BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 336/2004 Filed on 26.08.2004
Dated : 30.12.2010
Complainants:
Dr. Binoy John, Puthenveetil, Ulloor, Medical College, Thiruvananthapuram.
K.J. John, Puthenveetil, Ulloor, Medical College, Thiruvananthapuram.
(By adv. V.K. Mohan Kumar)
Opposite parties:
M/s Oriental Insurance Company Ltd. represented by its Managing Director, Oriental House, P.B. No. 7037, A-25/27, Asaf Ali Road, New Delhi-110 002.
The Senior Branch Manager, Oriental Insurance Company Ltd., City Branch Office, Ramakrishna Building, Near Aristo Junction, Thiruvananthapuram-1.
(By adv. S.S. Kalkura)
This O.P having been heard on 26.10.2010, the Forum on 30.12.2010 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant is the registered owner of the Maruti Esteem VX car bearing Reg. No. KL-01 K/10, that complainant insured the said car with the 2nd opposite party under “Private Car (zone A) policy B Comprehensive” vide policy No. 2001/11278 dated 28.03.2001 which was valid from 28.03.2001 to 27.03.2002, that the value of the car was assessed and estimated by the 2nd opposite party to Rs. 5,50,000/- and premium was fixed at Rs. 8,093/- and complainant had paid the said amount on 28.03.2001 itself, that during the year 2001 and 2002 the 1st complainant was doing his post graduate course in Sree Ramachandra Medical College and Research Centre at Chennai and he had taken his car along with him to Chennai, that on 06.12.2001 the 1st complainant had full day duty in the College Hospital and he parked his vehicle at the doctors car parking lot and locked the vehicle, that after the duty time in the hospital when he came to the doctors parking lot of the hospital at about 10.30 am on 07.12.2001 he was shocked to find that his vehicle was missing, that he reported the theft of the vehicle in the police station of Sree Ramachandra Medical College police station, Chingelpet District and police registered a crime No. 524/2001 under Sec. 379 of IPC, that complainant intimated the fact of theft to the 2nd opposite party over phone on 07.12.2001 itself and subsequently by written intimation, that complainant handed over all the relevant documents to settle the insurance claim to the 2nd opposite party and that opposite parties had not settled the insurance claim of the complainant. Complainant sent lawyer's notice dated 04.08.2003 to the opposite party calling upon them to settle the insurance claim and also to indemnify the complainant for the loss sustained to him. Opposite parties failed to settle the claim of the complainant. Hence this complaint to direct opposite parties to pay the complainant Rs. 5,50,000/- together with interest at the rate of 18% from 10.01.2002 along with compensation of Rs. 4,00,000/- and Rs. 20,000/- as costs.
Opposite parties filed version contending interalia that complainant has suppressed the material facts and has alleged falsehood, that the petition is barred by principles of estoppel, acquiescence and waiver, that the 2nd complainant is neither the insured of the vehicle nor the owner and has no relationship whatsoever with the opposite parties, that the insurance company had issued a policy for the period commencing from 28.03.2001 to 27.03.2002, that the insurance company had at no point of time estimated the value of the vehicle of the complainant, that it is the complainant of his own choice, free will and due knowledge had submitted the proposal seeking to insure his own car for a sum of Rs. 5.5 lakhs, that opposite parties had nothing to do with for estimating the value of the car at the time of submitting the proposal by the complainant, that the proposal was bonafidely accepted by the opposite parties on the basis that there was no suppression of material facts in the proposal, that the calculation of premium was based on the insured's estimated value and on the basis of All India Tariff fixed by the General Insurance Corporation of India, that the insured had informed the opposite parties that the insured's vehicle was stolen on the night of 06.12.2001 and requested the opposite parties to take action immediately on receipt of the claim intimation, that opposite parties had issued claim form along with detailed write up showing the requirements to be complied by the claimant, that on receipt of the said claim opposite party had issued registered letter on 12.09.2002 calling upon the complainant to produce the copies of the FIR, Final Police Report or UN report as well as the original R.C. Book and driving licence for verification, that the said notice was returned undelivered as “unclaimed”, that opposite parties once again on 20.01.2003 issued a registered letter to the complainant to furnish particulars as sought above within 10 days of the receipt of the notice, in response to which complainant on 27.01.2003 produced the said documents, that opposite parties referred the matter to an independent, qualified loss assessor and surveyor requesting them to submit their assessment in respect of the market value of the vehicle belonging to the complainant, pursuant to which surveyors P.S. Suresh Babu, M. Muraleedharan Nair and Noushad Bin Lathif had assessed the market value of the insured car and the assessed amount of the said surveyors comes to Rs. 2,23,333/-, that opposite parties had also carried out investigation in relation to the claim and opposite party issued a letter to the complainant to produce the tax token receipt as on the date of accident and the copy of the letter addressed to RTO to which there was no response, that opposite parties received letter claiming to be a letter of authorization in favour of his father, that on verification of the said letter it was found that the complainant had not issued such an authorization letter and the same was forged to knock out the amounts, that complainant himself is grossly negligent in submitting the matter as sought for and in order to cover up his delay has filed this complaint and also had caused to issue lawyer's notice and that the complainant is not entitled to any reliefs claimed in the complaint. Hence opposite parties prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complainant is entitled to get insured's estimated value of the vehicle?
