IN  THE CONSUMER  DISPUTES  REDRESSAL  FORUM,    KOLLAM

               DATED THIS THE    8 ^th   DAY OF OCTOBER 2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

       Smt.S.Sandhya   Rani. Bsc, LLB ,Member

        Sri.Stanly Harold, B.A.LLB, Member

CC.No.119/14

K.Baby                                              :         Complainant

The Proprietor

M/s Omkar Security Agency

Devaswam Building, Karunagappally P.O

Kollam-690518

Residing at

Koyithara

Alumkadavu P.O

Karunagappally, Kollam-690573

[By Adv.Gangadethan.G]

V/s

1.Divisional Manager                         :         Opposite party

New India Assurance Company Ltd.

Kollam.

[By Adv.S.Dileep Kumar]

The Works Manager                          :         Additional 2^nd opposite party

Royal Force Motors

Sreelekshmi Builders

Sangeetha Junction

Ramankulangara, Kollam

(Impleaded as per order in IA.175/14)

[By Adv.G.Vijayakumar]

FINAL ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

1.This  is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

2.The averments in the complaint in short are as follows:-

          The complainant is an ex- service man carrying on business in the name and style M/s Omkar Security Service at Karunagappally.  Originally there is one opposite party who is the Divisional Manager  of New India Assurance Company Ltd., Kollam.  Subsequently the works manager Royal Force Motors was impleaded as additional 2^nd opposite party as per order in IA.175/14 dated 12.05.2015.  The complainant is the registered owner of an ambulance vehicle bearing No.KL 07 23G 9529.  The said vehicle was insured with the 1^st opposite party for a period from 20.06.2013 to 19.06.2014.  However on 27.02.2014 the said vehicle met with an accident at Kollam-Attingal National Highway near Parippally at about 10.30 am while it was proceeding to Medical College Hospital, Thiruvananthapuram by carrying serious patients.  When the said vehicle reached near Parippally junction it collided with a car, lost its control and hit against a huge tree standing at the side of the Highway and sustained heavy damages to the vehicle.  Parippally Police has registered Crime No.405/14 and after inspection of AMVI the vehicle was brought to the yard of the Royal Force Motor Service (Additional 2^nd opposite part) at Ramankulangara and the same is lying there till now. 

3.       The incident was intimated to the opposite party and a claim has been lodged by the complainant as per the estimate carried out by the authorized service centre which is the Additional 2^nd opposite party.  Estimate was taken down on 13.03.2014 and as per the estimate an amount of Rs.2,70,315/- is required cost as spare parts and an amount of Rs.2,14,000/- is required being the labour charges and a total of Rs.4,84,315/- is required for carrying out the repair works.  Thereafter the opposite party on the basis of the survey conducted by their own surveyor an amount of Rs.2,88,401.86 was suggested as approximate insurance amount for which the complainant was not amenable and  intimated the opposite party regarding their unwillingness.  But the 1^st opposite party was not ready to pay heed to the reasonable demand of the complainant and to rectify the improbability occurred in their assessment. The 1^st opposite party ought to have considered the fact that when the accident occurred no appreciable wear and tear occurred to the vehicle and it has been insured with them for an amount of Rs.6,98,250/- that the said vehicle is only seven month old and the same is hypothecated with Dhanalakshmi Bank for Rs.9,00,000/-.  The assessment made by the surveyor of the company is biased, unilateral against the policy conditions and violation of rules of insurance regulatory authority.  The opposite party is legally bound to settle the insurance amount as per the policy conditions and the complainant approached the 1^st opposite party’s office on several occasions for the same and no steps was taken them for resolving the same.  Hence the complainant  left no other way but to approach this forum to retrieve justice.  The complainant is an Ex-service man and doing this business for his livelihood.  The rejection of insurance claim by the opposite party amounts to deficiency in service and the same has caused financial loss, mental agony, pain and suffering to the complainant, for which the opposite party is legally bound to compensate.  Hence the complaint.

