IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of August, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No. 184/2012 (Filed on 22.11.2012)
Between:
Arunkumar. V.,
Vattavilayil Kohinoor,
Kulanada Village,
Ulanad.P.O.,
Pin – 689 503. ….. Complainant
And:
Branch Manager,
National Insurance Co.,
Pathanamthitta.
(By Adv. P.P. Mohammed Mustapha) ….. Opposite party
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. Complainant’s case is that he is the registered owner of a Taxi Scorpio vehicle bearing Reg.No. KL.3T-6262, and the said vehicle is insured with the opposite party for a period from 22.10.2011 to 21.10.2012. While so, on 03.04.2012 at about 12.45 p.m. the said vehicle met with an accident at Kurampala within Pandalam Police Station area. The said accident was intimated to the police and the opposite party. Thereafter, the representatives of the opposite party visited the spot and inspected the vehicle and as per their instructions the vehicle was taken to Kollam TVS workshop, which is an approved workshop of opposite party. The workshop authorities prepared an estimate for Rs.8,17,250/-. Subsequent to that the complainant submitted the claim form before the opposite party on 04.05.2012 requesting them to allow the IDV of Rs.6 lakhs as the estimate for the repairs exceeds 75% of the IDV. Thereafter the complainant contacted the opposite parties several time for settling the complainant’s claim. But they have not responded till 03.08.2012 and their response is by sending letter dated 03.08.2012 by the insurance company surveyor. In the said letter, the surveyor directed the complainant to repair the vehicle. On the basis of the said letter, complainant approached the workshop and enquired them whether they can repair the vehicle with a lesser amount than the estimate prepared by them. But they told the complainant that they cannot repair the vehicle for lesser amount than the estimate amount. Thereafter the complainant issued a registered letter on 01.10.2012 to the opposite party stating the opinion of the workshop authorities and demanded the payment of the IDV which was received by the opposite parties on 03.10.2012. Thereafter also they asked the complainant to repair the vehicle vide their letter dated 22.10.2012. Then also the complainant approached the workshop authorities and told about the opposite parties letter. At that time also the workshop authorities told the complainant that they could not repair the vehicle for an amount less than Rs. 4,50,000/- under any circumstances. The complainant also contacted the insurance surveyor several time and discussed about the matter. From the said discussions, the complainant realized that he is not an independent surveyor and he is acting in accordance with the interests of the opposite party and his estimate is much less than Rs.4,50,000/-. So the complainant requested the opposite party for appointing a new surveyor for dismantling the vehicle and to prepare a new report and requested to settle the claim vide his letter dated 29.10.2012 on the basis of a new survey report. Even then, opposite party is not prepared to settle the claim. The income from the vehicle is the only source of the complainant’s livelihood. Because of the above said act of the opposite party, the complainant had lost his income and the CC instalments are also not cleared, thereby the complainant was put to irreparable loss and sufferings. The above said act of the opposite party is a clear deficiency in service and the opposite parties are liable to the complainant. Hence this complaint for the realization of the IDV of Rs. 6 lakhs with its interests at the rate of 12% per annum from 04.05.2012 along with compensation of Rs. 1 lakh and cost of this proceedings.
3. Opposite party entered appearance and filed their version withthe following main contentions. Opposite party admitted the validity of the policy and the accident of the insured vehicle and the receipt of the claim form of the complainant. According to the opposite party, the complainant has noted the estimated loss as 4 lakhs in the claim form. On getting the claim form, opposite party appointed a surveyor for conducting the survey and for assessing the damages. After removing the vehicle to the workshop the complainant submitted an estimate of Rs. 8,17,250/- issued from the TVS workshop. Thereafter the surveyor has conducted a detailed survey of the vehicle on 25.05.2012 at the premises of the TVS workshop and he had given consent to the workshop for the repair of the vehicle and advised to start the work. But the complainant did not taken any steps for repairing. As the vehicle is lying in an open space as unattended causing more deterioration, the surveyor sent a letter to the complainant on 31.07.2012 calling him to give concurrence for the repair of the vehicle. It was also brought to the notice of the complainant that the vehicle is in the limit of repair basis settlement and repairer was instructed to proceed with the repair work. Thereafter the opposite party issued a letter to the complainant on 16.10.2012 reiterating the cost of repair will not exceed 75% of the IDV. Thereafter also the work was not started. The surveyor again sent a letter expressing the displeasure in not starting the work so far. Subsequently, the surveyor has submitted the final survey report on 01.01.2013. Because of the non co-operation of the complainant, opposite party could not be able to settle the claim and hence there is no deficiency in service from their part. As per the survey report the cost of the repair of the vehicle would come to Rs.2,86,345/-. All other allegations in the complainants are false and hence denied. As the surveyors estimate is only Rs.2,86,345/-, which is less than 75% of IDV, opposite party is not able to settle the claim on total loss basis. With the above contentions, opposite party prays for the dismissal of the complaint with their cost as they have not committed any deficiency in service as alleged by the complainant.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral testimony of PWs. 1 to 3, DW1 and 2 and CW1 and Exts.A1 to A9, B1 to B11 and C1 to C3 series. After closure of evidence, counsel for the opposite party filed their argument note and both sides were heard.
