KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURA
APPEAL NO.68/10
JUDGMENT DATED 5.1.2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
Fazaludeenkunju.I.
S/0 K.Idrose Kunju,
Thadathil Veedu, Ottakkal.P.O, -- APPELLANTS
Thenmala, Kollam.
(By Adv.K.John Panicker)
Vs.
1. The Branch Manager,
Oriental Insurance Co.Ltd;
2. Moopan Motors (P) Ltd; -- RESPONDENTS
Authorized dealer of Nippon Toyotta,
N.H. 47, Byepass, Attinkuzhy,
Kazhakkootam P.O,
Thiruvananthapuram.
(R1 by Adv.V.Manikantan Nair & R2 by
Adv.Sasthamangalam R.Jayakrishnan)
JUDGMENT
SRI.M.V.VISWANATHAN,JUDICIAL MEMBER
The above appeal is directed against the order dated 26th December 2009 of the CDRF, Kollam in CC.No.462/04. The complaint therein was filed by the appellant herein as complainant against the respondents 1 and 2 as opposite parties 1 and 2 respectively alleging deficiency in service. It was alleged that the first opposite party/Oriental Insurance Company committed deficiency in service in not honoring the entire insurance claim for Rs.3,20,895/-. Thus, the complainant claimed the balance insurance claim of Rs.1,89,210/- from the first opposite party/insurer of the vehicle which met with an accident on 24.12.03. The complainant has also claimed compensation of Rs.25,000/- with cost of Rs.2,000/- against the first opposite party.
2. The first opposite party entered appearance and filed written version contending as follows:-
3. The complaint is not maintainable either in law or on facts. The first opposite party as insurer paid the damages actually caused to the insured vehicle; that the loss was assessed by a licensed surveyor and loss assessor. The second opposite party repairer in their first estimate recommended replacement of the body shell of the vehicle at the request of the complainant and that finally the repairer agreed with the assessment of the surveyor and accordingly the surveyor submitted his report before the opposite party assessing the damages at Rs.1,16,792.51 with salvage value of Rs.2000/-. The loss sustained by the complainant was indemnified as per the terms and conditions of the policy and there was full and final settlement of the insurance claim preferred by the complainant/insured. Thus, the first opposite party prayed for dismissal of the complaint.
4. The second opposite party filed separate written version contending as follows:-
“The second opposite party is not a necessary party to the complaint. The complainant’s vehicle met with an accident on 24.12.03 and the damaged vehicle was brought to the show room of the second opposite party for repair. Since the body shell of the vehicle sustained major damages, the complainant requested the second opposite party to replace the body shell and accordingly the second opposite party replaced the body shell, and that the complainant took delivery of the vehicle after repair by making full payment of Rs.3,20,896/-; that the complainant issued a specification note dated 24.3.04 certifying his satisfaction of the work done by the second opposite party. Hence the second opposite party prayed for dismissal of the complaint filed against them.
5. Before the Forum below, the complainant was examined as PW1 and the expert commissioner who was deputed by the Forum below was examined as PW2. The commission report filed by PW2 was marked as Ext.C1. P1 to P6 documents were also marked on the side of the complainant. On the side of the first opposite party, the licensed surveyor who filed D1 survey report with photographs was examined as DW1 and the Asst. Manager of the first opposite party/Insurance Company was examined as DW2. Exts.D1 to D5 documents were also marked on the side of the first opposite party. No evidence was adduced from the side of the second opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dismissing the complaint in CC.No.462/04. Aggrieved by the said order, the present appeal is filed by the complainant therein.
6. Heard the learned counsel for the appellant/complainant and respondents/opposite parties 1 and 2. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on C1 commission report and the oral evidence of PW2 and canvassed for the position that replacement of the body shell of the damaged (insured) vehicle was a must and that the first respondent/first opposite party Insurance Company cannot be justified in repudiating the insurance claim with respect to the cost of the body shell of the insured vehicle. He also challenged the reasons stated by the Forum below for not admitting C1 commission report. It is submitted that C1 report cannot be rejected because of the additions made by the commissioner to his C1 report. It is submitted that the aforesaid addition and corrections were made during the second and final reading of the report by the commissioner himself and C1 report has been filed with those corrections and additions. He also relied on P2 estimate for effecting repairs submitted by the second opposite party/repairer and submitted that P3 supplementary estimate was submitted at the instance of the surveyor and without the knowledge of the complainant/insured. He also disputed correctness of D1 final report filed by DW1, the licensed surveyor. It is further submitted that D5 discharge voucher was signed by the complainant/insured under compulsion and to get the sanctioned insurance amount and that the said amount was accepted under protest. The complainant immediately submitted his protest by submitting separate letters claiming the balance amount by way of the insurance claim. Thus, the appellant/complainant prayed to set aside the impugned order passed by the Forum below and to allow the complaint in CC No.462/04. The counsel for the appellant has also submitted argument note in support of his oral submissions.
