State Consumer Disputes Redressal Commission
B.M. Bharti Axa General Insurance ... vs Abhay Kumar on 15 October, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/15/365
Instituted on : 16.07.2015
Branch Manager,
Bharti AXA General Insurance Company Limited,
1st Floor, Chawla Complex, Devendra Nagar Road,
Raipur (C.G.) ... Appellant
Vs.
Abhay Kumar, Age about 45 years,
S/o Late Madhukarnarayan Bartalwar,
R/o : Quarter No.6, A, Street - 24, Sector 7,
Bhilai Nagar, District Durg (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Manoj Prasad, for appellant.
Shri Ashok Kumar Sharma, for respondent.
ORDER
Dated : 15/10/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 28.05.2015, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum" for short), in Complaint Case No.184/2013. By the impugned order, learned District Forum, has partly allowed the complaint of the respondent (complainant) and directed the appellant (O.P.) to pay within a period of one month from the date of order a sum of Rs.5,28,150/-, along with interest @ 6% p.a. from institution of the // 2 // complaint i.e. 29.04.2013 till realisation. The appellant (O.P.) has further been directed to pay a sum of Rs.10,000/- towards compensation for mental agony and Rs.3,000/- towards Advocate fee and cost of litigation to the respondent (complainant).
2. Briefly stated, the facts of the complaint are that the respondent (complainant) is proprietor of M/s Maruti Construction. He purchased a car Ford Figo bearing registration No.C.G.07-M.B.-3645, chassis No.MAJIXXMRJICB38403 and engine No.CB38403 from dealer of the said car M/s Vansh Ford. The said vehicle was new one and its price was Rs.5,56,000/- approx. The said vehicle was financed by Bank of India, Branch Bhilai and the said vehicle was insured with the appellant (O.P.) under policy No.FPV/SO427253/C1/02/K1C112 for the period from 02.02.2012 to 01.02.2013. The said vehicle was insured by the appellant (O.P.) for comprehensive risk and premium was paid. On 21.10.2012, the vehicle bearing registration No.C.G.07-M.B. was being driven by the respondent (complainant) and he was going to Anooppur from Bhilai, when he reached to turning of Bilaspur road, near Village Kewachi, Police Station, Gorela, the vehicle in question turtled at about 6.00 A.M, due to which the vehicle was completely damaged. The vehicle was brought to M/s Maruti Auto Centre, Power House, Bhilai, District Durg (C.G.) for repairing and the respondent (complainant) gave intimation regarding the accident to the appellant (O.P.) and submitted claim form before the // 3 // appellant (O.P.) the claim No. was FO166163. The Surveyor conducted Survey and it was informed by him that the vehicle was completely damaged., but even then the appellant (O.P.) did not pay the insured amount Rs.5,28,150/- till date to the respondent (complainant). Shri Ashok Kumar Sharma, Advocate sent registered notice to the appellant (O.P.). The appellant (O.P.) malafidely sent two letters dated 10.04.2013 and
28..02.2013 through its Surveyor Shri Gagan Chopra, information regarding which came to his knowledge on 12.04.2013 and the reply was sent by the respondent (complainant) through his Advocate on 22.04.2013 and by this reply it was requested to the appellant (O.P.) that new vehicle was completely damaged, therefore, the appellant (O.P.) should take possession of the above vehicle and it should pay the insured amount to the respondent (complainant), but the appellant (O.P.) did not take the possession of the vehicle and also did not pay the insured amount to the respondent (complainant), and the appellant (O.P.) committed deficiency in service. Due to want of vehicle, the respondent (complainant) was to go to his work by hiring a taxi and for this purpose he is paying a sum of Rs.20,000/- per month and he is also suffering from mental agony. Therefore, the respondent (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The appellant (O.P.) filed its written statement and denied the allegations made by the respondent (complainant) against it in the // 4 // complaint. The appellant (O.P.) averred that the respondent (complainant) purchased the insured vehicle for the commercial purpose, therefore, he cannot pray to the District Forum for any relief. The respondent (complainant) has not come to the District Forum with clean hand, therefore, the complaint is