State Consumer Disputes Redressal Commission
Varinder Kumar vs Bharti Axa on 8 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 32 of 2013 Date of Institution : 29.01.2013 Date of Decision : 08.04.2013 1. Mr. Virinder Kumar Tiwari s/o Sh. D. N. Tiwari, #575, Sector- 7, Panchkula. 2. Ms. Narita Tiwari d/o Sh. V. K. Tiwari, #575, Sector- 7, Panchkula. Appellants/Complainants. Versus 1. M/s Bharti AXA General Insurance Co. Ltd., SCO No.350-52, 1st Floor, Sector 34-A, Chandigarh. 2. M/s PEE KAY & Co., Surveyors & Loss Assessors, #1078, Sector-15, Panchkula. 3. M/s Harmony Honda, C/o Joshi Automobiles Pvt. Ltd., Plot No.67, Industrial Area, Phase-II, Chandigarh. ....Respondent/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh. Pankaj Chandgothia, Advocate for the appellants. Mrs. Neena Madan, Advocate for respondent No.1. Service of respondent No.2 already dispensed with vide order dated 11.02.2013. Respondent No.3 exparte. First Appeal No. : 78 of 2013 Date of Institution : 21.02.2013 Date of Decision : 08.04.2013 M/s Bharti AXA General Insurance Co. Ltd., SCO No.350-52, 1st Floor, Sector 34-A, Chandigarh. Now through Shri Ravi Raizada, Zonal Manager, Bharti AXA General Insurance Co. Ltd., 2nd Floor, BIGJOS Tower, A-8, Netaji Subhash Palace, New Delhi-110034. Appellant/Opposite Party No.1. Versus 1. Mr. Virinder Kumar Tiwari s/o Sh. D. N. Tiwari, #575, Sector- 7, Panchkula. 2. Ms. Narita Tiwari d/o Sh. V. K. Tiwari, #575, Sector- 7, Panchkula. .Respondents/Complainants. 3. M/s PEE KAY & Co., Surveyors & Loss Assessors, #1078, Sector-15, Panchkula. 4. M/s Harmony Honda, C/o Joshi Automobiles Pvt. Ltd., Plot No.67, Industrial Area, Phase-II, Chandigarh. .Respondents/Opposite Parties No.2 and 3. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Mrs. Neena Madan, Advocate for the appellant.
Sh. Pankaj Chandgothia, Advocate for respondents No.1 and 2.
Service of respondent No.3 already dispensed with vide order dated 07.03.2013.
Respondent No.4 exparte.
PER MRS. NEENA SANDHU, MEMBER.
This order shall dispose of two appeals bearing Nos.32 of 2013 filed by the appellants/complainants and 78 of 2013 filed by the appellant/Opposite Party No.1, against the common order dated 19.12.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint bearing No.395 of 2011, filed by the complainants, qua Opposite Parties No.1 and 3 and directed them as under: -
15. Accordingly, we pass the following orders: -
i) The complaint against Opposite Party No.2 is dismissed, as he is only the Surveyor, who has assessed the loss to the vehicle.
ii) The complaint against Opposite Parties No.1 & 3 is disposed off, with the following directions to the parties:-
[a] The Complainants shall allow the repairer (Opposite Party No.3) to repair the vehicle in terms of the latest estimate/ surveyors report. The repairer (Opposite Party No.3) shall repair the vehicle and present the final bill to the Complainants as well as the Opposite Parties No.1 & 2 after repair.
[b] In case the final bill is beyond 75% of the IDV, the Opposite Party No.1 shall make payment for the Complainants claim by treating the vehicle as total loss and thereby making payment to the Complainants in terms of the IDV of the vehicle as per terms of the policy. The vehicle will accordingly be transferred by the Complainants in the name of Opposite Party No.1 to receive payment.
[c] In case, the repair bill is less than 75% of the IDV, then the Opposite Party No.1 shall reimburse and make payment to the Complainants towards repair as per last report of Opposite Party No.2 (Surveyor) in terms of the policy after allowing for depreciation as per rules. The balance amount shall be borne by the Complainants.
It is clarified here that in case payment is to be made against repair, the amount shall be paid by the Complainants to Opposite Party No.3 initially and thereafter, the amount due as per policy shall be reimbursed to the Complainants by Opposite Party No.1.
[d] No costs.
