Date of Filing : 23.04.2019
Date of Disposal: 07.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU.P.MURUGAN,M.Com.ICWA (Inter)., B.L., ....MEMBER-II
CC. No.25/2019
THIS WEDNESDAY, THE 07th DAY OF SEPTEMBER 2022
Mr.Tarzan, W/o.P.Sekar Rajan,
No.8, Periyar Street,
Manavala Nagar,
Vengathur Village and Post,
Thiruvallur Taluk & District. ……Complainant.
//Vs//
1.M/s.IFCO Tokoya General Insurance Company Limited,
Rep. by its General Manager,
Office at No.28, Old No.195,
North Usman Road, T.Nagar, Chennai.
2.M/s.IFCO Tokoya General Insurance Company Limited,
Rep. by its Authorized Person,
IFFCO Tower, Plot No.3, Sector 29, Haryana 122 001.
3.The Harsha Toyota Private Limited,
Rep. by its CEO,
No.142-A, Vellappan Chavadi,
P.H.Road, Chennai. …..opposite parties.
Counsel for the complainant : Mr.A.R.Poovannan, Advocate.
Counsel for the opposite parties 1 & 2 : Mr.A.Naveenkumar, Advocate.
Counsel for the 3rd opposite party : Exparte.
This complaint is coming before us on various dates in the presence of Mr.A.R.Poovannan, Advocate counsel for the complainant and Mr.A.Naveenkumar Advocate counsel for the opposite parties 1 & 2 and upon perusing the documents and evidences produced by both parties this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties aggrieved by the repudiation of the insurance claim along with a prayer to direct the 3rd opposite party to carry out the entire repairs of the vehicle as per the insurance policy condition or to direct the opposite parties 1 & 2 to pay a sum of Rs.12,00,000/- the amount towards total loss of the vehicle as per the surveyor’s report of the opposite parties 1 & 2 and directing the opposite parties to pay a sum of Rs.5,00,000/- as compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.3,00,000/- which was already spent by the complainant towards the private transport as transportation charges and to pay a sum of Rs.10,000/- as cost of the proceedings to the complainant.
Sum and substance of the complaint:-
It was submitted that the complainant who is the owner of TOYATO INNOVA CAR bearing registration No.TN 20 CD 5868 was insured with the 1st opposite party for a period from 18.05.2018 to 17.05.2019, met with an accident on 02.08.2018 between Poonamallee and Thiruvallur and the case was registered in crime No.465/2018. The accident was immediately informed to the opposite parties and on 07.08.2018 the complainant handed over his vehicle to the 3rd opposite party for repairs. The 3rd opposite party informed that the repair would be done after the assessment was made by the surveyor of the insurance company. However, the opposite parties 1 & 2 declared the vehicle as total loss and processed online auction to sell the vehicle. Thereafter on several efforts taken by the complainant three surveyors inspected the vehicle in the absence of complainant and sent the report to the opposite parties which were totally illegal. It was further submitted that for more than three months the complainant’s vehicle was kept idle by the 3rd opposite party. On 04.10.2018 the complainant sent a letter to the 1st opposite party. It was further submitted that the total IDV value of the car as mentioned in the insurance policy at the time of accident is Rs.8,00,000/- but the value of the car actually was Rs.12,00,000/-. Thus the complainant is entitled to receive a sum of Rs.12,00,000/- towards cost of the vehicle and Rs.8,00,000/- towards compensation for the mental agony and hardship and other expenses. Thus aggrieved by the act of the opposite parties the present complaint was filed for the following reliefs;
To direct the 3rd opposite party to carry out entire repairs of the vehicle as per the insurance policy condition or to direct the opposite parties 1 & 2 to pay a sum of Rs.12,00,000/- the amount towards total loss of the vehicle as per the surveyors report of the opposite parties 1 & 2;
To direct the opposite parties to pay a sum of Rs.5,00,000/- as compensation for the mental agony and hardship caused to the complainant;
To pay a sum of Rs.3,00,000/- which was already spent by the complainant towards the private transport as transportation charges;
To pay a sum of Rs.10,000/- as cost of the proceedings to the complainant;
Defence of the opposite parties 1 & 2:-
The opposite parties 1 & 2 filed written version disputing the complaint allegations stating that the present complainant is not maintainable before this Consumer Forum. It was the submission that though the accident occurred on 02.08.2018 the same was intimated to them only on 10.08.2018 and there was delay in the claim. However the same was entertained and surveyor was appointed to assess the loss. It was submitted that as per the policy terms and conditions whenever the repair liability exceeds 75% of the IDV value the insured vehicle claim shall be treated as constructive total loss. As the estimate by the surveyor was made for Rs.3,29,703/-, the same was communicated to the complainant to the 3rd opposite party but the 3rd opposite party submitted a revised estimate for a sum of Rs.4,19,246/-. As there were differences in the estimation report another surveyor was appointed. After dismantling the vehicle the 3rd opposite party has submitted an estimate for a sum of Rs.5,85,535/-. Thereafter receiving the estimation again one Mr.Gowthamkannan thoroughly conducted the survey and submitted his assessment including the repair liability and replacement to the tune of Rs.6,48,000/- which is 81% of the total IDV. Before finalizing the final estimation the complainant had given a consent letter dated 04.10.2018 accepting that if the repair liability was 75% of the ID value that it could be treated as constructive total loss. Therefore, according to the damage to the vehicle the repair liability and replacement liability is more than 85% of the ID value and hence the claim cannot be accepted as per the terms and conditions of the policy and submitted that the opposite parties are always ready to pay the total loss value as per the terms and conditions and thus the opposite parties sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A9 were marked on their side. On the side of opposite parties 1 & 2 proof affidavit was filed and documents Ex.B1 to Ex.B13 was marked. In spite of sufficient opportunities given by this commission, the 3rd opposite party did not appear and hence was called absent and was set exparte on 30.05.2019 for non appearance and non filing of written version.
Points for consideration:-
1) Whether the opposite parties had committed deficiency in service in holding the insurance claim made by the complainant as total loss claim?
2) If so to what reliefs the complainant is entitled?
Point No.1
On the side of the complainant following documents were filed in support of his allegations;
Service bills dated 07.08.2018 was marked as Ex.A1;
Complaint by the complainant to the 1st opposite party dated 04.10.2018 was marked as Ex.A2;
Mail correspondence by the complainant dated 06.10.2018 to 23.11.2018 was marked as Ex.A3;
Complaint by the complainant to the 3rd opposite party dated 14.11.2018 was marked as Ex.A4;
Legal notice by the complainant dated 11.12.2018 was marked as Ex.A5;
Return cover acknowledgment by the 1st opposite party dated 21.12.2018 was marked as Ex.A6;
Postal tracking- delivered to 2nd opposite party was marked as Ex.A7;
Postal tracking- delivered to 3rd opposite party was marked as Ex.A8;
Receipts (series) was marked as Ex.A9;
On the side of opposite parties 1 & 2 the following documents were filed in support of their defence;
Insurance policy dated 18.05.2018 was marked as Ex.B1;
Terms and condition of the policy was marked as Ex.B2;
FIR copy dated 06.08.2018 was marked as Ex.B3;
Email correspondence between the parties was marked as Ex.B4;
Estimations were marked as Ex.B5 to Ex.B8;
External surveyor Mr.Gowthamkannan report dated 24.10.2018 was marked as Ex.B9;
Letter to complainant dated 29.09.2018 was marked as Ex.B10;
Consent letter given by the complainant dated 04.10.2018 was marked as Ex.B11;
Legal notice from the complainant dated 11.12.2018 was marked as Ex.B12;
Final reminder sent by the opposite party dated 02.01.2019 was marked as Ex.B13;
We perused the pleadings and the evidences produced by both parties. It was the case of the complainant that when the vehicle was left with the 3rd opposite party they failed to do the repairs of the vehicle as per the insurance policy conditions till now and that as per surveyor report the opposite parties 1 & 2 are liable to pay a sum of Rs.12,00,000/- to them along with Rs.3,00,000/- spent by the complainant for private transport with 24% interest. Thus the complainant submitted that he was eligible for the compensation as he was put to huge mental agony and hardship by the act of the opposite parties.
On the other hand, the opposite parties 1 & 2 argued that they have settled the claim with regard to the third party claim under Motor insurance original petition. It was alleged that there was total constructive loss amounting to 81% and hence as per the policy conditions it is the case of the opposite parties that the vehicle could not be repaired and no claim could be made and even today they are ready to pay the total loss value to the complainant as the assessment exceeds 75% of the ID value.
On perusal of the complaint allegations it is the main allegation of the complainant that the opposite parties 1 & 2 are liable to pay Rs.12,00,000/- towards loss of the vehicle as per the surveyor report of the opposite parties 1 & 2. Further they also claim Rs.3,00,000/- towards the amount spent by them for private transport as there was delay by the opposite parties in honouring the claim. As per the legal notice issued by the complainant on 11.12.2018 the complainant had insisted the opposite parties to either carry out entire repairs of the vehicle or to pay the amount towards total loss damage of the vehicle. It was an admitted fact that the insured value of the car as mentioned in the policy is only Rs.8,00,000/-. Further it is seen that one after another three surveyors had inspected the car and filed three different reports and the assessment of loss in the reports varies. In such circumstances we are not in a position to hold that the case of the complainant has been proved against the defence put forth by the opposite parties with regard to the assessment of loss caused to the vehicle based on the different surveyor reports. However it is seen that the opposite parties 1 & 2 had committed delay in carrying out the repairs either they should have carry out repairs or settle the claim on the basis of total loss of the policy. Even after lapse of 8 months till the complaint was filed on 23.04.2019, the opposite parties had not done either, It is seen that the opposite party had not settled the claim. Thus, we are of the view that the opposite parties failed to either carry out the repair for the damaged vehicle or to settle the total loss claim as per the policy terms and conditions within a reasonable time and thus committed deficiency in service. Hence, they could have caused the mental agony and hardship to the complainant for which he should be compensated properly. Thus we answer the point holding that the opposite parties 1 & 2 had committed deficiency in service in causing delay in settling the claim of the complainant.
Point No.2:
With regard to the reliefs to be granted to the complainant we direct the opposite parties 1 & 2 to settle the claim of the complainant either to approve the claim to repair the vehicle or to settle the claim on the basis of total loss within six weeks from the date of receipt of copy of this order and also to pay a compensation of Rs.10,000/- for the mental and hardship caused to the complainant. We also award Rs.5,000/- towards cost of the litigation expenses to the complainant.
In the result, the complaint is dismissed against the 3rd opposite party and partly allowed against the opposite parties 1 & 2 directing them
a)to consider the claim of the complainant within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony caused to the complainant;
c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 07th day of September 2022.
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 07.08.2018 Service bills. Xerox
Ex.A2 04.10.2018 Complaint by the complainant to the 1st op. Xerox
Ex.A3 06.10.2018 to 23.11.2018 Mail correspondence by the complainant. Xerox
Ex.A4 14.11.2018 Complaint by the complainant to 3rd op. Xerox
Ex.A5 11.12.2018 Legal notice by the complainant. Xerox
Ex.A6 21.12.2018 Retrun cover acknowledgement of 1st op. Xerox
Ex.A7 21.12.2018 Postal tracking-deliver to 2nd op. Xerox
Ex.A8 20.12.2018 Postal tracking-deliver to 3rd op. Xerox
Ex.A9 07.08.2018 to 15.03.2019 Recepts (Series) Xerox
List of documents filed by the opposite parties 1 & 2:-
Ex.B1 18.05.2018 Insurance policy. Xerox
Ex.B2 …………….. Terms and conditions of insurance policy. Xerox
Ex.B3 06.08.2018 FIR copy. Xerox
Ex.B4 ……………… Email correspondence between the complainant and the opposite parties 2 &3. Xerox
Ex.B5 ……………. 1st Estimation. Xerox
Ex.B6 ……………… 2nd Estimation. Xerox
Ex.B7 ……………. 3rd Estimation. Xerox
Ex.B8 ……………… 4th Estimation. Xerox
Ex.B9 24.10.2018 External surveyor Mr.Gowthamkannan report. Xerox
Ex.B10 29.09.2018 Letter to complainant. Xerox
Ex.B11 04.10.2014 Consent letter given by the complainant. Xerox
Ex.B12 11.12.2018 Legal notice from the complainant. Xerox
Ex.B13 02.01.2019 Final remainder. Xerox
Sd/- Sd/- Sd/-
MEMBER-II MEMBER-I PRESIDENT
