Smt.G.Vasanthakumari, President
Complainant’s case is that the complainant is the registered owner and in possession of Toyota Qualis bearing Registration No.KL -2T/3434 which was purchased on 19.08.2004 and insured with the first opposite party for a period commencing from 20.08.04 to 19.08.05, that the said policy covers all damages and compensation and as per the policy, the insurer is liable to indemnify the complainant for all losses suffered by him including own damage to his vehicle,
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that on 15.11.04 while the vehicle was on the way from Kuttalam, it happened to jump over a road hump which has no traffic sign and the vehicle was capsized after loosing its control, that the vehicle sustained severe damage, that the shell of the vehicle was bent severely and its shape was also changed, that immediately the vehicle was taken to M/s.Moopan Motors, Thiruvananthapuram, which is the authorized service centre and repairer of Toyota Qualis, that the accident was reported to the opposite parties and on receipt of the intimation about the accident, the opposite parties have deputed their surveyor, who has examined the vehicle and assessed the damages caused to the vehicle, that thereafter the opposite parties office has directed M/s.Moopan Motors to commence the repair of the vehicle, that on careful examination of the vehicle it is noticed that the vehicle sustained extensive damage to the body, more particularly the body shell of the vehicle by means of bending, denting, cutting and other damages, that the rebuilding of the shell requires repair of the entire body panel by denting, cutting and replacing the damaged body panels by welding, realigning the body shell as per specification and complete body repainting, that the rebuilding of the body by replacing the body shell was considered ideal and it is more fit to regain the original strength of the body, that M/s.Moopan Motors was of the firm opinion that in view of the nature of the damage caused to the shell of the body and cost and advantage of rebuilding the shell by means of cutting, denting and welding it is ideal and more worth while to replace the body shell with a new one, that the surveyor appointed by the opposite parties has also orally conceded the need of replacing the shell of the vehicle with a new one, that on 18.11.04 M/s.Moopan Motors submitted an estimate of repair to the tune of Rs.3,53,130/- being the estimated value of the repair of the vehicle including the cost of a new shell, that on the basis of this estimate the complainant submitted his claim form to the said sum of Rs.3,53,130/-, that on 08.12.04 the second opposite party issued work order by which replacement and
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repairs of certain items are only offered and they have made provision for labour charge to the tune of Rs.45,000/- only, that on receipt of this work order, M/s.Moopan Motors promptly replied stating that the work order issued by the opposite party is not in tune with the estimate repairs proposed by them and the work order is against the actual damages and cost, that M/s.Moopan Motors have also warned that they will charge floor rent and estimate preparation charge as long as the vehicle remains without the commencement of the work, that on hearing this, the complainant also requested the opposite parties in writing to re-assess the damage and reconsider the decision for which the opposite parties again offered some more labour charge and repairing cost on 20.01.05 which was also very meager, that since the main dispute between the opposite parties and the repairer is with regard to the replacement of a shell ,the complainant decided to seek an independent expert opinion regarding the scope of repair and replacement of the body shell and accordingly Mr.V.R.Sabu, Lecturer in the Department of Mechanical and Automobile Engineering, Sree Chithira Tirunal College of Engineering, Thiruvananthapuram was requested to conduct an independent and impartial survey of the damaged vehicle, that on 04.02.05, he conducted the survey of the vehicle after giving notice to the complainant as well as to the opposite parties, that the second opposite party though received notice did not turn up, that the vehicle was inspected and the damage was assessed by the independent surveyor in the presence of the complainant and service personnel M/s.Moopan Motors, that he has conducted a detailed inspection of the various damages sustained to the vehicle, that he has also taken photos of the damaged vehicle and was incorporated with his report, that on 07.02.05, he has submitted a detailed inspection report, that as per his report he opined that the rebuilding of the entire body is a laborious work and involves replacement of more panels and requires more skilled work, that he has also indicated that the replacement of the body shell is the ideal and required repair to be done to the
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vehicle, that accordingly the complainant had no other option, but to replace the shell of the vehicle with a new one, that the cost of the new body shell along comes to Rs.1,81,818/- including tax, that after making all repairs and replacement M/s.Moopan Motors issued a total bill for Rs.2,95,763/- as per their cash invoice bill dated:28.02.05, that on receipt of the above invoice the complainant submitted the same to the opposite parties to effect payment, and since nothing was heard from the opposite parties the complainant repeatedly contacted the opposite parties and requested to expedite the payment so as to release the vehicle from M/s.Moopan Motors after payment, that since loss has been accumulating to the complainant day by day due to the non delivery of the vehicle the complainant was constrained to borrow money from outside and paid the total invoice price of Rs.2,95,763/- to M/s.Moopan Motors and the vehicle was released and the fact was intimated to the opposite parties and requested to reimburse the repair charges but there was no response from the opposite parties, that on 05.04.05 the complainant made a written reminder and at last 13.05.05, the opposite parties requested the complainant to submit a blank cash receipt against the repair invoice to process the claim at the earliest, that immediately the complainant rushed to the office of the opposite parties and the complainant was compelled to sign a blank cash receipt on the assurance that the entire repair amount will be reimbursed and since nothing was found suspicious, the complainant signed the blank cash receipt and entrusted it to the opposite parties, that the complainant has been told that the claim amount will be directly paid to M/s.Moopan Motors, that on 29.06.05, the complainant has been informed by M/s.Moopan Motors that they have received a partial payment of Rs.1,43,000/- and the complainant was directed to receive the same from them by way of cheque, that the claim disbursed by the opposite parties is very meager and insufficient against the actual repair charges and replacement cost and hence the complainant decided to not to receive the amount and to leave the matter for legal
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adjudication but the financial condition of the complainant compelled him to receive the amount subject to his protest and on the same day evening the complainant has lodged protest to the opposite parties by registered letter, that the opposite parties though received the protest no steps has been taken to disburse the balance amount, that now it is suspected that the opposite parties have given the said amount in full discharge of their liability , that the act of the opposite parties is illegal, improper and unjust, that it is nothing but unfair trade practice and deficiency in service on the part of the opposite parties, that the opposite parties also committed fraud by compelling the complainant to sign a “ blank satisfaction memo ” and converted into full and final settlement memo without disbursing the full amount or at least a considerable amount, that the complainant is entitled to get back the balance amount of Rs.1,52,763/-, that the complainant was also put to untold miseries and hardships due to the unjust and sadistic attitude of the insurer, that the mental agony, sufferings and tensions sustained by the complainant cannot be equated in terms of money but for legal purpose, it is fixed to the tune of Rs.25,000/- and that the complainant is entitled to get the cost of the proceedings.
Opposite parties 1 & 2 filed version stating that the complaint is not maintainable, that the complainant in this case had already made a settlement with this opposite party by receiving an amount of Rs.1,43,000/- towards full and final settlement of his claim on 17.06.05 by executing a discharge voucher signed by the complainant, that the complainant had received the said amount in full satisfaction of his claim without any protest and the discharge voucher has been signed by him on 02.06.05 voluntarily and freely fully knowing the fact that the amount mentioned in the discharge voucher is the final amount payable to him under the claim pending with the opposite party, that since the complainant has received the amount towards full and final settlement of his claim, it is not open for him to raise a dispute against the said settlement under the provisions of the
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Consumer Protection Act, that the complainant who was fully knowing the legal consequences of the settlement made by him with the insurance company sent a letter to the opposite party on 11.07.05, ie, after 26 days from the date of settlement of the claim, expressing his protest against the settlement already made by him with the opposite party, that the protest letter sent by the complainant is only an after thought of his belated wisdom to raise a dispute against the settlement he had already made with this opposite party towards full and final settlement of the claim, that the present complaint filed by him raising dispute regarding the legality of the settlement is not a matter which fall within the purview of the provisions of the Consumer Protection Act and if at all the complainant is having any dispute against the full and final settlement made by him with this opposite party, the remedy for the same is elsewhere, that it is admitted that this opposite party had issued a comprehensive package policy to the complainant for his Toyoto Qualis for a period commencing from 20.08.2004 to 19.08.05, that the complainant reported a claim with this opposite party on 18.11.2004 stating that the insured vehicle met with an accident on 15.11.2005, that the opposite party on receipt of the intimation of the claim had issued a claim form to the complainant with a request to retransmit the same duly filled and signed along with the estimate from the repairer, that the complainant thereafter submitted the claim form along with the estimate from the repairer M/s.Moopan Motors Pvt Limited, Kazhakoottam showing the cost and expenses for repairing the damaged vehicle, that the opposite party thereafter deputed a licensed independent loss assessor and insurance surveyor Mr.P.T.R.Babu to inspect the damaged vehicle and to assess the extent of loss in accordance with the policy condition, that the surveyor visited the repairers workshop on 23.11.04 and examined the nature of damage sustained to the vehicle in detail in order to assess the extent of loss, that during the time of the inspection, the repairer claimed replacement of cabin assembly costing around Rs.1,66,500/- along with
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the other damaged parts, but on verification of the nature of the damages sustained to a portion of cabin assembly, the same is found to be megre and the same is perfectly repairable with replacement of the damaged parts, such as pillar RH and LH, panel roof and panel LH etc and since the repairer made an illegal demand for replacement of the cabin assembly, the same has been intimated to the Divisional Manager of the opposite party at Kollam, that the complainant came to the Divisional Office at Kollam on 25.11.2004 and had a joined discussion with the Divisional Manager and the administrative Officer Mr.Reghunath along with the surveyor for an amicable settlement of the claim, that though the complainant insisted for the illegal demand in replacement of the cabin assembly, the surveyor explained to him about the exact damages caused to the cabin assembly which is not at all significant in nature and also informed him that the damages caused to the cabin assembly is perfectly repairable by replacing the damaged parts which are readily available with the dealers, that the damages sustained to the cabin assembly is quite repairable by replacement of the damaged parts, which will not affect the perfectness and look of the vehicle after the repair work is over, that the complainant after convincing himself about the illegal demand made by him for replacement of the cabin assembly has finally agreed with the suggestions made by the surveyor and accordingly the complainant submitted a supplementary estimate dated:30.11.2004 from the repairer for repairing the cabin assembly in lieu of the replacement of cabin assembly demanded by him, that the surveyor along with the Divisional Manager of the opposite party later on visited the repairers workshop on 30.11.04 evening and has discussion with the repairer as will regarding the settlement of the claim, that the repairer and the complainant retracted from their earlier stand and again claimed replacement of totally unaffected body parts like front door RH, rear door RH, quarter panel RH etc without any justification, that the said illegal demand was rejected by the surveyor after explaining the reason for the same, that the repairer claimed an amount of Rs.65,000/- being the total labour charges including body repair and painting,
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that the labour charges claimed by the repairer was very much exorbitant and disproportionate to the actual damages noticed and the repair works required for rectifying the same, since the labour charges claimed is exorbitant, the surveyor assessed an amount of Rs.45,000/- towards the labour charges considering the actual volume of work involved for repairing the damaged body shell and the other repair works including the painting charges, that the surveyor accordingly submitted his report dated:06.12.2004 before this opposite party assessing an amount of Rs.1,23,530/- after deducting policy excess of Rs.1000/- towards cost of spare parts including tax and the labour charges etc, that the surveyor has also assessed an amount of Rs.4000/- towards the salvage value of damaged parts, that the opposite party on the basis of the report submitted by the surveyor had issued a work order dated:08/12/2004 to the repairer with a copy to the complainant mentioning the parts allowed for replacement with reference to the estimate and the total labour charges payable for repairing the damaged vehicle, that surprisingly the opposite party got a letter dated nil from the repairer expressing his inability to carry out the repair works on the basis of the work order dated:08.12.2004 received by him, that in the mean time the complainant on 10/12/2004 sent a letter to the regional office of the opposite party reiterating his illegal demands in the settlement of the claim, that on the basis of the aforesaid letter the surveyor along with Sri.Sivakumar, Assistant Manager from the Regional Office visited the repairers garage on 31.12.2004 and had further discussion with the repairer for settlement of the claim that the Assistant Manger, Mr.Sivakumar has also convinced the fact that the body shell is repairable with changing necessary body parts alone and as a result of the joint discussion, the repairer has also agreed to repair the body shell by replacing the damaged parts and accordingly submitted a supplementary estimate number 025740 (B) to the insurance company, that it is to be noted that in the supplementary estimate submitted by the complainant, the cost of parts including tax is shown as 1,22,515/- instead of Rs.2,64,530/-, given in the earlier estimate, that during
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the discussion, the repairer explained that the front right side door frame was twisted and the window glass was not freely moving in the glass channels and hence required replacement of the front door RH, that the repairer further demanded that the two toue metallic painting also is costly and requested to enhance the labour charges, that the above demands was further discussed with the insured and the Divisional Manager on 06/01/2005 and on 18/01/2005 and also in consultation with the regional office, the surveyor allowed replacement of panel assembly of front door RH costing Rs.15,073/- and an additional labour charges Rs.10,000/-, that the surveyor on the basis of the above modifications had submitted an addendum report dated:18/01/2005 to the opposite party, that the opposite party thereafter issued a letter to the complainant on 20/01/2005 with a copy to the repairer, intimating the final settlement towards labour charges and the spare parts allowed for replacement on the basis of the addendum report submitted by the surveyor as well, that the complainant received the copy of the said letter on 25/01/2005 and requesting him to complete the repair works and to contact the opposite party for arranging reinspection survey before painting works, that the complainant thereafter informed the opposite party about the completion of repair works and accordingly the opposite party deputed another licensed surveyor and loss assessor Mr.K.H.Muhammed Asharaf for conducting reinspection of the vehicle on the basis of the final survey report and addendum report submitted by the surveyor Mr.P.T.R.Babu, that the surveyor at the time of reinspection found that instead of repairing the affected damages of the body shell, the same as a whole was seen replaced against the finalized work order issued to the insured as well as the repairer, that the opposite party on the basis of the reinspection report dated:14/03/2005 submitted by the surveyor has assessed the net loss payable to a sum of Rs.1,43,000/- after deducting the policy
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excess and salvage value towards the claim payable to the complainant, that the complainant has signed the aforesaid discharge voucher on 02/06/05 towards full and final settlement of the claim and the opposite party on receipt of the aforesaid discharge voucher has settled the claim with the complainant on 17/06/2005, that the complainant in this case in an arbitrary manner and against the final settlement arrived had opted to replace the body shell instead of repairing the same by replacing the necessary damaged body parts, that the complainant has no manner of right to exercise such an option in an illegal and arbitrarily manner against the basic principles of assessment of damages as contemplated under the policy condition, that it is submitted that the assessment made by the licensed surveyor and loss assessor in his survey report has got paramount significance for the settlement of an insurance claim as envisaged under the statutory provisions of Sec.64 UM of the insurance act, that this opposite party is not liable to compensate the complainant for the expenses incurred by him in replacing the body shell at his own desire and choice, that there is no deficiency in service and the complaint is only to be dismissed with compensatory cost to the opposite parties.
The points for consideration are:
- Whether the complaint is maintainable before this Forum after receiving the claim amount from the opposite party towards full and final settlement of the claim?
- Whether the settlement made by the complainant with the first opposite party was under any undue influence or by misrepresentation, or by committing fraud?
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- Whether there is any deficiency of service or unfair trade practice?
- Reliefs and costs?
For the complainant PW1 to PW3 were examined and marked Exts.P1 to P15. For the opposite party DW1 & DW2 were examined and marked Exts.D1 to D9.
The Points
Admittedly the complainant has purchased a brand new Toyoto Qualis vehicle bearing Reg.No.KL-2T/3434 on 19.08.2004 approximately for a price of Rs.9.25 lakhs. The vehicle was insured with the first opposite party New India Assurance Company Limited, Kottarakkara branch which functions under the Divisional jurisdiction of the second opposite party. The vehicle was insured under comprehensive insurance policy for a period commencing from 20/08/04 to 19/08/05. Ext.P1 is the original insurance policy. Ext.D1 is the certified copy of the policy with conditions. Under the policy the insurer is liable to indemnify the complainant towards any loss suffered by him. The vehicle met with an accident while it was hardly three months old and had not covered a distance of 5,000/-kms. Immediately after the accident the complainant had reported the matter to the opposite party who immediately had deputed a Government of India licensed insurance surveyor and loss assessor Mr.P.T.R.Babu for inspecting the vehicle and for assessing the extent of damage sustained. The surveyor inspected the damaged vehicle in detail and had discussion with the repairer M/s.Moopan Motors Private Limited, Kazhakoottam, where the vehicle was kept for repairs. In the original estimate submitted by the repairer which has been marked as Ext.D2,
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(Copy marked as Ext.P2) the repairer has recommended replacement of body shell as well, as per the demand of the complainant worth Rs.1,66,500/- but when the surveyor and the Divisional Manager of the Insurance company visited the workshop and examined the damages in detail after dismantling the damaged parts and had discussion with the repairer, during the discussion the repairer convinced that the demand for change of body shell is quite unwarranted and the vehicle can be perfectly repaired by replacing the damaged parts alone. The repairer also convinced about the above real state of affairs and accordingly issued a supplementary estimate on 30.11.2004 accepting to repair the vehicle without changing the body shell. The second estimate given by the repairer is marked as Ext.D3. In Ext.D3, repairer requested for change of total 67 parts by deleting body shell which was included as item no.60 in the first estimate. So, from the very issuance of the second estimate dated: 30/11/2004 clearly indicates the fact that the vehicle can be perfectly repaired without changing the body shell demanded in the first estimate. Ext.D4 is the survey report dated: 06.12.04. The opposite party on receipt of the survey report had issued Ext.D6 (P4) work order to the repairer for carrying the repair works by changing the parts mentioned in the work order. After receipt of Ext.D6 work order the repairer sent Ext.P5 letter to the opposite party expressing their inability to carryout the repair works on the basis of the work order issued by the opposite party. In the mean time, the complainant also sent a letter to the Regional Office of the opposite party disputing the assessment of the surveyor and by demanding change of body shell in tune with his earlier demand. The Assistant Manager, Mr.Sivakumar from the Regional Office of the opposite party visited the repairers and had discussion with the repairer along with surveyor and the complainant. It is spoken to by DW1before the Forum. It is argued by the Learned Counsel appearing for the opposite parties that after convincing that the demand for change of body shell is absolutely unnecessary but however, after a detailed discussion he has agreed for change of front door RH fully and also for two tone metallic paint as demanded by the repairer during
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the discussion and the surveyor has filed an addendum survey report Ext.D5. In that it is mentioned that the repairer was prepared to repair the body shell on the basis of Ext.D3 estimate submitted by the repairer and also about the additional parts allowed for replacement and additional labour charges allowed to a total sum of Rs.25,703/- in addition to the assessment made by him for a sum of Rs.1,23,530/- given in his first report dated : 06/12/2004. It follows that the surveyor has assessed the total loss to a sum of Rs.1,48,603/-. According to the opposite parties since the repairer agreed to complete the repair works on the basis of surveyor’s second estimate the opposite party issued Ext.D7 letter dated:20/01/05 to start the repair works. In Ext.D7 letter, it has clearly mentioned that “as you disagreed with our above referred offer for claim settlement, we deputed the surveyor Mr.P.T.R.Babu once again. He has submitted his addendum report dated: 18/01/05 ”. According to the opposite parties the complainant there after informed the opposite party about the completion of work and accordingly the opposite party deputed another surveyor Mr.K.H.Muhammed Asharaf for reinspection and he found that instead of repairing damaged body shell, the body shell has been seen replaced with a new one against the specific instruction given in the work order and the final settlement of the claim arrived between the parties. It is in evidence that the actual dispute between the complainant and the opposite party is with regard to the replacement of the body shell and at this juncture Ext.D3 supplementary estimate of repairs given by the repairer assumes more importance. Ext.D3 is given fully agreeing to complete the repair works without change of body shell. The very act of giving a second estimate by the repairer shows that the vehicle can be repaired perfectly without changing body shell as damaged by the complainant. It is pertinent to note that even though the repairer has firstly included change of body shell in the first estimate he retracted from that in his subsequent estimate. Hence the case of the opposite party that the repairer removed the body shell as per the request of the
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complainant cannot be brushed aside.
