O  R  D  E  R

Sri. K.N. Radhakrishnan, Member

            Case of the complainant presented on 23..3..2007 is as follows:

            He had a  comprehensive insurance policy of his bus Reg. No. KL-60/5259 with the opposite party bearing No. 760101/31/05/04639 Dt: 17..2..2006.  The insured’s  declared value as per policy was Rs. 10,50,000/-.  On 4..8..2006 the vehicle met with an accident at about 2 p.m at Asamannur village on the Aluva – Munnar State Highway with an autorikshaw bearing No. KL-7 AG/9755 resulting serious damages to both the vehicles.  In the accident, the engine block of the bus had broken causing serious damages to the engine and hence the vehicle was garaged with M/s. T.V Sundaran Ayyengar and Sons Ltd. Kottayam an authorized service agent of Ashok leyland.  The service Engineers inspected the vehicle and advised to replace the engine since it had damaged irreparably.  The  authorised agents had given a collision damage and

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estimation letter for Rs. 5,16,540/- dt: 7..8..2006 including replacement value of the engine for Rs. 4,36,000/-.  Accordingly, the complainant submitted a claim before the opposite party Dtd: 7..8..2006 for a sum of Rs. 5,16,540/- dt: 7..8..2006 including replacement value of the engine for Rs. 4,36,000/-.  Accordingly, the complainant submitted a claim before the opposite party dt: 7..8..2006 for a sum of Rs. 5,16,540/- along with the collusion damage and estimation letter of the authorized agent.  In spite of several requests the opposite party did not allow to repair the damage caused.  But a surveyor was deputed by the opposite party and he inspected the vehicle on 8..8..2006.  Even then the opposite party  did not give concurrence for carrying out the repair works.   Highly aggrieved by the  delaying tactics of the  opposite party, the complainant approached the Hon’ble High Court of Kerala as WP (c) No. 24380/06 and the Hon’ble  High Court held that the opposite party to take decision within 3 weeks upon the claim submitted.  But the  opposite party did not take any decision.  But a letter dt: 5..12..2006 issued by the opposite party raising untenable contentions.  Accordingly the complainant was forced to replace the damaged engine and other repairs on the basis of the report of the authorized  agent.  The  act of the opposite party amounts to deficiency in service and unfair trade practice.  Hence this complaint.

            The notice was served with the opposite party. They appeared and filed their version contending as follows:

            The complaint is not maintainable either in law or on facts and circumstances of the case.  The complainant is operating the bus service for commercial purpose and is excluded from the purview of the Act.  The policy of the vehicle in an admitted by the

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opposite party.  The estimate in the letter of collision damage and estimation was only made approximately and based on Super ficial examination.  It was not based on the actual detailed examination of the damaged parts before dismantling.  Immediately on receiving the claim. “S.P Engineers and Surveyors”, the licensed surveyor was appointed to asses the damages if any.  The inspected the vehicle on 8..8..2006 itself.  The surveyor had found that the engine had damage due to the accident. The surveyor had requested to dismantle and engine for assessing  the internal damages if any.  But the complainant refused the same and did not allow the repairer to dismantle the same. Therefore the surveyor issued a letter to the complainant on 28..8..2006 to dismantle the engine for assessing the damages.  Even after that the complainant did not came to allow the repairer to dismantle the engine.  Therefore it was only due to the  adamant attitude of the complainant, the surveyor was prevented from assessing the damages of the vehicle after dismantling and not due to the latches of either the surveyor on the opposite party.  Instead of co-operating with the surveyor the complainant approached the Hon’ble High Court.  Repair work could only be done only after dismantling of the engine and assessing the loss.  There was no delaying tactics on the part of the opposite party as alleged.  It was only due to the adamant attitude and non- co-operation  of the complainant that the opposite party was prevented from assessing the damages.  Vide letter dt: q0..10..2006 the opposite party requested the complainant to repair the  vehicle after allowing the surveyor to inspect the engine at the time of dismantling.  The  complainant was also requested to inform the company.  So, that the surveyor be  directed to assess the damages if any.  The complainant had discarded it and replaced the engine

