State Consumer Disputes Redressal Commission
Bhupinder Nagpal vs United India Insurance Company Limited on 27 July, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH APPEAL NO. 33 OF 2011 Date of Institution : 16.02.2011 Date of Decision : 27.07.2011 Bhupinder Nagpal son of Late Sh.Ram Chand r/o H.No.3233, Sector 35-D, Chandigarh. .Appellant. Vs. 1. United India Insurance Company Limited, i) SCO 177-178, Sector 8-C, Chandigarh. ii) SCO 78-79, Sector 8-C, Chandigarh. 2. Kailash Chandra, Surveyor and Loss Assessor, H.No.242, Sector 18, Panchkula -134109. 3. A.B.Motors Pvt. Limited, 53, Industrial Area, Phase II, Chandigarh. . Respondents. BEFORE: HONBLE MR. JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER
Present: Sh.Satish Bhatti, Advocate for the appellant.
Sh.Parminder Singh, Advocate, proxy for Sh.Paul S.Saini, Advocate for respondent No.1.
Respondent No.2 already exparte.
Sh.H.S.Bedi, Advocate for respondent No.3.
MRS. NEENA SANDHU, MEMBER
1. This is an appeal filed by the appellant/complainant against the order, dated 6.1.2011 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) in complaint case No. 308 of 2010 vide which, it dismissed the complaint.
2. Briefly stated, the facts of the case, are that the complainant purchased a Ford Fiesta Car from OP No.3. The said car was allotted registration No.CH03-E-9082. It was stated that the car was insured with OP No.1 from 23.4.2009 to 22.4.2010. Unfortunately, the car met with an accident on 14.11.2009 and was damaged. The complainant, on the spot, called up the local office of OP No.1, which advised him to tow the vehicle to the premises of OP No.3. He took the damaged car to the suggested place. Upon the suggestion of OP No.1, tentative rough estimate of the repair of car was prepared by the technical expert for a sum of Rs.5.50 lacs, which was not final. The final estimate could only be prepared after dismantling the car. OP No.1 appointed OP No.2, as the loss assessor for assessing the amount of damage. It was stated that OP No.2 vide letter dated 1.12.2009 informed the complainant to inform him when the car was dismantled, so that further estimate to determine the internal damage could be prepared by him. OP No.2 tried to convince the complainant that he should accept Rs.1.85 lacs, as full and final settlement, on cash loss basis. It was further stated that when he was running around, the Ops, he was spending everyday, from his pocket, on taxi, OP No.3 raised a bill to the tune of Rs.10,000/- towards parking charges. Due to this, he was unable to attend his office. It was further stated that under these circumstances after obtaining the consent of the complainant, the amount of Rs.1,83,000/- was given to him. The complainant was dissatisfied with the payment of Rs.1,83,000/- received by him. The complainant even sent a legal notice dated 11.1.2010, to the Ops, and withdrew his consent before even the amount of Rs.1,83,000/- was received by him. The complainant also requested the Ops for enhancement of the amount received by declaring the car, as a total loss, but they did not comply with the request of the complainant. It was further stated that the abovesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.
3. Reply was filed by OP No.1, wherein, it was stated that the complainant was unnecessarily tried to drag OP No.1 in the litigation, especially when his claim was finally settled in the sum of Rs.1,83,000/- after obtaining his written consent dated 9.12.2009. It was further stated that the complainant submitted estimates of repair from an authorized dealer M/s Bhagat Ford, Mohali, for a sum of Rs.4,89,119.16 paise. It was further stated that since the estimates of repair were for a quite substantial amount, OP No.1 office sought approval of the higher authorities for appointment of a surveyor for assessment of loss. On approval from the head office of OP No.1, Sh.Kailash Chand, Surveyor, and Loss Assessor, was appointed on 23.11.2009 to assess the loss. The said surveyor inspected the damaged vehicle in the workshop, took photographs and held discussion with the repairer, as well as the complainant. After discussion, the surveyor reached to the conclusion that it would be, in the interest of the Co., to settle the loss for Rs.1,83,000/- on cash loss basis. It was further stated that after acceptance of the amount from the Ops, further demand of the complainant was not justified. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OP No.1 nor it indulged into unfair trade practice.
