BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE.
PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT
THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II
CC. 46 / 2004
TUESDAY THE 27TH DAY OF DECEMBER 2011.
Mrs. A. Kavitha,
W/o. Sateesh Kumar,
No.23/4, Marakadai Kandappan Street,
Velapadi,
Vellore 632 001. … Complainant.
- Vs –
1. The Divisional Manager,
United India Insurance Co. Ltd.,
Divisional Office at No.45,
1st Floor, TKM Complex,
Katpadi Road,
Vellore – 632 004.
2. The Branch Manager,
United India Insurance Co. Ltd.,
KBS Building No.36,
Katpadi Road,
Gandhinagar,
Vellore – 632 006. … Opposite parties.
. . . . .
This petition coming on for final hearing before us on 7.12.2011, in the presence of Thiru.V.R. Thiruvengadam, Advocate for the complainant and Thiru. P. Thulasimani Selvam, Advocate for the opposite parties 1 & 2, and having stood over for consideration till this day, the Forum made the following:
O R D E R
Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District.
1. The brief facts of the case of the complainant is as follows:
The complainant purchased a New Ashok Leyland 1611 six wheel Lorry (open Type) bearing Registration No. PY 01 J 9917 on 12.9.97 and the same was insured periodically. She renewed the insurance of the said vehicle with the 2nd opposite party on 24.10.01 under policy No.012104/31/01/72464 and the policy period was upto midnight of 23.10.02. The vehicle was used as a Public Carrier (National Permit). On 16.9.02 when the complainant’s driver R.Gandhi was returning from Kolar Gold Fields carrying stones to Chenai Harbour in the said vehicle and when they were driving at the Ghat Road at 7. p.m. near Baddrapalli the left tyre burst and the driver though took all the precautions to stop the vehicle but could not and the vehicle dragged itself and hit the paraphet wall and rolled to a depth of 120 feet and with the result the said vehicle was completely damaged into pieces and completely wrecked. The complainant informed about the accident to the opposite parties. The opposite parties engaged Mr.M.Aravindababu to do the spot survey and he did the survey on 17.9.02 and gave a report. Thereafter Mr.R.Balaraman a licensed surveyor was appointed by the opposite parties on 3.12.02 and the said surveyor surveyed the damage on 4.12.02 and 11.12.02. and gave a report. To the complainant’s surprise she received a communication on 25.2.04 after a lapse of 17 months Kindly let us know as to whether your vehicle has been re-inspected by any surveyor after repairs and we shall be glad if would arrange to get us the re-inspection report and to submit your bills towards repairs to enable us to proceed further in this manner. The opposite parties very well know that the said vehicle PY 01 J 9917 is not in a condition to be repaired and used. The complainant sent a reply dt. 1.7.04 to the second of you that the said vehicle is completely salvage and cannot be repaired and used. Road tax and penalty for two years will come to Rs.2,00,000/-. It is almost going to be two years from the date of accident the opposite parties have not taken any steps to settle the claim of the complainant. The opposite parties stand is settling the claim of the complainant is unreasonable and the opposite parties are liable to make good the loss as per the terms of the policy. Till today the claim has not been settled and the opposite parties have started to give evasive reply. She has incurred huge loss in business since she could not ply the lorry for two years.
2. The opposite parties are liable to pay as follows:
i) Value of the vehicle bearing Regn.No.PY 01 J 9917 Rs.4,00,000/-
ii) Loss of earnings for two years Rs.3,00,000/-
iii) Damages for mental agony Rs.2,00,000/-
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Total Rs.9,00,000/-
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The cause of action arose on 12.9.97 when the Ashok Leyland Lorry bearing Regn.No.PY 01 J 9917 was registered on 16.9.02 when the said vehicle met with an accident and at Vellore where the 2nd opposite party’s office where the said vehicle is insured is situate within the jurisdiction of this Forum. Therefore the complainant prays this Forum for directing the opposite parties to pay a sum of Rs.4,00,000/- representing the value of the vehicle bearing Regn.No.PY 01 J 9917 with interest at 12% p.a. from the date of accident, and to pay a sum of Rs.3,00,000/- towards loss of earnings for two years and Rs.2,00,000/- towards damages for mental agony and strain and Rs.5000/- towards costs of this complaint.
