Date of Filling:      14.02.2018

                                                                                                                       Date of Disposal:  28.09.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.01/2018

FRIDAY, THE 28 DAY OF SEPTEMBER 2018

Dr.K.Venkats Rao,

Aged 70 years,

S/o. E.Krishnamurthy,

Presently residing at C5/51,

Kendriya vihar

Velappan chavadi,

123, poonamalle High Road,

Chennai – 600 077.                              ………. Complainant (in person)

                                               //Versus//

1.The Manager,

    ICICI Lombard General Insurance Company Ltd.,

   (ICICI in short)

   Chotabhai Centre,

   Numgambakkam High Road,

   Chennai - 600 034.

2. Manager

     M/s. Avish Automobiles Private Ltd.

    (Avish in short)

    No.1 M.T.H. Road, Thirumullaivoyal,

   Chennai -600 062.                                               ….. Opposite parties.

This complaint is coming upon before us finally on 14.09.2018 in the presence of complainant, who has appeared in person and Mrs.A.Lathamaheswari,  Counsel for the 1^st opposite party and 2^nd opposite party called absent and set ex-parte and upon hearing arguments having perused the documents and evidences this Forum delivered the  following:-

                                                       ORDER

PRONOUNCED BY THIRU.R.BASKAR KUMARAVEL, MEMBER

            This complaint has been preferred by the complainant under section 12 of the Consumer Protection Act-1986 against the opposite parties  seeking direction to refund a sum of Rs.34,083/- of the complainant insurance claim and a sum of Rs.25,000/- towards compensation causing mental agony suffered due to the deficiency of service and unfair trade practice with cost.

2.The brief averments of the complaint as follows:-

The complainant is the Registered owner of TN-03-H-9486 Suzuki Access 125CC Motor cycle of February 2012 modal and the vehicle as insured as per law with its insurance done with M/s. ICICI the 1^st Opposite Party under “Two wheeler package policy” w.e.f. from 06.12.2016 valid upto 05.12.2017 by paying of the total (Package) premium of Rs.925/- was paid for the vehicles for its IDV of Rs.34083/-

The complainants vehicle was self driven, well maintained and parked securely at the Kendriya Vihar residential complex, velappan Chavadi, Chennai -77.  Whereas on the fateful day of 12^th December 2016 around 13.45 hours a severe cyclonic storm namely Varadh hit the city of Chennai and its suburbs.  In that calamity there were 50 trees uprooted and many vehicles of 2wheeler and 4wheeler got damaged at Kendriya Vihar.   The complainants vehicle TN-03-H-9486 was one among the many vehicles damaged at Kendriya Vihar in that cyclonic storm.

3. The complainant had informed about the incident of his vehicles to the insurance company M/s. ICICI on 13.12.2016 itself at their toll free number and subsequently got his online complaint registered under claim No.MOTO6174161 on 15.12.2016.  Thereafter on instruction from M/s. ICICI the complainant has delivered the vehicle to M/s.Avish Auto mobiles private limited who is authorized service centre at Thirumullaivoyal, Chennai -62 on 16.12.2016.  Subsequently M/s. ICICI identified Mr.S.Rajkumar, as their surveyor for the inspection of complainants vehicle at M/s. Avish and to get the Estimation/Quotation to settle the complainants insurance claim.  On 21.12.2016 the complainant submitted his written claim form at M/s. ICICI along with all supporting documents.  On 12.01.2017 as desired by M/s. ICICI the complainant had also furbished a jon-judicial stamp paper of Rs.100//- value to make the settlement of complainants insurance claim.

4. On 18.032017 nearly after three months of the submission of claim form Mr.S.Rajkumar, the surveyor had sent an e-mail communication to be complainant for the proposed settlement of the insurance claim and to confirm the same with his consent.  The complainant immediately expressed his regret over phone for the lower amount of Rs.19,000/- shown as the settlement of his insurance claim as against the IDV of Rs.34083/-is the unfair settlement.

5. At the end only Mr.S.Rajkumar the surveyor had disclosed the final figure of the settlement which the complainant refused to accept, hence refused to part with the R.C book of his vehicle and the authorization to take delivery of the vehicle by M/s. ICICI from Avish and hence requested M/s. ICICI to return both.  However Mr.S.Rajkumar has promised to look in to the settlement of the complainants claim to its IDV by consulting his higher ups.  Hence the complainant his left his vehicles RC book and his authorization to take delivery of the vehicle by M/s. ICICI from M/s. Avish.  Whereas after a week M/s. ICICI had simply remitted an amount of Rs.15750/- in to the complainants HDFC saving Bank account No.199311570000506.  The aforesaid actions of M/s. ICICI are the most unfair treatment and unfair trade practice and caused mental agony.  Hence, this complaint.