4. Reply was filed by OP No.2, wherein, it was stated that after receipt of instructions from OP No.1, he conducted the survey of damaged vehicle on 24.11.2009 and an interim survey report was prepared on 9.12.2009. It was further stated that the final survey report dated 31.12.2009 was prepared on cash loss basis to the tune of Rs.1,83,000/-. It was further stated that the complainant had made wild and baseless allegations of demanding money to malign the reputation of the answering OP, and, as such, he wrote a letter and desired the change of surveyor. It was further stated that he acted within the four corners of his authority and has been unnecessarily dragged into the litigation. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the answering OP nor it indulged, into unfair trade practice.
5. Reply was filed by OP No.3, wherein, it was stated that the complainant brought the car to their workshop under the instructions of OP No.1. It was further stated that the OP No.3 only made an estimate of the damaged car and the complainant had no grouse against the answering OP except for charging the amount of Rs.10,000/- as parking charges, and that it did not allow the complainant to take away his car without making the payment of the aforesaid amount. It was further stated that if the vehicle was not got repaired from them, the complainant would have to pay 5% of the total amount of the estimated repair calculated and he had accepted the condition. Hence, there was no deficiency, in service, on its part.
6. The parties led evidence, in support of their case.
7. The learned District Forum, dismissed the complaint, in the manner, referred to, in the opening para of the order.
8. Aggrieved by the order, passed by the learned District Forum, the appellant/complainant, has filed the instant appeal.
9. We have heard Sh.Satish Bhatti, Advocate for the appellant/complainant, Sh.Parminder Singh, Advocate, proxy for Sh.Paul.S.Saini, Advocate for respondent No.1, Sh.H.S.Bedi, Advocate for respondent No.3 and, have perused the record, carefully.
10. The learned Counsel for the appellant/complainant contended that the impugned order passed by the learned District Forum is based on wrong inference drawn from the pleadings whereas the true facts were t hat the consent was withdrawn vide letter/notice dated 11.1.2010 and the cheque dated 20.1.2010 was sent by the respondent/OP No.1 thereafter. It was further submitted that even the cheque was received under protest. It was further contended that the appellant had already made a complaint against the surveyor regarding the demand of money to the tune of Rs.1.25 lacs for settling the case, on total loss basis vide letter and email dated 30.11.2009. It was further stated that the report of the surveyor was arbitrary, as he added Rs.44,120/- as labour charges against Rs.85162.63 paise without any basis. It was further stated that the report of the surveyor was biased. It was further submitted that the learned District Forum failed to appreciate that the estimate of repair prepared at t he initial stage was Rs.498119.16 paise, against the insured value of Rs.6,57,000/-. It was further submitted that the order of the District Forum being illegal, be set aside.
11. The learned Counsel for respondent/OP No.1, contended that the order passed by the learned District Forum is just, fair and proper as there was no deficiency, in service on the part of the Ops nor they indulged into unfair trade practice, as the claim of the complainant was settled in full & final settlement, after he gave a written consent dated 9.12.2009 on cash loss basis and he received a cheque for Rs.1,83,000/- from the OPs. It was further contended that after the submission of estimate of repair by M/s Bhagat Ford, Mohali, for a sum of Rs.4,89,119.16 paise, Sh.Kailash Chand, Surveyor and Loss Assessor was appointed on 23.11.2009 to assess the loss. The surveyor inspected the damaged vehicle and after discussion, he reached the conclusion that it would be in the interest of the company to settle the case for Rs.1,83,000/- on cash loss basis. It was further submitted that after acceptance of this amount from the OPs, the demand of the complainant was not justified.
12. The learned Counsel for respondent/OP No.3 contended that A.B.Motors Pvt. Ltd. (OP No.3) had prepared only the estimate of repair of the damaged car of the complainant. The grouse of the complainant against OP No.3, was that it had charged an amount of Rs.10,000/- as parking charges and not allowed him to take away his car without making the payment of the aforesaid amount. It was further contended that the order passed by the learned District Forum is well reasoned and needs no interference.