6. The Point:- The complainant’s allegation against the opposite party is that his claim for the damages of his vehicle sustained in an accident is not allowed by the opposite party though there is a valid insurance policy in his favour issued by the opposite party. According to the complainant, the IDV of his vehicle is Rs. 6 lakhs and the estimate prepared by the authorized workshop is Rs. 8,17,250/- which is more than 75% of the IDV. As per the terms and conditions of the insurance policy, if the estimate for the repairs exceeds 75% of the IDV it can be treated as total loss and as such this case is a total loss and hence he is entitled to get the IDV of Rs.6 lakhs from the opposite party. In this connection, the complainant had made so many correspondences and personal meetings with the opposite party for getting the claim. But they have not yielded the claim of the complainant by saying that the actual amount required for the repairs as per their surveyors assessment is only Rs. 2,86,345/-, which is less than 75% of the IDV and hence this case cannot be treated as a total loss. The above said act of the opposite party is illegal and hence they are liable to pay the complainant’s claim for IDV of Rs. 6 lakhs.
7. In order to prove the case of the complainant, complainant filed a proof affidavit in lieu of his chief examination along with 9 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A9. 2 officials of TVS, Kollam, the authorized workshop who prepared the estimate for the repairs of the vehicle were also examined as PW2 and 3 from the side of the complainant. Ext.A1 is the copy of registration certificate of the vehicle involved in this case. Ext.A2 is the copy of the insurance policy certificate of the said vehicle. Ext.A3 is the copy of the claim form submitted by the complainant before the opposite party. Ext.A4 is the copy of an estimate for Rs. 8,17,250/- prepared by TVS, Kollam. Ext.A5 is the copy of registered letter dated 01.10.2012 issued by the complainant in the name of the opposite party and the Divisional Manager of the opposite party. Ext.A5(a) and A5(b) are the postal receipts of Ext.A5 and Exts.A5(c) and A5(d) are the acknowledgment cards of Ext.A5. Ext.A6 is a copy of registered letter dated 29.10.2012 issued by the complainant in the name of the opposite party. Ext.A6(a) is the postal receipt of Ext.A6. Ext.A7 is the copy of FIR registered by Pandalam police in connection with this accident. Ext.A8 is the copy of inspection report dated 03.05.2012 prepared by the R.T.A authorities. Ext.A9 is the copy of letter dated 24.12.2012 issued by Kollam TVS in the name of the complainant.
8. On the other hand, the contention of the opposite party is that the damages of the vehicle in question has been assessed by their surveyor and as per his assessment the amount required for repairs is only Rs. 2,86,345/-, which is less than 75% of the IDV. Therefore, they could not treat this case as total loss as claimed by the complainant. So they have intimated the complainant on several occasions to start repairs on repair basis which was not accepted by the complainant. According to the opposite parties, the estimate prepared by the authorized workshop is without considering real damages and the said estimate is highly excessive and they could not accept the same and hence they argued that they have not committed any illegal act or deficiency in service as alleged by the complainant.
9. In order to prove the case of the opposite party, opposite party filed a proof affidavit in lieu of his chief examination along with 11 documents. Out of the said 11 documents, 2 documents are marked as Exts.B1 and B2 through PW1. On the basis of the proof affidavit, opposite party was examined as DW1 and the remaining documents were marked as Exts.B3 to B11 series. Apart from the opposite party, their surveyor and the loss accessor was also examined as DW2 from the side of the opposite party. Ext.B1 is the copy of the letter dated 31.07.2012 issued by S.P. Engineers & Surveyors to the complainant. Ext.B2 is the copy of letter dated 16.10.2012 issued by the opposite party in the name of the complainant. Ext.B3 is the postal receipt of Ext.B1 and Ext.B4 is the postal acknowledgment card of Ext.B1. Ext.B5 is a letter dated 21.11.2012 issued by S.P. Engineers & Surveyors. Ext.B6 is the postal receipt of Ext.B5 and Ext.B7 is the postal acknowledgment card of Ext.B5. Ext.B8 is the claim form submitted by the complainant. Ext.B9 is the insurance policy certificate and the terms and conditions of private car package policy. Ext.B10 is the motor survey report submitted by S.P. Engineers & Surveyors in respect of the vehicle in question. Ext.B11 series (B11 to B11(r) are the photographs of the vehicle in question taken by the surveyor from different angles.
10. Apart from the above evidences, Renjith. T, (Motor Vehicles Inspector attached to Sub Regional Transport Office, Ranni) the commissioner appointed by this Forum who inspected the vehicle in question and submitted a mahazar and report along with 6 photographs of the vehicle and its CD. He was examined as CW1 and the documents produced by him were marked as Exts.C1 to C3 series. Ext.C1 is the mahazar dated 23.03.2013 prepared by the commissioner. Ext.C2 is the estimate prepared by the commissioner. Ext.C3 series (C3 to C3(g)) are the photographs of the vehicle taken by the commissioner and the CD of the photographs.
11. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the accident and damages of the vehicle and the validity of the policy etc. The only dispute between the parties is in respect of the extent of the damages of the vehicle. According to the complainant, authorized workshop authorities estimated the cost of repairs as Rs.8,17,250/- and the said estimate is more than 75% of the IDV of Rs. 6 lakhs, hence this is a case of total loss and the opposite party is liable to pay the IDV to the complainant treating this case as total loss. Whereas the contention of the opposite party is that the independent, licensed surveyor estimated the cost of repairs as Rs. 2,86,345/- which is less than 75% of the IDV and hence they could not treat this case as total loss instead this case can be settled on repair basis and instructions were given for carrying out the repair works to the complainant as well as the workshop authorities. But they have not carried out the repairs in spite of the repeated communications given by the opposite party and the surveyor.
12. The complainant’s agreement is that he had approached the workshop authorities on the basis of the instructions of the opposite party for repairing the vehicle. But they are not prepared to repair the vehicle for the amount assessed by the surveyor and further the workshop authorities told the complainant that in any case the repairing cost will exceed the IDV due to the extensive damages of the vehicle. As per the oral testimony of PW2 and 3, the officials of the authorized workshop their estimate of Rs.8,17,250/- which is marked as Ext.A4 is a correct estimate and that too is without considering the damages if any, to the inner parts of the vehicle as the estimate was prepared without dismantling the entire parts of the vehicle. The commissioner appointed by this Forum and the surveyor appointed by the opposite party also reported in their reports that the assessment made by them is also without considering the damages of the inner parts of the vehicle as they also prepared their estimate without dismantling the vehicle. From this it is clear that the estimates prepared by the workshop authorities, the surveyor and the commissioner are without including the unseen damages of the vehicle. This means the actual damages will be much higher than the assessed damages. The damages assessed by the surveyor is Rs. 2,86,345/- and the estimate prepared by the workshop authorities is Rs. 8,17,250/-. There is great difference between the said assessments. At the same time the commissioner’s assessment is Rs. 5,68,350/-. The commissioner’s report and mahazar and the assessment were strongly opposed by the opposite party by filing a written objection. But the objections are not sustainable as the commissioner is an expert in this field and he is competent to assess the damages. The commissioner assessed the damages on the basis of the visible damages. The other experts, the surveyor as well as the workshop authorities also made their assessments on the basis of the visible damages. In the commission report and in the mahazer, the commissioner had specifically stated that he prepared the mahazar in the presence of the workshop authorities, complainant and the opposite party and further stated that the parts required to be replaced warrants replacement as it was completely damaged due to the accident and the price of the parts are calculated as per the information from TVS and other reliable sources. In view of this facts we are constrained to accept the estimate prepared by the commissioner. Moreover, the photographs produced by the opposite parties and the commissioner also clearly shows the extent of the external damages. From this it can be assumed that there is some more damages to the inner parts of the vehicle other than the external damages which are already noticed. So it is clear that the vehicle could not be repaired even by spending the amount assessed by the commissioner. If that be so the repairing costs will, no doubt, be more than the IDV. So the stand taken by the opposite party and the unnecessary delay created by the opposite party cannot be justified, as alleged by the complainant. So we find that the above said act of the opposite party is a clear deficiency in service which definitely caused financial loss and mental agony to the complainant. Hence this compliant is allowable as this case found to be a case of total loss and the complainant is entitled to get the IDV of Rs. 6 lakhs with compensation and cost. The other personal losses of the complainant like the loss of his daily income and the instalment dues of his loan etc. are not proved by the complainant and hence it is not allowable separately.
13. In the result, this complaint is allowed thereby the opposite party is directed to pay the IDV of Rs. 6 lakhs (Rupees 6 lakhs only), less statutory deductions, with 10% interest from the date of filing of this complaint till this date along with compensation of Rs. 10,000/- (Rupees Ten Thousand only) and cost of Rs. 5,000/- (Rupees Five Thousand only) to the complainant within 20 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount allowed herein above with 12% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 29th day of August, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Arunkumar. V
PW2 : Satheesh. S
PW3 : Nivan kumar
Exhibits marked on the side of the complainant:
A1 : Photocopy of registration certificate of the vehicle.
A2 : Photocopy of the insurance policy certificate of the vehicle.
A3 : Photocopy of the claim form.
A4 : Photocopy of an estimate dated 19.05.2012 for Rs. 8,17,250/-
prepared by TVS, Kollam.
A5 : Photocopy of registered letter dated 01.10.2012 issued by the
complainant to opposite party and the Divisional Manager.
A5(a), A5(b) : Postal receipts of Ext.A5.
A5(c),A5(d) : Acknowledgment cards of Ext.A5.
A6 : Photocopy of registered letter dated 29.10.2012 issued by the
complainant to opposite party.
A6(a) : Postal receipt of Ext.A6.
A7 : Photocopy of FIR registered by Pandalam police.
A8 : Photocopy of Inspection Report dated 03.05.2012 prepared
by the R.T.A authorities.
A9 : Photocopy of letter dated 24.12.2012 issued by Kollam TVS in the
name of the complainant.
Witness examined on the side of the opposite party:
DW1 : Suresh Babu
DW2 : Sivan Pillai. V.N
Exhibits marked on the side of the complainant:
B1 : Photocopy of the letter dated 31.07.2012 issued by S.P. Engineers &
Surveyors to the complainant.
B2 : Photocopy of letter dated 16.10.2012 issued by the opposite party in
the name of the complainant.
B3 : Postal receipt of Ext.B1.
B4 : Postal acknowledgment card of Ext.B1.
B5 : Letter dated 21.11.2012 issued by S.P. Engineers & Surveyors.
B6 : Postal receipt of Ext.B5.
B7 : Postal acknowledgment card of Ext.B5.
B8 : Claim form submitted by the complainant..
B9 : Insurance policy certificate and the terms and conditions of
Private Car Package policy.
B10 : Motor survey report submitted by S.P. Engineers & Surveyors.
B11 series (B11 to B11(r) ) : Various photographs of the vehicle from
different angles.
Court Witness:
CW1 : T. Renjithmon
Court Exhibits:
C1 : Mahazar dated 23.03.2013 prepared by the commissioner.
C2 : Estimate prepared by the commissioner.
C3 series (C3 to C3(g)) : Photographs of the vehicle and the CD of the
photographs.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Arunkumar. V., Vattavilayil Kohinoor,
Kulanada Village, Ulanad.P.O.,
Pin – 689 503.
(2) Branch Manager, National Insurance Co.,
Pathanamthitta.
(3) The Stock File.
