- The brief history of the case of the complainant is that he is a Civil Contractor and had purchased one Mahindra Tractor bearing Regn. No. OD 10B 3093 with the financial help of Ops 4 & 5 during the month of April, 2014 and the said vehicle was insured with New India Assurance Co. Ltd. Vide Policy No.550100/31/15/0100000662 valid from 29.4.2015 to 28.4.2016 for a Sum Assured of Rs.4, 54,400/-. It is submitted that the Ops 4 & 5 fixed the EMIs for the loan offered by them and the EMIs include the insurance premium for three years consecutively to be paid through the financier and accordingly insurance premium of Rs.23, 940/- was paid to the Ops 1 to 3 for the period 29.4.2015 to 28.4.2016. It is further submitted that on 11.6.2015 at about 1.30 A.M. while the vehicle was standing at camp site near village Ganjeipadar under Pottangi PS, some Maoists came and set the insured vehicle fire along with other vehicles. The fact of accident was intimated to the local PS as well as the Insurance Co. and Sri B. B. Patra, Surveyor of the Insurance Co. inspected the vehicle on next day and as per his advice, the vehicle was shifted to M/s. Paramount Automobiles, Jeypore on 19.6.2015. The Insurance Co. on 03.09.2015 deputed Er. S.C. Senapati who inspected the vehicle in pre dismantling condition and issued a letter on 22.9.2015 to the complainant to arrange dismantling the affected parts for further inspection. On request to repairer for dismantling of the vehicle, it issued a letter stating that the cost of repair will be more and may reach at the cost of new vehicle and he cannot arrange the testing as because due to ravages of fire, the inner parts of the vehicle have lost its temper. The complainant also further stated that the repairer had issued pre dismantling estimate of Rs.5, 86,874/- and the said estimate has been submitted with the Ops along with claim form and the decision of the repairer has been intimated to Ops 2 to 3 through OP.1 vide Complainant’s letter dt.10.11.2015 as well as to Ops 4 & 5 but the Ops remained silent. The complainant submitted that the Ops 4 & 5 being the financier have deposited the insurance premium on behalf of the complainant but they remained silent after realizing the EMIs every month. Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops 1 to 3 to settle the claim and pay the insured amount of Rs.4, 54,400/- with interest @ 18% p.a. considering the claim on total loss basis from the date of accident and to pay Rs.1.00 lac towards compensation besides Rs.20, 000/- towards costs to the complainant. Similarly the complainant has prayed to direct the Ops 4 & 5 to pay Rs.1.00 lac towards compensation to the complainant for their indifferent attitude in the whole matter.
2. The Ops 1 to 3 filed counter in joint denying the allegations of the complainant but admitted the insurance cover to the vehicle No. OD 10B 3093 of the complainant vide Policy No.550100/31/15/0100000662 for the period 29.4.2015 to 28.4.2016, the policy being issued by OP.2. It is contended that on receipt of fire accident report the Ops sent spot and final surveyors to assess the loss and as per norms the complainant submitted an estimate issued by M/s. Paramount Automobiles, Jeypore for Rs.5, 86,874/- and basing on the estimate, the Ops deputed Er. S. C. Senapati, Surveyor who inspected the vehicle in pre dismantling condition at repairer’s place and advised the repairer and the complainant to dismantle the vehicle in order to ascertain the quantum of damages. It is further contended that the complainant initiated for settlement of claim on total loss basis but the Ops suggested to settle the claim on repairing basis since the loss assessed by the Surveyor comes to Rs.2, 25,000/- which is less than 50% of the insured value of the vehicle. The Ops contended that as the loss estimated on repairing basis comes less than 75% of the insured value, the present claim is not coming under the purview of Constructive Total Loss (CTL) basis. The Ops also contended that the complainant could not comply the requirement for which post dismantling inspection could not be conducted by the Surveyor. Thus denying any fault on their part, the Ops prayed to dismiss the case of the complainant.
