KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 713/11
JUDGMENT DATED : 07.06.2012
PRESENT:
SHRI. S. CHANDRA MOHAN NAIR : HON. MEMBER
SHRI. M.K. ABDULLA SONA : HON. MEMBER
Divisional Manager,
Oriental Insurance Co., Rohini Building,
Pazhavangadi, Thriuvananthapuram. : APPELLANT
(By Adv. Thomas P. Jacob)
Vs
K.V. Anna, Yogiya Veedu,
Muhamma P.O., Alleppy. : RESPONDENT
(By Adv. K. Dharmarajan)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Alappuzha in CC No. 220/2010 dated: 30.4.2011. The appellant is the opposite party and the respondent is the complainant. The appellant prefers this appeal from the order passed by the Forum below; direct the opposite party to pay a sum of Rs.1,70,000/- to the complainant with 9% interest p.a from the date of the complainant; claiming the policy amount with the opposite party till its recovery. It also directed the opposite party to pay a compensation of Rs.20,000/- to the complainant and cost of Rs.5,000/-which will serve the purpose.
2. In brief, the complainant insured a Tata Indica Car with opposite party insurance company. The vehicle met with an accident on 2.10.2010 and was damaged. On the claim preferred by the respondent it was agreed to settle the claim for Rs.80,000/ on cash loss basis by both parties. But the opposite party did not accept the registered letter of the appellant for the above offer. Thereafter the complainant preferred the present complaint without considering the valid contentions and policy conditions directly and directed the appellant to pay Rs.1,70,000/- with interest, compensation and cost and there was no direction to surrender the vehicle which is mandatory as per the policy condition.
3. The opposite party appeared and filed in their written version, in the written version the opposite party contended that he is a mere owner of the car and the car was being used as tourist taxi on hiring the service of another person as driver. As such, the said vehicle was used for commercial purpose, and hence the complainant is not a consumer, the opposite party avers. The opposite party hasn’t directed the complainant to get the damage of the vehicle assessed by Concord Motors. Subsequent to the accident, the surveyor of the opposite party inspected the vehicle and assessed the liability of the opposite party on cash loss basis settlement. With the result the opposite party sent several registered letters to the complainant seeking to submit the consent letter to that effect. Notwithstanding repeated demands by the opposite party, the complainant backed out from the said settlement. The complainant is not entitled to claim the insurance benefits on the basis of total loss. When claiming total loss the complainant had to surrender the damaged vehicle immediately to the opposite party. The accident took place on 2nd October 2009. The vehicle is still in the custody of the complainant. The complainant is, as such estopped from claiming insurance benefit under ‘total loss’ at so a belated stage. The complainant has never approached the opposite party for the settlement of the claim. The reliefs sought are not appropriate to be allowed. The complaint is only to be dismissed with cost, the opposite party affirms.
4. The evidence consists of the testimony of the complainant’s son Mr. Aneesh Jose as PW1, and the documents Exts. A1 to A9 were marked. Ext. A1 is the copy of the policy certificate, Ext. A2 is the copy of the legal notice issued to the opposite party. Ext. A3 is the copy of the GD entry, Ext. A4 is the copy of the RC book, Ext.A5 is the copy of driving license of the driver, Ext.A6 is the estimate report prepared by Concord Motors, Ext.A7 is the copy of the surveyor report, Ext.A8 is the permit of the car, Ext.A9 is the photos of the damaged car. On the side of the opposite party, its divisional manager was examined as RW1, and the documents Exts.B1 to B3 were marked. Ext. B1 is the copy of the letter sent to the complainant, Ext.B2 is the copy of the refused letter and Ext.B3 is the survey report.
5. The Forum below discussed the matter in detail and heard the parties. The subject matter of the insurance policy is the met with an accident to the vehicle. In the wake of this, they hold that whether the car was being used as a taxi or a third person who was being engaged as a driver. By the by, the momentous contention of the opposite party is that the complainant had agreed to settle the claim for Rs.80,000/- and afterward the complainant backed out from the agreement. That apart, the complainant has so far not surrendered the vehicle to the opposite party. This disentitles from the complainant for claiming the policy amount on the basis of total loss; the opposite party argues. The Forum below opened that they went through the materials available on record.
