By Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> 1. Complainant's say is that he is the owner of KL-10 L 7848 Bajaj Autorickshaw which was purchased on 23-05-01. The vehicle was insured with 1st opposite party and hypothecated to Tirur Co-operative Agricultural Rural Development Bank. The vehicle sustained an accident on 02-9-01 at Akkaparamba and was extensively damaged. First opposite party denied his claim for total loss. That much delay was caused by first opposite party to take a decision whether to treat the claim as total loss or to incur the liability for repair. Complainant alleges deficiency in service and claims Rs.70,000/- along with interest @ 18% and compensation of Rs.15,500/- for mental agony and hardships.<br /> <br /> 2. Version was filed by first opposite party admitting the insurance coverage of the vehicle. The allegations in the complaint are specifically denied and it is submitted that at no point of time 1st opposite party offered or considered to settle the claim as total loss and therefore there was no occasion to take such a decision. The delay occurred only because complainant did not give proper instructions for dismantling the vehicle for facilitating the survey. Vehicle was ultimately dismantled on 09-01-02 and the survey report was submitted on 10-01-02. The net loss assessed is Rs.23,091/-. The vehicle is not damaged beyond repairs and there is no deficiency of service. Second opposite party filed separate version admitting that the vehicle was brought to their garage for repair. That second opposite party assessed the cost of repair to be more than the value of vehicle because of extensive damage caused to the vehicle. The matter was informed to complainant as well as 1st opposite party. The delay in repair was caused due to delay in giving directions by 1st opposite party.<br /> <br /> 3. Evidence consists of affidavits filed by complainant and 1st opposite party. Exts.A1 to A15 marked on the side of complainant. Exts.B1 to B8 marked on the side of opposite party No.1. Second opposite party has not filed any affidavit or documents.<br /> <br /> 4. Undisputed facts of the case are that the vehicle, KL-10 L 7848 autorickshaw belonging to complainant met with an accident on 02-9-01, and that the vehicle was insured with first opposite party during the relevant time of accident. Complainant claims compensation under the policy on total loss basis. According to complainant the accident occurred within six months from the date of purchase and that the vehicle was damaged in the accident beyond repair. Complainant relies on Ext.A7 which is the estimate of repair charges prepared by second opposite party who is the dealer cum repairer of the vehicle. In Ext.A7 the cost of repair is estimated as Rs.82,427/-. This estimate was prepared without dismantling the vehicle. First opposite party strongly refutes this contention and holds that as per the final survey report which is Ext.B7 the net liability for repairing the vehicle is Rs.23,091/-. On account of the rival contentions put forward by both sides the burden shifts on the complainant to prove that the vehicle was extensively damaged in the accident and it's cost of repair is more than the value of the vehicle. Complainant therefore filed a petition on 19-3-03 as I.A.107/03 to issue an expert commission to inspect and report the damages of the vehicle. Sri.K.M. Shaji, Motor Vehicle Inspector, Tirur, was appointed as Expert Commissioner in the case. Complainant paid batta to Commissioner and has produced the receipt. Thereafter commission warrant was issued to the Commissioner. This warrant was returned on 07-02-04 with endorsement “addressee went to Makka for Haj”. After 07-02-04, due to vacancy in the Post of President and member there was no sitting of the Forum for almost three years. When this case came up before us in 2007 counsel for complainant endorsed that there was no further steps in the petition and the commission application was disposed accordingly on 07-11-07. Thus, at present Ext.A7 and Ext.B7 are the only documents before us for perusal as to what are the damages sustained to the vehicle. On detailed examination of Ext.A7 and Ext.B7 and comparison of the different items in them we are able to conclude that Ext.A7 is only a rough estimate and it is highly inflated. Along with Ext.B7 survey report photographs along with negatives of the damaged vehicle are also produced. The damages assessed in Ext.B7 do correlate with the damages sustained by the vehicle as per the photographs. Though second opposite party had prepared Ext.A7 estimate showing that cost of repair would be higher than the value of the vehicle, later second opposite party has issued Ext.B6 letter stating that second opposite party is ready to do the repair job as<br /> <br /> per the revised repair charges. Thus there is no material on record to show that the vehicle was damaged beyond repair. From the evidence placed before us we find that complainant has failed to establish and prove that he is entitled for compensation on total loss basis. We consider that he is entitled to Rs.23,091/- under the policy.