7. Appellant herein filed IA.1232/10 for amendment of the appeal memorandum. The appellant sought for amendment for the purpose of incorporating an additional ground as ground No.26 in the appeal memorandum. By the said amendment, the appellant urged that P3 supplementary estimate executed by the second opposite party and D1 final survey report filed by the surveyor were executed in collusion that the 1st opposite party behind the back of the appellant/complainant. The second respondent (second opposite party) filed objection to the said IA 1232/10 stating that the amendment application is not maintainable; that the second counter petitioner is not a necessary party in the appeal . They also denied the alleged collusion between the first and second counter petitioners. It is further contended that such a contention regarding collusion was not raised before the Lower forum and so the said contention cannot be permitted to rise as a ground in the appeal memorandum. Thus, the second respondent prayed for dismissal of the aforesaid IA.1232/10. We also heard the appellant/petitioner and the respondents/counter petitioners on this IA.1232/10 along with the present appeal.
8. We also heard the learned counsel for the respondents 1 and 2. They supported the impugned order passed by the Forum below and prayed for dismissal of the appeal. The counsel for the first respondent/first opposite party much relied on D4 and D5 documents evidencing full and final settlement of the insurance claim He also relied on the admission made by PW1 regarding execution of D5 voucher and acceptance of Rs.1,13,686/-. It is further submitted that PW2, the expert commissioner inspected the damaged body shell after the lapse of more than 3 years and C1 report cannot be accepted as such as the same was filed at the instance and request of the complainant. It is further submitted that D1 survey report is to be considered as a valuable piece of evidence and without assigning any valid reason, the same cannot be discarded. He also relied on the testimony of the surveyor as DW1. The learned counsel for the first respondent has also filed argument notes in support of his oral submissions.
9. The learned counsel for the second respondent argued for the position that the second respondent/second opposite party is an un-necessary party to the proceedings and the second opposite party had nothing to do with the insurance claim and that the second opposite party effected the repairs as requested by the complainant and received the repair charges including the value of the spare parts. It is further submitted that no claim is preferred against the second respondent and that no order has been passed by the Forum below against the second respondent.
10. The points that arise for consideration are:-
1. Whether the petition filed as IA.1232/10 seeking amendment of the appeal memorandum can be allowed?
2. Whether the first respondent/first opposite party Insurance Company can be justified in not allowing the insurance claim for Rs.3,20,896/- including the cost of the body shell amounting to Rs.1,89,210/-?
3. Whether replacement of the body shell of the damaged (insured) vehicle was necessary to get the damaged vehicle repaired in a perfect and roadworthy condition?
4. The case of the second respondent/second opposite party and that of the first respondent/first opposite party and that of the DW1 surveyor that the body shell replaced at the request and under the compulsion of the appellant/complainant can be believed and accepted?
5. Whether the Forum below (CDRF, Kollam) can be justified in not relying on C1 expert commission report and the testimony of the expert commissioner as PW2?
6. Whether the appellant/complainant has succeeded in establishing his case that D5 voucher was executed and the sum of Rs.1,13,686/- was received under protest and under compulsion?
7. Whether the first respondent/first opposite party has succeeded in establishing their case regarding full and final settlement of the insurance claim preferred by the appellant/complainant with respect to the insured vehicle bearing Registration No.KL-2J 9818?
8. What order as to reliefs and costs?
11. POINT NO.1:-
Appellant herein filed IA.1232/10 seeking for amendment of the appeal memorandum for the purpose of incorporating an additional ground as ground No.26 in the appeal memorandum. The amendment sought for is as follows:-
“Ext.P3 supplementary estimate for repairs executed by the second opposite party and Ext.D1 final survey report executed by the surveyor of the first opposite party are executed in collusion with the second opposite party, subsequently and behind the back of the appellant/complainant in the above appeal”.
12. The aforesaid amendment sought for would make it clear that by the said amendment, the appellant is attempting to frame an entirely new case. It is to be noted that no such case of collusion between the opposite parties 1 and 2 was taken before the Forum below. There was not even a whisper about such a collusion between the opposite parties 1 and 2. It is to be noted that on general principle that a party to litigation /proceedings cannot be permitted to set out an entirely new case. There can be no doubt about the fact that substantial prejudice will be caused to the respondents by allowing the amendment sought for.
13. It is the fundamental principle that by amendment of pleadings a party cannot be permitted to cause substantial prejudice and inconvenience to the opposite party. It is also a settled position that amendment in the pleadings is a matter of procedure and the court is having discretion to grant or refuse the amendment sought for while exercising the said discretion to grant or refuse the amendment. It must be borne in mind that the amendment sought for must be necessary for just and proper adjudication of the disputes involved in the legal proceedings. It is true that the court or a legal authority can permit amendment of pleadings at any stage of the pleadings including at the appellate stage; but the said amendment must be necessary for just and proper disposal of the matter. In the present case on hand, appellant/complainant had no case in their written complaint or during the pendency of the proceedings before the Forum below regarding the alleged collusion between the opposite parties 1 and 2. It is pertinent to note at this juncture that the appellant/complainant has not alleged any deficiency in service or unfair trade practice on the part of the second opposite party/repairer. It is also to be noted that the complainant has not claimed any relief against the second respondent/second opposite party/repairer. So, the present case of collusion between opposite parties 1 and 2 can be treated as a new case developed at the appellate stage, as a result of an afterthought.
14. It is also to be born in mind that the presen pleadings regarding collusion between the opposite parties 1 and 2 cannot be decided by the agencies constituted under the Consumer Protection Act, 1986. The issues like fraud collusion undue influence and the like cannot be adjudicated or determined in summary proceedings like the proceedings before the Consumer Foras and State Commissions constituted under Consumer Protection Act, 1986. Thus, in all respects, the petition filed as IA.1232/10 seeking amendment of the appeal memorandum cannot be allowed. Hence, the aforesaid IA.1232/10 is dismissed.
15. POINTS 2 TO 5:-
There is no dispute that the appellant/complainant is the registered owner of Toyotta Qualis vehicle bearing Registration No.KL-2J 9818. The said vehicle was insured with the first respondent/first opposite party Oriental Insurance Company Ld; at their Punalur Branch. At the relevant time, the vehicle was having insurance coverage and during the subsistence of a valid comprehensive insurance policy, the vehicle met with an accident on 24.12.03 at about 1.30 AM (25.12.03). The vehicle sustained heavy damages including damage to the body of the vehicle.
16. The appellant/complainant being the insured intimated the first respondent/first opposite party Insurer of the vehicle about the accident and damage sustained. The damaged vehicle was also subsequently brought to the workshop of the second respondent/second opposite party, the authorized dealer and repairer of Toyotta vehicles. The second opposite party/repairer prepared estimate of the repairs of the said vehicle. Ext.P2 is the estimate of repairs dated 1.1.04 submitted by the authorized signatory or the second opposite party/repairer. As per P2 estimate of repairs, the second opposite party/repairer estimated the total repair charges at Rs.3,12,038/- which includes the labour charges and the cost of spare parts. It is pertinent to note that in P2 estimate, item No. 34 is the body shell having the cost of Rs.1,66,500/-. The appellant/complainant submitted his claim and also produced P2 estimate of repairs submitted by the second opposite party/repairer. On getting P2 estimate, the first opposite party/insurer deputed licensed surveyor Suresh Babu to assess the loss sustained to the vehicle. The aforesaid licensed surveyor first visited the workshop of the second opposite party/repairer. He also made subsequent visits for assessing the loss to the insured vehicle and submitted his final report which is marked as D1. The aforesaid Suresh Babu was also examined before the Forum below as DW1. As per D1 survey report, the licensed surveyor (DW1) assessed the net total loss at Rs.1,16,792/-. The aforesaid assessment was made after deducting the policy excess of Rs.1000/- and depreciation value based on the terms and conditions of the policy. The aforesaid surveyor Suresh Babu was of the view that body shell need not be replaced, but the same can be repaired. He instead of replacing the body shell allowed the replacement of some of the parts for effecting repairs to the damaged body shell. He estimated the cost of the parts for replacing the damaged body shell at Rs.60,693/-. Thus, instead of Rs.1,66,500/- he allowed Rs.60693/- by way of the parts repaired for effecting repairs to the body shell. The surveyor has also produced photographs of the damage vehicle with negatives.
17. The definite case of the complainant is that he paid a total of Rs.3,20,896/- for effecting repairs to the damaged vehicle which was insured with the first opposite party/insurer. Appellant/complainant had also obtained cash receipt for payment of the aforesaid sum of Rs.3,20,896/- to the second opposite party/repairer. The appellant/complainant has also produced the aforesaid receipts in support of his claim for he said amount as repair charges including cost of the spare parts which were replaced. The second opposite party/repairer has also admitted acceptance of Rs. 3,20,896/- from the complainant by way of repair charges. The first respondent/first opposite party Insurance Company has not disputed the sum of Rs. 3,20,896/- paid by the complainant towards repair charges and production of the same for honoring the insurance claim. Thus, it is an admitted fact that the appellant/complainant incurred a sum of Rs. 3,20,896/- for getting the damaged (insured) vehicle repaired at the workshop of the second opposite party, te authorized dealer and repairer of Toyotta vehicles.
18. The insured vehicle was manufactured in the year 2000 and at the time of the accident, the vehicle was only 4 years old. The definite case of the complainant is that the body shell was heavily damaged and it required replacement. It is also the case of the appellant/complainant that the body shell was replaced by the second opposite party/repairer and that the repairer submitted the P2 estimate to effect the repairs including replacement of body shell. He categorically denied the case of opposite parties 1 and 2 that the body shell was replaced at the request of the complainant. It is pertinent to note at this juncture that the second opposite party/repairer in its written version has no case that the body shell was not in need of replacement and that the body shell was replaced only at the request of the complainant. It is stated in the written version filed by the second opposite party on this aspect as follows:-
“Since the body shell of the vehicle sustained major damages, the complainant requested the second opposite party to replace the body shell and accordingly the second opposite party replaced the body shell”
19. The aforesaid admission in the written version filed by the second opposite party would make it crystal clear that the body shell of the vehicle sustained major damages. It is not stated in the written version that the body shell does not require replacement or that the body shell can be repaired without replacing the body shell. In the absence of any such contention, it can only be concluded that the second opposite party also recommended for replacement of the body shell because of the fact that the body shell sustained major damages. There is no case for the second opposite party/repairer that by repairing the body shell, the vehicle can be repaired in a satisfactory roadworthy condition. It is pertinent to note at this juncture that the second opposite party has not contest any evidence in support of the case of the opposite parties that the body shell could have been repaired. It is also to be noted at this juncture that the second opposite party has not even prepared to file affidavit in support of the case of the first opposite party or to show that the body shell was not in need of replacement. This circumstance would only support the case of the complainant that the body shell was replaced based on the recommendation of the second opposite party/repairer.
20. The first opposite party/insurer much relied on the testimony of DW1 and D1survey report to substantiate their case that the body sell was replaced only at the request of the appellant/complainant insured) and that the body shell could have been repaired and to make the vehicle in a perfect roadworthy condition. They also relied on P3 supplementary estimate of repairs issued by the second opposite party repairer. One aspect to be noted at this juncture is the failure on the part of the first opposite party/insurer to produce the spot survey report submitted the spot surveyor Mr.Anilkumar, Kollam. A perusal of D1 survey report submitted by Suresh Babu (DW1)would make it clear that spot survey conducted by Anilkumar, Kollam and that the second surveyor Suresh Babu had occasion to scrutinize the spot survey report before finalizing his assessment. D1 survey report on his bottom would show the filing of the spot survey report by Mr.Anilkumar. It is as follows:-
“The spot survey was conducted by Mr.Anilkumar, Kollam and I have scrutinized his report before finalizing the assessment”.
21. The aforesaid recitals in D1 survey report would make it crystal clear that spot survey report is available with the first opposite party/Insurance Company. But there is no whisper in the written version filed by the first opposite party regarding the aforesaid spot survey report. No reason is also stated for the failure of the first opposite party (insurer) in producing the aforesaid spot survey report. This circumstance would give an indication that production of the spot survey report would go against the case of the first opposite party/insurer and that is why the spot survey report has been suppressed by the Insurance Company. The learned counsel for the appellant/complainant vehemently argued regarding the failure of the first respondent/first opposite party Insurance company in producing the spot survey report submitted by Mr.Anilkumar, Kollam. Even thereafter the first respondent/Insurance Company was not prepared to produce the spot survey report. So, this circumstance that would give an indication about the suppression of the spot survey report filed by the spot surveyor. It can also be seen that no ordinary course the spot survey report will be accompanied by photographs of the damaged vehicle. The production of the spot survey report and photographs would have thrown on light about the major damage caused to the body shell of the vehicle. The first opposite party/Insurance Company is not expected to suppress a valid piece of evidence from the perusal by the lower forum and this State Commission.
