FA 954  of 2009  against C.C. 225/2008, Dist. Forum-I, Hyderabad      

Between:

M/s. Ennar Marketing

Rep. by  its Proprietor

Rajesh Agarwal,

S/o. Radhe Shyam Agarwal

Business at 19-2-211/E/3

Ramnaspura,

Lane Beside Shail Weigh Bridge

Near Zoo Park, Bahadurpura

Hyderabad.                                                           ***                           Appellant/

          .                                                                                       Complainant

                                                                   And

ICICI Lombard General Insurance Company Ltd.

Rep. by its Managing Director

301, 3^rd Floor, Bhuvana Towers

91, S.D. Road,

Secunderabad-500 025.                              ***                         Respondent/

                                                                                                Op.  

Counsel for the Appellant:                          M/s.  Shyam Agarwal

Counsel for the Respondent:                      M/s. Katta Laxmi Prasad                           

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

      SMT. M. SHREESHA, MEMBER

   &

                                    SRI R. L. NARASIMHA RAO, MEMBER

MONDAY, THIS THE EIGHTEENTH DAY OF JULY  TWO THOUSAND ELVEN

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President)

***

1)                 Appellant is unsuccessful complainant.

2)                 The case of the complainant in brief is that   he got his car insured with the  respondent insurance company  for a sum of Rs. 3,55,488/- commencing from 28.12.2006 to 27.12.2007.  While so on  9.8.2007  at about  8.30 hours near  Malkapuram of Nalgonda district it met with accident.  The said fact was informed to the insurance company.  A surveyor was deputed.

 He inspected the vehicle, and suggested for repairs by sending it to an authorised service centre though it was beyond scope of repairs.   Accordingly it was shifted to  M/s. Acer Motors, an authorised  Maruti Service Centre, Secunderabad.  It has estimated at Rs. 4,23,112.03 ps.  Again service estimate was done  and as per the estimate  an amount of Rs. 4,22,628.52  was noted for repairs.    Since the repair charges  were more than the price of the vehicle  he sought  the same to be treated as  total loss.  However, the insurance company by its letter dt.  22.10.2007 directed him to get the repair started and submit the claim.   The insurance company did not even choose to bestow  its attention and it was a routine letter.   After issuing notice he filed the complaint claiming  Rs. 3,55,488/- with interest @ 24% p.a., together with compensation of Rs. 1 lakh for mental agony and Rs. 10,000/- towards legal expenses. 

3)                 The insurance company resisted the case.  It alleged that the complainant did not give any police complaint or  informed as to the driver who drove the vehicle.    He did not file the driving license of the driver.    There was no incident wherein the car was damaged beyond repair.   The complainant must have damaged his vehicle wantonly in order to claim compensation.    By its letters dt. 15.10.2007, 22.10.2007 and 21.12.2007   it requested the complainant to carry out the repairs and submit relevant documents for processing the claim.  He did not carry out the repairs as requested.  He kept it  in the workshop for more than three years  resulting in damage.  No expert opinion has been taken to state that the car could not be repaired.   As per the surveyor’s estimate the vehicle was repairable, and therefore directed him to get it repaired in an authorised workshop.  He did not initiate any repairs.   There is negligence on the part of complainant, and therefore it prayed for dismissal of the complaint with costs.

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A14 marked while   the respondent  insurance company filed the affidavit evidence of its  Manager (Legal)  and did not file any documents.

5)                 The Dist. Forum after considering the evidence placed on record opined that the complainant did  not  intimate that his car met with accident  by issuing complaint to the police  nor filed photographs showing the condition of the car.   The complainant did not disclose the particulars of the driver and whether he was having valid driving license to drive the vehicle in the light of policy conditions.   Since the complainant could not prove as to how the accident took place, non-settlement of the claim by the insurance company does not amount to deficiency in service, and therefore dismissed the complaint.

6)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   It should have noticed that a  surveyor had categorically noted the damages.  When the surveyor authorised him to get the repairs  by an authorised workshop, and in view of the fact that it exceeded the value of the car, he was insisting  to settle the claim on total loss basis.    The insurance company never raised any dispute in regard to  accident, and therefore   he was entitled to entire amount covered under the policy, and therefore he prayed that the complaint be allowed.

7)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the car belonging to the complainant was insured for a sum of Rs. 3,55,488/- commencing from 28.12.2006 to 27.12.2007.   During existence of the policy  it met  with an accident on  9.8.2007.   When the fact was intimated  the respondent insurance company appointed a surveyor.   When the insurance company was not settling the claim  he requested by his letters Ex. A8 dt.  16.10.2007, Ex. A9 dt. 18.10.2007 to settle the claim.    The insurance company by its letter Ex. A10 dt.  22.10.2007  informed the complainant among other things:

  “ As per our surveyor  report vehicle is repairable hence authorise  workshop to start the  repair as per  surveyor assessment.   Please submit them to us at the below mentioned address within 15 days from the date of issue of this letter.     At ICICI Lombard we are always at your service.   If you have any questions, you are welcome to write to us at the address given, quoting the reference number HYD/MTRCLM/3531/2007.   We will be glad to response with assistance.

It is to be noted herein that the insurance company did not furnish a copy of surveyor’s report  to the complainant nor filed before  the Dist. Forum in order to know whether the surveyor  has  assessed the loss,   and if  we may say so,   to what amount.   While so,  the insurance company was insisting to  get the car repaired, and submit the bills, the complainant right from the beginning  asserting  that the estimate made by  repairer  M/s. Acer Motors  was beyond the cost of the price of the vehicle and therefore  to treat it as total loss.   Despite the said submission the insurance company did not respond.   All through  the insurance company was  insisting  that ‘we are always at his  service.  If your have any questions, you are welcome to write to us at the address given, quoting the  reference number HYD/MTRCLM/3531/2007.   We will be glad to respond with assistance.  Looking forward to your co-operation in sending us the pending documents  at the earliest.” (vide Ex. A10).   

9)                When the complainant was maintaining that the repair  charges  would exceed  the cost of the car,   the insurance company by issuing   Ex. A12 dt. 21.12.2007  informed that “ As per our surveyor  report vehicle is repairable hence authorise  workshop to start the  repair as per  surveyor assessment.   Please submit them to us at the below mentioned address within 15 days from the date of issue of this letter.”    Except stating it did not file the surveyor’s report.  Obviously vexed with conduct   of the insurance company  the complainant has issued legal notice Ex. A13 dt. 31.12.2007  informing the insurance company that the estimate for repairs came to Rs. 4,22,628.52.  No reply was given despite the fact that the notice  was received under acknowledgment Ex. A14.    At no time, the insurance company raised the plea  that the complainant did not issue report to the police nor that the accident was  fake one  in order to make money.    For the first time  it raised this contention in the counter. 

10)              At the cost of repetition, we may state that the insurance company ought to have filed the report of the surveyor when it insisted that the surveyor informed that the vehicle was repairable, suppression of surveyor’s report assumes importance.     It is not as though surveyor was  appointed without recoursing to  any statute  or provisions  of   Insurance Act.   Having appointed a surveyor  and obtained a report it ought to have filed before the Dist. Forum in order to appreciate  the contention taken by the insurance company in this regard.    It is estopped from contending that  the complainant  had  to prove that there was accident  and that he had given police report  and therefore it was not liable to pay compensation.     The insurance company from the above letters undoubtedly assured the complainant that it would pay whatever be the charges. However, the complainant did  not intend to get it repaired  in view of the fact that estimate made by the repairer exceeded the cost of the car.  The insurance company cannot by taking irrelevant pleas deny its liability.    The insurance company is not innocent while addressing letters to the complainant.    It  did not disclose  as to what was the exact report of the surveyor or the amount assessed.   Obviously  it was waiting for an opportunity to repudiate the claim,   the moment,  the complainant gets his vehicle repaired on one ground or the other.    This conduct is evident from the counter filed by it when it had directed the complainant to prove issuance of police report, driving license etc. It is unfortunate that these insurance companies are acting queerly  in order to deny the just compensation. 

11)              We reiterate that it is not open for the insurance company having  directed the complainant to go ahead with repairs to turn round and put the complainant to prove that there was accident and that the driver was having valid driving license  etc.  Obviously that was the reason why it did not repudiate the claim which made the complainant to approach the Dist. Forum.  Unless the insurance company promise payment of  certain amount the complainant may not be able to go ahead with the repairs.    This conduct on the part of insurance company  is to be deprecated.    In the light of above evidence, we are of the  opinion that the complainant is entitled to the amount covered under the policy.   The insurance company can as well take the vehicle in order to recover its salvage value if any.  The complainant cannot be made liable for payment of demurrage charges  or the state in which  car remained with the repairer. 

12)              In the result the appeal is allowed setting aside the order of the Dist. Forum.   Consequently the complaint is allowed and the insurance company is directed to pay   Rs. 3,55,488/- with interest @ 6% p.a., from the date of complaint viz., from  18.3.2008 till the date of realization together with compensation of  Rs. 10,000/- and costs of Rs. 5,000/-.  Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

3)      ________________________________

 MEMBER          

       18/07/2011

*pnr

“UP LOAD – O.K.”