Bajaj Allianz Genaral Insurance Co., V/S K.Shivanna - Consumer Court Case

Karnataka

Mysore

CC/07/157

K.Shivanna - Complainant(s)

Versus

Bajaj Allianz Genaral Insurance Co., - Opp.Party(s)

Sri.A.V.Jayarama Rao

18 Sep 2007

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE
No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009
consumer case(CC) No. CC/07/157

K.Shivanna						...........Appellant(s)
Vs.
Bajaj Allianz Genaral Insurance Co., Bajaj Allianz General Insurance Co. Ltd.,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

Sri.D.Krishnappa, President 1. The Complainant has come up with this Complaint under section 12 of the Consumer Protection Act, 1986 with his grievance that he is the owner of Maruti Omni vehicle bearing registration No.KA-13/Z-1919 and had insured that vehicle with Opposite parties for a sum of Rs.1,00,000/- which was valid from 25.03.2006 to the midnight of 24.03.2007. That on 02.02.2007 at about 4.00 p.m. while he was traveling from Mysore to Bangalore, it colluded with a cow at a village near Bidadi and it was informed to the Opposite parties. M/s Mandovi Motors, who are the authorised dealers of the Opposite parties estimated the cost of repair of that vehicle as Rs.87,000/-. Then he made a claim with the Opposite parties towards the cost of repair, but the 1st Opposite party through its letter dated 26.03.2007 asked him to transfer the vehicle to its name. That he has obtained a loan of Rs.1,50,000/- which is yet to be repaid and he despite submitting all necessary documents to the Opposite parties they have failed to pay the repair cost, therefore he cannot be asked to transfer the vehicle to the Opposite parties to get a sum of Rs.87,000/- with the liabilities of discharging the bank loan of Rs.1,50,000/- and therefore contended that Opposite parties have caused deficiency in their service and thus has prayed for a direction to the Opposite party to pay him Rs.87,000/- and also compensation of Rs.50,000/- with cost. 2. The Opposite parties have filed their version admitting the ownership of the Complainant over the vehicle in question and having issued a policy insuring the said vehicle. The Opposite parties have further denied the damages of Rs.87,000/- as contended by the Complainant and also admitted to have repudiated the claim of the Complainant, as the Complainant failed to transfer the vehicle in their name and to do other needful. It is further stated that the surveyor appointed by them estimated total loss to their company in a sum of Rs.83,071/- and as per the condition No.3 of the policy if the estimated loss is more than 75% of the insured amount, it should be treated as total loss and loss would be assessed on total loss basis only. As the Complainant has not handed over the salvage and transferred to the vehicle to them they are not liable to pay the amount claimed by the Complainant and therefore have prayed for dismissal of the Complaint. 3. In the course of enquiry in to the Complaint, the Complainant and one Mamatha on behalf of the Opposite parties have filed their affidavit evidence reiterating what they have contended in their respective Complaint and version. The parties have also produced copies of certain documents policy copy and copy of the surveyor report. Heard the counsel for the Complainant and perused the written arguments of the counsel for the Opposite parties. 4. On the above contentions, following points for determination arise. 1. Whether the Complainant proves that the Opposite parties by repudiating his claim for reimbursement of the cost of repair of his vehicle have caused deficiency in their service? 2. Whether the complainant is entitled for the relief as prayed for? 3. What order? 5. Our findings are as under:- Point no.1 : In the Affirmative. Point no.2 : Answered in part in the affirmative. Point no.3 : See the final order. REASONS 6. Points no. 1 & 2:- There is no dispute with regard to the fact that a Maruthi Omni vehicle bearing No.KA-13-Z-1919 belonging to the Complainant and was insured with the Opposite parties and insurance policy was effective as on the date of accident that is on 02.02.2007. It is the claim of the Complainant that while he was going in that van a cow suddenly came across him at a village near Bidadi and it met with an accident and in the Complaint given to the police he has stated that the vehicle over turned. It is his further case that he got the vehicle estimated through authorised service agent of the Opposite parties who estimated the repair cost at Rs.87,000/-. Therefore when he made a claim with the Opposite parties for payment of that amount it repudiated on the ground that he did not transfer that vehicle to the name of the Opposite parties. The Opposite parties have also admitted that they repudiated the claim of the Complainant as he did not transfer the vehicle in their name and have further contended that estimated loss according to their surveyor was only Rs.83,000/-. 