SRI.K. VIJAYAKUMARAN, PRESIDENT.
Complaint seeking damages and compensation.
The averments in the complaint can be briefly summarized as follows:
The complainant is the registered owner of the Medium goods carriage vehicle make Swaraj Mazda bearing Reg.No.Kl.02/T 9621 The vehicle had goods carriage permit for the period from 21.12.2004 to20.12.2009 and the vehicle is insured with the opp.parties. On 23.7.2005 at about 7 a.m. the vehicle was being driven through Kazhakuttom - Thiruvallom bye pass road in Thiruvananthapuram District, and when the same reached near Paruthukuzhi, the driver swayed the vehicle towards the left in order to avoid an accident. The vehicle skidded and the driver and the passengers sustained injuries and vehicle sustained damages. Thje vehicle was taken to the authorized workshop near by where the surveyor of the workshop assessed the total damages at Rs.4,34,583/- The complainant filed a claim before the opp.parties, but the same was repudiated on the grounds that there was over loading of passengers at the time of accident which is violative of the policy conditions. In fact there was 3 passengers in addition to the driver in the vehicle at the time of accident whereas the vehicle has permit to carry 2 passengers in addition to driver. Carrying 3 passengers in addition to driver cannot be treated as over loading.. The accident has not occurred due to any negligence on the part of the driver Merely because additional persons were taken by the driver and the cleaner without the knowledge of the owner who assessed had not contributed to increase the risk or was not connected with the cause of accident. A contractual liability of that nature for which a high premium was paid by the insured cannot be repudiated by the opp.parties. In fact the accident in order to avoid a hit against another vehicle which was coming driven rashly and negligently in the opposite direction The repudiation of the claim is deficiency in service on the part of the opp.parties. Hence the complaint
The opp.parties filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. This Forum has no territorial jurisdicti0on to entertain this complaint, as both the opp.parties are functioning and situated outside the territorial jurisdiction of this Forum at Thiruvananthapuram. The accident has occurred within the jurisdiction of the Consumer Disputes Redressal Forum, Thiruvananthapuram. The complainant has approached this Forum with unclean hands suppressing material facts. The opp.party has issued a comprehensive policy in respect of the vehicle bearing Reg.No.KL-2T/9621owned by the complainant for a period from 2.12.2004 to 1.12.2005. The contract of insurance is governed by the terms and conditions of the policy which is squarely binding on the contracting parties. The complainant has reported a claim on 23.7.05 informing the involvements of the vehicle in an accident at Paruthikuzhi at Thiruvananthapuram District. On getting the claim form, the first opp.party deputed a licensed Insurance /Surveyor for conducting a spot survey of the incident. The opp.party on receipt of the claim form and estimate from the complainant had deputed a competent and qualified Government of India licenced insurance surveyor and loss assessor for inspecting the damaged vehicle and for assessing the extent of loss/ damages sustained to the vehicle. This surveyor accordingly visited the workshop where the damaged vehicle was kept for repairs on 6.8.05 and requested the repairer to dismantle the body shell , chassis and main axle in order to conduct detailed inspection. But the repairer did not comply with his request. The surveyor thereafter issued a registered letter dated 13.8.2005 to the complainant requesting him to instruct the repairer to dismantle the vehicle for assessing the damages. Even after the receipt of the registered letter the complainant did not instruct the repairer to remove the external damaged parts. On 27.8.2005 the surveyor again visited the repairer’s workshop and examined the damages sustained to the vehicle without removing the external damaged parts due to the indifferent attitude and non co-operation on the part of the insured. The surveyor has assessed the damage at Rs.1,00,198.80 including the cost of spare parts and labour charges. He has reported tht the damages sustained to the chassis and cabin are perfectly repairable. The surveyor further reported that there here four persons in the vehicle at the time of occurrence against the permitted capacity of three in all including the driver. As per permit and R.C Book. The accident was occurred due to the negligent act on the part of the driver who was using the vehicle in violation of the permit condition. The insurer is liable to indemnify the insured for any damage sustained to the vehicle while the vehicle was in use only as per the permit conditions. The surveyor has submitted his report on 21.10.2005. Due to the violation of the policy conditions the opp.parties repudiated the claim on 7.12.2005. The complainant thereafter questioned the legality of the repudiation before the Insurance Ombudsman as per the complaint No.10/KCH/G1/11-002-066/2006/07. The Ombudsman passed an award for an amount of Rs.1,00,000/- on 13.8.2006 with a direction that the complainant shall furnish a letter to the insurer with in a period of one month from the date of award informing the acceptance of the award in full and final settlement of his claim.; The complainant did not comply with requirement of the award passed by the Insurance Ombudsman and so the opp.party issued a reminder to the complainant on 13.10.2006. Though the same was accepted the complainant did not comply with the direction but filed this complaint. The complainant has no cause of action against the opp.party since there is no deficiency in service on the part of the opp.party . Hence the opp.party prays to dismiss the complaint..
