IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 27th day of July, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 160/2018 (Filed on 31/07/2018)
Complainants : Jancymol Varghese,
Mammoottil House,
Kottamuri P.O.
Changanassery – 686101
(Adv. Oommen M. Mathew)
Vs
Opposite party : (1) Branch Manager,
New India Assurance Co. Ltd.
Changanassery Branch (760 102)
Salim Building,
Near Head Office,
Changanassery – 686101
(Adv. Anie C. Kuruvila)
(2) Manager,
Kairali Ford,
Kottayam.
(Adv. P. Fazil and Adv. Jithin Paul Varghese)
O R D E R
Sri.Manulal.V.S, President
Case of the complaint is as follows:
The complainant purchased a Ford Eco Sport Petrol car from the second opposite party and the same is insured with the first opposite party for the period from 15-3-2016 to 14-3-2017. The said vehicle is purchased by availing a loan for an amount of Rs. 84,0000/- from the Federal Bank Limited Thiruvalla branch. The vehicle is registered with the Regional Transport Office as registration number KL 33H 2090. the insured value of the vehicle is 8,36,000/- It was a bumber to bumper insurance covering all parts of the Vehicle. The said car met with an accident on 2-1-2017 near Kalithattu Junction, Mararikulam and sustained total damages. The police registered a Crime number 15 of 2017. The vehicle was shifted to the showroom of the second opposite party at Kottayam after complying all the formalities. The complainant lodged a claim before the opposite party and the first opposite party had sent a surveyor to ascertain the damages and the complainant had submitted all the documents before the opposite Parties and she left to her place of employment. The second opposite party informed the complainant that car was not repairable and sustained total loss. it is also submitted in the complaint that the surveyor of the first opposite party valued the repairing cost Rs.6,50,000/-, but the second opposite party informed that they were not sure that the vehicle was repairable for the said amount. On 22-1-2018 the first opposite party sent a notice demanding to repair the vehicle and submit the final bill and FIR/ GD etc.
It is averred in the complaint that the first opposite party who is the insurer of the vehicle is liable to pay all the charges and other costs to the second opposite party if the vehicle is repairable or the insured value of the vehicle to the complainant if it is irreparable.
The second opposite party who is liable to take appropriate measures to repair the vehicle had not done anything till the date. It is submitted in the complaint that the vehicle is not repairable as there is total loss to the vehicle. According to the complainant the opposite parties colluded together making untenable claims. Several occasions the complainant had asked the respondents directly and through phone but they had not taken any steps to pay the insured amount to the complainant. According to the complainant the first opposite party had committed deficiency in service by not paying the insured amount to the complainant and the second opposite party had committed deficiency in service by not informing the first opposite party that there is a total loss to the vehicle and it is not repairable. The complainant had suffered a loss of Rs.2,00,000/- on account of deficiency in service on the part of the opposite parties. So this complaint is filed by the complainant praying for an order to direct the first opposite party to pay Rs.8,36,000/- to the complainant and to direct opposite parties to pay compensation of Rs.2 lakh.
Opposite parties appeared before the Commission and filed separate versions.
First opposite party filed version contending as follows.
When the loss was intimated to the first opposite party they deputed an independent surveyor to assess the loss and damages caused to the insured vehicle. The surveyor conducted the survey on 2-2-2017 at second opposite parties premises and informed the second opposite party and the insured that the Vehicle could be repaired and on that basis he issued a work order to the repairer. But the second opposite party informed the surveyor that since the insured was not willing for repairing the vehicle and due to her non-cooperation they could not start the repairing work. So the surveyor sent two letters to the complainant by registered post and these letters were returned with the endorsement that addressee left India. When the surveyor’s report with respect to the accident caused to the vehicle was not forth coming the first opposite party enquired with the surveyor about the delay in submitting the report and by explaining the delay the surveyor submitted his report to the 1st opposite party stating that the insured vehicle could be repaired for the cost of rupees 4,99,496/- Inspite of all these the vehicle was lying unrepaired due to the non-cooperation of the complainant. while being so the first opposite party received a letter from Federal Bank that the vehicle was purchased with the amount advanced by them and the complainant informed them that since the Insurance claim was not received and the vehicle could not be repaired. The surveyor was again contacted and he submitted his report dated 15/12/2017 before the first opposite party stating that still the vehicle was lying unrepaired by the second opposite party as the complainant did not give her consent to repair the vehicle. The first opposite party on 22-1-2018 sent a letter to the complainant asking her to repair the vehicle and submit the final bill, FIR/ GD, original driving licence, copy of PAN etc. It was also informed that vehicle has to be produced for a Re inspection by the surveyor after repairs.
Even after accepting the letter nothing was done by the complainant. The averment in the complaint that the surveyor valued the repairing cost for Rs.6,50,000/- is false. There is no collusion between the first and second opposite parties in this aspect. There is no deficiency service on the part of the first opposite party.
