BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1241/2008 against C.C. 104/2006, Dist. Forum, Kakinada
Between:
The New India Assurance Company
Rep. by Branch Manager
Peddapuram Road
Samalkot. *** Appellant/
Opposite Party
And
Sri Tirumalesa Road Lines
Rep. by its Partner
D.No. 27-6-10, Vaddadivari Lane
Temple Street, Kakinada. *** Respondent/
Complainant
Counsel for the Appellant: M/s. Naresh Byrapanenil
Counsel for the Respondent: M/s. E. V.V. S. Ravi Kumar.
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT.M.SHREESHA, LADY MEMBER.
TUESDAY, THIS THE FIFTH DAY OF OCTOBER TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) This is an appeal preferred by the opposite party insurance company against the order of the Dist. Forum directing it to pay Rs. 3 lakhs covered under the policy together with costs.
2) The case of the complainant in brief is that it has taken an insurance policy for its prime mover vehicle for a sum of Rs. 3,33,340/- covering the period from 3.6.2005 to 2.6.2006 . While so on 9.2.2006 the vehicle met with accident due to which the very vehicle was damaged. On a report a case was registered in Crime No. 21/2006 of Penubally police station. It has got the vehicle repaired through M/s. Venkata Padmavathy Mechanical Workshop, Autonagar, Vijayawada and then made claim. It had appointed one Sri A. Chandrasekhara Rao as surveyor and loss assessor assessed the loss as total loss. The insurance company by its letter agreed to settle the claim provided the vehicle was delivered to it. In fact the vehicle was worth Rs. 10 lakhs. The policy terms does not stipulate that the vehicle should be surrendered for payment of insurance claim. Later it wrote a letter to settle the claim for Rs. 3 lakhs for which the insurance company directed to deliver the vehicle worth Rs. 10 lakhs. Therefore it filed the complaint directing the insurance company to pay Rs. 3 lakhs and costs.
3) The appellant insurance company resisted the case. While admitting the vehicle was insured with it on the declaration of the value of the vehicle at Rs. 3,33,340/-, now the complainant cannot turn round and claim that the vehicle was worth Rs. 10 lakhs. When the vehicle was totally damaged and the complainant claimed the entire amount spent at Rs. 3 lakhs which was the value of the vehicle, as per clause 4 of the conditions it had an option to pay damages if the wreck was delivered. It was ready to pay the said amount provided the vehicle was delivered to it. It could not have both benefits under the policy. From the beginning it has been claiming delivery of the damaged vehicle. It did not repudiate the claim. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of its case filed the affidavit evidence of its partner and got Exs. A1 to A12 marked while the appellant did not file any documents.
5) The Dist. Forum after considering the evidence placed on record and relying clause No. 4(a) (b) of the policy Ex. A7 opined that limitation as to the liability of the insurance company should not exceed the insured declared value and the insurance company received quotation for Rs. 5 lakhs for purchase of wreck could not have stated that it would settle the claim provided the entire wreck was delivered to it and therefore directed the insurance company to pay Rs. 3 lakhs together with costs of Rs. 1,000/-.
6) Aggrieved by the said decision, the insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. While directing it to pay Rs. 3 lakhs it ought to have directed the complainant to surrender the vehicle, more so, when the declared value was Rs. 3,33,340/-. Therefore it prayed for dismissal of the complaint.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant a partnership firm got the prime-mover vehicle insured for a sum of Rs. 3,33,340/-. Neither the complainant nor the insurance company filed the policy in order to appreciate the contentions taken recoursing to the terms of policy. It looks as though the property insured was prime mover and tanker. The complainant did not file any evidence to show the price paid by it for purchasing the vehicle. While so it met with accident on 9.2.2006 and intimated about it. It was taken to M/s. Venkata Padmavathy Mechanical Workshop, Autonagar, Vijayawada and obtained estimate and preferred the claim for payment of Rs. 3,33,340/-. The insurance company had appointed Sri A. Chandrasekhar Rao, Surveyor and loss assessor . He inspected the vehicle on 16.2.2006 and assessed ‘at random’ and opined that the liability of the insurance company would be more than Rs. 5 lakhs as against sum assured of Rs. 3,33,340/-. Obviously the complainant had insured the vehicle for a lesser amount than its value. The insurance company equally did not assess its value, however gave insurance coverage for Rs. 3,33,340/-. Now both the parties intend to take advantage. While the complainant alleges that though the policy had been taken for Rs. 3,33,340/-, they incurred Rs. 5 lakhs towards repairs, and the insurance company taking advantage stated that it would treat it as total loss of wreck and willing to pay Rs. 3,33,340/- provided the vehicle was surrendered to them. The complainant did not agree for such course on the ground that the vehicle was worth more than Rs. 10 lakhs and settling the claim at Rs. 3,33,340/- and surrender of the vehicle would not arise.
9) This is a catch-22 situation. The insurance company would be undoubtedly liable to compensate the loss whatever occurred to the complainant subject to limitation of policy. The surveyor who assessed the loss had stated that the loss was more than Rs. 3,32,340/-. The surveyor did not assess the salvage on the ground that it was a total loss. When the surveyor opined that it was a total loss and nothing could be retrieved, it was made in order to enable to keep the vehicle by it paying a paltry amount of Rs. 3,32,340/-. Had the surveyor appointed by the insurance company assessed the salvage, the amount that could be directed to be paid by the insurance company could have been assessed, equally so with the complainant. The vehicle according to him worth Rs. 10 lakhs ought not to have been insured for Rs. 3,32,340/-. In these peculiar circumstances, we are of the opinion that the insurance company was at fault for not getting it valued at the time when the insurance policy was issued. Now it cannot turn round and state that the vehicle should be returned in order to pay the amount assessed by their own surveyor. In view of the estimate given by M/s. Venkata Padmavathy Mechanical Workshop, Autonagar, Vijayawada, and that the vehicle was insured for Rs. 3,32,340/- which fact was not disputed by the insurance company, we are of the opinion that the insurance company having agreed to reimburse the loss should pay the amount. The wreckage could not have been more than its worth. The question of surrendering the vehicle will not arise. In view of paucity of evidence in regard to value of wreckage, the insurance company was liable to pay the amount estimated by the Dist. Forum at Rs. 3 lakhs which we feel reasonable. We do not see any merits in the appeal.
10) In the result the appeal is dismissed. However, no costs. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 05. 10. 2010
*pnr
“UP LOAD – O.K.”