2. The facts, in brief, are that the complainant No.1 was the owner of a Honda City 1.5 MT car bearing Regn. No.HR-70B-575, which was insured with Opposite Party No.1, for the period from 9.5.2010 to 8.5.2011. It was stated that the said car met with an accident on 13.4.2011, in District SAS Nagar and F.I.R. No.19 dated 15.4.2011 was got registered. It was further stated that Opposite Party No.1, was duly informed about the accident, which appointed Opposite Party No.2, as Surveyor to assess the loss. It was further stated that the car was towed to Opposite Party No.3, which informed the complainants that damage to the car, was so extensive, as it was not repairable and if repaired, it could not be restored to its original condition as the chassis and columns of body shell had been damaged. It was further stated that an estimate of repairs was prepared by Opposite Party No.3, wherein, the cost of repairs was shown as Rs.10,56,348/- against the Insured Declared Value (IDV) of Rs.7,20,000/-. It was further stated that since the estimate of repairs was more than the IDV of the vehicle, in question, the Opposite Parties, were required to settle the claim, on total loss basis. It was further stated that the complainants requested Opposite Parties No.1 and 2, to settle the claim on total loss basis, but they kept on delaying the matter. It was further stated that a preliminary assessment report dated 31.5.2011 (Annexure C-7) was sent by Opposite Parties No.1 and 2, as per which, a sum of Rs.3,07,880/- was assessed as loss. It was further stated that despite taking up the matter with Opposite Parties No.1 and 2, a number of times, the claim was not released by them, on total loss basis, and even the final assessment report was not furnished. It was further stated that the act and conduct of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties, to pay a sum of Rs.7,20,000/- being the Insured Declared Value of the vehicle, alongwith interest @18% per annum w.e.f.15.04.2011, Rs.2,00,000/- as compensation for harassment and mental agony; Rs.50,000/- as compensation for unfair trade practice; Rs.25,000/- as punitive damages; and Rs.22,000/- as cost of litigation, was filed.
3. Opposite Party No.1, in its written version, stated that after receiving the information about the alleged accident, it appointed Opposite Party No.2, as Surveyor, which was a duly licensed Surveyor from the IRDA, to assess the loss. It was further stated that the complainants connived with Opposite Party No.3, to obtain exorbitant estimate for the vehicle. It was further stated that the estimate given by the complainants was totally wrong and payment could be made to them only in terms of the surveyors report. It was further stated that the surveyor had assessed the loss to the tune of Rs.3,07,880/-, which was less than 50% of the IDV. It was further stated that despite request made by Opposite Party No.1, to the complainants to get the vehicle repaired, they did not authorize the workshop to do the needful, and the car was still unrepaired. It was further stated that the final assessment report was not furnished as repairs in the vehicle were yet not been initiated. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining allegations, contained in the complaint were denied.
4. Opposite Party No.2, in its written version, stated that after receiving information, about the alleged accident from Opposite Party No.1, it inspected the car at the premises of Opposite Party No.3. It was further stated that the vehicle was repairable and Opposite Party No.3, had issued an exorbitant estimate for the car, which was not as per the actual loss. It was further stated that the damage to the front left and left side of the vehicle was moderate in nature. It was further stated that all the body parts, which were visibly damaged, were considered for replacement, and if any other component was found damaged, after dismantling, the same could also be replaced. It was further stated that replacement of body parts, do not harm the strength of the car. It was further stated that the car could be reinstated to its pre-accident condition after replacement of panels. It was further stated that Opposite Party No.3, was the authorized dealer of the car and all panels were supplied by the manufacturer company to the dealer. It was further stated that as per terms and conditions of policy, the insured vehicle could be considered as a constructive total loss only if the aggregate cost of repairs of vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV. It was further stated that, as per the survey conducted, only Rs.3,07,880/- were assessed as loss, which was less than 50% of the IDV. It was further stated that even though Opposite Party No.1, had been requesting the complainants continuously, to get the vehicle repaired, they failed to get the same repaired. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Party No.2, nor it indulged into unfair trade practice. The remaining allegations, contained in the complaint, were denied.
5. Opposite Party No.3, in its written version, stated that no cause of action had arisen to the complainants, against it, as ot had only given an estimate of loss of damage caused to the vehicle. It was further stated that no relief was sought by the complainants against Opposite Party No.3. It was further stated that there was, thus, neither any deficiency in rendering service, on the part of the Opposite Party No.3, nor it indulged into unfair trade practice. The remaining allegations, contained in the complaint, were denied.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, vide the impugned order, as stated above.
8. Feeling aggrieved, the complainants as well as Opposite Party No.1, have filed the instant appeals.
9. Alongwith the appeal bearing No.78 of 2013, filed by the applicant/appellant/Opposite Party No.1, an application for condonation of delay of 26 days (in-fact 22 days as per the office report), in filing the same (appeal), has been moved. The grounds, set up, in the application, by the applicant/appellant, are to the effect, that the delay, in question, occurred due to the applicant/appellant, being a Department, and the file had to go through many channels for obtaining the approval for filing the appeal, as a result whereof, there occurred a delay of 26 days in filing the appeal. It was further stated that the delay aforesaid, in filing the appeal, was on account of the circumstances, beyond the control of the applicant/appellant. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer for condoning the aforesaid delay was made.