22. Before the Forum below, the complainant requested for appointment of an expert commissioner to assess the nature of the damage sustained by the body shell which was replaced by a new one was available with the appellant/complainant. The damaged body shell was kept in the premise of the complainant. The Forum below appointed Mr.K.Remesh Chandran as the expert commissioner. The expert commissioner is a retired Mechanical Engineer, KSRTC, Thiruvananthapuram. There can be no doubt about the fact that the expert commissioner is having past experience in the Automobile field. Any dispute regarding the competency of the expert commissioner Remesh Chandran. He was examined before the forum below as PW2. The expert report filed by him was marked as Exts.C1. It is to be noted that the expert commissioner conducted the inspection on 10.8.06. He conducted the inspection after giving notice to both parties and also in the presence of DW1 surveyor Suresh Babu. The expert commissioner as PW2 was cross examined by the counsel for the first opposite party. But nothing could be brought out to disbelieve the testimony of PW2. He categorically deposed that the body shell was damaged in the accident and there was slight shift to the left side and the replacement of damaged body shell was required. It is further deposed that repairing of the damaged body shell would not give perfection. In cross examination, he categorically deposed that by effecting repairs to the damaged body shell without replacement the vehicle will be accident. The evidence of PW2 would make it crysal clear that replacement of the body shell was required for the proper performance and perfect condition of the vehicle otherwise there is possibility of causing accident while plying the vehicle. The case of the first opposite party/Insurance Company that at the instance of the complainant manipulation has been done to the damaged body shell cannot be believed or accepted. PW2 has categorically deposed in his re-examination that there was no artificial damage caused to the body shell. But there were only natural damage to the body shell. It is true that the expert commissioner examined the damaged body shell after the lapse of 3 years from the date of the road traffic accident. But the mere lapse of 3 years would not change the nature of the damage sustained to the body shell. But the forum below failed to analyze the testimony of the expert commissioner as PW2.
23. The Forum below discarded C1 expert commission report on the sole ground that few words are added by the expert commissioner in C1 report and that the said words were added by writing with a different ink. It is pertinent to note at this juncture that the C1 report was filed by the expert commissioner with the aforesaid additions and corrections. There is no case for any of the parties to the complaint that those additions and correction were made subsequent to the filing of the report before the Forum below. It is to be turn in mind that the expert commissioner could have very well fault another report without any such writings in another ink. The fact that the expert commissioner filed the report with those corrections and additions would speak volumes about the genuine additions and corrections made by the expert commissioner on his second reading or final reading of the report. The mere fact that some additions or corrections are made in C1 report by the expert commissioner himself cannot be taken as a ground to doubt the genuineness and correctness of C1 expert report failed by the expert commissioner. So the Forum below cannot be justified in not relying on C1 commission report on the sole ground that some additions are made by the expert commissioner subsequently. The Forum below cannot be justified in finding that the handwriting is also different. The Forum below had no such expertise to say about the handwriting. But no such case was put to the expert commissioner when he was examined as PW2. It is also to be noted that the opposite parties have no such case that the additions and corrections are made in a different handwriting. It is to be noted that PW2 the expert commissioner has admitted the correctness of C1 commission report. So there is no justification for discarding C1 commission report by the forum below.
24. The evidence of PW2 and C1 commission report would make it abundantly clear that replacement of the body shell was must and the appellant/complainant (insured) is entitled to get the damaged body shell replaced and to get the damaged (insured) vehicle repaired in a perfect road worthy condition. It is also to be noted that the insured vehicle was only 4 years old and no owner of the vehicle is expected to have the repairs done in an unsatisfactory and imperfect condition. So the request of the complainant to get him to indemnified for the expenses incurred by him for replaced of the damaged body shell is to be allowed. The first respondent /first opposite party Insurance Company cannot be justified in disallowing the claim of the complainant with respect to the cost of the body shell which was replaced.
25. The first respondent /first opposite party much relayed on P3 supplementary estimate of repairs issued by the second opposite party/repairer. It is to be noted that P3 is not signed by the authorized signatory of the second opposite party. No date is also affixed to P3 estimate. The definite case of the complainant is that P3 supplementary estimate of repairs was given to the surveyor without the knowledge of the complainant. There is no case for the first respondent/first opposite party or the second respondent/second opposite party that the P3 supplementary estimate was given to the appellant/complainant. More over, the second opposite party has not adduced any evidence regarding the genuineness and correctness of P3 supplementary estimate of repairs. This circumstance would only support the case of the complainant that P3 supplementary estimate was prepared at the instance of the surveyor and to satisfy the surveyor. It is for the surveyor to prove the genuineness and correctness of the P3 supplementary estimate.
26. The case of the respondents 1 & 2 is that the body shell was replaced at the request of the complainant. But P2 estimate would not give any such indication. On the other hand, P2 estimate would only show the authorized repairer recommended replacement of the body shell. DW1, Suresh Babu in his re-inspection report dated 15.3.04 as stated in the remarks column as follows:-
Remarks:- “The repairer replaced the new body shell instead of repairing the damaged body shell with the separate parts recommended in my final survey report. On enquiry with the repairer, they said that, the insured has agreed to bear the difference of amount sanction by the Insurance Co: for repairing the body shell and repairing different vehicle with the new body shell. Being the all recommended body parts are came in the new body shell, the insurers may consider Rs.60,693/- + Taxes for the cost replaced body spare parts, which has came on the new body shell instead of individual parts recommended in my final survey report for repairing the body shell against the submitted bill of new body shell by the insured”.
27. The aforesaid recitals in the re-inspection report dated 15.3.04 cannot be believed or accepted without any supporting evidence. The second opposite party has not adduced any evidence to show that there was such an understanding or agreement with the complainant and the repairer to replace the damaged body shell and that the complainant/insured was ready to pay the difference amount. DW1 has no case that the complainant made any such assurance or demand for getting the damaged body shell replaced at the risk and expense of the complainant. It is to be noted that in the ordinary course the repairer should get a written endorsement or agreement evidencing the aforesaid understanding or agreement for replacement of the body shell at the risk and expense of the complaint/insured. In the absence of any such evidence, it can only be concluded that the body shell was replaced as it was in dare need of replacement.
28. The evidence of PW2, the expert commissioner stands unchallenged or un-controverted. It is to be noted that the second opposite party/repairer has not any question in the cross examination. Thus, the second opposite party in fact admitted that the expert evidence tendered by PW2. It is also to be noted that the second opposite party/repairer has not filed any objection to C1 report. The first opposite party/insurance Company filed objection to the expert report. But this objections could not be substantiated by the first opposite party/Insurance company by examining any other expert, An appraisal of the oral testimony of DW1 that of the testimony of the expert commissioner as PW2 would make it clear that DW1 cannot be relied for discarding the testimony of PW2. It is pertinent to note that DW2, the licensed surveyor is only a diploma holder in automobile engineering. There is nothing on record to show that DW1 had any work experience in the field of automobile engineering. He is only a loss assessor and valued. On the other hand PW2 is having work experience as a Mechanical Engineer in the Automobile field. It is to be born in mind that during the earlier period, Mechanical Engineers were dealing with the Automobile Engineering works. The Automobile Engineering was part and parcel of Mechanical Engineering. PW2 being a degree holder in mechanical engineering and he is having past experience in the Automobile Engineering field, the expert opinion given due weight and probative value. His evidence is that for obtaining perfect condition and perfect performance for the vehicle the replacement of damaged body shell was needed is to be accepted. Another important aspect is to be noted in the testimony of DW1 is that the repair to the body shell is to be done by removing parts of the body shell and building the same with the spare parts. DW1 himself is of the opinion that more expertise is required for the mechanic to get perfect condition to the vehicle. It is to be noted that the original body shell will not be having so much welding. The evidence of DW1 show that the damaged body shell could be repaired only by making so many buildings. In the ordinary course, no owner and insured of the vehicle will be interested in getting the body shell repaired by making so many buildings. More over, the owner and insured of the vehicle will be very much interested in getting perfect condition to the vehicle on effecting repairs. So it can very safely be concluded that replacement of the body shell was a dare need to get perfect condition and performance of the vehicle. First opposite party/insurance company cannot be justified in insisting the complainant/insured to get himself satisfied with the imperfect condition of the body shell and the vehicle. So the claim of the complainant for cost of the replaced body shell is to be allowed.
