State Consumer Disputes Redressal Commission
Shri Rajinder Pal vs Icici Lombard General Insurance ... on 4 December, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, SHIMLA.
(1) First Appeal No.180/2012
Date of Decision: 04.12.2012
Shri Rajinder Pal son
of Shri Lachman Dass,
Presently residing in
House No.489, Sector-12,
Panchkula (Haryana).
.. Appellant
Versus
1. ICICI Lombard General Insurance Company
Ltd.,
Through
its Branch Manager, Mandi, H.P.,
2. Shivansh Automobiles,
Authorized Dealer of Hyundai Motors,
Through
its Works Manager, Gutkar, Mandi,
District Mandi, H.P.
3. Hyundai Motors India Ltd.,
Through its Manager, North Regional
Office,
A-30, Mohan Co-operative Industrial
Estate,
Mathura Road, Delhi.
Respondents
For the Appellant: Mr.
Lalit K. Sharma, Advocate
For the Respondent No.1: Mr. Jagdish Thakur, Advocate
For the Respondent No.2: Mr. H.S. Rangra, Advocate
For the Respondent No.3: Mr. Kamlender S.Negi, Advocate vice
Mr. Abhishek Banta, Advocate
...
AND
(2) First
Appeal No.271/2012
Date
of Decision: 04.12.2012
M/s. Shivansh
Automobiles,
Authorized Dealer of Hyundai Motors, Gutkar,
Through
its Works Manager, Shri Paras Gautam,
Gutkar, Mandi, Tehsil Sadar,
District Mandi, H.P.
.. Appellant
Versus
1. Shri Rajender Pal son of Shri Lachman Dass,
At present Resident of House No.489, Sector-12,
Panchkula (Haryana).
2. ICICI Lombard General Insurance Company
Ltd.,
Through
its Branch Manager, Mandi,
District Mandi, H.P.,
3. Hyundai Motors India Ltd.,
Through its Manager, North Regional
Office,
A-30, Mohan Co-operative Industrial
Estate,
Mathura Road, Delhi.
.. Respondents
Coram
Honble Mr. Justice (Retd.) Surjit Singh, President
Honble Mr. Chander Shekhar Sharma, Member
Honble Mrs. Prem Chauhan, Member
For the Appellant: Mr.
H.S. Rangra, Advocate
For the Respondent No.1: Mr. Lalit K. Sharma, Advocate
For the Respondent No.2: Mr. Jagdish Thakur, Advocate
For the Respondent No.3: Mr. Kamlender S.Negi, Advocate vice
Mr. Abhishek Banta, Advocate
Whether approved for reporting?[1]
O R D E R:
Justice (Retd.)Surjit Singh, President (Oral) By this common order, we proceed to dispose of two appeals, numbers and particulars whereof appear in the title of this order, because both the appeals are directed against the same order, i.e. order dated 02.06.2012 of learned District Consumer Disputes Redressal Forum, Mandi.
2. Appeal, i.e. F.A. No.180/2012 has been filed by the complainant, who is aggrieved by the order, which says that repaired vehicle, shall be delivered to him, though he had claimed the insurance money, as according to him, this was a case of total loss. Second appeal (F.A. No.271/2012) has been filed by one of the opposite parties, i.e. the repairer of the vehicle, who has been ordered to bear 30% of the repair charges and also to pay 50% of the compensation money of `50,000/- awarded by the learned District Forum.
3. Facts giving rise to the present matters may be stated.
Shri Rajinder Pal, hereinafter called complainant, owned a car, which was insured for a sum of `3,61,184/-, with M/s. ICICI Lombard General Insurance Company Limited, hereinafter referred to as opposite party No.1. Sum assured was the insureds declared value of the vehicle. Policy was effective from 30.07.2008 to 29.07.2009. On 22.01.2009, vehicle met with an accident and was damaged. Intimation of the accident was given to the insurer, i.e. opposite party No.1. According to the complainant, vehicle was taken to the workshop, named and styled as M/s. Shivansh Automobiles, hereinafter referred to as opposite party No.2, at the instance of opposite party No.1. Opposite party No.2, allegedly, carried out the repair and worked out the cost of repair at `3,49,904/-. According to the complainant, he had written to opposite party No.2, before repair of the vehicle that since the estimated cost of repair exceeded the insureds declared value, for which the vehicle was insured, repair be not carried out, but despite that, opposite party No.2 carried out the repair.
4. Complainant filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking issuance of a direction to opposite party No.1 to pay the entire amount of insurance money, i.e. `3,61,184/-, together with compensation and litigation expenses. That complaint was disposed of by learned District Forum, vide order dated 22.03.2011, copy Annexure C-1, with a direction to opposite party No.1 to settle the claim of the complainant, after the latter submitted the estimated cost of repair. Opposite party No.1, after the passing of the aforesaid order, did not settle the claim, though the complainant had submitted estimate, as per direction of learned District Forum. So, the complainant filed another complaint, under Section 12 of the Consumer Protection Act, 1986. Present appeals arise from the order passed in that complaint.
5. In the second complaint, referred to hereinabove, complainant pleaded that opposite party No.2 had carried out the repair, without his consent and, therefore, he was entitled to the entire insurance amount of money, i.e. `3,61,184/-, as the repair charges acceded 75% of the insureds declared value, or the sum assured. He pleaded that repair had been carried out, despite his having written a letter, dated 24.06.2009 to the opposite party No.2 not to carry out the repair.