7. Admittedly, the vehicle was insured for Rs.1,00,000/- which was manufactured in the year 2002 and the value of the vehicle as on the date of insurance was declared as Rs.1,00,000/-. The Opposite parties have taken a shelter under clause 3 of the policy wherein it says that the vehicle insured shall be treated as a constructive total loss if the aggregate cost of retrieval and / or repair of the vehicle subject to terms and conditions of the policy, exceeds 75% of the insured declared value of the vehicle. The Complainant has stated that he got the vehicle estimated for repair and the authorised service agent of the Opposite parties estimated it as Rs.87,000/-. Whereas, the Opposite parties denying that amount relied upon a surveyor report who has estimated total loss at Rs.83,071/-. The Complainant has not produced the repair estimate he had obtained from the servicing agency to know what the estimated loss. However, coming to the loss assessment prepared by the surveyor of the Opposite parties, it could be seen that the assessment report of the surveyor appears to be imaginary and not a practical way of assessing the real loss or actual damage. Because, admittedly the vehicle had not met with an accident by colluding with any other heavy vehicles or with any vehicle for that matter or dashed against any hard object or fell into a ditch or valley. The claim of the Complainant that when a cow came across suddenly he had applied break suddenly and vehicle over turned is not disputed by the Opposite party. That being the case, one can imagine what could have been the damage to the vehicle such being the undisputed fact the surveyor assessed the loss by assessing mechanical labour charges at Rs.3,500/-, tinkering labour charges at Rs.16,500/- and painting labour charges at Rs.20,000/-. The labour charges according to him alone come to Rs.40,000/- and he went on suggesting replacement of almost 53 parts and arrived to the total loss as Rs.83,000/- and the surveyor further added as if he assessed the vehicle without dismantling it and if had assessed by dismantling it would have added plus 10% amounting to Rs.7,546/-. This kind of assessment go to show that the assessment of loss is done on hypothetical basis and imaginary one. Therefore, the Opposite parties taking a clue from this report of the surveyor estimated the loss as Rs.83,071/- and by referring to clause 3 of the policy have stated that the cost of repair since exceeded 75% of the insured amount, therefore that loss to be treated as total loss and in order to pay that amount to the Complainant they directed the Complainant to transfer the vehicle in their name. It is unfortunate that the Opposite parties who directed the Complainant to surrender the damaged vehicle have not got that damaged vehicle or salvage assessed for the purpose of appropriate assessment of loss. If the Opposite parties wanted the Complainant to surrender the vehicle to them for them to keep the vehicle for themselves they should have got the damaged vehicle assessed and added that value to the repair cost and paid to the Complainant. As otherwise if they wanted to leave the damaged vehicle with the Complainant himself they should have offered to pay actual cost of repair to the Complainant by way of reimbursement of the loss. Therefore, the method adopted by the Opposite parties in our view is unreasonable and amounts to unfair trading. Thus, as we have held that assessment of loss made by the surveyor of the Opposite party is not based on the practical approach and that cannot be considered as total loss to hold that exceeds 75% of the insured declared value so that to compel the Complainant to transfer the vehicle to their name without paying its value. 8. The counsel appearing for the Complainant argued that if the terms and conditions of the contract are found unreasonable the court can review it and in that regard relied on a decision reported in (1995) 5 Supreme Court Cases page 482. Whereas the counsel for the Opposite parties argued that the terms of the contract of insurance between the parties are to be prevailed as expressed in the contract between the parties and no outside terms of the contract sought to be read with the terms of the contract and relied upon a decision reported in (2004) 8 Supreme Court Cases page 644. The Opposite parties in not getting the damaged vehicle assessed and what has been offered to the Complainant is unreasonable, we rely upon a decision of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur reported in III (2007) CPJ page 193 wherein the said commission has held that the salvage also to be got valued for the purpose of determining the correct value of the vehicle as on the date. Therefore, having regard to the fact that the Complainant has also not produced the estimated cost of repair he has relied upon and having held that the estimated loss as assessed by the surveyor of the Opposite parties is impracticable and unjustified one and as we find no other materials for assessing the correct loss we proposed to direct the Complainant to surrender the damaged vehicle to the Opposite parties by transferring it in their name and on so surrendering the Opposite parties to pay a sum of Rs.1,00,000/- for which amount the vehicle was insured. With the result, we answer points no.1 & 2 accordingly and pass the following order:- ORDER 1. The Complaint is allowed in part. 2. The Complainant is directed to transfer the vehicle to the name of the Opposite parties, deliver possession of the same to them within 30 days from the date of this order. 3. The Opposite parties on transfer of the vehicle and on receipt of the possession of the vehicle shall pay a sum of Rs.1,00,000/- to the Complainant forthwith, failing which the Opposite parties shall pay interest at 12% p.a. from the date of transfer till the date of payment. 4. The Opposite parties shall also pay a cost of Rs.1,000/- to the Complainant. 5. Give a copy of this order to each party according to Rules.

