State Consumer Disputes Redressal Commission
New India Assurance vs Kumar Gaurav on 13 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 331 of 2012 Date of Institution 27.09.2012 Date of Decision 13.12.2012 1. The Chief Regional Manager, New India Assurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh. 2. The Senior Divisional Manager, New India Assurance Company Ltd., SCO No.804, Manimajra, Chandigarh. (now through Sh.A.L.Madan, Manager, New India Assurance Company Limited, SCO No.36-37, Sector 17-A, Chandigarh). .Appellants/Opposite Parties No.3 and 4 V E R S U S 1. Kumar Gaurav son of Sh.Rajinder Pal Sharma, r/o H.No.176, Sector 15, Dashmesh Nagar, Kharar, District Mohali. ..Respondent No.1/Complainant 2. Hyundai Motor India Ltd., 5th and 6th floor, Corporate One ( Banni Building), Plot No.5, Commercial Centre, Jasola, New Delhi-110076. 3. The Chief Regional Manager, Regional Office, M/s Hyundai Motor India Ltd., B-2, 3rd Floor, DLF, IT Park, Chandigarh. 4. M/s Ultimate Automobiles Pvt. Ltd., 155, Industrial Area, Phase I, Chandigarh. Respondents/Opposite Parties No.1, 2 and 5 BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT MRS. NEENA SANDHU, MEMBER
SHRI SUBHASH CHANDER JAIN, MEMBER Argued by: Sh.Raghujeet Singh Madan, Advocate for the appellants. Sh.Jagjit Singh Chatrath, Advocate for respondent no.1. Sh.Gaurav Bhardwaj, Advocate for respondents No.2 and 3. Sh.Aftab Singh Khara, Advocate for respondent No.4. MRS. NEENA SANDHU, MEMBER
This appeal is directed against the order dated 24.08.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed Opposite Parties No.3 and 4 (now appellants) as under:
13] Keeping in view the peculiar circumstances of the case as well as forgoing discussion, we came to the conclusion that it would be appropriate & justified to direct the OP Insurance Company (OPs NO.3 & 4) to treat the claim of the complainant as a case of Total Loss and should pay the Insured Declared Value of the car to the complainant, as per insurance cover (Ann.C-6 & C-7). Therefore, the present complaint having lot of merit, weight and substance is hereby allowed. Accordingly, the OPs No.3 & 4 (Insurance Company) are directed to jointly & severally pay the Insured Declared Value of Rs.7,15,000/- (Ann.C-7) to the complainant by treating his claim as total loss. The salvage shall be taken over/remain with OPs NO.3 & 4. The OP No.3 & 4 are also directed to jointly & severally pay compensation of Rs.50,000/- for causing inconvenience, mental & physical harassment to the complainant, apart from paying litigation cost of Rs.15,000/-.
This order be complied with by the OP No.3 & 4 jointly & severally within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay the above awarded amount of Rs.7,65,000 (Rs.7,15,000/- + 50,000/-) along with interest @12% p.a. from the date of filing this complaint i.e. 20.04.2012 till its actual payment, besides paying litigation costs, as aforesaid.
14. However, the complaint qua OP No.1,2 & 5 stands dismissed.
2. In brief, the facts of the case are that the complainant purchased Hyundai Verna Car on 23.4.2010 from Opposite Party No.5 and got it insured from Opposite Parties No.3 & 4 for the Insured Declared Value of Rs.7.15 lacs. Unfortunately, the said car met with an accident on 16.5.2011 and was badly damaged. The complainant informed the Insurance Company about the accident and took the car to Opposite Party No.5 for repairs, which in turn, gave an estimate of Rs.7,38,252/-. The body shell of the car was also required to be replaced. It was stated that the Insurance Company gave the instructions, to the dealer for repairs of the vehicle but the same was not repaired because the body shell of the car was not received, by the dealer, from the manufacturer. The complainant received a letter dated 13.1.2012, from Opposite Party No.5 that the body shell of the said vehicle was not available. The complainant sent a legal notice to the Opposite Parties for settlement of his claim, but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant, 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), was filed.