6. Opposite party No.1 did not file any reply, nor did it contest the complaint.
7. Opposite party No.2 in its reply pleaded that it carried out the repair, at the instance of the complainant as also opposite party No.1 and that letter/representation, dated 24th June, 2009 was issued, after the complainant came to know about the amount of money, which was going to be demanded, by raising bill, on account of repair of the vehicle.
8. Learned District Forum concluded that the vehicle had been repaired, after receipt of the letter/ representation, dated 24.06.2009 and consequently directed that out of the bill of repair charges, i.e. `3,49,904/-, a sum of `2,44,933/-, shall be payable by opposite party No.1 to opposite party No.2 and rest of the amount, i.e. `1,04,971/-, shall be borne by opposite party No.2 itself and complainant shall be delivered the repaired vehicle, without being charged anything, on account of repair of the vehicle. Learned District Forum further ordered that a sum of `50,000/- shall be paid, on account of compensation, which shall be borne by both the opposite parties equally and in addition to the aforesaid amount of money `3,000/- shall be payable to the complainant, as litigation expenses.
9. Complainant seeks modification of the aforesaid order of learned District Forum, so that instead of direction of delivery of vehicle to him, direction is given for the payment of insurance money, equivalent to the insureds declared value of the vehicle.
10. Opposite party No.2 is aggrieved by the direction that it shall bear a portion of repair charges and shall also pay 50% of compensation money and litigation expenses.
11. We have heard learned counsel for the parties and gone through the record.
12. Learned District Forum has concluded that repair was carried out, despite letter/representation, dated 24.06.2009, having been written by the complainant to it. Basis for reaching this conclusion is the date of bill of repair, which is 31st October, 2009. The date of bill could not have been made the basis for arriving at such a conclusion, reason being that in the earlier complaint, which was filed on 23rd July, 2009, or say much before the issuance of bill, dated 31.10.2009, it was mentioned that opposite party No.2 had started carrying out the repair. There was no mention of letter/representation, dated 24th June, 2009 in that complaint, per Annexure C-1 copy of order passed in that complaint. Opposite parties No.1 and 2 very categorically pleaded that vehicle had been repaired at a cost of `3,49,904/-, before receipt of representation/letter, dated 24.06.2009. Learned District Forum has ignored this aspect of the matter, while concluding that the vehicle had been repaired, after the receipt of the aforesaid letter/representation, dated 24th June, 2009 from the complainant.
13. Normal practice is that when accident of an insured vehicle takes place, the insured gets prepared estimate of cost of repair and submits it to the insurer, or its surveyor, who takes note of such estimate and submits his own report. Surveyor carries out the survey on the spot. Vehicle is not removed to any workshop for the purpose of preparation of estimate or for the purpose of survey. In the present case, vehicle was taken to the workshop of opposite party No.2 by the complainant, though his plea is that it was so taken, at the instance of opposite party No.1. The very fact that vehicle was taken to the workshop of opposite party No.2, suggests that it was taken to the workshop for the purpose of repair. Therefore, it does not lie in the mouth of the complainant to say that there were no instructions to opposite party No.2 from his side to carry out repair.
14. It is true that normally when accident results in total loss of the vehicle entitling to insured to receive the entire amount of money, repair is not carried out, but this is not the invariable practice. It is a choice of the insured to ask for the sum insured or to get the vehicle repaired and claim the repair charges. So, no inference can be drawn in favour of the complainant that he did not opt for the repair of the vehicle, simply for the reason that repair charges were more than 75% of the sum insured and the estimated cost of repair was more than the sum assured. Moreover, the estimate of repair which is available on the record of learned District Forum, as Annexure C-4, is undated and, therefore, it cannot be said, whether it was prepared before, or after the repair of vehicle.
15. In view of the above discussion, appeal filed by the complainant, i.e. F.A. No.180/2012 is dismissed.
16. As regards the appeal filed by opposite party No.2, opposite party No.1 did not contest the complaint, nor did it controvert the plea raised by opposite party No.2. Plea of opposite party No.2 was that it had carried out the repair, at the instance of the complainant and opposite party No.1, which was not denied by opposite party No.1, as it did not file any reply. That means opposite party No.1 admits that repair was carried out at its instance. If that is so, there cannot be any question of directing the opposite party No.2 to bear any portion of repair charges, or paying compensation.
17. Consequently, appeal filed by opposite party No.2 is allowed and order directing that a sum of `1,04,971/-, out of repair charges shall be borne by the said opposite party, is set aside and it is ordered that in addition to paying the amount of `2,44,933/-, as ordered by learned District Forum, opposite party No.1 shall also pay the amount of `1,04,971/- to opposite party No.2 and compensation money and litigation expenses, as awarded by learned District Forum, in favour of the complainant, shall also be paid, in full, by opposite party No.1. Both the appeals stand disposed of.
18. This order shall be placed on the record of F.A. No.180/2012, titled Rajinder Pal versus ICICI Lombard General Insurance Company Limited and its authenticated copy, on the record of F.A. No.271/2012, titled M/s Shivansh Automobiles versus Rajender Pal.
19. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member December 04, 2012.
*dinesh* [1] Whether Reporters of the local papers may be allowed to see the order?