Kerala

Idukki

CC/166/2019

Vinodu k k - Complainant(s)

Versus

New india assurance com - Opp.Party(s)

28 Jun 2022

ORDER

DATE OF FILING : 25.9.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  28^th  day of  June,  2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.166/2019

Between

Complainant                                           :   Vinod K.K.,

                                                                   Kuruvikkattu House,

                                                                   Thookkupalam,

                                                                   Kallar – 685 552.

And

Opposite Parties                                     : 1. The Divisional Manager,

                                                                   New India Assurance Company,

                                                                   Parakkandathil Building,

                                                                   Puliyanmala Road,

                                                                   Kattappana – 685 508.

      2.  The Manager,

                                                                   New India Assurance Company

                                                                   36/707, Kandamkulathi Towers,

                                                                   Opp. College Ground, M.G. Road,

                                                                   Ernakulam – 682 011.

 (Both by Adv: R. Sajeev)

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. Complainant had purchased a Maruthi Swift car bearing Reg. No.KL-04-AK-1363, which had a live policy coverage from 5.1.2019, issued by the insurance company represented by 1^st opposite party who is the Divisional Manager of the Company having its office at Kattappana and 2^nd opposite party who is Manager of Ernakulam branch of the same company.  This policy had live coverage from 18.1.2019 till 26.10.2019.  While so, the car met with an accident on 20.4.2019.

                                                                                                (cont....2)

• 2  -

Complainant had entrusted the vehicle with service centre of Popular Vehicles and Services Ltd., having its workshop at Kunthalampara in Kattappana.  He had obtained an estimate for the work to be done from the service centre and had entrusted the same with the insurance company represented by opposite parties along with requisite records.  Repairs totalled to Rs.1,41,656/-.  Insurance company allowed the claim only to the extent of Rs.89,446/-.  Remaining Rs.52,210/- was paid by complainant himself.  Complainant had to borrow money to pay this amount. Non payment of entire claim is against policy conditions.  This is deficiency in service too, on the part of opposite parties.  Since complainant was unable to get his vehicle delivered after repairs in time, he was put to difficulties.  He had to hire a vehicle for his personal purposes.  All these happened as the opposite parties had not given the entire amount necessary for repairs.  Complainant prays for a direction against opposite parties to reimburse Rs.52,210/- along with interest, the amount which had to pay towards repair of vehicle.  He also seeks payment of Rs.80,000/- as compensation for the amount expended for hiring vehicle for his personal use and also Rs.75,000/- for the mental agony caused, along with litigation cost of Rs.5,000/-.

 

          2. Opposite parties 1 and 2 have filed a joint written version.  According to them, complaint is not maintainable either in law or upon facts.  There was no negligence or deficiency in service as alleged in complaint.  Opposite parties admitted that Maruthi car bearing Reg. No.KL-04-AK-1363 was insured with opposite parties for one year from 27.10.2018 till 26.10.2019,as per policy No.76100331180100008059, issued to one Smt. Suja P., who was the previous owner.  Complainant had purchased the car from her and got the policy transferred to his name on 18.1.2019.  Later, on 24.4.2019, complainant had informed opposite parties that the vehicle under cover of aforesaid policy had met with an accident on 20.4.2019, while it was being driven by complainant himself.  Vehicle was moved to repairing garage of Popular Vehicles and Services Ltd. at Kattappana.  Upon receiving intimation of claim on 24.4.2019 A.N., a Senior Surveyor Mr. T.V. Babu was immediately appointed to survey and assess requisite repairs.  Surveyor had conducted survey of vehicle on 25.4.2019. A detailed estimate amounting to Rs.1,73,650/- was submitted by repairers, break up being Rs.1,13,470/- towards cost of spares, Rs.51,000/- towards labour charges and Rs.9,980/- towards GST.  Surveyor had allowed cost of parts that needed replacement or repair by ticking against relevant items in estimate.  Out of Rs.51,000/- estimated towards labour charges, surveyor disallowed claim for Rs.3000/- towards towing charges since towing was not necessary as the car was driven to the garage by complainant himself.                                                                                           (cont....3)

• 3  -

          Cost of spares and that of painting materials included in labour charges are subject to depreciation depending upon age of vehicle as per policy conditions which were explained to the repairers and complainant by surveyor.  As per Section 1 of Private Car Package Policy Clause which forms part of the policy, depreciation is to be charged at rates ranging from 0% to 50% depending upon age of vehicle.  Without considering age of the vehicle rubber, plastic parts, tyres, tubes, batteries etc. are subject to 50% depreciation and for fibre glass components it is 30%.  For window shield which is made of glass, no depreciation is deducted.  If labour charges for painting and cost of materials are separately given, 50% of painting material cost is deducted for depreciation.  If labour charges include cost of painting materials also without segregation, 12.5% of the whole amount is deducted towards depreciation. 

