Tamil Nadu

North Chennai

CC/67/2016

V.G.Jayakumar - Complainant(s)

Versus

M/s.Oriental Insurance - Opp.Party(s)

K.Varadha Kamaraj

18 Jan 2017

ORDER

                                                             Complaint presented on:  11.04.2016

                                                                Order pronounced on:  18.01.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 18^th DAY OF JANUARY 2017

 

C.C.NO.67/2016

 

Mr.V.G.Jayakumar,

Proprietor,

M/s. Sri Ganga Transport,

D-13, C.M.D.A. Truck Terminal,

Madhavaram,

Ponniammanmedu, P.O.,

Chennai – 600 110.

 

                                                                                      ..... Complainant

 

..Vs..

The Manager,

M/s. Oriental Insurance,

Company Limited,

Claims Service Centre,

‘Oriental House” II Floor,

No.115, Prakasam Salai,

Broadway, Chennai – 600 108.

                                                                                    ….opposite party

   Date of complaint                                      10.05.2016

   Counsel for Complainant                          : Mr.K.Varadha Kamaraj

   Counsel for opposite party                           : Ex - parte

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,     

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IS IN BRIEF:

          The Complainant owns a heavy goods carrying vehicle bearing registration No.AP 04 X 7645 and doing business in the name and style M/s Ganga Transport and Carrying Goods for various customers and thereby earns his livelihood from the business.  The Complainant had availed a valid Motor Insurance package policy from the Opposite Party bearing  number 411800/31/2014/6089, for the period commencing from 13.11.2013 to 12.11.2014, covering Motor 3^rd party Liability and Own Damage Risk  in respect of the heavy goods carrying vehicle bearing registration number AP04 x 7645 owned by the Complainant. The Insured Declared Value of the said vehicle was Rs.12,50,000/-  on the date of commencement of the policy of Insurance and a total sum of Rs.27,880/- was paid as premium for the said policy of Insurance. Subsequently, the Insured Declared value was further increased to Rs.2,50,000/- at the insistence of the Opposite Party,   a further sum of Rs.1,175/- was also paid as premium for the same.  The total Insured Declared Value of the vehicle was Rs.15,00,000/-.  On 18.08.2014, at about 8.00 p.m, while the Complainant’s heavy goods vehicle bearing registration number AP 04 x 7645, was carrying goods to Erode and was proceeding from Mysore towards Sakthi Road, second bend, due to heavy rains and bad road condition, the said vehicle capsized, resulting in grievous injuries to the driver and heavy damage to the said vehicle and the goods carried thereupon. A first information report was registered in Crime No.375 of 2014, at Sathyamangalam police station, in Erode District, on 20.08.2014 in respect of the alleged road traffic accident that occurred on 18.08.2014. The Motor Vehicle Inspector had inspected the said vehicle on 22.08.2014, at the unit office Sathyamangalam and had listed the following damages to the vehicle in his report as follows:

1. Front Cabin fully damaged,
2. Dash board damaged,
3. Steering assembly damaged,
4. Front windscreen both glass broken,
5. Rear door damaged/twisted,
6. Front axle damaged/bent,
7. Both spring assembly damaged,
8. Rear most outer tyre disc bend,
9. Both side driver door damaged,
10. Driver seat assembly damaged,
11. Front bumper left side damaged,
12. Left side head light assembly broken,
13. Front body left side broken/pressed,
14. Legal body, side body both sides and rear damaged/broken.

Subsequently a duly filled claim form was filed along with the detailed list from an Authorized dealer viz, Act India, Madavaram, Chennai 600 110, giving the cost of the parts to be replaced, repairs to be carried out and the other labour charges for the same, in all totaling more than a sum of Rs.15,00,000/-. The Opposite Party had appointed one M/s. Simax Surveyors, to assess the extent of damages to the vehicle and the surveyor had submitted a report dated 10.01.2015.  The Opposite Party by a letter dated 15^th of September 2015 had rejected the Plea to the Complainant to consider the claim on ‘total loss basis’ and had stated that the surveyor had worked out the claim only on ‘repair loss basis’, since claim does not qualify for ‘Total loss basis’ as per the policy conditions. The surveyor’s report showing net liability of the Opposite Party at just Rs.5,49,486/- after initial excess and salvage, is highly arbitrary and totally unjust. The surveyor’s Report of the Opposite Party does not indicate why only a sum of Rs.7,64,050/- alone is allowable, when the cost claimed is Rs.12,16,310/-. The basis on which 35% and 50% depreciation has been computed has also not been disclosed. The Complainant was forced to send a legal notice dated 10.01.2016, to the Opposite Party and the Opposite Party had sent a reply dated 09.02.2016. Since the Opposite Party repudiated the claim made by the Complainant for total loss, the Opposite Party had committed deficiency in service and caused mental agony to the Complainant. Hence the Complainant filed this Complaint for the claim of a sum of Rs.15,00,000/- being the insured declared value with 18% interest and also compensation for deficiency in service and mental agony and loss of business with cost of the Complaint.

          2. Though the Opposite Party received notice, he did not appear on 14.07.2016 and hence the Opposite Party called absent and set Ex-parte.