3. In their written reply, Opposite Parties No.1 & 2 i.e. Hyundai Motor India Limited stated that they informed Opposite Party No.5, that body shell of the same model and VIN number were not serviceable.
However, individual parts could be provided. It was also informed that the car would not come into its original shape, and strength, by replacing the individual parts, keeping in view the extensive damage caused to it in the accident. Thus, Opposite Party No.5 requested Opposite Parties No.3 & 4 to settle the claim, as total loss. It was stated that the estimated repair cost of the vehicle, in question, as prepared by Opposite Party No.5, was to the tune of Rs.7,38,252/-, which came to be 88.84% of price of the car i.e. Rs.8,30,980/-. It was further stated that after discussion, Opposite Parties No.3 & 4 sent a letter dated 30.4.2012 to the complainant offering an amount of Rs.2,50,000/- alongwith salvage value of the vehicle on cash loss basis but till date, no response was received from the complainant. It was further stated that, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice. The remaining allegations were denied, being false.
4. In their written version, Opposite Parties No.3 & 4 admitted the factual matrix of the case. It was stated that Sh.Balinder Singh, Surveyor was appointed to assess the loss, who inspected the damaged vehicle, at the workshop and collected the estimates prepared by M/s Ultimate Automobiles/Repairer. It was further stated that based on the Surveyors report, it was decided to allow the replacement of body-shell of the damaged vehicle, with a new one, which was to be provided by Opposite Parties No.1, 2 & 5.
It was further stated that the complainant was informed that with the replacement of new body shell, the vehicle would come to its original position. It was further stated that the claim was settled strictly as per the Survey Report and as per the motor policy terms & conditions.
It was further stated that if the vehicle was fully repairable, the same could not be declared as total loss, as it was insured for Rs.7,15,000/-, whereas as per the Survey Report, the loss was assessed to the tune of Rs.3,86,168/-.
Therefore, the vehicle could not be declared as total loss, when there was partial loss to the same. It was further stated that, Opposite Parties No.3 and 4, were neither deficient, in rendering service, nor indulged into unfair trade practice.
5. In its separate written statement, Opposite Party No.5 i.e. authorized dealer stated that it showed its inability to repair the car, as the manufacturer could not provide the complete body shell. It was further stated that, it in order to provide better quality service, refused to repair the same. The vehicle in question was still lying in the workshop for the last 7 months as the complainant failed to settle the insurance claim with the Insurance company. The remaining allegations were denied being false.
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, as stated above. 8. Feeling aggrieved, the instant
appeal, has been filed by the appellants/Opposite Parties No.3 and 4.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the appellants/ Opposite Parties No.3 & 4 submitted that the complainant purchased a Hyundai Verna car on 23.04.2010, and got it insured for the IDV of Rs.7.15 lacs. It was further submitted that the same met with an accident and suffered extensive damage. The complainant took it to the authorized dealer i.e. respondent No.4 which prepared the estimate to the tune of Rs.7,38,252/- which included Rs.92,492.99 as labour charges. It was further submitted that the appellants opted to get the vehicle repaired and the requisite instructions were given to the authorized dealer regarding the same. However, more than 10 months passed but the repairs were not started and after 6-1/2 months, the complainant received a letter dated 13.01.2012, Annexure C-1 wherein it was mentioned by the manufacturer that the body shell for Verna Vehicle, for the above model and Vin number were not available. However, individual parts could be provided. He further submitted that the surveyor assessed the loss to the tune of Rs.3,86,168/- after physical inspection of the vehicle. He further submitted that the District Forum wrongly held that the appellants should have treated the vehicle, as total loss, and should pay the IDV of the vehicle, despite the fact that the surveyor assessed the loss to the tune of Rs.3,86,168/-.
