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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Rajesh Bindal, Rashid Ali Dar, JJ.
Jamkash Vehicleades Private Limited and Anr. – Appellant
Versus
Sansar Chand and Ors. – Respondents
OWP No.1760 of 2018 (O&M)
Decided On : 23-09-2019
Consumer Protection Act, 1986 – Section 17 – Constitution of India – Article 226--- Damage to car in accident – Vehicle had been insured for a sum of Rs. 97,380/- and condition in policy provided that in case cost of repair is more than 75% of insured value, vehicle shall be treated as total loss – Surveyor had estimated claim of Rs. 60,674/- as the same did not exceed 75% of insured value, insurance company did not declare vehicle as total loss – There is huge delay even on part of petitioners to prepare estimates to repair vehicle or to correspond with owner of vehicle or Insurance Company – Though it was sought to be claimed that vehicle was repaired in year 2013 only, bill thereof was raised only on 14.10.2015, that too when matter was pending before District Forum – It was nearly two years after filing of compliant – None of parties apparently took effective steps to make efforts to sort out the issue – There is nothing on record as to whether after vehicle was repaired, as is claimed by petitioners, any intimation thereof was sent to owner of vehicle – All three parties being at default, issue can be resolved by directing Insurance Company to transfer ownership of vehicle in name of petitioners instead of claiming salvage after payment of claim by declaring the vehicle as total loss in terms of order passed by District Forum – Petition disposed of. (Paras 11 and 15)
ORDER :
Rajesh Bindal, J.
The present writ petition has been filed impugning the order dated 28.03.2018 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu (for short ‘the Commission’), whereby appeal filed against the order passed by the District Consumer Disputes Redressal Forum, Jammu (for short ‘the District Forum’) dated 13.02.2016, was dismissed.
2. Learned counsel for the petitioners submitted that one Maruti 800 car, bearing registration No. JK02X-4578 owned by the respondent No.1 met with an accident on 07.02.2012. The vehicle was brought to the workshop of the petitioners on 10.02.2012. Estimate for repairs was prepared by the petitioners on 25.02.2012. It was the calculation to make the vehicle road worthy. The amount estimated was Rs. 1,20,580/-. The estimate did not have any relation with the amount which may be reimbursed by the insurance company on account of various conditions in the policy. The insurance company was informed. Surveyor was appointed on 06.03.2012. He inspected the vehicle on 08.03.2012 and submitted his report on 18.06.2012. The vehicle had been insured for a sum of Rs. 97,380/- and the condition in the policy provided that in case the cost of repair is more than 75% of the insured value, the vehicle shall be treated as total loss. The surveyor had estimated the claim of Rs. 60,674/- as the same did not exceed 75% of the insured value, the insurance company did not declare the vehicle as total loss.
3. It was further submitted that the petitioners sent a communication to the respondent No.1/the owner of the vehicle and asked him to deposit Rs. 25,000/- as advance so as to enable the petitioners to start repairs of the vehicle, as insurance company had assessed the claim only to the tune of Rs. 60,674/-. The delay was for the reason that the respondent No.1 was persuading the insurance company to declare the vehicle as total loss. The aforesaid letter of the petitioners was replied to by the respondent No.1/owner on 15.03.2013 consenting to the repairs. It was followed by another letter dated 02.04.2013. Thereafter, on 28.05.2013, the respondent No.1/owner deposited a sum of Rs. 2,500/- towards repairs of the vehicle. After complete repairs, final bill to the tune of Rs. 1,23,111/- was prepared. In fact the vehicle had been repaired in the year 2013 only. However, the billing and other formalities were kept pending on the request of the petitioners as he was persuading the insurance company to declare the vehicle as total loss. This is even evident from the fact that the respondent No.1 filed a complaint before the District Forum with a prayer for reimbursement of loss and payment of compensation.
4. The argument is that the District Forum committed an error in allowing the complaint filed by the respondent No.1. It declared the vehicle as total loss while calculating the estimate prepared by the surveyor appointed by the insurance company and the amount of advance demanded by the petitioners for carrying out the repairs. Taking the total amount as more than 75%, the vehicle was declared as total loss. In appeal filed by the petitioners before the State Commission, it was wrongly recorded that the insurance company had agreed to pay Rs. 25,000/-. Some error was committed. The insurance company was not aggrieved against the orders passed by the authorities below. While deciding the appeal the State Commission had granted liberty to the petitioners to seek relief from the insurance company. The petitioners have been left in dilemma. The owner of the vehicle got the claim of total loss of vehicle from the insurance company. He is happy. The petitioners carried out the repairs of the vehicle and bill for the same was raised to the tune of Rs. 1,23,111/- but the same is not being paid to the petitioners and no one has co
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