Kerala

StateCommission

A/15/788

shriram general insurance co ltd - Complainant(s)

Versus

k b reji - Opp.Party(s)

sreevaraham g satheesh

09 May 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 788/2015

JUDGMENT DATED :

(Appeal filed against the order in CC.No.132/2014

on the file of CDRF, Idukki)

PRESENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

SRI.RANJIT.R                                  : MEMBER

SMT.BEENA KUMARI.A                   : MEMBER

APPELLANTS

1. Shriram General Insurance Co.Ltd, E8 EPIP, RICCO, Sitaputra, Jaipur, Rajasthan, Jaipur, Rajasthan

 

2. The Manager, Shriram General Insurance Co.Ltd,

Surya guest line, Kottayam

 

(BY Adv.Sreevaraham G Satheesh)

 

                           

565.  

 

RESPONDENTS

1. K.B.Reji, Kareth House, Kumily.P.O, Idukki -685 509

 

2. Anil kumar, V, Insurance Surveyor, Surya guest line,   Thickened, Thirunakkara, Kottayam – 686 001

                        (R1 by Adv.Sri.S.Sundarlal)

                                JUDGMENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

                The opposite parties in CC.No.132/2014 of the Consumer Disputes Redressal Forum, Idukki, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to pay Rs 5,50,800/-to the complainant.

 

                      2.The averments contained in the complaint are in brief as follows. The complainant purchased a Swaraj Mazda tipper lorry bearing Reg.No.KL/37/7270 on 14.09.2009, under finance from M/s.Shriram Transport Finance, Kattappana Branch. The company availed insurance coverage policy for the vehicle from M/s.Shriram General Insurance Co.with head office at Jaipur and branch at Kottayam. The insurance was for Rs 5,50,800/- premium paid was Rs 21,905/-period of coverage was from 01.09.2012 to 31.08.2013. On 15.02.2013, at 10.30 p.m, the vehicle met with an accident near Kumili, immediately the complainant informed the matter to the Kumili police. On 16.02.2013, he informed the matter to the insurance company also and they deputed Mr.Anil, insurance surveyor for necessary action. As per the instruction of the insurance company and the surveyor, the vehicle was towed to Eric Motors, Kottayam, the authorized workshop of Swaraj Mazda vehicles. The surveyor assessed the damages and submitted report to the insurance company. But till date the complainant neither got the vehicle repaired nor the insurance company settled the matter. It is more than 14 months and the complainant and his family, who are surviving on the income from the vehicle, are in deplorable condition and the complainant alleges gross deficiency in service from the part of the opposite parties and he prayed for.

 

1.The insurance amount of Rs 5,50,800/- with 12% interest from 16.02.2013 to be realized from the opposite parties.

2.Rs.3,65,000/- may be allowed to realise from the opposite parties for loss of income for a period of one year.

3.Rs 1,00,000/- may be allowed to be realized from opposite parties as compensation for deficiency in service and Rs 500/- as cost.

 

              3.The opposite parties filed version raising the following contentions. Opposite parties 1 & 2 entered appearance. The summons issued to third opposite party returned unserved several times. At last on the basis of the petition filed by the complainant, substitute steps taken. Through paper publication dated 23.07.2014 published in Mangalam Daily, intimated the matter to the third opposite party. Thereafter also the opposite party not turned up to appear before the forum, hence the third opposite party set exparte. The complaint is not maintainable. Since the complainant was using the above said vehicle for his commercial purpose, he does not come under the category of consumer as defined in Sec.2 (1) (d) of the Consumer Protection Act.  Opposite parties averred that the complainant intimated the matter of accident to the opposite parties after a delay of 9 days, that is on 23.02.2013, immediately after getting intimation about the accident opposite parties deputed Mr.Anilkumar, the licensed surveyor, accredited by the IRDA and he assessed the damaged sustained to the vehicle. He assessed the loss of damage to the vehicle for type of assessment for settlement of, namely,1. On repair basis with the                      Assessment of Salvage Loss basis and 3. Assessment on Cash Loss Basis. As per the policy condition the first opposite party was at liberty, to opt any of those types of settlement.

