National Insurance Co. Ltd vs Sheela Devi Mittal

Dr. Inder Jit Singh, Presiding Member

The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 24.09.2018 of the State Consumer Disputes Redressal Commission Delhi (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 1226 of 2013 in which order dated 06.08.2013 of District Consumer Disputes Redressal Forum Central Delhi (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 242 of 2011 was challenged, inter alia praying for setting aside the order dated 24.09.2018 of the State Commission.

While the Revision Petitioner (hereinafter also referred to as OP) was Respondent before the State Commission and OP before the District Forum,  the Respondent (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Forum.

Notice was issued to the Respondent on 21.02.2019.  Parties filed Written Arguments/Synopsis on 04.03.2024 ( Petitioner ) and 28.01.2024 ( respondent ) respectively.

Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant had purchased a Tavera Taxi which was insured with the OP for a sum of Rs.3,50,000/-.  During the insurance period, the said vehicle met with an accident on 06.09.2011 with the truck at village Nari, Police Station Chhata, Mathure, UP.  Report of the accident was lodged with the Police and matter was also informed to the OP who sent its surveyor for spot inspection.  After spot inspection, vehicle was brought to Delhi and was parked at M/sAuto Vikas Sales and Services Pvt. Ltd., Rama Road, Delhi.  The estimate of the repair was done on 09.09.2011 and M/s Auto Vikas Sales and Services Pvt. Ltd. gave the estimate of Rs.8,00,000/- which was submitted to the OP vide letter dated 13.09.2011.  On 13.09.2011 OP appointed its surveyor namely Sh. S.P. Mangla to whom the complainant gave receipt of Rs.8000/- for crane charges for bringing the vehicle from place of accident to M/s Auto Vikas Sales and Services Pvt. Ltd.  The OP was duly informed that it was a case of total loss as estimated repair charges were much more than the market value of the vehicle.  The complainant asked to assess the loss as total loss and was ready to hand over the vehicle to the OP on payment of insured amount of Rs.3,50,000/-.  The complainant sent a letter dated 27.09.211 to the OP regarding settlement of claim as M/s Auto Vikas Sales and Services Ltd. was charging Rs.200/-  per day  as parking charges.  It is further the case of the complainant that instead of settling the claim, the surveyor sent a letter dated 15.10.2011 which was duly replied. The Complainant vide letter dated 20.10.2011 stated that he did not want to get any repair done and instead of repairing of the vehicle, claim should be settled on payment of the insured amount of Rs.3,50,000/-. Complainant stated that he paid Rs.13,157/- to M/s Auto Vikas Sales and Services Pvt. Ltd. by 05.11.2011 as parking charges and despite writing many letter, claim had not been settled by the OP.  Being aggrieved, the Complainant filed CC before the District Forum and District Forum vide order  dated 06.08.2013 directed the OP to settle the claim by making a payment of Rs.1,27,533/-.  Being aggrieved, the Complainant preferred an appeal before the State Commission and State Commission vide order dated 24.09.2018 allowed the appeal of the Complainant.  Therefore, the OP is before this Commission now in the present RP.

Petitioner has challenged the said Order dated 24.09.2018 of the State Commission mainly on following grounds:

i. State Commission placed reliance on the photographs of the insured vehicle while disregarding other material placed on record and modified the order of the District Forum without adjudicating or assigning reasons for its modifications.

ii. State Commission failed to appreciate that District Forum passed its order upon comprehensive examination and consideration of material placed on record by both the parties.

Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1 Learned counsel for the Petitioner apart from repeating the points which have been stated in para 5, argued that as per the report of the surveyor, the damage is on the left rear door of the insured vehicle, quarter panel L/S, dicky, dicky glass, roof, rear bumper and tail lights were not damaged in the accident and were pre existing to the current accident and are not payable in the claim.  Further, surveyor has assessed the claim on repairing cash loss basis, after deducting 40% depreciation from the cost of metal parts and deduction of depreciation @ 50% of the cost of rubber / plastic parts and assessed the claim to the tune of Rs.1,27,532/-. It is further argued that surveyor has written two letters dated 15.10.2011 and 31.10.011 to the insured in which surveyor has categorically stated that husband of the insured was informed that gross repairing amount would be Rs.3,00,000/- to Rs.3,50,000/- out of which 40% of metal parts and 50% of plastic parts would be borne by insured and further the portion of the vehicle which was not damaged in the accident would be the liability of the insured and offer of Rs.1,27,532.69 was made to the respondent and instead of replying to the same, respondent filed the complaint.

