DOF 05.03.2011
DOO.21.04.2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR
Present: Sri.K.Gopalan: President
Smt.M.D.Jessy: Member
Dated this, the 21st day of April 2012
C.C.No.79/2011
Leo Jose,
Parekkulam House,
Karthikapuram.P.O.
Taliparamba Taluk Complainant
(Rep. by Adv.K.J.Thomas)
Manager,
Reliance General Insurance,
Adithya Towers,
Tavakkara Road,
Opp.R.T.Office,
Kannur.
(Rep. by Adv.S.Mammu) Opposite party
O R D E R
Smt.M.D.Jessy, Member
This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite party to pay `1, 05,831 to the complainant.
The case of the complainant in brief is as follows: Complainant is the owner of a “SWARAJ MAZDA’ company made tipper lorry bearing Reg.No.K.51A501 which was validly insured with the opposite party for the period from 17.1.2010 to 16.1.2011. The vehicle sustained damage due to an accident occurred on 20.4.2010. The incident was informed to the opposite party and a claim form was also duly submitted by the complainant. As directed by the opposite party, the vehicle was taken for repairs at Monal Motors Kannur which was the authorized workshop of Swaraj Mazda Vehicles. The surveyor deputed by opposite party inspected the vehicle from the work shop and assessed the damage sustained to the vehicle. There after the vehicle was repaired and an amount of `2, 17,209 was paid by the complainant towards entire repair charge to Monal motors. All the bills were handed over to the opposite party for effective settlement of the claim. But opposite party paid only `78,796 towards the damage sustained to the complainant’s vehicle. Complainant claims that he is entitled to get `1,84,627 after deducting 15% depreciations for 2 years use and demanding the said amount a lawyer notice was sent to opposite party But opposite party neglected to pay the amount and not been cared to sent a reply. Complainant alleges that there is gross deficiency of service on the part of opposite party and he is entitled to get `1,05,831 over and above the amount paid by opposite party. Hence the above complaint filed.
After receiving the complaint Forum sent notice to opposite party. Opposite party appeared and filed version. Opposite party admitted that complainant insured his vehicle KL.59.A.501 with them under policy No.2205792334002374. The risk inception period is 17.1.10 to 16.1.2011 and it is a 2008 model vehicle. Opposite party also contended that as per the survey conducted by IRDA licensed surveyor M.Prakash calculated the loss of the vehicle to the tune of `81,845. The opposite party had settled the claim on the basis of that survey report. All the parts and labour charges were allowed by opposite party as per the assessment made by the surveyor after deducting the service tax on labour as that was not charged in the repair invoice. After deducting the service tax of `3049 opposite party paid an amount of `78796 to the complainant as compensation. The opposite party had made a standard settlement as per the survey report. Hence this opposite party repudiated the further claim of the complainant. Opposite party denied the fact that complainant had spent `2,17,209 for the repair work of his vehicle. The complainant is not entitled to get the amount as calculated by the repairer of the vehicle. Complainant signed the loss voucher after he fully satisfied with the amount shown in it. Complainant has no legal right to withdraw any of the statements in the signed loss voucher. Hence the complaint itself is barred by section 115 of Indian Evidence Act. There is no fraud or suppression of facts on the part of opposite party. Indemnity is subject to the terms and conditions of the policy and deductions. The calculation of loss is subject to depreciation and deduction of certain components specifically excluded by the terms and conditions. The opposite party is not liable to pay `1,05,831 over and above the compensation already paid. So the above petition is to be dismissed with compensatory cost.
On the above pleadings the following issues are framed for consideration.
1. Whether the claim of the complainant is barred by section 115
of Indian Evidence Act?
2. Whether there is any deficiency of service on the part of
opposite party in disposing the accident claim of the
complainant ?
3. Whether the complainant is entitled to get the amount claimed in
the complaint?
4. Relief and cost.
To prove the complainant’s case PW1 and PW2 wee examined and Ext.A1 to A12 marked. Ext.B1 and B 2 were marked on the side of opposite party.
