IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 4th day of February, 2012.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 94/2010 (Filed on 23.06.2010)
Between:
Anoop Varghese,
Ampiyil House,
Kannamkodu Muri,
Adoor P.O.
(By Adv. P. Hari) … Complainant.
And:
Divisional Manager,
Royal Sundaram Alliance Insurance
Company Ltd., Kochi.
(By Adv. K. Saileshkumar) … Opposite party.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The complainant’s case is that he is the registered owner of a Maruti Esteem car bearing registration No. KL-03F/6490. The said vehicle is having a comprehensive package policy of the opposite party vide policy No. MP-50047768 valid from 13.06.2009 to 12.06.2010. While so, the said vehicle met with an accident on 01.03.2010. The said vehicle is totally damaged and is beyond repairs. Hence the complainant approached the opposite party for getting the IDV of ` 1,77,100. But the opposite party denied the complainant’s demand without assigning any reason. The vehicle is lying at Kalinga Automobiles, Adoor in the damaged condition. The denial of the complainant’s demand is a deficiency in service which caused mental agony and financial loss to the complainant. Hence this complaint for the realization of the IDV of ` 1,77,100 with its interest along with compensation of ` 10,000. The complainant also prays for allowing the cost of the proceedings and the expenses met by him for keeping the damaged vehicle.
3. Opposite party entered appearance and filed their version with the following main contentions: The first contention of the opposite party is that this complaint is not maintainable as the dispute between the parties is with regard to the quantum of compensation and hence the complainant has to approach the Arbitrator under the terms and conditions of the agreement between the parties. The other contentions of the opposite party are as follows: On the basis of the complainant’s claim, opposite party deputed a surveyor for assessing the loss who assessed the loss as ` 79,708 on a repair basis as the vehicle is in a repairable condition. Since the assessed loss is less than 75% of the insured declared value, the complainant is not entitled to get the IDV. This was also intimated to the complainant. But the complainant insisted for the payment of the full insured declared value (IDV) as he wants total loss claim, which as per the terms of the policy cannot be done as the aggregate cost of the repair does not exceed 75% of the insured declared value (IDV). Moreover, the complainant had not produced any evidence contrary to the surveyor’s report for substantiating a higher sum as claimed by the complainant. According to the opposite party, the claim amount assessed by the statutory surveyor is ` 79,708 and the same is payable on repair basis and therefore the claim of the complainant for additional amount is untenable and unsustainable. Therefore, they prays for the dismissal of the complaint with their cost as they have not committed any deficiency in service.
4. On the basis of the pleadings of the parties, the following points were raised for consideration:
(1) Whether the complaint is maintainable before this Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs and Costs?
5. The evidence of this complaint consists of the oral testimony of PW1, DW1 and DW2 based on their proof affidavits and Exts. A1 to A10 and Exts. B1 to B5. After closure of evidence, opposite party filed an argument note and both sides were heard.
6. Point No.1: The opposite party challenged the maintainability of this complaint saying that the dispute between the parties is with regard to the quantum of the compensation. According to the opposite party, as per the terms of the policy, such disputes have to be settled through Arbitrator as per the Arbitration Conciliation Act 1996. But as per Sec. 3 of Consumer Protection Act, 1986, Consumer Protection Act is an additional law for settling the grievances of the consumers and the said Act is not in derogation of the provisions of any other law. So there is no harm in entertaining this complaint before this Forum. Therefore, we find that this complaint is maintainable before this Forum.
7. Points 2 & 3: The complainant’s allegation is that his insured vehicle met with an accident and sustained heavy damages and is beyond repairs. Since the vehicle is totally damaged and is beyond repairs, the opposite party has to settle his claim on total loss basis based on the insured declared value (IDV) of ` 1,77,100. But the complainant’s claim for IDV was denied by the opposite party. According to the complainant, the above said denial is a deficiency in service and the opposite party is liable to allow the complainant’s claim. So the complainant prays for allowing the complaint.
8. In order to prove the complainant’s case, the complainant had filed a proof affidavit in lieu of his chief examination along with 10 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A10. Ext. A1 is the photocopy of the driving licence of the complainant. Ext. A2 is the photocopy of the quotation form dated nil for ` 1,43,021 issued by Joji Auto Traders, Adoor. Ext. A3 is the photocopy of the painting and labour estimate dated 15.03.2010 for ` 80,000 issued by Kalinga Auto Coat, Adoor. Ext. A4 is the photocopy of the extract of G.D. entry dated 05.03.2010 of Adoor Police Station. Ext. A5 is the photocopy of the claim form submitted by the complainant before the opposite party. Ext. A6 is the photocopy of the policy in question. Ext. A7 series (A7 to A7(d) are various photographs of the damaged vehicle. Ext. A8 is the letter dated 20.03.2011 issued from Kalinga Automobiles, Adoor to the complainant demanding the yard rent from 10.03.2010 onwards for keeping the damaged vehicle. Ext. A9 is the original of Ext. A6 policy. Ext. A10 is the policy conditions of the policy in question.
9. Opposite party’s contention is that on the basis of the claim of the complainant they had deputed a surveyor for assessing the damages of the vehicle who prepared a survey report. As per the survey report, the said vehicle is repairable and he assessed the cost for repairs as ` 79,708. As per the terms of the policy, since the vehicle is in a repairable condition and the assessed cost of repairs is less than 75% of insured declared value (IDV), the complainant is not entitled to get any amount on total basis based on the IDV of the vehicle. This was also intimated to the complainant. But the complainant is insisting for the IDV which is not allowable and hence they have not committed any deficiency of service. Therefore, they prays for the dismissal of the complaint.
