Rs.54,046.56Ps. It was further stated that the said fact was informed to the repairer, as well as to the insured vide letter and email Annexure OP/R-3 and OP/R-4, respectively. However, in the meantime, the insured vide letter dated 20.05.2012, Annexure R-5, requested Opposite Parties No.1 and 2, to treat her car, as total loss. It was further stated that, on 30.06.2012, Opposite Party No.3, informed Opposite Parties No.1 and 2, that it had further dismantled the engine of the said car, whereupon, the same was found to be jammed and totally damaged, internally. Opposite Party No.3, issued another supplementary estimate of repairs, amounting to Rs.6,81,034/-. However, the Surveyor and Loss Assessor, was of the opinion that such loss/damage, could not be caused to the engine, in such type of accident. As such, the Surveyor and Loss Assessor, visited the workshop of Opposite Party No.3, and asked it to further dismantle the engine of the said car, to know the cause of damage, but it (Opposite Party No.3) did not react to his request, on the pretext that it would cost more than engine assembling. Thereafter, Mr.Abrol, In-charge Motor Technical Deptt. and Surveyor, visited the workshop of Opposite Party No.3 and asked it to dismantle the engine from oil pan, head and noted its valves and bending, upon which, he (Mr.Abrol) was convinced that the loss/damage to the engine had occurred. It was further stated that the said Surveyor and Loss Assessor, vide e-mail dated 25.07.2012 (Annexure OP/R-9), informed Opposite Party No.3, that the cause of accident, mentioned by the insured, did not coincide with the engine damage, hence the second supplementary estimate of repairs, could not be considered, and the insured be told to get the repair of the vehicle, considering the original and first supplementary estimate of gear box only. Thereafter, Opposite Party No.3, revised the estimate of repairs, on 04.08.2012, with few internal parts, amounting to Rs.1,74,059.91Ps.. It was further stated that, on the other hand, the complainant insisted that her vehicle be treated as total loss. It was further stated that the IDV of the vehicle was Rs.11,23,000/-, whereas, Opposite Party No.3, furnished the total estimate of repairs, to the tune of Rs.15,06,184/-. It was further stated that, on the other hand, the amount incurred on repair of the vehicle, was Rs.8,46,050/-. It was further stated that Opposite Party No.3 had never informed Opposite Parties No.1 and 2, that engine of the car, in question, was not repairable. It was further stated that the vehicle, in question, had been repaired by Opposite Party No.3, and, as such, the request of the complainant, to treat the same (vehicle), as total loss, as also to pay the IDV, could not be considered. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.3, in its written version, admitted the repair of the vehicle, in question; issuing of estimate of repairs, followed by supplementary estimates; payment made by the complainant to the tune of Rs.3.00 lacs, to it (Opposite Party No.3); and the total estimate came to be Rs.9,99,225/-. It was also admitted that the tax invoice, in the sum of Rs.8,46,050/-, was issued to the complainant, as the vehicle had been repaired. It was denied that Opposite Parties No.1 and 2 pressurized Opposite Party No.3, to repair the engine of the vehicle, in question. It was stated that the Body Shop Manager of Opposite Party No.3, informed the Surveyor and Loss Assessor, that the damage to the engine could not occur, due to the wear and tear or mechanical breakdown, as the vehicle had only covered less than 4000 Kms. It was further stated that damage to the engine of the said vehicle, was due to accident, as per the opinion of the expert engineers, whereas, he had no where mentioned that the engine could not be repaired. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1 and 2.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants/Opposite Parties No.1 and 2, submitted that since the vehicle, in question, was repairable, as per the opinion of the Surveyor and Loss Assessor, appointed by Opposite Parties No.1 and 2, it could not be declared as total loss, as claimed by the complainant. He further submitted that the claim of the complainant could be settled, in such like cases, as per the terms and conditions of the Insurance Policy. He further submitted that even if the estimates, submitted by the repairer, from time to time, were taken into consideration, the loss could be assessed, as per the terms and conditions of the Insurance Policy, i.e. necessary deductions were required to be made, in respect of the plastic, rubber, glass, nylon, tyres, tubes, metal parts etc. etc., and if that was done, then the assessed amount on repair basis came to be Rs.5,76,804.24Ps., which was much less than 75% of the Insured Declared Value, and, as such, the question of declaring the vehicle, as total loss, did not at all arise. He further submitted that even if, it was assumed for the sake of arguments, that the vehicle, in question, was a total loss, the liability of the complainant, could not be fixed more than the Insured Declared Value, but the District Forum, besides awarding Rs.11,23,000/-, being the IDV, also directed the appellants/Opposite Parties No.1 and 2, to pay the cost of repairs to Opposite Party No.3. He further submitted that the order of the District Forum, thus, being illegal, and invalid, is liable to be set aside.
