By Smt.Padmini Sudheesh, President
The facts of the case are that the complainant had insured his Innova car having registration No.KL46 5200 with 1st respondent. The car had been insured only with the request of 2nd respondent. The vehicle had been occurred damage due to an attempt of theft on 11/6/07 at night. It was intimated to 1st respondent and as per the direction of 1st respondent the vehicle had been entrusted with 2nd respondent. The 1st respondent agreed to bear the entire repair cost. But the respondents had received Rs.23,000/- from complainant. It is illegal and lawyer notice has been sent. The respondents assessed the loss after reducing 50% depreciation. It is also illegal because the vehicle had only 6 months age. The vehicle had been insured by taking into consideration of the entire cost of the vehicle. The respondents are liable to return Rs.23,000/-. The respondents committed mistake by charging the insurance premium without reducing 50% of the plastic and rubber components. Hence the complaint.
2. The counter averments of 1st respondent are that this respondent admits that this respondent has insured the car KL46 5200 in the name of complainant for a period from 21/12/06 to 20/12/07. As per the policy conditions approved by IRDA and followed by all other insurance companies this respondent deducted 50% depreciation in rubber and plastic components of the vehicle replaced which is also strictly in consonance with the policy conditions. The policy excess of Rs.1,000/- was also deducted as per policy conditions and tariff. The policy is a contract between insured and insurer and its terms and conditions are binding on the insured. As per Section 1 of the policy conditions 50% depreciation had been reduced. The company can deduct this irrespective of the age of the vehicle or kilometers traveled by the vehicle for the plastic and rubber items. But to other items this respondent can take no depreciation if the period is not exceeding six months as per provision 4 Section 1 of the policy. Accordingly this respondent has not taken depreciation for other items. This respondent is liable to pay the amount only as per the terms and conditions of the policy. To the notice sent by complainant counsel a reply was sent. The complainant is not entitled to get an amount of Rs.23,000/- from this respondent. There was no unfair trade practice or deficiency in service. Hence dismiss.
3. 2nd respondent remained exparte.
4. Points for consideration are that :
1) Whether there was any unfair trade practice committed by respondents?
2) If so reliefs and costs?
5. The evidence adduced consists of oral testimonies of PW1, RW1 and RW2, Exhibits P1 to P5 and Exhibits R1 to R6.
6. The complaint is filed against the unfair trade practice alleged to be committed by respondents. It is the case of complainant that his six months old Innova car had been damaged during a theft attempt on 11/6/07 at night. According to complainant after the incident it was intimated to 1st respondent and as per the direction of 1st respondent the vehicle had been entrusted with 2nd respondent. At that time the 1st respondent promised to bear the entire expenses for repair. But against this Rs.23,000/- had been charged from complainant. The 1st respondent filed a detailed counter and seriously contested the matter. The 1st respondent stated that this respondent is not liable to pay Rs.23,000/- to complainant. The complainant has produced Exhibits P1 to P5 documents out of which Exhibit P1 is a receipt issued by 2nd respondent showing the acceptance of Rs.23,000/- on 29/6/07. It has been stated in Exhibit P1 that the amount drawing towards policy excess plus depreciation amount. The 2nd respondent is not at all bound to take such an amount from complainant. So it is an unfair trade practice and is liable to return this amount to complainant with interest.
7. It is the case of complainant that the 1st respondent assessed the loss after deducting 50% of the amount for plastic and rubber components. The complainant seriously contested this trade practice of 1st respondent. According to complainant since the vehicle was only six months of age and run only below 5,000 kms. the depreciation of 50% is against law and unfair trade practice. The 1st respondent justified this action by quoting the policy conditions. They would say that as per Section 1 of the policy conditions the company will indemnify the insured against the loss or damage to motor car insured subject to a deduction for depreciation, for all rubber, nylon, plastic parts, tyre, battery and air bags 50% depreciation. The company stated that the company can deduct depreciation at the rate of 50% irrespective of the age of the vehicle or kilometers travelled by the vehicle for the plastic and rubber items as per the terms and conditions of the policy. Exhibit R1 is the copy of policy in which Section 1 would show that the company can reduce 50% of depreciation for all rubber, nylon, plastic parts, tyre, battery and air bags. So the company would say that since the insurance policy is a contract between insured and insurer the insured is bound to follow the terms and conditions of policy. This view of company is totally correct and we do agree with the same.