Sri.D.Krishnappa, President 1. The Complainant has come up with this Complaint under section 12 of the Consumer Protection Act, 1986 with his grievance that he is the owner of Maruti Omni vehicle bearing registration No.KA-13/Z-1919 and had insured that vehicle with Opposite parties for a sum of Rs.1,00,000/- which was valid from 25.03.2006 to the midnight of 24.03.2007. That on 02.02.2007 at about 4.00 p.m. while he was traveling from Mysore to Bangalore, it colluded with a cow at a village near Bidadi and it was informed to the Opposite parties. M/s Mandovi Motors, who are the authorised dealers of the Opposite parties estimated the cost of repair of that vehicle as Rs.87,000/-. Then he made a claim with the Opposite parties towards the cost of repair, but the 1st Opposite party through its letter dated 26.03.2007 asked him to transfer the vehicle to its name. That he has obtained a loan of Rs.1,50,000/- which is yet to be repaid and he despite submitting all necessary documents to the Opposite parties they have failed to pay the repair cost, therefore he cannot be asked to transfer the vehicle to the Opposite parties to get a sum of Rs.87,000/- with the liabilities of discharging the bank loan of Rs.1,50,000/- and therefore contended that Opposite parties have caused deficiency in their service and thus has prayed for a direction to the Opposite party to pay him Rs.87,000/- and also compensation of Rs.50,000/- with cost. 2. The Opposite parties have filed their version admitting the ownership of the Complainant over the vehicle in question and having issued a policy insuring the said vehicle. The Opposite parties have further denied the damages of Rs.87,000/- as contended by the Complainant and also admitted to have repudiated the claim of the Complainant, as the Complainant failed to transfer the vehicle in their name and to do other needful. It is further stated that the surveyor appointed by them estimated total loss to their company in a sum of Rs.83,071/- and as per the condition No.3 of the policy if the estimated loss is more than 75% of the insured amount, it should be treated as total loss and loss would be assessed on total loss basis only. As the Complainant has not handed over the salvage and transferred to the vehicle to them they are not liable to pay the amount claimed by the Complainant and therefore have prayed for dismissal of the Complaint. 3. In the course of enquiry in to the Complaint, the Complainant and one Mamatha on behalf of the Opposite parties have filed their affidavit evidence reiterating what they have contended in their respective Complaint and version. The parties have also produced copies of certain documents policy copy and copy of the surveyor report. Heard the counsel for the Complainant and perused the written arguments of the counsel for the Opposite parties. 4. On the above contentions, following points for determination arise. 1. Whether the Complainant proves that the Opposite parties by repudiating his claim for reimbursement of the cost of repair of his vehicle have caused deficiency in their service? 2. Whether the complainant is entitled for the relief as prayed for? 3. What order? 5. Our findings are as under:- Point no.1 : In the Affirmative. Point no.2 : Answered in part in the affirmative. Point no.3 : See the final order. REASONS 6. Points no. 1 & 2:- There is no dispute with regard to the fact that a Maruthi Omni vehicle bearing No.KA-13-Z-1919 belonging to the Complainant and was insured with the Opposite parties and insurance policy was effective as on the date of accident that is on 02.02.2007. It is the claim of the Complainant that while he was going in that van a cow suddenly came across him at a village near Bidadi and it met with an accident and in the Complaint given to the police he has stated that the vehicle over turned. It is his further case that he got the vehicle estimated through authorised service agent of the Opposite parties who estimated the repair cost at Rs.87,000/-. Therefore when he made a claim with the Opposite parties for payment of that amount it repudiated on the ground that he did not transfer that vehicle to the name of the Opposite parties. The Opposite parties have also admitted that they repudiated the claim of the Complainant as he did not transfer the vehicle in their name and have further contended that estimated loss according to their surveyor was only Rs.83,000/-. 7. Admittedly, the vehicle was insured for Rs.1,00,000/- which was manufactured in the year 2002 and the value of the vehicle as on the date of insurance was declared as Rs.1,00,000/-. The Opposite parties have taken a shelter under clause 3 of the policy wherein it says that the vehicle insured shall be treated as a constructive total loss if the aggregate cost of retrieval and / or repair of the vehicle subject to terms and conditions of the policy, exceeds 75% of the insured declared value of the vehicle. The Complainant has stated that he got the vehicle estimated for repair and the authorised service agent of the Opposite parties estimated it as Rs.87,000/-. Whereas, the Opposite parties denying that amount relied upon a surveyor report who has estimated total loss at Rs.83,071/-. The