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.parties?
2. Reliefs and costs.
For the complainant PW.1 is examined. Exts. P1 tp P7 are marked.
For the opp.party DW.1 is examined. Ext. D1 to D7 are marked.
Point::
The policy as well as the accident are admitted. The opp.party has repudiated the claim on the ground of violation of policy condition as per Ext. D6 against which the complainant approached the Insurance Ombudsman who as per Ext. D5 partially allowed the complainant’s claim. However the complainant has suppressed this aspect in the complaint.
The grievance of the complainant is that the surveyor attached to the authorized workshop where the damaged vehicle was taken for repairs assessed the repairing charges at Rs.434583/-as per Ext.P4 which he is entitled to get whereas according to the opp.parties if at all the complainant is entitled to get any amount it can only be as per Ext. D4 survey Report which is Rs.1,00,198.80
Ext.P4 was proved through PW.1 the son of the complainant and not through the person who prepared it and therefore Ext.P4 cannot be safely accepted. Ext. D4 is prepared by DW.1, the authorized surveyor and loss assessor appointed by the Government of India. The learned counsel for the opp.party would canvass the point that a surveyor’s report which is made under section 64 UM[2] of the Insurance Act 1938 is an important document and its non consideration results in serious miscarriage of justice and vitiate the judgement rendered by the court relying on the decision of Apex Court reported in [2000]10 Sec. 19. The Apex Court in the decision reported in 4 [2004] CPJ 49 has held that it is a mandatory requirement that the claim payable under an insurance contract has to be assessed by a licensed Surveyor and loss assessor. It is also well settled that in the absence of any material omission or irregularity the survey report has to be accepted. The complainant herein has not proved any omission or illegality in the preparation of Ext. D4 by DW.1 and in the absence of any such material to assail the correctness of Ext. D4 this Forum cannot sit in judgement on the report of Surveyor and reliance can be drawn from the decision of National Commission reported in 2 [1998] CPJ 15. Ext. P4 which is prepared by a person who is not a licensed surveyor and which has not been proved properly cannot be accepted. In these circumstances as argued by the opp.parties the complainant, if at all he is entitled to get any damages, it can be only as per Ext. D4.
Ext. D6 shows that against the repudiation of his claim the complainant has taken up the matter before the Insurance Ombudsman who allowed the same partially and awarded Rupees one lakh as damages considering Ext. D4 prepared by DW.1 . It is obvious that the present complaint is filed dissatisfied with that amount. It can be seen that the loss assessed by DW.1 the licensed surveyor has been awarded by the Insurance Ombudsman as per Ext. D6. Now this complaint is filed disputing the quantum of the loss assessed by the surveyor. The National Commission in the decision reported in III [2008]CPJ 93 has held that the consumer For a cannot go into the question of quantum dispute as it will involve detailed investigation which cannot be dealt with in Summary Proceedings expected from the Consumer Protection Act. In the light of this decision this complaint is not maintainable before this Forum. The complainant may approach the Civil Court or IRDA for enhanced damages.
As pointed out earlier, Ext.D6 is based on Ext. D4 also. The complainants for the reasons stated above are not entitled to get any amount more than the amount in Ext. D4. . Opp.parties are ready to comply with Ext. D6 order. In these circumstances we are of the view that no deficiency in service can be attributed on the opp.parties. Point found accordingly.
In the result the complaint is dismissed. No costs
Dated this the 27th day of November, 2010.
I N D E X
List of witnesses for the complainant
PW.1. – K. Rajan
List of documents for the complainant
P1. – Copy of RC. Book
P2. – Insurance policy certificate
P3. – Copy of FIS and FIR
P4. – Original Estimate
P5. – Repudiation letter
P6. – Goods carriage permit
P7. – Power of Attorney
List of witnesses for the opp.parties
DW.1. – C. Muralseedharan Nair
DW.2. - Jayaraman
List of documents for the opp.party
D1. – Notice copy
D2. – Preliminary report
D3. – FIR
D4. – Final survey report
D5. – Repudiation letter
D6. – Order dated 30.8.2006 issued by Ombudsman, Kochi
D7. – Letter sent by opp.party to the complainant dt. 13.10.2006
