Kerala

StateCommission

A/14/523

SREEKANDA KURUP - Complainant(s)

Versus

M/S ORIENTAL INSURANCE COMPANY LTD - Opp.Party(s)

SAJI S L

22 Jan 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NO.523/14

JUDGMENT DTD:22/01/2016

(Appeal filed against the order in CC.No.132/11 the file of CDRF, Kollam, order dated : 15.07.2014)

 

PRESENT

 

SHRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

 

 SMT. SANTHAMMA THOMAS     : MEMBER

 

APPELLANT

 

          Sreekanda Kurup,

          S/o. Chandran Pillai, Residing at ‘Sree Manj’,

          Kulathoorkonam, Puthenkulam P.O.,

          Kollam.

 

          (By Adv: Sri.Saji. S.L)

 

                                                                                                Vs.

 

RESPONDENT

 

          M/s. Oriental Insurance Company Ltd.,

          Divisional Office, Kollam – 691001

 

          (By Adv: Sri. Manikantan Nair)

 

JUDGMENT

 

SHRI.K.CHANDRADAS NADAR   : JUDICIAL MEMBER

          Complainant in CC No.132/2011 in the CDRF, Kollam, is the appellant.  The appellant is the registered owner of tourist bus bearing Registration No. KL 05 R 6009.  It is alleged in the complaint that he purchased the 2004 model vehicle by availing financial assistance of Rs.7 lakhs.  The market value of the vehicle was Rs.12 lakhs.  But the vehicle was insured for a sum of Rs.3.5 lakhs on the advice of an insurance adviser of the opposite party.  On 27/03/2011 the vehicle met with an accident within the limits of Mangalapuram Police Station, Thiruvananthapuram district causing death of two persons.   The vehicle was damaged.  The accident was reported to the opposite party.   At their request the damaged vehicle was shifted to Kailas Automobiles, Kollam, incurring expenditure of Rs.13,000/-.  Kailas automobiles the authorised workshop prepared an estimate of Rs.2,41,100/- for repairing the vehicle.  Apart from that labour charges etc. were assessed at Rs.1,21,207/-.  Thus the total damages estimated was Rs.3,62,307/-.   On the basis of the estimate the complainant submitted claim before the opposite party.  Thereafter the complainant approached the opposite party for giving approval for starting repair works.  They did not give any attention to the demand of the complainant.  The damaged vehicle is remaining idle in the workshop premises causing loss to the complainant The Divisional Manager of the opposite party orally informed the complainant that they were ready to pay the IDV amount of Rs.3.5 lakhs provided the vehicle is given to them.  The offer is ridiculous.  The total value of the vehicle is Rs.12 lakhs.  The opposite party is responsible for the loss of the complainant.  Since repudiation of the claim by the opposite party amounts to deficiency in service, the complainant approached the Consumer Forum.

          2.      In their version the opposite party / insurance company denied the allegation that the IDV of the vehicle was fixed on the advice of their advisor.   The policy was issued as per the request of the complainant and the information contained in the proposal form.  On 19/04/2011 the surveyor appointed by the opposite party had issued letter to the complainant intimating him that since the repair estimate was Rs.3,62,307/- and the sum insured was only Rs.3,50,000/-,  the claim would be settled on total loss basis only and requested the complainant to contact the insurer.   The surveyor submitted his detailed report on 27/04/2011.  The surveyor calculated the loss on repair basis as well as total loss basis and recommended to the opposite party that it may consider settlement of the claim on total loss basis for Rs.3,48,500/- after deducting policy excess of Rs.1,500/- .  There was no deficiency in service on the part of the opposite party. 

          3.      The Consumer Forum considered the oral evidence of the complainant and two witnesses of the opposite party and Exts.P1 to P12 and Exts.D1 to D6 marked on their side, and held that deficiency in service on the part of opposite party was not proved.   Hence the Consumer Forum dismissed the complaint.  The only question is whether there is any error in the findings of the Consumer Forum

          4.      There is no dispute that the vehicle of the appellant was insured with the opposite party for a sum of Rs.3.5 lakhs.   The allegation is that the vehicle was worth Rs.12 lakhs and IDV of the vehicle was reduced to Rs.3.5 lakhs to reduce the insurance premium and limit the liability of the opposite party.  By doing so the complainant availed the benefit of paying lesser premium and he cannot turn round and claim the alleged actual value of the vehicle, for which there is no evidence.  Admittedly, the vehicle met with an accident on 27/3/2011 and the vehicle was damaged and two of the passengers died.  It is not known whether their legal heirs or persons injured in the accident if any had approached Motor Accident Claims Tribunal for compensation.  Though Sec.165 of the Motor Vehicles Act does not make it mandatory for an owner of a vehicle to approach the Accident Claims Tribunal for claiming damages to the vehicle. Section 165 does not either bar the owners from approaching the Accident Claims Tribunal with such a claim.  No doubt insurance service falls within the purview of the Consumer Protection Act, but deficiency in service on the part of the insurer will have to be established.  The point is, a Consumer Forum is not the appellate authority over the decision of the insurance company granting or disallowing claims.   For deciding the actual damage an owner of the vehicle may have to approach the appropriate forum and not the Consumer Forum. 

          5.      In the present case, the insurance surveyor appointed by the opposite party filed his report and based on his report the opposite party offered to settle the claim on total loss basis for Rs.3,48,500/-.  The IDV of the vehicle was Rs.3.5 lakhs.  The damages estimated was more than 75% of the IDV.  Hence the offer was as per law.  The opposite party was not liable to compensate the appellant more than the IDV.  Really mere estimate of an authorised workshop cannot be the sole basis of offer to settle the claim.  The offer was obviously made accepting the recommendation of the insurance surveyor.  The opposite party was well within its power to do so and deficiency in service cannot be attributed because of that.

          6.      It is also pertinent to mention certain admissions of the complainant as PW1.  He admitted that the vehicle is infact repaired and now being used by him.  Apart from that Ext.P8 includes the loss to KSEB as the vehicle hit against an electric post but that much amount shown in Ext.P8 was not given to the KSEB.   Only Rs.13,000/- was paid. These admissions show that the complainant wanted to make unlawful enrichment from the opposite party. The pleadings and evidence available do not show any deficiency in service on the part of the opposite party.  The complaint was rightly dismissed by the Consumer forum.  The appeal is devoid of merit.

         

In the result, the appeal is dismissed with cost of Rs.5,000/-. 

 

K.CHANDRADAS NADAR   : JUDICIAL MEMBER

 

SANTHAMMA THOMAS                : MEMBER

 

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KERALA STATE CONSUMER

DISPUTES REDRESSAL COMMISSION

SISUVIHARLANE VAZHUTHACADU

 THIRUVANANTHAPURAM

 

APPEAL NO.523/14

JUDGMENT DTD:22/01/2016

 

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