4.       Opposite party No.1and the additional 2^nd opposite party resisted the complaint by filing separate version.  However  the 1^st the opposite party would admit the following.  The complainant is the owner of a commercial vehicle bearing  Reg.No.KL-23 G/9529 .  The 1^st opposite party had issued a package policy in respect of the  said vehicle with a sum insured of Rs.6,98,250/- for the period commencing from 20.06.13 to 19.06.14.  The said vehicle met with an accident at about 10.30 pm on 27.02.2014 at the Kollam-Thiruvananthapuram NH 47 near Parippally.  But the complainant intimated the incident to the opposite party only on 18.03.2014 after removing the vehicle from the place of occurrence without giving an opportunity  to the  1^st opposite party to conduct post survey of the reported claim.  However the 1^st opposite party immediately on receipt of the claim intimation had issued a claim form to the complainant with a request to re-transmit the same duly filled and signed along with estimate from the repairer.  The vehicle was brought to the Additional 2^nd opposite party’s service centre which  is a recognised service centre of the insured vehicle.  The complainant submitted the estimate from the 2^nd opposite party along with duly filled up claim form.  There upon the 1^st opposite party deputed Mr.M.P.Suresh Babu a Government of India licensed insurance surveyor and loss assessor for inspecting the damaged vehicle and for assessing the loss sustained to the  complainants vehicle as per the policy conditions.  Accordingly the surveyor examined the damaged vehicle in detail and after having a discussion with additional 2^nd  opposite party and the complainant assessed that the labour charges claimed by the repairer in their estimate found that the same is unconsciously on higher side.  The 2^nd opposite party was very adamant in the labour charges quoted by them even at the time of discussion.  Later the surveyor send a letter to the repairer on 28.03.2014 along with a copy of the work order with a request to commence the repair works in tune with the work order.  A copy of  which was also issued to the complainant for giving his consent of the repairer for starting the repair work.  In the said letter it is specifically mentioned by the surveyor that if any other parts are found to be defective at the time of dismantling the vehicle the same has to be intimated to the surveyor for verification and approval for additional assessment.  Anyhow the surveyor in the work order issued by him has considered an amount of Rs.25,000/- towards the anticipated loss likely to be assessed at the time of dismantling the damaged parts.  But the complainant on receipt of the above letter had sent a reply letter to the surveyor demanding full amount as per the estimate in order to repair the vehicle and expressed dissatisfaction against the work order issued by the surveyor.

5.       The surveyor and the divisional manager of the opposite party at Kollam along with another surveyor Mr.Arun had again visited the repairers workshop on 19.05.2014 and the surveyors jointly inspected the damaged vehicle in the presence of the works manager of the repairer.  Though the surveyors tried to convince the repairer about the inflated labour charges claimed by them and made an effort to settle the matter on negotiation, the repairer was very much adamant in their earlier stand and not ready to repair the vehicle in a reasonable charges as per the prevailing rates approved by the manufacturers.  The opposite party thereafter sent a letter to the complainant on 02.06.2014 informing the respective assessment made by the surveyors towards labour charges and cost of spare parts after depreciation for effecting repair works of the vehicle.  It has specifically requested in the above letter to get the vehicle repaired in tune with the labour charges and cost of spare parts assessed by the surveyors and to inform the opposite party after completing the repair works for arranging re-inspection of the repair works done.  It is further made clear in the aforesaid letter to submit an additional estimate, if any more parts are found to be damaged at the time of dismantling the vehicle, for arranging the surveyor for inspection and assessment.  Though the surveyors sanctioned reasonable amount towards the labour charges as per the prevailing rate approved by the manufacturers for completing the repair works,  the collusive attitude of the complainant and the repairer to fulfil their illegal demand stand in the way for an amicable settlement of the claim as per the terms and conditions of the policy. 

