Branch Manager, The New India Assurance Company Ltd.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
Date of Filing:15.12.2008 Date of Order:30.04.2009 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 30TH DAY OF APRIL 2009 PRESENT Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 2696 OF 2008 Ashis Kumar, S/o Mukundan, R/at Prabhudas Nivas, Telephone Exchange Road, Madanayakanahalli, 18 K.M, Tumkur-Nelamangala Road, Bangalore-23. Complainant V/S The Branch Manager, The New India Assurance Company Ltd., II Floor, Shankar House, No.1, R.M.V Extension, Mekhri Circle, Bangalore-80. Opposite Party ORDER By the President Sri. S.S. Nagarale This is a complainant filed under Section 12 of the Consumer Protection Act, 1986 to direct the opposite party to pay Rs.1,35,503/- with interest and compensation. The brief facts of the case are that, the complainant has purchased a H.V.G Goods Carrier Vehicle of Eicher Motors bearing Chassis No.30 BC 4 A 001455, Engine No. E683 CD 4 A 0011574 under hire purchase agreement with M/s Bhairanandan Pagaria & Sons And it is still continued and the same was registered before the RTO and the vehicle numbered as KA-05-C-2316 and the vehicle was insured with the opposite party from the date of purchase till 13th February-2009. On 13/04/2008 the vehicle met with an accident at Palakkad Kerala and in the said accident the vehicle was severally damaged and immediately the complainant intimated to the opposite party about the accident. Later as per the advice of the opposite party a proper claim form was filled and submitted. The total repair charge is of Rs.1,95,503/- and the said amount claimed by the complainant from the opposite party. But after submitting the bills the opposite party has agreed to pay a sum of Rs.1,05,000/. In spite of that the opposite party has released only a sum of Rs.60,000/-. On enquiry the opposite party replied that, the gross vehicle weight is shown in the insurance certificate as 7,475 Kgs instead of 16,200 Kgs. In spite of collecting the entire amount towards the insurance policy the opposite parties have failed and neglected to pay the claimed amount of the complainant. The amount paid by the opposite party is highly arbitrary in nature. The complainant issued a notice on 07/11/2008 to the opposite party requesting them to pay the entire repair amount as per the claim made by the complainant under policy No.671602/31/07/01/00009494 and the same is rejected by the opposite parties. Hence, the complaint. 2. Notice was issued to opposite parties. Opposite parties put in appearance through Advocate and defence version filed stating that, the issuance of the goods carrying commercial vehicle package policy bearing No.671602/31/07/01/00009494 covering the Eicher vehicle bearing No.KA-05-C-2316 for a sum of Rs.3,00,000/- for the period from 14/02/2008 to 13/02/2009. The vehicle was under hire purchase agreement with M/s Bhairandan Pagaria & Sons. The vehicle met with an accident on 13/04/2008 at 4-00 AM at Palakhad, Kerala. The complainant had incurred repair charges of Rs.1,95,503/- against the estimate of repairs at Rs.2,25,024/- and this opposite party has agreed to pay only a sum of Rs.1,05,000/-. The opposite party has settled the claim for Rs.60,000/- in full and final settlement of the claim for which the complainant has discharged the voucher. The dispute arose due to the carrying capacity of the said vehicle i.e., whether GVW is 7475 Kgs or 16,200 Kgs. The complainant by virtue of purchase of the said vehicle has approached this opposite party on 24/07/2007 to effect the transfer of policy in his favour and has submitted the relevant documents to the effect. The opposite party has passed the transfer endorsement No.671602/31/07/01/83000039 in favour of the complainant up to 13/02/2008. It is submitted that on the contrary it was the mistake on the part of the complainant who has stated that the GVW of the said vehicle is 7475 Kgs. The opposite party has collected the difference in premium of Rs.3,024/- and passed extra endorsement No.671602/31/07/01/83000102 dated 29/08/2008. It is true that they had paid Rs.60,000/- which is not highly arbitrary in nature. It is submitted that the claim was settled for Rs.60,000/- as against the net assessed liability of Rs.80,000/- as a non standard claim at 75% of the admitted liabilities for which the complainant has submitted his consent letter on 15/09/2008. The complainant caused legal notice on 04/11/2008 and the same was replied on 18/11/2008. There is no deficiency of service on the part of the opposite parties. For all these reasons stated above, the opposite parties are prayed to dismiss the complaint. 3. Affidavit evidences of both the parties are filed. Arguments are heard. 4. The points for consideration are:- 1. Whether there was any deficiency in service on the part of the opposite parties? 2. Whether the payment of claim amount on non standard basis by the opposite party is justified? REASONS 5. It is an admitted case of the parties that the complainant has insured his vehicle No.KA-05-C-2316 with the opposite party. The opposite party by letter dated 18/11/2008 has stated that under policy the gross vehicle weight is shown as 7475 Kgs. There was claim for accidental damage and during survey it was noticed that correct gross weight of the vehicle is 16200 Kgs and not 7475 Kgs for which cover was taken. In view of the above claim is not payable under the policy. However, the claim was settled on non standard basis at 75% of the net liability. The opposite party has paid Rs.60,000/- to the complainant. The complainant has put up claim for Rs.1,95,503/-. The opposite party has committed mistake by stating that the gross vehicle weight was shown as 7475 Kgs in the policy. But in fact the policy has been corrected in respect of gross vehicle weight. The complainant has produced policy No.671602/31/07/01/00009494. As per this policy, policy issued date was 14/02/2008. Expiry date is 13/02/2009. Endorsement to this policy reads as under:- Notwithstanding anything contained herein to the contrary, it is hereby declared and noted that the gross vehicle weight of the vehicle under the within mentioned policy should be read as 16200 KGS and not unladen weight of 7475. As mentioned in the policy. In consideration whereof an additional premium amount of Rs.3024/-(2691+333 ST) is hereby collected from the insured. All other terms and conditions remain unaltered. 6. This endorsement made on the policy given effect from 14/02/2008 itself. This fact also has been mentioned in the policy issued by the opposite party. Admittedly the accident in question had taken place on 13/04/2008 that is after the correction of gross vehicle weight and endorsement issued by the opposite party. Therefore, the thinking of the opposite party that policy mentioned gross vehicle weight as 7475 Kgs is absolutely wrong. It is very unfortunate that the concerned officer or official who verified the documents had not noticed that gross weight of the vehicle had been corrected after collecting additional premium of Rs.3,024/- from the complainant and the company had issued endorsement to that effect and the endorsement has given effect from 14/02/2008 that is from the inception of the policy. The policy period was from 14/02/2008 to 13/02/2009. During this policy itself the accident had taken place. The settlement of claim by the opposite party on non standard basis is not proper and unjustified one. It is wholly unjustified and illegal to say that the gross weight of the vehicle is mentioned as 7475 Kgs but the correct fact is the gross vehicle weight was mentioned as 16200 Kgs in view of the endorsement and correction to the policy. With regards the claim put up by the complainant for Rs.1,95,503/- the complainant has produced bills of different garage and bills of spare parts purchased from different dealers. It may not be proper to direct the opposite party to pay Rs.1,95,503/- as per the claim based on the bills and vouchers produced by the complainant. But however the opposite party itself has produced final survey report of Surveyor/Loss Assessor. The Surveyor appointed by the opposite party himself has assessed the loss at Rs.98,427/- after less compulsory deduction and less salvage value. The Surveyor has stated in his report that survey was conducted along with the Divisional Manager, New India Assurance Company Ltd.,. The opposite party in all its fairness could have paid Rs.98,427/- to the complainant as per their own final survey report. The opposite party has given claim of Rs.60,000/- only. This is absolutely unfair and unreasonable and without any basis. The complainant is definitely entitled to be paid Rs.98,427/- as per the final survey report of Surveyor. However, taking into consideration of payment of Rs.60,000/- by the opposite party, the remaining amount of Rs.38,427/- requires to be paid by the opposite party to the complainant though not the claim of Rs.1,95,503/- put up by the complainant. I am of the opinion that, on the facts and circumstances of the case and taking into consideration of all the documents and final survey report it is fair, just and proper to direct the opposite party to pay balance amount of Rs.38,427/-. Since there is delay in settling the claim the complainant is also entitled for interest for the delayed payment at least from the date of final survey report i.e., from 11/06/2008. Granting interest at 12% p.a. for the delayed payment would be just, fair and reasonable. In the result, I proceed to pass the following:- ORDER 7. The complaint is allowed. The opposite party is directed to pay Rs.38,427/- to the complainant along with interest at 12% p.a from 11/06/2008 till payment/realisation. 8. The opposite party is also directed to pay Rs.3,000/- towards costs of the present proceedings to the complainant. 9. The opposite party is directed to comply the order within 30 days from the date of this order with intimation to this Forum. 10. Send the copy of this Order to both the parties free of costs immediately as per statutory requirement. 11. Pronounced in the Open Forum on this 30TH DAY OF APRIL-2009. Order accordingly, PRESIDENT We concur the above findings. MEMBER MEMBER Rhr.,
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