6. The Forum below perused the evidence in detail from both parties. Even going by Exts.B1to B3, it seen that the opposite party has not brought on record any materials to show before us that the complainant had concurred to settle the claim for an amount of Rs.80,000/-. Similarly, the opposite party has no case that there is some outrageous violation of the terms and conditions of the policy. It is seen, a survey report has been filed by the opposite party. But the opposite party did not make it a point to bring the concerned surveyor to the box, even not the affidavit of the surveyor was got filed which render the said report absolutely inconsequential. The complainant’s case that; in the light of the above deliberations stands satisfactorily substantiated. Concededly, the opposite party inspected the vehicle and insured value was declared at Rs.1,80,000/-, and insured paid premium on this amount. In this context, they have no hesitation to hold that the opposite party is bound by the value put by it for the vehicle while issuing the insurance policy certificate to the complainant. However, the Forum below taken notice that the vehicle had been got insured on 15th May 2009, and the accident took place on 2nd October 2009 viz. five months thereafter the policy. Obviously, the value of the vehicle must have been depreciated, not less than to that extent. To this point; the complainant has produced a decision delivered by the Hon’ble Apex Court 2008 ACJ 2621, which is squarely germane to the present context.
7. In the result, the Forum below passed the above impugned order.
8. On this day this appeal came before this commission for final hearing both counsels for the appellant and the respondent/complainant are present and they argued their own cases in detail. The counsel for the appellant argued the case on the basis of the grounds of appeal memorandum that the order passed by the Forum below is without the provision of law, facts and equity. It submitted that the Forum below failed to appreciate the fact that the appellant can pay the amount according to policy conditions. The Lower Forum failed to appreciate the fact that there is no liability since the vehicle was used for commercial purpose. The Forum below did not appreciate the fact that even if there is liability that the respondent is only entitled for Rs.80,000/- on cash loss basis. He prays to allow this appeal and to set aside the impugned order passed by the Forum below in the complaint.
9. On other side, the respondent/complainant argued that nothing wrong with the order passed by the Forum below. The Surveyor those who appointed by the insurance company is not a competent person to assess the repair charges and value of the vehicle. The counsel for the respondent/complainant argued that the duty of the surveyor is not only to prepare a report for settlement but he must prepare a detail report of the damages and loss sustained by the vehicle and the cost etc. in detail. He argued that he is not a competent person to conduct such an inspection of the vehicle and to file the final report. He is only an engineering degree holder in Civil side. How a civil engineer is competent to do such a detail survey of the damages of a motor car? According to him the opposite party compelled him to entering into a settlement of agreement. The report filed by the complainant and marked it as Ext.A6 (estimate report prepared by concord motors) is the detail report about the damages and loss and its value and assumption of price etc. The surveyor from the part of the opposite party filed the report without conducting any enquiry. In the report it is not seeing that any details about the collection of the quotation for the price list from any authorized workshop or spare parts shop etc. He blindly prepared a report on the basis of the mere assumption and presumption. This report is definitely biased it prepared as per the instruction of the insurance company.
10. We heard in detail and perused the entire evidence adduced by both sides what is the harm from the part of the insurance company to examining the surveyor before the Forum below to prove the Ext.A7 report? It is nothing but an attempt to suppress some materials from the surveyor we are not seeing any legality in the order passed by the Forum below. This order passed by the Forum below is strictly accordance with the provisions of law and evidence. But the very same time it is the duty of the respondent/complainant to return the vehicle to the insurance company as per the condition as noted by the surveyor in the survey report. There are so many years elapsed it is not practicable to return the entire damaged vehicle now a days to the opposite party. The opposite party can deducted 10% as a salvage value from the sum of Rs.1,70,000/-. It means the opposite party is directed to pay a sum of (1,70,000 -17,000) Rs.1,53,000/- to the complainant. The complainant is also directed to pay a compensation of Rs.5,000/- and cost of Rs.1,000/- to the complainant. The opposite party is directed to pay total Rs.1,49,000/- as the above differences to the complainant. If the opposite party will disobey this order passed by this commission they are also directed to pay 15% interest p.a to this total amount. The time fixed for the payment within a period of 15 days from the date of the receipt of the copy of this judgment.
In the result, this appeal is disposed with the above modifications.
The points of the appeal discussed one by one and answered
accordingly. No cost ordered.
M.K. ABDULLA SONA : HON. MEMBER
S. CHANDRA MOHAN NAIR : HON. MEMBER
Da