12. On the other hand, the Counsel for respondent No.1/complainant, submitted that the vehicle, in question, was extensively damaged, in the accident. He further submitted that the engine of the vehicle, in question, was also damaged, and the estimate of repairs finally issued by Opposite Party No.3 (now respondent No.2), was to the tune of Rs.9,99,225/-, which was exceeding 75% of the IDV of Rs.11,23,000/-. He further submitted that, as such, the claim of the complainant was required to be treated on total loss basis. He further submitted that Opposite Parties No.1 and 2, did not settle the claim of the complainant, on total loss basis, and rather directed Opposite Party No.3, to repair the vehicle, for which, initially an amount of Rs.3 lacs, was paid by her, though the cost of repair, as per the tax invoice Annexure C 18 was Rs.8,46,050/-. He further submitted that damage to the engine could not be caused due to wear and tear or mechanical breakdown, as the vehicle had covered only 2948 Kms. He further submitted that Opposite Parties No.1 and 2, were manipulating the things, and asking for taking back the vehicle, though it was a case of total loss. It was further submitted that, as such, Opposite Parties No.1 and 2, were deficient, in rendering service, as also indulged into unfair trade practice. He further submitted that, as such, the order of the District Forum, in accepting the complaint, against the Opposite Parties, being legal and valid, is liable to be upheld.
13. Admittedly, the vehicle, in question, was got insured, by the complainant, from Opposite Parties No.1 and 2, as mentioned in the complaint. There is also, no dispute, with regard to the factum, that the vehicle, in question, met with an accident. In report Annexure OP/R-13, Mr. Gurcharn Singh, of M/s G.C. Singh and Associates, Surveyor and Loss Assessor, under the heading Any other comments, in clear-cut terms, stated that the cause of accident, stated by the insured, coincided with the nature of damage, and found fresh in nature. In this report, it was also stated that the original estimate was of Rs.9,99,225/-, whereas, the amount on repair basis assessed, was Rs.5,76,804.24Ps. The original estimate of Rs.9,99,225/-, was certainly more than 75% of the IDV of the vehicle, and the actual cost of repair came to be Rs.8,46,050/-, as per the Tax Invoice, Annexure C 18, which was also more than 75% of the IDV of the vehicle. According to Section I under Clause 4 (The Schedule of Depreciation For Fixing IDV of the Vehicle) of Private Car Package Policy (Annexure C-2), the IDV was to be treated as the Market Value, throughout the Policy period, without any further depreciation, for the purpose of Total Loss(TL)/Constructive Total Loss(CTL) claims. When the final estimate on repair basis was of Rs.9,99,225/-, and the total repair cost, vide Tax Invoice, Annexure C 18, was Rs.8,46,050/-, which was more than 75% of the IDV, the insurer was required to treat the vehicle as total loss. In such circumstances, in our considered opinion, the Surveyor and Loss Assessor, could not make deductions, especially when the vehicle was a case of total loss. According to GR 8 of the Indian Motor Tariff, the vehicle would be considered to be a case of CTL (Constructive Total Loss), where the aggregate cost of retrieval and/or repair, subject to the terms and conditions of the Insurance Policy exceeds 75% of the IDV. Even, according to GR 8 of the Indian Motor Tariff, when the total repair cost of the vehicle, as per the repairer was more than 75% of the IDV, it was required to be treated as a case of total loss, and no deductions, whatsoever, on account of glass, plastic, metal parts etc. etc., could be made. The Surveyor could not reduce the amount of repairs, by making deductions, in respect of various parts, as stated above.. The District Forum was also right, in holding so.
