Kerala

Kasaragod

C.C.No.22/2006

Gurudatha Nayak - Complainant(s)

Versus

Branch Manager - Opp.Party(s)

K.M.Ballakuraya

31 Dec 2008

ORDER


IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CDRF,Fort Road,Kasaragod
consumer case(CC) No. C.C.No.22/2006

Gurudatha Nayak
...........Appellant(s)

Vs.

Branch Manager
...........Respondent(s)


BEFORE:
1. K.T.Sidhiq 2. P.P.Shymaladevi 3. P.Ramadevi

Complainant(s)/Appellant(s):
1. Gurudatha Nayak

OppositeParty/Respondent(s):
1. Branch Manager

OppositeParty/Respondent(s):
1. K.M.Ballakuraya

OppositeParty/Respondent(s):
1. S.Mahalinga



ORDER

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                                                                        Date of filing                        : 15-02-06

                                                                        Date of order                       : 17-12-08

 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                            CC.22/06

                                    Dated this, the 17th day of December 2008

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                :MEMBER

SMT.P.P.SHYMALADEVI                          : MEMBER

 

Gurudatha Nayak,

S/o.Ampa Nayak, Naikap, Po.Ednad,            } Complainant

Kumbala.Via, Kasaragod.Dt.

(Adv.K.M.Ballakuraya, Kasaragod)

 

Oriental Insurance Company Ltd,

Kasaragod Branch, Rep.by the Branch                   } Opposite party

Manager, Kasaragod

(Adv.S.Mahalinga, Kasaragod)

 

                                                                        O R D E R

SRI.K.T.SIDHIQ, PRESIDENT

 

            The complainant’s vehicle bearing Reg.No.KL-14-B 1777 insured with opposite party sustained extensive damage in an accident.  The matter was intimated to opposite party and a spot survey was conducted by the surveyor deputed by opposite party.  Subsequently the vehicle was taken to automobile workshop.  Again the surveyor conducted and inspected the damaged vehicle.  There after repair work was started as per the instructions of opposite party.  After the repair work the bill for Rs.88,440.66 were submitted before opposite party but the claim was neither honored nor repudiated till date.  Hence the complaint alleging deficiency in service on the part of opposite party.

2.            Opposite party contends that the Insured Declared Value of the vehicle was Rs.75,000/- and it was insured for the said amount. The surveyor on going through the estimate and inspecting the vehicle had requested the insured’s father to have a discussion with the opposite party before actual repairs to be carried out because the estimate of the repair is much higher than the IDV of the vehicle.  But the complainant proceeded with the repair work without a discussion.  Thereafter the surveyor has submitted his report  showing 4 different ways of settlement of damages.  Out of the same the best acceptable way of settlement was proposed and the company adopted the settlement on total loss basis for Rs.74,500/-.  For which the complainant was directed to produce the wrecked vehicle before the opposite party after transferring the RC in the name of opposite party before proceeding further in the above matter.  But the complainant has not turned up.  Hence there is no deficiency in service on the part of opposite party and the complaint deserves  a dismissal.

.3.            Complainant filed affidavit and was cross-examined by the counsel for opposite party.  Exts A1 & A2 marked.  For opposite party Sri. Lakshmanan T.P, The Branch Manager of the opposite party filed affidavit and was cross-examined by counsel for complainant as  DW1. M. Raveendran the surveyor examined as DW2.  Exts B1 to B5 marked on the side of opposite party.  Both sides heard and the documents perused.

4.         As per Ext.B4  report, surveyor assessed the damages on repair loss basis as Rs.75664/-, on cash loss basis the amount assessed was Rs.47,067.66, on total loss basis the sum arrived was Rs.29,500/- and on salvage loss basis the amount calculated was Rs.24,500/-.

5.         The prime contention of the opposite party is that the estimate and actual repair charges were more than Rs.75,000/- i.e, the IDV of the vehicle.  Hence the insured was instructed to have a discussion with them before repair.  But the complainant not turned up.  But according to complainant repair was carried out after getting permission from opposite party after complying all the claim formalities.

6.         As per Ext.B5 the opposite party informed the complainant that to indemnify the loss on total loss basis i.e  for Rs.74,500/-for that  the complainant has to surrender the wrecked vehicle before the opposite party after transferring the registration certificate in their  name.  If the vehicle is not passed and RC is not transferred in the name of opposite party then they are ready to settle the claim only on salvage loss basis i.e for Rs.24,500/- as mentioned in the Surveyor’s Report.

7.         The specific case of the complainant is that he should not have take the risk to repair the vehicle if the insurer has not assented to repair the vehicle and assured to indemnify the loss.

8.         The learned counsel for opposite party S. Mahalinga invited our attention the decisions reported in IV (2005 CPJ 185 (NC) and III (2005) CPJ 506 and contended  that the transfer of RC and return of salvage is necessary to settle the claim on total loss basis for Rs.74,500/-.

9.         But in the instant case the surrender of wreck  and transfer of RC is not possible   since the vehicle is already repaired by the insured by spending a considerably huge amount than that of the IDV- Insured’s Declared Value  of the vehicle.

10.       The purpose of insurance  is the indemnification of loss in case peril.  It is not disputed that the vehicle of the complainant insured with opposite party met with accident and caused extensive damages.  It is also not in dispute that the vehicle was repaired by the insured after spending more than the IDV of the vehicle Rs.75,000/- So it is not possible for the insured to surrender the wreck and transfer RC in the name of opposite party to get the claim on total loss basis as suggested by opposite party .  The payment after deducting the wreck value under total loss basis is Rs.29,500/- as per Ext.B4  Survey Report if the wreck is not surrendered.  On salvage loss basis it is Rs.24,500/- as per the report of surveyor.  Both the said amounts will not indemnify the actual loss suffered by the complainant .

12.     DW2 the surveyor has deposed that for settlement of claim on cash loss basis the vehicle need not be surrendered to the company.  As per Ext.B4 the assessment on cash loss basis is Rs.47,067.66.  In our view the assessment under cash loss basis is just and equitable to settle the claim of the complainant.

            Therefore we allow the complaint and the opposite party is directed to pay Rs.47,000/-(rounded) with interest @ 12% from the date of complaint till payment.  Opposite party also directed to pay Rs.2000/- towards the cost of these proceedings.  Time for compliance 30 days from the date of receipt of copy of order.

      Sd/-                                                         Sd/-                                         Sd/-

 MEMBER                                                      MEMBER                               PRESIDENT

Exts.

A1. 27-12-05 letter sent by complainant to OP.

A2. 27-12-05 reply sent by OP to complainant.

B1. Policy issued by OP to complainant.

B2. 8-12-05 letter sent by Surveyor to complainant.

B3.28-12-05 letter sent by Surveyor to OP.

B4.13-03-06 copy of motor survey report.

B5. letter sent by OP to complainant.

DW2.M.Raveendran.

 

Sd/-                                                                Sd/-                                      Sd/-

MEMBER                                                       MEMBER                               PRESIDENT

Pj/                                                                                Forwarded by Order

 

 

                                                                              SENIOR SUPERINTENDENT

 

 




......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi