BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 14/10/2009

Date of Order : 27/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 557/2009

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

On 02-06-2009, the complainant's motor cycle met with an accident and sustained severe damages. On the basis of the surveyor's report, the opposite party offered Rs. 7,752/- as cash loss basis or Rs. 11,717/- on repair loss basis. The complainant is entitled to get insurance under total loss basis. Thus, the complainant is before us seeking direction against the opposite party to pay the insurance claim under total loss basis together with compensation of Rs. 5,000/- towards mental agony and inconveniences.

2. Version of the opposite party :

The complainant's vehicle bearing Registration No. KL-07 AP 3234 was insured with the opposite party for the period from 16-10-2008 to 15-10-2009. On receipt of the insurance claim application, a surveyor was appointed and he submitted his report. On the basis of the report, the opposite party sent a letter to the complainant offering to settle the claim on repair/cash loss basis. Without considering the settlement, the complainant preferred to file this complaint. There is no deficiency in service on the part of the opposite party.

3. The complainant was examined as PW1 and Exts. A1 to A9 were marked on his side. The witness for the opposite party was examined as DW1. Exts. B1 to B6 were marked on the side of the opposite party. The expert commissioner was examined as PW2 and his report was marked as Ext. C1. Heard the counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the complainant is entitled to get the insurance claim under total loss basis?

2. Whether the complainant is entitled to get Rs. 5,000/- by way of compensation?

5. Point No. i. :- The parties are in consensus on the following issues :

1. The complainant is the registered owner of the motor cycle bearing Registration No. KL-7 AP/3234 evident from Ext. A7 copy of RC book.

2. The vehicle was insured with the opposite party for the period from 16-10-2008 to 15-10-2009 evidenced by Ext. B3 insurance policy.

3. The insured declared value of the vehicle was Rs. 20,800/- evident from Ext. B3 policy.

4. The vehicle met with an accident on 22-06-2009.

5. The surveyor deputed by the opposite party submitted Ext. B1 survey report.

6. On the basis of the surveyor's report, the opposite party caused to issue Ext. A3/B5 letter to the complainant stating as follows :

   “In this connection our panel surveyor has assessed the damage to your vehicle and as per the extent of damage sustained to the vehicle, the surveyor has assessed 2 modes of settlement ie., Repair basis and Cash loss basis. It is known that the vehicle is laying in the workshop unattended awaiting your permission to proceed repair work of the vehicle. It is observed that in the accident, the vehicle sustained partial loss and accordingly surveyor has assessed Repair/Cash loss basis. In this connection your attention is drawn on Condition No.3 of the policy which reads as : “the Company may at its own option to repair/reinstate or replace the vehicle or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed actual and reasonable cost of parts damaged subject to depreciation as per limits specified.”

    

7. The offer made by the opposite party in Ext. A3 letter was not acceptable to the complainant.

8. The Surveyor who prepared Ext. B1 survey report was examined as DW1. The findings of DW1 in Ext. B1 report is as follows :

“RECOMMENDATIONS

The I.D.V. of the subject vehicle is Rs. 20,800.00 only. The wreckage on “Its as is where is” condition may be a value of Rs. 5,000.00. The assessment was made only on external. I here by giving below other option of settlement for the consideration of the insurers.

CASH LOSS BASIS

1. Labour charge Rs. 1000.00

2. Towing & spot repair Rs. Nil

3. Cost of parts excluding Sales Tax Rs. 10403.55

   Total Rs. 11403.55

Less Salvage Value Rs. 1000.00

Less 25% deduction for cash loss

settlement Rs. 2600.88

Balance Total Rs. 7,802.67

Less compulsory Excess Rs. 50.00

Net Liability Rs. 7752.67

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From the above calculations I, recommend “Cash Loss Basis” of settlement. However, discretion of the claim is left to the insurers.”

6. During examination, DW1 deposed that neither did he dismantle the engine of the vehicle nor started the same. At the instance of the complainant, an expert commissioner was deputed by this Forum to assess the quantum of damages sustained to the vehicle. He was examined as PW2. In Ext. C1 report, he assessed damages of the vehicle at Rs. 40,852/- and a sum of Rs. 2,600/- towards Labour charges. During evidence, he admitted that he had assessed the damages of the vehicle on the basis of the price of the parts as on 11-06-2010 and he has not deducted depreciation of the assessed amount. Admittedly, the vehicle of the complainant was manufactured in 2003. At the time of the accident, the age of the vehicle was more than 5 years. As per Ext. B3 policy, 40% depreciation is to be deducted from the assessed amount to quantify the loss sustained to the vehicle. As per Ext. B3, the insured vehicle shall be treated as constructive total loss if the aggregate cost of retrieval and/or repair of the vehicle exceeds 75% of the IDV of the vehicle. In this case as per the assessment of PW2, it is more than the IDV. Nothing is on record to discard the findings of PW1, especially so because he is an Assistant Professor who is working in a reputed institution. The report of PW2 having not been unfounded, we are not placing any reliance on Ext. B1 report prepared by DW1.

7. In the result, we allow the complaint and direct that the opposite party shall pay the insurance claim of the complainant together with interest @ 9% p.a. from the date of this order treating the claim of the complainant on total loss basis as per norms.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 27^th day of October 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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