Complainant has not produced the repair estimate he had obtained from the servicing agency to know what the estimated loss. However, coming to the loss assessment prepared by the surveyor of the Opposite parties, it could be seen that the assessment report of the surveyor appears to be imaginary and not a practical way of assessing the real loss or actual damage. Because, admittedly the vehicle had not met with an accident by colluding with any other heavy vehicles or with any vehicle for that matter or dashed against any hard object or fell into a ditch or valley. The claim of the Complainant that when a cow came across suddenly he had applied break suddenly and vehicle over turned is not disputed by the Opposite party. That being the case, one can imagine what could have been the damage to the vehicle such being the undisputed fact the surveyor assessed the loss by assessing mechanical labour charges at Rs.3,500/-, tinkering labour charges at Rs.16,500/- and painting labour charges at Rs.20,000/-. The labour charges according to him alone come to Rs.40,000/- and he went on suggesting replacement of almost 53 parts and arrived to the total loss as Rs.83,000/- and the surveyor further added as if he assessed the vehicle without dismantling it and if had assessed by dismantling it would have added plus 10% amounting to Rs.7,546/-. This kind of assessment go to show that the assessment of loss is done on hypothetical basis and imaginary one. Therefore, the Opposite parties taking a clue from this report of the surveyor estimated the loss as Rs.83,071/- and by referring to clause 3 of the policy have stated that the cost of repair since exceeded 75% of the insured amount, therefore that loss to be treated as total loss and in order to pay that amount to the Complainant they directed the Complainant to transfer the vehicle in their name. It is unfortunate that the Opposite parties who directed the Complainant to surrender the damaged vehicle have not got that damaged vehicle or salvage assessed for the purpose of appropriate assessment of loss. If the Opposite parties wanted the Complainant to surrender the vehicle to them for them to keep the vehicle for themselves they should have got the damaged vehicle assessed and added that value to the repair cost and paid to the Complainant. As otherwise if they wanted to leave the damaged vehicle with the Complainant himself they should have offered to pay actual cost of repair to the Complainant by way of reimbursement of the loss. Therefore, the method adopted by the Opposite parties in our view is unreasonable and amounts to unfair trading. Thus, as we have held that assessment of loss made by the surveyor of the Opposite party is not based on the practical approach and that cannot be considered as total loss to hold that exceeds 75% of the insured declared value so that to compel the Complainant to transfer the vehicle to their name without paying its value. 8. The counsel appearing for the Complainant argued that if the terms and conditions of the contract are found unreasonable the court can review it and in that regard relied on a decision reported in (1995) 5 Supreme Court Cases page 482. Whereas the counsel for the Opposite parties argued that the terms of the contract of insurance between the parties are to be prevailed as expressed in the contract between the parties and no outside terms of the contract sought to be read with the terms of the contract and relied upon a decision reported in (2004) 8 Supreme Court Cases page 644. The Opposite parties in not getting the damaged vehicle assessed and what has been offered to the Complainant is unreasonable, we rely upon a decision of Chhattisgarh State Consumer Disputes Redressal Commission, Raipur reported in III (2007) CPJ page 193 wherein the said commission has held that the salvage also to be got valued for the purpose of determining the correct value of the vehicle as on the date. Therefore, having regard to the fact that the Complainant has also not produced the estimated cost of repair he has relied upon and having held that the estimated loss as assessed by the surveyor of the Opposite parties is impracticable and unjustified one and as we find no other materials for assessing the correct loss we proposed to direct the Complainant to surrender the damaged vehicle to the Opposite parties by transferring it in their name and on so surrendering the Opposite parties to pay a sum of Rs.1,00,000/- for which amount the vehicle was insured. With the result, we answer points no.1 & 2 accordingly and pass the following order:- ORDER 1. The Complaint is allowed in part. 2. The Complainant is directed to transfer the vehicle to the name of the Opposite parties, deliver possession of the same to them within 30 days from the date of this order. 3. The Opposite parties on transfer of the vehicle and on receipt of the possession of the vehicle shall pay a sum of Rs.1,00,000/- to the Complainant forthwith, failing which the Opposite parties shall pay interest at 12% p.a. from the date of transfer till the date of payment. 4. The Opposite parties shall also pay a cost of Rs.1,000/- to the Complainant. 5. Give a copy of this order to each party according to Rules.