3. The averments in the counter filed by the 1st opposite party and adopted by the 2nd opposite party are as follows:
The opposite party does not admit any of the allegations in the complaint and puts the complainant to the strict proof of the same. The allegations made in para-3 of the complaint are no doubt true. The allegations regarding the manager of accident as set out in para-4 of the complaint are not fully admitted by the opposite party. The same had to be strictly proved by the complainant. It is no doubt true that spot survey was done at the instance of the opposite party and he had also submitted his report. Since the claim exceeded 1 ½ lacks the Regional Office of United India Insurance Co Limited at Chennai had appointed Mr.R.Balaraman to file the final survey report. He had also accordingly surveyed it on subsequent dates and prepared the final report on 10.2.04 and submitted the same to the opposite party on 23.2.04. After the receipt of the final report the opposite party wrote a letter on 25.2.04 to the complainant asking her to submit the bills for effecting the repairs under the bonafide impression that the complainant would have by that time effected the repairs and wanted the claim to be settled under “Repair cum loss basis”. Under the said mode of settlement the Insurance Company will bear the entire repair charges and the value of the replaced parts which were necessary to make it road-worthy. The complainant sent an un-dated reply letter which was received by the 2nd opposite party on 1.6.04 whereunder she had requested the settlement of the claim under the Total-Loss-Basis. On 15.9.04 the said letter received from the complainant was forwarded to the Surveyor Mr.R.Balaraman requesting him to give an adandum report on Total-Loss-Basis and Salvage-Loss-Basis and the opposite party specifically requested him not to delay his report asked for since the matter was urgent and the claim is pending settlement. Subsequently the surveyor Mr.R.Balaraman gave a report whereunder he had mentioned a) Repair-cum-loss Basis at Rs.2,33,875/- b) Total loss basis at Rs.2,61,000/- and c) Salvage cum loss basis at Rs.2,01,000/-. The complainant had discussions with the said surveyor Mr.R.Balaraman as mentioned by him in his report and after the discussions they arrived at the Market value of the vehicle at Rs.3,50,000/- and she had agreed to retain the wreck at Rs.1,50,000/- the tooing and spot removal and protection charges of Rs.2500/-. Hence the sum of Rs.2,02,500/- was arrived at and deducting the policy excesses of Rs.1500/- a sum of Rs.2,01,000/- was agreed to be settled subject to the conditions of the policy. Before the mater could be settled the complainant rushed to this Forum with a huge claim of Rs.9,99,000/-. Even now the opposite party is ready and willing to settle the claim for the said amount already agreed to by the parties. Even now they are prepared to settle the claim for a sum of Rs.201000/- and they stand by the said offer.
4. The amounts claimed in para-7 of the complaint under the 3 heads are absolutely baseless claims. In fact as admitted the load that was carried by the vehicle at the time of the accident is stones to Chennai Harbour to be exported to foreign country. Over-loading alone will cause such a ghastly accident and the same is a clear violation of the policy conditions. The Invoice will furnish the weight of the goods loaded and carried in the vehicle. If the manner of accident as set out in the FIR is taken into consideration the weight of the load carried by the vehicle will certainly much more than the permitted weight of 16,200 kilos. The invoice if produced by the complainant will vouche the said facts. The complainant should tank his stars since the opposite party did not insist on the production of the invoice. The allegations in para-6 of the complaint that the stand of this opposite party in settling the claim of the complainant is unreasonable and the opposite parties are liable to make good the loss as per the terms of the policy are all deliberate falsehoods resorted to by the complainant. The claim of Rs.2,00,000/- under the heading of damages for mental agony is untenable and false. The opposite party had no objection to settle the claim for Rs.2,01,000/- provided the complainant produces the Invoice for verification. Hence this complaint is to be dismissed.
5. Now the points for consideration are:
(a) Whether there is any deficiency in service, on
the part of the opposite parties?
(b) Whether the complainant is entitled to the
reliefs asked for?.
6. Ex.A1 to Ex.A6 were marked on the side of the complainant and Ex.B1 to Ex.B11 were marked on the side of the opposite parties. Proof affidavit of the complainant and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side.
