State Consumer Disputes Redressal Commission
1. New India Assurance Company Ltd vs Gian Chand Garg on 28 March, 2014
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.440 of 2010
Date of institution:18.03.2010
Date of Decision :28.03.2014
1. New India Assurance Company Ltd. Regional Office, SCO No.36-
37, Sector 17-A, Chandigarh through its Assistant Manager
(Legal).
2. The New India Assurance Company Limited, New India
Assurance Building, 87-M.G. Road, Fort Mumbai- 400 001
through its Chairman cum Chief Managing Director.
3. The Chairman cum Chief Managing Director, The New India
Assurance Company Limited, Maruti Insurance Servicing DO
312600, 2nd Floor, Jeevan Deep Building No.8, Parliament Street,
New Delhi - 110 001.
4. The Regional Manager, The New India Assurance Company
Limited, Regional Office, 4th Floor, Surya Tower, 108, The Mall,
Ludhiana - 141001.
5. The Divisional Manager, The New India Assurance Company
Limited, Divisional Office, G.T.Road, Khanna - 141 401.
........Appellants.
Versus
Gian Chand Garg son of Shri Tarlok Chand Garg, C/o M/s Bajrang Bali
Trading Co. Battan Lal Road, Mandi Gobindgarh-147203, Tehsil Amloh,
District Fatehgarh Sahib.
.........Respondent.
First Appeal against the order dated
09.02.2010 of the District Consumer
Disputes Redressal Forum, Fatehgarh
Sahib.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member
Shri Jasbir Singh Gill, Member.
Present:-
For the appellants : Sh.B.S.Taunque, Advocate For the respondent : Sh.Varun Baanth, Advocate First Appeal No.440 of 2010 2 J.S. GILL, MEMBER This is an appeal filed by the appellants/OPs (hereinafter called 'the appellants') under Section 15 of the Consumer Protection Act against the order dated 09.02.2010 of the District Consumer Disputes Redressal Forum, Fatehgarh Sahib (hereinafter called the 'District Forum') vide which the complaint of the respondent/complainant (hereinafter called as 'respondent') was allowed by the District Forum.
2. Brief facts of the case are that the vehicle of the respondent was fully insured with the insurance company vide certificate cum policy No.40120063 dated 12.11.2007 which was covered upto 11.11.2008. He further pleaded that on 28.10.2008 at about 7.55 a.m. the said car met with an accident as a result of which the vehicle of the respondent was totally damaged. The intimation of the said accident was given to the appellants. Respondent brought the said vehicle to the authorized distributor of Maruti at Mandi Gobindgarh named as "STAN WHEELS Private Limited" and they deputed their company engineer to assess the loss occurred to the said vehicle was for Rs.4,08,500/- which was duly admitted by the said surveyor of the appellants and he also signed the claim information form admitting the loss occurred to the vehicle. He further pleaded that later on Engineer of Maruti Showroom at Mandi Gobindgarh also told the respondent that body shell of the vehicle is not repairable because it has totally been damaged and body shell is required to be replaced due to this reason they refused to repair the said body shell which have been totally damaged in the above said accident. The estimate loss is more than 75% of the IDV of the vehicle and as such it is also case of total loss. The appellants have failed to settle and to pass the said insurance First Appeal No.440 of 2010 3 claim. There is deficiency in service on the part of the appellants and they also adopted an unfair trade practice. Hence, the respondent filed the complaint with the prayer that the appellants may be directed to pay the insurance claim of the said insured car/vehicle as total loss claim alongwith interest @ 18% per annum from the date of insurance claim till final realization and appellants be further directed to pay a sum of Rs.1.00 Lac as compensation.
3. Upon notice, the appellants filed their written version taking preliminary objections that the present complaint is not maintainable as the respondent himself is delaying the repair of the vehicle. The dispute between the parties have since been decided by the Court of Omandusman by it order dt.15.2.2009 and present complaint is not maintainable and is liable to be dismissed. On merits, it was admitted that the vehicle was insured with the appellants for the period of 12.11.2007 to 11.11.2008 in the name of the respondent for a sum of Rs.2,80,000/- and denied all other allegations.
4. Parties led evidence in support of their respective contentions by way of affidavits and documents.
5. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum allowed the complaint and directed the insurance company to give 50% of the garage charges till the claim is given. The claim should be assessed and given within one month from the date of receipt of copy of order.
