BEFORE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 52 OF 2016 AGAINST C.C.NO.210 OF 2014 DISTRICT CONSUMER FORUM-III HYDERABAD
Between
M/s Bajaj Allianz General Insurance Co., Ltd.,
Rep. by it’s Authorized Signatory,
IV Floor, North East Plaza Erranmanzil Circle,
Beside BMW Showroom, Hyderabad - 500 082.
Now rep. by its Authorized Signatory
Sri R.Lakshmi Narayana S/o Shankaraiah
Age: 38 years, Occ: Assistant Manager
Of the appellant company R/o IV Floor
NE Plaza Erramanzil Colony, Hyderabad
Appellant/opposite party
A N D
M.Shyam Prasad D/o Venkata Swamy
Aged about 40 years, Occ: Software Engineer
R/o H.No.41, Diamond Hills, Anjani Gardens
Poppalaguda, Hyderabad
Respondent/complainant
Counsel for the Appellant M/s MVR Suresh & Associates
Counsel for the Respondent Sri C.Vikram Chandra
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE TWENTY SEVENTH DAY OF APRIL
TWO THOUSAND SEVENTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the Opposite party aggrieved by the orders of District Consumer Forum-III, Hyderabad dated 21.01.2016 made in CC No.210 of 2014 in allowing the complaint and directing the Opposite party to pay the complainant a sum of Rs.4,88,104/- towards settlement of the claim together with compensation of Rs.25,000/- and costs of Rs.2,000/- within a period of one month.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the Complainant , is the owner of the vehicle bearing No.AP-09-AY 5285 FORD IKON FLAIR. He obtained a vehicle insurance policy No.OG-14-9906-1801-00002088, valid from 19.04.2013 to 18.04.2014. While so, on 11.05.2013 his vehicle met with an accident, resulting which the vehicle got completely damaged. The FIR was filed in Neradigonda, Police Station, Adilabad District. The event of the accident was intimated to opposite party on 11.05.2013 and the vehicle was moved to the authorized workshop at Balanagar, Hyderabad, who estimated costs of repairs at Rs.5,50,998/-. The insurer had appointed a surveyor, who estimated the costs for a sum of Rs.1,71,676/- and has excluded the costs of the body shell, whereas the workshop had estimated the costs of the body at Rs.1,77,426/-. It is further submitted that since the extent of damage to the body was in excess of 70%, it cannot be repaired and hence it had to be replaced. The fact was brought to the notice of the insurer but the opposite party insisted on repairing the body of the car. The Complainant submits that the insurer was unwilling to honour the motor claim to the extent of the expenses incurred even though he was eligible for the same as per the terms and conditions of the policy. It is submitted that since the costs of repairs as estimated by the authorized workshop of Ford is over and above the insured declared value, the claim of the Complainant should be treated as total loss, as per the terms and conditions of the policy. The Complainant alleges that the Opposite Party has unilaterally refused to consider the total loss and instead is relying only on the surveyor report which is baseless and in correct. The Opposite Party failed to pay even the IDV claim amount of Rs.4,88,104/-. The Complainant alleges deficiency in service by the Opposite Party. He got issued a legal notice dated 18-02-2014 but there has been no reply from them. Vexed with the attitude of the Opposite Party, the Complainant preferred the present complaint praying for a direction to honur the claim of the complainant i.e., the IDV value of Rs.4,88,104/- with interest @ 24% per annum together with damages of Rs.50,000/-.
4. The opposite party resisted the case and admitted that the Complainant had obtained the vehicle insurance policy valid from 19.04.2013 to 18.04.2014. It is also admitted that the vehicle met with an accident and that the surveyor was appointed immediately after the intimation of the claim; for the inspection of the vehicle and to ascertain the extent of loss. Based on the surveyor report, this Opposite Party observed that the claim is partial loss to the extent of Rs.1,65,565/-. Accordingly, this Opposite Party requested the Complainant to render consent for repairs, as per the surveyor report, the claim which shall be paid or on the other hand to opt for “Cash Loss” mode of settlement for an amount of Rs.1,24,144/- as full and final settlement, without having to insist upon repair bills. The said fact was intimated to the Complainant through several letters, dated 03.06.2013, 17.07.2013 and 20.07.2013. Further they had sent a letter, dated 08.08.2013 subsequently clarifying those parts which are fit for replacements and those which can be repaired. This Opposite Party denies any deficiency of service and contends that they were ready to settle the claim of the Complainant based on the surveyor’s report but the Complainant refused for the same and instead insisted on the settlement based on false and baseless estimated repairs, prepared by the workshop. The Opposite Party denies deficiency in service and pleads for a dismissal of the case.
5. During the course of enquiry before the District Forum, in order to prove his case, the Complainant filed his evidence affidavit and got Exs.A1 to A17 marked while on behalf of the opposite party, its Senior Executive Legal filed his evidence affidavit and got Exs.B1 to B4 marked.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.210 of 2014 by orders dated 21.01.2016 granting the reliefs, as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite party preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It is contended that the IRDA Surveyor report is important piece of evidence which cannot be brushed aside. The opposite party cannot go beyond the terms and conditions of the policy that the claim partial loss of the vehicle is only Rs.1,62,566/- which cannot even cross 50% of IDV.
8. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
9. It is an undisputed fact that the complainant is the owner of vehicle bearing No.AP-09-AY 5285 Ford Ikon Flair and got it insured for an IDV of Rs.4,88,104/- vide Ex. A1 being the value declared by him. During the period of policy, it met with an accident on 11.05.2013, within one month of commencement of the policy. Ex.A2 is the Panchanama issued by Neradigonda Police Station. The said accident was intimated to the opposite party and the car was taken to the authorized workshop at Balanagar, Hyderabad. The authorized service Centre estimated the damages at Rs. 5,50,998/-. The total value of the parts came to Rs. 4,48,582.70, labour charges at Rs. 1,02,416.14/-
10. The Surveyor & Loss assessor was deputed to estimate the damage and by his report dated 07.06.2013 Ex. B5 assessed the loss at Rs.1,62,566/-. The summary reads as follows:
Total Assessed Amount (Parts+Labour) 1,71,045.71
Salvage Amount 7,480.00
Compulsary Excess 1,000.—
Voluntary Excess 0
Addl/Imposed Excess 0
Depreciation Amount 85,599.1
Xxxx
Xxxx
Nett Asessed Amount (Parts+Labour) 1,62,566.00
11. Finally he recommended the insured may be paid Rs.1,62,566/- towards loss to his vehicle in the above said accident. However, the final discretion was left to the insurer. While considering the report of the surveyor who assessed the loss at Rs.1,62,566/- as against IDV of Rs. 4,88,104/-.
12. The issue now to be decided is whether the damage to the vehicle is as total loss or partial loss. It is the contention of the opposite party that the claim is partial loss and the surveyor assessed the loss to the extent of Rs.1,62,565/-. However, the assessment given by the workshop for Rs.5,50,998.84 exceeds the insured declared value of Rs.4,88,104/-. The complainant contended that the authorized workshop informed him that the body shell had been damaged to an extent of more than 70% and it cannot be repaired anymore and also ruled out any other repairs of the car cannot be made without the replacement of the body shell. On the other hand the opposite party insisted for repairing of the damaged body shell instead of replacing the same. According to the workshop estimation with regard to the cost of body shell it was Rs.1,77,426/-. Since the damage to the body was in excess of 70% then it has to be replaced with the new body shell.
13. It is true that survey report is an important document and cannot be brushed aside, but contract of insurance is more important where in terms and conditions of insurance policy are agreed between the parties and they are to be read as it is. The complainant has produced private car package policy along with terms, conditions and warranties for private car wherein, the policy condition is very clear that IDV shall be treated as market value throughout the policy period without any further depreciation for the purpose of total loss claims.
14. In view of the above condition, complainant is entitled for total loss amount which was agreed and decided by both sides i.e. Rs.,4.88,104/- throughout the policy period without any further depreciation. As per condition no.3 of policy, it is an option available with insurance company that in case of claims, the company may at its own option repair, reinstate or replace the vehicle. So reading this condition as it is, insurance company is supposed to replace the vehicle but certainly cannot offer the amount of replacement value of vehicle. If insurance company wants to pay the amount, then it has to offer the market value IDV of vehicle at Rs.4,88,104/- as agreed between the parties at the time of agreement.
15. The surveyor did not give any basis or data how he arrived cost of repairs at Rs.1,62,565/-. The Insurance Company having accepted the IDV of the vehicle at Rs.4,88,104, when it has taken policy, it is estopped from contending that the vehicle was in repairable condition. This is highly arbitrary way of assessing the repairs. This is denying the just claim of the insured. It has become a routine for the insurance surveyors, obviously at the behest of Insurance Company, to deny the just claim by adopting this procedure. The Supreme Court time and again observed that the insurer was bound by the value put by it. When a contention was raised that the insured has not let in any evidence to challenge the value put by the surveyor so as to substantiate the claim, it was held that it is not for the insured to produce evidence to prove that the surveyor’s report was on the lower side in the light of the fact that the price had already been put on by the insurer at the time of taking policy. The insurer was bound by the price put in the policy, vide Dharmendra Goel Vs. Oriental Insurance Company Limited reported in (2008) 8 SCC 279. In another decision of the Hon’ble Supreme Court in United India Insurance Co., Ltd., Vs Pushpalaya Prints 2004 CTJ 421 SC (CP), it was held that where there is an ambiguity in the contract of insurance, the view that is beneficial to the insured is to be preferred. When the surveyor could not furnish any material as to how he could estimate the cost of the repairs at Rs.1,62,565/- as against the estimate of authorized workshop at Rs.5,50,998/-, we are of the opinion that the Insurance Surveyor has deliberately over valued the vehicle and assessed at a lower amount in order to deny the claim of the complainant. Since the IDV is at Rs.4,88,104/- which is more than the cost of the repairs, we categorize the damage to the vehicle as total loss and the District Forum has rightly come to the conclusion by holding that the damage to the vehicle was total loss and awarded the IDV of Rs.4,88,000/-. We do not see any error either in appreciation of fact or law in this regard
16. Therefore the Dist. Forum was justified in awarding Rs. 4,88,104/- as per the policy conditions with compensation of Rs.25,000/- and costs of Rs. costs of Rs. 2,000/-. We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merit in the appeal. Hence, the point framed at para No.9, supra, is answered accordingly in favour of the respondent/complainant.
In the result the appeal is dismissed confirming the order of the District Forum-III, Hyderabad dated 21.01.2016 in CC No.210 of 2014. There is no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER
Dated: 27.04.2017
