Tamil Nadu

StateCommission

FA/68/2020

1.The Manager, The Oriental insurance Co Ltd., - Complainant(s)

Versus

S.Chitra, W/o Sivakumar - Opp.Party(s)

M/s.Nageswaran & Narichania

27 Jan 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE        Thiru. S. KARUPPIAH                           PRESIDING JUDICIAL MEMBER

                      Thiru. R. VENKATESAPERUMAL        MEMBER

 

F.A. No.68/2020

  (Against the Order dt.23.12.2019 in C.C. No.76/2014 on the file of the

D.C.D.R.C., Cuddalore)

                         

                                            DATED THE 27^th  DAY OF JANUARY 2023

 

1. The Manager,

The Oriental Insurance Co. Ltd.,

Bharathi Salai,

Cuddalore – 607 001.

 

2. The Regional Manager,

The Oriental Insurance Co. Ltd.,

U.I.L. Building, IV Floor,

No.4, Esplanade,

Broadway,

Chennai – 600 108.                                                       .. Appellants/Opposite parties.

 

- Versus -

1. S. Chitra,

W/o. Sivakumar,

No.14, Akkil Naidu Street,

Thirupathiripuliyur,

Cuddalore – 607 002.

 

2. S. Chitra’s Authorized Agent,

Thiru. M. Nizamudeen,

General Secretary,

Tamil Nadu Consumers Federation,

Cuddalore  -607 001.                                                         .. Respondents/Complainants.

 

Counsel for Appellants  / Opposite parties : M/s. Nageswaran & Narichania

1^st Respondent  / 1^st Complainant                         : Served called absent

2^nd Respondent  / 2^nd Complainant            : Given up by Memo dated:07.04.2022

          

This appeal came up before us for final hearing on 25.01.2023 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Thiru. S. KARUPPIAH, JUDICIAL MEMBER             

          This appeal has been preferred by the appellant / opposite parties against the order of the District Commission, Cuddalore dt.23.12.2019 in C.C. No.76/2014.

1.         The factual background culminating  in to  appeal is as follows:-

The complainant, S. Chitra purchased a Toyota Innova Car on 14.12.2012.  She insured the vehicle with the opposite party.   The period of insurance is from 14.12.2013 to 13.12.2014. The IDV fixed for the vehicle in the insurance is Rs.10,50,000/-.   The said Toyota Innova Car met with an accident on 08.06.2014.   The damaged car left up for repairing purpose at an authorised workshop. The workshop initially gave a quotation for Rs.8,74,500/-.  Secondly, on opening the inner parts of the vehicle they gave a quotation for Rs.11,26,160/-.   This fact was informed to the insurance company.  The total loss of the repair value exceeded the cost of the vehicle.   The complainant requested the opposite party to pay the claim amount under total loss basis, for which, the opposite party did not give any proper reply.   Hence, this complaint is filed claiming the insured amount of Rs.10,50,000/- and Rs.25,000/- towards compensation for mental agony and also claiming income loss of Rs.1,000/- per day.   

2.         The opposite party in their written version has stated that though the accident and insurance with the opposite party were admitted, the vehicle was surveyed by the Surveyor and they are liable to pay only as per the Survey Report.

3.         Both sides filed their proof affidavits and Ex.A1 to Ex.A13 and Ex.B1 to Ex.B5 were marked.  After perusal of the entire materials, the District Commission found that the vehicle was totally damaged and awarded Rs.8,40,000/- towards insurance amount and Rs.25,000/-  towards compensation for mental agony with cost of Rs.5,000/-.

4.         Aggrieved over the above order, the insurance company preferred this appeal on the following Grounds:

5.         The Order of the District Commission is erroneous in law.  The District Commission has failed to note the Surveyor assessment was more authenticated and he rightly calculated the loss as Rs.5,23,198/-.  The District Commission has failed to note that the vehicle was not completely damaged as demanded by the complainant.   Hence, they prayed to allow the appeal and set aside the Order dt.23.12.2019 of the District Commission, Cuddalore.

6.         We heard the arguments of the appellant’s side.   The 1^st respondent was not present.  Even though the respondent / complainant was not present, we inclined to decide the appeal on merits.   

7.   Hence, on perusal of the arguments of the appellant, the point for consideration  is:       

        1) Whether the District Commission assessment  of loss is sustainable in law?  

        2) Whether the appeal has to be allowed or not?

8.         As stated earlier, both sides admitted the vehicle was insured with the insurance company and the period of insurance was from 14.12.2013 to 13.12.2014.  The insurance policy was marked as Ex.A6.  In Ex.A6, IDV is shown as Rs.10,50,000/-.  From this endorsement, we conclude that the vehicle / from Ex.A1 was purchased in the year 2012 and after considering the depreciation for 12 months, the market value of the vehicle for insurance purpose is fixed as Rs.10,50,000/-.   During the subsistence of the insurance coverage, the vehicle met with an accident on 08.06.2014.   The factum of accident was not denied by the insurance company.   The First Information Report with regard to the accident was marked as Ex.A7.   The insurance company did not deny the fact that the vehicle was left for repairing with the authorized workshop and the authorized workshop have given 2 quotations; one before opening the inner parts and the other after opening the inner parts of the vehicle.  Both quotations were marked as Ex.A8 & Ex.A9 for Rs.8,77,546/- and Rs.11,26,160/- respectively.   The insurance company never took the plea that the above quotations are exaggerated at the instigation of the complainant.  They did not question  the parts value and damaged parts particulars in their counter.   Apart from this, even the Surveyor Report relied on by the opposite party and marked by the opposite party as Ex.B2, the parts value has been relied upon by the Surveyor.  So, we felt that the above quotations are genuine in nature, reflecting the actual damages. 

9.         Considering the damaged parts and its value, we come to a conclusion that the vehicle was totally damaged.  On the other hand, the Learned Counsel for the appellant would argue , by relying upon the judgement of the Apex Court which was also relied by this Commission in C.C. No.140/2015.  For better appreciation the above portion of the judgement is reproduced herein IV (2021) CPJ 1 (SC)  Supreme Court of India Between Khatema Fibres Limited Vs. New India Assurance Company Ltd. & Anr. In which it is observed   that " the Surveyor Report is more authenticated and it has got statutory force. Ignoring the Surveyor Report, the Order has been passed by the District Commission, is liable to be set aside".   Though the Surveyor Report cannot be ignored by the Commission still it can be discussed to arrive a just decision by the Commission when the Surveyor Report was lacking adequate reasoning.  In this case, the Surveyor Report Ex.B2, the Surveyor has mentioned the total loss as Rs.10,01,135/- and the IDV value is Rs.10,50,000/-.  But based upon the quotation, the Surveyor deducted a heavy amount towards depreciation of certain parts.  Only after deduction of depreciation, the amount has been fixed by him as Rs.6,02,268/-.   It is pertinent to mention here that considering the number of parts damaged and its importance, we come to the conclusion that the vehicle was totally damaged . To assess whether the vehicle was totally damaged or not we have to see what are the parts damaged in the accident and its actual value.  To add our discussion we wish to emphasize the IDV of the vehicle is fixed as Rs.10,50,000/- after deducting the depreciation value. Again while assessing the value the Surveyor deducted the depreciation value of the parts.  Of course the deduction can be made by the Surveyor just to reimburse the repair value of the vehicle.   But to ascertain whether there is total loss or partial loss of the vehicle the amount should not be deducted.   Hence, we conclude the quotation given by the complainant which were not questioned by the opposite party in the written version, proof affidavit holds good and on the basis, the vehicle was deemed to be taken as completely damaged   In this aspect, we refer the order of the National Consumer Disputes Redressal Commission in "Sher Singh Shobta vs National Insurance Co. Ltd. on 23 September, 2013" and reproduced the relevant portion                     "After having perused the survey report, we are, however, not in agreement with the conclusion of the Surveyor that despite this extensive damage the vehicle was repairable and that after deducting depreciation of 50% and 40% on rubber/plastic parts and metal parts respectively, the total net loss comes to Rs.1,48,578/-. From a perusal of the damages listed out by the Surveyor, we note that almost every part of the vehicle was severely damaged, including the chassis, the engine and over 66 other important components of the vehicle.Under the circumstances, it is difficult to appreciate how the vehicle which has suffered such extensive damage could be repaired and made roadworthy. We are also unable to appreciate how the Surveyor has deducted 50% and 40% on account of depreciation of rubber and metal parts respectively since the vehicle had been insured just 9 months prior to the accident and at that time the Insured Declared Value of the vehicle was Rs.10,50,000/-. Once having insured the vehicle for this amount, such a high percentage of depreciation is totally unjustified. This issue has been squarely settled by a judgment of the Hon’ble Supreme Court in Dharmendra Goel Vs. Oriental Insurance Company Limited [(2008) 8 SCC 279], wherein it has been held that the Insurance Company after having accepted the value of a particular vehicle could not disown that very figure on one pretext or other when they are called upon to pay compensation. This take it or leave it attitude was      clearly unwarranted not only as being bad in law but ethically indefensible." So having decided that the vehicle was totally damaged and loss is to be worked out on total loss basis.   We ignore the Surveyor Report which is illogical.   The District Commission also found that the vehicle was completely damaged and insurance claim has to be paid on total loss basis and  awarded Rs.8,40,000/- . For this conclusion and finding, the complainant did not file any appeal against this fixation of compensation amount and hence we also confirm the above amount and inclined to dismiss the appeal with cost of Rs.5,000/-.

10.     In the result,

1. This appeal is dismissed;
2. The order of the  District Commission in C.C. No.76/2014 dt.23.12.2019 is confirmed;
3. The appellant is directed to pay Rs.5,000/- (Rupees Five Thousand only) towards cost to the respondent in this appeal.

 

    -Sd-                                                                                    -Sd-

MEMBER                                                                               PRESIDING JUDL.MEMBER

    (RVP)                                                                                         (S.K.)