10. In reply, it was stated that the applicant/appellant/ Opposite Party No.1, filed appeal on 21.02.2013 i.e. after receiving notice in appeal filed by the complainant, which was issued on 11.02.2013. It was further stated that neither the applicant/appellant/Opposite Party No.1, has neither explained each days delay nor it has attached any letter or correspondence in support of the ground taken for condonation of delay. Accordingly, a prayer for dismissal of the appeal, on the ground of delay itself, was made.
11. We have heard the Counsel for the parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully.
12. For the reasons, explained in the application for condonation of delay, which is duly supported by an affidavit of Sh. Ravi Kumar Raizada, Zonal Manager, Bharti AXA General Insurance Company Ltd., New Delhi and finding sufficient cause, the delay aforesaid, in filing the appeal, is condoned.
13. The Counsel for appellant/Opposite Party No.1 submitted that while passing the impugned order, the District Forum failed to consider the fact that the assessment report could only be given when the vehicle was opened for repair but the complainants were not allowing the authorized dealer to initiate repairs of the vehicle, in question, and due to this reason, the final assessment report could not be given, but, even then, the surveyor assessed the loss as per the terms and conditions of the policy. It was further submitted that it is settled principle of law that the loss assessed by the surveyor, is to be taken into consideration, as the surveyors report, being an important document, cannot be overlooked, unless it is proved otherwise. It was further submitted that the District Forum ignored the fact that the repair cost of the vehicle was inflated and exaggerated and was not as per the actual repair. It was further submitted that the complainant had given the estimated cost of repair as Rs.7,87,282.64Ps and the labour charges were given as Rs.67,834.50Ps and thus, the total cost came to be Rs.8,55,117.14Ps. It was further submitted that after getting this estimate, the surveyor again checked the vehicle, in question, in the presence of the complainants and gave final assessment for Rs.3,67,366.86Ps for parts and Rs.45,920.86Ps for labour charges and after deducting the depreciation, the total amount of loss came to Rs.3,22,918/- only. It was further submitted that, in his report (Annexure R-2/1), the surveyor had categorically stated that the parts, which could be repaired, could not be replaced. It was further submitted that, thereafter, the complainants again placed, on record, another list of parts alongwith the additional affidavit, whereupon, the surveyor again assessed the loss and gave another detailed report (Annexure R-2/3), wherein the total loss was estimated at Rs.3,40,627/-. Since this report was never challenged by the complainants, hence the same attained finality. He further submitted that since, the amount assessed by the surveyor vide report (Annexure R-2/3) was less than the 75% of the Insured Declared Value of the vehicle, in question, and the vehicle is in repairable condition, the complainants, at the most, are entitled to Rs.3,40,627/-, and, therefore, the directions given by the District Forum, are not specific and are vague. He further submitted that even the District Forum, in Para No.12 of its order, recorded that the surveyors report (Annexure R-2/3) was final and binding on the complainants as they did not file any objections to the same. It was further stated that the impugned order, therefore, being untenable and unsustainable, is liable to be set aside.
14. On the other hand, the Counsel for the appellants/ complainants submitted that the estimated repair cost of the vehicle was almost 150% of the Insured Declared Value, and even if, the same was discounted by 40%, the same came to be more than 75% of the IDV, and thus, the Insurance Company was bound to settle the claim on total loss basis. It was further submitted that the authorized dealer was the best person to judge and render the estimate and the surveyor could not question the estimate given by an authorized dealer. It was further submitted that even in the surveyor report, the estimated cost of repairs was shown to be more than Rs.7.80 Lacs. It was further submitted that the Opposite Parties did not give the final surveyor report till the decision of the complaint. It was further submitted that the reports of the surveyor, being biased, are liable to be ignored. The Counsel for the appellants/complainants finally submitted that the impugned order, passed by the District Forum, be modified and the relief already claimed in the complaint, be granted.