Version of the second opposite party is the follows:
The policy in question offered by the first opposite party is not a Ford preferred policy or it was not arranged through the second opposite party. The estimate prepared by the second opposite party for repairing the vehicle had been for Rs.9.54 lakhs but the surveyor appointed by the first opposite party was maintaining the stand that the vehicle could be repaired for Rs.6,50,000/-. The estimate of the second opposite party has not been approved by the first opposite party or the complainant. If either of them provides the approval, the second opposite party is ready and willing to begin the work .It is true that the vehicle sustained heavy damages. The second opposite party is unaware of any communication between the complainant and the first opposite party .The allegations contained in paragraph 7 to 16 of the complaint is false. There is no deficiency in service on the part of the second opposite party.
Evidence parts of this case consists of deposition of Pw1, Pw2 Pw3 and DW1. Exhibits A1 toA7 where marked from the side of the complainant and exhibits B1 to B5 were marked from the side of the opposite parties.
On evaluation complaint, version and evidence on record we would like to consider the following points.
- Whether the complainant has succeeded to prove any deficiency in service on part of the opposite parties?
- whether he is entitled to any relief?
Point No.1 and 2
There is no dispute on the fact that the complainant is the owner of Ford EcoSport petrol car bearing registration number KL 33 H 2090. It is also an admitted fact that said vehicle was insured with the first opposite party vide exhibits B2 policy for the period from 15-3-2016 to 14-3-2017. On perusal of exhibit B2 we can see that the insured declared value of the vehicle was Rs.8,36,000. It is further proved by A3 first information report of Mararikkulam police station in crime number 15 of 2017 that vehicle had been met with an accident on 2-1- 2017 at Kallithattu Junction Mararikkulam.
PW1 who is the power of attorney holder of the complainant deposed before the commission that the opposite parties colluded with each other to deny the benefit of the policy as the vehicle was in the total loss condition.
The complaint was resisted by the first opposite party stating that the vehicle could be repairable and due to the non-cooperation of the insured, the vehicle was lying unrepaired. Only question to be answered is whether the vehicle is in a total loss condition and the complainant is entitled to the insured declared value of the Vehicle. In order to prove his case the complainant examined PW 2 and PW3. Pw2 is the expert Commission appointed by this Commission to ascertain the damages caused to the vehicle and he filed C1 report before this Commission.
PW 2 deposed before this Commission that he had assessed the cost of repair to the tune of Rs.8,90,000/- after deducting the deductions under the policy. During the cross examination he would depose before the commission that he had prepared the report by considering Exhibit A5 Which is the Inspection Report prepared by the MVI. Pw2 during the cross examination deposed that there would be an aggravation in original accident status and the status of the vehicle at the time of inspection. He further deposed before the commission that while preparing C1 report he did not consider the aggravated damages. Expert commissioner who is none other than the Pw2 deposed before the commission that he considered the damages which are stated in the estimate which was prepared at the time of entrusting vehicle to the workshop. He further deposed before the Commission that he did not make any changes in the estimate which was prepared by the dealer in the first instance. During the re-examination pw2 deposed that he had prepared exhibit C1 and arrived at the cost of repair after cutting down the estimate prepared by the second opposite party which was at a higher end.
PW 3 who is the MVI deposed before the commission that he had examined the vehicle bearing number KL-33-H-2090 which met with an accident. He further deposed before the Commission that he had issued exhibit A5. PW 3 deposed before the Commission that the chassis, wheel, engine and cabin of the said vehicle was in a total damage condition. Before the Commission he deposed that he did not examine the vehicle after dismantling the same. According to him the main components of the vehicle were damaged and in an unrepairable condition.
In order to prove that the vehicle was in a repairable condition the first opposite party examined Dw1 who is the surveyor appointed by them .He deposed before the commission that The consent of the insured is not necessary to dismantle and to inspect the vehicle at the premises of the second opposite party. Dw1 deposed that he could not dismantle and inspect the vehicle due to the non-approval of the second opposite party. On perusal of B1(a) photograph it can be understood that the bracket of the engine mount has been broken. It is further deposed by DW 1 that if the airbag is deployed the entire wiring harness is to be replaced. It is admitted by the DW 1 that he did not report in B1 report that the driving shaft has been stripped off from the boot.
Dw1 deposed that the expert Commissioner has found the damages which were not assessed by him. It is admitted by the DW 1 that the amount which was shown in exhibit A7 is higher than the 75% of the IDV value of the Vehicle. Discussed earlier as per exhibit B2, the IDV of the vehicle was Rs.8,36,000/-. It is proved by exhibit C1 commission report that the cost of repair would amount to Rs.8,90,000/-. It is clear that the repair cost would be more than 75% of the insured declared value of the vehicle. On a close perusal the evidence adduced by both the parties we are of the opinion that the complainant had succeeded to prove that the vehicle was in a total loss condition.
