IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of February, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.119/2013 (Filed on 12.09.2013)
Between:
Saradanadan.V,
Vipanchika, Kadampanadu North P.O.
Kadampanadu Village,
Adoor Taluk,
Pathanamthitta Dist.
(By Adv. S. Ajith Prabhav) …. Complainant
And:
Branch Manager,
National Insurance Co. Pvt. Ltd.,
Kallakathara Buildings,
Main Road,
Pathanamthitta.
(By Adv. P.D. Varghese) …. Opposite party
O R D E R
Sri. Jacob Stephen (President):
Complainant filed this complaint against the opposite party for getting a relief from the Forum.
2. Brief facts of the case is as follows. Complainant purchased a Toyota Innova Car on 17.09.2012 and the said vehicle is insured with the opposite party vide policy No.571402/31/11/6300025427 for the period from 21.02.2012 to 20.02.2013, under a comprehensive package policy. The said vehicle is also registered as a Taxi and was having taxi permit. While so, on 30.08.2012 the above said taxi driven by one Jayaprakash while going to Mookambika with two families met with an accident at Ramanattukara bye-pass. In the accident 2 passengers died on account of the injuries sustained. Due to the accident the vehicle sustained extensive damages near about total loss. Driver of the Taxi had valid license and badge at the relevant time of the accident. In respect of the said accident Kozhikkode City traffic police has registered a crime as Cr. No.2799/12 against the driver of the bus dashed on the vehicle involved in this case. Damaged car was taken to VPK Motors, Calicut an approved Automobile Workshop of the manufacturer of the vehicle. Surveyor of the insurer conducted the survey of the said vehicle and the approximate cost of repair for the vehicle is calculated for about 7.5 Lakh.
3. The vehicle was repaired by V.P.K. Motors. The total cost of the repair which includes the labour charges and cost of materials and spare parts come to the tune of Rs.6,71,255/-. Out of the said amount, on 28.09.2012, the complainant paid Rs.1 lakh as advance by money transfer, on 20.12.2012 by way of Demand Draft a sum of Rs.4,40,000/- and the remaining 1,31,255/- by cash. For all payments V.P.K Motors Pvt. Ltd. issued receipts.
4. Even though the complainant incurred a loss of Rs.6,71,255/- and the claim was submitted in September 2012 itself, opposite party failed to process the claim in time. The complainant had also submitted all the relevant documents including the bills, receipts and estimate with the opposite party. Complainant expected that opposite party will directly settle the accounts with workshop, V.P.K. Motors Ltd. The loss assessor of the opposite party was fully convinced of the fact that the complainant sustained a loss of Rs.6,71,255/-. But after a lapse of many months opposite party transferred a sum of Rs.3,10,552/- on 20.08.2013 in the S.B Account of the complainant. In the meantime opposite party had obtained signatures of the complainant on some blank printed forms assuring that the exact amounts would be disbursed. But they have given only 3,10,552/-. So opposite party is liable to pay the balance amount of Rs.3,60,903/- to the complainant towards the cost of repairs. As per the terms of the policy opposite party is bound to pay the sum. The non-payment of balance amount to the complainant is a deficiency in service from the part of the opposite party which caused financial loss and mental agony to the complainant. Hence this complaint for getting the balance amount of Rs.3,60,703/- along with compensation of Rs. 1 Lakh.
5. Opposite party entered appearance and filed version with the following contentions.
6. Opposite party admitted the coverage of a comprehensive policy to the vehicle for a period from 21.02.2012 to 20.02.2013. Complainant had lodged a motor claim before the opposite party on 11.09.2012 regarding the accident of the insured vehicle and consequential damages occurred to it on 30.08.2012. On receipt of the motor claim opposite party deputed its surveyor and the surveyor had inspected the vehicle and filed survey report. At the time of the accident 8 passengers including 4 children, aged 9 years, 11 years, 13 years and 17 years were in the insured vehicle. The maximum passenger capacity as per the permit is six. Vehicle was overloaded than the permitted capacity at the time of the accident. So the claim of the complainant ought to have been rejected for the violation of policy conditions. But considering the genuineness of the claim opposite party has recommended, settlement of the claim on non-standard basis for Rs.3,10,380/-. The complainant was convinced about the permit violation and as such he was amenable for the settlement of the claim on non-standard basis. Thereafter the complainant accepted the amount of Rs.3,10,552/- as full and final settlement. So the complainant is not entitled to claim any further amount than already received by him. Compensation claimed by the complainant is highly exorbitant which has no basis. With the above contentions, opposite party prays for the dismissal of the complaint with cost.
7. On the basis of the pleadings of the Parties the only point to be considered is whether this complaint can be allowed or not?
8. The evidence of this complaint consists of the oral testimony of PW1, DW1, Exts. A1 to A4 and B1 to B5. After closure of evidence both side were heard.
9. The Points:- Complainant’s allegation is that he is the owner of a Toyota Innova Car bearing Reg. No. KL-26B/1269. The said vehicle is insured with the opposite party Vide Policy No 571402/31/11/630002527 for the period from 21.02.2012 to 20.02.2013 under a comprehensive package policy. Vehicle was also registered as a Taxi and was having taxi permit. While so on 30.08.2012 the said vehicle met with an accident at Ramanattukara bye-pass and three passengers died and the vehicle Is totally damaged. Kozhikkodu police registered a crime in respect of the accident. Vehicle was taken to VPK Motors, Calicut an approved workshop of the manufacturer of the vehicle. The surveyor of the insurer conducted the survey of the vehicle and the approximate estimate cost of repair is calculated as about 7.5 Lakh. Thereafter the vehicle was repaired and the total cost of the repair come to the tune of Rs.6,71,255/-. Complainant paid the entire amount and VPK Motors issued receipts for the same.
10. Even though the complainant incurred an expense of Rs. 6,71,255/- and the claim was submitted during September 2012 itself, opposite party failed to process the claim in time. After the lapse of few months opposite party transferred a sum of Rs.3,10,380/- only in the account of the complainant. Opposite party is liable to pay the balance amount of Rs.3,60,903/- to the complainant. The non-payment of the balance amount by the opposite party is a clear deficiency in service from their part and hence opposite party is liable to the complainant for the same.
11. In order to prove the case of the complaint, complainant filed proof affidavit in lieu of his chief examination along with 4 documents. On the basis of the proof affidavit complainant was examined as PW1 and documents produced are marked as Ext. A1 to A4. Ext. A1 is the policy certificate issued by opposite party. Ext. A2 is the bills issued by VPK Motors, Calicut. Ext. A3 is the Bank receipt voucher for Rs.1 lakh dated 28.09.2012. Ext A4 and A4(a) are the two receipts dated 20.02.2012 issued from the VPK Motors Pvt. Ltd.
12. On the other hand, the contention of the opposite party is that complainant had insured the vehicle with the opposite party. After the accident complainant lodged a motor claim before the opposite party and on receipt of the claim opposite party deputed surveyor and loss assessor. They inspected the vehicle and filed their survey report. But at the time of the accidents Vehicle was over loaded than the permitted capacity. So the claim of the complainant ought to have been rejected for the violation of policy conditions. But considering the genuiness of the claim, OP has recommended the settlement of the claim on non-standard basis for Rs.3,10,380/- and the complainant had accepted the amount as full and final settlement. So the complainant is not entitled to claim any further amount than the amount already received by him. So there is no deficiency in service from the part of the opposite party
13. In order to prove the case of the opposite party, opposite party is examined as DW1 and one witness, the insurance surveyor also examined as DW2 and the documents produced by the OP is marked as Ext B1 to B5. Ext. B1 is marked through PW1. Ext B1 is the full and final settlement voucher. Ext B2 is the certificate of insurance cum policy schedule. B2(a) is that particular portion in Ext B2 stating the limits of liability. Ext. B3 is the final survey report prepared by N.G.Saseedaran. Ext B4 is the re-inspection report dated 30.01.2013. Ext. B5 is the contract carriage permit issued by R.T.O, Adoor in respect of the vehicle in question.
14. On the basis of the contentions and arguments of the parties we have perused the entire materials on record and found that the parties have no dispute regarding the validity of the policy, the accident, damage of the vehicle and the receipt of complainant’s claim. The only dispute of the opposite party is that the vehicle was overloaded at the time of the accident which is a violation of the policy condition which itself is a bar in allowing the complainants claim. Even then opposite party paid an amount of Rs.3,10,380/- on non-standard basis after deducting the amounts required to be deducted legally, on the basis of the genuiness of the accident and on humanitarian consideration. The complainant also accepted the said amount as full and final settlement by executing proper vouchers. So according to the opposite party complainant is not entitled to get any further amount as claimed by him.
15. In view of the above contention of the opposite party, we have examined the available evidence and found that there was altogether 9 persons including the driver in the vehicle at the time of the accident. It is pertinent to note that out of the 9 passengers 4 of them are less than 17 years and 3 out of the said 4 are in the age of 9 to 13 years. The said 3 passengers can’t be treated as adults and the opposite party has not adduced any evidence based on statutory provisions to show that the 4 minor passengers can be treated as adults. Moreover there is no evidence for any case against the driver for carrying excess passengers. So we are of the view that the over load contention of the opposite party is not sustainable. Further there is no provision in the policy condition for settling the claim on non-standard basis. It is evident from the deposition DW1 which is as follows “Non-standard settlement ന് policy condition-ല് പ്രത്യേക വ്യവസ്ഥയില്ല ”. So the decision taken by the opposite party for paying Rs.3,10,000/- on non-standard basis is an arbitrary act which had no legal basis. Further there is no evidence to show that the accident was occurred due to the rashness and negligent driving of the driver of the vehicle and it was happened due to the accommodation of 2 more infants under the age of 11 years against the permitted seating capacity. In the circumstances, the non-payment of the actual amount by the opposite party is a clear deficiency in service and hence the complaint is allowable.
16. However the claim of the complainant is Rs.6,70,777/- but he himself admitted that the said amount includes depreciation and other statutory deductions. It is clear from his deposition which is as follows “യഥാര്ത്ഥ ചിലവാണ് 6,71253/- രൂപാ. Depreciation കണക്കാക്കാതെയുള്ള തുകയാണ് ആ തുക”. So it is clear that he is not entitled to get the said amount as claimed by him. At the same time as per the assessment made by the surveyor of the opposite party the total loss is 4,61,840/-. Total amount paid by the complaint vide A3, A4 and A4(a) is Rs.6,71,255/-. But the complainant failed to prove that what all amounts paid by him is in connection with the accident repair alone. So it is not advisable and acceptable to admit the complainant’s claim of Rs.6,71,255/- as it includes depreciation and statutory deductions as well as unnecessary replacement of parts and labour. Complainant also fails to adduce any evidence to show that he is entitled to get the claim amount in full. So we are constrained to accept the assessment made by the surveyor of the insurance company less allowable deductions such as depreciation and policy excess etc. Therefore the complainant is entitled to get only Rs.4,61,840/- less salvage value of Rs.35,000/- and policy excess of Rs.10,000/- Hence this complaint is allowable in part. Since complainant had already received an amount of Rs.3,10,380/- out of the assessed amount of Rs. 4,61,840/- and after deducting salvage and policy excess, he is entitled to get Rs.1,15,460/- ( 4,61,840 – 3,10,380 – 35,000 – 1,000 = Rs.1,15,460).
17. In the result, this complaint is partly allowed, thereby the opposite party is directed to pay Rs.1,15,460/- (Rupees One lakh Fifteen Thousand four hundred and sixty only) with 9% interest from the date of filing of this complaint along with compensation of Rs.5,000/- (Rupees Five Thousand only) and cost of Rs.2,000/- (Rupees Two Thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest from today till the realization of whole amount.
17. Declared in the Open Forum on this the 26th day of February, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sarada Nandan
Exhibits marked on the side of the complainant:
A1 : Policy certificate issued by opposite party in the name of the complainant.
A2 : Bills issued by VPK Motors Pvt. Ltd., Calicut.
A3 : Photocopy of Bank receipt voucher dated 29.09.2012 for Rs.1 lakh issued by
VPK Motors Pvt. Ltd.
A4 & A4(a) : Two receipts dated 20.02.2012 issued by VPK Motors Pvt. Ltd. in the
name of the complainant.
Witness examined on the side of the opposite party:
DW1 : Suresh Babu
DW2 : N.G. Saseedaran.
Exhibits marked on the side of the opposite party:
B1 : Full and final settlement voucher.
B2 : Certificate of insurance cum policy schedule.
B2(a) : Particular portion in Ext B2.
B3 : Motor Final survey report prepared by N.G.Saseedaran.
B4 : Re-inspection report dated 30.01.2013.
B5 : Contract carriage permit issued by R.T.O, Adoor.
(By Order)
Copy to: (1) Saradanadan.V, Vipanchika, Kadampanadu North P.O., Kadampanadu
Village, Adoor Taluk, Pathanamthitta Dist.
(2) Branch Manager, National Insurance Co. Pvt. Ltd., Kallakathara Buildings,
Main Road, Pathanamthitta.
(3) Stock file.