Issue No. 1
Complainant examined as PW1 and he adduced evidence in tune with the complaint. The fact that complainant is the RC owner of the vehicle bearing Reg.No.K.59/A/501 and the said vehicle was validly insured with the opposite party for a period from 17.1.2010 to 16.1.2011 is admitted by opposite party in the version. Complainant alleges that his vehicle met with an accident at Parappa on 20.4.2010 and the damaged vehicle was taken to Monal motors the authorized service centre of Swarj Mazda vehicles at Thottada, Kanur. As informed by the complainant the insurance surveyor assessed the damage sustained to the vehicle. A quotation was prepared by the repairer on 22.4.2010 is produced and marked as Ext.A10.As per quotation the vehicle was repaired and complainant paid a total sum of `2,17,209 towards repair charge, cost of spare parts and toying charge . As per Ext.A11 bill complainant paid `30,000 to the repair as advance. There after on 6.8.2010 he paid `91,807 vide Ext.A12 receipt. On 16.9.10 he again paid `82,402 to the repair. Even though complainant submitted all these bills to the opposite party, he was awarded only `78,796 by opposite party complainant submits that he is entitled to get the entire bill amount after deducting 15% depreciation. Opposite party through their version mainly contended that they settled the claim for `78,796 and a loss voucher was signed by the complainant. After arriving a settlement of the claim with the opposite party, complainant is estopped from re-opening the claim and the complaint is barred by section 115 of the Indian Evidence Act. Here the specific case of the complainant is that complaint had submitted the entire bills to the opposite party and also affixed signature in certain papers as demanded by the opposite party for settling his claim. Complainant admits that he had received `78,796 from the opposite party as compensation. The date of receipt of the said amount is no where stated in the complaint. The opposite party alleges that the claim was settled and while receiving the amount complainant issued a loss voucher to opposite party stating that the entire claim is satisfied. But the said loss voucher is not seen produced by the opposite party. At the time of cross examination of PW1 there was not even a suggestion of execution of a loss voucher by the complainant. The date of execution of the loss voucher also not stated in the version.
Ext.A5 series goes to show that opposite party received the lawyer notice issued by the complainant demanding the balance amount. But there was no reply by the opposite party. The non production of the discharge voucher is fatal to the opposite party’s plea of estoppels. No evidence is also adduced by opposite party to prove their contentions. Hence there is no merit in the contention of opposite party that the complaint is hit by section 115 of Indian Evidence Act and the issue is answered accordingly.
Issue No.2
In order to prove the complaint, complainant himself examined PW1 and the repairer of the vehicle was also examined as PW2. PW2 admits that a quotation for repair of the complainant’s vehicle was prepared from the work shop on 22.4.10. Including the cost of spare parts and labour charge the total cost of repair assessed as `2, 14,708 complainant paid `30,000 as advance to the repairer on 22.4.2010 and the receipt for the same is produced and marked as Ext.A11. Ext.A7 is a credit bill issued on 6.8.2010 and deducting the advance amount the balance amount of `91,807 was paid by the complainant throughExt.A12 receipt. There after on 16.9.2010 complainant paid `82402 to the repairer. Ext.A8 substantiates the same. Complaint submits that even though he produced all these bills to opposite party he had received only `78796 from the opposite party. On the other hand opposite party contended that the claim of the complainant was settled on the basis of the insurance surveyor’s report. It s also submitted that all the parts and labour charges were allowed as per the assessment made by the surveyor and after deducting the service tax of `3049 on the labour charge the claim amount was assessed as `78796.
While cross examination of the complainant it is deposed that Ext.A8 {]Im-cT 82402cq] Rm³ Monal Motors\p sImSp-¯p. Cu cash bill Rm³ C³jq-d³kv I¼n\n¡v sImSp-¯n-«p-v. C³jq-d³kv I¼\n 3049 cq] Ipd-NNv 78796 cq] C³jq-d³kvI-¼\n F\n¡v X¶n-cp-¶p. A¡m-c-yT C³jq-d³kv I¼n-\n-bpsS D¯-c-¯n ]d-bp-¶pv. Ext.A7 {]ImcT lmP-cm-¡nb _nÃv credit Bill BWv. Ext.A7 1,21,807 cq]-bpsS credit bill BWv. Ext.A7 t]mep-ff cash bill Rm³ I¼n-\n¡v sImSp-¯n-«n-Ã. Ext.A7sâ cash bill Fsâ ssIbn-en-Ã. A§s\ Hcp cash bill F\n¡v X¶n-«n-Ã.(tNm) I¼n-\n-bpsS `mK¯p \n¶p bmsXmcp kÀhokv deficiency Dm-bn-cp-¶n-Ã.(D) icn-bÃ. From the version it is clear that since Ext.A7 is a credit bill it was not considered by the opposite party for computing compensation. Ext.A10 quotation prepared by PW2 is not challenged by opposite party. Ext.A10 was prepared on 22.04.10 and it reveals that extensive damage was sustained to the complainant’s vehicle in the accident. Quotation prepared by the repairer as the prime document available for assessing the damage sustained to the vehicle. The insurance surveyor also should taken note of the suggestions in the quotation for assessing the compensation payable to the complainant. The loss assessed by the insurance surveyor has to tally with the quotation prepared by the repairer of the vehicle. But in the version there is no wisper about the quotation prepared by the repairer of the vehicle. If the quotation amount is too high the opposite party should have object the same at the earliest opportunity. The insurance company usually settling a claim only after getting the entire repair bills and report from the repairer that, the vehicle is repaired to the satisfaction of the complainant. Complainant alleges that after completing the entire repair work he handed over the bills and voucher for `2,17,209 to the opposite party for getting the claim amount. But opposite party granted only 81,845 stating