State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Kamalpreet Singh on 5 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 130 of 2014 Date of Institution : 17.4.2014 Date of Decision 05.06.2014 1) The Oriental Insurance Company Limited, SCO 109-111, Sector 17-D, Chandigarh through its Manager. 2) The Oriental Insurance Company Limited, Registered & Head Office A25/27, Asif Ali Road, New Delhi 110002, through its Manager/Authorised Representative. Appellants/Opposite Parties No.1 and 2. Versus 1) Kamalpreet Singh son of Tirlochan Singh R/o VPO Khant, Tehsil Khamano, Distt. Fatehgarh Sahib, Punjab. ....Respondent/Complainant. 2) KLG Hyundai (Ashwani Automobiles Pvt. Ltd.), 181/3-B, Industrial Area, Phase I, Chandigarh through its Manager. .Respondent/Opposite Party No.3. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:Sh. G. S. Ahluwalia, Advocate for the appellants.
Sh. Sandeep Bhardwaj, Advocate for respondent No.1.
Sh. Gaurav Bhardwaj, Advocate for respondent No.2.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 21.03.2014 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), by Opposite Parties No.1 and 2 (now appellants), vide which, it allowed the complaint, filed by respondent No.1/complainant, against them (Opposite Parties) in the following manner:-
20] 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 pay Rs.2,17,000/- to the complainant, paid towards the repair of the vehicle.
ii) The OPs No.1 & 2 are also directed to pay Rs.75,000/- as compensation to the complainant for causing mental & physical harassment.
iii) OP NO.3 is directed to pay Rs.17,200/- being charged towards the repair, after repairing the vehicle and receiving entire consideration towards the repair.
iv) OP No.3 is also directed to pay Rs.10,000/- towards the value of the salvage as assessed by the surveyor.
v) All the OPs shall jointly & severally pay the litigation cost of Rs.15,000/- to the complainant.
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 they shall be liable to pay the awarded amount along with interest @9% p.a. from the date of filing this complaint i.e. 05.08.2013 till its actual payment, besides paying litigation cost as aforesaid.
2. The facts, in brief, are that the vehicle of the complainant i.e. Hyundai Verna CRDI bearing Regd. No.PB-49-A-6800 was comprehensively insured with Opposite Parties No.1 and 2, vide Annexure C-1, for the Insured Declared Value of Rs.6.50 lacs, for the period from 16.12.2011 to 15.12.2012. It was stated that on 12.8.2012, the said vehicle met with an accident as it struck against the truck and the co-passenger sitting therein (insured vehicle) succumbed to injuries. It was further stated that FIR No.165 dated 22.8.2012 was registered at Police Station Samrala, District Khanna and Opposite Parties No.1 & 2 were duly informed about the said accident, which assured for the appointment of a Surveyor, but no Surveyor was appointed, in time. It was further stated that the vehicle was got released, on supardari, by the complainant. It was further stated that the complainant took the vehicle to Opposite Party No.3, as directed by Opposite Parties No.1 and 2, as it was a case of total loss. It was further stated that Opposite Party No.3, gave an estimate of repair of Rs.6,06,430/- (Annexure C-2). It was further stated that Opposite Parties No.1 & 2 took signatures of the complainant on a number of documents, on the pretext of settling the claim, treating the vehicle, as a total loss, but later on, told that they were directing Opposite Party No.3 for repairing the same. It was further stated that the complainant was asked vide Annexure C-3 to pay Rs.15,000/- with an assurance that the same would be refunded by the Insurance Company. It was further stated that the vehicle was got repaired by Opposite Party No.3, which raised a bill, Annexure C-4, of Rs.6,32,202/-, which was almost equivalent to the IDV of the vehicle i.e. Rs.6.50 lacs.
3. It was further stated that the Opposite Parties, in connivance with each other, started the repair of the vehicle ignoring the factum that, in case, the repair cost exceeded 75% of the IDV, then it (vehicle) was to be treated as a total loss. Still they repaired the vehicle for Rs.6,32,202/- and also charged more amount towards the turbo of the same. It was further stated that the complainant raised a protest but he was told that the vehicle could not be released without paying the amount towards the repairs. It was further stated that Opposite Parties No.1 & 2 informed that they would pay the repair amount and the complainant would receive a call from Opposite Party No.3, about the delivery of the vehicle. It was further stated that the complainant received a call from Opposite Party No.3 that an amount of Rs.4.00 lacs had been received by it, from the Insurance Company and he had to pay the balance amount as well as parking charges. It was further stated that the complainant requested Opposite Parties No.1 & 2, to provide Surveyors Report, claim forms, statements and detailed terms & conditions. He also sought these documents under the Right to Information Act, 2005 but nothing was done. It was further stated that the complainant waited for the response of Opposite Parties No.1 & 2 and, in the mean time, Opposite Party No.3 started replacing the new parts of the vehicle with old one. It was further stated that left with no alternative, the complainant paid Rs.2,17,000/- to Opposite Party No.3 and took delivery of the car on 14.6.2013 (Annexure C-7) under protest. It was further stated that the Opposite Parties insisted the complainant to adjust the amount of salvage in the amount, to be paid by him, but the complainant insisted to handover to him the salvage of the vehicle in order to verify the parts repaired or replaced by Opposite Party No.3.