6. Aggrieved by the impugned order dated 09.02.2010, the appellants have come up in appeal.
7. The appeal was filed by the appellants on the grounds that as per report of the surveyor and expert opinion of the engineer of First Appeal No.440 of 2010 4 Maruti Dealer Gulzar Motors, the damage to the vehicle of the respondent was repairable and did not require replacement of body shell and this issue regarding repair of the vehicle was settled by the learned Ombudsman on the basis of the pleading of the parties. Once, the issue was settled the respondent was not entitled to any further relief from the Consumer Forum.
8. It is not disputed that respondent filed the complaint before the Insurance Ombudsman. In our view the purpose of appointing Ombudsman is to have control over mis-use of the power by the statutory body and to see that the disputes are settled. Further Ombudsman is not discharging judicial or quasi-judicial functions. The Ombudsman shall Act as a consumer mediator in matter which are in terms of reference, and if requested to do so in writing by mutual agreement by the insured person and the insurance company. In case the award is not accepted by the respondent then the insurance company cannot implement the said award. In this view, it is held that the decision of the Ombudsman is not binding on the respondent as per the grounds taken by the appellant in this appeal. In case "Kamleshwari Parshad V/s National Insurance Company", I(2005) CPJ 107 (NC), it was observed by the Hon'ble National Commission that the award of Ombudsman is not binding on the complainant. In para 10, it was observed as follows :-
"In case, if the award is not accepted by the complainant, then the Insurance Company may not implement the said award."
9. The second pertinent question in this appeal is the report of the surveyor. We have perused the surveyor report Ex.R-5, it reveals that at serial number No.1 of the assessment the Panel Assembly Body First Appeal No.440 of 2010 5 Shell which has been claimed by the respondent has not been allowed. Further all the items shown at serial No.2-57 have been allowed except the items which are not damaged such as item serial no.6, 24, 26. Similarly, body shell replacement charges of Rs.18,000/- have not been accepted and instead Rs.10,000/- have been allowed on account of repair charges of the body shell. In this way, a total of Rs.1,57,651.81 have been assessed by the surveyor. The difference between the estimate of the stand wheel workshop and the assessment of the surveyor is primarily on account of the body shell costing Rs.1,78,650/-, replacement charges of body shell to the tune of Rs.18,000/- and on account of VAT to the tune of approximately Rs.25,000/-. Besides depreciation amount of Rs.28, 864/- has also been reduced from the total assessment as per Ex.R-5.
10. On the other hand, counsel for the respondent has argued that the depreciation was made and it seems that at the time of insurance, the insurance company calculated the IDV as Rs.2,80,000/-. We have gone through the statement of Karam Singh Ex.C-16 where they have submitted their report with the affidavit that the vehicle is totally damaged, "as the body of the car is totally damage" and it is not repairable. If the body shell can be repaired then it will be lost of life and property. Same is stated in Ex.C-4 letter of STAN WHEELS Pvt. Ltd. that as the body shell is not available, the vehicle can be repaired"
but as the apron, floor of the car, side panel, etc. will have to be fitted, parts, pillars will have also be fitted in parts. This will not cover the safety measures and norms. Manager Service Maruti Suzuki has also stated in Ex.CW-1 that the repair of the vehicle is not possible as the vehicle needs cutting and welding for many parts as front Hood Apron Right Hood, Bender Front Cross member. Panel Coll Top upper lower. First Appeal No.440 of 2010 6 Panel side body right hand roof and front floor etc. As per the schedule and conditions it comes under the total loss. This version was not rebutted by the surveyor that after repairing the vehicle, it will not be safe for driving.
11. From the above discussions, it is clear that the car was damaged to the extent that it is covered under the total loss and could not be repaired. The order of the District Forum to this extent is legal and valid but the order of the District Forum that the appellant insurance company shall pay the garage charges 50:50 basis is not tenable because as per the contract of insurance, there is no such clause that the appellant insurance company is liable to pay garage charges to the extent of 50%. Therefore, this part of the order of the District Forum is set-aside and it is made clear that the appellants-insurance company are not liable to pay any garage charges. With this modification, the appeal is disposed of.
12. The appellant has deposited a sum of Rs.25,000/- with this Commission at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent by way of crossed cheque/demand draft after the expiry of 45 days.
13. The arguments in this appeal were heard on 27.03.2014 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Judicial Member
March 28, 2014. (Jasbir Singh Gill)
Lb/- Member