KERALA STATE CONSUMER  DISPUTES REDRESSALCOMMISSION,             VAZHUTHACADU, THIRUVANANTHAPURAM

                                                APPEAL NO. 20/2014

                                         ORDER DATED. 28-11-2018             

                   (Appeal filed against the order in cc.no. 480/2011, cdrf, Ernakulam)      

PRESENT:

HON’BLE JUSTICE  SRI.S.S.SATHEESA CHANDRAN: PRESIDENT

SRI. RANJIT. R                                                                 :MEMBER

APPELLANTS:

1. Kairali Ford Service Centre,

Authorised Service agent,

NH 47 Bye pass, Near Spices board,

Palarivattom, Kochi. 25

2. Kerala Cars Pvt Ltd,

Kairali ford service centre

MGF Building, M.C. Road,

Kottayam- 686 006.

(By Adv. George Cherian Karippaparambil )

RESPONDENTS:

1. Sri. M.T. Jayaprakash,

S/o Thankappan Nair M N,

Madathil Koickal,Payyanamon P.O,

Konni, Pathanamthitta, Pin. 689 692.

(By Adv. Hari. V)

2. M/s. Ford India Private ltd,

Ford Plant and corporate  office,

SP Koil post, Chengalpattu,

Pin. 603 204, Rep by Managing Director.

(By Adv. V.K. Mohan Kumar )

3. New India Assurance  Co.Ltd,

Divisional office, Kottakkal Arya Vydyasala

Building, M.G. Road, Kochi. 16         

                                                            O R D E R

. HON’BLE JUSTICE  SRI.S.S.SATHEESA CHANDRAN: PRESIDENT

           2^nd and 3^rd opposite parties in CC. No. 480/11 have filed this appeal challenging the order of the Consumer Disputes Redressal Forum,  Ernakulam directing them to pay jointly and severally a sum of                   Rs. 1,64,463.15 with compensation of Rs. 25,000/- to the complainant. The Forum below has also directed in its order 4^th opposite party, Insurance Company to pay a sum of Rs. 25,000/- to the complainant and that part of the order is not challenged by that opposite parties.  Complainant, whose vehicle met with an accident and suffered extensive damages, produced it before the 2^nd opposite party for repairs.  While the vehicle,  after preparation of an accident repair estimate,   was parked  in the workshop of the 2^nd opposite party, a fire occurred, and the workshop and   some other vehicles parked therein including the vehicle of complainant were destroyed   on    19-05-2011.  Pursuant there  to  damage to the vehicle of   complainant was assessed by the surveyor of the Insurance company   which  was the insurer  of the workshop as well.    Initially the value of the damaged vehicle of complainant was  assessed that Rs. 4,56,599.55 at salvage based,  but, later it was revised  and reassessed  at Rs. 5,56,599.55 with wreckage  value of Rs. 25,000/-.  An amount of Rs. 5,26,943/-  as  assessed by the insurance company as aforesaid,  it is stated,  was paid to the complainant during the pendency of the proceedings before the  lower forum by the 4^th opposite party company.  Complainant  persisted with the prosecution of the  claim contending that he had incurred additional expenses  by  installing additional features  to  the vehicle and also paying road tax for a period of 15 years to the Road Tax Authority.  The Forum below assessed the value of the vehicle taking its price at the time of purchase as  the bench mark,  and,  then calculating depreciation of such value for the period of 2 years at 15%.  On the basis of that calculation, the forum below assessed the market value of the vehicle immediately after the fire accident in the workshop at            Rs. 6,91,406.15.   Deducting the amount already paid by the  insurance company,   the Forum on the basis of the above calculation held that the opposite parties 3 and 4 are liable to pay further sum of Rs. 1,64,463.15 to the complainant as compensation for the damage sustained to his vehicle, with compensation of Rs. 25,000/-. Aggrieved by that order 2^nd and 3^rd opposite parties have preferred this appeal .