4. It was further stated that the Opposite Parties failed to handover the salvage to the complainant. It was further stated that on 14.6.2013 itself, the vehicle did not start and emitted black smoke. It was further stated that the Opposite Parties told that there was problem in the turbo of the vehicle, which needed replacement. It was further stated that, ultimately, the complainant paid Rs.15,000/- towards the turbo and Rs.2200/- for change of engine oil (Annexures C-8 to C-10). It was further stated that the Opposite Parties, in connivance with each other, not only violated the provisions of the relevant Tariff Regulations but also indulged in to unfair trade practice by repairing the vehicle, which was a total loss. It was further stated that the vehicle was still giving problems and there was vibration in whole of the car and, as such, the complainant was not using the same for long journey under the threat of accident. It was further stated that since it was a case of total loss of the vehicle, as such, the complainant was not required to pay any charges towards the repair and, moreover, the repair was not to be carried out, in such cases. It was further stated that the Opposite Parties did not hand over the salvage till date.
5. It was further stated that the aforesaid act 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, seeking directions to the Opposite Parties to take back the vehicle and pay IDV of Rs.6,50,000/- alongwith interest @18% per annum from the date of accident or pay Rs.2,32,000/- spent on repair alongwith interest @18% per annum; Rs.17,200/- as subsequent repair chargers; handover the complete salvage as per bills and Surveyors Report; pay Rs.1,50,000/- as compensation for mental agony and physical harassment and Rs.51,000/- as litigation expenses.
6. Opposite Parties No.1 and 2, in their written version, admitted the factum of insurance of the vehicle and its having been damaged in an accident during the currency of the Policy. It was stated that the accident occurred on 22.8.2012 and Sh. Manoj Kukreja was deputed as Spot Surveyor, who surveyed the vehicle on the same day i.e. 22.8.2012 (Annexure R-2). It was further stated that, thereafter, Sh. Rajesh Wadhawan was deputed on 17.9.2012 as Surveyor to assess the loss, who visited the workshop on 17.9.2012 itself (Annexure R-3). It was denied that the vehicle was totally damaged. It was further stated that the vehicle could be considered as a total loss only when the liability of the insured, on repair basis, exceeded 75% of the IDV of the same, whereas, in the present case, the IDV of the vehicle was Rs.6.50 lacs and the liability of the answering Opposite Parties, on repair basis, was Rs.4,08,957/-, which was only 62.91% and, thus, it (vehicle) was not a total loss. It was further stated that the vehicle was repairable and the same could not be considered as a total loss. It was further stated that, in the Survey report dated 4.3.2013, the Surveyor took into account each item of 124 parts of the estimate given by the complainant, besides labour and allowed the items related to the cause of accident and reasonable cost of labour. It was further stated that the vehicle was of 2009 model and the applicable depreciation, as per survey report, came to be Rs.1,66,224.24 and many items worth Rs.49,372/-, , which were part of the estimate but were found intact, were not allowed. It was further stated that the Surveyor assessed the labour charges as Rs.37,584.42, which related to the present accident, though the total estimate was for Rs.53,932.80. It was further stated that, as such, the assessment of loss by the Surveyor on repair basis came to be Rs.4,08,957/-, which was only 62.91% and, thus, the vehicle was not a total loss. It was further stated that Opposite Parties No.1 and 2 released an amount of Rs.3,98,957/- being full and final settlement of the claim after obtaining satisfaction/discharge slip signed by the complainant (Annexure R-4). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties No.1 and 2, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
7. Opposite Party No.3, in its written version, stated that the repair was started as per instructions of the complainant as well as Opposite Parties No.1 and 2 (Insurance Company). It was further stated that Opposite Party No.3 repaired the vehicle to the entire satisfaction of the complainant. It was further stated that the repair bill was raised and Opposite Parties No.1 and 2, paid its share and rest of the share was to be paid by the complainant. It was further stated that Opposite Party No.3 received only Rs.3,98,957/- from the Insurance Company, and rest of the amount was to be paid by the complainant, which he paid only on 14.6.2013 and took delivery of the car. It was further stated that the vehicle was lying repaired since 27.2.2013 and the complainant took the delivery of the same only on 22.6.2013 i.e. after four months of repair. It was further stated that Opposite Party No.3, was ready to give salvage to the complainant, but he refused to accept it on the ground that it was useless for him and also refused to pay the parking charges and gave an oral consent for adjustment of salvage towards parking charges, though the parking charges were on much higher side, but it waived off the rest of the amount as a goodwill gesture. It was further stated that the complainant did not annex any expert report to the effect that the vehicle was giving any problem or any record with regard to rectification of any defect, at any of the service centres. It was further stated that the repair was done to the entire satisfaction of the complainant, who took its delivery after taking its test drive. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
