D.O.F:16/01/2015
D.O.O:31/10/2019
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.17/2015
Dated this, the 31th day of October 2019
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M: MEMBER
Sreejayan U, aged 39 years
S/o Late Karuvan
R/at Jayan Nivas, Pariyaram,
P.O Uduma, Hosdurg Taluk, Kasaragod District : Complainant
(Adv: John Thomas)
And
- Shriram General Insurance Co. Ltd
Rep: by its General Manager
E-8, EPIP, RIICO Industrial Area,
Sithapura, Jaipur -32022, Rajasthan: Opposite Parties
(Adv: A.C Ashok Kumar)
- Branch Manager
Shriram Transport Co. Ltd
1st Floor, Thalangara Gate building,
Opp: IBP Petrol Pump, Nullipady,
Kasaragod -671121
(Adv: K.A.Lalan)
O R D E R
SRI.KRISHNAN.K : PRESIDENT
This complaint filed under section 12 of Consumer Protection Act for an order directing the Opposite Party to pay Rs.336900/- as insurance amount Rs.3,00,000/- for compensation and Rs. 50,000/- for mental agony and costs of litigation.
The brief facts as set out in the complaint are that the complainant is a physically handicapped person, engaged in quarry business. He is the owner of three LMV goods carrier Trucks. All the vehicles are subjected to hire purchase agreement with Opposite Party No:2. The Opposite Party No:2 induced complainant to obtain insurance of the vehicle with Opposite Party No:1. The complainant agreed and obtained the policy by paying premium for the period from14/11/2012 to 13/11/2013 for the vehicle KL-60 B 1377. Vehicle is valid at Rs.336960/- as insurance declared value and paid premium of Rs. 15928/-.
On 26/09/2013 at about 12 ‘O’ clock midnight vehicle is set by fire by anti social elements mini lorry above said sustained damages. Bekal Police registered Crime No. 741/2013 under section 435 of IPC among others, final report filed as CC 493/2014 pending disposal.
Complainant preferred his claim with Opposite Party No:1 for total loss of vehicle. The complainant received the letter from Opposite Party NO:1 dated 04/04/2014 informing that claim is closed. The complainant sent registered letter dated 28/04/2014 to pay amount as per policy terms but not sent any reply. Thus complainant suffered heavy loss and prayed for to direct the Opposite Party to pay compensation and insurance amount and cost of litigation. Hence the complaint.
The Opposite Party filed its version disputing the claim of complainant specific case of Opposite Party No:1 is that vehicle is set on fire by known political opponents. Complainant did not take any protective steps to prevent the lorry being damaged, that Opposite Party No:1 is not liable to reimburse the loss. Further it is stated that Opposite Party No:1 made arrangement to survey the vehicle on receipt of the claim, requested to produce the vehicular documents, that in the meantime, submitted its report assessed the loss as Rs.130863/- that complainant has not commenced its work, hence Opposite Party No:1 sent letter requesting them to commence repairing works and to complete it, but complainant refused it despite registered notices on 04/04/2014, and non-sending of copy of report of surveyor is denied. Further denied assessment of loss by AMVI at Rs.3,00,000/- assessment if any is without any basis. Claim for total loss is denied. Since total loss of repair not exceeds 75% of IDV of the vehicle, that in the event of partial loss, claimant is entitled to actual and reasonable cost of repair or replacement damaged parts subject to depreciation. Therefore prayed to dismiss the claim with costs.
The Opposite Party No:2 filed written version resisting the case of complainant . Opposite Party No:2 submitted that the complaint is not maintainable at law. The Opposite Party No:2 denied all allegations made in the complaint and submitted that there is no unfair trade practice or deficiency in service. Further Opposite Party No:1 is a Finance company and nothing to do with insurance of vehicle by Opposite Party No:2. That Opposite Party No:2 canvassed insurance with Opposite Party No:1 is denied, dispute raised is not covered by section 2 (d) of Consumer Protection SAct and prayed for the dismissal of the complaint with costs.
Complainant filed proof affidavit. He was examined as Pw1 AMVI is examined as Pw2. Following documents are marked from his side namely Ext A1 to A6. A1 is the certificate of policy, Ext A2 is the FI statement and FIR, Ext A3 is the final report in the CC, Ext A4 is the report of AMVI, Ext A5 is the report filed by fire force department, Ext A5 is the letter repudiating the claim , Ext A6 is the copy of lawyer notice.
The Opposite Party No:1 filed proof affidavit. Ext B1 to B9 documents marked for Opposite Parties side. Ext B1 is the letter by Opposite Party No:1 request to commence repair work, Ext B2 is request by Opposite Party No:1, Ext B3 is the reminder and Ext B5 and B7 are the reply by Opposite PartyNO:1treating the claim as no claim. Ext B8 is the report of surveyor and B9 is the policy and Ext B6 is the claim form Dw1 is examined on the side of Opposite Party No:1.
Following points arise for consideration in the case:-
- Whether complainant is a consumer
- Whether rejection/ repudiation of claim and not treating the loss as total loss of vehicle is justifiable?
- Whether there is any deficiency in service from the part of Opposite Parties?
- Whether complainant is entitled for compensation. If so as to what releifs?
All the points are discussed together and a finding is given accordingly. Both parties were heard, parties filed notes of argument also Forum perused documentary as well as oral evidence.
Complainant’s case is that he is a businessman and nothing prevents him or rather it is compulsory to obtain insurance policy for any vehicle and purchasing an insurance policy is not for commercial purposes. In case of repudiation he is entitled to move before the forum under consumer protection and he is a consumer and dispute raised is a consumer dispute.
In case of motor insurance, a vehicle is considered to be a ‘total loss’ if the cost of repair of a vehicle damaged in an accident, exceeds 75% of the insured declared value (IDV) of the vehicle. IDV of the vehicle is generally (for vehicle up to 5 years old) decided by applying a pre –defined depreciation factor on the vehicle ex-showroom price. IDV of the vehicle will be deemed to be the ‘SUM INSURED’ for the purpose of the policy which is fixed at the commencement of each policy period for the insured vehicle. In this case it is a COMMERCIAL VEHICLE PACKAGE POLICY. The company will indemnify the insured against loss or damage to the vehicle insured here under and or its accessories whilst thereon. That is by fire explosion self- ignition or lighting. IDV will be treated as the ‘Market Value’ throughout the policy period without any further depreciation for the purpose of Total Loss (TL) Constructive Total Loss (CTL) claims. Hence in the case of total loss the maximum payment is equal to IDV of the vehicle as mentioned in the policy year in which the accident happened.
Opposite Party argues that vehicle was not completely burnt and thus it is not a total loss. Here immediate intimation was given to Police and Opposite Party. Opposite Party argued that rejection of the claim is as per the terms and conditions of the policy.
We have perused the investigation report marked as Ext A5, the report by fire force officer shows that damage caused to the tune of about Rs. 3,50,000/-. Report submitted by AMVI namely Ext A4 shows that damage caused by fire is estimated as Rs.3,50,000/- Bekal Police in their Final Report Ext A3 shows that damage by fire caused to the lorry care to about Rs. 3,50,000/-. Ext A4 is proved by examine the witness Pw2 Opposite Parties counsel put suggestion that amount of Rs. 3,00,000/- mentioned in the report is high but denied by Pw2.
Ext B6, report of surveyor is filed after deducting depreciation. This report shows that assessment was made on superficial inspection of vehicle. In chief examination itself Dw1 deposed that Cabinet Assembly is completely burnt. Hence replacement is required. By inspections he deposed that except the Cabinet other parts are reparable. In cross he says that wiring completely damaged by burning. He did not start the vehicle. He fairly admitted that he is not in a position to say about its engine is workable condition.
When insurance policy was issued in favour of the complainant, the vehicle was inspected by employee of Opposite Party No:1 and after investigation the value of the lorry assessed Rs. 33,6960/- and premium was received by Opposite Party NO:1 . On IDV of the vehicle. Since insurance benefits are not paid on the ground of refusal to start repair works is not as per law. Damaged vehicle is the property of the insure company as salvage.
In New India Assurance Company Ltd Vs Pradeep Kumar (Civil Appeal No.3253 of 2002, dated April 9 2009. The Honourable Supreme Court referred to section 64 UM (2) of insurance Act and observed that even though the assessment of loss by an approved surveyor is a prerequisite for settlement of claim of Rs. 20,000/- or more, surveyor report is not the last and the final word. Even though it is the basis for settlement of claim. It is not sacrosanct and it is not binding on the insurer or the insured.
Complainant claimed only IDV of the vehicle shown in policy. The nonpayment of the same is the deficiency in service of Opposite Party No: 1 by which complainant has suffered not only mental tension but also financial loss. Complainant claimed Rs. 3,00,000/- compensation for loss sustained. But no evidence is adduced by complainant to prove it. But since insurance benefit is not paid in time, due to deficiency and delay in service and negligence he has suffered mental agony and tension. The rejection of claim is not based on legal and acceptable reason. The Opposite Party No:1 being the insurance company is liable to pay and complainant is entitled to receive compensations. On taking all relevant factors for arriving at the compensation to be paid in the circumstances of the case a sum of Rs. 20,000/- is found reasonable compensation. The relief claimed against Opposite Party No:2 is not maintainable.
Therefore we partly allow the complaint as follows
- The Opposite Party No: 1 shall pay a sum of Rs,3,36,960/-( Rupees Three lakh thirty six thousand nine hundred sixty ) being insured declared value of the vehicle to the complainant with interest @ 8% per annum from the date of complaint till payment and Opposite Party No:1 shall also pay a sum of Rs. 20,000/- ( Rupees Twenty thousand only) to the complainant towards deficiency in service, mental tension and agony and unfair trade practice and financial loss. Further Opposite Party No: 1 shall pay Rs. 5000/- (Rupees Five thousand only) towards litigation costs. Time fixed for compliance of order in 30 days from the date of receipt of order. Claim against Opposite Party No:2 rejected.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1.Certificate cum policy schedule
A2. First Information Report
A3. Final Report
A4. Report of AMVI
A5. Letter sent by ShriRam general insurance company to complainant
A6. Lawyer notice
B1. To B5 Office copy of the letter issued by OP No:1 to the complainant
B6. Motor Insurance Claim Form
B7. The copy to engineering work service centre
B8. Survey report
B9. Policy with conditions
Witness Examined
Pw1. Sreejayan
Pw2. Sreenivasan
Pw3.K Pandurang
Dw1. Raghavan Kizhakkeveetil
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
