KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 1016/2004 JUDGMENT DATED. 30-08-2010 PRESENT JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT SHRI. S. CHANDRAMOHAN NAIR : MEMBER SHRI.M.K. ABDULLA SONA : MEMBER The Oriental Insurance Co. Ltd., Palluruthy, R/by its Manager, : APPELLANT Regional Office, Ernakulam, Kochi-18. (By Adv:Sri.George Cheriyan) Vs. E.N.Venugopal, Kavitha, Thuravoor.P.O, : RESPONDENT Cherthala. (By Adv:Sri.C.S.Ullas) JUDGMENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER The opposite party in OP.709/03 before the CDRF, Ernakulam is the appellant herein who is under directions to pay to the complainant/respondent a sum of Rs.2.lakhs with interest at the rate of 8% per annum from the date of complaint till the date of payment with cost of Rs.1000/-. 2. The complainant had approached the Forum stating that he was the owner of the Ambassador Car fitted with diesel engine and that he had taken a comprehensive policy for the vehicle covering the period from 19/11/2001 to 18/11/2002 and that the vehicle was stolen from the parking yard of the Chottanikkara temple while he went to the temple along with his wife to attend the Makam Feast. It is his case that though he had lodged a claim before the opposite parties, the claim was allowed only to the extend of Rs.40,000/- It is his further case that he had kept the ornaments of his wife and cash inside the locker of the vehicle and though a crime was registered with the Mulamthuruthy Police Station as crime No.73/02, the opposite party had ignored the loss suffered by the complainant and had asked him to sign a voucher for Rs.40,000/- only which was denied by him. The complainant alleged that the opposite party had committed deficiency of service in not allowing the policy amount in toto and prayed before the Forum that the opposite party be directed to give him the insured amount of Rs.2.lakhs with interest and cost. 3. The opposite party resisted the complaint by filing a written version wherein it was stated that though the vehicle was insured for Rs.2.lakhs, the complainant was entitled to the actual loss suffered by him and as per the Surveyors’ report the amount of Rs.40,000/- was arrived at and the complainant was entitled only to that amount. It was submitted that the opposite party was ready and willing to pay the amount of Rs.40,000/- as full and final settlement and submitting that there was no deficiency of service, the opposite party prayed for the dismissal of the complaint with cost. 4. The evidence consisted of the documents produced by the complainant as Exts.A1 to A7. On the side of the opposite party a proof affidavit was filed and he was examined as DW1. Exts.B1 to B4 were also marked. 5. Heard both sides. 6, The learned counsel for the appellant vehemently argued before us that the order of the Forum below is per-se illegal and unsustainable. It is his very case that the Forum had gone wrong in directing the appellant to pay the insured value itself with interest and cost. It is submitted by him that insurance is a contract of indemnity and the insured is entitled only for the actual loss suffered by the insured. He has also submitted before us that the lost vehicle was of 1984 model though it was fitted with a diesel engine in 1993 and that at the time of loss of the vehicle on 26/2/2002, the vehicle would not have fetched not more than Rs.40,000/-. Inviting our attention to Ext.A5 it is submitted by him that the complainant had not a consistent case as in the FIR the complainant had stated that the lost car was worth Rs.1.lakh only. The learned counsel relied on Ext.B2 the surveyors’ report and submitted before us that the action of the opposite party in sanctioning Rs.40,000/- was just and proper and the Forum ought not have ordered for the payment of the entire value shown in the policy. Relying on the decision of the Hon’ble National Commission in Oriental Insurance Company Vs. Suresh Arjun Karande, it is argued by him that the Forum was not just and correct in allowing the claim of the complainant in toto. 7. On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below. It is argued by him that the vehicle was valued at the time of giving the insurance policy on 19/11/2001 and the opposite party was sure that the vehicle would fetch Rs.2.lakhs and it was on such assertion that the policy was issued and the complainant was remitting the policy premium. He has also stated that he had the policy right from 1995 onwards and the opposite party could not be justified in curtailing the amount to Rs.40,000/- only. He canvassed for the position that the order is liable to be upheld and the appeal dismissed with compensatory cost. 8. On hearing the learned counsel for the appellant and respondent and also on perusing the records we find that it is the admitted case of both the parties that the vehicle in question had an insurance policy for the period from 19/11/2001 to 18/11/2002 and the insured sum was Rs.2.lakhs. It is also not disputed that the vehicle was stolen on 26/2/2002. The complainant would say that he had kept the ornaments of his wife and some cash in the vehicle when he parked the vehicle in the parking area of the Chottanikkara temple. Though the complainant had stated that he was entitled to all the amounts including the value of the ornaments and the cash, he was very particular that the insured sum of Rs.2,lakhs ought to have been sanctioned by the opposite party. But the learned counsel for the appellant submitted that though the amount of insurance was Rs.2.lakhs, the complainant was entitled only to the actual loss and Ext.B2 was relied upon in support of the argument that the opposite party was just and correct in sanctioning Rs.40,000/- only. We have perused Ext.B2. It is observed that 2 surveyors have assessed the value of the vehicle. One surveyor had assessed it as Rs.40,000/- and the other surveyor had assessed the value ranging from Rs.38,500/- to Rs.40,000/- and also that the amount would go up by an amount of Rs.2,500/- if the vehicle is having AC, velvet upholstery and seat coverage. It is noted that though the opposite party relied on the 2 reports the same had not been proved properly before the Forum. On a perusal of Ext.A5 we find that the complainant himself had stated that the value of the car was only Rs.1.lakh. Thus, it is observed that the complainant has also no consistent stand that the vehicle was worth Rs.2.lakhs and he is entitled to that amount. We have also perused the decision cited by the appellant and on a careful reading it is seen that the complainant is entitled only to the actual loss at the time of loss or damage. In Ext.B2 the 2nd surveyor, Mr.A.C.Kurian has reported that the value of the vehicle may go up by an amount of Rs.2,500/-. We feel that an Ambassador car fitted with a diesel engine which was properly maintained would fetch a sum of Rs.50,000/- and we are of the opinion that the complainant is entitled to that amount though he has stated that the vehicle was worth Rs.1.lakh before the police authorities. It is also found that even though the opposite parties have offered Rs.40,000/-, the same is not given to the complainant. The opposite party/appellant would argue that the complainant did not sign the voucher for giving the amount. The non signing of the voucher by the complainant can be justified as he was not ready to accept the amount as a full and final settlement. Thus, the opposite party is liable to pay interest for the amount from the date of complaint till the date of payment at 6% per annum though the Forum below had ordered that the complainant is entitled to interest at the rate of 8% per annum. In the agglomerated facts and circumstances of the case the complainant/respondent is entitled to Rs.50,000/- with interest at Rs.6% per annum from the date of complaint till the date of realization. The cost ordered to be paid is sustained. In the result the appeal is allowed with the above modifications. Thereby the opposite party/appellant is liable to pay to the complainant/respondent the sum of Rs.50,000/- with interest at 6% per annum from the date of complaint till the date of payment with cost of Rs.1000/-. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs. S. CHANDRAMOHAN NAIR : MEMBER JUSTICE K.R. UDAYABHANU: PRESIDENT VL. SHRI.M.K. ABDULLA SONA : MEMBER | 