6.       The complainant has no manner of right under the contract of insurance to dictate the mode of settlement to be adopted by the insurance company in settling a claim payable under the insurance contract.  It is the absolute discretion and prerogative of the insurer to choose the mode of settlement to be adopted in a claim in accordance with the terms and conditions of the policy.  The complainant as well as the repairer were not at all co-operating with this opposite party right from the beginning itself, for carrying out the repair works and in settling the claim in accordance with the terms and conditions of the policy.  The non settlement of the claim was only due to the illegal demand on the part of the repairer and the indifferent attitude on the part of the complainant for which the opposite party is no way responsible at all.  The 1^st opposite party is unable to settle the claim of the complainant in tune with the assessment report submitted by the licensed surveyor, for want of production of the repair bills and labour charge bills etc. by the complainant for processing the claim.  The inaction on the part of the complainant in submitting the above mentioned documents is the  major hurdle in settling the claim by the insurer, to the extent eligible to the complainant as per the terms and conditions of the policy. 

7.       The Government of India licensed surveyor and loss assessors are the competent persons in the assessment of loss payable under an insurance claim as per the mandatory provisions of the insurance Act.  The loss assessed by the licensed insurance surveyor and loss assessor alone is the basis for the quantum of loss payable under an insurance claim subject to the terms and conditions of the policy.  The complainant is entitled to get the loss indemnified as per the terms and conditions of the policy alone and he is not expected to make a fortune out of a misfortune.  The complainant is  not satisfied with the quantum of assessment made by the licensed surveyors and loss assessors, he has no manner of cause of action to dispute and challenge the veracity of the same in the time bound proceedings under the Consumer Protection Act.  The dispute regarding the quantum of assessment is not a matter falls within the definition of service defined under the Consumer Protection Act.  When a dispute is only in respect of the quantum of compensation payable in a claim, the only option of the complainant is either to resort arbitration proceedings or to approach Civil court in adjudicating the dispute regarding the quantum.  The opposite party in this case had complied all the requirements in settling the claim as per the statutory procedures in a time bound manner and made all efforts and negotiation with the complainant as well as the repairer in finalizing the claim of the complainant.  So there is no justification in attributing any kind of deficiency in service on the part of the opposite party for non-settlement of the claim which is beyond the reasons of the opposite party.  the complainant in this case is not entitled to seek any relief against the opposite party.  the compensation claimed by the complainant against the 1^st opposite party under various heads are not allowable and payable and the same is lacking any legal bearings.

8.       The additional 2^nd opposite party  has not disputed the ownership of the insured vehicle, accident and also regarding the bringing of the vehicle at the service centre.  According to the Additional 2^nd opposite party it is the authorised dealer and service centre of the insured vehicle belongs to the complainant.  It is further contented that the damaged vehicle belongs to the complainant due to accident was brought to the service centre on 27.02.2014 for carrying out the repair work but the repair work of the said vehicle has not been done and the same has been kept dumped at the service centre of the 2^nd opposite party and he has intimated the complainant that an amount of Rs.4,84,315/- is required for carrying out the repair work.  But the surveyor of the 1^st opposite party has assessed Rs.2,88,401/- only as the complainant is not ready to pay the remaining amount the repair work of the vehicle has been kept pending that additional 2^nd opposite party has send a notice  to the complainant directing him to complete the repair work without delay or to give parking charges for keeping the vehicle at the premises of the additional 2^nd opposite party and the complainant has received that letter.  Now the repairing charges, value of spare parts etc has been increased considerably and the vehicle has got rusted and in a damaged condition.  The complainant has not raised any specific relief against the additional 2^nd opposite party and therefore additional 2^nd opposite party is  not a necessary party to the complainant and  further prays to dismiss the complaint the Additional 2^nd opposite party with its costs.

9.       In view of the above pleadings the points that arise for consideration are:-

1. Whether the loss assessed by the surveyor deputed by the 1^st opposite party is sufficient amount for getting the damaged vehicle repaired as per the terms of the insurance policy?
2. Whether the non settlement of the claim by the 1^st opposite party is due to the illegal demand for a heavy amount and indifferent attitude of the complainant?
3. Whether there is any deficiency in service or unfair trade practice on the part of  opposite party No.1?
4. Whether the complainant is entitled to get an order directing  the 1^st opposite party to pay IDV of the vehicle as total loss?
5. Whether the opposite party is entitled to get an order directing to pay towing charge, carrying charge and other auxiliary expenses associated with the repairing of the insured vehicle as prayed for?
6. Whether the complainant is entitled to get compensation as prayed for?
7. Relief and costs.

