State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs Laxman Singh Kathaith on 16 February, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 42 / 2022
The Oriental Insurance Company Limited
Regional Office: 24-A, NCR Plaza
3rd Floor, New Cantt. Road, Hathibarkala
Dehradun through its Regional Manager
...... Appellant / Opposite Party
Versus
Sh. Laxman Singh Kathait aged about 30 years' S/o Sh. Chandra Singh Kathait
R/o Village Kaonj Pothni, P.O. Maikot
Patwari Circle Chhinka, Tehsil and District Chamoli, Uttarakhand
...... Respondent / Complainant
Sh. Suresh Gautam, Learned Counsel for the Appellant
None for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 16/02/2023
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal has been preferred against the impugned judgment and order dated 05.01.2022 passed by the District Consumer Disputes Redressal Commission, Chamoli (in short "The District Commission") in consumer complaint No. 03 of 2017; Sh. Laxman Singh Kathait Vs. The Oriental Insurance Company Limited, by which the consumer complaint was allowed and the appellant - opposite party was directed to pay the insured amount of the vehicle amounting to Rs. 5,70,075/- to the respondent - complainant along with interest @6% p.a. from the date of filing of the consumer complaint till payment, besides Rs. 10,000/- towards mental & financial agony and Rs. 5,000/- towards costs.2
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, the respondent - complainant is the registered owner of vehicle bearing registration No. UK11-TA-1110, which was insured with the appellant - opposite party (insurance company) for the period from 21.01.2015 to 20.01.2016. During the validity period of insurance policy, the insured vehicle met with an accident on 12.12.2015 on Gopeshwar-Ghingran Motor Road, intimation whereof was given to the insurance company and F.I.R. was lodged with P.S. Gopeshwar. The surveyor of the insurance company visited the site and inspected the subject vehicle, who told the complainant to bring out the vehicle from the accident spot and take the vehicle to the authorised workshop of Tata Motors, where either new vehicle would be delivered to him or he would be paid the repair cost of the vehicle. The complainant got the vehicle towed to the workshop of Tata Motors on his own expenses and signed an agreement with Tata Motors with regard to parking charges of the vehicle. The claim was presented with the insurance company and all the requisite documents were duly submitted. However, the insurance company did not settle the claim. Legal notice dated 03.03.2017 was sent by the complainant through his counsel to the insurance company, but the same was neither replied by the insurance company, nor the claim amount was paid. Therefore, alleging deficiency in service on the part of the insurance company, the consumer complaint was filed by the complainant before the District Commission.
3. The appellant - insurance company filed written statement before the District Commission, wherein it was pleaded that upon receipt of claim, surveyor was appointed, who submitted their survey report dated 18.01.2015 with the insurance company. The claim of the complainant was approved for sum of Rs. 4,89,000/- and vide letter dated 12.05.2017, the complainant was asked to complete 3 certain formalities, so that payment could be made, but the complainant did not fulfill the required formalities.
4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 05.01.2022, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant - insurance company has preferred the instant appeal.
5. We have heard arguments advanced by learned counsel for the appellant and perused the record. None appeared on behalf of respondent - complainant, although vide order dated 03.11.2022, service of notice upon him was held to be sufficient.
6. There is no dispute with regard to the insurance of the vehicle and further the vehicle having met with an accident during the currency of the insurance policy. Learned counsel for the appellant submitted that there was no deficiency in service on the part of the insurance company, as they were ready to settle the claim for an amount of Rs. 4,89,000/- approved by the competent authority, which fact was communicated to the complainant by the insurance company through letter dated 12.05.2017 (Paper No. 8), asking him to complete the formalities mentioned in the said letter, which was not complied with by the complainant.
7. The copy of the survey report submitted by Navneet & Company is on record (Paper Nos. 9 to 13), perusal whereof reveals that the surveyor has mentioned that the matter was discussed with the complainant - insured and after negotiation, he was convinced for settlement of claim on total loss basis for Rs. 4,90,000/- after deducting excess. As is stated above, the insurance company has 4 given an offer to the complainant for settlement of claim at Rs. 4,89,000/-. Learned counsel for the appellant submitted that the District Commission has erred in not deducting any amount towards the salvage of the vehicle. We find force in the said submission. The vehicle was insured for Rs. 5,70,075/-, which amount has been awarded by the District Commission. Since the District Commission has awarded the entire insured sum, taking it to be a case of total loss, regarding which there is no dispute between the parties, there was no justification on the part of the District Commission for not deducting salvage value of the vehicle. Perusal of survey report further reveals that the value of salvage (without R.C.) has been assessed therein as Rs. 60,000/-, therefore, the said amount ought to have been deducted from the I.D.V. of the vehicle, i.e., Rs. 5,70,075/-. By deducting the salvage value of Rs. 60,000/- from the insured amount, the complainant is to be held entitled to Rs. 5,10,075/- and there was no justification on the part of the insurance company for approving the claim to the tune of Rs. 4,89,000/-, which can very well be said to be deficiency in service on their part and the complainant can not be said to be at fault for not accepting the said amount. This apart, the offer letter is dated 12.05.2017, whereas the consumer complaint was filed by the complainant before the District Commission prior to the said date.
8. Learned counsel for the appellant also submitted that the subject vehicle was financed by Cholamandalam Investment and Finance Company Limited, Dehradun, who were not impleaded by the complainant as opposite party to the consumer complaint, hence the consumer complaint was not legally maintainable and ought to have been dismissed on the said ground.
9. We do not find any force in the above submission, for the simple reason that no such plea was raised by the insurance company 5 in the written statement filed before the District Commission, although the said ground has been taken in the memo of appeal. It would not be out of place to mention here that since we are deducting the value of the salvage from the amount of loss, hence there does not arise any question of recovering the salvage from the workshop by the insurance company, as the insurance company has not been held entitled to the salvage of the vehicle. So far as non-impleadment of financier as party to the consumer complaint, as is stated above, no such plea was taken by the insurance company before the District Commission that financier is a proper and necessary party to the dispute raised. Even otherwise, the instant appeal is filed by the insurance company, who has insured the vehicle by charging the amount of premium and in the event of settlement of claim on total loss basis, the insurance company can not say that since the financier has not been made a party, the consumer complaint was not maintainable. It is pertinent to mention here that if there are any outstanding dues of the financier against the vehicle, the financier can very well recover the same by adopting legal recourse, but in the present case taking into consideration the nature of dispute, we are not all concerned with the financier of the vehicle.
10. Learned counsel for the appellant cited judgment dated 01.04.2017 passed by Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in First Appeal No. 657 of 2016; I.C.I.C.I. Lombard General Insurance Company Limited Vs. Dr. Amit Kumar Thakur and another. In the said case, it was specifically pleaded that the complainant had obtained loan from State Bank of India and vehicle was hypothecated with the said bank, therefore, the bank is a necessary party. The said aspect of the matter was considered by the District Commission, which is not the position here. Even otherwise, in the present facts and circumstances of the 6 case, it would not be in the fitness of things to remand the case back to the District Commission with a direction to the complainant to implead the financier as party to the consumer complaint. It is worth mentioning here that the impugned judgment and order passed by the District Commission can not be said to be bad in law, in the absence of specific plea on the part of the insurance company in the written statement submitted before the District Commission.
11. For the reasons aforesaid, the complainant is entitled to compensation of Rs. 5,10,075/- instead of Rs. 5,70,075/-, as awarded by the District Commission and the impugned judgment and order passed by the District Commission requires modification to the said extent. So far as other reliefs awarded by the District Commission are concerned, the same are perfectly justified and need no interference. Thus, the appeal succeeds partly and is to be allowed accordingly.
12. Appeal is partly allowed. Impugned judgment and order dated 05.01.2022 passed by the District Commission is modified and the amount of Rs. 5,70,075/- awarded by the District Commission towards insured amount of the vehicle, is reduced to Rs. 5,10,075/-. Rest of the impugned judgment and order passed by the District Commission is confirmed. Costs of the appeal made easy.
13. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K