                4.   On the basis of estimate submitted by Eric Motors and inspection conducted by the Surveyor, he has assessed the total cost of parts inclusive of taxes under deducting depreciation and total labour charges to repair of the vehicle. Thus the surveyor assessed the amount payable as per the policy on Anticipatory Loss based repair basis is Rs 3,38,973/-. The surveyor assessed the loss on salvage loss basis. The IDV of the vehicle is Rs 5,50,800/-The realizable wreck value of the vehicle is Rs 3,00,000/-. The policy excess of Rs 1000/- is also to be deducted. The loss assessed on salvage basis is Rs 2,48.800/-. The third type of assessment done by the surveyor is on cash basis. The cash loss basis assessment is arrived from the repair basis assessment. Net loss on repair basis assessment is Rs 3,38,978/-. Further deduction of 25% is again to be made hereunder since the insurers has not control over repair to reduce the repair cost. The insured can repair his vehicle according to his satisfaction. Net loss assessed on repair basis is Rs 3,38,478/- The Rs 84744.50/- (is the 25% of the net loss is to be deducted from Rs 3,38,478/- loss on repair basis. Therefore, the net loss on Cash Loss basis assessment is Rs 2,54,233.50/-. The opposite parties added that the Insured Declared Value (IDV) of the vehicle is Rs 5,50,800/-. As per the policy, the vehicle will be treated as Constructive Total Loss if the aggregate cost of retrieval/repair of vehicle exceeded 75% of the IDV of the vehicle. Since loss assessed by the surveyor is Rs 3,38,978/-, which is less than 75% of the IDV, he recommended to settle the claim on Anticipatory Loss Basis or Cash Loss basis. But the complainant is not ready to settle the claim on that basis insisted by the surveyor. The opposite party intimated the complainant to initiate the repair work by three letters dated 06.11.2013, 02.11.2013 and 20.11.2013. It is also informed to the Eric Motors to start the repair work. Since the complainant has not given permission to start repair work of the vehicle, the Eric Motors did not start the repairing work of the vehicle. Due to the default from the part of the complainant, the repair work of the vehicle has not yet started. The opposite parties stated that the complainant purposefully arrayed the financier of the vehicle as the second opposite party in order to avoid the repayment of the loan amount on the ground that the claim is not settled. Therefore, there is willful default on the part of the complainant in granting permission to Eric Motors to start repair work. So there is no deficiency in service on the part of the opposite parties. 

 

                5.  The third opposite party was exparte.

                6.   The complainant was examined as PW1 and Exts.P1 to P12 were marked on his side. DW1 and DW2 were examined and Exts.R1 to R8 were marked on the side of the opposite parties. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite parties 1 & 2 have preferred the present appeal.

 

                7.   Heard both sides. Perused the records.

 

                8.   The counsel for the appellant submitted that the district forum ought to have found that the complaint is not maintainable before the forum since the complainant is not a consumer as defined under section 2 (1) (d) of the Consumer Protection Act. In the version filed by the opposite parties 1 & 2 they contended that the complainant is not a consumer defined under section 2 (1) (d) of the Consumer Protection Act. It is contended by the opposite parties 1 & 2 that the complainant has been using the lorry for business purpose. The vehicle was insured with the opposite party in connection with his business purpose. The complainant was using the loan for commercial purpose and the service obtained by the complainant from the opposite party was in connection with his commercial purpose. So the complaint is not a consumer. It has to be noted that in the first para of the complaint itself it is stated that the complainant and his family were belongings on depending on the income of the said lorries. Further the opposite parties have not adduced any evidence to show that the complainant has got any other means for his livelihood as per the explanation to section 2 (1) (d) of the Consumer Protection Act commercial purchase does not include the use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. In M/s.Harsoli Motors V/s M.s.National Insurance Company                                   it was held that a person who takes the insurance policy to cover the envisages risk does not take the policy for commercial purchase. Policy is only for indemnification and actual loss. It is not intended to generate profit. So the contention of the opposite parties that the complainant availed their service in connection with his commercial purchase and so the complainant is not a consumer and hence the complaint is not maintainable is not sustainable. As rightly found by the district forum the contention of the opposite parties that the compliant is not maintainable is not sustainable and the complaint is maintainable. 

 

