| Final Order / Judgement | (Passed On 26/10/2015) Per Smt. Jayshree Yengal, Hon’ble Member - This appeal challenges the order dated 20/05/2010, passed by the District Consumer Forum, Nagpur partly allowing the Consumer complaint bearing No. 759 of 2009 and thereby directing the original OP M/s Cholamandalm MS General Insurance Company Ltd. appellant herein to pay the complainant insurance claim of Rs. 5,05,000/- within 30 days of the receipt of the impugned order. In default the sum assured to be paid with 9 percent interest to be imposed till the date of realization. The original OP to pay Rs. 5,000/- more as compensation for mental harassment and cost of proceedings.
- Respondent Mr. Mohan Ramchandra Deshmukh to be referred as complainant and appellant M/s Cholamandalm MS General Insurance Company Ltd. to be referred as OP for the sake of convenience.
- Facts in brief as set out by the complainant in his complaint are as follows.
Complainant Mr. Mohan Deshmukh purchased four wheeler of TATA Indigo LSR Décor model from Jaika Motor for a total consideration of Rs. 5,86,869/- which was inclusive of registration and insurance charges on 14/06/2008. The complainant paid initial amount of Rs. 25,000/- and availed financial loan from Tata Motors Finance Company towards the balance amount. The complainant insured the said vehicle with the OP M/s Cholamandalm MS General Insurance Company by paying the requisite premium for the insured sum of Rs.5,05,000/-. The said insurance was for the period from 12/06/2008 to 11/06/2009. The insured vehicle met with an accident on 19/05/2009 at about 21.40 Hrs. when a tipper/truck running ahead of the complainants vehicle suddenly stopped and the driver of that vehicle failed to put on the indicator light. The complainants vehicle due to the sudden halt dashed with that vehicle from behind and incurred heavy damage. The complainant also was injured due to the said dash. The complainant immediately lodged FIR with Hingna Police Station. The Spot Panchanama was also recorded by police. It is the contention of the complainant that as he was severely injured, he was unable to move and therefore he informed an employee Mr. Yatin Umranikar of Jaika Motors about the accident and to inspect the vehicle which was lying at Hingna Police Station. Jaika Motors returned its vehicle in its premises till 3/6/2009 and submitted an estimate of Rs. 8,11,751.41/- towards the repairs of the accidented vehicle. As the estimate was in excess to the sum insured, the complainant claimed the insurance on total loss basis. It is further contended by the complainant that the OP repudiated the claim on 5/6/2009. However by letter dated 7/11/2009, the said OP expressed its readiness to pay Rs. 2,20,000/- towards the insurance claim. As the complainant sought for insurance claim on total loss basis and being aggrieved by the claim offered by the OP, the complainant alleging deficiency in service filed a consumer complaint and claimed Rs. 5,86,869/- being the cost of the vehicle which met with an accident in the very first year of purchase, with 18 percent interest, and Rs. 25,000/- as compensation for mental and physical harassment. - The OP resisted the complaint by filing its written version and denied all the adverse allegations of the complainant. The OP specifically submitted that insurance is a contract entered into by both the parties and therefore both the parties are bound by terms and conditions of the policy. As per terms and condition of the policy the claim has to be intimated in writing immediately upon the occurrence of any accidental loss or damage. In the present case, undisputedly the accident occurred on 19/5/2009 and the intimation was given to the OP on 5/6/2009 that is after a delay of almost 15 days. The OP further submitted without prejudice that the surveyor had assessed the loss after deducting the salvage etc. at Rs. 2,87,307.59/- and it is an established position of law that the surveyors assessment cannot be brushed aside without sufficient reasoning.
- The Forum after hearing both the sides and perusal of the documents filed on record, partly allowed the complaint and granted claim on total loss basis at Rs. 505000/- with 9 percent interest as aforesaid. The Forum did not accept the loss as per surveyor’s report as there was no affidavit of the surveyor filed on record in support of his report.
- Being aggrieved by the impugned order, the original OP M/s Cholamandalm MS General Insurance Company Ltd. has preferred this appeal mainly on the ground that the insurance claim cannot be allowed in breach of policy conditions as undisputedly the intimation of the accident claim was given after a delay of about 15 days and repair work was already carried out by the repairer without informing the appellant and hence no opportunity was given to the appellant to conduct the spot survey of the vehicle.
- We heard counsel for both the sides and the perused written notes of arguments filed by both the parties, copy of the complaint, written version and documents filed on record by both the parties. The facts about insurance cover of the vehicle, the sum insured under the policy, the period of insurance, and date of accident are not disputed. The intimation given to the appellant by the respondent is either 4/6/2009 or 5/6/2009. The repudiation letter dated 5/6/2009 issued by the appellant, and letter dated 7/11/2009 issued by the appellant to the respondent show date of intimation of accident claim as 4/6/2009 and the written version filed by the appellant to the consumer complaint shows the date of intimation of the accident claim as 5/6/2009. Though, there is valid variation in the date of intimation, the only inference that can be drawn is that the intimation was given by the respondent after the delay of 15 to 16 days. The date of accident which is 19/5/2009 is not disputed. The surveyor’s report, nowhere reflects that the surveyor could not assess the liability as he did not get an opportunity so as to survey the vehicle and assess the loss. On the contrary the surveyor has assessed the net liability of the insurer after deduction of salvage of engine and body sharing at Rs. 2,87,307.59/-. The complainant has claimed insurance on total loss basis at Rs. 5,05,000/-. The respondent has also failed to bring on record any evidence to show that the damage caused to the vehicle due to the accident was irreparable and therefore he is entitled to the sum insured on total loss basis. The complainant in the consumer complaint has pleaded insurance claim of Rs. 5,05,000/- on total loss basis while in the prayer clause of the same complaint has sought for an amount of Rs. 5,86,869/- as the insured vehicle met with the accident in the very first year of purchase of the vehicle. In view of these contradiction it cannot be accepted that the complainant has established his claim at Rs. 5,05,000/- on total loss basis.
- The impugned order allowing the consumer complaint on total loss basis is unsustainable in law. There is no evidence on record to challenge the surveyor’s report. Therefore we are of the reasoned opinion that the appeal deserves to be partly allowed and the liability assessed by the surveyor at Rs. 2,87,307.59/- deserves to be accepted. For the foregoing reason, the appeal is to be partly allowed and thus we proceed to pass the following order.
ORDER - Appeal is partly allowed.
- Clause 2 of the impugned order is modified and substituted as,
The opposite party (O.P.) to pay the complainant Rs. 2,87,307.59/- as per the surveyor’s report with 9 percent per annum interest to be imposed from the date of filing of the complaint that is 2/12/2009 till its realization by the complainant. - Rest of the impugned order is maintained.
- No order as to costs.
- Copy of order be furnished to both the parties, free of cost.
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