State Consumer Disputes Redressal Commission
Kanika Gupta vs New India Assurance Company Limited on 5 December, 2019
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.645 of 2019
Date of institution : 29.08.2019
Reserved on : 20.11.2019
Date of decision : 05.12.2019
Mrs. Kanika Gupta W/o Mr. Anuj Gupta, resident of 262 A,
Aggar Nagar, Ludhiana, Punjab.
......Complainant
Versus
New India Assurance Company Limited, Jagraon Branch, Tehsil
Road, Karnail Gate Muhala, Jagraon, Punjab 142026. E-mail:-
[email protected].
....Opposite Party
Consumer Complaint under
Section 17(a)(i) of the Consumer
Protection Act, 1986.
Quorum:-
Mrs. Kiran Sibal, Presiding Member
Present:-
For the complainant : Sh. Sachin Ohri, Advocate For the opposite party : Ex-parte MRS. KIRAN SIBAL, PRESIDING MEMBER:
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986, (in short the "Act") seeking following directions to the opposite party (in short "OP"):-
(i) to pay Rs.30,50,000/- alongwith interest @18% per annum from the date of loss upto the date of payment towards the insurance claim.
(ii) to pay Rs.2,00,000/- for deficiency in service and unfair trade practice by OP.C.C. No.645 of 2019 2
(iii) to pay Rs.2,00,000/- for mental agony/harassment and Rs.2,00,000/- as litigation cost.
(iv) to direct OP to bear the cost of parking/demurrage charges of the insured vehicle during pendency of the complaint.
Facts of the Complaint:-
2. Brief facts of the complaint are that complainant erstwhile known as 'Kanika Garg' and after her marriage she adopted the sir-name of her husband i.e. 'Gupta'. The complainant is the owner of Audi A6, bearing registration number PB-10-EP-0012, which was insured by New India Assurance Company Limited, Jagraon Branch Office (Punjab) for a period from 03.02.2019 to 02.02.2020. The policy number is 36110131180100004320 Ex.C1-A and the IDV of the vehicle is Rs.30,50,000/-. On 29.05.2019, the said insured vehicle met with an unfortunate accident at Raipur and got significantly damaged. The complainant intimated the OP about the accident. She raised the claimed for indemnification of loss suffered. The accidental vehicle was shifted to the authorized service centre of Audi at Raipur and the repair estimate to the tune of Rs.31,58,663/- was raised by the authorized service centre, vide Annexure C-2. OP appointed a surveyor Mr. Gagan Chopra for investigation of the case and to assess the cost of repair of the said vehicle. Complainant provided him with all the documents and also completed all the formalities, but the claim has not been paid by OP on one pretest or another. On C.C. No.645 of 2019 3 19.06.2019, OP sent an email to complainant, wherein OP arbitrarily assessed its liability to the tune of Rs.13,50,753/- only without mentioning any reason, vide Annexure C-3, whereas the Audi authorized service centre at Raipur assessed the value of repair to the tune of Rs.31,58,663/-, which is even more than the IDV of the vehicle. On 28.06.2019, complainant through her husband sent an email to OP, vide Annexure C-4, to provide the policy wordings, surveyor report, claim number and claim registration date for the insurance claim and to settle the claim, as constructive total loss, because the repair cost of vehicle was more than 75% of the IDV. On 10.07.2019, the complainant came to know that OP's surveyor had illegally instructed the authorized service centre to dismantle the insured vehicle and to start the repair work without any intimation to her. She wrote an email dated 11.07.2019, vide Annexure C-5, to authorized service centre not to get involved in any such action on the insured vehicle. The role of surveyor is to investigate the claim, inspect the vehicle, assess the loss and submit his report, as per his findings. He is neither responsible nor entitled to take decision regarding the disposal/repair of the accidental vehicle.