                9. Another contention raised by the opposite parties 1 & 2 is that there was delay on the part of the complainant informing the matter to them. The accident occurred on 15.02.2013 and the complainant informed them only on 23.02.2013. So according to them there is delay on 9 days. According to the complainant immediately after the accident he informed the matter to the police and insurance company, the opposite parties 1 & 2 Ext.P4 shows that the complainant has inform the matter to the police station, Kumili on 16.02.2013, on the next day of the accident. Opposite parties 1 & 2 issued Ext.P5 letter to the complainant to clarify how the delay occurred to give information of the accident to that letter of the complainant has sent reply stating that he has informed the matter of incident forth with to the opposite parties 1 & 2 and the surveyor appointed by them visited the place and inspected the vehicle on 19.02.2013 and as directed by him the vehicle was taken would Eric Motors, Kottayam.DW2 the surveyor stated that the accident on 15.02.2013 and he got information on 19.02.2013 on the same day he visited the place and inspected vehicle. DW1 admitted that as per Ext.R3 on 19.02.2013 the complainant and Eric Motors informed the matter to the insurance company. But he stated that the letter was sent to the head office. So the contention of the opposite parties 1 & 2 there occurred delay in 9 days when informing the matter to them is baseless. From the evidence, facts and circumstances it has been considered that the complainant has informed the matter to the accident to the police and the insurance company, the opposite parties 1 & 2 without delay. Further in fact the United India Insurance Company Vs CPR 772 (NC) it was held that the genuine claims we are not to be repudiated on the basis of delay in informed the matter to the insurance company. In the instant case the specific condition in case of theft that the police must be immediately informed has been applied with and therefore the veracity of the instant cannot be questioned. Thus the claim seems to be a genuine claim. So the insurance company cannot oppose the claim of the complainant on the ground that there is delay on his part in informing to them.

 

                10. There is no dispute to the fact that the vehicle was insured with the opposite parties and the policy was inforced. After the accident the complainant submitted a claim before the opposite parties. They appointed a surveyor and the surveyor after inspecting the vehicle and filed report on the basis of the report of the surveyor the opposite parties offered the amount as suggested by the surveyor. But the complainant was not ready to accept the same. The complainant has filed the complaint claiming Rs5,50,800/- the IDB of the vehicle. He has also claim Rs 3,60,000/- for loss of income for one year alleging that there was delay on the part of the opposite parties in settling the claim. He has also claimed Rs 1,00,000/- as compensation and Rs 5000/- as cost. The district forum found that the report of the surveyor cannot be accepted. It also found that there was delay on the part of the opposite parties for settling the claim and there was deficiency of service on the part of the opposite parties. The district forum directed the opposite parties to pay Rs 5,50,800/- the IDB of the complainant. The opposite parties have filed the appeal against that order of the district forum. The counsel for the appellant submitted that the district forum did not even consider the report of the surveyor. There was no challenge against the report of the surveyor and even then the forum directed the opposite parties to pay the entire IDB of the vehicle. That is against the principles of insurance law and policy conditions. He submitted that it is a settled principle of law supported by various decisions of the Hon’ble Supreme Court and National Commission that depreciation is to be applied in claim settlements. But the district forum did not consider that aspect. The district forum observed that Mr.Anilkumar who had filed the report appointed by the opposite parties was arrayed in the complaint as third opposite party. The summons issued in his vehicle were returned many times and at last paper publication was made there was he was set exparte. But he appeared before the forum as a witness for the opposite parties the summons issued to him as a defense witness and summons issued to him as the third opposite party are in the 1 & 2 same address. But the summons issued before the court giving evidence to substantiate the version of the opposite parties 1 & 2. So he willfully evident from the proceedings to the forum earlier. From the foul play from the part of the surveyor DW2 it can be seen that the surveyor acted as a tool in the hands of the opposite parties 1 & 2. The district forum observed that even though the surveyor prepared a very lengthy and elaborate report. We cannot take it as a fair report. The district forum further observed that they are of the opinion that the surveyor report was prepared only to save the interest of the opposite parties 1 & 2 and hence it cannot be accepted is as a part of evidence. The district forum has not stated or discussed regarding the calculation made by the surveyor, the method of calculation made by him, such as the depreciation calculated by him and the price fixed by him for the spare parts, stated in the report for rejecting the survey report. In New India Assurance Company Limited Vs Balaji Emporium (2015) (1) CPR 817 (NC) it was held that report of surveyor is to get due to weightage there should be some solid reasons for rejecting the same. The district forum has not stated any solid reason for rejecting the survey report and the reason stated by the district forum are not sufficient to reject survey report in toto. Considering the facts and circumstances the district forum might have observed that the conduct of the surveyor and circumstances it has to be considered that the surveyor has some interest to save the opposite parties 1 & 2. So the survey cannot accept fully in toto. So the finding of the district forum report of the surveyor cannot be accepted as part of evidence is not sustainable and the report can be accepted for evidence.

