BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the day of 27th day of October 2011 Filed on : 10/09/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No. 488/2009
Between
Philip Zacharias, : Complainant
S/o. late V.P. Scaria, (By Adv. George Cherian
Vellackal house, Kuninji. P.O., Karippaparambil, H.B. 48,
Purapuzha, Thodupuzha, Panampilly Nagar,
Idukki – 685 583. Kochi-6)
And
1. M/s. Reliance General Insurance : Opposite parties
Co. Ltd., KL/3599, 4th Floor, (1st O.P. by adv. Saji Issac)
Elizabeth Alexander, 311-HB Flat, Panampilly Nagar,
Memorial Building, Cochin-11)
Shanmugham road,
Marine Drive, Kochi.
Rep. by its Branch Manager.
2. M/s. R.F. Motors (P) Ltd., (2nd O.P. absent)
Madakkathanam P.O.,
Achankavala,
via Thodupuzha-686 670,
rep. by its Branch Manager.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is the registered owner of Tata Indica Car bearing registration No. KL 38/2325. The vehicle was insured with the 1st opposite party for the period from 04-01-2008 to 03-01-2009. The insured declared value of the vehicle is Rs. 2,10,000/-. The facts while so the vehicle met with an accident on 16-08-2008. The vehicle was entrusted with the 2nd opposite party on 19-08-2008 for its repairs. The 2nd opposite party issued an initial estimate dated 24/08/2008 estimating the repair charges at Rs. 1,79,562.88. On 20-10-2008 the complainant instructed the 2nd opposite party not to cary out the repair works since they have not estimated the charges for repairs of engine block, gear box and painting. In the mean time the complainant caused a lawyer notice to the 1st opposite party to settle the claim of the complainant at total loss basis. The estimated accident repair charges for the complainant’s vehicle is Rs. 2,21,562.88 and the IDV of the vehicle is Rs. 2,10,000/-. Thus the complainant is before us seeking the following direction against the opposite parties.
i. To direct the 1st opposite party to pay Rs. 1,89,000/- as
compensation for the loss and damages suffered by the
complainant.
ii. To direct the 2nd opposite party to refund Rs. 10,000/- with
interest
iii. To direct the 2nd opposite party to pay Rs. 50,000/- as
compensation.
iv. To direct the opposite parties to pay costs of the
proceedings to the complainant.
2. The Version of the 1st opposite party
This complaint is not maintainable in this Forum, since the complainant has filed CC/283/09 which had been dismissed
on 16-12-2009 for default. The complainant did not intimate the accident to the 1st opposite party however commenced repair work without approval of the 1st opposite party. On receipt of the intimation on 19/08/2008 the 1st opposite party deputed an independent insurance surveyor and he assessed the damages of the vehicle to the tune of Rs. 1.3 lakhs as per the conditions of the policy. The claim can be considered as a total loss only if the aggregate cost of repair of the vehicle exceeds 75% of the IDV. So the claim of the complainant cannot be treated at a total loss basis. As per the observation of the surveyor the 1st opposite party had given an approval for repair of the vehicle on 30-08-2008. There is no deficiency in service on the part of the 1st opposite party.
3. In spite of service of notice from this Forum the 2nd opposite party for reasons unsustained does not appear. (which naturally calls for the considered attention of this Forum seemingly for the default.) The complainant was examined as PW1 and Exts. A1 to A14 were marked on his side. The witnesses for the 1st opposite party were examined as DWs 1 and 2. Ext. B1 was marked on their side. Heard the counsel for the complainant and the 1st opposite party.
4. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get a compensation of
Rs. 1,89,000/- from the 1st opposite party?
ii. Whether the complainant is entitled to get Rs. 10,000/- from
the 2nd opposite party?
iii. Whether the complainant is entitled to get a compensation of
Rs. 50,000/- from the 2nd opposite party?
iv. Costs of the proceedings
5. Points No i. Admittedly the complainant’s vehicle bearing registration No. KL-38 2325 was insured with the 1st opposite party vide Ext. A2 policy. It is also not in dispute that the surveyor of the 1st opposite party inspected the vehicle and prepared Ext. B1 survey report dated 29-09-2008. The surveyor who prepared Ext. B1 was examined as DW2. He assessed the damages at Rs. 1,31,045.11/-. Subsequently the complainant caused Ext. A9 letter to the 1st opposite party and the surveyor to assess the damages after the dismantling of the engine block , gear box and painting which they had failed to take note of primarily. However the 2nd opposite party in the meantime prepared. Ext. A5 estimate to re-open the engine block, gear box and painting. The further claim for the same as per Ext. A5 which has not been observed by the surveyor and admitted which does not sustain the arguments of the 1st opposite party squarely. So the 1st opposite party is liable to pay the expenses to be incurred by the complainant to repair the vehicle as per Ext. A5. The rule of law having been met squarely as per the Consumer Protection Act, we find that it is only to be allowed. In the above circumstances we are of the considered opinion that the 1st opposite party is contractually liable to pay the amounts assessed by the surveyor in Ext. B1 and the estimate prepared by the 2nd opposite party as per Ext. A5. In which case the amount would exceed 75% of the IDV as per Ext. A2 policy as per law. The extend admitted and allowed by law is sustained.
6. Point No. ii. Ext. A6 goes to show that the complainant has paid Rs. 10,000/-to the 2nd opposite party on 18-10-2008. He is entitled to get refund of the same. This prayer so. In view of the order above payer is allowed.
7. Point Nos. iii & iv. For the considered views above we order no compensation, however an exemplary costs of Rs. 1,000/- is awarded since the complainant has been put seemingly unnecessary litigation.
8. In the result, we allow the complaint and direct as follows:
i. The 1st opposite party shall pay the insurance claim of the complainant under total loss basis with interest @12% p.a. from the date of complaint till realization.
ii. The 2nd opposite party shall refund the amount as per Ext. A6 to the complainant together with interest @ 12% p.a. from the date of this complaint till realization.
iii. The 1st opposite party shall pay Rs. 1,000/- by way of costs of the proceedings to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order
Pronounced in the open Forum on this the 27th day of October 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
A1 : Certificate of registration
A2 : Copy of reliance private car policy
A3 : Copy of letter dt. 15-10-2008
A4 : Shippers copy
A5 : Copy of estimate report.
A6 : Receipt dt. 18-10-2008
A7 : Copy of letter dt. 20-10-08
A8 : Postal receipt
A9 : Copy of letter dt. 03-11-2008
A10 : Speed post receipt 04-11-2008
A11 : Copy of lawyer notice dt. 27-0-2009
A12 : A.D. card
A13 : A.D. card
A14 : Letter dt. 28-02-2009
Opposite party’s exhibits :
B1 : Copy of private and confidential Motor
(Final) survey report
Depositions:
PW1 : Philip Zacharias
DW1 : Rahul P.
DW2 : Binoy Mathew
