ORDER
(By C.S. SULEKHA BEEVI, PRESIDENT) Complainant is the owner of excavator (JCB) KL 10/AA 3402. The
vehicle is insured with second opposite party and hypothecated to first opposite party. During the currency of the policy, on 6.6.2008 the vehicle sustained damage in an accident. On reporting the accident to second opposite party, a surveyor was deputed who assessed the loss. Complainant spend Rs.2,35,368.07 towards purchase of spare parts, Rs. 5000/- for towing charges, and Rs. 19,000/- towards labour expenses. He had submitted a claim form, claiming Rs. 2,59,368.07 as damages under the policy. Second opposite party informed through telephone that the claim amount has been sanctioned and that a cheque for Rs. 1,76,526/ is send to the complainant as part payment. After receiving the cheque complainant requested opposite party to pay the balance of Rs. 84842.07/-. But second opposite party has not paid any amount further. Complainant alleges deficiency in service. Hence this complaint, claiming the balance amount of Rs. 82,842.07 and Rs. 1, lakh as compensation together with costs. First opposite party who is the financier of the vehicle filed version stating that no reliefs are claimed against first opposite party and that the dispute is purely between complainant and second opposite party. Second opposite party filed version admitting the issuance of package policy for the vehicle JCB-3DX- Excavator bearing Reg. No: KL-10/AA 3402. It is submitted that on receiving the intimation regarding the accident Sri. M.Ashraf was appointed to conduct spot survey and later Sri. P.Saleem was appointed to conduct the detailed final survey. Both surveyors submitted their reports. Sri. Saleem had inspected the vehicle before and after the repair. Sri. P. Saleem has made the following assessment. Cost of spare parts- Rs.235,003/-
Labour Charges- Rs.13202/-
Salvage Value- Rs.15,000 Lifting & towing charge- Rs.2500
This surveyor also recommended for due deduction of depreciation noting that the vehicle is 1-2 years old. After receiving the survey report the claim of the complainant was processed in detail and was finalised for a sum of Rs. 1,76,526/-. The basis of computation is stated as under.
Spareparts: Rs 2,08,659.93-less depreciation @ 10% :Rs20,865.99+VAT Rs 23,474.29 Rs2,11,268.18 Labour charges & Towing etc Rs 15,700.00 -------------------- Rs 2,26,970.18 Less salvage Rs 15,444 ---------------------- Rs 2,11,526 Less Policy excess Rs 35,000 ----------------------- Rs 1,76,526 ________________ 4. That this computation was explained to the complainant and a sum of Rs. 1,76,526/- was paid as full and final settlement of the claim. Complainant accepted the amount without any dispute and therefore he has no right to raise any further claim. That opposite party did not make any part payment and is not liable to pay Rs. 82,842.07 as alleged in the complaint. That complainant is not entitled to any reliefs. 5. Evidence consists of the proof affidavit filed by complainant and Exts A1 to A5 marked for complainant. Second opposite party filed counter affidavit. No documents marked for second opposite party. 6. Points for consideration (i)whether opposite parties are deficient in service (ii)If so reliefs and costs Point (i)
7. No allegation is raised against first opposite party and the complainant does not claim any relief against first opposite party. 8. The main grievance submitted on behalf of the complainant is that though the surveyor has assessed Rs.2,33,205.56/- as damages, the complainant was paid only Rs. 1,76,526/- by second opposite party. 9. Resisting the complaint the foremost contention raised by opposite party is that the amount of Rs. 1,76,526/- was paid to complainant as full and final settlement of the claim and that complainant has no right to put forward any further claim. But Opposite party has not produced the discharge voucher or any document to show that the amount of Rs. 1,76,526/- was paid as full and final settlement of the claim. For this reason we hold that complainant is entitled to raise further claim in case he is aggrieved or dis satisfied.The only point that arises for analysation is whether opposite party was justified in paying an amount lesser than that was assessed by the surveyor. 10. Ext A2 is the final survey report submitted by Sri. P. Saleem. In Ext A2 the surveyor has assessed Rs. 2,0865993 as cost of spare parts. From this amount opposite party has deducted Rs. 20,865.99 as 10% depreciation. The amount given by opposite party towards claim of spare parts is only Rs. 2,11,268.18/- Ext A1 sales invoice shows that complainant has paid Rs. 2,35,368.07 towards cost of spare parts. This includes Rs. 26,384.21 paid towards VAT and 1% cess.The amount assessed by surveyor is Rs.2,35003.26/- When complainant has paid and incurred the expenses for VAT and cess, then opposite party is bound to indemnify the same. The deduction of 10% depreciation is not supported by any documentary evidence. Opposite party has not produced the policy condition to establish that such deduction is permitted under the policy. The burden rests upon opposite party to prove the reason for deduction . On this ground the deductions made by second opposite party from the amount of Rs. 2,35,003.26/- assessed by surveyour for spare parts is unjustfiable. Complainant is therefore entitled to Rs. 2,35,003.26 towards spare parts as assessed by the surveyor. 11. The surveyor has recommended Rs. 2500 towards towing charges and Rs. 13,202 towards labour -charges. Opposite party has allowed Rs. 15700/- on these heads and we hold that this amount does not call for any interference. 12. The salvage value assessed by surveyor is Rs. 15,000/- where as opposite party has deducted Rs. 15,444 as salvage value which is unreasonable. Further opposite party has deducted Rs. 35,000/- as policy excess. Again this deduction is totally unsupported by any documentary evidence and hence not justifiable . The total amount assessed by the surveyor is Rs. 2,33,205.56/-. Surveyor is an officer who is appointed under the provisions of the Insurance Act. The surveyor conducts his inspection after notice to the complainant. When alterations are made in the assessment made by the surveyor, opposite party is bound to inform the same to the insured. Unreasonable deductions in the assessment made by the surveyor is deficiency in service. We find opposite party deficient in serivice. 13. Point(ii)
The complainant claims for payment of Rs. 84,842.07 along with compensation of Rs. 1 lakh and cost of Rs. 5000/-. We consider that complainant is entitled to the amount as assessed by the surveyor together with the towing charges of Rs.2500/-. Thus the complainant is entitled to a total amount of Rs. 235705.56(233205.56+2500). Out of this Opposite party has paid Rs. 1,76,526/-. Thus complainant is entitiled to balance of Rs.59179.56 which is rounded as 59180/-. Complainant is entitled to interest @ 6% p.a upon this sum from the date of complaint till payment together with cost of Rs. 1000/- 14.In the result we allow the complaint and order opposite party to pay Rs. 59180/- to the complainant along with interest @ 6% p.a from the date of complaint till payment together with cost of Rs. 1000/- within one month from the date of reciept of copy of this order.- Dated this 13th day of August, 2010. C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to Ext A5 Ext.A1 : Original copy of Sales Invoice,dated 13.06.2010 Ext. A2 :Photocopy of Survey Report, dated 14.07.2008 by Sri. P.Saleem Ext.A3 :Photocopy of motor (spot) survey report, dated. 04/06/2008 by Sri. M. Ashraf. Ext.A4 :Photocopy of Motor Claim Form. Ext.A5 :Photocopy of Service Bill, Dated 13.06.2008 from Opposite party to Complainant. Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Nil C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER E. AYISHAKUTTY, MEMBER
| [HONOURABLE MRS. C.S. SULEKHA BEEVI] PRESIDENT | |