8. The Parties led evidence, in support of their case.
9. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Parties No.1 and 2.
11. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
12. The Counsel for the appellants/Opposite Parties No.1 and 2 submitted that it was not a case of total loss. It was further submitted that respondent No.1/complainant took delivery of the vehicle, in question, after repairs on 14.6.2013. It was further submitted that as per the Surveyor report, the loss assessed was Rs.4,08,957/-, which was 62.91% of the IDV of the vehicle i.e. Rs.6,50,000/-. It was further submitted that when the loss assessed was less than 75% of the IDV, the same could not be said to be a total loss. It was further submitted that the vehicle being of 2009 model, the applicable depreciation, as per the Surveyor report dated 4.3.2013, came to be Rs.1,66,224.24Ps. It was further submitted that respondent No.1/complainant submitted duly signed satisfaction note (Annexure R-4) at the time of receipt of payment.
13. The Counsel for respondent No.1/complainant submitted that the accident took place on 12.8.2012 during the subsistence of the Policy. It was further submitted that the IDV of the vehicle was Rs.6,50,000/- and the expenditure on repairs was Rs.6,32,202/-. It was further submitted that as per GR-8 Insureds Declared Value (IDV), the vehicle will be considered to be constructive total loss, where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the Policy exceeds 75% of the IDV.
14. The factum that the vehicle, in question, was got insured by respondent No.1/complainant for the IDV of Rs.6,50,000/- from the appellants/Opposite Parties No.1 and 2, on payment of premium, to the tune of Rs.13,119/- and the Policy was valid for the period from 16.12.2011 to 15.12.2012, was admitted by the parties. The factum of the accident of the said vehicle on 12.8.2012 was also admitted. The actual repair cost was to the tune of Rs.6,32,202. A sum of Rs.15,000/- and Rs.2,200/-, just after 08 days of taking delivery of the vehicle was paid by respondent No.1/complainant to Opposite Party No.3.
15. It is evident, from the record, that the vehicle was completely repaired by Opposite Party No.3 on 27.2.2013 for Rs.6,32,202/-, before preparation of the Surveyor report dated 4.3.2013. Against the claim/estimate of Rs.5,99,611.50Ps + Rs.53,932/- and actual repair cost of Rs.6,32,202/-, the Surveyor assessed the loss to the tune of Rs.4,08,957.07Ps. The total cost of the repair was, thus, clearly much beyond 75% of the IDV and, therefore, it was a case of total loss. The Surveyor, in his report, stated that the damaged components would be the property of the Insurer, which they may collect from the Insured/Repairer, before making final payment or deduct the value of the same in lieu thereof. The Surveyor assessed the salvage value as Rs.10,000/-. The relevant portion, contained in Clause (3) of Section I relating to LOSS OF OR DAMAGE TO THE VEHICLE INSURED of the Insurance Policy, is extracted hereunder:-
The insured vehicle shall be treated as CTL (Constructive Total Loss) if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle.
Clearly, the actual expenditure, on repair of the vehicle, was Rs.6,32,202/-.
16. In the schedule of depreciation for fixing IDV of the vehicle, there is stipulation to the following effect:-
IDV shall 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.
Thus, the Surveyor, while assessing the loss, wrongly applied depreciation/cut on rubber, plastic and metal parts without giving any explanation or else justification for the same. The District Forum, in Para 11 of the impugned order, rightly observed that the Surveyor assessed the loss, in an arbitrary manner, without mentioning the reasons, in detail, for differing from the estimated/actual repair cost. Even no affidavit of the Surveyor, in support of the contents of his Report, was filed by the appellants/Opposite Parties No.1 and 2. The Surveyor report is, thus, partially incorrect.