 

          Depreciation is measurement of wear and tear of parts due to efflux of time, waiver of which cannot be claimed as per the terms and conditions of policy covering the vehicle.  An insured has an option to chose a ‘nil depreciation policy’, popularly known ‘bumper to bumper policy’ by paying a higher premium than for package or comprehensive policy.  Under such a policy cover, no depreciation for parts is deducted and insured gets full price for the parts replaced.  In the instant case, complainant had a cover for ordinary package policy only which is subject to depreciation on parts.  As per clause 4 IMT-22 Rs.1,000/- is compulsorily deductable and under IMT-22A clause, known as voluntary excess by which the insured bears a portion of loss, Rs.5000/- is to be deducted further.  Yet another deduction done is towards value of salvage parts.  Damaged parts which are treated as salvage are given back to the insured, so that he can sell them and get a higher price than what is usual given by service renders if those parts are sold to them.  Salvage value fixed by surveyor is deducted by insurance company.  Calculation of amount payable under the policy was done as hereunder :

 

Cost of parts +  GST

 

1. Sl. No.1  Wind Shield glass (No depreciation)                      -  2,802.00

2.  Parts from Sl. Nos.2 to 29                     -       45,926.84

          Less Depreciation @ 15%               -          6,889.22     -   39,037.82

 

3.  Parts from Sl.Nos.30 to 61                    -       31,933.83

          Less Depreciation @ 50%               -        15,966.91     -   15,966.92

 

              Labour charges for repair             -             13,400                        (cont...4)

• 4  -

             Painting                         - 22,400

             Less 12.5% depreciation   2,800   -             19,600      

                   Add GST                                                 5,940         38,940.00

                            

                                                                                                96,746.74

Less

 1.  Compulsory excess        -     1000

2.  Voluntary Excess            -     5000

3.  Salvage                            -     1300                                                7,300.00

                                                                                                89,447.00

                                                                                                =======

 

Paid to Popular Vehicles on 26.8.2019, Rs.89446/- vide voucher No.1920009737.

 

Composition of Rs.52,210/- to be borne by complainant is as under :

 

1. Depreciation on parts                                      -    22,856.00
2. Depreciation on Painting Materials                -       2,800.00
3. Difference in labour charges in excess

    agreed with the surveyor                             -      5,700.00

4.  Compulsory excess                                        -       1,000.00
5. Voluntary excess                                            -        5,000.00
6. Salvage Value                                                 -        1,300.00
7. Cost of spares not attributable to the

Accident disowned by the surveyor-13,554.00

1.  
2.  

 

          Hence opposite parties submit that Rs.52,210/- was to be borne by complainant under the contract of insurance entered into between himself and opposite parties.  Delay occasioned in taking the vehicle back from service centre was not owing to any deficiency on the part of opposite parties.  There is no provision under the contract of insurance to meet the travelling expenses of the insured while the vehicle is garaged.  Insurance company had immediately made payment upon getting satisfaction voucher signed by the workshop and complainant.  No delay was occasioned from their side.  No mental agony was occasioned to complainant due to any acts of opposite parties.  Complainant is not entitled to get Rs.52,210/- along with compensation claimed or litigation cost.  Complaint is to be dismissed with cost of opposite parties.                        (cont....5)

                                                                   -  5  -

          3. After filing of written version, case was posted for evidence after affording sufficient opportunity to both sides to take steps.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P4 were marked on his side. Exts.R1 to R12 were admitted upon admission during cross examination of complainant. Present manager of 1^st opposite party branch was examined as RW1 on the side of respondent.  Though witness was tendered for cross examination, he was not cross examined by counsel for complainant. Thereafter evidence was closed and both sides were heard.  Now points which arise for consideration are :

1) Whether complainant was entitled to get entire repair costs as charged by service centre  from opposite parties ?

2)  Whether non-payment of  said amount will amount to deficiency in service on the part of opposite parties ?

3)  Whether complainant had sustained any loss due to deficiency in service alleged ?

4)  Whether complainant is entitled for reimbursement of the amount of Rs.52,210/- paid by him towards repair charges along with compensation ?

5)  Reliefs and costs ?

 

4.  Point Nos.1 to 4 are considered together :

 

          Learned counsel for complainant had dwelt upon allegations contained in  complaint with regard to non-payment of entire amount necessary for effecting repair for which estimate was given by service centre.  Able counsel would contend that such acts  on the side of opposite parties will amount to deficiency in service.  He would further add that depreciation was not properly assessed. 

 

          Learned counsel appearing for opposite parties would submit that policy taken was ordinary comprehensive policy which was subject to depreciation.  As per the terms of contract entered into between complainant and opposite parties, complainant will be entitled to get only that much amount which remains after deduction of due depreciation.  Apart from depreciation, deductions were made towards excesses as provided in the policy and also towards salvage charges.  These are all covered by contract of insurance and complainant cannot contend against these terms.  There is no cause of action for complaint.  There was no deficiency in service and complainant had unnecessarily gone through mental agony, if really suffered,  for which opposite parties cannot be blamed.