7. POINT NO. (a):-
It is admitted case of the parties that the complainant purchased a New Ashok Leyland 1611 six wheel lorry (open type) bearing registration No.PY 01 J 9917 on 12.9.97 and the same was insured periodically with the opposite parties under policy No.012104/31/01/72464, and the policy period was upto midnight of 23.10.02. On 16.9.02 when the complainant’s driver R.Gandhi was returning from Kolar Gold Fields carrying stones to Chennai Harbour in the said vehicle and when they were driving near Baddrapalli the left tyre burst and the vehicle dragged itself and hit the paraphet wall and rolled to a depth of 120 feet and with the result the said vehicle was damaged. The complainant informed about the accident to the opposite parties, and the opposite parties engaged Mr.M. Aravindababu to do the spot survey, and he did the survey on 17.9.02 and gave a report Ex.B4. Thereafter Mr. R.Balaraman a licensed surveyor was appointed by the opposite parties on 3.12.02, and the said surveyor surveyed the damage and gave a report Ex.B6. After receipt of the final surveyor report Ex.B6, the opposite party wrote a letter Ex.A5 on 25.2.04 to the complainant asking her to submit the bills for effecting the repairs and wanted the claim to be settled under “Repair cum loss basis”. The complainant has sent a reply letter Ex.A6 on 1.6.04 where under she had requested the settlement of the claim under the “Total-Loss-Basis”. Thereafter the opposite parties requesting the Surveyor, to give an adandum report on Total-Loss-Basis and Salvage-Loss-Basis. Accordingly, the surveyor Mr. R.Balaraman gave a report where under he had mentioned a) Repair-cum-loss basis at Rs.2,33,875/- b) Total loss basis at Rs.2,61,000/- and c) Salvage cum loss basis at Rs.2,01,000/- but the opposite parties did not settle the claim till this date to the complainant.
8. The complainant contended that the opposite parties very well know that the said vehicle PY 01 J 9917 is not a condition to be repaired and completely salvage, and cannot be used. It is almost going to the two years from the date of accident the opposite parties have not taken any steps to settle the claim of the complainant. On the contra, the opposite parties contended that the complainant had discussions with the said surveyor Mr. R. Balaraman, and after the discussions they arrived at the Market value of the vehicle at Rs.3,50,000/- and the complainant had agreed to retain the wreck at Rs.1,50,000/- the tooing and spot removal and protection charges of Rs.2500/-. Hence the sum of Rs.2,02,500/- was arrived at and deducting the policy excesses of Rs.1500/- a sum of Rs.2,01,000/- was agreed to be settled subject to the conditions of the policy. Before the matter could be settled the complainant rushed to this Forum with a huge claim. Even now the opposite parties are prepared to settle the claim for a sum of Rs.2,01,000/-. .
9. Admittedly after the receipt of the letter Ex.A6 from the complainant, the said Surveyor Mr.R.Balaraman requesting him to give an adandum report on “Total-loss-basis” and “Salvage-Loss-Basis”. Accordingly the said Surveyor gave a Final Report Ex.B6 where under he had mentioned three suggestions. According to the opposite parties that after receipt of the Final Survey Report Ex.B6, the complainant had discussed with the said surveyor and after the discussion they arrived at the market value of the vehicle is Rs.3,50,000/- and the complainant has agreed to retain the wreck at Rs.1,50,000/- and a sum of Rs.2,01,000/- was agreed to be settled subject to the conditions of the policy. But there is no documents to prove the above contention of the opposite parties. The said surveyor submitted his Final Survey Report Ex.B6 on 10.2.04. The complainant has filed his complaint before this Forum on 7.10.04. Therefore it is clear that after receipt the Final Survey Report Ex.B6 on 10.2.04 the opposite parties have not taken any steps to settle the claim of the complainant till 7.10.04. Hence, the acts of the opposite parties amounts to deficiency in service. Hence we answer this point (a) in favour of the complainant.
10. POINT NO. b)
It is admitted facts of the parties that the said vehicle purchased on 12.9.97, and after five years the said vehicle rolled to a depth of 120 feet, and with the result the said vehicle was completely damaged and wrecked. Based on the Total-loss-basis, the complainant claimed Rs.4,00,000/- for the value of the vehicle, Rs.3,00,000/- for loss of earnings for two years and Rs.2,00,000/- for mental agony. But there is no documents to prove the market value of the said vehicle at the time of accident and for loss of earnings for two years. But, the opposite parties have appointed a licensed surveyor to assess the damage and market value of the vehicle. Accordingly, the surveyor Mr. R. Balaraman did the survey about the damaged vehicle and submitted a Final Survey Report Ex.B6. From the perusal of Final Survey Report Ex.B6, dt.30.12.02 it is seen that the surveyor made observation that “If the subject vehicle is allowed on repair basis settlement there are possibility for a huge supplementary estimate which may crop up the liability. Hence the repairs to this vehicle shall not be economical proposition. Hence may be considered for Constructive Total Loss. Here again the expenses on collecting the wrecks storing it, providing watch and ward to protect wreck, advertising on dailies for disposal of the wreck apart from huge administrative expenses which are to be incurred by the insurer to dispose off the wreck.” Further, the Surveyor suggests the following mode of settlements.
TOTAL LOSS BASIS.
