This complaint coming up before us for hearing on 10-06-14                                in the presence of Sri Ch. Srinivasa Rao, advocate for complainant                         and of Sri S.A. Khadar, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking reimbursement of Rs.86,000/- said to have been incurred by him for effecting repairs to his vehicle; Rs.16971/- being the interest on Rs.86,000/- from 11-06-12 to 03-02-14 and Rs.5,000/- towards compensation and legal expenses.

2.   In brief the averments of the complaint are these:

      The complainant being owner of the vehicle AP07 AN 7979 insured it with the opposite party under comprehensive insurance policy.   The said policy covered the period from 24-04-12 to 23-04-13.   On 11-06-12 the said vehicle met with accident.   The complainant informed the same to the opposite party who inturn appointed a surveyor.   The surveyor estimated the loss at Rs.86,000/- inclusive of labour charges.   Out of the total expenses supported by bills the opposite parties surveyor assessed the net loss at Rs.30,000/-.   The opposite party deducted depreciation variation from 15% to 50%.   The certificate of insurance issued to the complainant did not disclose percentage of depreciation in cases of damage to a vehicle.   The opposite party issued a cheque for Rs.30,000/- in favour of the complainant.   The complainant returned the said cheque.   The opposite party deducting certain amount towards depreciation amounted to deficiency of service.   The complaint therefore be allowed.

3.   The contention of the opposite party in nutshell is hereunder:

          The complainant obtained policy bearing No.35101031126130120140 for his vehicle AP07AN7979 covering the period from 24-04-12 to 23-04-13.  The opposite party appointed a surveyor after the complainant informing the accident.   The surveyor assessed the loss at Rs.30,000/-.   Accordingly the opposite party sent cheque for Rs.30,000/- to the complainant on 31-10-12 towards full and final settlement.   The opposite parties did not commit any deficiency of service as they settled the claim.   In order to get more compensation the complainant filed this complaint.   Rest of the allegations contra mentioned in the complaint are all false and are created by the complainant to suit his exaggerated claim.

4.  Exs.A-1 to A-6 and Exs.B-1 to B-4 on behalf of the complainant and opposite party were marked. 

5.   Now the points that arose for consideration in this complaint are:

          1.  Whether the opposite parties committed deficiency of service by                      making deductions towards depreciation?

2.  Whether the complainant is entitled to interest?

          3.  To what relief?

6.   Admitted facts in this complaint are these:-

          1.   The complainant insured his vehicle AP07AN7979 with the

                   opposite party (Ex.A-1=B1).

          2. The complainant’s vehicle met with an accident and he informed

                   to the opposite party.

          3. The opposite party appointed Ch. Abshaloam as surveyor

                   (Ex.B2=A2).

          4. The opposite party informed the complainant that it approved the                      claim for Rs.30,000/- (Ex.B3) and sent a cheque (Ex.A6).

          5. The complainant issued notice to the opposite party (Ex.B4=A3)

          6. The complainant issued another notice on 02-12-13 (Ex.A4&A5).

7.  POINT No.1:-   The learned counsel for the complainant contended that deducting certain amount towards spare parts/repairs in case any vehicle met with accident did not find place in the insurance policy issued to the complainant.   The learned counsel for the complainant relied on the decision reported in CA 5547/09 (decided by Supreme Court on 17-08-09).

8.   The learned counsel for the opposite party contended that it acted as per the guidelines issued by IRDA while assessing damage.   The surveyor’s report cannot be brushed aside unless valid reasons are shown.   The opposite party relied on the decision reported in FA 673/07.