10. In order to prove the contentions of the opposite party, an authorized officer of the opposite party and the surveyor of the opposite party filed proof affidavits in lieu of their chief examination along with 5 documents. On the basis of the proof affidavits, the authorized officer of the opposite party was examined as DW1 and the surveyor was examined as DW2 and the documents produced were marked as Exts. B1 to B5. Ext. B1 is the authorization in favour of the authorized officer executed by the opposite party. Ext. B2 is the policy schedule and the policy copy in respect of the vehicle in question. Ext. B3 is the surveyor’s report dated 21.04.2010 in respect of the vehicle in question. Ext. B4 is the repair assessment order dated 13.05.2010. Ext. B5 is the job estimate dated 20.04.2010 issued by Indus Motor Company Pvt. Ltd., Kumbazha, Pathanamthitta in respect of the vehicle in question.
11. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the accident of the vehicle and the validity of the policy. The only dispute is with regard to the quantum of the claim. According to the complainant, the vehicle is beyond repairs and hence his claim has to be settled on total loss basis and the opposite party is liable to pay the insured declared value (IDV) of ` 1,77,100. But according to the opposite party, the vehicle is repairable and their surveyor assessed the cost of repairs as ` 79,708 which is less than 75% of the insured declared value (IDV) and hence the complainant is not entitled to get any amount as claimed by him.
12. In order to substantiate the complainant’s claim, the complainant is relying on Exts. A2, A3 and A8. But the complainant failed to adduce any supporting evidence to prove the propriety of the said documents. So we are not inclined to rely on Exts. A2, A3 and A8. Moreover, the complainant has failed to adduce any independent evidence for proving that the vehicle in question is beyond repairs.
13. At the same time, opposite party’s contention is that the said vehicle is not totally damaged for settling the complainant’s claim on total loss basis as the vehicle is in a repairable condition. In order to prove the contention of the opposite party, they have produced the surveyor’s report and repair assessment order which are marked as Exts. B3 and B4 respectively. Opposite party also produced another job estimate obtained from Indus Motors which is marked as Ext. B5. The amount shown in Ext. B3 is ` 79,708 and the amount shown in Ext. B5 is ` 85,256. The difference between Exts. B3 and B5 is about ` 5,000. The said difference is only a reasonable difference and it is quite natural because both estimates are prepared by different persons. Since in the absence of cogent evidence discrediting Exts. B3 and B5, we are inclined to accept Exts. B3 and B5 as the actual estimated damage of the vehicle. However, there is no evidence from the part of the opposite party that any intimation has been given to the complainant in respect of Ext. B3. The said act of the opposite party is a deficiency in service. If a communication was given to the complainant at the relevant time regarding Ext. BIII and Ext. BIV, the complainant would not have lost this much time for repairing his vehicle. In the light of the above discussions, this complaint can be allowed with such modifications.
14. In the result, this complaint is allowed as modified, thereby the opposite party is directed to pay ` 79,708/- (Rupees Seventy nine thousand seven hundred and eight only) i.e. Ext. B3 amount with its interest at the rate of 9% per annum from May 2010 onwards i.e. Ext. B4 date, along with compensation of ` 5,000/- (Rupees Five thousand only) and cost of ` 1,000/- (Rupees One thousand only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 12% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 4th day of February, 2012.
(Sd/-)
Jacob Stephen, (President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Anup Varghese.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the driving licence of the complainant.
A2 : Photocopy of the quotation form dated nil for ` 1,43,021 issued
by Joji Auto Traders, Adoor.
A3 : Photocopy of the painting and labour estimate dated 15.03.2010
for ` 80,000 issued by Kalinga Auto Coat, Adoor.
A4 : Photocopy of the extract of G.D. entry dated 05.03.2010 of Adoor
Police Station.
A5 : Photocopy of the claim form submitted by the complainant before
the opposite party.
A6 : Photocopy of the policy in question.
A7 series (A7, A7(a), A7(b), A7(c) & A7(d) : Photographs of the damaged
vehicle.
A8 : Letter dated 20.03.2011 issued from Kalinga Automobiles, Adoor
to the complainant.
A9 : Original of Ext. A6 policy.
A10 : Policy conditions.
Witness examined on the side of the opposite party:
DW1 : Praveen Jain.
DW2 : R.C. Dineshkumar.
Exhibits marked on the side of the opposite party:
B1 : Authorization executed by the opposite party in favour of Sri.
Praveen Jain.
B2 : policy schedule with policy conditions in respect of the
complainant’s vehicle.
B3 : Surveyor’s report dated 21.04.2010 in respect of the complainant’s
vehicle.
B4 : Repair assessment order dated 13.05.2010.
B5 : Job estimate dated 20.04.2010 issued by Indus Motor Company
Pvt. Ltd., Kumbazha, Pathanamthitta in respect of the
complainant’s vehicle.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Anoop Varghese, Ampiyil House, Kannamkodu Muri,
Adoor P.O.
(2) Divisional Manager, Royal Sundaram Alliance Insurance
Company Ltd., Kochi.
(3) The Stock File.