Point  No.1 to 4

10.     For avoiding repetition of discussion of materials these 4 points are considered together.  The following are the admitted facts in this case.  The complainant is the owner of an ambulance vehicle bearing No. KL 07 23G 9529 and the said vehicle was insured with the 1^st opposite party for a period from 20.06.2013 to 19.06.2014.  The said vehicle met with an accident during the validity of the insurance policy at the Kollam-Attingal National Highway near Parippally at about 10.30 am on 27.02.2014 while it was proceeding to Medical College  by carrying patients and the said vehicle sustained severe damages.  Parippally Police has registered Crime No.405/14. The Additional 2^nd opposite party is the authorized dealer and service centre of the insured vehicle.  After verification by the AMVI  the damaged vehicle was brought to the 2^nd opposite party service centre at Ramankulangara by towing the same.  When the damaged vehicle was at the service centre of the additional 2^nd opposite party the matter was intimated to the 1^st opposite party insurance company on 18.03.2014, obtained a claim form and returned the same duly filled up by the complainant along with  Ext.P6 estimate for Rs.4,84,315/- prepared by the Service Manager of the Additional 2^nd opposite party.  Subsequently on 02.06.14 one Mr.M.P. Suresh Kumar who is the surveyor deputed by the 1^st opposite party inspected  the insured vehicle at the 2^nd opposite party service centre and prepared Ext.P9 estimate for Rs.1,79,867/- as value of spare parts and Rs.67556/- as labour charges  and issued a letter to the additional 2^nd opposite party as well as to the complainant on 28.03.2014 requesting repair the vehicle.  On 07.04.2014 the complainant issued Ext.P8 letter stating that the amount of Rs.2,58,401/- approved by the 1^st opposite party is insufficient.  However the 1^st opposite party insurance company was not amenable to pay the amount shown in Ext.P6 estimate.  According to 1^st opposite party the amount of spare parts and amount of labour charges shown in Ext.P6 estimate are highly excessive and the amount shown in Ext.P7 estimate prepared by the surveyor deputed by the 1^st opposite party for Rs.2,58,401.86/- is sufficient for getting the vehicle repaired.  But neither the Additional 2^nd opposite party nor the complainant was amenable for the same.  Hence according to the 1^st opposite party the repair work of  the insured vehicle was not carried out.  It is also an admitted fact that the insured vehicle is kept at the premises of the 2^nd opposite party for the last 6 and odd years.

  11.   The main prayer in the complaint before amendment was for an order directing the opposite party(1^st opposite party) to pay an amount of Rs.4,84,315/-,  inorder to settle the claim as per the assessment made by the authorized service centre of the ambulance vehicle.  Subsequently the said prayer was amended  (as per order  in IA.334/19 dated 04.03.2020) praying to pass an order directing the claim as total loss and direct the opposite parties to pay an amount of Rs.6,98,250/-  which is the IDV of the vehicle together with interest.  In short after the amendment the main relief sought for is to consider the damage sustained to the vehicle as a case of total loss and award IDV shown in the insurance policy as damage.  But unfortunately there is total lack of  pleadings relating to total loss.  The complainant might have gathered materials from  the C1 report of the expert for  claiming total loss.  But he has not avered anything regarding total loss nor even used the word “total loss” anywhere in the pleadings.  The entire averments in the pleadings would show that the report of the expert surveyor deputed by the opposite party suggesting an amount of Rs.251401.86 is thoroughly sufficient for rectifying the damages sustained to the insured vehicle  and amount of Rs.4,84,315/-  is required for carrying out the repair works of the insured  vehicle.  The complainant has arrived at the said amount on the basis of Ext.P6 report prepared by the Service Manager of the additional 2^nd opposite party.   In view of the nature of damages noted by the AMVI in Ext.P2 report and also the parts to be replaced and repaired noted in Ext.P6 estimate and Ext.C1 series photographs we are of the view that the loss assessed by the authorized surveyor deputed by the 1^st opposite party is thoroughly insufficient to get the damaged vehicle repaired as per the terms of Ext.P4/D3 series insurance policy.

12.     It is true that PW2 Sreejith K.S who is none other than  the body shop in charge of  Pothens Hyundai, Kollam has prepared Ext.C1 series report and loss assessment statement wherein it is stated that the total loss is Rs.7,45,856/- out of which he has deducted depreciation and salvage value amounting to Rs.83221/- and he has found out a net loss of Rs.6,50,000/- after deducting depreciation which according to PW2 is more than 75% of the IDV of the damaged vehicle and therefore this is a fit case to consider as total loss.  But unfortunately the complainant has no such case either in the complaint or in the proof affidavit.  After getting Ext.C1 series report the complainant ought to have amend the pleadings and adduce additional evidence by examining PW1 again.   The amended relief claimed by the complainant cannot be considered at all without the backings of pleadings and sufficient evidence especially when C1 report is challenged by the 1^st opposite party.  It is further to be pointed out that PW2 has visited and verified the damages of the vehicle after about 2 years of the accident.  The parts of the vehicle to be replaced and repaired are more than the parts noted in Ext.P6 estimate.  Admittedly PW2 is not an authorized surveyor or loss assessor.  In the circumstance we are not inclined to accept the estimate/loss assessed by PW2 as such.

13.     Admittedly the additional 2^nd opposite party is the authorized service centre of the insured vehicle.  None of the parties has any dispute with regard to the fact that the accident occurred during subsistence of a valid insurance policy. Inorder to claim compensation for the damages sustained during an accident the repair work the damaged vehicle has to be  carried out by authorized service centre.  Even the 1^st opposite party has no case that there is any other authorized service centre at Kollam for this vehicle to carry out the repair work so as to claim  insurance amount.  It is further to be pointed out that the materials available on record including Ext.D1 survey report prepared by DW1 under the head cause and nature of  accident it is stated that the insured vehicle collided with a car which was halting there to take a ‘U’ turn lost control and finally stopped by hitting on a huge tree and due to the impact of the hit a huge branch broken and fell down on the front side of the insured vehicle and caused damage to the vehicle.  Hitting against standing huge tree and due to the impact of the hit a huge branch of the said tree tear out from the trunk of that  tree and fell on the front top side of the vehicle itself would indicate the massive impact caused to the vehicle.  In Ext.D1 report DW1 has stated that both side doors post repairing welding new RH and LH fender inner panel roof repairing and shaping the front portion full and welding considered 15 days work.  The above damages noted by DW1 the authorized surveyor and loss assessor itself would indicate the dilapidated condition of the body shell.  In the circumstance the claim of PW1 that body shell has to be replaced is a genuine claim. In view of the nature of damage noted by the AMVI in Ext.P2 report and D1 report and estimate it is cristal clear that the amount of loss noted by DW1 in Ext.P9/D1 is not at all sufficient to get the vehicle repaired.

14.     On evaluating the entire materials available on record we are of the view  that the amount suggested by the 1^st opposite party in Ext.P7&P9 are thoroughly insufficient especially in view of the evidence that the body shell torn of the insured vehicle was thoroughly damaged and torn of  at different places due to the impact of the accident.  Hence the body shell is to be replaced.  It is true that if the body shell is replaced the labour charges would be reduced considerably but at the time  the body shell would cost a substantial amount.  In the circumstances it is cristal clear that the non settlement of the insurance claim is due to the adamant attitude of the complainant but due to the non offering of sufficient amount for getting the insured vehicle repaired and make it in a running condition for which neither the complainant nor the Additional 2^nd opposite party cannot be blamed at all.

15.     However  we are of the view that the materials available on record are not sufficient to find out the exact expenses repairing and  making the vehicle in a running condition.  In the circumstances we are inclined to hold that an amount of Rs.4,00,000/- will be reasonable and sufficient to carry out the repair and replacement work of the insured vehicle. Points answered accordingly.

Point No.5

16.     Admittedly the complainant is entitled to get towing  charges and other auxiliary expenses associated with the repairing of the insured vehicle. The complainant has sought for towing charge, garage charge and other auxiliary charges for repairing the said vehicle as relief no.2.  As per Ext.P5 receipt  the amount of towing charges paid by the complainant is Rs.3500/-.  But the maximum towing charges allowable as per the terms of the insurance policy is Rs.2500/- only.  The 1^st opposite party has no serious dispute  in granting Rs.2500/- as towing charges.  However there is no sufficient pleadings and evidence for granting garage charges or any other auxiliary expenses associated with the repairing of the vehicle.  Hence the complainant is not entitled to get anything on those counts except Rs.2500/- as towing charges. 

Point No. 6

17.     It is clear from the available materials that the 1^st opposite party has failed to settle the insurance claim in proper time and there by allowed the vehicle to be remained at the premises of the 2^nd opposite party’s service centre  without offering sufficient amount for getting it road worthy as per the terms of Ext.D1 policy conditions and thereby caused further damages to the vehicle.  The said act of the 1^st opposite party  amounts to deficiency in service as well as unfair trade practice.  It is also clear from the available materials that the complainant has sustained mental agony apart from financial loss due to the non settlement of the claim by paying reasonable expenses for setting right the damages caused to the vehicle due to the accident as agreed in the insurance policy.  Therefore the complainant is entitled to get compensation of Rs.50,000/- as sought for in the complaint. The point answered accordingly.

Point No.7

In the result complaint stands allowed in the following terms.

1.    The 1^st opposite party insurance company is directed to pay Rs.4,00,000/- along with interest @6% p.a from the date of complaint till realization to the complainant to set right the damages caused to the vehicle during the accident including the replacing of body shell of the insured vehicle.

2.    The 1^st opposite party is also directed to pay Rs.50.000/- to the complainant as compensation along with interest @6% p.a from the date of complaint till realization.

3.    The 1^st opposite party is further directed to pay Rs.2500/-  as towing charge with interest @ 6% p.a  from the date of complaint till realization.

The 1^st opposite party is directed to pay Rs.10,000/- as costs of the proceedings to the complainant.

The 2^nd opposite party stands exonerated as no relief is sought against the 2^nd  opposite party.

The 1^st opposite party is directed to comply with the directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover Rs.4,52,500/- (4,00,000+50,000+2,500) with interest @ 9% from the date of complaint till realization along with costs Rs.10,000/- from the 1^st opposite party and its assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  8^th day of  October  2020.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya   Rani: Sd/-

           Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX

Witnesses examined for the complainant

PW1            :         Baby

PW2            :         Sreejith

Documents marked for the complainant

Ext.P1         :         FIR

Ext.P2         :         Report of AMVI

Ext.P3         :         Motor Accident Claim Intimation

Ext.P4         :         Insurance policy

Ext.P5         :         Letter from crane service

Ext.P6         :         Estimate prepared for  Royal Force Rs.2,70,315/- as material

      cost and Rs.2,14,000/- as Labour charge.

Ext.P7         :         Work order and copy of estimate prepared by P.S.suresh Babu

       DAE Insurance surveyor

Ext.P8         :         Letter dated 07.04.14 issued by Omkar security Agency with

      regard to insufficient claim from insurance company.

Ext.P9         :         Letter issued by New India Assurance company dated 2.06.14

     and copy of assessment sheet.

Ext.P10       :         Commercial vehicle package policy issued by New India

       Insurance Company.

Witnesses examined for opposite parties

DW1           :         Suresh Babu

Documents marked for opposite parties

Ext.D1        :     Survey report and estimate prepared by P.S.Suresh Babu for

 Rs.2,39,451.45/- dated 23.05.2014.

Ext.D2        :    Covering letter plus assessment sheet given to the proprietor of

the 2^nd opposite party by the original manager of the 1^st

opposite party.

Ext. D3 series:   Insurance policy of New India Insurance company.

Ext.C1 series:  Final survey report prepared by PW2  Sreejith.K.S,

Automobile Engineer.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya   Rani: Sd/-

            Stanly Harold:Sd/-

           Forwarded/by Order

           Senior Superintendent