Subject vehicle is insured for 400000 . 00
Present Invoice value 650000 . 00
Present Market value – 1998 Model 350000 . 00
Less : Expected wreck value 150000 . 00
200000 00
Add : Provision for storing and incidental charges 30000 00
230000 . 00
Add: Expected Supplementary Estimate 30000 . 00
260000 . 00
Less: Excess 1500. 00
258500. 00
Add : Spot / Removal Charges 2500 .00
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Net Liability 261000 . 00
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SALVAGE LESS LOSS BASIS
Subject Vehicle is insured for 400000. 00
Present invoice value 650000. 00
Present Market value – 1998 Model 350000 . 00
Less : Expected wreck value 150000 . 00
200000 .00
Less: Excess 1500 .00
198500 .00
Add: Sport / Removal charges 2500 .00
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Net Liability 201000. 00
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Further, the surveyor opined that the Salvage less loss basis appears to be reasonable and justifiable, as such the claim may be considered subject to the conditions of the insurance policy.
11. The opposite parties have admitted the Surveyor’s observation that the repairs to the said vehicle shall not be economical proposition, hence may be considered for constructive total loss. The complainant had also sent a letter Ex.A6 to the opposite parties where under she had requested the settlement of the claim under the Total-Loss-Basis. So, the opposite parties should have been settled the claim under the constructive total loss basis, but they have not take steps to settle the claim till this date. Therefore, we have come to the conclusion that the attitude of the opposite parties herein, would have certainly caused mental agony and hardship to the complainant herein.
12. Admittedly, the Licensed Surveyor appointed by the opposite parties, and the contention of the Final Survey Report Ex.B6 submitted by the surveyor, also not denied by the opposite parties. Therefore, taking into account with regard to the contention in the Final Survey Report Ex.B6, and from the averments in the complaint, counter and Proof affidavit of both parties, and from the documents of both sides, we have come to the conclusion that the complainant herein is entitled to get Rs.2,61,000/- (Rupees Two lakhs and sixty one thousand only) under Ex.B6 “Total-Loss-Basis”, from the opposite parties. The complainant herein is also entitled to a sum of Rs.50,000/- towards mental agony and hardship in view of the deficiency in service on the part of the opposite parties herein. Hence, we answer this point (b) also accordingly.
13. In the result, this complaint is partly allowed. The opposite parties are jointly and severally directed to pay a sum of Rs.2,61,000/- (Rupees Two lakhs and sixty one thousand only) under Ex.B6 Total-Loss-Basis along with interest at the rate of 6% p.a. from the date of submission of final survey report Ex.B6 on 30.12.02 to the date of complaint on 7.10.04 & 9% p.a. from 8.10.04 to till the date of actual payment to the complainant.
They are also directed to a pay a sum of Rs.50,000/- (Rupees Fifty thousand only) towards the mental agony and hardship in view of the deficiency in service on the part of the opposite parties.
They are also directed to pay a sum of Rs,5000/- (Rupees Five thousand only) towards the cost of this complaint.
The opposite parties are hereby directed to pay the above said amount within one month from the date of receipt of copy of this order, failing which, the complainant is also entitled to interest on the above said sum @ 9% p.a from the date of default till the date of payment.
Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 27th day of December 2011.
MEMBER-II PRESIDENT.
List of Documents:
Complainant’s Exhibits:
Ex.A1- -- - X-copy of Insurance Policy Schedule.
Ex.A2- -- - X-copy of R.C. Book.
Ex.A3- 16.9.97 - X-copy of National Permit for goods Carriage.
Ex.A4- 20.9.02 - X-copy of FIR.
Ex.A5- 25.2.04 - X-copy of letter written by the 2nd opposite party.
Ex.A6- -- - X-copy of Reply by the complainant.
Opposite parties Exhibits:
Ex.B1- -- - X-copy of Policy.
Ex.B2- -- - X-copy of the FIR.
Ex.B3- 16.9.02 - X-copy of Way bill.
Ex.B4- 26.9.02 - Damaged Survey report by M. Aravindababu, Auto Mobile
Engineer.
Ex.B5- -- - Motor Claim Form.
Ex.B6- 30.12.02 - Final Survey Report.
Ex.B7- 10.2.04 - Final Survey Report.
Ex.B8- 25.2.04 - Letter by the opposite party-2 to the complainant.
Ex.B9- 25.2.04 - Letter written by the 2nd opposite party to the complainant.
Ex.B10- 1.6.04 - Letter written by the complainant to the opposite party-2.
Ex.B11- 15.9.04 - X-copy of letter written by the opposite party-2 to their investigator.
MEMBER-II PRESIDENT.