that the Surveyor estimated only such damage. Survey report is produced and marked as Ext.B2 even though the surveyor who prepared the report was added as a witness, he was not examined by opposite party. Since there is huge difference between the Survey Report and amount calculated in the quotation, it was fair on the part of opposite party to examine the surveyor for giving an opportunity to the complainant for challenging his findings in the report. Merely because the private surveyor’s report was marked as Ext.B2 its contents cannot be taken into account without examining the person who prepared the report. Insurance Surveyor can be considered only as an agent of the opposite party and his assessments are not binding on the complainant especially when his report is marginally differs from the amount calculated as per quotation. Non-examination of the surveyor is also fatal to the opposite party’s contention. On the other hand complainant examined the repairer of the vehicle as PW2 and proved the quotation and payments made by him. But during cross examination of PW2 opposite party challenges the genuineness of Ext.A7 and A8 bills on the ground that it was issued after laps of 5 months from the accident. Here it is pertinent to note that Ext.A7 and A8 are the sole bill produced by the complainant to prove the cost of repair of his damaged vehicle. Ext.A7 is a credit bill dated 06.08.2010 and Ext.A8 is a cash bill dated 16.09.2010. Out of this the cash bill was accepted by opposite party. The payments covered by Ext.A7 bill is proved through Ext.A11 and A12 receipts. Even though the complainant intimated these payments through legal notice to the opposite party, there was no reply from opposite party. The opposite party being a company engaged in the insurance field by collecting money from the public has the bounden duty to disclose the true facts to their customers. The opposite party in their version submitted that the claim of the complainant is repudiated on valid grounds. The complainant also has the legal right to know about the full details of the settlement of his claim. But the opposite party without even sending a reply to the legal notice purposefully concealed the nature of settlement arrived in the claim. This adverse act of the opposite party definitely amounts deficiency of service and unfair trade practice towards a legitimate customer and the issue answered accordingly.
Issue No.3 and 4 :
It is clear that the claim of complainant was not properly settled by opposite party and it requires re-consideration. From the evidence it is clear that Ext.A7 bill was not accepted for computing compensation. Only two major bills are produced by the complainant and out of which Ext.A7 is the first one. Even though it is a credit bill, its payments were proved through Ext.A11 and A 12 receipts. Ext.A9 is the photocopy of a bill dated 06.08.2010, that bill is not all legible and it was not confronted through PW2. Hence Ext.A9 cannot be accepted. Thus the total repair cost including price of spare parts and labour charges as per Ext.A7 and bills will come `2,04,209. Opposite party in the version admits that the year of manufacture of the vehicle is 2008. Even though opposite party pleaded that the assessment of loss is subject to the terms and conditions of the policy, the proposal form obtained from the complainant where in the terms and conditions of the policy are noted is not produced by the opposite party. When opposite party taken the contention that the calculation of loss is subject to depreciation and deductions of certain components specifically excluded by the terms and conditions of the policy, it was the duty of the opposite party to prove the same through oral and documentary evidence. The opposite party has not adduced any evidence to show that what is the percentage of depreciation applicable in the present case. Hence we are having no other option except to accept the contention of the complainant that he is entitled to get the compensation amount after deducting 15% depreciation over the cost of repair. Opposite party pleaded in the Para 4 of the version that all the parts and labour charges were allowed by the opposite party as per the assessments done by the surveyor after deducting the service tax of `3,049 on labour as that can also be deducted out of the compensation amount. After deducting these amounts the repair cost can be assessed as `1, 70,530. Ext.A1 is bill showing toying charge. Even though there was a suggestion by the opposite party that it is an excess amount, there is no reason before us for rejecting the said bill, when there is no contra evidence the said bill amount can also be accepted. Adding this amount altogether complainant is entitled to get `1,78,520 as net claim amount. Deducting the amount of `81,845 paid by the opposite party the balance payable by the opposite party to the complainant is 96,685. Opposite party is liable to pay the above amount to the complainant with 10% interest from the date of filing of the petition i.e. on 05.03.2011 till payment. The complainant is also entitled to get `1,000 as cost of the proceedings and the issues No.3 and 4 are answered accordingly.
In the result complaint is allowed directing the opposite party to pay `96,685(Rupees Ninety six thousand six hundred and eighty five only) with 10% interest from the date of filing the case till payment together with `1,000 (Rupees One thousand only) as cost to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the complainant
A1.Copy of the RC book
A2.Copy of policy certificate
A3.Copy f the lawyer notice sent to OP
A4 & 5. Postal receipts and AD cards
A6.Copy of the cash bill issued by Husna Crane service
A7 to A12. Copies of the Bills issued from Monal Motors
Exhibits for the opposite parties:
B1.Copy of policy certificate
B2. Copy of the survey report
Witness examined for complainant
PW1. Complainant
PW2.M.K.Prashob
Witness examined for opposite party: Nil
/forwarded by order/
Senior Superintendent
Consumer Disputes Redressal Forum, Kannur