Whether there is deficiency in service on the part of the opposite parties in settling the claim amount?
Whether the complainant is entitled to get interest on the amount to be settled?
Whether the complainant is entitled to get compensation and costs?
In support of the complaint, 2nd complainant has filed affidavit and has marked Exts. P1 to P7. In rebuttal opposite party has filed affidavit and has marked Exts. D1 to D12. 3 witnesses on the part of the opposite parties have been examined as DW1 to DW3.
Points (i) to (iv):- Admittedly, opposite party had issued a policy vide policy No. 11278/01 for the period from 28.03.2001 to 27.03.2002 for Rs. 5.5 lakhs and opposite party had collected premium amount of Rs. 8,093/-. There is no point in dispute that complainant had informed the opposite party that the insured vehicle belonging to him was stolen on 06.12.2001 and had requested the opposite parties to take action on receipt of the claim intimation. There is no point in dispute that opposite parties had issued necessary claim form along with detailed write up showing requirements to be complied with by the claimant. There is no point in dispute that insurance company had received the claim from the insured. The main issue under consideration is whether the complainant is entitled to get the insured value or the market value of the vehicle insured. Ext. P1 is the certificate cum policy schedule wherein the insured's estimated value recorded is Rs. 5.5 lakhs. The total premium collected is Rs. 8,093/-. Ext. P2 is the photocopy of the FIR in Crime No. 524/01 of SRMC police station. Ext. P3 is the photocopy of final report of the police to the complainant informing him that the complaint which has been charge sheeted before the Magistrate Court 2 to be undetectable. Ext. P4 is the copy of the advocate notice dated 04.08.2003 addressed to the opposite party requesting to make payment to the complainant an amount of Rs. 5.5 lakhs with interest at the rate of 18% from 10.01.2002 and compensation of Rs. 2.5 lakhs along with Rs. 2,000/- as notice charge. Ext. P5 is the postal receipt. Ext.P6 is the acknowledgement card. Ext. P7 is the reply dated 08.10.2003 issued by the opposite parties. It has been contended by the opposite parties that complainant had informed the theft of the vehicle belonging to him to the opposite parties and on receipt of the claim they had issued registered letter calling upon the complainant to produce copies of the FIR, Final Police Report, original R.C Book and driving licence for verification and such a letter was returned undelivered as “unclaimed”. Thereafter opposite parties once again issued a registered letter on 20.01.2003 calling upon the receipt of the notice, that in response to the said letter complainant on 27.01.2003 produced the FIR, Final report, copies of the R.C Book, driving licence and insurance policy and informed the insurance company that the original of the same would be submitted shortly. Ext. D1 is the letter dated 12.09.2002 addressed to the 1st complainant by the 2nd opposite party. On perusal of Ext D1 it is seen informed the complainant that the claim is pending for want of the following documents such as FIR, Final police report, original R.C Book and driving licence for verification. It is further stated in Ext. D1 that if complainant interested in the claim he was requested to comply with all the requirements indicated above within 15 days from the date of receipt of the said letter failing which the matter would be treated as closed as 'no claim'. Ext. D2 is the letter dated 20.01.2003 addressed to 1st complainant by the 2nd opposite party requesting to furnish the above said documents as mentioned in Ext. D1. Ext. D3 is the copy of the letter dated 03.03.2003 addressed to 1st complainant by the 2nd opposite party for furnishing certain documents. It is to be noted that nothing regarding claim No., policy number etc. is seen mentioned in Ext. D3. Ext. D4 is the copy of the letter from the 2nd opposite party to 1st complainant dated 14.03.2003 requesting him to furnish the documents mentioned therein. Claim No., policy No. etc. are seen stated in Ext. D4. Ext. D5 is the copy of the proposal wherein total value mentioned is Rs. 5,50,000/-. Ext. D6 is the certificate cum policy schedule. Ext. D7 is the copy of the letter dated 07.12.2001 from the 1st complainant to 2nd opposite party informing them about the theft of the vehicle. Ext. D8 is the copy of the motor claim form dated 10.12.2001. Ext. D9 is the copy of the postal receipt dated 13.09.2002. Ext. D10 is the copy of the valuation report of the claim dated 14.02.2003 submitted by Noushad Bin Latiff, the Insurance Surveyor & Loss Assessor. As per Ext. D10 the said Maruti Esteem Vehicle can fetch a value of Rs. 2,25,000/- for the purpose of buying and selling. Ext. D11 is the copy of the valuation report of the stolen vehicle dated 13.02.2003 submitted by the surveyor P.S. Suresh Babu. As per Ext. D11 the market value as on the date of theft would come to Rs. 2.25 lakhs. Ext. D12 is the report dated 14.02.2003 furnished by M. Muralidharan Nair, the surveyor & loss assessor. As per Ext. D12 the market value of the vehicle on the date of theft would come to Rs. 2,20,000/-. To substantiate the contention in Ext. D11 the surveyor has been examined as DW2. In his chief examination DW2 has deposed that he has determined the market value of