          3. The Complainant had filed his proof affidavit and document Ex.A1 to Ex.A9 was marked on the side of the Complainant.

          4. The Complainant had also come forward with written argument and oral argument of the Complainant was heard.

5. POINTS FOR CONSIDERATION

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

 

6. POINT NO :1

           The Complainant owns a heavy goods carrying vehicle bearing registration No.AP 04 X 7645 and doing business in the name and style M/s Ganga Transport and Carrying Goods for various customers and thereby earns for his livelihood from the business. The Complainant insured the lorry with the Opposite Party under Ex.A1  for the period 13.11.2013 to 12.11.2014 and the Opposite Party declared the insured declared value (IDV) for the said vehicle for Rs.12,50,000/- on the date of commencement of the policy.  On 18.08.2014 at about 8.00 p.m while the Complainant vehicle carrying goods  to Erode  and proceeding from Mysore towards Sakthi Road due to heavy rains and bad road condition, the vehicle was capsized, resulting the driver sustained injuries and the vehicle damaged heavily with goods.  A Complaint was lodged at Sathiyamangalam Police Station and they registered a case in Ex.A2 FIR and in crime No.375/2014.   The motor vehicle inspector also inspected the vehicle and issued Ex.A3 inspection report. The Complainant also obtained estimates for repairs various companies exceeding Rs.15,00,000/- and such estimates are marked Ex.A5 series.

          7. The Complainant made claim to the Opposite Party for a sum of Rs.15,00,000/-  for total loss of the vehicle  based on the Ex.A3 motor vehicle report and Ex.A5 series estimates. However the Opposite Party surveyor also inspected the vehicle and filed Ex.A7  survey report to the Opposite Party  and in the said report the surveyor quoted the liability of the insurer to a tune of Rs.5,49,486/-. Based on such report the Opposite Party rejected the claim of the Complainant and advised him to produce the final bills after carrying out the repairs and their surveyor to carry out re-inspection of the repaired vehicle and then his claim may be considered.

          8. The Opposite Party rejected the claim of the Complainant under Ex.A6 as follows:

We had given you a copy of the final survey report, of M/s. Simax Surveyors. The Surveyor had clearly and categorically worked out the claim on Repair loss basis only, allowing all the parts damaged and Labour component for the same. As the vehicle does not qualify for Total Loss, as per policy conditions, you are advised to repair the vehicle.

You are advised to produce the final bills, for repairs carried out, and the surveyor shall carry out re-inspection of the repaired vehicle with the salvage parts replaced by you. Kindly get in touch with the final surveyor for re inspection of the vehicle after repairs.

9. The motor vehicle inspector after inspection he had noted the damages sustained by the vehicle as follows:

1. Front Cabin fully damaged,
2. Dash board damaged,
3. Steering assembly damaged,
4. Front windscreen both glass broken,
5. Rear door damaged/twisted,
6. Front axle damaged/bent,
7. Both spring assembly damaged,
8. Rear most outer tyre disc bend,
9. Both side driver door damaged,
10. Driver seat assembly damaged,
11. Front bumper left side damaged,
12. Left side head light assembly broken,
13. Front body left side broken/pressed,
14. Legal body, side body both sides and rear damaged/broken.

The Complainant filed  Ex.A5 series documents estimates for repair obtained from the Sri Mahalakshmi body building works for a sum of Rs.2,80,760/-, Act India for Rs.1,72,000/- for complete cabin body building and another sum of Rs.11,20,550/- totally comes to more than  Rs.15 lakhs. The Act India estimates reveals  that for engine long block  ASSY repairs  alone estimated for Rs.1,98,000/- . The Opposite Party surveyor noted in his Ex.A7 estimated for the engine long block ASSY the very same amount of Rs.1,98,000/- quoted by the Act India Company. The surveyor also gave estimate for Rs.14,52,310/- in his  report . Hence, more or less the estimate for repairs given by the surveyor tallies with the estimate obtained by the Complainant. The damaged places mentioned in the motor vehicle inspector report also tallies with surveyor report and the estimates obtained by the Complainant for repair. The entire vehicle front and back portion and side portion and including engine to be replaced as per the surveyor report and estimates for repair produced by the Complainant. Therefore as contended by the Complainant the, his claim for the total loss of value of vehicle is sustainable and failure to honour the claim and rejected by the Opposite Party proves that the Opposite Party had committed deficiency in service.

10. POINT NO: 2

The Complainant claimed a sum of Rs.15,00,000/- being the insured declared value in the Complaint. However, the insured’s declared value (IDV) in Ex.A1 policy given as Rs.12,50,000/-. Therefore, the Complainant is entitled for such IDV value amount of Rs.12,50,000/- from the Opposite Party. The Complainant prayed in the Complaint for compensation for deficiency in service, mental agony and loss of business. There is no proof filed by the Complainant what was his earning before accident and how much he sustained loss was not pleaded in the Complaint. Therefore, for the claim loss of business the Complainant is not entitled any amount. The mental agony is only a resultant act of deficiency in service committed by the Opposite Party. Hence for such mental agony it would be appropriate to order a sum of Rs.10,000/-towards compensation for mental agony besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.12,50,000/- (Rupees twelve  lakhs and fifty thousand only) towards the IDV value  of the vehicle   to the Complainant and also to pay a sum of Rs. 10,000/- (Rupees ten  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of other relief is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 18^th   day of January 2017.

 

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated  NIL             Policy of Insurance

 

Ex.A2 dated 20.08.2014  FIR in respect of the alleged road traffic accident

 

Ex.A3 dated NIL              Report of the Motor Vehicle Inspector

 

Ex.A4 dated NIL              Records of the vehicle AP 04 x 7645

 

Ex.A5 dated 15.10.2014            Cost of damages to the Motor Vehicle submitted to the

                                            Opposite Party

 

Ex.A6 dated 15.09.2015            Letter of the Opposite Party dated 15^th Sept. 2015

 

Ex.A7 dated 10.01.2015            Survey Report of the Opposite Party

 

Ex.A8 dated 10.01.2016            Legal Notice sent by the Complainant to the Opposite

                                            Party

 

Ex.A9 dated 09.02.2016            Reply notice sent by the Opposite Party to the

                                            Complainant

 

 

 

MEMBER – II                                                               PRESIDENT