<br /> <br /> 5. Complainant further alleges deficiency in service on the part of first opposite party for the delay committed in taking a decision whether to treat the claim on a total loss basis or to incur liability for cost of repairs. First opposite party resists this allegation contending that there was no occasion for taking such a decision since at no point of time did 1st opposite party offer or consider to settle the claim on total loss basis. Complainant claims compensation on total loss relying upon the estimate prepared by second opposite party. It is averred by second opposite party that the vehicle was damaged beyond repairs and the delay in repair was caused due to delay in obtaining directions from first opposite party. But these pleadings are not supported by any evidence and hence totally unreliable. In fact second opposite party has issued Ext.B6 stating that they are willing to do the repair according to revised repair charges. Counsel for first opposite party submitted that the delay occurred only due to non co-operation of the complainant to give proper and timely direction to dismantle the vehicle for completing the survey. The vehicle was dismantled on 09-01-02 and Ext.B7 report was submitted on 10-01-02. Complainant caused a lawyer notice as Ext.A2 on 28-12-02 claiming compensation on the basis of total loss. First opposite party has issued reply to this notice only on 25-01-02 ie., after completion of survey. Even then first opposite party has failed to explicity offer in the reply notice the amount payable to complainant by first opposite party. First opposite party should have intimated the complainant in clear words as to what is the amount payable to him. It is unfair and unjustifiable on<br /> <br /> <br /> <br /> the part of insurance companies not to candidly inform the claimant the amount he is entitled to receive. We find first opposite party deficient in service. We consider that interest @ 12% upon Rs.23,091/- would be sufficient compensation to the complainant.<br /> <br /> 6. In the result, we allow the complaint, and order 1st opposite party to pay an amount of Rs.23,901/- (Rupees Twenty three thousand nine hundred and one only) to the complainant along with interest @ 12% from the date of complaint till realisation together with costs of Rs.2,500/- (Rupees Two thousand five hundred only) within two months from the date of this order.<br /> <br /> Dated this 17th day of May, 2008.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A15<br /> Ext.A1 : Photo copy of invoice dated, 23-5-01 of M/s Sagar Auto Services <br /> and Sales, Kottakkal towards the cost of Bajaj autorickshaw.<br /> Ext.A2 : Photo copy of lawyer notice dated, 28-12-01 by complainant's<br /> counsel to first opposite party.<br /> Ext.A3 : Photo copy of reply notice dated, 25-01-02 sent by first opposite<br /> party's counsel to complainant's counsel.<br /> Ext.A4 : Photo copy of the letter dated, 15-12-01 sent by second opposite<br /> party to complainant.<br /> Ext.A5 : Photo copy of the Certificate of Insurance No.156483 <br /> in respect of Bajaj Autorickshaw. <br /> Ext.A6 : Photo copy of the Notice dated, 27-10-01 issued by Tirur Sahakarana<br /> Karshika Grama Vikasana Bank No.M 11, Tirur to complainant.<br /> Ext.A7 : Photo copy of the Estimate dated, 06-9-01 by second opposite <br /> party to complainant.<br /> Ext.A8 : Photo copy of the First Information Report dated, 03-9-01 prepared <br /> by Sub Inspector of Police, Melattur in respect of the accident.<br /> Ext.A9 : Photo copy of the Certificate of Registration in respect of <br /> Vehicle No.KL-10 L 78848 in the name of complainant.<br /> Ext.A10 : Photo copy of the Tax Receipt<br /> Ext.A11 : Photo copy of the permit in respect of a contract carriage<br /> in the name of complainant.<br /> Ext.A12 : Photo copy of the letter dated, 12-9-01 from Tirur Co-operative<br /> Agricultural and Rural Development Bank Ltd. M11, Valancherry<br /> to first opposite party. <br /> Ext.A13 : Photo copy of the report of inspection of Motor Vehicle involved<br /> in the accident. <br /> Ext.A14 : Photo copy of the Scene Mahazar and Charge Sheet prepared by<br /> Sub Inspector of Police, Melattur.<br /> Ext.A15 : Certificate dated, 19-11-02 issued by Manager, Tirur Co-operative<br /> Agricultural and Rural Development Bank Ltd., M.11 to the complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B8<br /> Ext.B1 : Intimation letter dated, 12-9-01 given by complainant <br /> to the first opposite party.<br /> Ext.B2 : Motor Claim Form dated, 12-9-01 given by complainant <br /> to the first opposite party.<br /> Ext.B3 : Copy of the letter dated, 12-9-01 addressed to the Surveyor <br /> by the first opposite party.<br /> Ext.B4 : Copy of the letter dated, 28-9-01 sent by the Surveyor to the <br /> 2nd opposite party with copy to first opposite party.<br /> Ext.B5 : Letter dated, 30-10-01 from Surveyor to first opposite party with<br /> copy to complainant together with interim report.<br /> Ext.B6 : Additional Estimate dated, 09-01-02 from second opposite party <br /> to complainant undertaking to carry out repairs.<br /> Ext.B7 : Motor (Final) Survey report of N.G. Saseedharan, Surveyor<br /> with photographs dated, 10-01-02.<br /> Ext.B8 : Attested Copy of Policy dated, 23-1-03<br /> <br /> <br /> <br /> <br /> <br /> Sd/- C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br />