Another contention put forward by the 1st opposite party is that though the surveyor sent exhibit B4 and B5 letters to the complainant she did not corporate to him .Pw1 who is the power of attorney holder of the complainant deposed before the commission that He did not receive any letter from the surveyor. On perusal of exhibit B4 and B5, we can see that the same are the copies of notices alleged to have same sent by the surveyor on 5-4-2017 and 25-7-2017 respectively. However neither the surveyor nor the first opposite party produced any postal receipt or any other documents to prove the issuance of the same. Admittedly the surveyor was appointed by the second opposite party and conducted the survey on 2 -2- 2017 but it is proved by exhibit B4 that he sent the first Letter to the complainant on 5-4-2017. It is also evident that the surveyor had sent exhibit B5 only on 25/7/2017 which is after 5 months from the date of inspection. The divisional manager of the first opposite party submitted in the version as well as In proof affidavit that they had sent exhibit A1 letter to the complainant on 22-1-2018. She further submitted in the proof affidavit that the surveyor had submitted his report on 15/12/ 2017. During the cross examination DW 1 who is the surveyor deposed before the commission that he had held the report for 10 months. It is pertinent to note that the explanation given by the surveyor for the delay caused in submitting the report as he was not in a position to prepare the report. From this we can see the manner in which the surveyor of the first opposite party deals with the claim and how negligent he was in acting according to the IRDA regulations 2002. Which came into force on 01-10-2002, provided and made arrangements for the protection of the rights of the policyholder’s interest. The regulation number 9 provides a procedure in respect of general insurance policy. Sub Regulation 2 of regulation 9 contemplates that the surveyor shall submit his report within 30 days of his appointment. Where, because of special circumstances or complicated nature of claims, does the surveyor shall seek an extension from the insurer with an intimation to the insured, but in no case surveyor Shall take more than 6 months from the date of his appointment to furnish the report. It has been made obligatory for the insurance company that on receipt of report, if it is incomplete in any respect, inform the insured and require the same surveyor to furnish additional report on certain specific issues as desired by the insurer. It is further obligatory to the surveyor to submit additional report within 3 weeks of the date of receipt from the communication of the insurer. What is important is that on receipt of Survey report or additional reports as the case maybe, an insurer shall within a period of 30 days offer settlement of the claim to the insured if the insurer for any reason to be recorded in writing and communicated to the insured, decides to reject the claim under the policy, it shall do within a period of 30 days from the receipt of survey report or additional report. If we look to these regulations, it becomes abundantly clear that a specific time has been provided for surveyor and the insurance company to settle the claim.
In the case on hand the manager of the first opposite party submitted in version as well as in proof affidavit that they have contacted the surveyor only after receiving a letter from Federal Bank Limited and there after the surveyor submitted his final report on 15 -12- 2017.On going through exhibit A1 we can
see that the first opposite party had send a letter to the complainant on 2-1- 2018 demanding to repair the vehicle and to produce the final bill and other documents. Though exhibit A1 was sent after the expiry of one month from the date of receipt of the final survey report but the first opposite party did not offer any mode of settlement of claim to the insurer. The above discussed act of the first opposite party is in violation of the regulation formulated by the insurance regulatory Development Authority.
We already found that the repair cost of the vehicle would amount to Rs.8,90,000/- which is more than 75% of the insured declared value. Therefore we are of the opinion that the first opposite party had committed deficiency in service by not honouring the claim of the complainant by considering the vehicle as total
loss condition and further not offering any mode of settlement to the complainant within 30 days from the date of receipt of final survey report.
Considering, the nature and circumstances of the case we allow this complaint and pass the following order:
- We hereby direct the first opposite party to pay Rs.7,75,000/- (Rupees Seven
Lakhs and seventy five thousand only) to the complainant with 9% interest from the date of filling of the complaint till realization. It is further made clear that the complainant shall retain the wreck with registration certificate and the complainant shall surrender the insurance certificate to the first opposite party.
- We further direct the first opposite party to pay Rs.1,00,000/- (Rupees One
lakh) to the complainant as compensation for the deficiency in service on the part of the first opposite party.
The Order shall be complied within 30 days from the date of receipt of copy of this Order.If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 27th day of July, 2023
Sri. Manulal.V.S, President Sd/-
Smt. Bindhu.R, Member Sd/-
Sri. K.M.Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 – Devassia Joseph
Pw2 – Binu Varkey
Pw3 – K.G. Biju
Witness from the side of opposite party
Dw1 – Anshath Hussain K.P
Exhibits marked from the side of complainant
A1 – Copy of letter dtd.22-01-2018
A2 – Photos of damaged vehicle
A3- Copy of FIR and FIS
A4 – Copy of mahazar
A5- Inspection report
A6- Copy of inspection report
A7 – Copy of estimation details dtd.25-09-18 by Kairali Ford
Exhibits marked from the side of opposite party
B1 – Advanced stamped receipt cum bill dtd.15-12-17 and motor final survey
report
B2 –Copy of policy schedule cums certificate of insurance issued by 1st opposite
party
B3 – Copy of letterndtd.22-01-2018
B4 – Copy of letter dtd.05-04-2017
B5- Copy of letter dtd.25-07-2017
By Order
Sd/-
Assistant Registrar