 

                                                                                                          (cont....6)

• 6  -

          We have gone through the rival pleadings addressed, evidence on records and have considered those in the light of rival contentions addressed by both counsels.  Before discussing oral evidence tendered in this case it would be  useful to refer to documentary evidence at hand, as mentioned earlier.  Ext.P1 to P4 were marked on the side of complainant.  Ext.P1 series, 2 in numbers are 2 cash receipt vouchers for Rs.40,000/- and Rs.11870/- each.  These vouchers pertain to payment of repair charges borne by complainant.  Ext.P2 is photocopy of driving license of complainant.  Ext.P3 is photocopy of policy transferred to the name of complainant from previous owner of the car.  Ext.P4 is a photocopy of registration certificate of the vehicle.  Coming to the documents submitted on the side of opposite parties, Ext.R1 is also copy of insurance policy which was early marked as Ext.P3.  Ext.R2 is attached private car package policy.  Ext.R3 is the old policy of the vehicle taken in the name of previous owner.  Ext.R4 is proposal form and Ext.R5 is claim intimation.  Claim intimation was given after a delay of 4 days.  Ext.R6 is the motor claim form signed by complainant.  Ext.R7 is an estimate given from workshop.  Ext.R8 is survey report.  Ext.R9 is photograph of the vehicle after repair.  Ext.R10 is the final bill given from workshop.  Ext.R11 is satisfaction voucher signed by complainant and Ext.R12 is photograph of name board of grievance cell of the New India Assurance Co. Ltd..  As mentioned earlier, Ext.R1 to R12 were admitted in evidence during cross examination of complainant himself.  

 

          During his cross examination, complainant has admitted that terms and conditions of policy shown in Ext.R1 and R3 are same.  Both policies are comprehensive policies which are subject to depreciation.  Rates of depreciation are given in the policy conditions.  Able counsel appearing for complainant was unable to explain how the complainant can claim entire repair charges without deductions towards depreciation of parts as mentioned in the policy.  Though it was lately contended that depreciation has not been correctly assessed, able counsel was unable to point out how and in what manner depreciation was to be assessed correctly.  Opposite parties have given statement of account in the written version itself showing calculations regarding amount payable under the policy.  As per the written version, amount to be borne by the insurer is Rs.89,447/-.  Deduction towards depreciations, excesses and salvage value would come to Rs.52,210/-.  RW1 have given evidence on these lines.  Though the witness was tendered for cross examination, able counsel appearing for complainant has not chosen to cross examine him.  Therefore  case of opposite party, that the Company was  bound to pay Rs.89,447/- only out of total repair cost and that the complainant                                                                                                         (cont.....7)

• 7  -

had to bear Rs,52,210/- being deduction towards depreciation, excesses and salvage value stands proved by unchallenged evidence of RW1.  Hence, we find that complainant is not entitled to get Rs.52,210/- paid by him as per terms of policy, towards repair charges.  According to complainant, delay was occasioned as insurance company has refused to pay this amount to service centre. Legally they were not bound to pay the amount and therefore refusal on their part cannot be taken as reason for delay for which they should be made liable.  Delay occasioned in taking the vehicle from service centre cannot be attributed to opposite parties.  That being so, auxiliary heads of loss claimed by complainant also cannot be sustained.  Complainant is not entitled for reimbursement of the amount, compensation or costs as claimed by him.  Point Nos.1 to 4 are answered accordingly.

 

5.  Point No.5:

 

In the result, this complaint is dismissed, considering the circumstances, without costs.

 

 

                    Pronounced by this Commission on this the    28^th   day of June, 2022

 

                                                                              

                                                                                       Sd/-

              SRI. C. SURESHKUMAR, PRESIDENT

 

                                       Sd/-

           SMT. ASAMOL P., MEMBER

 

                             Sd/-

          SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

                                                                                                          (cont...8)

• 8  -

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -   Vinod K.K.

On the side of the Opposite Party :

RW1        -   Adarsh Mohan

Exhibits :

On the side of the Complainant :

Ext.P1(series) - 2 cash receipt vouchers for Rs.40,000/- and Rs.11870/- each.

Ext.P2             - photocopy of driving license of complainant. 

Ext.P3             - photocopy of policy transferred to the name of complainant from

                          previous owner of the car. 

Ext.P4            -  photocopy of registration certificate of the vehicle. 

On the side of the Opposite Party :

Ext.R1            -  copy of insurance. 

Ext.R2            -  attached private car package policy. 

Ext.R3            -  old policy of the vehicle taken in the name of previous owner. 

Ext.R4            -  proposal form and

Ext.R5            -  claim intimation. 

Ext.R6            -  motor claim form signed by complainant. 

Ext.R7            -  estimate given from workshop. 

Ext.R8           -  survey report. 

Ext.R9           -  photograph of the vehicle after repair. 

Ext.R10         -  final bill given from workshop. 

Ext.R11         -  satisfactory voucher signed by complainant and

Ext.R12        -  photograph of board and seal given by opposite party,         

   the New India Assurance Co. Ltd..

 

 

                                                                                    Forwarded by Order,

 

 

                                                                             ASSISTANT REGISTRAR