6.2 Learned counsel for the respondent argued that Auto Vikas Sales and Service Pvt. Ltd. is the authorized service station of M/s General Motors India Ltd., the manufacturer of the vehicle of the respondent, who had given estimate of Rs.8,00,000/- whereas the market value of the vehicle of the respondent is  Rs.3,50,000/- - Rs.4,0,000/-. Further, Petitioner failed to settle the claim which resulted that M/ Auto Vikas Sales and Service Pvt. Ltd. started charging Rs.2000/- per day ( in the SC order, it is Rs.200/-) as parking charges from the respondent.  The respondent had already informed the Company to settle the claim as early as possible otherwise the Company is liable to pay parking charges. The respondent had made the payment of Rs.13,157/- as parking charges to the Auto Vikas Sales and Services pvt. Ltd. It is further argued that Petitioner instead of making the payment of Rs.3,50,000/- to the respondent, turned down the claim of the respondent and made false allegation that respondent wants to get repaired from the unauthorized service station from market, which in fact is never possible as vehicle is a taxi and being commercial vehicle and it is very risky to get repair work from the unauthorized service station from market and the estimate of the authorized service station has already been submitted to the tune of Rs.8,00,000/-. Counsel further argued that after receiving the letter dated 10.10.2011, a false and frivolous letter is received from Sh. S.P. Mangla, surveyor appointed by the Petitioner who has even no authority to write such kind of letter and there is no brevity of contract between S.P.Mangla, the surveyor of the Petitioner and the respondent.

6.3.  Counsel for the respondent further contended that State Commission has discussed in detail the evidence filed by both the parties and observed that the estimates clearly show that vehicle was damaged extensively and any effort to repair the taxi would not have  not have made the taxi safe for riders.

We have carefully gone through the orders of State Commission, District Forum, other relevant records and rival contentions of the parties.  Extract of relevant paras of order of State Commission is reproduced below :

“12.  In written statement it is submitted by the respondent / OP that ‘on examination of the taxi, it was observed that the back, roof and left rear of the taxi were also damaged, which was not connected with the accident.  Certain damages were not found payable.  These damages were regarding the damages to the vehicle on its rear side or so”.  It was stated that liability of the respondent / OP would be limited to the repairing of the portion which had been damaged in the accident and balance would be borne by the insured under the circumstances, the company had no other alternative but to submit independent report of the loss subject to the terms and conditions of the policy.  Ultimately, the insured was found entitled for a sum of Rs.1,27,532.69/- only on repairing cash loss basis.

Main controversy in this case is that whether it is a case of total loss

The Ld. District Forum relying on submission of the respondent/OP reached the conclusion that damages in the back, roof and left rear of the taxi were not connected with the accident. As the taxi had hit a truck at the back side of it and front portion of the taxi went inside the truck and only the front of the taxi was damaged due to accident hence there would not be a total loss to the taxi and awarded the amount to the appellant/complainant as assessed by the respondent/OP.

As it is evident from the police report that, the front and rear portion of the vehicle were damaged, but damage in the front portion of the taxi was more than the rear portion. Appellant/complainant has placed on record photograph of the taxi which shows that the vehicle is badly damaged from front to rear. Appellant/complainant has also placed on record the estimates, for repair given by M/s. Auto Vikas Sales and Services Pvt. Ltd where his vehicle was brought for repairs of Rs.8,00,000/- which was much more than the price of the vehicle. These estimates clearly show that the vehicle was damaged extensively and any effort to repair the taxi would not have made the taxi safe for riders. The observation of the District Forum that damage to the rear portion to the vehicle was not related to the accident is fallacious. The Fora below has awarded a sum of Rs. 1,27,532.69/- as the settlement amount offered by the insurance company without considering the submission made by the appellant in its complaint and documents filed along with affidavit.

After looking the photograph of the taxi which is badly damaged hence we had reached to a conclusion that order of the Ld. District Forum suffered from some defect.

In our view none of taxi operator would like to run a repaired vehicle where the repair cost was more than price of a new vehicle or neither commuter should be put to risk of riding such a vehicle the best option is that the insurance company should have paid the insured amount of Rs. 3,50,000/- to the appellant/complainant.

In view of above discussions we find force in the submissions made by the appellant/complainant.

Hence the appeal is allowed and order of the Ld. District Forum is modified as under:

“Respondent/OP is directed to pay to the appellant/complainant Rs.3,50,000/- the insured value of the taxi in question alongwith 6% interest from the date of filing of the complaint till its realization. Along with Rs.8,000/- for towing the vehicle to the Delhi and also the parking charges of Rs.13,157/-.

State Commission has given a well-reasoned order and we find no reason to interfere with its findings.  There is no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.  Accordingly, the Revision Petition is dismissed.

The pending IAs in the case, if any, also stand disposed off.