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. 113/2004 Filed on 09.03.2004
Dated : 15.03.2011
Complainant:
Anu. K.R, 9/751, Anugraha, Tele Nagar, Pappanamcode, Thiruvananthapuram.
(By adv. L. Ramesh Babu)
Opposite party :
The Divisional Manager, New India Assurance Company Ltd., Divisional Office II, K.N. Mathew Building, G.A. Kovil Road, Thiruvananthapuram-1.
(By adv. M. Nizamudeen)
This O.P having been heard on 31.01.2011, the Forum on 15.03.2011 delivered the following :
ORDER
SMT. S.K. SREELA, MEMBER
Brief facts of the case are as follows: Complainant purchased a brand new Yamaha RX 135 Motor Bike on 27.03.2000. The vehicle was insured for Rs. 46,500/- with the opposite party New India Assurance Company Ltd. on 28.03.2000. Subsequently the comprehensive insurance policy was renewed yearly, after considering the depreciation value. The market value of the vehicle was fixed by the insurance company and the complainant insured the vehicle on 28.03.2002 for an amount of Rs. 38,000/-. The market value was fixed by the opposite party after considering the depreciation amount. The insurance was valid from 29.03.2002 to 28.03.2003. The motor cycle thus insured with the opposite party was stolen on 22.01.2003 from the temporary residence of the petitioner at Bangalore. Immediately when the vehicle was stolen a complaint was lodged at the police station at Bangalore. Further the fact that the vehicle was stolen was intimated to the opposite party's branch office at Bangalore. After much correspondence with the opposite party, the opposite party requested the complainant to file a motor claim for theft of vehicles. As per the request the complainant filed a claim before the opposite party on 10.03.2003 with copy of insurance policy, copy of the complaint to the police, F.I.R etc. As requested by the opposite party, the insurance company, the complainant transferred the registration of the lost vehicle in the name of Sri. P.C. Kumaran, Senior Divisional Manager of the company by August 2003. The police at Bangalore made earnest effort to find out the vehicle and the accused. But it was of no use. The vehicle was irrecoverably lost. The complainant who lost the vehicle filed his claim for the insured amount of Rs. 38,000/-. But the insurance company, the opposite party evaded payment by saying excuses which are not palatable to the complainant. Because of the long delay the complainant through his advocate sent a registered notice to the opposite party for settlement of the claim with 12% interest from 10.03.2003 the date of filing the claim form. The opposite party insurance company sent to the complainant after receipt of the advocate notice, certain forms i.e; letter of subrogation, letter of undertaking, consent letter and a voucher for Rs. 20,000/-. The consent letter shows that the complainant agreed to accept the sum of Rs. 20,000/- only in full and final settlement of the claim. Actually the vehicle was insured fixing the market value at Rs. 38,000/- and the premium was received by the opposite party. The market value was fixed by the opposite party after calculating the depreciation. The opposite party cannot unilaterally fix the insurance amount to Rs. 20,000/- when in fact the market value was Rs. 38,000/-. The complainant was not agreeable for Rs. 20,000/- as fixed by the opposite party. The opposite party is legally bound to pay to the complainant the value fixed by them i.e; Rs. 38,000/-. Hence this complaint.
The Divisional Manager, New India Assurance Co. Ltd., who is the opposite party has filed their version contending as follows: The complaint is not maintainable either in law or on facts. That the Yamaha RX 135 Motor Bike was insured with the opposite party is true and admitted. But the averment that the market value of the vehicle was fixed by the insurance company and that the market value was fixed after considering the depreciation amount are absolutely false and therefore denied. It is submitted that the amount of Rs. 38,000/- for which the vehicle has been insured is the insured's estimated value and not the value fixed by the opposite party/insurance company. Immediately on receipt of the claim submitted by the complainant, the opposite party deputed two independent insurance claim Investigators to conduct investigation into the claim. Considering the investigation report and surveyor's report the opposite party offered an amount of Rs. 20,000/- to the complainant/insured and sent him intimation along with the consent letter for Rs. 20,000/- to be signed by him, the form of letter of subrogation to be executed by him on Rs. 50 stamp paper, letter of undertaking to be signed by him. The opposite party also requested the complainant to surrender the keys of the vehicle and original insurance certificate. Since there was no response from the complainant and the letters which were to be returned by the complainant/insured after execution were not executed and returned. The opposite party sent a reminder on 05.02.2004 to the complainant again enclosing the requisite forms. To the letter dated 05.02.2004 also there was no response whatsoever from the complainant. It is submitted that as per the terms and conditions of the policy issued to the complainant in respect of the insured vehicle, the opposite party is liable to pay the insured's estimate value or the market value of the vehicle at the time of loss whichever is less. The averment that the opposite party requested the complainant to file a motor claim for theft is not true to facts and therefore denied. The averments that the opposite party evaded payment by giving excuses and that there was long delay are absolutely false and therefore denied. Hence prays for dismissal of the complaint with compensatory costs.
PW1 has been examined on behalf of the complainant and marked Exts. P1 to P6 series. On the part of opposite parties, DW1 & DW2 were examined and marked Exts. D1 to D4.
The points for consideration are:-
Whether the act of the opposite party in assessing the value of the vehicle in dispute at Rs. 20,000/- is justifiable or not?
Whether there is any deficiency in service on the part of the opposite party?
Reliefs and costs.
Points (i) to (iii):- The complainant who had purchased a brand new Yamaha motor bike on 27.03.2000 had insured the same for Rs. 46,500/- with the opposite party. Subsequently on the next year the comprehensive insurance policy was renewed after considering the depreciation value. Complainant further pleads that the market value was fixed by the insurance company and the complainant had insured the vehicle on 28.03.2002 for Rs. 38,000/- and that this insurance policy was valid from 29.03.2002 to 28.03.2003. In the meantime, the vehicle was stolen on 22.01.2003 and the complainant had claimed the insured amount of Rs. 38,000/-, but the opposite party is not paying the insured amount and has informed the complainant that they are liable only to pay the market value fixed by their own surveyor which comes to Rs. 20,000/-. The complainant pleads that the market value of the vehicle was fixed by the insurance company and the complainant insured the vehicle on 28.03.2002 for an amount of Rs. 38,000/- which was fixed by the opposite party after considering the depreciation value. But the opposite party in the version has contended that the amount of Rs. 38,000/- for which the vehicle has been insured is the insured's estimate value and not the value fixed by the opposite party/insurance company. It is further contended by the opposite party that on the basis of the reports submitted by the surveyors appointed by the opposite party, they have assessed the market value of the Yamaha RX 135 Motor Bike at Rs. 20,000/-.
Here the aspect to be considered is whether the complainant is entitled for refund of the insured amount. The complainant's counsel had argued that Ext. P3 has been issued by the opposite party to the complainant reminding him about the renewal of the policy. As per Ext. P3 it could be seen that the complainant has been asked to renew the policy for a further period of one year and the renewal premium is calculated as Rs. 382/-. I.E.V of vehicle has been mentioned in Ext. P3 as Rs. 38,000/- and the details of schedule of premium are also mentioned. During cross examination of DW1, the counsel for the complainant had put a specific question that whether Ext. P3 was issued from their office to the complainant informing him regarding the renewal of insurance, for which the witness had deposed that he is not sure since the same does not bear the seal or sign of the officer. Further the counsel had put a specific question whether anyone other than any employees and officers would use the computer of the opposite party's office for which the witness had deposed “No”. Though Ext. P3 does not bear any signature, it could be seen that it is a computer generated one and the seal of the New India Assurance Company Ltd. is there. Furthermore it has been sealed that “Revised premium effective from 01.07.2002”. The vehicle has been lost on 22.01.2003. There is no dispute regarding the loss of the vehicle. The only dispute is with regard to the amount. DW1 had deposed that in the instant case the policy has been issued as per the estimated value fixed by the insured i.e; I.E.V. But from Ext. P3 it could be seen that every thing has been fixed by the insurance company itself. Further the complainant's counsel had vehemently argued that nowhere in the policy has it been stated that the insurance company will pay only the market value or insurance premium whichever is less. It is an admitted fact that the surveyor has fixed the value of the vehicle without seeing the vehicle. The counsel had further argued that the depreciation value of the vehicle was taken into account while issuing the policy and once the policy premium is accepted they are estopped from contesting otherwise.