15. Admittedly, the complainants submitted the claim thrice, every-time, by adding list of parts/documents, and this was the reason, why three assessments were done by the surveyor from time to time. The surveyor finally assessed the loss to the tune of Rs.3,40,627/- vide report (Annexure R-2/3) and this report was not challenged by the complainants, at any stage. The Surveyor and Loss Assessor, Sh. P. K. Bansal, had also filed his affidavit in support of his report (Annexure R-2/3) and as such, this report attained finality, being the last one. The District Forum, by placing reliance on Sikka Papers Limited Vs. National Insurance Company Limited, (2009) 7 Supreme Court Cases 777, New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC),and Dabirudin Cold Storage Vs. New India Assurance Company Ltd. & Ors., I (2010) CPJ 141 (NC), also held that the Surveyors report (Annexure R-2/3) was the final report and would be binding on the complainants. Once, it was held that the surveyors report (Annexure R-2/3) was the final report and since, the amount assessed by the surveyor was less than 75% of the Insured Declared Value of the vehicle, in question, and the vehicle was in repairable condition, in this situation, the complainants are not entitled to the Insured Declared Value, but at the most, they are entitled to Rs.3,40,627/-, as assessed by the surveyor. However, Opposite Party No.1, failed to show its bonafide that this amount of Rs.3,40,627/- was ever offered to the complainants. But these facts were not appreciated by the District Forum while passing the impugned order. In view of the above discussion, we are of the considered opinion, that the directions given by the District Forum vide the impugned order, are liable to be modified. Thus, the complainants are also entitled for compensation on account of mental agony and harassment.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, both the appeal bearing No.32/2013 filed by the appellants/Complainants and No.78/2013 filed by the appellant/Opposite Party No.1, are partly accepted. The impugned order passed by the District Forum, is modified, in the following manner:-
(i) The appellant/Opposite Party No.1, is directed to pay an amount of Rs.3,40,627/- [as assessed by the surveyor vide report dated 03.10.2012 (Annexure R-2/3)] to the complainants alongwith interest @9% per annum from 03.10.2012 till actual realization;
(ii) The appellant/Opposite Party No.1, is further directed to pay a sum of Rs.10,000/- to the complainants, as compensation for mental agony and harassment;
(iii) The appellant/Opposite Party No.1, is also directed to pay a sum of Rs.5,000/- to the complainants as cost of litigation.
(iv) This order be complied with, by the appellant/Opposite Party No.1, within a period of 45 days, from the date of receipt of its certified copy, failing which, it would be liable to pay the amounts mentioned in Clauses
(i) & (iii) alongwith interest @12% p.a. instead of 9% p.a. from the date of default till the date of actual payment to the appellants/complainants, besides payment of cost of litigation.
18. Certified copy of this order be placed in First Appeal No.78 of 2013.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
8th April, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Ad STATE COMMISSION (First Appeal No.32 of 2013) Argued by: Sh.
Pankaj Chandgothia, Advocate for the appellants.
Mrs. Neena Madan, Advocate for respondent No.1.
Service of respondent No.2 already dispensed with vide order dated 11.02.2013.
Respondent No.3 exparte.
Dated the 8th day of April, 2013.
ORDER Vide our detailed order of even date, recorded separately, this appeal, filed by the complainants as also the appeal bearing No.78 of 2013 filed by Opposite Party No.1, have been partly accepted, as per directions.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER(RETD.)) PRESIDENT Ad STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
78 of 2013 Date of Institution :
21.02.2013 Date of Decision :
08.04.2013 M/s Bharti AXA General Insurance Co. Ltd., SCO No.350-52, 1st Floor, Sector 34-A, Chandigarh. Now through Shri Ravi Raizada, Zonal Manager, Bharti AXA General Insurance Co. Ltd., 2nd Floor, BIGJOS Tower, A-8, Netaji Subhash Palace, New Delhi-110034.
Appellant/Opposite Party No.1.
Versus
1. Mr. Virinder Kumar Tiwari s/o Sh. D. N. Tiwari, #575, Sector- 7, Panchkula.
2. Ms. Narita Tiwari d/o Sh. V. K. Tiwari, #575, Sector- 7, Panchkula.
.Respondents/Complainants.
3. M/s PEE KAY & Co., Surveyors & Loss Assessors, #1078, Sector-15, Panchkula.
4. M/s Harmony Honda, C/o Joshi Automobiles Pvt. Ltd., Plot No.67, Industrial Area, Phase-II, Chandigarh.
.Respondents/Opposite Parties No.2 and 3.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Mrs. Neena Madan, Advocate for the appellant.
Sh. Pankaj Chandgothia, Advocate for respondents No.1 and 2.
Service of respondent No.3 already dispensed with vide order dated 07.03.2013.
Respondent No.4 exparte.
PER MRS. NEENA SANDHU, MEMBER.
1. For orders, see the orders passed in First Appeal No.32 of 2013 titled Sh. Virinder Kumar Tiwari and another Vs. M/s Bhrti AXA General Insurance Co. Ltd. and others, vide which this appeal has been partly accepted.
2. Copies of this order be sent to the parties free of charge.
Pronounced.
8th April, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER