IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 2nd day of November 2009 OP.No.124/2005 K.K.Usman, Kalukkothumkandy House, Complainant Peringathur, Thalassery Taluk (Rep. byAdv.K.Viswan) 1.Branch Manger, National Insurance Company Ltd., 57,Thiruvi-ka Industrial Estate, Opposite Parties Guindy Dist.Chennai. 2. National Insurance Company Ltd., Thalassery. (Rep. by Adv.V.K.Rajeev) O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay balance amount towards repair and labour charges and an amount of Rs.5 000/- as cost of this proceedings. The brief case of the complainant is as follows:-The jeep bearing NO.KL.10G.1923 owned by the complainant insured with 1st opposite party for a period of 29.4.2003 to 28.4.2004. Complainant obtained finance from Sriram Investment, Chennai on the vehicle. The vehicle met with a road traffic accident at Ayinikkad, Vadakara within the limits of Payyoli police station. Massive damage has been sustained together with toll of some person in the bus that hit the jeep. Complaint lodged before Payyoli Polcie station. The Joint RTO inspected the vehicle and filed report. The whole body and other functioning accessories were completely dashed and damaged. The drivers of both vehicles sustained grievous injuries and the driver of the jeep succumbed to the injuries. The complainant presented his claim before the Insurance Company with relevant documents. The repair of the jeep incurred Rs.1, 50,000/- Vouchers were furnished to opposite party through their office Kannur. The 2nd opposite party conducted enquiry in a very negligent manner to deny legitimate claim of the complainant. Complainant sent notice to Divisional office of the opposite party at Kannur and they sent reply with an advice to proceed against the opposite parties herein. Complainant issued lawyer notice to opposite parties. The opposite parties refused to settle the claim amicably. The total repair charge incurred is Rs.1, 53,937/- and labour charge Rs.25, 000/-.Shriram Group Company issued a cheque for Rs.45, 680/- towards cost of damage and same is not at all sufficient compensation. Deducting the said amount the opposite parties are liable to pay an amount of Rs.1, 33,257/- towards repair and labour charges. The unilateral refusal caused much trouble and the sole source of income stopped, by which, he became dependent of relatives for livelihood. The opposite parties are liable to settle the claim. Hence this complaint. Pursuant to the notice the opposite parties entered appearance and filed version jointly. The contention of opposite parties are as follows: the complainant had already received the insurance amount of Rs.45, 680/- from 1st opposite party towards full and final satisfaction of the claim. Hence the complaint is not maintainable. The jeep KL.10/G.1923 was insured with the 1st opposite party’s office at Guindy, Chennai. As per the registration certificate of the vehicle and its permit conditions it is to be plied as a passenger carrying vehicle and also according to the insurance policy only 6 persons in all could be carried at a time. Seven passengers in the jeep died in the accident and several others sustained injuries. The vehicle was plied in violation of its registration certificate, its permit and the policy conditions. Hence 1st opposite party was not legally liable to pay the amount as compensation. But based on the above fact and out of humanitarian consideration the 1st opposite party had settled the claim on non-standard basis @ 75% and the complainant had received the sum of Rs.45,680/- towards the full and final satisfaction of the claim. Immediately after the intimation opposite party deputed Sri.K.Ajith Kumar surveyor and loss assessor to conduct survey to assess the damage. His report submitted on 24.11.08. Subsequently Sri.A.K.Krishna Kumar licensed surveyor and loss assessor was appointed to conduct final survey. Final report submitted on 15.12.08 assessing that the loss due to the damage to the vehicle is only Rs.78, 604/-. The vehicle was plied in violation of permit conditions and policy conditions by carrying more than 7 passengers and therefore had decided to settle the claim on non-standard basis. But on a scrutiny of the actual bills submitted by the complainant to the opposite party it was found that the actual bills were much higher than the estimated cost of repairing the vehicle as reported by the surveyor. Complainant had executed the repair work more elaborately than what was actually required and suggested by the surveyor in order to make the condition of the vehicle as it was at the time of the accident. Therefore the opposite party had prepared a calculation statement as per the actual bills submitted by the complainant. Opposite party observed that the total amount as per the bills submitted by the complainant was Rs.69575/- out of which the opposite party has allowed 75% of the same since the claim was treated on a non-standard basis which amounts to Rs.52, 181/- out of which Rs.4081/- was deducted towards salvage value, Rs.1000/- as policy excess and Rs.580/- as the fee of the surveyor. Hence the opposite party had issued a cheque for Rs.45680/- through he Shriram site office. Hence there is no deficiency of service on the part of opposite party. The complainant is never entitled for Rs.1, 78,937 as total compensation and thus not entitled for Rs.1, 33,257/- as balance compensation. Since claim was settled by the 1st opposite party by paying Rs.45680/- as full and final satisfaction of the claim, the complainant is not entitled for any further amount. The claim of the complainant is not based on the actual expenditure. The complainant had not made necessary depreciation on his assessment on the basis of the age of the vehicle. The complainant omitted to deduct the salvage value and also policy excess, etc. There is no deficiency on the part of opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for remedy as prayed in the complaint? 3. Relief and cost. The evidence consist of the oral testimony of PW1,DW1,DW2 and documentary evidence Exts.A1 to A20 marked on the side of the complainant and Exts.B1 to B9 marked on the side of opposite parties. Issues 1 to 3 Admittedly the Jeep of the complainant met with road traffic accident at Ayinikkad Vatakara on 4.11.03. Some of the passengers died and others sustained injuries. And Jeep also sustained heavy damage. Complainant submitted claim before the Insurance Company with bills of the repair work. Opposite party conducted survey and paid Rs.45, 680/- as claim amount on a non-standard basis and complainant received the same. Complainant and opposite parties filed chief affidavits in tune with their pleadings. The case of the complainant is that the opposite party reduced the amount on the calculation by the surveyor without any criteria. The opposite party is liable to pay the amount claimed by him since the vehicle is duly insured with the opposite party. The case of the opposite party on the otherhand, is that as per registration certificate and permit conditions the vehicle has to be plied as a passenger carrying vehicle. Opposite party contended that vehicle was plied violating permit and policy conditions permitting more than 6 persons to travel in the vehicle and on committing breach of policy complainant is not entitled for claiming any amount. But it was out of generosity that the company settled the claim on a non standard basis and granted 75% of the total of Rs.69, 575/-. Opposite party further contended that on scrutiny it was found that complainant executed the repair work more elaborately than what was actually required. Thus opposite party came to understand the total amount allowable was only Rs.69, 575/- and has allowed 75% ie.Rs.52,191/- on non standard basis for the reasons of breach of policy conditions. Complainant pleaded that the jeep was totally damaged. Chef affidavit also states that the damage was heavy that destroyed the jeep totally. He has also stated that entire bills were submitted before insurance company. Ext.A16 is the lawyer notice sent by the complainant in which he has stated that he has conducted massive repair having Rs.1,50,000/- and furnished vouchers before 1st opposite party. Ext.A4 to A13 is photo copy of the bills produced by complainant. The original is produced by opposite party and marked as Ext.B7 series. Ext.A18 notice also listed the bills of documents and call up on to settle the claim amount Rs.1, 35, 8821/-. It can be seen that the amount has been backed by bills. Opposite party conducted spot survey to assess the damage by the surveyor Sri.Ajith Kumar. His report Ext.B5 shows that the sever damage caused to the insured vehicle. It also reveals Driver and 6 passengers died and three passengers were injured due to the accident. Details of damage given listed 32 items on external examination of the vehicle at the spot of accident. Internal damages did not detect. The photos contained together with the report clearly reveal that the vehicle was severely damaged. Ext.B6 is the private and confidential Motor (Final) survey report dt.15.12.2003 by sri.A.K.Krishnakumar surveyor & Loss Assessor in respect of cause, nature and extent of loss/damage subject to the terms and conditions of the insurance policy. The summary of assessment also has been given as follows: Original Estimate Assessed for Total labour charge Rs. 41,500 Net Labour charge : Rs.10,500 Total cost of parts to be Rs.2,40,805 Cost of parts :Rs.67,103.50 Replaced (Approx) Towing charge Rs. 2,000 Towing charge Rs. 1,500 Less Policy excess 79,103.50 500 --------------- Total 2,84,305 78,603.50 Salvage Value Rs.4000/- It can be seen that except wind screen glass (parts (A) )depreciation charges had been deducted for all other parts viz. parts (B)40% and part (c) 50%. The Labour charge originally estimated as Rs.41, 500/- but net labour charges assessed for seen Rs.10, 500/-. It is difficult to understand why there is so much difference between original estimate and net labour charge. What is the criteria follows for assessing net labour charges has not been explained. It is pertinent to note that the condition of the vehicle was much worse and severally damaged. The surveyor who submitted the above report Ext.A6 himself deposed in his cross examination that “ apgp-h-\mbpT repair sN¿msX hml-\-T-D-]-tbmKn¡m³ Ign-bn-Ã.“ Ext.B1 is the policy certificate of Insurance with conditions. It gives the schedule of depreciation for fixing IDV of the vehicle i.e. Age of the vehicle and percentage of depreciation for fixing IDV. But as far as labour charge is concerned nothing has been mentioned. Ext.A8 is the bill that shows the labour for Rs.15,700/-. Considering the nature of damage there is no justification in reducing this amount what is shown in Ext.A8. Opposite party’s case is that complainant is not entitled for claiming any amount as compensation since complainant committed breach of condition by permitting more than 6 persons to travel in the vehicle. But out of generosity it was considered and settled on a non standard basis and granted 75% of the total amount on the basis of the assessment as per Ext.A8 survey report by Sri.Krishnakumar. But no where seen any indication that that was the reason why the accident had been taken place. The accident occurred not on account of excess passengers. Opposite party has no such case that there would not have been such an accident if the n umber of passengers were less than six. However, one thing is clear that there is no relation between the increase in number of passengers and the unfortunate event of accident that had been taken place by dashing against the insured vehicle by the Bus coming from opposite side. This aspect has been elaborately discussed by Hon’ble Supreme court in the case of B.V.Nagaraju Vs. Oriental Insurance co. Ltd., II (1996) CPJ 28 (SC). It was held therein that it cannot be said to be a fundamental breach so as to put an end to the contract unless some factors existed which by themselves, had gone to contribute to the causing of the accident. Hon’ble Supreme Court also expressed its view thus: We thus, are of the view that in accord with the Skandia’s case the aforesaid exclusion terms of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle which we hereby do”. Thus, accepting the spirit of the above decision we are of opinion that the opposite party is liable to consider the claim as usual and not on non standard basis. Summary of assessment in Ext.B6 shows the total assessment is Rs.78603.50. It is already found that the labour charge in this assessment reduced much less than that of the total labour charge and there is no justification in rejecting Ext.A8. Thus if that has been taken in to account the labour charge will come to Rs.15, 700/- and the total amount will be Rs.84, 304. As per Ext.A8 Rs.4000/- towards salvage value Rs.500/- as policy excess and Rs.580/- as the fee of surveyor i.e. altogether a sum of Rs.5080/- were deducted from the total amount. Thus we are of opinion that the complainant has been justifiably entitled to get an amount of Rs.84304/- less the amount of deduction Rs.5080/- i.e. Rs.79224/-. Complainant has already received Rs.45, 680/-. The balance amount to be paid is Rs.33,544/- Opposite party is liable to pay Rs.33544/- to the complainant as balance claim amount together with Rs.1000/- as cost of this proceedings. Issues 1 to 3 are found in favour of complainant. In the result, the complaint is allowed directing the opposite parties to pay Rs.33, 544/-(Rupees Thirty three thousand five hundred and forty-four only) as balance claim amount together with Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties as per the provisions of Consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of certificate of insurance dt.294.03 A2.Copy of FIR in crime No.302/03 of Payyoli Pollice station. A3.Report of inspection of motor vehicle bearing No.KL.10g in crime No.302/03 A4 to A15..copy of cash bills dt.21.4.04,3.1.04,15.4.04,28.4.04,29.12.03,27.12.03,21.4.04,28.4.04 and 21.4.04 A16.Copy of lawyer notice sent to OPdt.27.11.04 A17. Reply notice A18.copy of lawyer notice to OP dt.14.12.04 A19 & 20. Postal AD cards. Exhibits for the opposite parties B1.Copy of the insurance policy with its conditions. B2.Copy of the FIR B3.copy of registration certificate of the Jeep KL.10.G.1923 B4.copy of the permit in respect of jeep KL.10.g.1923 B5. Initial survey report dt.24.11.03. B6.Final survey report dt.15.12.03 B7.Repair bills. B8. Disbursement voucher for Rs.45690/- B9. Claim form submitted by complainant. Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.T.A.Sankaran kutty DW2.A.K.Krishnakumar /forwarded by order/ Senior Superintendent
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
