BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 9^th August 2010

COMPLAINT NO.15/2010

(Admitted on 08.01.2010)

 PRESENT:              1. Smt. Asha Shetty, President

                                                                                     2.Smt.Lavanya M. Rai, Member                                 

BETWEEN:

Sri. Nithin J. Shetty,

Aged 47 years,

So. J.D. Shetty,

Chartered Accountant,

Violet Complex, S.C.S. Hospital Road,

Balmatta, Mangalore 02.          …….. COMPLAINANT

(Advocate for the Complainant: Sri. Anantha Krishna Udupa).

          VERSUS

Ms. United India Insurance Co. Ltd.,

Saldana Building, Bridge Road,

Balmatta, Mangalore.

Rep. by its Divisional Manager.      ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.K.Arun Kumar)

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The Complainant submits that, he is the registered owner of the vehicle bearing No.KA 19-Z-1771 which is insured with the Opposite Party under the policy No.070803/31/08/01/00005170 and the period of the policy is from 21.02.2009 to 20.02.2010. 

It is stated that, the above said vehicle met with an accident on 21.06.2009, wherein, the vehicle was extensively damaged and the Complainant immediately informed the Opposite Party and submitted the claim form on 22.06.2009.  The vehicle was kept in M/s. United Toyota Mangalore i.e., authorized repairer, after inspection submitted the report and the Complainant got the necessary repairs done to the vehicle and incurred an expenditure of Rs.83,050/-.  On completion of the repairs, the Complainant informed the Opposite Party to verify the repair work and thereafter the Opposite Party informed the Complainant that they would reimburse only Rs.46,400/- and asked the Complainant to execute an affidavit for satisfying the said amount.  The Complainant vide a letter dated 21.08.2009 rejected the claim and expressed his dissatisfaction and contended that the Opposite Party not considered his claim which amounts to deficiency and hence the above complaint is filed by the Complainant before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.83,050/- for the expenses incurred along with interest at 18% p.a. and also claimed Rs.25,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the policy and the coverage of the policy but it is contended that the Surveyor deputed in this case assessed the loss for replacement of the spare parts after applying the depreciation at 10% and 50% and considered Rs.28,255.95 and labour charges assessed Rs.22,911.62 and less policy excess Rs.1,000/- and total considered Rs.49,911.57.  It is stated that, the Complainant had not informed the alleged accident to the police authority immediately after the accident and contended that the Complainant failed to adhere to the terms of the policy and the claim is subjected to penalty. 

          It is further stated that, the Surveyor appointed in this claim assessed the loss of Rs.50,911.57 and submitted the report on 14.07.2009 and assessed at Rs.49,911.57 and it is stated that the Company is necessitated to impose penalty of Rs.3,511.57 and accordingly the same has been deducted from the claim amount and the settlement was made for Rs.46,400/-, the discharge voucher was sent on 06.08.2009 but the same was not returned.  It is further stated that, the claim is usually settled on the basis of the Surveyor’s report and the Opposite Party was informed and agreed to settle the claim and there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

4.         In support of the complaint, Sri.Nithin J. Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C8 were marked for the Complainant as listed in the annexure.   One Sri.P.Venkataprasad (RW1), Administrative Officer of the Opposite Party and one Sri.M.Rajaram Rao (RW2) – Surveyor and Loss Assessor filed counter affidavits and answered the interrogatories served on them.  Ex R1 to R4 were marked for the Opposite Party as listed in the annexure.   The Complainant produced notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The facts which are not in dispute is that, the Complainant is the registered owner of the vehicle bearing No.KA-19-Z-1771 which is insured with the Opposite Party as per policy No.070803/31/ 08/01/00005170, the said policy is valid from 21.2.2009 to 20.2.2010.  It is also admitted that, the above said vehicle met with an accident on 21.6.2009 and was extensively damaged.  The above said accident took place within the valid period of policy coverage (as per Ex C7). 

Now the point in dispute between the parties before this forum is that, the Complainant contended that, the above said vehicle met with an accident on the alleged day and extensively damaged and thereafter the vehicle was kept in M/s. United Toyota Mangalore for repair and the Surveyor conducted the inspection and got the necessary repairs to the vehicle and the Complainant spent Rs.83,050/- and the said repairs were necessary to get the vehicle to roadworthy condition and produced documents in support of his case.

On the other hand, the Opposite Party contended that, the date of accident of the vehicle was on 21.6.2009 and the Complainant informed the accident of his vehicle on 22.6.2009 and immediately the Opposite Party had deputed a surveyor and the surveyor inspected and assessed the damage for Rs.50,911.57 and Rs.1,000/- was deducted towards the compulsory excess.  And further the Opposite Party took a contention that, the Complainant has failed to report the accident to the police and thus he has violated one of the policy conditions and it is necessitated to impose a penalty of Rs.3,111.57 and accordingly the settlement was made and discharge voucher was sent but the Complainant was not returned the said voucher and further raised a contention that, it is a public institution and public money is utilized in settlement of the claim etc. etc. 

Both the parties filed evidence by way of affidavit and produced documents.  The Opposite Party Company stated that, the loss as assessed by the surveyor is of Rs.49,911.57 after all depreciation and policy excess. And further contended that, Rs.3,511/- imposed as penalty.  It is also stated that, an amount of Rs.46,400/- is allowed and the same has been honoured on the basis of surveyor’s report. 

We have examined the Survey report i.e., Ex R1 produced by the Opposite Party.  The Ex R1 dated 12.7.2009 issued by Mr.M.Rajaram Rao, Insurance Surveyor and Loss Assessor put an endorsement against the parts described under the heading “Assessment of Loss”, certain parts are deleted by stating that some parts are not involved, intact, repairable and repeated.  Accordingly the labour charges also recommended and assessed by the surveyor.  We are very sorry to observe that, the surveyor has spelt out a reason for deleting the parts in his report.  The proper explanation was shown in his report. 

          No doubt, the argument filed by the Opposite Party Company that the surveyor being an expert, his opinion is final on the subject which needs to be accepted by us.  Invariably the Insurance Companies at the time of settlement of the claims take shelter of the report of the surveyors taking a plea that they are experts and that whatever they have suggested is the last and final word.  In fact the surveyors are neither experts nor the opinion recorded by them in their reports are final and binding on the insured.  Whenever the surveyor makes an observation in his report should be supported by a sufficient reason and explanation why the parts are deleted and what is the basis for disallowing the labour charges etc. etc.  In the instant case, we have observed that, the surveyor made an observation under the caption ‘parts deleted’ giving reason that the same is not involved and some parts are intact and some parts are repairable.  When that being the case, the option left open to the Complainant to disprove/ contradict the surveyors opinion as far as deleted parts and other charges are concerned.  The Complainant ought to have examine the repairer, who is the best witness to contradict the deleted spare parts observed by the Surveyor.  Except the oral assertion, nothing has been attempted by the Complainant to contradict the surveyor’s report.  In the absence of the same, we hold that the surveyor’s report is the best piece of evidence available on record to consider the claim of the Complainant.  As per the Surveyor’s report, the surveyor after applying the depreciation as per the policy condition and also deducted the policy excess of Rs.1,000/- and arrived a net loss at Rs.49,911.57 which is acceptable and we are agreeing with the Surveyor’s report.

          As far as the deduction of Rs.3,511/- i.e., penalty imposed by the Opposite Party company is not acceptable because we have noted that, it is not the case of the Opposite Party that the vehicle not insured with the Opposite Party company.  The Complainant had got his vehicle insured with a view to get himself indemnified in a case of a mishap/accident and not for being dragged to litigation.  It is not the case of the Opposite Party that, the accident was the handy work of the Complainant.  Once the accident is admitted and agreed to settle the claim the question of imposing penalty by the Opposite Party Company does not arise and the deduction of Rs.3,511.57 made by the Opposite Party Company is not justifiable.  Under that circumstances, we hold that the Opposite Party shall pay Rs.49,911.57 as assessed by the Surveyor in this case to the Complainant. 

          In view of the above stated reasons, we hold that the Opposite Party committed deficiency by not allowing the amount assessed by the Surveyor i.e., Rs.49,911.57 to the Complainant.  Therefore, we direct the Opposite Party i.e., United India Insurance Co. Limited represented by its Divisional Manager to pay Rs.49,911.57 to the Complainant along with interest at 12% p.a. from the date of accident till the date of payment and also pay Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                          

ORDER

          The complaint is partly allowed.  Opposite Party i.e., United India Insurance Co. Limited represented by its Divisional Manager is hereby directed to pay Rs.49,911.57 (Rupees forty nine thousand nine hundred eleven and paise fifty seven only) to the Complainant along with interest at 12% p.a. from the date of accident till the date of payment and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9^th day of August 2010.)

          PRESIDENT                                     MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.Nithin J. Shetty – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 15.09.2009: Lawyer’s notice issued to the O.P.

Ex C2 – 22.09.2009: Acknowledgement card.

Ex C3 – 21.08.2009: Letter sent by the Complainant to the Opposite Party.

Ex C4 – 03.09.2009: Reply of the Opposite Party to the above letter.

Ex C5 – 02.07.2009: Tax Invoice for Rs.83,050/- issued by United Toyota United Cars (P) Ltd.

Ex C6 – 02.07.2009: Receipt issued by United Cars (P) Ltd.

Ex C7 -           : Copy of the Private Car Package Policy.

Ex C8 -           : Settlement intimation voucher for Rs.46,400/-.

Witnesses examined on behalf of the Opposite Party:

RW1 – Sri.P.Venkataprasad, Administrative Officer of the O.P.

RW2 – Sri.M.Rajaram Rao  – Surveyor and Loss Assessor.

Documents produced on behalf of the Opposite Party:    

Ex R1 – 12.07.2009: Survey report of Mr.M.Rajaram Rao.

Ex R2 -                : Photographs of accident vehicle taken by the Surveyor (4 in numbers).

Ex R3 -                 : Certified copy of the policy No.070803/ 31/08/01/00005170 for the period from 21.02.2009 to 20.02.2010 for Rs.6,75,000/-.

Ex R4 -                : Claim form submitted by the Complainant.

Documents produced on behalf of the Opposite Party:

1. Copy of the licence No.11291/05-10/EX27/08/2010 dated 01.08.2005 issued by IRDA to Mr.Rajaram.
2. Invoice dated 02.07.2009 of United Toyota (P) Ltd., for Rs.83,050/-.
3. Receipt No.13993 dated 02.07.2009 of United Cars (P) Ltd., Mangalore.

Dated:09.08.2010                            PRESIDENT