During trial complainant had filed a petition calling upon the opposite party to furnish the certificate and depreciation details, premium after depreciation etc. of the vehicles of 2000 model Yamaha RX 135 for the period 2001-02-03, for which the opposite party had filed a statement of objection stating that no records or documents as stated in the petition are available with the opposite party and since they are not in possession of those documents they are unable to produce any such records. Hence from Ext. P3 and of the evidences adduced it could be seen that though the value of Rs. 38,000/- has been mentioned as insured's estimated value it is very much evident that the same has not been fixed by the complainant, but as per the direction of the opposite party only. The act of the opposite party in fixing the insured's estimate value and contending otherwise that the same has been declared by the insured cannot be accepted. If the complainant had insured the vehicle for a higher value the opposite party is receiving the proportionate premium which is also very high.
The learned counsel for the opposite parties produced the order of the Hon'ble Kerala State Commission reported in III (2001) CPJ 229 wherein it has been held that “In respect of goods, the measure of what the insured has lost will prima facie be the market value of the property lost at the time and place of loss, in other words, its second hand of resale value”. The decision of the National Commission in Oriental Insurance Co. Ltd. Vs. Suresh Arjun Karande, II (1992) CPJ 484 (NC)= 1992 (1) CPR 431, is on the point. There the point that arose for determination was what was the market value of a vehicle of the make and model as on the date of the peril. There also the assessment had to be on total loss basis. In para-3 of the said decision at page 432 the National Commission held “ The surveyor should have ascertained what was the value in the market of a second hand (used) vehicle of the particular make and model as on the date which the accident took place. This will be quite different from the value of different parts, put together”. Thus the decision of the National Commission clearly shows that it is second hand value of a used car as on the date of the peril that has to be reckoned in fixing the market value”. On the other hand, the learned counsel for the complainant had also furnished the order reported in II (2002) CPJ 292 wherein the Hon'ble Chandigarh Union Territory commission has held that “Depreciation in the value already taken into consideration at the time of insurance- No reasonable basis to assess the value less than the insured amount-complainant entitled to get entire policy amount”. In the said decision it has been disclosed that “ The truck itself was not available due to being stolen and keeping into consideration the good condition of the truck already noted by the surveyor, there was no reasonable basis for the surveyor to assess the value of the truck less than the amount for which the truck was insured on 15.07.1998. We are thus of the considered view that the complainant is entitled to get the entire amount of sum assured i.e; a sum of Rs. 4 lacs under the policy”. Besides this, the complainant's counsel had further produced the decision of the Hon'ble Punjab State Commission reported in I(2004) CPJ 462 wherein it has been held that total loss of vehicle established-complainant entitled to full insured amount. It has been referred in the said order “In case Vishan Narain Vs. Oriental Insurance Company Ltd., 97(2002) DLT 225(DB)= 2002 (3) Civil Court Cases 366, that when the vehicle is stolen it amounts to total loss and the amount to be reimbursed is the amount for which the vehicle was insured. It was further observed therein that question of assessment of market value did not arise when it was a case of total loss. The case in hand also belongs to the same category of total loss and the assessment of market value by surveyors of the opposite parties was highly arbitrary”.
From the foregoing discussions, we are of the considered view that the complainant is entitled for refund of the insured amount which is Rs. 38,000/- and there is no justification on the part of the opposite party in assessing the amount of the vehicle at Rs. 20,000/-.
In the result, the complaint is allowed. Opposite party is directed to refund Rs. 38,000/- to the complainant along with a compensation of Rs. 3,000/- and a cost of Rs. 1,500/- within a period of one month from the date of order, failing which the entire amount shall carry interest at 12% from the date of order.
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 15th day of March 2011.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
jb
O.P. No. 113/2004
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - K. Rajagopal.
II COMPLAINANT'S DOCUMENTS :
P1 - Certificate of insurance of motor cycles.
P2 - Certificate of insurance of motor cycles/scooter.
P3 - Renewal of Motor Cycle/Scooter policy B Comprehensive
761400/31/01/75434.
P4 - Advocate notice dated 17.01.2004
P5 - Copy of letter addressed to complainant
P6 - Copy of letter dated 05.02.2004
III OPPOSITE PARTY'S WITNESS :
DW1 - Joy Joseph
DW2 - Harikumar. H
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Letter dated 14.04.2003
D2 - Copy of letter dated 30.07.2003
D3 - Letter dated 05.02.2004 addressed to complainant
D4 - Certificate of Insurance of Motor Cycle/Scooter.
Sd/-
PRESIDENT
