Date of Filing : 03-12-2008 Date of Order : 23-07-2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C.No.268/08 Dated this, the 23rd day of July 2009. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Dr.Gopinath.K., S/o.K.Krishnan, “Gopika”, Hosdurg, } Complainant Po.Kanhangad. Kasaragod.Dt. (Adv.N.Vijayakumar, Hosdurg) Manager, New India Assurance Co.Ltd, Branch office, Gokul Building, } Opposite party M.G. Road, Kasaragod, Po.Kasaragod. Kasaragod.Dt. (Adv.A.C.Ashok kumar, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Shortly stated, Dr.Gopinath insured his Ford Ikon 13 EX1 Petrol car with opposite party as per policy No. 760802/31/05/03072 for the period from 19-11-05 to 18-11-06 for a sum of Rs.4,03,026/-. The car involved in an accident on 3-9-06 and as a result it was totally damaged. The surveyor duly appointed by the opposite party inspected the vehicle and found to be a case of total loss. Thereafter surveyor entrusted the car at the workshop of M/s Cauvery Motor Pvt. Ltd, Managalore. Later the opposite party paid only Rs. 2,14,500/- as per cheque dated 4-12-2007 towards the claim of the complainant as against the insured value of Rs.4,03,026/-. Hence the complaint claiming the balance of Rs.1,88,526/- with Rs.25,000/- towards the compensation for the mental agony, Rs. 5000/- towards the traveling expenses and Rs.3000/- towards the costs. 2. Opposite party contended that the surveyor prepared a survey report and suggested Rs.2,14,500/- towards the settlement of the claim since the insured himself has agreed to settle the claim for Rs.3,35,000/-. Therefore after deducting the wreck value of Rs.1,20,000/- an amount of Rs.2,14,500/- was paid to the complainant by way of cheque dated 4-12-2007. The settlement of claim was delayed since the complainant was abroad. 3. The complainant filed affidavit in support of his claim reiterating that is stated in the complaint Exts A1 to A4 and A4(a) marked on the side of complainant. On the side of opposite party Exts B1 to B4 marked. Both sides heard and documents perused. 4. The learned counsel for the complainant Shri. Vijayakumar argued that the complainant agreed to settle the claim for Rs.3,35,000/- for an early settlement of the matter. But it was not settled as expected. According to him the surveyor assessed the repair charge itself as Rs. 2,95,373/- and therefore a reasonable prudent man will not settle the claim for Rs.2,14,500/- and therefore he prayed for an order directing the opposite party to pay the balance amount of Rs.1,88,526/- after deducting Rs.2,14,500/- the amount already paid form the I.D.V. Rs. 4,03,026/-. 5. The learned counsel for opposite party Shri. A.C. Ashokkumar vehemently argued that the complainant himself contributed for the delay in settlement of the claim since he went abroad after the accident and the claim is settled as per the surveyors findings and based on policy conditions. He invited our attention to the condition No.3 of the policy clause. It says that the loss or damage and the liability of the company shall not exceed for total loss/constructive total loss of the vehicle the insured’s Declared Value (IDV) of the vehicle (including accessories there on) as specified in the schedule less the value of the wreck. But in this case the insured himself agreed to settle the claim for Rs.3,35,000/-. Hence deducting the wreck value assessed by the surveyor i.e. Rs.1,20,000/- the balance Rs.2,14,500/- was paid to the complainant and therefore there is no deficiency in service on the part of opposite parties. 6. Ext.B2 is the letter sent by the complainant/insured to the Senior Divisional Manager of New India Assurance Co. Ltd Mangalore, agreeing to settle the claim for Rs.3,35,000/- on total loss basis. The said letter is dated 7-2-2007. But the cheque for the settlement of the claim is seen dated 4-12-2007. This aspect itself shows the inordinate delay in settlement of the claim. Eventhough the counsel for opposite party relying on Ext.A2 the lawyer notice dated 14-05-2008 issued on behalf of the complainant to opposite party tried to maintain that the delay was occurred due to the absence of the complainant since he went abroad, it is not acceptable since Ext.A1 is a lawyer notice dated 29-10-07 caused by the complainant to opposite party against the non-settlement of claim even in October 2007. This in ordinate delay in settlement of the claim definitely constitutes deficiency in service. The Hon’ble Supreme Court in the case of United India Insurance Co.Ltd V. M/s M.K.J. Corporation reported in III (1996) CPJ (1) SC has held that TWO months is a reasonable time for the insurance company to take a decision whether claim requires to be settled or rejected in accordance with the policy. 7. In this case the opposite party has not proved that the complainant was abroad during the two months period from the date of lodging the claim and that was the reason for the delay in settling the claim. Further as per the policy conditions in the case of total loss of the vehicle the amount ought to have been paid by deducting the salvage value from the insured’s Declared Value (IDV). Since the opposite party has not settled the claim within a reasonable time as requested by the insured as per Ext.B2 he is entitled to be indemnified as per the policy conditions as it’s purpose is not served. Further the value of the salvage will diminish day by day and that also contributes to further loss. 8. The Insured’s Declared Value of the vehicle is Rs.4,03,026/-. The salvage value was assessed by the surveyor on two different basis with documents he assessed the value of salvage as Rs.1,20,000/- if it is disposed expeditiously in its as is where is condition with documents and without documents as scrap he fixed the value of the wreck as Rs.50,000/-. In this matter the opposite party has caused inordinate delay in the settlement of the claim. Hence the wreck will fetch only it’s scrap value i.e. Rs.50,000/-. So the complainant is entitled to get Rs.4,03,026/- - 50,000/- = Rs.3,53,026/-. Out of that the opposite party has paid Rs.2,14,500/- deducting the policy excess. Therefore the balance remained as unpaid is Rs.1,38,526/-. The complainant is entitled to receive the said amount after deducting depreciation since the policy was issued nearly 10 months prior to the accident. 9. The Hon’ble Supreme Court in the case of Dharmendra Goel V. Oriental Insurance Co. Ltd reported in 2008 CTJ 917 (Supreme Court) CPJ has held. “The insurance companies being in a dominant position, often act in an unreasonable manner and after having accepted the value of a particular insured good, disown that very figure on one pretext or the other when called upon to pay compensation. This ‘take it or leave’ attitude is clearly unwarranted not only as being bad in law but also ethically indefensible” With the above observation Hon’ble Apex Court directed the insurer to pay a compensation on the basis of figure arrived at by deducting the wreck value from insured’s Declared Value (IDV) after deducting Rs.10,000/- as depreciation considering the fact that the policy was issued 7 months back. The facts and circumstances of the said case is applicable to this case certain extent. 10. Hence in this case the complainant is entitled to get the balance of Rs.1,38,526/- (Rupees one lakh thirty eight thousand five hundred and twenty six only) that is remained unpaid as per policy conditions after deducting the depreciation. In this case the certificate of insurance is seen issued on 19-11-05 and the accident is occurred on 03-09-06 that is approximately after 10 months. Hence a sum of Rs.28,526/- can be deducted towards depreciation. Therefore the complainant is entitled for Rs.1,10,000/- ( 1,38,526 -28526). Therefore the complaint is allowed and opposite party is directed to pay Rs.1,10,000/- with interest @ 9% for the principal amount from the date of complaint till payment along with a cost of Rs.3,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. 29-10-2007 copy of lawyer notice. A2.14-05-2008 copy of lawyer notice. A3.8-5-08 reply notice. A4.28-10-2008 letter issued by Cauvery Motors (P) Ltd, A4(a)1-2-08 letter issued by Cavery Ford to cmplainant. B1. 4-12-2007 Letter issued by OP to complainant. B2. 07-02-07 Letter sent by complainant to opposite party. B3. Survey Report B4. True Copy of Policy. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