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instead of repairing it and produced the bills.   The authorized repairer did not insist for replacement of the engine. The repairer was ready to repair the engine to its accident condition if the complainant permitted.  As per the survey report the engine does not warrant replacement and the engine can be perfectly repaired by replacing the damaged components.  The repairer was also willing to repair the engine if the complainant had permitted.  As per 1.4 clause of the terms and conditions of the policy, the complainant insured was bound to give the company every assistance to see that the replacement of the engine was necessary.  The complainant was bound to carry out the repair works only after allowing the surveyor to assess the loss.  But the complainant has not complied with the terms of the policy and is making false allegations of delay in approving the claim.  There was no delay in approving the claim.  There  was no deficiency in service on the part of the  opposite party.  Hence the complaint may be dismissed with costs.

            The complainant filed proof affidavit and documents which are marked as exhibits A1 to A7.  The opposite party filed proof affidavit and documents which are marked as exhibits B1 to B4.  The opposite party produced the document on the direction from this forum is marked as x – series.

            Heard both sides,.  We have gone through the complaint, version, documents and evidences of both sides.  The case of the complainant is that the opposite party has not settled the claim.  According to him the opposite party has taken adamant stand in not settling the claim put forward by the complainant stating untenable contentions.  The opposite party has taken a contention that the complainant has not allowed the opposite party to inspect the alleged engine.  According to the opposite party  on the basis of

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survey report there was no need for replacing the engine.  It was only to rectify the defects  by   repairing the  engine.  As far as the complainant is concern the replacement of engine was done on the basis of the advise and examination of the engine by the T.V.S ie. the authorized service centre of the Ashok ley land.  Admittedly there was an accident and some damages was  caused to the vehicle and the same was intimated to the opposite party and the opposite party   deputed the surveyor for assessing  the loss.  Accordingly the surveyor   assess the damages and submitted the interim report.  After that the complainant   replaced the engine and repair the vehicle in  the T.V.S.  Here the only  question to be decided is  that whether the replacement of engine was necessary or not?  From the available documents and evidences it can be seen that the engine was replaced on the basis of the report given by T.V.S,  the authorized service centre of Ashok leyland. Admittedly the replacement of engine was done without the consent of the opposite party. However the replacement was done on the basis of the advise and report made by the TVS,    authorized service centre of the Ashok leyland.  According to     opposite party they had  not get an opportunity to inspect the alleged engine and to assess about    the defect in the engine. Opposite party can very well take necessary steps to inspect the disputed engine even after its replacement.  But there is no evidence on record to show  that after replacement  of the engine the opposite party has   taken  steps to find out actual defect6s of the engine.  So, we have no reasons to dis-believe the case of the complainant.  We are of the opinion that the case of the complainant is to be allowed.

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            In the result the complaint is allowed as follows:

            We direct the opposite party to pay the claim of the complainant and pay Rs. 750/- as cost of the  proceedings.  The order shall be complied with within a period of one month from the date of receipt of  the copy of this order.

Sri. K.N. Radhakrishnan,Member                     Sd/-

Sri. Santhosh Kesavanath P., President Sd/-

Smt. Bindhu M. Thomas, Member                    Sd/-

APPENDIX

Documents produced by complainant:

Ext. A1:            Policy schedule

Ext. A2:            Copy of collision damages and  estimation letter dtd: 7..8..2006

Ext. A3:            Copy of invoice dtd: 6..10..2006

Ext. A4:            Copy of High Court Judgment

Ext. A5:            Copy of letter dtd: 28..9..2006

Ext. A6:            Letter Dtd: 10..10..2006

Ext. A7:            Copy of letter dtd: 1..11..2006

Document filed by opposite party:

Ext. B1:            Policy

Ext. B2:            Copy of motor service report Dtd: 28..9..2000

Ext. B3:            Copy of letter dt: 28..8..2006

X series            Copy of bills.