On 12.07.2019, OP sent an email to her (Annexure C-6), in which it shared a word file titled 'Loss Assessment' and policy wordings of the insurance policy and the printout of the same are Annexure C-7. The file was neither signed by the surveyor nor had his stamp. Even while sending this email, OP did not C.C. No.645 of 2019 4 disclose/share copy of the surveyor report, claim number and claim registration date of the claim etc. The said sheet made the assessment of aggregate repair cost as follows:
Assessed repair amount (Metal parts) Rs.2,24,380/- Assessed repair amount (rub/plastic) Rs.22,26,964/-
Assessed amount (labour) Rs.85,986.60
Aggregate assessed repair cost Rs.25,37,330.60
After calculating the repair cost, OP arbitrarily applied 'depreciation' on various metal and rubber parts in violation of insurance policy, GR-8 of the Indian Motor Tariff and law laid down under various judgments. Several vehicle parts requiring repair/replacement and labour cost under several heads were arbitrarily left out even in this loss assessment without any basis. Surveyor's assessment suffered from number of illegalities and irregularities. On 17.07.2019, she issued legal notice, vide Annexure C-8, through her counsel demanding consideration of the case as constructive total loss, as per the insurance policy, GR-8 of the Indian Motor Tariff. She also mentioned in it that the assessment of repair cost given by the authorized service centre as well as company's surveyor is above 75% of the IDV of the insured vehicle, therefore, this is an undisputable case of constructive total loss. On 20.07.2019, she received a reply from OP, vide Annexure C-9, wherein it refused to settle the case as constructive total loss and also sent motor (final) survey report of surveyor Sh. Gagan Chopra (Annexure C-10). OP mentioned in its reply to legal notice that C.C. No.645 of 2019 5 the loss assessment by the surveyor was Rs.13,50,753/-, which is factually incorrect. The OP had concealed the actual assessed loss, as per surveyor Rs.25,37,330/- as per bifurcation submitted above. The final assessment and net liability can be assessed only after repair, re-assessment and submission of original bills. Surveyor of OP disallowed the claim for certain metal and rubber parts in his report without any logical basis. As per terms and conditions of the insurance policy, the insured vehicle shall be treated as a CTL, if the aggregate cost of retrieval and/of repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle. IDV shall be treated as the 'Market Value' throughout the policy period without any further depreciation for the purpose of total loss/constructive total loss claims. As per terms of policy, OP has to consider the IDV and cannot apply depreciation on the same, because the repair estimate given by the authorized service centre as well as company's own surveyor are both above 75% of the IDV of the insured vehicle. The provisions of Indian Motor Tariff are binding on all insurance companies and any breach of the tariff is considered as breach of the provisions of the Insurance Act, 1938. She has alleged deficiency in service and unfair trade practice on the part of OPs for not settling her insurance claim on the basis of constructive total loss, as per GR8 of Indian Motor Tariff. C.C. No.645 of 2019 6 Defence of the Opposite Parties
3. Upon notice, OP failed to appear and was proceeded against ex-parte, vide order dated 30.10.2019.
Evidence of the Parties
4. To prove her claim, the complainant filed affidavit along with documents i.e. Ex.C-1 to Ex.C-12. Contentions of the Parties
5. I have heard learned counsel for the complainant and OP is exparte in this case.
6. Learned counsel for the complainant vehemently argued that as per the policy, the IDV of insured vehicle is Rs.30,50,000/-. On 29.05.2019, the insured vehicle met with an accident at Raipur and got damaged. Intimation of the accident was given to OP and claim was lodged. The accidental vehicle was shifted to the authorized service centre of Audi at Raipur and repair estimate to the tune of Rs.31,58,663/- was raised by the authorized service centre, vide Ex.C-2. OP appointed a surveyor Mr. Gagan Chopra for investigation of the case and to assess of the cost of repair of the said vehicle. On 19.06.2019, OP sent an email to complainant assessing its liability to the tune of Rs.13,50,753/-, vide Ex.C-3. The complainant sent an email to OP, vide Ex.C-4 for providing documents/report and requested to settle the claim on the basis of constructive total C.C. No.645 of 2019 7 loss, because the repair cost of vehicle was more than 75% of the IDV of the insured vehicle. OP's surveyor had illegally instructed the authorized service centre to dismantle the insured vehicle and to start the repair work without any intimation to her. OP sent the assessment of aggregate repair cost to the tune of Rs.25,37,330.60. Ld. counsel for complainant strongly contended that OP arbitrarily applied 'depreciation' on various metal and rubber parts in violation of insurance policy, GR-8 of the Indian Motor Tariff and law laid down under various judgments. On 20.07.2019, OP refused to settle the case as constructive total loss and also sent motor (final) survey report of surveyor Gagan Chopra (Ex.C-10), which is being contested by the complainant. He further argued that as per terms of policy, OP has to consider the IDV and cannot apply depreciation on the same, because the repair estimate given by the authorized service centre as well as company's own surveyor are both above 75% of the IDV of the insured vehicle. He contended that GR-9 deals with the depreciation on part for partial loss, whereas the claim of the complainant falls under the GR-8 of Indian Motor Tariff. During arguments he further contended that OP is also liable to pay the parking/demurrage charges of the parking of the vehicle in its service centre, which is still lying in the service centre of Audi at Raipur in accidental condition. Averring on similar lines as in the complaint, Ld. counsel has prayed for allowing the complaint. C.C. No.645 of 2019 8 Consideration of Contentions
7. I have heard the counsel for the complainant, as OP is ex-parte in this complaint and have also gone through the record of the case. There is no dispute regarding accident of the insured vehicle and issuance of policy, as OP appointed the surveyor, who assessed the loss to the tune of Rs.13,50,753/-. The main grievance of the complainant is that OP has arbitrarily assessed the loss to the tune of Rs.13,50,753/- on the basis of report of surveyor Ex.C-7. In this regard, I have perused the said Ex.C-7 and find that this is a loss assessment sheet only issued by the surveyor not the report. However, the surveyor report is annexed as Ex.C-10, which is duly stamped by the said surveyor and was issued by him on his letter head. As such this plea of the complainant that the surveyor report is not genuine is not acceptable.
8. The complainant relied upon Ex.C-1/A, the insurance policy alongwith terms and conditions, wherein the IDV of the insured vehicle is mentioned as Rs.30,50,000/-. Clause 2 of the policy deals with sum insured-Insured's declared value of vehicle and relevant part is re-produced as under:-
"xxxxx IDV shall be treated as the 'Market Value' throughout the policy period without any further C.C. No.645 of 2019 9 depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CLT) claims."
To prove total loss to the vehicle in the accident, the complainant relied upon Ex.C-2, the full estimate report of the vehicle in question dated 30.05.2019 issued by Audi Raipur, G.E. Road, Tatibandh, Raipur-492099, which is the authorized service centre of Audi, wherein the total insurer liability is calculated as 31,58,663.92, which is more the IDV of the insured vehicle. Ex.C-3 is the copy of email by OP to complainant assessing the damage to the vehicle as Rs.13,50,753/- on the basis of report of surveyor. Vide email dated 20.06.2019, which is the part of Ex.C-3, complainant requested the OP to pay the constructive total loss of Rs.30,50,000/-, as per policy. Ex.C-5 is the copy of email dated 10.07.2019 to Audi Raipur, advising the service centre to dismantle the vehicle and to start the repair work without any intimation to complainant. Vide email Ex.C-6 dated 12.07.2019 to complainant, OP again assessed its net liability as Rs.13,50,753/- and on cash loss basis, the liability is assessed as Rs.7,61,593/-. As per loss assessment sent by OP to complainant, the surveyor assessed the net loss on repairing basis to the tune of Rs.31,40,303/- and surveyor settled the claim of complainant under GR.9 of Indian Motor Tariff, whereas clause 2 of the policy states that IDV shall be treated as the 'Market Value' throughout the policy period without any C.C. No.645 of 2019 10 further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CLT) claims. The complainant proved on record the constructive total loss, vide Ex.C-2, issued by authorized service centre i.e. Audi Raipur, wherein the total insurer liability was estimated as Rs.31,58,66.92, which is more than the IDV of the vehicle in question. Once the loss assessed to the vehicle is more than IDV of the vehicle by the authorized service station, which corroborates with the report of surveyor, then there is no question to deal the insurance claim of the complainant under GR.9 of Indian Motor Tariff. Moreover, the clause 2 of insurance policy Ex.C-1/A itself states that no depreciation will be applicable for the purpose of Total Loss (TL)/Constructive Total Loss (CLT) claims. The claim of the complainant is covered under GR.8 of Indian Motor Tariff, as it is a case of constructive total loss. I have seen the Motor (Final) Survey Report of the surveyor Ex.C-10, wherein he wrongly and arbitrarily assessed the insurance claim of the complainant under GR.9 of Indian Motor Tariff and therefore cannot be accepted. The complainant also relied upon legal notice dated 17.07.2019 issued to OP for settlement of claim on constructive total loss basis, but OP denied the same vide Ex.C-9 illegally just to wriggle out of its liability. The above act and conduct of the OP is a deficiency in service and unfair trade practice on its part.
C.C. No.645 of 2019 11
9. As a corollary of above discussion and perusal of evidence on the record led by complainant, which remained unrebutted, as OP is ex-parte in this case, I am of the view that complainant succeeded in proving her claim and accept the complaint of the complainant. This Commission also held in F.A. No.730 of 2012 titled as Surinder Pal Mittal Vs. Bajaj Allianz General Insurance Company Limited, decided on 28.03.2014, that respondent insurance company has also ignored the report of its own surveyor, who has estimated the cost of the new parts as Rs.22,75,900/-, but the surveyor also, instead of considering the provisions of GR-8 of India Motor Tariff, further deduced the amounts under various heads, knowing well that it was case of 'total loss'. The Telangana State Consumer Disputes Redressal Commission at Hyderabad also held in C.C. No.213 of 2015 titled as M.Thirupathi Reddy Vs. Balaj Allianz General Insurance Company Ltd." decided on 17.04.2017, that through 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 deduction, 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. By not C.C. No.645 of 2019 12 declaring the vehicle, as total loss, OP no.1 and 2 were certainly deficient, in rendering service. M.A. No.1776 of 2019
10. This application has been filed by complainant alongwith complaint for directions to OP to clear the parking/demurrage charges of the Audi Raipur Service Centre. The same prayer has been made by the complainant in the prayer clause of the complaint. There is no need to decide this application separately, accordingly this application is disposed off.
11. As a result of above discussion, the complaint is allowed with the following directions to OP :
(i) To pay insurance claim of Rs.30,50,000/-, as per GR.8 of India Motor Tariff to complainant.
(ii) to pay the parking charges to the relevant authorized service centre i.e. Audi Raipur.
(iii) to pay compensation of Rs.25,000/- for mental harassment as well as litigation expenses.
(iv) The OP is at liberty to keep the scrap of the insured vehicle in its custody and get the ownership of the vehicle transferred in its name.
12. The above amounts shall be payable by OP to complainant within 45 days from the date of receipt of certified C.C. No.645 of 2019 13 copy of the order, failing which OP shall be liable to pay interest @9% per annum from the date of filing of the complaint.
(KIRAN SIBAL) PRESIDING MEMBER December 05, 2019.
MM