the insured vehicle in consultation with the second hand vehicle dealers. He has further deposed that opposite party had stopped the Maruti Esteem model which also influenced the market value of the said vehicle. In his cross examination by the complainant he has deposed that he has 20 years experience in the field concerned and 12 years experience when the report furnished. When a suggestion is made to the effect that there is difference between the market value and model value of the vehicle in dispute DW2 has deposed that registration date is the base of valuation. To corroborate the contents of Ext. D12 opposite party has examined Muralidharan Nair, Surveyor as DW3. In his chief examination DW3 has deposed that the production of the vehicle in dispute was stopped at the time of theft of the vehicle. He has deposed further that he has filed Ext. D12 on the basis of the market value of the vehicle in dispute. In his cross examination he has deposed that he has considered the market value on the date of theft of the vehicle in preparing Ext. D12 report. In his cross, he has deposed that though the vehicle is distinguished by having any other specialties or uses leading to a higher value than of the actual value of the vehicle he would consider only the market value in preparing the report and the same is assessed in Ext. D12. It is to be noted that though the vehicle in dispute has been surveyed by the 3 surveyors two of them assessed market value of the vehicle as Rs. 2,25,000/- and the 3rd surveyor assessed it as Rs. 2,20,000/-. Complainant has not furnished any material or evidence to challenge Ext. D10 to D12. In this context opposite parties relied on the decision of the Hon'ble National Commission in New India Assurance Co. Ltd. Vs. Sunil Kumar Gupta & another reported in III (2002) CPJ 83 NC wherein it was held that insurance company is liable to pay the market value of the vehicle with interest at 12% per annum. Under the Insurance Act the insured is entitled to get the market value of the loss which he has suffered and not on the basis of premium paid for the insurance coverage. In this case there is no other material on record to assess higher market value of the vehicle in dispute, other than the market value assessed as per Ext. D10, D11 and D12. Hence considering the aforesaid 3 surveyor's report we think that it would be just and reasonable to assess the loss suffered by the complainant at Rs. 2,25,000/-. As per Ext. D1 opposite party has requested the 1st complainant to submit the relevant documents on 12.09.2002. It is not clear from the available documents when complainant had furnished the required documents to the opposite parties. The stance of the opposite party is that complainant had produced the relevant documents on 27.01.2003, thereupon the surveyors were deputed. It is pertinent to point out that all the survey reports are seen furnished in February 2003 from which it can be inferred that complainant might have submitted documents on 27.01.2003. Ext. D10 to D12 show that survey reports were filed on 14.02.2003. There is a settled position that aggrieved party is entitled to get interest for delay in settling the claim. Though the surveyors gave the report on 14.02.2003, opposite party did not settle the claim within reasonable period. It is to be noted that the amount remained with the insurance company till date. As such we think that the complainant is entitled to get interest at the rate of 12% on the market value of Rs. 2,25,000/- with effect from the expiry of the period of two months from the date of report of the surveyor. (i.e; from 14.04.2003). Failure in settling the claim will definitely amount to deficiency in service on the part of the opposite parties.
In the result, the complaint is allowed. Opposite parties shall pay the 1st complainant a sum of Rs. 2,25,000/- towards the market value of the vehicle, with interest thereon @ 12% per annum from 14.04.2003 along with Rs. 3,000/- as cost, within two months from the date of receipt of this order, failing which the above amount of Rs. 2,25,000/- will carry interest at the rate of 18% from 14.04.2003.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of December 2010.
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 336/2004
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - K.J. John
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of certificate-cum-policy schedule.
P2 - Photocopy of FIR in Crime No.524/01 of SRMC police
station.
P3 - Photocopy of final report of the police to the complainant.
P4 - Copy of advocate notice dated 04.08.2003
P5 - Postal receipt.
P6 - Acknowledgement card
P7 - Reply dated 08.10.2003 issued by opposite parties.
III OPPOSITE PARTY'S WITNESS :
DW1 - V. Soman
DW2 - P.S. Suresh Babu
DW3 - Muralidharan Nair. M
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of letter dated 12.09.2002
D2 - Copy of letter dated 20.01.2003
D3 - Copy of letter dated 03.03.2003
D4 - Copy of letter dated 14.03.2003
D5 - Copy of proposal-cum-input form for motor vehicle insurance
D6 - Copy of certificate-cum-policy schedule
D7 - Copy of letter dated 07.12.2001
D8 - Copy of Motor Claim Form
D9 - Copy of postal receipt.
D10 - Copy of valuation report for theft claim dated 14.02.2003
D11 - Copy of valuation report of stolen vehicle.
D12 - Copy of letter dated 14.02.2003.
PRESIDENT
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