IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 10th day of November, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C.No. 73/2010 (Filed on 18.05.2010)
Between:
Dona Prasad,
MRA B3-1,
Thushara, Mangalassery Lane,
Kaimanam, Thiruvananthapuram.
(By Adv. P. Hari) …. Complainant.
And:
- Divisional Manager,
The Oriental Insurance Company Ltd.,
T.K. Road, Thiruvalla.
2. Branch Manager,
The Oriental Insurance Company Ltd.,
Kottarakara.
(By Adv. P.D. Varghese) …. Opposite parties.
ORDER
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief are as follows: Complainant is the registered owner of Tata India DLG Car bearing No.KL-01/AA-8350. The said car was insured with opposite parties for the period from 11.07.2008 to 10.07.2009. The car met with an accident on 4.1.2009 which damaged the vehicle totally. When complainant approached the opposite parties, they evaded to pay claim without stating the reason. The said vehicle has been kept in the workshop till date. As per insurance contract opposite parties are liable to pay ` 1,60,000 as IDV to complainant. Hence this complaint for getting the said amount with interest and demurrage, compensation for pain and suffering with cost.
3. Opposite parties entered appearance and filed version stating that complaint is not maintainable either in law or on facts. They admitted the insurance policy issued to complainant’s car which is valid from 11.7.2008 to 10.7.2009 covering the date of accident. Accident was reported and they deputed a surveyor and loss assessor. The surveyor report shows that the vehicle has sustained extensive damages and recommends that the claim has to be considered as a case of total loss. Complainant was informed to submit a consent letter executed on non-judicial stamp paper for ` 50 along with original insurance policy for settlement of the claim. But complainant has not done it. Due to the non-submission of these documents the opposite parties could not settle the claim. They are ready and willing for pay the amount of ` 77,800 considering the damage of the vehicle as a case of cash loss basis.
4. According to opposite parties, this complaint is premature and they did not repudiate the claim. Therefore no deficiency in service can be attributed against them. Hence they canvassed for the dismissal of the complaint with cost.
5. From the above pleadings, following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs and Costs?
6. Evidence of the complaint consists of the oral deposition of PW1 and DW1 and marked Exts.A1 to A11 and B1 and B2. After closure of evidence, both parties were heard.
7. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A11. Ext.A1 is the power of attorney issued by the complainant. Ext.A2 is the copy of R.C. Book of the vehicle which shows that complainant is the owner of the vehicle. Ext.A3 is the copy of insurance policy of the vehicle issued by opposite parties. Ext.A4 is the certificate issued from Auto Palace, Adoor. Ext.A5 is the copy of driving license of the complainant. Ext.A6 is the G.D entry issued from Adoor Police Station. Ext.A7 is the reply for Ext. A8 complaint. Ext.A8 is the copy of complaint sent to opposite party through E-mail. Ext.A8 is the reply for Ext. A7 complaint. Ext.A9 is the estimate of the repairing charge of the vehicle. Ext.A10 is the letter dated 17.3.2010 issued by opposite parties to complainant informing the settlement of the claim on cash loss basis. Ext.A11 is the copy of private car package policy issued by opposite parties.
8. In order to prove the opposite parties contention, 1st opposite party filed proof affidavit and surveyor was examined as DW1. Documents produced were marked as Ext.B1 and B2. Ext.B1 is the copy of insurance policy. Ext.B2 is the survey report.
9. On the basis of the contention and averment of the parties, we have perused the entire material on record. Complainant’s case is that opposite parties did not pay the accident claim of his insured vehicle. Opposite parties contention is that they are ready and willing to settle the claim on cash loss basis. But complainant has evading to settle the matter.
10. It is seen that there is no dispute regarding the accident and the validity of insurance policy. Ext.A10 shows that opposite parties informed their willingness to settle the claim on cash loss basis. But in Ext.A10, they would not mentioned the amount. In Ext.B2 the cash loss amount is calculated as ` 87,500. Therefore, it is learned that complainant has not known the offer amount as per cash loss basis. It is evident in PW1’s deposition, which is as follows: “Survey report {]Imcw 77,800 cq]bvt¡ AÀlXbpÅp F¶p ]dbp¶p? icnbÃ. 77,800 cq] Xcmsa¶v offer e`n¨nÃ. Total cash loss basis-epÅ settlement-\pthn Bhiyamb tcJIÄ XcWsa¶v Bhiys¸«v Hcp I¯v In«nbncp¶p. AXn XpI H¶pw ]dªncp¶nÔ.
11. All this shows that there is no transparency in opposite parties dealings. What prevented them to disclose the offer amount? Therefore, there is some justification on the part of complainant to evade from Ext.A10 offer, which means that he refuses to accept the offer. According to complainant as a result of the accident total loss has occurred and the vehicle cannot be repairable and the issue has to be settled on total loss basis. Ext.A9 shows that the actual cost of estimate amount is over and above the IDV. Therefore, he is not affordable to repair basis as per Ext.B2.
12. On a perusal of Ext.B2, it is learned that the loss of the vehicle has been assessed on three ways, i.e. (A) Repair basis (B) Total loss basis (C) Cash loss basis. Material on record shows that complainant has not acceptable Clause ‘A’ and ‘C’. It is also revealed that as a result of the accident total loss has occurred and the vehicle cannot be repairable. Hence we are of the view that the issue has to be settled on total loss basis.
13. From the overall facts and circumstances and the available evidence on record, it is seen that assessment ‘B’ in Ext.B2 is well suited for the beneficial interest of the complainant. Since the cardinal principle of insurance is the benefit of insured, why opposite parties stick on the cash loss basis and denied complainant an option to adopt his choice in Ext.B2. Material on record does not reveal that opposite parties had taken any step to settle the issue on total loss basis. Denying or delaying the actual claim amount by not considering the total loss aspect is a clear deficiency of service. Therefore, this complaint is maintainable and allowable. Hence opposite parties are liable to comply the assessment ‘B’ of Ext.B2 with reasonable demurrage. Mere production Ext.A4 certificate claiming Rs.29,000 as demurrage, without any supporting evidence, alone is not sufficient for allowing demurrage as such. From the facts and circumstances of this case no amount is allowable for compensation and cost.
14. In the result, complaint is allowed as follows:-
(1) Opposite parties are directed to pay an amount of ` 1,59,500 (Rupees One lakh fifty nine thousand five hundred only) as per the total loss basis assessment made in Ext.B2 along with ` 500 (Rupees Five hundred only) as demurrage for one month from the date of filing of this complaint, on surrendering the damaged vehicle and the connected records of the vehicle with proper endorsement by the complainant to the opposite parties.
(2) Parties are directed to comply this order within 30 days from the date of receipt of this order failing which complainant is allowed to realize the said amounts from the opposite parties with 9% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 10th day of November, 2011.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Babu George.
Exhibits marked on the side of the complainant:
A1 : General Power Attorney dated 06.01.2011 executed by the complainant in
favour of Sri. Babu George.
A2 : Photocopy of the Certificate of Registration of the complainant’s vehicle
KL01/AA-8350.
A3 : Photocopy of the policy certificate.
A4 : Certificate dated 06.06.2011 issued by Auto Palace, Adoor.
A5 : Copy of driving licence.
A6 : General Diary Extract of Adoor Police Station dated 07.01.2009.
A7 : Copy of reply for Ext. A8 complaint.
A8 : Copy of complaint sent to opposite party through E-mail.
A9 : Estimate for repair issued by Auto Palace, Adoor.
A10 : Letter dated 17.03.2010 sent by the opposite party to the complainant.
A11 : Copy of policy conditions.
Witness examined on the side of the opposite parties:
DW1 : V.N. Sivan Pillai.
Exhibits marked on the side of the opposite parties:
B1 : Motor Insurance Certificate-cum-Policy Schedule.
B2 : Motor Survey (Interim) Report dated 20.03.2009 submitted by VNS Pillai,
Surveyor.
(By Order)
Senior Superintendent.
Copy to:- (1) Dona Prasad, MRA B3-1, Thushara, Mangalassery Lane, Kaimanam,
Thiruvananthapuram.
(2) The Divisional Manager, Oriental Insurance Company Ltd.,
T.K. Road, Thiruvalla.
(3) The Branch Manager, Oriental Insurance Company Ltd., Kottarakara.
(4) The Stock File.