3. The Ops 3 & 4 also filed counter denying the allegations of the complainant but admitted about the loan of Rs.3, 90,000/- taken by the complainant for purchase of Tractor after executing loan agreement on 28.4.2014. The Ops contended that they have deposited the insurance premium with the Insurance Co. and the premium amount is being paid by the complainant to the Finance Co. through EMIs. The Ops challenged the maintainability of this case on the grounds of arbitration clause, jurisdiction clause of the agreement as well as the purchase of the vehicle for commercial purpose. The Ops specifically contended that the relation between the financier and the complainant is that of lender and borrower and the financier has no role if any dispute arises between insured and the insurer. With these and other contentions, denying any fault on their part, the Ops prayed to dismiss the case of the complainant.
4. The complainant as well as the Ops 1 to 3 has filed certain documents along with affidavits in support of their cases. Heard from the parties through their respective A/Rs and perused the materials available on record.
5. In this case it is an admitted fact that the complainant had taken a motor policy for his vehicle OD 10B 3093 from OP.2 vide Policy No.550100/31/15/0100000662 for the period 29.4.2015 to 28.4.2016 for a sum assured of Rs.4, 54,400/- and for the purchase of said vehicle the complainant had taken a loan of Rs.3, 90,000/- from Ops 4 & 5 vide loan agreement dt.28.4.2014. It is also an admitted fact that the complainant had paid the insurance premium of Rs.23, 940/- to the OP.2 through the financier who collects the insurance premium with EMIs. It is not a disputed fact that the complainant is a civil contractor and the insured vehicle while stationed at the camp site of the complainant near village Ganjeipadar under Pottangi PS, some Maoists set the vehicle fire on 11.6.2015 night and the fact has been duly intimated to the Ops as well as the local PS. On intimation the insurance co. has deputed Sri B. B. Patra as spot surveyor and Er. S. C. Senapati as final surveyor. The case of the complainant is that the surveyor insisted dismantling of the vehicle for assessing quantum of loss but the repairer states that the cost of repair may be higher than the cost of the new vehicle and the Ops as per pre dismantling assessment are insisting to settle the claim on repairing basis with reason that the repair cost is less than 75% of the IDV.
6. From the above rival contentions of the parties the following issues emerge importance for consideration. (a) Whether the claim can be settled on repairing basis or total loss basis of assessment is necessary to settle the claim, (2) Whether the assessment of final surveyor is genuine, (3) Whether the Ops committed any deficiency in service and (4) if so as to what relief.
7. While deciding issue No.1 it is seen that the accident took place on 11.6.2015 and as per advice of Er. B. B. Patra, Spot Surveyor, the vehicle was shifted to M/s. Paramount Automobiles, Jeypore on 19.6.2015 who is the authorised dealer and repairer of the tractor. The surveyor has submitted his report stating the extent of external physical damages caused to the vehicle. The observations of the surveyor are as follows:-
(a) All the metal parts were badly burnt as were contacted with the extensive fire due to which it lost its normal/tensile strength. All glass parts were broken.
(b) The Rubber, plastics, seats etc and all such materials comprising it, was completely burnt and was left behind in a skeleton structure.
(c) The sheet metal comprising it was burnt and was affected due to the fire.
(d) The vehicle was completely burnt and the paint was completely discharged.
(e) All the electrical parts were burnt completely and were turned into ashes.
(f) The Chassis Assly was heat treated due to the extent of fire.
(g) All the mechanical parts described in detail were very badly burnt as were contacted with extensive fire due to which it lost its normal/tensile strength.
(h) All the mechanical parts described in detail were very badly burnt as were contacted with the extensive fire due to which it lost its normal/tensile strength.
- Both burnt on the back and on LHS front, the residue was left behind.
8. The above observation of the spot surveyor dt.22.7.2015 is quite elaborative and clears which apparently shows the extent of damage caused to the insured vehicle. As per the advice of the surveyor, the vehicle was shifted to the authorised garage on 19.6.2015. The complainant has submitted claim form along with pre dismantling estimate of the repairer to the tune of Rs.5, 86,874/-. It is seen that the vehicle was inspected in the pre dismantling condition on 03.09.2015 and the surveyor issued a letter on 22.9.15 to arrange dismantling.
9. The complainant stated that he approached the repairer to take up the repair work but it denied and issued a certificate stating that the burnt tractor can be repaired as per the request of the complainant but the repair cost will be more and may reach to the cost of the new one. The repairer further observed that if at all the burnt tractor is repaired, the Agency cannot arrange about the testing as the interior parts of the tractor have already been affected by fire and have lost their temper. It is also seen that the above facts have been intimated to the Ops by the complainant through its letter dt.10.11.2015 by Speed Post and the OP.1 has received by hand.
10. It is found that the 2nd letter of Er. Senapati came on 27.1.16 advising the complainant to dismantle the affected portion of the tractor for post dismantling survey. This time the complainant wrote to the surveyor on 09.2.16 to contact the repairer to dismantle the vehicle at the sole risk of the surveyor as the repairer is not paying any heed to the request of the complainant. The copy of this letter has been sent to Ops 1 to 3 separately.
11. From the above discussions it was ascertained that the repairer is not at all interested to dismantle the vehicle as it has been badly burnt. In this regard, the repairer has issued a certificate which is available on record. We have perused the said certificate of the repairer. The observation of the repairer has been intimated to the Ops 1 to 3 as well as the surveyor. The complainant has requested the surveyor as well as Ops to convince the repairer for dismantling of the vehicle but all of them remained silent. If the authorised repairer was not willing to dismantle the vehicle by seeing its condition in spite of the efforts of the complainant and the said fact is within the knowledge of the surveyor as well as Ops 1 to 3, then we do not find any fault on the part of the complainant in this matter. The Ops 1 to 3 as well as the surveyor in these circumstances should come forward to the rescue of the complainant. Their silence in the matter was not genuine and fair. From the above facts it was also ascertained that the vehicle has been extensively damaged and cannot be repaired and if repaired, the cost may touch the cost of new vehicle that to without guarantee of running of the vehicle.
12. Further the Surveyor, Er. B. B. Patra in his report has elaborately described the quantum of loss. From the bare reading of the said report it was ascertained that the entire metal parts, electrical parts, mechanical parts, Chassis Assly etc. have been badly burnt, damaged and have lost their normal/tensile strength. Some parts of the vehicle have been reduced to ashes and the residue/ashes are left behind. The affected parts are the vital parts of the tractor. This report clearly indicates the quantum of loss and condition of the vehicle and we are fully convinced from the available materials on record that the vehicle has been badly burnt and if at all repaired, it may not regain its strength. As such there should not be any doubt and tussle between the parties regarding the condition of the vehicle in question. From the above facts and circumstances, it was concluded that the vehicle after fire accident is of no use and hence the claim is to be settled on total loss basis but not on repair basis. The Issue No.1 is decided in favour of the complainant.
13. Issue No.2 is whether the estimation of garage surveyor is genuine. In this case the final surveyor has given its interim survey report reflecting the provisional assessment along with estimate of repair in pre dismantling condition. We have perused the said report and estimate and found that the report of spot surveyor and garage surveyor are not matching to each other. The garage surveyor has tried to hide many things in his report. The complainant is all along grumbling about certificate issued by the repairer. In reply to letter dt.22.9.2015 of the garage surveyor, the complainant has also requested the surveyor as well as Ops separately to contact with the repairer to convince him to dismantle the vehicle but they remained silent. The garage surveyor submitted pre dismantling estimate of Rs.2, 25,000/- for repair and stated that this estimate is less than 75% of the IDV and hence the claim cannot be settled on total loss basis. If the pre dismantling repairing cost goes to Rs.2, 25,000/-, it is obvious that the post dismantling estimate will be more. The repairer has opined that the cost of repair may reach the cost of a new vehicle. He has also submitted pre dismantling repair cost at Rs.5, 86,872/- to which the garage surveyor has not taken into consideration. The spot surveyor in his report vividly described about the extensive damages caused to the vehicle and the vehicle has already lost its temper. In the above circumstances, we do not believe that the cost of repair is only 50% of the IDV.
14. One thing as we find in the survey report which disappointed us is that the surveyor has allowed towing charge of the vehicle at Rs.1500/-. This estimate has been sarcastically made. For shifting of burnt tractor to Jeypore, a trailer is required. Further to lift the tractor to the trailer, a Crane is required for loading and unloading. To finish the items at least a sum of Rs.15, 000/- is required. We failed to understand as to how a surveyor has estimated the towing charges at Rs.1500/- only and on what basis. So the surveyor has not done this on proper application of mind. Therefore, we find no sanctity in the report and estimate of the garage surveyor. If this type of estimate is made by the surveyor, the cost of repair will never touch 75% of the IDV. As is not genuine, we reject the estimate of garage surveyor. This issue goes in favour of the complainant.
15. In this case, the vehicle was shifted to the garage on 19.6.2015 but the garage survey inspected the vehicle on 03.09.15 that means the Ops took near about 3 months time here. The OP.1 has accompanied the surveyor to the garage on 03.09.2015 and they were aware of the opinion of the repairer. After that they were intimated about the fact for 2 times but they continued to insist the complainant to arrange dismantling. They have ignored the report of spot surveyor which is a valuable one. The Ops as well as the garage surveyor have not taken any step to convince the repairer to dismantle the vehicle when it did not hear the complainant. It is a settled principle of law that the insurance claim is to be honestly settled but they unilaterally tried to settle the claim on pre dismantling condition. No tangible evidence has been adduced by the Ops to settle the claim as early as possible and hence the complainant is suffering. Thus the Ops 1 to 3 committed deficiencies in service and adopted unfair trade practice in this case. Hence in our opinion, the claim is to be settled on total loss basis and the Ops 1 to 3 are to be directed to pay the insured amount of Rs.4, 54,400/- to the complainant with interest @ 9% p.a. from the date of accident i.e. 11.6.2015. Further due to such inaction of the Ops, the complainant must have suffered some mental agony and loss and also has come up with this case incurring some expenditure. Considering the sufferings a sum of Rs.10, 000/- towards compensation and Rs.2000/- towards cost in favour of the complainant will meet the ends of justice. However, the salvage of the vehicle is the property of the Ops and they will take the salvage at their cost.
16. In this case, the Ops 4 & 5 being the financier has done nothing. Rather they have collected all the EMIs. It is seen that the entire fact was within the knowledge of the financier but they have not taken any step for settlement of claim in spite of request of the complainant. They have challenged this case on the point of jurisdiction, arbitration, commercial activity etc. but those are not acceptable by us in view of cantina of decisions of the higher Forums. At para-4 of counter, the Ops stated that they have taken up the matter with Insurance Co. for settlement of claim but failed to furnish any document in support of their said averment. The A/R for the complainant submitted that the loan dues have been cleared as on the date and the Ops 4 & 5 have collected insurance premium with the EMIs for the period 29.4.2016 to 28.4.2017 but due to fire accident the insurance premium for the said period has not been deposited with Insurance Co. and hence the complainant is entitled to get back the said premium amount of Rs.23, 940/-. It is seen from the counter of the financier that there is no mention about nonpayment of EMIs and as per their contention, the agreement ends on 01.11.2016. So by this date no agreement exists. Hence the complainant is entitled to get back Rs.23, 940/- with interest @ 12% p.a. from 01.11.2016. Further due to such inaction of the Ops 4 & 5, the complainant must have suffered some mental agony and hence he is entitled for compensation. Considering the sufferings of the complainant we feel a sum of Rs.2000/- towards compensation in favour of the complainant will be just and proper.
17. Hence ordered that the complaint petition is allowed in part and the Ops 1 to 3 being jointly and severally liable are directed to pay Rs.4, 54,400/- towards insurance claim on total loss basis with interest @ 9% p.a. from 11.6.2015 and to pay Rs.10, 000/- towards compensation besides Rs.2000/- towards costs to the complainant. The Ops 1 to 3 are the owner of the salvage and they are to shift the salvage from the garage at their own costs, if any. Similarly, the Ops 4 & 5 are directed to return Rs.23, 940/- towards insurance premium with interest @ 12% p.a. from 01.11.2016 along with NDC and to pay Rs.2000/- towards compensation to the complainant. The above directions are to be complied by the Ops within 30 days from the date of communication of this order.
(to dict.)