In this case the complainant was examined as PW1. He would swear before the Forum in tune with the allegations in the complaint. The surveyor was examined as DW1. Nothing was brought out in his cross examination to discredit the witness. As we have already mentioned the repairer has given a supplementary estimate of repairs agreeing to repair the damaged body shell by replacing the damaged portions alone without changing the body shell. It strengthens the survey report. The survey report as far as this case is concerned is legally binding in assessing the loss payable under the insurance claim. In 2000 (10) SCC at Page 19 our apex court held that “ a surveyors report, which is required to be made u/s 64 UM(2) of the Insurance Act 1938, is an important document and its non – consideration results in serious miscarriage of justice and vitiates the judgment rendered by the court.” The report of the expert, PW3 not discloses the details of the damages sustained to the body shell. In cross examination he would swear before the Forum that “ ó¡÷› ƒÐ»ð¤¨Ð †ˆœÈ£ð»¡ð óô¬±œˆ¡ñ»¡Ã® report Äà¡ú¡´¢ðÄ®? •¨Ä. So that report is not acceptable.
Further it is in evidence that the opposite party had settled the claim on the basis of the survey report and towards full and final settlement of the claim for a sum of Rs.1,43,000/-. The complainant has signed Ext.D8 discharge voucher. Now before the Forum the case of the complainant is that the opposite parties committed fraud by compelling the complainant to sign a blank satisfaction memo and converting the same into a full and final settlement memo without disbursing the full amount or at least a considerable amount. But the specific case of the opposite party is that after discussion with the surveyor, Assistant Manager,
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Mr.Sivakumar, from the Regional Office of the opposite party, repairer etc they have come to a conclusion that the body shell need not be changed but only to be
repaired and after completion of the work another surveyor K.H.Muhammed Asharaf, reinspected and subsequently the opposite party finalized the claim on the basis of the assessment made by the surveyor for a sum of Rs.1,43,000/- and it was accepted by the complainant towards full and final discharge of the claim and voluntarily with his free willingness and intention to settle the claim to a sum of Rs.1,43,000/- signed in Ext.D8 voucher. It is true that mere execution of voucher without any protest would not always debar the complainant from filing the complaint. In this case there is no dispute that the discharge voucher had been signed by the complainant but there is to be adjudication as to whether the discharge voucher was signed voluntarily or under coercion. In this case the complainant has not adduced any evidence to show that the discharge voucher had been obtained by opposite party under the circumstances which can be termed as fraudulent. Allegation of fraud is not sufficient. Fraud is to be proved. Here, in this case alleged fraud is not proved and the protest put in on 11/07/05 can be considered only as an afterthought and we have no hesitation to safely conclude that there is no deficiency of service or unfair trade practice and the complaint is not maintainable before this Forum and since the quantum assessed by the surveyor alone is disputed, he can either approach the Civil Court or the IRDA under Provisions 64 UM of Insurance Act or invoke the conditions of the policy relating to reference to arbitration in respect of quantum dispute..
Points found accordingly.
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In the result, the complaint is dismissed. In the circumstances there is no order as to costs.
Dated this the 22nd day of February 2012.
G.Vasanthakumari :Sd/-
Adv.Ravi Susha :Sd/-
R.Vijayakumar :Sd/-
INDEX
List of witnesses for the complainant
PW1 - M.K.Biju
PW2 - Roggi Ebral
PW3 - Sabu.V.R
List of documents for the complainant
P1 - Original policy
P2 - Estimate of Moopan Motors
P3 - Copy of claim form
P4 - Notice copy issued by opposite party to Moopan
Motors dtd :08/12/2004
P5 - Reply of moopan motors to opposite party
P6 - Notice issued by moopan motors dtd :12.12.2004
P7 - Notice copy sent by complainant to opposite party
P8 - Inspection Report
P9 -Invoice
P10 -Receipt from Moopan Motors 07/02/2005
P11 - Letter 05.04.05 and acknowledgment card
P12 - protest complainant copy dtd :11/07/05 and receipt
P13 - Protest letter
P14 - Advocate notice 06/08/05
P15 - Notice and receitpt
List of witnesses for the opposite party
DW1 - P.T.R.Babu
DW2 - V.Jayaram
List of documents for the opposite party
D1 - Policy with condition
D2 - First estimate of the repairer dtd :18/11/2004
D3 - Second estimate given by the repairer dated :30/11/2004
D4 - Survey report dated :06/12/2004
D5 - Work order dated : 08/12/2004
D6 - Addendum survey report dtd :18/01/05
D7 - Letter issued to the complainant dtd :20.01.2005
D8 - Full and final settlement voucher signed by the complainant
D9 - Letter issued to M/s.Moopan Motors along with the cheque
amount for settlement