8. The complainant is examined as PW1 and he deposed that he has the policy copy but the terms and conditions are not written and realized. It is his default of non realizing the terms and conditions. The reduction of depreciation of 50% for plastic and rubber components is strictly mentioned in the policy and he is bound by it.
9. The legal executive of 1st respondent is examined as RW1 and she deposed about the reduction of 50% depreciation for rubber and plastic items. During cross examination question were asked whether the company had enquired about the parts stated as plastic or rubber. According to the policy on plastic and rubber items the depreciation at the rate of 50% can be considered. So the question with regard to the quantity of rubber or plastic in the components are not at all relevant.
10. The surveyor is examined as RW2 and there are also question with regard to the quantity of rubber and plastic in a component. But as stated above since plastic and rubber components are liable under 50% depreciation reduction the question with regard to quantity of material are irrelevant. There are some items referred as rubber or plastic. During examination RW2 the surveyor admitted that he does not enquire with the manufacturer whether the component is plastic or rubber. It is the case of complainant that the surveyor and insurance company by prescribing some of the items as plastic or rubber reduced the amount entitled by the complainant. The loss assessment is strictly on the basis of the report of surveyor. He does not know separately what are the items of rubber or plastic items. Questions were asked to RW1 and RW2 with regard to the alleged report and plastic items. Both of them has no conclusive answer. According to RW1 she does not enquire whether a computer engine control is rubber or plastic. As per Exhibit R6 report Rs.13,543/- has been deducted from the total amount of the parts. RW1 stated that she does not know whether it is rubber or plastic. According to RW2 the computer engine control part contains 80% plastic and it can be seen from Exhibit R4. Exhibit R4 is the claim amount confirmation dated 16/7/07 where there is no such details.
11. Inspite of these the nature of assessment made by the company should be looked into. Exhibit R4 is the claim amount confirmation dated 16/7/07. It would show the parts as rubber /plastic. There is no strict mentioning of rubber parts. There are some parts descriptions shown under this heading and amount are also seen reduced.
12. Whatever may be the objections of complainant he is bound by the terms of contract between the parties. In the present case the complainant wanted to calculate future insurance premium after reducing 50% depreciation of rubber and plastic components from the cost of the vehicle. Since he is bound by the terms of policy of contract this cannot be done. His grievance is that the respondent by simply stating the parts as rubber or plastic reduced depreciation. He has no case that out of the alleged incident of theft the respondent failed to give sufficient amount to him. It is true that he is entitled to get back Exhibit P1 amount with interest.
13. It is stated in the argument note filed by the learned counsel for 1st respondent that the complainant has received an amount of Rs.38,892.49 in full satisfaction of the entire claim. No protest is given. It is argued that since Rs.23,000/- has paid towards policy amount and depreciation he is not entitled to get the same. But as per Exhibit R4(a) after reducing compulsory excess the net amount payable and had been arrived as Rs.38,892.49. According to 1st respondent this amount had been given to complainant. It is further stated in the argument note filed by 1st respondent that the complainant has no case that the depreciation reduced was not for rubber and plastic parts. His case is that since the vehicle is insured for full value by taking premium, the company is not entitled to reduce depreciation for rubber and plastic items and hence He is entitled to get Rs.23,000/-. But it is also stated that the amount assessed by the surveyor had already given to complainant. The amount assessed by surveyor is after reducing the compulsory excess. Towards the rubber or plastic items depreciation was also done as per Exhibit R4(a). So the complainant is entitled to get back Rs.23,000/-.
14. In the result the complaint is partly allowed and the 2nd respondent is directed to return Rs.23,000/- with 12% interest from 29/6/07 till realization with costs Rs.750/- within two months from the date of receipt of copy of this order.
Dictated to the Confdl. Asst., transcribed by her, corrected by me and pronounced in the open Forum this the 11th day of January 2012.