liable to be dismissed with cost. The vehicle of the respondent (complainant) was not completely damaged. The respondent (complainant) himself has to prove that he gave intimation regarding the accident to the appellant (O.P.). The Surveyor did not tell that the vehicle was completely damaged. The respondent (complainant) did not dismantle the vehicle in question, therefore, final survey could not be conducted. The Surveyor Shri Gagan Chopra vide his letter dated 28.02.2013 informed the respondent (complainant) that the claim form submitted by the respondent (complainant) has not been signed and the respondent (complainant) was instructed to start repairing work of the vehicle and the same be informed to the Surveyor so that assessment of the loss can be made and his claim can be settled, but the respondent (complainant) did not give reply of above letter and he has not complied the instruction given by the Surveyor. On 10.04.2013 again a letter has been sent to the respondent (complainant) and requested to dismantle the vehicle and to get the vehicle repaired, and to submit the bill before the appellant (O.P.). In this letter, it has been written than id within 10 days repairing work of the vehicle is not started by dismantling the vehicle, then it will be presumed that the respondent (complainant) is not interested // 5 // towards his claim and his claim will be closed and if the respondent (complainant) fails to dismantle the vehicle then on the basis of visible damages, the assessment of loss to the vehicle shall be done. The respondent (complainant) did not give any response the above request. The assessment of loss to the vehicle in question was made by the Surveyor, which was less than Rs.1,50,000/- and the same does not come in the category of total loss. The respondent (complainant) did not get the vehicle repaired as per the assessment of damages made by the Surveyor and did not inform the appellant (O.P.), therefore, the payment of the compensation could not be made. The respondent (complainant) obtained estimate by using his influence, and obtained estimate for the parts which can be repaired, therefore, the amount mentioned in the estimate is not payable. The respondent (complainant) did not incur a sum of Rs.20,000/- on hiring private taxi. The respondent (complainant) has not submitted claim form on 25.10.2012. Actually , on 28.02.2013 when the Surveyor requested by writing letter o fill up the claim form and to sign the same then in the month of March, 2013 the claim form was filled up, but the respondent (complainant) himself did not dismantle the vehicle in question, therefore, the delay was occurred. For the mistake committed by the respondent (complainant), the respondent (complainant) is not entitled for getting any compensation from the appellant (O.P.). The vehicle in question did not suffer total loss. As per the Surveyor's Report if the loss to the insured vehicle is more than 75%, then it is presumed that // 6 // the vehicle comes in the category of total loss. The case of the respondent (complainant) is not of total loss, therefore, the respondent (complainant) is not entitled to get compensation, as mentioned in the complaint. From the very beginning, with a malafide intention the respondent (complainant) submitted unsigned claim form which was corrected by him after 6 months and after giving written intimation by the Surveyor, the respondent (complainant) refused to dismantle the vehicle and on the basis of estimate only, the claim amount in respect of the vehicle is being demanded by him. The vehicle in question was purchased by the respondent (complainant) for commercial purpose, therefore, he cannot seek relief from the District Forum. The respondent (complainant) has not come with clean hand before the District Forum, therefore, the complaint is liable to be dismissed with cost. The loss to the vehicle in question is near about 25% of the Insured Declared Value which does not come in the category of total loss, therefore, as demanded by the respondent (complainant) that after receiving salvage of the vehicle, the appellant (O.P) will pay the amount, is not possible because the vehicle of the respondent (complainant) was not fully damaged. On the basis of estimate only, the respondent (complainant) is telling that vehicle suffered total loss. The complaint is liable to be dismissed.