 

                The complainant is entitled to get the amounts from the opposite parties, insurance company only on the basis of the terms and conditions mentioned in the insurance company. In Ext.R1 policy the percentage of deductions to be applied for making depreciation to various items in calculating the value of those items are stated such as 50% for all     Nylon, plastic parts, tires, tools and papers and air bags, 30% for fiber glass components etc. In Ext.R1 percentage of depreciation to be made considering the age of the vehicle is also stated, such as extending six months but not exceeding one year, exceeding one year but not exceeding two years 10 % etc, In Ext.R8 the counsel for the appellant submitted that the surveyor has assessed the loss of the vehicle   the depreciation is stated in Ext.R1 policy. Ext.R3 is the job estimate prepared by the Elic Motors Private Limited , Kottayam in which the amount for repair of the vehicle as stated as Rs 4,56,750.25/-. Ext.D2 claim form the claim of the complainant was for that amount. In Ext.R1 policy it has stated that the insured vehicle will be treated as constructive total loss (CTL), if the aggregate cost of retrieval or repair of the vehicle to the subject to the terms and conditions of the policy, exceeds 70% of the IDB of the vehicle. The assessment of the loss by the surveyor is less than 70% of the insurance declined value of the vehicle and hence a statement on that basis is possible as per the policy conditions. In these circumstances it can be seen that the direction of the district forum to the opposite parties to pay Rs 5,50,800/- the IDB of the vehicle is not sustainable.

                The next question is to be considered as to what is the actual amount to pay the complainant is entitled to get from the opposite parties or whether the amount assessed by the surveyor has to be taken as the amount which the complainant is entitled to get from the opposite parties. It is not possible to take an assessment made by the surveyor and each and every item as stated in his report to consider whether the depreciation made by him can be accepted or not. It has to be noted that when the surveyor was examined as DW2, the counsel for the complainant has not put any suggestive question to him regarding to the assessment made by him with respect to any particular item, to suggest that the assessment made by him is not correct. No question was put to be suggest that the depreciation made by him is not correct. The question put to be was generally suggest that there was delay on his part in filing the report and the report filed by him was not correct. In Ext.R3 the amount mentioned is Rs 4,56,750.25/- the surveyor had assessed the loss but in three types of assessment anticipatory loss, salvage loss basis and on cashless basis. The surveyor had assessed the anticipatory loss as Rs3,38,,978.93/- and he had assessed Rs 2,48,800/- on salvage loss basis and he had assessed Rs 3,38,478/- on cashless basis. On a comparison of Exts.R3 & R8 it can be seen that there was difference calculation of the cost of spare parts and the surveyor had it can be the cost of spare parts by applying depreciation at the rate of 25%, 50% which is allowable as per Ext.B1 policy. As per Ext.R3 the labour charge is Rs 57,000/- in Ext.R8 the surveyor had assessed the labour charge Rs 15,000/-. On going through the damages caused to the vehicle and the works to be done ordinary man can interest with the labour charges assessed by the surveyor is very law and considering the nature of works to be will be amount Rs 50,000/- as stated by the district forum. There are circumstances to consider that the surveyor had some interest to save the opposite parties 1 & 2 even though that is not a ground to reject the report fully in totol. In these circumstances we consider that the reports submitted by the surveyor cannot accepted fully and the report of the surveyor has to be taken as a basis in calculation of the amount to which the complainant is entitled to realise from the opposite parties. Considering the facts and circumstances we consider that some variations has to be made regarding the array by the surveyor towards the loss caused due to the damages caused to the vehicle is found by the district forum the evidence and circumstances shows that there was delay on the part of the opposite parties 1 & 2 in settling the claim and the complainant has family suffering a law seeks their efforts of income is closed. We consider that there is no ground / reason to interfere with the finding of the district forum that there was deficiency of service on the part of the opposite parties 1 & 2. Considering the entire evidence, facts and circumstances of the case we find that just and reasonable to direct the opposite parties 1 & 2 to pay Rs 4,00,000/- towards claim of the complainant regarding the damages caused to his vehicle. So the order passed by the district forum is to be modified is that effect.

 

                In the result, the appeal is partly allowed. The order passed by the district forum is modified as follows. The opposite parties 1 & 2 / appellants are directed to pay an amount of Rs 4,00,000/- towards the claim of the complainant with respect to the damages caused to his vehicle bearing Reg No KL 37 7270 within 30 days of the receipt of the copy of the order , failing which the amount was carry 12% interest per annum interest per annum till realization.

 

                Parties are directed to suffer their respective costs.

 

                At the time of filing of the appeal appellant / opposite parties had remitted Rs 25,000/-before this commission. The first respondent/ complainant is permitted to obtain release of the said amount, on filing proper application to be adjusted / credited towards the amount ordered as above.

 

T.S.P. MOOSATH: JUDICIAL MEMBER

 

                                                RANJIT.R         : MEMBER

 

                                                BEENA KUMARI.A   : MEMBER

 

 

 

Be/

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NUMBER 788/2015

JUDGMENT DATED :