9.   In M/s Krishna Enterprises vs. M/s Bajaj Allianz General Insurance Company Limited (FA 673/07 dated 14-03-13) the National Consumer Disputes Redressal Commission held

   “It is well settled through a catena of judgments of this commission as also of the Hon’ble Supreme Court (New India Assurance Company Limited vs. Rohan Lal Oil Mills (2010) 10 SCC 19) that the surveyor’s report has significant evidentiary value and cannot be displaced unless it is contradicted by credible evidence to the contrary.  So far as the present case is concerned, after carefully perusing the entire evidence on record, we are unable to conclude that the Appellant has been able to produce any credible documentary or other evidence to contradict the report of the second surveyor clearly giving detailed reasons for assessing the loss at Rs.22,11,824/-“.

10.  In Noor Ali vs. National Insurance Company Limited (CA.No.5547 of 2009 dated 17-08-09) the apex court remanded the case to the State Commission to consider the appeal in accordance with law after giving opportunity to the parties.   Under those circumstances, the above decision has no application to the facts of the case.

11.  Ex.A1(=B1) is copy of insurance policy issued by the opposite party infavour of the complainant relating to subject vehicle.  In the said policy compulsory deductible amount of Rs.1,000/-; limitations as to use of the vehicle, driver’s clause, limitations of liability clause, no claim bonus were mentioned.  As rightly contended by the learned counsel for the complainant the depreciation clause did not find place in Ex.B-1.   No doubt, the insurance companies are regulated by insurance development regulatory authority.   It is well settled in law that the terms and conditions of the insurance policy has to be strictly followed.  Absence of depreciation clause relating to spare parts/repairs in case of vehicle damage in our considered opinion lends support to the complainant’s contention.   We therefore opine that deducting amount towards depreciation without mentioning in insurance policy amounted to deficiency in service.

12. The complainant neither produced copy of bills nor sought production of those bills submitted to the opposite party estimating the loss at Rs.86,000/-   The amount mentioned in the estimation may decrease or increase when actually repaired the concerned vehicle as contended by the learned counsel for the opposite party is having considerable force.   Therefore considering the estimated amount and the amount mentioned in the column ‘bills’ in Ex.B2(=A2) will meet ends of justice.

13.    The complainant estimated the damage at Rs.53,450/- as seen from Ex.A2(=B2) and submitted bills to the extent of Rs.49,463.17ps.   It is not the case of the opposite party that the complainant got repaired the vehicle for some other damage.   In the absence of any evidence from the complainant this Forum considered the amount mentioned in the column ‘bills’ in Ex.A2 (=B2).

14.  The opposite party has rightly contended that it can deduct certain amount towards salvage value.   The surveyor estimated the salvage value at Rs.1724.32 and the compulsory deductible amount as Rs.1000/-; totaling to Rs.2724.32.  Under those circumstances, the complainant is entitled to Rs.46,738.85 (49463.17 – 2724.32) and answer this point in favour of complainant.

15.  POINT No.2:-     The complainant claimed interest @12% p.a., from the date of accident.   The opposite party on 17-01-13 while sending the cheque for R s.30,000/- (Ex.B-3) requested the complainant to verify the bills submitted by him and may furnish specific amounts or short assessments made by the surveyor to enable to refer it for surveyors for redressal if any.

16.  The complainant did not answer the above requirements though addressed under Ex.B-4(=A3).   Mere submitting estimation is not sufficient in our considered opinion.   Under those circumstances, the complainant is not entitled to any interest and answer this point against the complainant.

17.  POINT No.3:   In view of above findings, in the result the complaint is partly allowed as indicated below:

          1.  The opposite party is directed to pay Rs.46,738.85 ps to the                                       complainant together with interest @9% p.a., from the date of                              complaint till realization.

          2. The opposite party is directed to pay Rs.2,000/- (Rupees two                                      thousand only) to the complainant towards costs.

          3. The amounts ordered above shall be paid within a period of six                          weeks from the date of receipt of the copy of the order.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 13^th day of June, 2014.

           Sd/-XXX                                                        Sd/-XXX                                            Sd/-XXX

         MEMBER                                       MEMBER                                       PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:   

   Sd/-XXX

 PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.