4. Earlier, the District Forum, vide order dated 28.12.2013 dismissed the complaint. The respondent (complainant) filed Appeal No.FA/14/16 // 7 // before this Commission against the above order. This Commission vide order dated 16.09.2014 has allowed and remitted back the case to the District Forum for fresh consideration. The relevant para of the said order runs thus:- "
"10- gkykafd vihykFkhZ@ifjoknh mDr nLrkostksa dks ftyk Qksje ds le{k izLrqr dj ldrk Fkk ijUrq tks lkabZjke QksMZ dk LVsVesaV izkIr fd;k x;k gS og fnukad&28-07-2014 dk gS vFkkZr~ ftyk Qksje n~okjk ikfjr vkns'k fnukad&28-12- 2013 ds Ik'pkr~ mDr nLrkost vihykFkhZ@ifjoknh n~okjk izkIr fd;k x;k gSA mRrjoknh@vukosnd us ;g vk{ksfir fd;k gS fd vihykFkhZ@ifjoknh n~okjk ek:fr vkWVks lsaVj dk LVhesV izLrqr fd;k gS tcfd okgu esllZ oa'k QksMZ ls dz; fd;k x;k Fkk vkSj oa'k QksMZ dk dksbZ LVhesV izLrqr ugha fd;k x;k gS vkSj blh rkjrE; esa vihykFkhZ@ ifjoknh n~okjk QksMZ daiuh dk LVhesV izLrqr djuk pkgk tk jgk gSA 11- vihykFkhZ@ifjoknh n~okjk tks nLrkost izLrqr fd;k x;k gS og izdj.k ds mfpr U;k; fujkdj.k ds fy, vko';d nLrkost gS vkSj mls lk{; esa fy;k tkuk vko';d izrhr gksrk gS ijUrq mlds [k.Mu ds fy, mRrjoknh@vukosnd dks Hkh volj fn;k tkuk mfpr gksxk vkSj bu ifjfLFkfr;ksa dks ns[krs gq, izdj.k iqu% xq.k&nks"k ij fopkj gsrq ftyk Qksje dks izfrizsf"kr fd;k tkuk vko';d gks tkrk gSA 12- vr% vihykFkhZ@ifjoknh dh vihy Lohdkj fd;k tkrk gSA ftyk Qksje n~okjk ikfjr vkyksP; vkns'k fnukad&28-12-2013 fujLr fd;k tkrk gS vkSj izdj.k ftyk Qksje dks bl funsZ'k ds lkFk okil fd;k tkrk gS fd vihykFkhZ@ifjoknh n~okjk izLrqr nLrkostksa dks vfrfjDr lk{; ds :Ik esa xzg.k djrs gq, vkSj mRrjoknh@vukosnd dks Hkh [k.Mu esa nLrkost] lk{; izLrqr djus dk volj nsus ds Ik'pkr~ mHk;i{k dks lquus ds Ik'pkr~ izdj.k dk xq.k&nks"k ij iqu% fujkdj.k djsaxsA vihykFkhZ@ifjoknh dh vksj ls tks vkns'k&41 fu;e&27 lh- ih- lh- ds varxZr vkosnu izLrqr fd;k x;k gS] mlds lkFk lkFk tks nLrkost izLrqr gqvk gS ml nLrkost dks Hkh ftyk Qksje ds le{k ewy vfHkys[k ds lkFk Hkstk tkosA 13- mHk;i{k dks funsZf'kr fd;k tkrk gS fd os izdj.k ds fujkdj.k esa fdlh izdkj dk foyac dkfjr ugha djsaxs vkSj gj laHko izdj.k dk 'kh?kz fujkdj.k djkus dk iz;kl djsaxsA i{kdkjksa dks funsZf'kr fd;k x;k fd os fnukad&07@10@2014 dks ftyk Qksje] jk;iqj ds le{k mifLFkr jgsaxsA ftyk Qksje dk ewy vfHkys[k vfoyac ftyk Qksje] jk;iqj dks okil Hkstk tkosA"
// 8 //
-
5. After remand of the case, the learned District Forum after having considered the material placed before it by the parties, partly allowed the complaint and directed the appellant (O.P.) to pay compensation to the respondent (complainant) as mentioned in para 1 of this judgment.
6. The respondent (complainant) has filed documents. Annexure A- 01 is Income Tax Return Acknowledgement, Annexure A-02 is driving licence of the respondent (complainant), Annexure A-03 is R.C. Book of vehicle, Annexure A-04 is Insurance Policy, Annexure A-5 is First Information Report, Annexure A-6 is Supurdnama of the vehicle, AnnexureA- 07 is estimate of Maruti Auto Center, Bhilai (C.G.), Annexure 8 is registered notice date 05.04.2013 sent by Shri Ashok Kumar Sharma, Advocate to the appellant (O.P.), Annexure 9 is postal receipt, Annexure A-10 is letter dated10.04.2013 sent by Shri Gagan Chopra, to M/s Maruti Construction and envelope, Annexure A-11 is letter dated 28.02.2013 sent by Shri Gagan Chopra, Surveyor to M/s Maruti Construction and envelope, Annexure A-12 is detail given by Madhur Courier in respect of delivery of letter, Annexure A-13 is reply dated 22.04.2013 sent by Shri Ashok Kumar Sharma to Shri Gagan Chopra, Surveyor in response to his letter dated 10.04.2013 and 28.02.2013, Annexure A-14 is postal receipts, Annexure A-15 and Annexure A-16 are acknowledgements, Annexure A- 17 is Statement of Account from 02.02.2012 to 31.08.2018 of M/s Maruti Construction in respect of account No.930560510000058, Annexure P-18 is // 9 // Estimation Details issued by M/s Sairam Ford, Bhilai -3, District Durg, Annexure P-19 is Estimation detail issued by Sairam Ford, Annexure P-20 is letter dated 19.02.2014 sent by Bharti AXA General Insurance Company Limited to M/s Maruti Constructions, Annexure P-21 is email sent by the respondent (complainant) to Bharti AXA General Insurance Company Limited.
7. The appellant (O.P.) has also filed documents. The documents are Motor (Final) Survey Report dated 31.08.2013 of Shri Gagan Chopra, Surveyor & Loss Assessor, Motor Insurance - Claim Form, Motor Claim Notification, letter dated 10.04.2013 sent by Shri Gagan Chopra, Surveyor & Loss Assessor to M/s Maruti Construction, Bhilai.
8. Shri Manoj Prasad, learned counsel appearing for the appellant (O.P.) has argued that the finding recorded by the District Forum, is erroneous. Earlier the District Forum, has dismissed the complaint of the respondent (complainant) vide order dated 28.12.2013 and District Forum observed that the claim of the respondent is not falling within the scope of "Total Loss Claim", as Surveyor has already assessed loss to the tune of Rs.1,56,181/- on repairing basis and the estimate for repairing filed by the respondent (complainant) was prepared by Maruti Auto Centre and not by the manufacturing company or dealer of the insured vehicle, therefore, the estimate filed by the respondent (complainant) is not reliable. The respondent (complainant) has not been able to prove that the vehicle in // 10 // question suffered total loss, therefore, the respondent (complainant) is not entitled to get compensation on total loss basis and the claim of the respondent (complainant) did not come within the scope of "Total Loss Claim". The Surveyor sent letters to the respondent (complainant) directing to dismantle the vehicle in question, but the respondent (complainant) did not dismantle the vehicle in question. It appears that the respondent (complainant) wants to extract more amount from the appellant (O.P.), therefore, the order passed by the learned District Forum, is liable to be set aside.
9. Shri Ashok Kumar Sharma, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the learned District Forum and submitted that the respondent (complainant) obtained Estimate (Annexure A-7) from Maruti Auto Center, Power House, Bhilai (C.G.). Maruti Auto Centre, gave estimate of Rs.6,60,509/- in respect of repairing of the vehicle in question. Estimate (Annexure P-18) regarding the repairing expenses of the vehicle in question was also obtained by the respondent (complainant) from Sairam Ford, who is authorized dealer of the Ford vehicle, which gave estimate to the tune of Rs.6,13,443/-. The estimate (Annexure P-19) regarding the repairing expenses of the vehicle in question to the tune of Rs.5,65,021.08 was given by Sairam Ford. The Insured Declared Value (I.D.V.) of the vehicle in question is Rs.5,28,150/-. It appears that the vehicle in question // 11 // was completely damaged and if the vehicle in question is repaired, the repairing cost would be more than the Insured Declared Value of the vehicle, therefore, it is not possible for the respondent (complainant) to dismantle the vehicle. The impugned order passed by the learned District Forum is reasonable and does not suffer from any infirmity and illegality. The appeal of the appellant be dismissed.
10. We have heard learned counsel for the parties and have also carefully gone through the record of the District Forum
11. Initially the complaint filed by the respondent (complainant) was dismissed by the District Forum vide order dated 18.12.2013. The complainant filed Appeal No.FA/14/16 before this Commission against the above order. In appeal No.FA/14/16, the complainant filed an application under Order 41 Rule 27 CPC which was allowed and on the basis of documents filed by the complainant at appellate stage, the case was remitted back to the District Forum for proper adjudication of the case. Learned District Forum on the basis of the documents filed by the complainant allowed the complaint of the complainant and awarded compensation to him, a mentioned in para 1 of this judgment.
12. The respondent (complainant) specifically pleaded that the vehicle in question was complete damaged in the accident. The vehicle was brought to Maruti Auto Center, Power House, Bhilai (C.G.) for repairing // 12 // work. The Surveyor conducted Survey and it was informed by the respondent (complainant) to the Surveyor that vehicle in question was completely damaged, but even then the appellant (O.P.) did not pay Insured Declared Value of the vehicle i.e. Rs.5,28,150/- to the respondent (complainant).
13. The respondent (complainant) filed Estimate (Annexure 7) given by Maruti Auto Center, Power House, Bhilai (C.G.) in which total expenditure for repairing of the vehicle in question has been mentioned as Rs.6,60,509/-. Estimate (Annexure P-18) was obtained by the respondent (complainant) from Sairam Ford for the repairing expenses to the tune of Rs.6,13,443/-. Estimate (Annexure P-19) was given by Sauiram Ford, for repairing expenses to the tune of Rs.5,65,021.08.
14. Surveyor Shri Gagan Chopra, sent letter dated 28.02.2013 (Annexure A-11) to the respondent (complainant), in which it is mentioned thus :-
"Subject : Claim on account of damage to vehicle No.C.G.07-MB-
3645 due to accident on 21/10/2012 Policy No :
FPV/S0427253/C1/02/K1C112.
The above claim is deputed to undersigned on dated 23.01.2013 by the underwriter and we will inspect your vehicle along with you on same day and after getting the claim papers, it was found that claim form is not signed by you, So please singed and complete the claim form.
Regarding your vehicle / Assessment you are requested to start the repairing work and inform me, so that internal damages may be checked and proper assessment may be done.
So you are requested to complete the claim form and signed the same and Dismantle the vehicle for further inspection."
// 13 //
15. Surveyor Shri Gagan Chopra, sent letter dated 10.04.2013 (Annexure A-10) to the respondent (complainant), in which it is mentioned thus :-
"Subject : Claim on account of damage to vehicle No.C.G.07-MB-
3645 due to accident on 21/10/2012 Policy No :
FPV/S0427253/C1/02/K1C112.
Please refer to our earlier letter dated 28.02.2013 and as per discussion held over your mobile number 93290-23742, regarding dismantle of the vehicle.
You are again requested to dismantle the vehicle for further inspection of the vehicle, so that if any internal damages may be observed can be ascertained and assess the same accordingly.
Since long time has been passed and you are not dismantle the said vehicle for further inspection, if you are not start the repairing work within 10 days, we will assume that you are not interested, so we will issue our report according to visible damages of the vehicle.
Please treat the matter as urgent."
16. From the bare perusal of the above letters sent by Shri Gagan Chopra, Surveyor to the respondent (complainant), it appears that the Surveyor has directed the respondent (complainant) to dismantle the vehicle in question for further inspection and in response thereof, the reply was given by the respondent (complainant) vide letter dated 22.04.2013 (Annexure A-13) in which it is mentioned that the vehicle in question was fell down in Valley and was completely damaged. The vehicle was brought to Maruti Auto Center, Power House, Bhilai for repairing work and Maruti Auto Center informed the respondent (complainant) that near about Rs.6,60,509/- would be incurred in the repairing of the vehicle and thereafter he obtained another estimate // 14 // regarding repairing expenses, which is also on higher side than the Insured Declared Value of the vehicle, therefore, it is not possible for the respondent (complainant) to dismantle the vehicle.
17. Shri Gagan Chopra, Surveyor gave his report in which he gave his observation.
Under the head Observation, in para No.3 it is mentioned thus :-
"3. Insured submitted estimate from local market, but during our survey insured told me that he has replaced the parts with original and from dealer end, So Allowed parts rates as per dealer rates, i.e. Ford dealer rates allowed, which is subjected to proper submission of bills and cash memos from dealer end and subjected to Reinsertion survey of the vehicle along with replaced parts and salvage."
18. Looking to the above observation of the Surveyor and the contention of the respondent (complainant) is that he obtained estimate from Sairam Ford, who is dealer of the vehicle in question, is acceptable. On the basis of estimate given by Sairam Ford, it appears that the vehicle in question was completely damaged, which falls within purview of total loss, therefore, the loss assessed by the Surveyor, is not acceptable and report of the Surveyor, is not reliable. The District Forum, has rightly awarded compensation to the respondent (complainant) on total loss basis.
// 15 //
19. Therefore, the finding recorded by the District Forum, is just and proper and does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
20. Hence, the appeal filed by the appellant (O.P.) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /10/2015 /10/2015 /10/2015 /10/2015