29. The surveyor who filed DW1 survey report assist the net loss at Rs.1,16,793/-. According to DW1, the surveyor/repairer agreed for repairing the damaged body shell. But, there is nothing on record to show that the approved repair work agreed for repairing the damaged body shell. There is also acceptable evidence to show that the damaged vehicle could be repaired in a perfect condition without replacing the damaged body shell. DW1 survey report itself would not give any indication at what amount the repairer had agreed to repair the damaged (insured) vehicle. No documents is forthcoming from the side of the first opposite party/insurance company or from the side of the surveyor (DW1) regarding the agreement or understanding entered into between the surveyor and the second opposite party/surveyor regarding the repair cost including the cost of parts to be replaced. It is to be born in mind that the first opposite party/insurer has a bounden duty to indemnify the complainant/insured to get the damaged vehicle repaired in a perfect condition. Exhibit P1 is the insurance certificate from the policy schedule. But the terms and conditions are not incorporated in P1 insurance certificate from policy schedule. The first opposite party/insurance company has not produced the terms and conditions of the policy of the insurance. The approved surveyor who filed D1 survey report as made depreciations at various rates. There is nothing on record to show that what was the depreciation that can be made. At some place, the surveyor has made depreciation at the rate of 15% and in yet another he has effected depreciation at the rate of 25%. But no acceptable reason is shown for the aforesaid rate of depreciation.
30. D1 survey report would show that the labour charge estimated by the approved repairer would come to Rs.61,560/-. But the surveyor assessed the labour charges at Rs.46,440/-. But there is nothing on record to show that the repairer agreed to effect repairs to the damaged vehicle at Rs.46,440/-. The surveyor has no case that any other repairer had agreed to effect the repairs to the vehicle at Rs.46,440/- as labour charges. Thus, D1 survey report cannot be taken as a valuable piece of evidence in assessing the damages sustained by the complainant/insured. There can be no doubt that the surveyor’s report is to be treated as a valuable piece of evidence and rejection of the survey report would amount to serious miscarriage of Justice [2000) 10 SCC-19]. At the same time, it is to be noted that survey report is not the last and final word and that survey report is not conclusive. If reasonable and valid reasons are available, the survey report can be discarded [ IV (2009) CPJ 46 (SC), 2009 CTJ 599 (SC) (CP) ]. In the present case on hand D1 survey report will not help the Consumer Forum in resolving the dispute involved in the consumer complaint. The materials available on record would make it clear that D1 survey report cannot be accepted as such. The admitted facts of the case would show that the appellant/complainant incurred a total of Rs. 3,02,896/- for getting the insured vehicle repaired. The second respondent/second opposite party/repairer accepted Rs.3,02,896/- by way of repair charges. In effect, the appellant/complaint being the insured incurred the aforesaid sum of Rs.3,02,896/- for repairing the insured vehicle. In the ordinary course, the first respondent/first opposite party insurance company being the insurer of the said vehicle is bound to indemnify the complainant for the loss of damages suffered by the complainant/insured.
31. The first respondent/first opposite party insurance Company has only paid Rs.1,13,686/- to the complainant/insured towards the loss suffered by the complainant in connection with repairing of the insured vehicle. Admittedly, complainant/insured spent Rs.3,02,896/- towards the repair charges. So, the claim for Rs1,89,210/- by way of balance insurance claim is to be allowed. Of course, the first respondent/first opposite party is entitled to get the policy excess of Rs.1,000/- deducted. The first respondent/insurance company can also make a deduction by way of depreciation. But there is nothing on record to show the rate of depreciation which is to be calculated. It is an admitted fact that the insured vehicle was manufactured in the year 2000. At the time of the accident in the year 2004, the vehicle was 4 years old. Considering this aspect, 10% can be deducted by way of depreciation. So, the amount of depreciation would come to Rs.30,290/-. Rs.1000/- can be deducted by way of policy excess. The total amount that can be deducted would come to Rs.31,290/-. So, the balance amount would come to Rs.2,71,606/-. Out of the aforesaid sum of Rs.2,71,606/- the complainant/insured received Rs.1,13,686/- from the first opposite party/insurance company. So, the balance insurance amount due to the appellant/complainant from the first respondent/first opposite party insurance company would come to Rs.1,57,920/-. These points are answered accordingly.
32. Point No. 6 & 7:-
The first respondent/insurance company has got a case that the insurance claim was settled by way of full and final settlement by paying Rs.1,13,686/-. The first respondent relied on D5 discharge voucher dated 14.9.04. it is to be noted that the complainant issued letter dated 14.9.04 expressing his protest in receiving the insurance claim amount of Rs.1,13,686/- and execution of the voucher. The complainant as PW1 has also deposed that he sent the protest letter on 16.9.04 and that the said letter was issued after accepting the insurance claim amount of Rs.1,13,686/-. The acceptance of such a letter is not disputed by the first respondent/insurance company. It is to be noted that D5 voucher and the covering letter dated 14.9.04 would show that the complainant/insured was given the said amount of Rs.1,13,686/- only on getting the discharge voucher executed by the insured. There is nothing on record to show that the first respondent/first opposite party insurance company was ready to disburse the admitted insurance claim amount of Rs.1,13,686/-. The very approach and attitude of the first respondent/insurance company would make it clear that they would disburse the said sum of Rs.1,13,686/- only by way of full and final settlement and that the insured was compelled to execute the discharge voucher by way of full and final settlement of the claim. Thus, it can be inferred that the complainant/insured had no other go other than to sign D5 discharge voucher dated 14.9.04. It is only after executing the said discharge voucher, the first respondent/insurance company disbursed the said amount of Rs.1,13,686/-. Thus, there was compulsion from the side of the first respondent/insurance company and the complainant/insured executed the voucher only to get the said amount toward the insurance claim amount. D5 discharge voucher cannot be treated as the voucher executed by way of full and final settlement of the insurance claim. The complainant/insured was compelled to sign the discharge voucher. Thus, there was coercive bargaining in getting D5 discharge voucher executed. It is also to be noted that DW2, the Assistant Manager of the first opposite party/insurance company has no case that the insurance company ought to have disburse the said sum of Rs.1,13,686/- under protest. They have also no case that the insurance company was ready and willing to disburse the amount which was admitted by the insurance company. On the other hand, the available circumstance and evidence would make it crystal clear that the first opposite party/insurance company should not have disbursed the said sum of Rs.1,13,686/- unless they got D5 discharge voucher signed by the complainant/insured by way of full and final settlement of the insurance claim. It can be held that the complainant/insured executed the discharge voucher without his free will and volition. On the other hand, the facts, circumstances and available evidence on record would make it clear that there was coercive bargaining from the side of the first respondent/first opposite party insurance company to get the D5 discharge voucher signed by the complainant/insured and that the complainant/insured was under compulsion to execute the voucher for the purpose of getting the said sum of Rs.1,13,686/- towards the insurance claim. The acceptance of the said amount can only be considered as acceptance of part claim or that the said amount was received under protest. The case of the first respondent that there was full and final settlement of the insurance claim cannot be upheld. The finding of the Forum below regarding full and final settlement of the insurance claim cannot be accepted and the same is liable to be set aside. These points are answered accordingly.
33. Point No: 8:--
The forgoing discussion and the findings thereon would make it clear that the appellant/complainant (insured) is entitled to get a sum of Rs.1,57,920/- from the first respondent/first opposite party insurance company by way of balance of the insurance claim amount. The appellant/complainant is also entitled to get a sum of Rs.2000/- by way of cost and that the first respondent/insurance company will be liable to pay the same. The balance insurance claim of Rs.1,57,920/- will carry interest at the rate of 9% per annum from the date of this judgment till the date of realization. In the circumstance of the case, the claim for compensation for general damages is disallowed. This point is answered accordingly.
In the result appeal is allowed. The impugned order dated 26th December 2009 passed by the CDRF, Kollam in CC No:462/2004 is set aside. The first respondent/first opposite party insurance company is directed to pay a sum of Rs.1,57,920/- by way of balance of the insurance claim amount to the appellant/complainant (insured) with cost of Rs.2000/-. The balance insurance amount of Rs.1,57,920/- will carry interest at the rate of 9% per annum from the date of this judgment till the date of realization. The first respondent is directed to pay the decree amount to the appellant/complainant within one month from the date of receipt of copy of this judgment.
M.V.VISWANATHAN -- JUDICIAL MEMBER
VALSALA SARANGADHARAN -- MEMBER