13. Undisputedly, the complainant purchased the car, in question, in 2008 and, thereafter, got it insured with OP No.1 for Rs.6,57,000/- (Annexure C-1) for the period from 23.4.2009 to 22.4.2010. The car met with an accident on 14.11.2009. In the first instance, the surveyor gave the interim report dated 9.12.2009, wherein the amount of loss was not mentioned nor other details were mentioned. No reliance on such a report could be placed. Thereafter, the surveyor gave the detailed report dated 31.12.2009, assessing the loss on total loss basis as Rs.2,88,150/-, loss on cash loss basis at Rs.1,83,000/-. The question, that arises for consideration, is as to whether the consent of the complainant dated 9.12.2009, for settlement of the claim in the sum of Rs.1,83,000/- was voluntary. The final report of the surveyor is dated 30.12.2009. It means that on 9.12.2009, when the consent of the complainant was obtained, this report was not in existence and, as such, the question of supply of a copy thereof to the complainant did not at all arise. The accident took place on 14.11.2009. The damaged car, in question, at the asking of OP No.1 was taken to the premises of OP No.3, for repairs. The claim was not being settled by OP No.1, despite submission of claim by the complainant. The complainant wa with car and he was hiring taxi, for following his vocation. The proprietor of OP No.3 was charging parking charges of the vehicle in its premises. Having been placed in such a situation, the complainant was left with no other alternative, than agree for settlement, under coercion, on cash loss basis. The consent dated 9.12.2004, given by the complainant was, therefore, not voluntary. Sensing that his consent had been obtained, under coercion, the complainant vide legal notice dated 11.1.2010 Annexure C-6, to the Ops, withdrawing his consent. When the cheque of Rs.1,83,000/- on cashless basis, was sent to the complainant on 20.1.2010, he received the same under protest, as is reflected from notice dated 25.1.2010, C-7. Since, the consent of the complainant was given under coercion, it could be withdrawn, at any time, by the person, before the same was finally acted upon by the OP. In this case, as stated above, the complainant withdrew the consent, before it was acted upon by the OP. So, the consent dated 9.12.2009 of the complainant is no consent in the eyes of law. The District Forum was wrong in relying upon the same.
14. The next question that arises for consideration, is, as to what amount the complainant was entitled to. The surveyor of the company vide final report OP 2/2 dated 31.12.2009 assessed the cost of repair of the said vehicle for Rs.2,88,158/-, which is less than 75% of the IDV of the vehicle. Thus, the claim of the complainant cannot be considered as a total loss, and he is entitled for the amount of the repair of the vehicle, as assessed by the surveyor, whose affidavit is on record and in the absence of any affidavit of any of the mechanic or engineer of Bhagat Motors, the cost of the repair for Rs.4,89,119.16 paise, estimated cannot be taken into consideration, as in the case of New India Assurance Company Ltd. Vs. Subash Kumar I(2010) CPJ 272 (NC) the Honble National Commission has already held that the Surveyors report has considerable evidential value, cannot be ignored, unless discredited by producing contrary evidence. Relying upon the said report of the surveyor, we are of the view that the complainant was entitled to get Rs.2,88,158/- plus costs and compensation. But at the same time, we find that OP No.1 was guilty, who had obtained the consent of the complainant under coercion and by misrepresentation, indulged into unfair trade practice, by not settling the claim of the complainant in a fair and transparent manner, thus, OP No.1 was deficient in rendering services. The District Forum was wrong in dismissing the complaint.
15. In view of the foregoing discussion, the appeal filed by the complainant is allowed and the impugned order is set aside being illegal and perverse, in the following manner.
1. OP No.1 i.e. Insurance Company is directed to pay Rs.1,05,150/- to the complainant (Rs.2,88,150/- - Rs.1,83,000/-) with interest @ 9% p.a. from 20.1.2010, when the cheque in the sum of Rs.1,83,000/- was issued in his favour, till realization.
2. OP No.1 is directed to pay Rs.50,000/- as compensation to the complainant for physical harassment and mental agony caused to him by it.
3. OP No.1 is directed to pay costs of litigation to the tune of Rs.15,000/-
4. OP No.1 is directed to comply with the order within 30 days, from the date of receipt of a copy of the order, failing which, it shall pay the amount of Rs.1,55,150/- with penal interest @ 12% p.a. from 21.1.2010 till realization, besides costs.
16. The complaint against Ops No.2 and 3 is dismissed with no order as to costs as no deficiency, in service or unfair trade practice is proved on their part.
17. Copies of this order be sent to the parties, free of charge.
Pronounced.
27th July, 2011. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER rb APPEAL NO. 33 OF 2011 Present: Sh.Satish Bhatti, Advocate for the appellant.
Sh.Parminder Singh, Advocate, proxy for Sh.Paul S.Saini, Advocate for respondent No.1.
Respondent No.2 already exparte.
Sh.H.S.Bedi, Advocate for respondent No.3.
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Vide our detailed order of even date recorded separately, the appeal filed by the complainant is allowed and the impugned order is set aside.
27.7.2011 (PRESIDENT) (MEMBER) Rb/-