14. Coming to the report of the Surveyor, it may be stated here, that it is settled principle of law that the same is neither binding on the parties nor the Consumer Foras. Though the report of the Surveyor has got evidentiary value, yet, it cannot be said to be the final word. The Surveyor and Loss Assessor, in his report, could not assign any reason, as to why, the vehicle, could not be treated as total loss. He also could not assign any reason, as to why, he made deductions, in relation to various parts, referred to above, while assessing the loss, when the repair cost was more than 75% of the IDV of the vehicle. No help, therefore, can be drawn by the Counsel for the appellants, from the assessment of loss, arbitrarily made by the Surveyor and Loss Assessor, in his report. By not declaring the vehicle, as total loss, Opposite Parties No.1 and 2, were certainly deficient, in rendering service.
15. It may be stated here, that since it has been held above, that it was a case of total loss, Opposite Parties No.1 and 2, were required to indemnify the complainant, to the tune of Rs.11,23,000/-. The appellants/Opposite Parties No.1 and 2, shall get the vehicle and become owner thereof. Since the vehicle was repaired by Opposite Party No.3, as directed by the Surveyor of Opposite Parties No.1 and 2, they shall also be liable to pay the cost of repair, to the repairer, besides indemnifying the complainant.
16. Since Opposite Parties No.1 and 2 were directed to indemnify the complainant, to the extent of IDV, in our considered opinion, the compensation of Rs.50,000/- awarded by the District Forum, is on the higher side. Compensation should commensurate with the facts and circumstances of the case. It should neither be too high, nor too inadequate. Compensation, if reduced to Rs.30,000/- would meet the ends of justice. The order of the District Forum, needs modification to this extent.
17. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
(i). The appellants/Opposite Parties No.1 and 2 are directed to indemnify respondent No.1/ complainant, to the extent of Rs.11,23,000/- i.e. the IDV of the vehicle, in question, alongwith interest @9% per annum, commencing after two months, from the date of submission of the report of the Surveyor and Loss Assessor i.e. 13.10.2012, till realization.
(ii).
Respondent No.2/Opposite Party No.3 shall refund the amount of Rs.3.00 lacs, to respondent No.1/complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which it shall be liable to pay the same, alongwith interest @12% p.a., from the date of filing the complaint i.e. 08.10.2013 till realization.
(iii).
The appellants/Opposite Parties No.1 and 2 shall pay compensation, to the tune of Rs.30,000/- for causing mental agony and physical harassment, to respondent No.1/complainant, instead of Rs.50,000/-, as awarded by the District Forum.
(iv).
The appellants/Opposite Parties No.1 and 2 shall also pay Rs.15,000/-, as cost of litigation, to respondent No.1/complainant, as awarded by the District Forum.
(v). Since, admittedly the car, in question, is lying with respondent No.2/Opposite Party No.3, the same can be collected by the appellants/ Opposite Parties No.1 & 2, from it (Opposite Party No.3), after paying the amount of indemnification to the respondent No.1/ complainant, as indicated in Clause (i) above, as well as repair cost to it (Opposite Party No.3).
(vi).
Respondent No.1/complainant shall execute the requisite documents, in favour of the appellants/ Opposite Parties No.1 and 2, for transfer of the vehicle, in question, in their name, so as to vest them with the ownership thereof, on receipt of the amount of indemnification.
(vii).
The aforesaid order shall be complied with, by the appellants/Opposite Parties No.1 and 2, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, they (appellants/Opposite Parties No.1 and 2), shall pay interest @12% P.A., on the amount of compensation of Rs.30,000/-, as mentioned in Clause (iii) above, from the date of filing the complaint, till realization, besides payment of cost of litigation.
(viii).
Any other relief granted, and direction given by the District Forum, which is contrary to, and in variance of this order, subject to the modification, aforesaid, shall stand set aside.
18. Certified copies of this order, be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.
Pronounced.
17/06/2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg