State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Aashish Bishnoi on 1 June, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Date of Decision: 01.06.2016
First Appeal No. 1673 of 2014
Date of institution: 26.12.2014
1. The National Insurance Company Ltd., Division No. 10, Flat No. 101-
106, N-1, BMC House, Connaught Place, New Delhi - 110001,
through its Regional Manager.
2. National Insurance Company Ltd., through its Branch Manager, 8
Circular Road, Abohar (Pb.)
Both through authorized signatory, Regional Office-1, National
Insurance Co. Ltd., SCO 332-334, Sector 34-A, Chandigarh.
Appellants/Op Nos. 1 & 2
Versus
1. Aashish Bishnoi s/o Rajinder Bishnoi, r/o ARCS, Dabwali, Sirsa -
125 055.
Respondent No.1/Complainant
2. Maruti Insurance Broking Pvt. Ltd., Plot No. 1, Nelson Mandela
Marg, Vasant Kunj, New Delhi - 110 070
3. Chittosho Motor, Authorised Maruti Dealer, C-39, Phase-3, Industrial
Area, Mohali through its Managing Director.
4. Maruti Suzuki India Ltd., Nelson Mandela Marg, Vasant Kunj, New
Delhi through its Managing Director.
Respondents Nos. 2 to 4/Op Nos. 3 to 5
First Appeal against the order dated
27.11.2014 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
First Appeal No. 1673 of 2014 2
Present:-
For the appellants : Sh. S.S. Sidhu, Advocate
For respondent No.1 : Sh. Manoj Vashisht, Advocate
For respondent Nos.2&3: Service dispensed with.
For respondent No.4 : Ex.-parte.
2nd Appeal
First Appeal No. 95 of 2015
Date of institution: 28.1.2015
Aashish Bishnoi s/o Rajinder Bishnoi, R/o ARCS, Dabwali, Sirsa - 125
055.
Appellant/Complainant
Versus
1. The National Insurance Company Ltd., Division No. 10, Flat No. 101-
106, N-1, BMC House, Connaught Place, New Delhi - 110001,
through its Regional Manager.
2. National Insurance Company Ltd., through its Branch Manager, 8
Circular Road, Abohar (Pb.)
3. Maruti Insurance Broking Pvt. Ltd., Plot No. 1, Nelson Mandela
Marg, Vasant Kunj, New Delhi - 110 070
4. Chittosho Motor, Authorised Maruti Dealer, C-39, Phase-3, Industrial
Area, Mohali through its Managing Director.
5. Maruti Suzuki India Ltd., Nelson Mandela Marg, Vasant Kunj, New
Delhi through its Managing Director.
Respondents Nos. 1 to 5/Op Nos. 1 to 5
First Appeal against the order dated
27.11.2014 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
First Appeal No. 1673 of 2014 3
Present:-
For the appellant : Sh. Manoj Vashisht, Advocate
For respondent Nos.1&2 : Sh. S.S. Sidhu, Advocate
For respondent No.3 : Sh. Salil Sabhlok, Advocate
For respondent No.4 : Service dispensed with.
For respondent No. 5 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals and against the impugned order dated 27.11.2014 passed in Consumer Complaint No. 141 dated 3.3.2014 by the District Consumer Disputes Redressal Forum, SAS Nagar(Mohali) (in short the "District Forum") vide which the complaint filed by complainant was partly allowed against Op Nos. 1 & 2 with following directions:-
(a) to refund Rs. 7,96,231/- (Rs. Seven lacs ninety six thousand two hundred thirty one only) with interest @ 9% p.a. annum w.e.f. 20.2.2014 i.e. the date of refusal to give the revised consent till actual payment.
(b) To pay to the complainant a lump sum compensation of Rs.
50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of the above directions be made by Op Nos. 1 & 2 within a period of one month from the date of receipt of a certified copy of this order.........."
2. Complaint was filed by the complainant against opposite parties (in short Op Nos. 1 & 2) under Section 12 of the CP Act (in First Appeal No. 1673 of 2014 4 short 'the Act') on the averments that complainant intended to purchase Maruti Suzuki SX4 VDi vehicle manufactured by Maruti Suzuki. Vide its email dated 18.6.2013, Op No. 4 stated its Ex.- Showroom price as Rs. 8,38,138/-. However, Op No. 4 agreed to sold it for a sum of Rs. 8,06,000/-. Complainant paid a sum of Rs. 5,50,000/-. The loan advanced by SBI Mandi Dabwali and a sum of Rs. 2,56,000/- was paid by him from his life long savings and accordingly, Op No. 3 had delivered the vehicle Maruti SX4 VDi bearing Engine No. DISA 2098198, Chassis No. MA3FFEBIS00217634 Make 2013 PB-65(T) 3720. At the time of delivery by Op No. 4, it was stated that the vehicle was required to be insured to safeguard himself from the risk of loss to the complainant or any other third party, therefore, he is required to get it insured and Op No. 4 also paid a sum of Rs. 20,902/- towards premium of the insurance policy. Op No. 4 handed over insurance policy No. 35101031136133314501 dated 21.6.2013 for sum assured of Rs. 7,96,231/-. Unfortunately, the vehicle met with an accident on 12.7.2013 in District Sirsa and was completely damaged. Complainant immediately informed Ops as well as the Police Authorities regarding the accident. The Police Authorities after verifying the facts registered DDR dated 12.7.2013. It was taken to Tata Motors, Abohar by hiring of crane and a sum of Rs. 800/- was paid. Op No. 2 get the survey done and service estimate of Rs. 8,96,593.85 was submitted. Complainant also informed Op Nos. 1 & 2 that he had applied for registration of the vehicle and when the vehicle was totally damaged then he was not required to pay for the First Appeal No. 1673 of 2014 5 registration charges but on repeated asking of Op Nos. 1 & 2, he had to deposit a sum of Rs. 48,099/- as registration charges with Registration Authority, Dabwali, District Sirsa. Since the vehicle was on total loss, therefore, he was to receive the full amount of the sum assured. Complainant time and again contacted Op Nos. 1 & 2 and also pursued the matter with Op Nos. 3 & 4. The false promises were given and he was kept on waiting to get the claim of his damaged car because he had availed the loan from SBI and he was paying the EMIs of the loan without delay. However, after long wait of 7 months, to the utter shock of the complainant, he received a letter No. 401002/Claim/13-14 dated 12.2.2014 issued by Op No. 2 giving claim No. 35101031136136192101129 of vehicle No. PB65-C(T)-3720 whereby Op No. 2 submitted that the sum insured under the policy should have been Rs. 7,44,928/- instead of Rs. 7,96,231/- and he was asked to submit his revised consent for the claim of Rs. 7,44,928/- to settle the due claim. Otherwise, they were required to make the payment of Rs. 7,44,928/- and the issue with regard to the valuation of the sum assured could be taken lateron. Therefore, act and conduct of Ops was unfair trade practice as well as deficiency in service. Hence, the complaint with the direction to Ops to pay sum assured of Rs. 7,96,231/- alongwith interest @ 12% p.a. from 13.7.2013 till date, refund a sum of Rs. 20,902/- paid by the complainant towards insurance premium and Rs. 48,099/- incurred by the complainant after getting the registration. Ops No. 1 & 2 be directed to pay the amount to be paid to banker towards EMI, direct Op No. 5 not to charge any parking charges, litigation expenses of First Appeal No. 1673 of 2014 6 Rs. 22,000/- and compensation for harassment, mental agony and delay to the extent of Rs. 1 lac be paid.
3. Complaint was contested by Op Nos. 1 & 2 and 5 whereas Op Nos. 3 & 4 were ex-parte before the District Forum. Op Nos. 1 & 2 in their written reply took the preliminary objections that the complainant was not a consumer as defined under Section 2(1)(d) of the Act; complaint was not maintainable; the Forum did not have the territorial jurisdiction under Section 11(2) of the Act as no cause of action had arisen within the jurisdiction of SAS Nagar, Mohali; complainant had not approached the Forum with clean hands; there was no deficiency in service on the part of Op Nos. 1 & 2; the claim was liable to be paid as per terms and conditions of the policy. Complainant was issued policy for IDV of Rs. 7,96,231/-. Complainant lodged a claim with Op No. 2 on 22.7.2013 that his vehicle met with an accident on 12.7.2013. Surveyor was appointed and Surveyor submitted report according to which it was a total loss case. However, during the process of the claim, it came to the knowledge of Op Nos. 1 & 2 that the complainant had purchased a vehicle for a total sum of Rs. 7,84,135/- as per invoice dated 21.6.2013. No person should get profit out of the insurance as IDV should have been Rs. 7,44,928/- i.e. invoice value minus 5%. It was intimated to the complainant vide letter dated 12.2.2014. The complainant was informed that IDV should have been Rs. 7,44,928/- and inadvertently taken as Rs. 7,96,231/-. Accordingly, complainant was requested to submit revised consent at the earliest so that the claim can be settled. Instead of giving revised consent, he First Appeal No. 1673 of 2014 7 approached the Forum; complaint was bad for non-joinder and mis- joinder of necessary parties and that disputed and complicated questions of law and facts were involved, which was not possible to be adjudicated under a summary procedure under the Act, therefore, the matter be relegated to the Civil Court. On merits, issuance of the policy in favour of the complainant was admitted. Otherwise averments stated in the preliminary objections were reiterated. It was stated that IDV of the vehicle should have been Rs. 7,44,928/- and it was inadvertently issued as Rs. 7,96,231/-. Revised consent of the complainant was sought. Instead of giving the revised consent, he filed the complaint, therefore, the matter could not be settled. There was no deficiency in service on the part of Ops. Complaint was without merit, therefore, it be dismissed.
4. Op No. 5 in it written statement took the preliminary objections that the complainant was not a consumer qua Op No. 5 as defined under Section 2(1)(d)(ii) of the Act; District Forum, SAS Nagar (Mohali) did not have any jurisdiction to entertain the complaint; complaint was bad for mis-joinder of this Op; complainant had failed to disclose any specific cause of action against this Op. The allegations made in the complaint were outside the scope and ambit of the allegations as required under Section 2(i)(c) of the Act; complaint was baseless and flagrant abuse of process of law to harass this Op. On merits also, averments stated in the preliminary objections were reiterated. The averments as alleged in the complaint were denied. There was no specific allegation against Op No. 5. There was no deficiency in service on the part of this Op. Their First Appeal No. 1673 of 2014 8 business with Dealers is on principal to principal basis, therefore, there was no merit in the complaint against this Op. It be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1, rejoinder Ex. CW- 1/2, mail Ex. C-1, Chittosho Motor receipts Ex. C-1/A & Ex. C-2, Foil- B Ex. C-3, insurance cover note Ex. C-4, fee receipt Ex. C-5, receipt Ex. C-6, photographs Ex. C-7(colly), DDR Ex. C-8, receipt Ex. C-9, service estimate Ex. C-10, statement of account Ex. C-11, repudiation letter Ex. C-12, emails Exs. C-13, 14, reminder Ex. C-15, RC Ex. C-16, checklist Ex. C-17, bank loan details Ex. C-18. On the other hand, Op No. 1 had tendered into evidence affidavit of Ravinder Kumar, Dy. Manager Ex. Op-1/1, insurance policy Ex. Op-1, tax charges Ex. Op-2. On the other hand, Op No. 5 had tendered into evidence affidavit of Jaspreet Singh Ex. Op-5/A, dealership agreement Ex. R-5/1, warranty policy Ex. R-5/2.
7. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above, after observing that IDV of the vehicle is Rs. 7,96,231/-. The Ops are estopped by their act and conduct to take a different stand to take the IDV as Rs.7,44,928/-.
8. Aggrieved with the order passed by the learned District Forum, Ops No. 1 & 2 has filed Appeal No. 1673 of 2014 that IDV of the vehicle was wrongly taken by the District Forum whereas First Appeal No. 1673 of 2014 9 complainant has filed Appeal No. 95 of 2015 for enhancement of compensation.
9. We have heard Sh. S.S. Sidhu, Advocate counsel for the appellants, Sh. Manoj Vashisht, Advocate counsel for respondent No. 1 and Sh. Salil Sabhlok, Advocate counsel for respondent No. 3.
10. Insurance policy No. 35101031136133314501 for the period 21.6.2013 to 20.6.2014 for sum assured of Rs. 7,96,231/- was issued for Maruti SX4 VDi No. PB-65(T) 3720 bearing Engine No. DISA 2098198, Chassis No. MA3FFEBIS00217634. However, the said car met with an accident on 12.7.2013 near Village Mithdi, Dabwali, District Sirsa and M/s Eminent Surveyors, Patiala were appointed to assess the loss and it was a case of total loss. There was no dispute with regard to these aspects. The dispute taken by Ops is that the vehicle was purchased by the complainant for a sum of Rs. 7,84,135/- vide invoice dated 21.6.2013 (Ex. Op-2). Complainant has placed on the record two documents i.e. receipts Exs. C-1/A and C-2 vide which he had paid a sum of Rs. 2,56,000/- and Rs. 5,50,000/- i.e. total sum of Rs. 8,06,000/-. It has been further stated by the complainant in para No. 7 of the complaint that a sum of Rs. 20,902/- was paid by Op No. 4 towards insurance policy and in case this sum is added in Rs. 7,84,135/-, then it comes almost to Rs. 8,06,000/- and certainly, the amount of insurance is not a part of the sale price of the vehicle, therefore, sale price of the vehicle is Rs. 7,84,138/-. Although Ex-showroom price of the vehicle may be Rs. 8,38,000/- but after negotiations, it was purchased for a sum of Rs. 7,84,000/-, therefore, IDV of the vehicle at the time of insurance First Appeal No. 1673 of 2014 10 should have been according to the value of the vehicle, therefore, there is inadvertent mistake while fixing the IDV of the vehicle. Counsel for Op has referred to G.R. 8, which is reproduced as under:-
"GR.8. Insured's Declared Value (IDV) The Insured's 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. The IDV of the vehicle is to be fixed on the basis of manufacturer's listed selling price of the brand and model as the vehicle proposed for insurance at the commencement of insurance /renewal and adjusted for depreciation (as per schedule specified below). The IDV of the side car(s) and / or accessories, if any, fitted to the vehicle but not included in the manufacturer's listed selling price of the vehicle is also likewise to be fixed. 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. The depreciation for replacement of parts in partial loss claims will be as per a separate schedule specified under GR.9.
SCHEDULE OF DEPRECIATION FOR ARRIVING AT IDV AGE OF THE VEHICLE % OF DEPRECIATION FOR FIXING First Appeal No. 1673 of 2014 11 IDV Not exceeding 6 months 5% Exceeding 6 months but not exceeding 1 15% year Exceeding 1 year but not exceeding 2 years 20% Exceeding 2 years but not exceeding 3 years 30% Exceeding 3 years but not exceeding 4 years 40% Exceeding 4 years but not exceeding 5 years 50% NOTE: IDV of vehicles beyond 5 years of age and of obsolete models of the vehicles ( i.e. models which the manufacturers have discontinued to manufacture) is to be determined on the basis of an understanding between the insurer and the insured. For the purpose of TL/CTL claim settlement, this IDV will not change during the currency of the policy period in question. It is clearly understood that the liability of the insurer shall in no case exceed the IDV as specified in the policy schedule less the value of the wreck, in 'as is where is'condition."
11. According to this GR, the IDV of the vehicle is to be fixed according to the selling price of the brand and model and depreciation upto six months is upto 5%. OP Nos. 1 & 2 has stated that IDV should have been Rs. 7,44,000/- but how it was taken has not been explained. At the most, the IDV could be Rs. 7,84,135/- and after deducting 5% then that amount can be payable amount. On a sum of Rs. 7,84,135/-, 5% will comes to Rs. 39,206.75p and after deducting this amount, payable amount would be Rs. 7,44,929.75p. However, it has been argued by the counsel for the complainant that in case the IDV was fixed more by the Op then lateron they are estopped by their act and conduct to revise the IDV and moreover, in case they had received the excess premium that premium has also First Appeal No. 1673 of 2014 12 been refunded to the complainant. No doubt that in case the IDV is to be lower down then excess payment will have to be paid by Op Nos. 1 & 2 to the complainant for which Op Nos. 1 & 2 had no objection. In this way, the complainant will be entitled to refund of excess premium over and above a sum of Rs. 7,84,135/- alongwith interest. So far as depreciation is concerned, it is to be taken while fixing the IDV and once the IDV has been fixed then no further depreciation will be allowed. Accordingly, in the appeal filed by the Ops, order passed by the District Forum requires partial modification. Now Op Nos. 1 & 2 will pay to the complainant, the amount as under:-
(a) Rs. 7,84,135/- i.e. IDV of vehicle and that the complainant will be entitled to receive back the excess amount of premium received by Ops No. 1 & 2 over and above Rs. 7,84,135/-.
12. Now coming to the appeal filed by the complainant. He has stated that interest has been allowed to him w.e.f. 20.2.2014. He had taken a loan of Rs. 5,50,000/- from State Bank of India, Dabwali and regularly paying the EMIs there. He has placed on the record the copy of the Bank Statement Ex. C-11, according to which the bank interest rate is 10.75% per annum. It has been stated by the counsel for the complainant that in case within a reasonable time, it was the duty of Ops No. 1 & 2 to make the payment atleast of Rs. 7,84,135/- and other amount can be contested by Ops so that he could be saved to pay interest @ 10.75% as after receiving the payment from Op Nos. 1 & 2, he would have paid the balance loan amount to State Bank of India, Dabwali. A sum of Rs. 5,50,000/- was taken by the complainant as a loan from State Bank of India whereas a sum of Rs. First Appeal No. 1673 of 2014 13 2,56,000/- was paid from his pocket, therefore, it will be just and reasonable in case the complainant is allowed interest @ 10% so that he could be able to cover up his interest paid to the Bank on account of failure on the part of Ops to make timely payment of the amount due to him.
13. 20.2.2014 is the date of refusal, otherwise, the claim should have been processed within a period of three months. The report of the Surveyor was received in time but Ops kept on sitting the claim file. Therefore, the complainant will be entitled to this rate of interest after expiry of three months from the date of submission of his claim i.e. 22.7.2013 to 22.10.2013.
14. Counsel for the complainant stated that when the vehicle had met with an accident then it was not required to be registered and the complainant was forced to go for registration for which he had to pay Rs. 48,099/-. The vehicle was to be registered within one month from the date of purchase and the papers were already submitted by the complainant with the Registration Authority for registration of the vehicle. Even in this case of total loss, the vehicle is required to be transferred in favour of Op No. 1 and 2 by way of subrogation letter and in case the vehicle is not registered then no subrogation can be executed in favour of Op Nos. 1 & 2, therefore, Ops cannot be held liable for payment of registration because under the law, he was required to go for registration of the vehicle after purchasing the same.
15. The District Forum has not given any findings that the complainant was burdened to pay parking charges to Op No. 5. Op First Appeal No. 1673 of 2014 14 No. 5 is the Dealer of Maruti Suzuki where the vehicle was taken for the purpose of assessment of the loss. In the complaint, there is no reference that complainant is liable to pay any parking charges. No letter received by complainant from Op No. 5 has been placed on the record. No doubt that any evidence has been placed on the record, no such reference can be made by the District Forum with regard to parking charges.
16. In view of the above, the order passed by the District Forum requires modification and it is modified as under:-
a) Op Nos. 1 & 2 will pay a sum of Rs. 7,84,135/- i.e. IDV of the vehicle alongwith interest @ 10% p.a. w.e.f. 22.10.2013 to the date of payment;
b) Op Nos. 1 & 2 will refund back the premium received from Op Nos. 1 & 2 over and above Rs. 7,84,135/- alongwith interest @ 10% from the date of receipt of the premium till payment;
c) the complainant shall be entitled to lumpsum compensation of Rs. 50,000/-.
The parties shall bear their own cost of the litigation in the appeal.
17. The appellants had deposited an amount of Rs. 25,000/- and Rs. 4,30,955/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. First Appeal No. 1673 of 2014 15
18. Remaining amount, if any due, shall be paid by appellants to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
19. The arguments in these appeals were heard on 19.5.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
20. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
21. Copy of this order be placed on First Appeal No. 95 of 2015.
(Gurcharan Singh Saran)
Presiding Judicial Member
June 1, 2016. (Harcharan Singh Guram)
as Member