          (2) The  short question emerging for consideration in this appeal is whether the approach made by the lower forum in assessing the value of the vehicle to grand compensation to the complainant for the damage sustained to his vehicle in the fire accident is  in  consonance with the general principles  applicable for payment of compensation for  loss or damage caused by breach of contract or  by  tortious act of another.     The purchase value of the vehicle as and when it was purchased on 06-10-2009 was Rs. 8,13,419.00/.  The insured declared value of the vehicle under the policy entered with the 4^th opposite party insurance company, during this period the vehicle sustained damages and later got destroyed  in the fire while  kept in the workshop of the 2^nd opposite party,  admittedly, was only Rs. 5,26,943/-. The evidence produced in this case would show soon after the vehicle was brought to the workshop of the 2^nd opposite party an accident  repair estimate after inspection of  the vehicle was made and sum for  repair  was assessed as    Rs. 4,66.599.55.   That was done before the damage  of vehicle by fire.  Before approval  was given by the Insurance company the fire accident occurred in the workshop and the some vehicles  parked in the workshop  including  complainant’s vehicle were destroyed.    First of all,  it has to be taken note that where the I.D. Value of the vehicle was only  Rs. 5,26,943/- under the policy issued by the 4^th opposite party/Insurance Company in the event of damage and repair, of the estimate   prepared assessing damages  of the vehicle exceeded  more than 75% of its ID value it has to be viewed as a total wreckage and  the insurance company  is  liable to pay a compensation only in the   terms fixed   the policy ender.  It has also to be noted that if   restitution of the damaged vehicle, if it was not on account of fire accident,  but solely on  loss  caused  in the accident,  then also the terms of  the policy stipulate that  the sum  due has to be assessed effecting depreciation at the percentage applicable from the declared I.D. Value of the vehicle.  The principle underlying   the award of damages where a   party   sustains loss by reason of  breach of contract of  negligence of another party, is, so far as  possible, to replace him in the  same situation as before as if the   contract had been performed  of  the negligent act had no resulted causing of  any cause or damage.  Where the insured had declared the value of the vehicle  at Rs. 5,26,943/- for taking   policy for the vehicle from the 4^th opposite party/Insurance Company,  as  already pointed out if the  loss to the vehicle by way of fault or damages otherwise by  five  accident  in the workshop of the   3^rd opposite party, complainant could have obtained only  a   sum much less than  its  declared value after effecting percentage of   depreciation applicable in the terms of the policy.  Simply because  the damaged vehicle after being parked  in the workshop was totally damaged  in fire accident, complainant will not  be in a better position to claim more   amount than what was stated as the declared value of the vehicle.   The lower Forum  misappreciating  the facts  and circumstances  involved in the case with reference to the law applicable and it has proceeded with the  erroneous calculation that overlooking the  insured  value of the vehicle  under the policy  for the reason that the damaged  vehicle was totally destroyed  in the fire accident that took place in the workshop of the 3^rd opposite party. There is no scope for calculating the compensation with reference to the purchase value of the vehicle   giving effect to 15% depreciation for the period,  two years as followed by the lower forum  in the  case  where the insured declared value of the vehicle at the time of taking the policy  from the 4^th opposite party  was only  Rs. 5,26,943/-.  The  claim should be   assessed  with that value  as the   bench mark that alone.  The  insurance company has paid Rs. 5,26,943/- to the complainant after  effecting deducting  of wreckage value of Rs. 25,000/- and also Rs. 5,000/-  as  policy access.   Needless to point out that under terms of the policy compensation is payable  from the IDV value of the vehicle subject to the deductions as are applicable as per the terms of the policy.  The maximum amount  in case of  total wreckage is  only 75% ID value of the vehicle .  Viewed in that   angle  much more amount has already been paid by the Insurance Company .  We find further claim canvased by the complainant casting  liability on the 2^nd and 3^rd opposite parties for the reason the insured vehicle was totally damaged in the fire accident that take place in the workshop is devoid of any merit.   Though we have expressed  the view that the   complainant has been given more compensation that provided  under the terms of  the policy by the Insurance Company, we are not interfering  with the order of the Forum directing the Insurance company to pay Rs. 25,000/- as wreckage  value   since no challenge has been made by the Insurance company  thereto by any appeal.  However, the direction issued   against the Appellants 2^nd and 3^rd opposite parties to pay additional sum  and  as compensation is unsustainable  and their directions of the Forum imposing liability on 2^nd and 3^rd  opposite parties to pay a sum of Rs.  1,64,463.15 and compensation of Rs. 25,000/- to the complainant is set aside and appeal is allowed.  Sum of Rs. 25,000/- deposited by the Appellant  for entertain their appeal  shall be refunded on application before this Commission.    Parties are directed to suffer their costs.

 JUSTICE  S.S.SATHEESA CHANDRAN        : PRESIDENT

 RANJIT. R                                                         :MEMBER

                                                .

Ekm ca /sh