6. The contention of written version of the 1^st opposite party is briefly as follows:-

The 1^st opposite party denies the averments in the complaint except those that are admitted herein. The time of three month in assessing the damage is due to unparallel damage caused so extensively through by nature in the of “Vardha”.  There were so many trees fallen, so many vehicles damaged and so it is beyond the human control to assess the damage earlier.  But in the exigencies, this opposite party was diligent enough to send the surveyor and he has calculated liability amount which arrives approximately Rs.15,968/- only, since the complaint vehicle is 2012 model and normal depreciation will be applicable as per policy terms and conditions.

7. The complaint of his own volition has expressed his satisfaction and also gave his consent to settle the claim for Rs.19,000/- along with his sign in one hundred Rupees stamp paper on that score only on 21.03.2017 the complainant has taken back his vehicle the surveyor has received original R.C Book on 21.03.2017.  The complainant has received Rs.15,750/- on 27.03.2017.  The question of deficiency of service does not arise.  Now the 1^st opposite party is ready to pay the balance amount of Rs.3,250/-.  The complaintant should not go back on his words.  Since the settlement was reasonable.  There is no mental agony involved.  Hence this complaint may be dismissed.

8. On the side of the complainant, the complainant filed proof Affidavit as his evidence in order to substantiate his case and Exhibit A1to A7 were marked.  While so, on the side of the 1^st opposite party, the proof affidavit is filed and Ex.B1 to Ex.B3 were marked on their side.

9. At this juncture, the point for consideration before this Forum is:-

 1. Whether there is any deficiency of service on the part of the opposite

      party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10. Written arguments filed and oral arguments also adduced by both

        sides.

Point No.1:-

11. Regarding this point, the complainant is having bounden duty to prove the deficiency of service against the opposite parties as alleged.   Therefore, it is the prime duty of this Forum to decide as to whether the complainant has proved the allegations made in the complaint with proper evidence beyond reasonable doubt.  First of all, on going through the evidence of the complainant adduced by means of Proof Affidavit, it is learnt that the opposite party has insured the complainants Two Wheeler vehicle No.TN-03-H-9486 for IDV of Rs.34083/- under “Two Wheeler package policy” w.e.f. from 06.12.2016 valued up to 05.12.2017, within a week   a severe cyclonic storm namely “Vardha” hit the city of Chennai and it suburbs in which the complainants vehicle got crushed under the trees which is evidenced by filing photo copy as a document on the side of the complainant has been marked as Ex.A1.  Following this incident the complainant had informed the insurance company about the incident on 13.12.2016.  Thereafter the complainant left the vehicle with the 2^nd opposite party who is authorized service centre of Suzuki Motor cycles and also the 1^st opposite party for making the damage assessment and estimation for repair work if any.  Further, the 1^st opposite party identified Mr.S.Rajkumar as their surveyor for the inspection of the complainants vehicle at 2^nd opposite party and to get the estimation/Quotation to settle the complainants vehicle.  The complainant also submitted his written claim form on 21.12.2016 along with all supporting documents such as

1. Estimation/Quotation,

2. Registration Certificate of the vehicle TN-03-H9486,

3. Driving license of the complainant,

4. Current insurance policy.  All the above documents has been marked as Ex.A2(s).  On 12.01.2017 the complainant also executed a settlement of Motor claim in a non-Judicial stamp paper of Rs.100/- to the opposite party which has been marked as Ex.A4.  Similarly after three months that is 18.03.2017 the claim form was submitted by Mr.S.Rajkumar who was surveyor had sent an e-mail communication to the complainant for the proposed settlement of the insurance claim and to confirm which has been marked as Ex.A3.  After receiving the surveyor e-mail communication the complainant immediately expressed his regret over phone for the settlement amount of Rs.19,000/- as it is very less instead of his claim as against the IDV of Rs.34083/-. The complainant plea in the complaint against the opposite party that belated e-mail communication and fixed very less settlement amount of IDV itself proves deficiency of service and unfair trade practice against the complainant.  The complainant requested the 1^st opposite party over phone to settle the insurance claim to his vehicle value of Rs.34,083/- at the earliest.  On 21.03.2017 the complainant called to the office of the opposite party at Chennai Branch and the surveyor Mr.S.Rajkumar has prepared the final settlement with his own handwriting in the blank stamp paper without any consultation with the complainant and finalized the settlement of Rs.19,000/- Mr.S.Rajkumar before disclosing the exact amount of final settlement of Rs.19,000/- had collected the original RC Book of the complainant vehicle and obtained an authorization to take delivery of the complainant from the 2^nd opposite party.  After receiving the original RC Book only the 1^st opposite party has disclosed the final settlement amount but the complainant refused to accept and also refused to take the vehicle from the 2^nd opposite party.  However Mr.S. Rajkumar has promised to look into the settlement of the complainant claim value by consulting his higher officials.  Hence the complainant has left his vehicle from 2^nd opposite party and also RC Book with the 1^st opposite party.  After a week, the 1^st Opposite Party remitted only an amount of Rs.15,968/- in to the complainants HDFC Saving Bank Account and the Surveyor Report submitted to the complainant by the opposite party has been marked as Ex.A5 and the above said amount credited to the complainant account in the HDFC Bank has been produced as Bank statement which has been marked as Ex.A6.