He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
11. On the contrary, the Counsel for the complainant submitted that since the vehicle met with an accident, and, as per the warranty terms and conditions of the vehicle, the damage or repairs due to accident, fire, tempering or improper repair, negligence of proper maintenance of the vehicle, and use of parts other than Hyundai parts were not covered under the warranty policy and, as such, the appellants were liable to indemnify the complainant for the damage, which occurred due to the accident. He further submitted that the complainant received letter dated 13.01.2012 from respondent No.4/Opposite Party No.5 that the body shell of the vehicle was not available. He further submitted that Opposite Party No.5, prepared the repair estimate, Annexure C-3, to the tune of Rs.7,38,252/-, which included Rs.92,492.99 as labour charges, whereas, the surveyor assessed the net loss to the tune of Rs.3,86,168/- vide his report dated 24.01.2012 and, therefore, he was entitled to the IDV of the vehicle and, as such, the order of the District Forum, being legal, is liable to be upheld.
12. On the other hand, the Counsel for respondents No.2 and 3/Opposite Parties No.1 & 2 (manufacturer) submitted that they informed respondent No.4/Opposite Party No.5 (dealer) that body shell of the same model and VIN number of the vehicle were not available. However, the individual spare parts could be provided. He further submitted that the complainant was informed, regarding this fact, that the car would not come into its original shape, and strength, by replacing the individual parts, without replacing the body shell. He further submitted that the District Forum rightly dismissed the complaint qua respondents No.2 and 3.
13. The Counsel for respondent No.4/Opposite Party No.5 (authorized dealer) submitted that it showed its inability to repair the car, as the manufacturer could not provide the complete body shell. He further submitted that there was no deficiency, in rendering service, on its part and thus, the District Forum rightly dismissed the complaint qua it.
14. Admittedly, the manufacturer showed its inability to provide the new body shell of the vehicle and, as such, no repair could be effected to the same (vehicle). Faced with this situation, the only remedy which was left with the complainant was to get the indemnification of the loss suffered by him, from the Insurance Company. Now the question arises for consideration, is, as to whether, the District Forum was right in concluding that the claim of the complainant should be treated as a case of total loss or not.
15. The perusal of repair estimate (Annexure C-3) prepared by M/s Ultimate Automobiles Pvt. Ltd. shows that the total estimated cost for repairs was Rs.7,38,252/- which included Rs.92,492.99 as labour charges + Rs.6,45,759/- as cost of 142 items to be replaced, whereas, the surveyor assessed the net loss to the tune of Rs.3,86,168/- i.e. Rs.24,500/- as labour charges + Rs.3,69,644.61/- as costs of the 71 items to be replaced. But the surveyor did not mention, in his report, why he gave an estimate of 71 items instead of 142 items, as mentioned, in the repair estimate given by Opposite Party No.5. Even, from the report of the surveyor, it is not clear, that on what basis he reduced the labour charges, and which parts were to be excluded under the terms and conditions of the Insurance Policy.
Hence, it appears that the surveyor had not conducted the complete assessment of the damaged parts of the vehicle and, thus, the report furnished by him was incomplete and could not be relied upon and accepted. Admittedly, the vehicle was insured for the IDV of Rs.7.15 lacs. The estimated cost of repairs given by Opposite Party No.5 was Rs.7,38,252/-. Since the cost of the repairs was more than the insured declared value of the vehicle i.e. Rs.7.15 lacs and, therefore, the District Forum was right in directing the Insurance Company to treat the claim of the complainant as a case of total loss and pay the Insured Declared Value i.e. Rs.7.15 lacs to him alongwith compensation and litigation costs. The order passed by the District Forum, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
13.12.2012 sd/-
[JUSTICE SHAM SUNDER[RETD.] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER [SUBHASH CHANDER JAIN] cmg APPEAL No. 331 of 2012 Argued by:
Sh.Raghujeet Singh Madan, Advocate for the appellants.
Sh.Jagjit Singh Chatrath, Advocate for respondent no.1.
Sh.Gaurav Bhardwaj, Advocate for respondents No.2 and 3.
Sh.Aftab Singh Khara, Advocate for respondent No.4.
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Vide our detailed order of the even date recorded separately, the appeal is dismissed, with no order as to costs and the order of the District Forum is upheld as per directions contained therein 13.12.2012 EMBER) (MEMBER) (PRESIDENT)