Sri. George Baby (President):
The complainant filed this complaint u/s 12 of the Consumer Protection Act 1986.
2. The Case of the complainant as follows:- The complainant is a Registered Owner of a car bearing registration No.KL-28-B-55. The complainant said vehicle was insured with the opposite party and the policy was valid from 08/02/2018 to 07/02/2019. The said policy was under the category of Bumper to Bumper or Nil depreciation policy. The vehicle was very adversely affected the flood occurred on 18/08/2018. After the proper intimation to the opposite party the complainant had repaired the vehicle at the authorised service centre and spent Rs. 5,20,100/- (Rupees Five Lakh Twenty Thousand One Hundred only). Thereafter the complainant had submitted a claim to the opposite party along with all relevant records to get the said sum of Rs. 5,20,100/-. But the opposite party had paid only an amount of Rs. 2,66,122/- Rupees Two Lakh Sixty Six Thousand One Hundred and Twenty Two only) to the complainant. On enquiry to revealed that said amount is after deducting the depreciation. The complainant contention is that the vehicle carries bumper to bumper policy and hence he is entitled to get the remaining amount of Rs. 2,53,978/- from the opposite party. The complainant alleged that the opposite party’s act is unfair and they committed clear deficiency in service. Because of the opposite party’s said acts the complainant suffered mental agony and financial loss. Hence this complaint.
3. This Forum entertained the complaint and issued notice to the opposite party. In duecourse the opposite parties appeared through the counsel and filed version. The opposite parties main contentions are as follows. The complaint is not maintainable either in law or on facts. The issuance of the policy is admitted. Immediately on receipt of the claim a surveyor was deputed to assess the loss. On the basis of the Surveyor’s report the opposite party had released an amount of Rs. 2,66,722/- to the complainant and he had accepted that amount without any protest. The complainant had not established any compelling circumstance to receive the amount. No element of coercion has been made to receive the amount and the complainant accepted the amount treating the same as full and final settlement of claim and hence the present complaint is not maintainable. The complainant vehicle was aged more than five years at the time of peril and also at the time of proposing the policy. The governing rule is that after five years the owner of the vehicle is not entitled to get any amount as nil depreciation benefit. The opposite party has not committed any deficiency in their service. Hence the opposite party pray for the dismissal of the complaint.
4. We peruse the complaint, version and records before us and framed the following issues for consideration.
- Whether the opposite party has committed any deficiency in service against the complainant?
- Regarding the reliefs and cost?
5. In order to prove the case of the complainant, the complainant had filed proof affidavit in lieu of his chief examination and he has been examined as PW1. Through the PW1 Ext. A1 to A3 were marked. Ext. B1 is marked from the side of the opposite party. Ext. A1 is the copy of the certificate of registration of the vehicle bearing reg. No.KL-28-B-55. Ext. A2 is the copy of insurance certificate issued in favour of vehicle No. KL-28-B-55. Ext. A3 is the copy of invoice dated: 05/11/2018 issued by Nippon Toyotta, Kochuveli, Trivandrum and Ext. B1 is the copy of the survey report prepared by Rajesh Kumar T.K. After the completion of evidence we heard both sides.
6. Point No.I and 2:- For the sake of convenience, we would like to consider Point No.1 and 2 together. The case of the complainant is that he is the registered owner of vehicle bearing Reg. No. KL-28-B-55 and that fact is proved through Ext. A1. The complainant said vehicle was insured with opposite party vide policy number 570602311710004224 and the period of insurance was from 08/02/2018 to 07/02/2019. The complainant contention is that the vehicle carries bumper to bumper policy or nil depreciation policy. Copy of the policy is marked as Ext. A2. In Ext. A2 it is clearly noted that “Nil Depreciation covered”. The complainant’s allegation is that the vehicle was adversely affected the flood occurred on 18/08/2018. For repairing of the vehicle the complainant had spent Rs.5,20,100/- and the same is proved through Ext. A3. These facts were not disputed by the opposite parties. The main contention of the opposite party is that the company had paid Rs. 2,66,122/- as the full and final settlement of the claim. The opposite party had not made any coercion to the complainant to accept the said amount. In this context it is pertinent to note that the opposite party has not made any sufficient explanation why the claim has limited to only Rs. 2,66,122/-. Instead the opposite party had contended that the complainant vehicle was aged more than five years at the time of peril and also at the time of proposing the policy. According to the governing rule that after five years the owner of the vehicle is not entitled to get any amount as nil deprecation benefits. On the basis of such contention we have anxiously gone through Ext. A2 in the entirety no such condition is mentioned in Ext.A2. From the perusal of Ext. A2 it is clear that it is a “Nil Depreciation” policy. The opposite party had no right to go beyond the scope of policy conditions. Certainly “Nil depreciation” policy offers complete coverage without factoring in depreciation and the insured is entitled to receive the entire cost from the insurer. The opposite party has never contended that the issued policy is not a bumper to bumper or nil depreciation policy. While we evaluating B1 survey report it is seen that the surveyor has assessed depreciation of certain items as 40% and 50% and deducted deprecation amount respectively comes to Rs. 44,981.68/- and Rs. 1,91,889.14/- as it is nil depreciation policy. As it is a nil depreciation policy the deduction of actual amount by way of depreciation is not at all justifiable. The opposite party had released the amount Rs. 2,66,122/- to the complainant after deducting the depreciation and the same is against the policy conditions and in the said circumstances we can easily inferred that the opposite party had committed clear deficiency in service towards the complainant and the complainant is entitled to get reliefs from this Forum and accordingly we found issues No. 1 and 2 in favour of the complainant.
7. In the result we pass the following order.
- The opposite party is directed to pay the deducted amount on the basis of Ext. B1 by way of depreciation i.e., Rs. 44,981.68 + 1,91,889.14 = 2,36,870/- (Rupees Two Lakhs Thirty Six Thousand Eight Hundred and Seventy only) to the complainant with 10% interest from the date of order onwards.
- The opposite party is directed to pay a cost of Rs. 2,500/- (Rupees Two Thousand Five Hundred only) to the complainant with 10% interest from the date of order onwards.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28th day of February, 2020 .
(Sd/-)
George Baby,
(President)
Smt. N. ShajithaBeevi (Member-I) : (Sd/-)
Sri.NishadThankappan (Member-II): (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1:C.I. Kuttappan.
Exhibits marked on the side of the complainant:
A1:Power of Attorney dated:13/06/2017.
A2: Copy of insurance certificate issued in favour of vehicle No. KL-28-B-55.
A3: Copy of invoice dated: 05/11/2018 issued by Nippon Toyotta, Kochuveli,
Trivandrum
Witness examined on the side of the opposite parties: Nil
Exhibits marked on the side of the opposite parties:
B1:Copy of the survey report prepared by Rajesh Kumar T.K
Copy to:- (1) Kuttappan C I,
Chirakkadavil (H), Puramattom P.O,
Mallappally, Pathanamthitta.
(2) The Divisional Manager,
National Insurance Co. Ltd., Kallumkathara Building,
1st Floor, Pathanamthitta – 689645.
(3) The Stock File.