17. There is force in the argument of respondent No.1/complainant that satisfaction/discharge voucher in the sum of Rs.3,98,957/- (Annexure R-4) was signed by the complainant, as they (Opposite Parties) were in a dominating position whereas the complainant was in a disadvantageous position. The District Forum rightly held that since the Satisfaction/Discharge Slip (Annexure R-4) did not bear any date, on which, the same was executed and the place, where it was executed, the appellants/Opposite Parties No.1 and 2 got the said document signed from the complainant much before repairing the vehicle as also in order to escape their liability to settle the claim on total loss basis. The District Forum, therefore, rightly held that mere receipt of a part payment, in such circumstances, would not disentitle respondent No.1/complainant to claim the remaining amount, from the appellants/Opposite Parties No.1 and 2.
18. It was argued by the Counsel for respondent No.1/complainant that, in accordance with the terms and conditions of the Policy, as also GR-8, extracted below, it was a case of total loss of the vehicle.
GR.8. Insureds Declared Value (IDV) xxxxxxxx The Insureds Declared Value (IDV) of the vehicle will be deemed to be the SUM INSURED for the purpose of this tariff and it will be fixed at the commencement of each policy period for each insured vehicle.
xxxxxxxx The schedule of age-wise depreciation as shown below is applicable for the purpose of Total Loss/Constructive Total Loss (TL/CTL) claims only. A vehicle will be considered to be a CTL, where the aggregate cost of retrieval and/or repair of the vehicle subject to terms and conditions of the policy exceeds 75% of the IDV.
19. No doubt, the District Forum granted relief to respondent No.1/complainant, which is more or less equivalent to IDV of the vehicle, yet in view of the position aforesaid, it did err in holding that it was not a case of total loss. By granting relief to respondent No.1/complainant of Rs.2,17,000/-, being the balance amount of actual repair of Rs.6,32,202.00 minus loss assessed by the surveyor, the District Forum overlooked the fact that repair cost of Rs.6,32,202/- was clearly beyond 75% of the IDV and, thus, the instant case fell within the ambit of total loss of the vehicle. In other words, the District Forum also allowed the claim more or less equivalent to the total IDV of the vehicle, in question, and, at the same time, allowed respondent No.1/complainant to retain and use the vehicle. Thus, the order of the District Forum, needs to be modified, as indicated above.
20. When it was a case of total loss, the vehicle became the property of the appellants/Opposite Parties No.1 and 2. Respondent No.1/complainant took delivery of the vehicle in June 2013, and the same is, thus, in his possession for about a year and he has been using the same. Thus, in our considered opinion, the District Forum erroneously awarded compensation in the sum of Rs.75,000/- to respondent No.1/complainant. In the facts and circumstances, discussed in the preceding paras, there was no justification for the grant of compensation.
21. No other point, was urged, by the Counsel for the parties.
22. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties No.1 and 2, is partly accepted, with no orders as to costs. The impugned order, passed by the District Forum, is modified, to the extent, indicated hereunder;
(i) The appellants/Opposite Parties No.1 and 2 are directed to pay an amount of Rs.2,17,000/-, as awarded by the District Forum, being the balance amount of cost of repair, to respondent No.1/complainant, within a period of one month from the date of receipt of the certified copy of the order;
(ii) Opposite Party No.3/Respondent No.3 shall pay Rs.17,200/- to respondent No.1/complainant, charged towards the repair of the vehicle, as directed by the District Forum; within a period of one month from the date of receipt of the certified copy of the order;
(iii) Respondent No.1/complainant shall subrogate/deliver the vehicle, in question and execute the relevant documents/handover the same, in favour of the appellants/Opposite Parties No.1 and 2 so as to vest ownership of the same, in them, on receipt of the amount mentioned in Clause (i) above;
(iv) The Opposite Parties shall jointly and severally pay an amount of Rs.15,000/- as litigation cost to respondent No.1/complainant within a period of one month from the date of receipt of certified copy of the order, as awarded by the District Forum;
(v) All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
(vi) This order shall be complied with, by the Oppostie Parties, within the stipulated period, failing which, appellants (Opposite Parties No.1 and 2) shall be liable to pay the amount, mentioned in Clause (i), above, alongwith interest @9% p.a. from the date of default, till the date of actual payment to respondent No.1/complainant, whereas Opposite Party No.3/Respondent No.2 shall pay the amount fo Rs.17,200/- as mentioned in Clause (ii) above, within the time stipulated failing which it shall carry interest @9% per annum from the date of default till actual payment; besides paying the litigation costs, as aforesaid.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
June 05, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad