BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 482/2004 Filed on 31.12.2004

Dated : 15.10.2009

Complainant:

R. Sasidharan, Sali Bhavan, Keeliyode, Perumpazhuthoor, Neyyattinkara.

Opposite parties:

1. The District Insurance Officer, Kerala State Insurance Department, Thycaud, Thiruvananthapuram.

    

2. The Director of Insurance, Kerala State Insurance Department, Thiruvananthapuram Housing Board Building, Statue.

(By Adv. Paraniyam Devakumar, Addl.Govt. Pleader)

This O.P having been heard on 31.08.2009, the Forum on 15.10.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The case of the complainant is as follows: Complainant in this case is a driver by profession. As per self employment scheme, complainant has availed a loan amount of Rs. 2,96,000/- from the Kerala Financial Corporation and purchased a Tempo Trax Challenger with registration No. KL-01 P 2253. The said vehicle was insured with the 2^nd and 1^st opposite parties with policy No. DT2/CV/748/99 valid from 24.02.1999 to 23.02.2000. While insuring the vehicle the insurance value of the vehicle was estimated for an amount of Rs. 2,96,009/-. While so on 30.01.2000 the vehicle was stolen away by thieves and a crime was registered by Neyyattinkara Police as Crime No. 577/00. Since the vehicle's whereabouts were not known, the police has filed a U.N report before the court. During the period the said vehicle has a valid insurance and he approached the opposite parties for getting the insurance amount. The insurance officials decided to pay an amount of Rs. 2,10,000/- and later they have decided to deduct the amount arbitrarily from Rs. 2,10,000/- to 1,95,000/-. Since the complainant is in dire need of money to pay the loan amount dues, he had received the amount of Rs. 1,95,000/- with protest. The opposite delayed the disbursement of the above said amount also. Since it was delayed, the Financial Corporation Officials issued notice to the complainant to attach his immovables. Because of this, the wife of the complainant committed suicide. After the acceptance of the amount of Rs. 1,95,000/- complainant had approached the Insurance Ombudsman on 24.08.2004. Since it is not the proper Forum to file such a complaint, they advised the complainant to file the case before proper Forum. Though the opposite parties are bound legally and morally to pay Rs. 2,96,009/-, they are deliberately evading from paying the amount. There is deficiency in service and wilful latches on the part of opposite parties. Hence this complaint.

Opposite parties in this case filed their version. In their version they admitted the facts related to the insurance of the vehicle and policy issued by them is found to be right as per documents. They submitted that the claim was finalized for Rs. 2,10,000/- as per order dated 27.03.2003 and discharge voucher was issued by the then Director of Insurance. The matter was again reconsidered and an expert opinion from Surveyor Sri. Nizar Mohammed was obtained. Based on his report, the claim amount was reduced to Rs. 1,95,000/- and the amount was sanctioned under proceedings of the then Director of Insurance on 23.04.2004. They also submitted that the amount was sanctioned being full and final settlement of all the claims present or future arising directly or indirectly in respect of the accidents on receipt of discharge voucher. They also submitted that the report from Deputy Superintendent of Police regarding confirmation of theft was received only on 16.01.2004, which is an essential document to settle the claim. Discharge voucher was issued on 23.02.2004 and Demand Draft was sent to Kerala Financial Corporation on 21.04.2004. Hence there is no delay in service. They prayed for dismissal of the complaint.

In this case the complainant has filed proof affidavit and he has produced 4 documents to prove his case. The documents were marked as Exts. P1 to P4. In this case the opposite party has not adduced any evidence and did not turn up to cross examine the complainant. Hence the affidavit filed by the complainant stands unchallenged.

Points that would arise for consideration are:-

1. Whether there is deficiency in service from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- In this case the opposite parties have admitted the facts relating to the insurance. The only dispute is regarding the quantum of compensation. The complainant in this case filed proof affidavit and produced 4 documents. The opposite parties in this case have not adduced any evidence and not cross-examined the complainant. The affidavit filed by the complainant stands uncontroverted. The document produced as Ext. P1 is the paper cutting in which the news published that the complainant's wife committed suicide due to the fear of attachment proceedings of K.F.C. Ext. P2 is the copy of U.N Report in Crime No. 577/2000. Ext. P3 is the copy of certificate of registration in the name of complainant. Ext. P4 is the certificate of insurance and policy copy. As per policy copy the estimated value of insured vehicle is seen as Rs. 2,96,009/- and the period of insurance is from 24.02.1999 to 23.02.2000. The theft occurred on 30.01.2000 i.e, after 11 months from the date of taking insurance. In this case the complainant insured the vehicle with the opposite parties for Rs. 2,96,009/-. Hence the opposite party is liable to compensate the complainant for that amount. Complainant had used the vehicle for 11 months, hence depreciation for the use is deducted from the insured amount. In this case opposite party paid only Rs. 1,95,000/- to the complainant. For that the opposite party argued that as per Sec. 43 of Motor Insurance Regulations an insurer can take the opinion of 2 or 3 automobile surveyors for arriving at the market value of the untraced vehicle. Accordingly they appointed a surveyor and based on his report the claim amount was fixed as Rs. 1,95,000/-. But that contention of the opposite party is not sustainable. They have no evidence adduced to prove that contention. No surveyor's report was produced here. They have only produced the copy of Sec. 43 of Motor Insurance Regulation. In that document it is specifically stated that the opinion of 2 or 3 automobile surveyors is required. But the opposite party has not adduced any evidence of surveyor's report and not examined the surveyor as a witness. In this case the complainant is entitled to get the insured value of his vehicle after deducting the depreciation value. The value of the vehicle on the date of insurance is accepted at Rs. 2,96,009/-. The theft occurred after 11 months of issuance of insurance. From the materials on record we find that it is reasonable to deduct Rs. 15,000/- as depreciation from the insured value. We have fixed the depreciation amount on the basis of the decision cited as III(2008) CPJ 63(SC) in Dharmendra Goel Vs. Oriental Insurance Co. Ltd. In that case Hon'ble Supreme Court find that Insurance company is bound by value put on vehicle while renewing policy. In that case vehicle has been used for seven months, value reduced by Rs. 10,000/- only as depreciation for the use of 7 months. Hence the opposite party is liable to pay Rs. 2,81,009/- (Rs. 2,96,009 - Rs. 15,000/-). The opposite party paid an amount of Rs. 1,95,000/- in this case. Hence the complainant is entitled to get Rs. 86,009/- (Rs. 2,81,009- Rs. 1,95,000/-). From the above mentioned discussions we are of the view that there is deficiency in service from the side of opposite parties. The opposite parties did not pay the eligible amount to the complainant. For that he suffered too much, he lost his wife. If the opposite parties had paid the eligible amount to the complainant in time, the complainant would not have been made to suffer as mentioned in the complaint. Moreover due to the deficient act of the opposite parties the complainant had to face such a financial crisis which has lead to the suicide of his wife. The loss caused to the complainant can never be committed in terms of money even then we allow Rs. 5,000/- for the mental agony suffered by him.

In the result, complaint is allowed. Opposite parties are directed to pay Rs. 86,009/- with 12% annual interest from 21.04.2004 to the complainant. The opposite party shall also pay Rs. 5,000/- as compensation and Rs. 1,500/- as costs to the complainant. Time for compliance one month from the date of receipt of order. Thereafter 12% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 482/2004

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Newspaper cutting

P2 - Copy of U.N Report in Crime No. 577/00 of Neyyattinkara

Police Station.

P3 - Copy of Certificate of Registration in the name of

complainant.

P4 - Copy of Certificate of Insurance and permit.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT