IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 22nd day of August, 2019.
Filed on 20-09-2017
Present
Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)
2. Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.258/2017
between
Complainant:- Opposite party:-
Sri.Somanathan Pillai K.N Divisional Manager
Kochunalethu House United India Insurance
Chennithala P.O. Divisional Office,
Mavelikkara Sarada shopping complex
Alappuzha - 690105 Mullackal, Alappuzha- 688010
O R D E R
SRI.E.M. MUHAMMED IBRAHIM(PRESIDENT-IN-CHARGE)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averment’s in the complaint in short, are as follows:-
The complainant was taken a private motor car package policy bearing No.1015813115P106703111 for a period from 20.09.2015 to 19.09.2016 for these 4 wheeler, Honda Jazz bearing Registration No.KL-31-E-5004 from Micro Office of the United India Insurance Company (MO), Mannar, Alappuzha for covering a value of Rs.3,75,000/-. The vehicle met with an accident on 25.04.2016 at around 10.45 PM near Mannar. At the time of accident, the vehicle was driven by the complainant that his wife alone was present as passenger in the vehicle. The accident took place half kilometre away from the house of the complainant and immediately after the incident the friends and relatives reached at the spot and informed to the local police who reached the spot without delay and also brought the complainant and his wife to the nearby hospital. As the inbuilt airbags of the vehicle were released and protected the complainant and his wife, there was no physical injury worth mentioning. However wife of the complainant was hospitalised due to the mental shock and minor injury. Police did not register any case but only recorded the fact of accident in their general diary.
On the very next day complainant informed regarding the accident to the Administrative Officer (Branch Head) of Micro Office and he advised the complainant to visit his office and collect the claim form and submit the same with necessary records at their Divisional Office, Kottayam. The vehicle was brought to the authorised workshop of the Honda at Kottayam with the help of road crane. The complainant has also submitted duly filed up claim form along with relevant records including GD entry dated 28.04.2016 of Mannar Police station. The Vision motors (Authorised workshop) of Honda made a temporary estimate for Rs.3,57,820/- on 29.04.2016. KSEB, Mannar made an estimate of Rs.8943/- for replacing a damaged HP pole due to vehicle dashing on 26.04.2016. The complainant paid Rs.4629 to KSEB and also paid Rs.4314 to the private contractor who was engaged by KSEB for the said work. The original claim was submitted on 29.04.2016 by a total claim of Rs.3,58,483/- against the above claim the opposite party paid only an amount of Rs.2,15,780/- and the amount reimbursed was much below the amount of claim. To resolve the unreasonable settlement of complainant's claim and to redress the harassment meted out to the complainant from the opposite party company's officials and agents. The complainant filed a petition before the Insurance Ombudsman, Ernakulam dated 03.10.2016 by stating his grievances with a request to award total Rs.1,51,747.75/- on account of short for in the settlement but the Ombudsman award an amount of Rs.17,335/- only vide award dated 23.12.2016 but he has not accepted the amount and filed a review petition but the ombudsman has not entertained the review petition by stating vide letter dated 10.02.2017 that there is no provision official for review of award. Once it is issued by the ombudsman and if the complainant is not satisfied with the award he is free to approach any other Forum like CDRF or any official machinery for resolving the complaint. The complainant further prays to direct the opposite party to pay Rs.1,76,747/- including compensation for harassment and mental agony sustained by the officials of the opposite party. The statement of accounts has also appended in the relief column of the complaint.
3. The opposite party resisted the complaint by filing a detailed written version raising the following contentions:-
The complainant is not maintainable either in law or on facts. The complainant has approached the Forum with utmost unclean hands with suppressing material facts and without any bonafides. No deficiency in service alleged by the complainant and hence the complainant is not entitled to get any reliefs prayed for. However the opposite party would admit that they have issued a policy in respect of the car No.KL-31E-5004 bought by the complainant the policy number and date of policy etc are also admitted by the opposite party. The opposite party never done anything to cause harassment to the complaint.
On receipt of the O.D claim from the complainant the opposite party deputed an approved surveyor to assess the damages. The surveyor has assessed the damages to the tune of Rs.2,15,852.75 after deducting the depreciation out of the said amount Rs.1,000/- was deducted as polity excess and Rs.7,686.85/- was deducted towards salvage value. Hence as per survey report eligible amount was Rs.2,07,165/- for the vehicle repairing and Rs.8,943/- towards KSEB pole replacement the opposite party paid total amount of Rs.2,15,780/- to the complainant. Depreciation for metal part was 25 % and plastic part 50% and painting materials depreciation was Rs.1,625/- a total amount of Rs.1,14,807 was deducted towards depreciation as per Sec.1 of the policy conditions. There is absolutely no irregularity and illegality in deducting depreciation since it is in accordance with policy conditions. The allegations in the complaint that there is double charging of depreciation are not correct. The amount paid by the opposite party on the basis of survey report and re-inspection report. The opposite party has paid the amount as full and final settlement and the complainant received the same without any protest. But thereafter the complainant approached the insurance ombudsman which passed an order in favour of the complainant directing the opposite party to pay an additional amount of Rs.17,335/-. But the complainant is not ready to accept the said amount. There is absolutely no illegal act, foul play, deficiency in service on the part of the opposite party as alleged. The opposite party paid the agreed amount to the complainant towards the settlement of OD claim of the complainant on the basis of IRDA guidelines the forum has no jurisdiction to entertain the claim since the insurance ombudsman has already passed an order considering the grievances of the complainant. The opposite party further prays to dismiss the petition with their costs.
4. In view of the above pleadings the points that arise for consideration are:-
1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party.
2. Whether the complainant is entitled to get the reliefs sought for?
3. Reliefs and costs.
5. Evidence on the side of the complainant consists of oral evidence of PW1 and Ext.A1 series, A2 and A3 documents. Evidence on the side of the opposite party consists of the oral evidence of RW1 and Ext.B1 and B2 documents. Though sufficient opportunity was granted the learned counsel for the complainant has not filed any notes of arguments nor advanced any oral arguments. The learned counsel for the opposite party has filed notes of arguments and also advanced oral arguments.
Point No.1 & 2
For avoiding repetition of discussion of materials these 2 points are considered together. The following facts are admitted in this case. The car bearing No. KL-31-E-5004 belongs to the complainant was insured with the opposite party vide policy No.1015813115P106703111 w.e.f. 20.09.2015 to 19.09.2016. The said vehicle is 2012 model and the accident took place on 25.04.2016. The IDV of the car is Rs.3,75,000/-. It is also an admitted facts that on getting OD claim from the complainant the opposite party deputed a surveyor who assessed the damage and submitted a report showing a net amount of Rs.2,15,852.75 after deducting depreciation out of the above amount Rs.1000/- was further deducted towards policy excess and Rs.7686.85 was deducted towards salvage value. Hence as per the survey report the eligible amount is Rs.2,07,165.90/- for vehicle repairing. It is also an admitted fact that Rs.8,943/- was paid towards KSEB for replacement charges. In view of the above materials it is crystal clear that the opposite party paid a total amount of Rs.2,15,780/- to the complainant and also towards KSEB. It is also clear from the materials available on record that out of the original loss assessed depreciation was deducted, According to the opposite party depreciation for metal part is at the rate of 25% at Rs.38,434/- and plastic parts at the rate of 50% amounting to Rs.77,748/-. The above amount were deducted and for painting materials was Rs.1,625/- was also deducted as depreciation and thereby a total amount of Rs.1,14,707/- was deducted towards depreciation. In view of clause (1) of the policy condition the insurance company is entitled to deduct depreciation. Hence there is absolutely no irregularity and illegality in deducting depreciation as per the terms of the policy conditions. It is also clear from the available materials that the deduction of depreciation and labour charges was as per IRDA guidelines and also as per policy conditions. There is no double deduction of depreciation as claimed by the complainant. PW1 is a qualified and senior most surveyor who inspected the vehicle and filed Ext.B2 report dated 01.08.2016 by assessing the damage which are noted in Ext.B2 report. The mode of calculating depreciation is also stated in Ext.B2 report. It is brought out in evidence through PW1 that he has prepared a survey report on the basis of the terms and conditions of the insurance policy. It is also brought out in evidence that PW1 has deducted the depreciation out of the estimate price given by the company. In view of the evidence of RW1 and Ext.B2 it is crystal clear that there is no irregularity or impropriety in calculating the depreciation.
According to the complainant as per the judgement in Joseph M.M Vs. Venkataravu.M and others (MACA No.1373/2003) the claimant is entitled to get actual value of spare parts used for repairing the vehicle and there cannot be a depreciation for actual value of spare parts by relying on the above decision the complainant would allege in para.6B of the proof affidavit that the act of the surveyor in deducting depreciation is highly unfair and unjustifiable and therefore he is entitled to get the difference of Rs.35,105/-. However PW1 during cross examination would admitted he is bound by the terms and conditions of the policy that insurance company has reduced depreciation only once as suggested by the surveyor that he has also raised all the allegations and averments raised in the present complaint before the insurance ombudsman and it was awarded Rs.17,000/- but he has not received the said amount.
The learned counsel for the opposite party in para 6 of the notes of arguments has argued that the present claim is own damage claim but the case dealt with the above case relating to Third Party Property Damage (TPPD). Hence the said decision is not applicable to the facts of the case. A mere reading of the decision it is clear that the same relates to third party claim or property damage. There is difference in the calculation of damages in the different claims. Here in this case the damages have been calculated according to the terms and conditions of the policy and IRDA guidelines which are applicable to the complainant also. It is also brought out in evidence that the complainant has filed complaint before the insurance ombudsman and the said ombudsman passed an order in favour of the complainant directing the opposite party to pay an additional amount of Rs.17,335/-. But the complainant has not accepted the said amount. In view of the materials discussed above it is crystal clear that the opposite party has disposed of the claim on the basis of the terms and conditions of the policy and IRDA guidelines which are applicable to the complainant/ policy holder. In the circumstances we find no merit in the complaint. The complainant has also not proved any deficiency in service or unfair trade practice on the part of the opposite party. In the circumstances the complaint is only to be dismissed. The points answered accordingly.
Point No.3
In the result complaint stands dismissed. It is made clear that the complainant is at liberty to receive the amount ordered by the insurance ombudsman.
Parties are directed to suffer their respective costs.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 22th day of August, 2019.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sholy P.R (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Somanathan Pillai K.N (Witness)
Ext.A1 Series - Complaint and 23 other documents
Ext.A2 - Copy of Insurance policy
Ext.A3 - Letter dtd 02.08.2016
Evidence of the opposite parties:-
RW1 - V.N Sivan Pillai (Witness)
Ext.B1 - Policy Book
Ext.B2 - Bill dtd 10.09.2015
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