12. Whereas on the side of the 1^st opposite party alone appeared and answered the complainant claim by filing written version but the 2^nd opposite party not appeared before this Forum to answered the claim of the complainant therefore he is set ex-party.  The 1^st opposite party admits that complainant has insured the vehicle with them. In ordered to prove on their side, the 1^st opposite party has been filed a document certificate cum policy schedule which has been marked as Ex.B1. The prime contention raised by the 1^st opposite party that immediately after knowing damage of the complainant vehicle the opposite party sent with surveyor to assess the damage of the vehicle and calculated the liability amount as Rs.15,968/- only since the complainant vehicle is 2012 modal and normal depreciation will be applicable as per policy terms and conditions and the same has been marked as Ex.B2.  Further the opposite party stated in the written version the complainant of his own volition has expressed his satisfaction and also gave his consent to settle the claim for Rs.19,000/- by executing a settlement of Motor claim on non-Judicial paper for value of Rs.100/-  which has been marked as Ex.B3.

13. After going into thoroughly the facts and circumstances of the case in hand and evidences adduced on both sides on careful perusal of the documentary evidences this Forum arrived to the conclusion that after the free consent of both parties only they have come to conclusion for settling the dispute among themselves by arriving to the final settlement of insurance claims of Rs.19,000/- by executing a settlement Motor claim on non-Judicial paper on either side i.e. Exhibit A4.  It is an admitted fact on the side of the complainant and also admitted in his complaint para-5 that the complainant has received a part amount of Rs.15,968/- from the opposite party and he is entitle to receive only the balance amount from the final settlement amount.  Therefore admitted fact need not be proved as per the Indian Evidence Act.  Moreover, the complainant has been reiteratively challenged the documents Ex.A4 and Ex.A5 in his complaint, Proof Affidavit and written Argument even at the time of his oral argument.  But fails to take any legal steps to prove the Ex.A4 is not having legal sanctity or it is forged one.  However if we clearly perused the Ex.A4 the stamp paper is purchased by the complainant only and he has been signed in the document.  It presumes that he has given his free consent and agreed to the final settlement for Rs.19,000/- as insurance claim for his vehicle with 1^st opposite party .  This lime lights the case of the complainant before this Forum that the complainant cannot invoke secondary thought of claiming IDV value of Rs.34,083/-.

14. Further this Forum analyzed and interpreted the document Ex.A5 filed on the side of the complainant as documentary evidence and challenging the same as arbitrary, illegal and violate to the fair process of law.  But the complainant neither he has been filed any objection nor he has been taken any steps to accept and admit as documentary evidence before this Forum.  Further he has not taken to any steps to appoint second surveyor to challenge Ex.A5, the report of the surveyor filed before this Forum.  Failure to disprove the authenticity of the surveyor report by the complainant goes against the claim of the complainant and this Forum came to conclusion on presumption of fact and law that as admitted fact on the side of the complainant.  This Forum decided to consider the claim of the complainant that the insurance final settlement balance amount should have been settled to the complainant by the 1^st opposite party as per the terms and conditions for payment through RTGS/NEFT within 15 days from the receipt of the mandate form by the 1^st opposite party or within such reasonable period as stipulated in the Ex.A2.  In this instance case the 1^st opposite party failed to settle the final settlement balance amount of insurance claim as stated above, it is the breach of contract on the side of the 1^st opposite party amounts to deficiency of service committed against complainant.  Therefore the complainant is entitled to get balance amount and compensation for deficiency of service for mental agony and financial loss to the complainant.  Thus the point No.1 is answered accordingly.

Point No:2:-

As per the conclusion arrived in point no 1 it is crystal clear that the complainant is entitled to receive the balance amount of Rs.3,032/- from the 1^st opposite party and the reasonable compensation for suffering mental agony and financial loss due to the deficiency of service of the 1^st opposite party and with reasonable cost.  Thus the point No.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the complainant is entitled only for the admitted settlement amount of Rs.19,000/-(Rupees Nineteen thousand only)  and of which, on deducting a sum of Rs.15,968/-(Rupees Fifteen thousand nine hundred and sixty eight) which already received by the complainant and thereby the 1^st opposite party is directed to pay a sum of Rs.3,032/- (Rupees three thousand  and thirty two only) along with interest at the rate of 9% from the date of this complaint that is (14.02.2018) till the date of this order (28.09.2018) and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony by way of delay in settlement which leads to the deficiency of service on the part of the 1^st opposite party and with cost of Rs.2,000/-(Rupees Two thousand only) litigation expenses to the complainant.  Regarding 2^nd opposite party this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

This order was dictated by the president to the steno-typist, typed by him, corrected, signed and pronounced by us in open Forum, today on this day 28^th of September.

               -Sd-                                                                                        -Sd-

                      MEMBER                                                                          PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1^st opposite party:-

              -Sd-                                                                                                      -Sd-

          MEMBER                                                                                          PRESIDENT