Final Order / Judgement | Date of Complaint : 18/09/2013 Date of Disposal :25/10/2016 IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT :1. SRI. V.A. PATIL, PRESIDENT 2. SMT.K.D. PARVATHY, MEMBER 3. SMT. LATHA M.S., MEMBER | CC No.70/2013 ORDER DATED 25th DAY OF OCTOBER 2016 | | Smt.K.P. Accamma, W/o. K.U. Palangappa, Konanjageri Village, Parane Post, Madikeri Taluk, Kodagu District. (By Sri.M.A. Niranjan, Advocate) | -Complainant. | V/s | - The Branch Manager,
The Oriental Insurance Co.Ltd., 1st Floor, Badshah Building, Opposite Clock Tower, Virajpet. Kodagu District. (Sri.P.T. Ganapathy, Advocate) - The Manager,
I.G. Workshop, Mahindra & Mahindra Range of vehicles 427/A, Hebbal Industrial Area, Hebbala, Mysore. (EXPARTE) | -Opponents. |
SMT. K.D. PARVATHY, MEMBER O R D E R - This is a complaint filed by the complainant under section 12 of the Consumer Protection Act 1986 against the Ops alleging deficiency of service.
- The complainant’s case in brief is that the complainant is the registered owner of the Mahindra XUV 500 vehicle bearing registration No.KA-12-6776. The complainant states that the said vehicle was purchased on September 2012 and was insured with OP-1 bearing policy No.422804/31/2013/5173 valid from 24/09/2012 to 23/09/2013. The complainant states that on 22/03/2013 the above said vehicle was being driven by the driver by name Mr.B.D. Chandrappa who was returning from Mysore after the servicing the vehicle and proceeding towards the house of the complainant. The complainant states that the said vehicle met with an accident at about 11 p.m near Manchannahalli Village, Piriyapatna Taluk. He states that the accident occurred while the driver tried to avoid wild boars on the road as a result of which the vehicle toppled and fell into a gorge.
- The complainant states that the impact of the accident was such that the said vehicle had become scrap and loss was total. He further states that hence the said vehicle was taken to the authorized workshop of OP-2 after intimating the same to OP-1. The complainant states that OP-2 had estimated the damage and informed him that the said vehicle was beyond repairable condition. The complainant states that OP-1 instead of treating the said vehicle as total loss and reimbursing the full value of the vehicle, wrote a letter to the complainant informing their decision to bear only the repair expenses to the tune of 75% of the IDV and also stated their approximate liability was only to the tune of Rs.7,00,000/-. The complainant states that the cost of estimation arrived by OP-1 is patently false and unreasonable. He also states that the survey assessment made by the surveyor is erroneous and unsustainable.
- The complainant states that even though OP-2 had expressed their inability to repair the said vehicle and bring it to road worthy condition but still OP-2 prepared estimate quoting total repair charges (including spares and labour) at Rs.13,79,760/. The complainant states that in such a scenario the reply submitted by OP-1 to reimburse repair charges to the tune of Rs.7,00,000/- is highly arbitrary and illogical. The complainant states that the present condition of the vehicle is such that if the repair work is undertaken the cost will be around Rs.13,79,760/- and even if the repair is done the said vehicle cannot be brought to its original condition and hence it would be just and prudent on the part of OP-1 to consider the damage to the above said vehicle on total loss basis and settle the claim.
The complainant further states that the said vehicle which is already in a state of scrap has been kept idle for over 6 months and OP-2 has started demanding parking charges from him. The complainant states that the conduct of OP-1 in not treating the said vehicle as total loss and failing to reimburse the full value of the vehicle to the complainant amounts to deficiency of service. - The complainant states that hence she got issued a registered notice dated 23/08/2013 calling upon OP-1 to settle the issue on total loss basis and not repair basis further. She further states that the said notice was served on OP-1 and OP-1 remained silent. The complainant states that she has been subjected to untold misery in the entire process of seeking settlement for her lawful and legitimate claim. The complainant hence prays for directing the OP-1 to treat the damages to the vehicle on total loss and reimburse the full insured amount, alternatively to direct OP-1 to bear the entire expenses in order to repair the said vehicle and bring it to road worthy condition including the parking charges of the vehicle which is with OP-2 and direct the OP-1 to pay a sum of Rs.25,000/- damages for causing mental agony, loss and hardship.
- The OP-1 states that it is the insurer of the above said vehicle as stated in the complaint and admits that the complainant preferred a claim for the damages caused to the above said vehicle in a road traffic accident on 22/03/2013. The OP-1 states that after receiving the claim form from the complainant, they deputed a competent surveyor for investigation and assess the loss. The Surveyor after investigation assessed the loss of the said vehicle at Rs.6,61,968-93. The OP-1 states that the surveyor opined that the damaged vehicle could be repaired by accepting the insurer’s liability as per terms and conditions.
The OP-1 states that the estimation of the repairer i.e. the OP-2 is highly inflated and when the said vehicle can be repaired the question of settling the claim on total basis does not arise at all. - The OP-1 states that the surveyor in his letter dated 16/04/2013 and 07/08/2013 had informed the complainant to instruct the repairer i.e. OP-2 to dismantle the said vehicle and that the approximate liability was Rs.7,00,000/-. The OP-1 further states that again the surveyor on 04/09/2013 has informed the complainant by a letter that the assessment of the said vehicle is Rs.7,00,000/- and hence the settlement claim was delayed on account of non-co-operation of the complainant. The OP-1 states that hence there is no deficiency of service on their part and had replied to the notice of the complainant dated 23/08/2013 and OP-1 is ready to settle the claim as per the survey report.
- The OP-2 has remained absent inspite of notice being duly served and hence they have been placed exparte in the above case.
- The following points arise for consideration ;
- Whether the complainant has shown deficiency of service by the Ops?
- Whether the complainant is entitled for any of the reliefs sought for in the complaint?
- Our findings on the aforesaid points are as follows;
Point No.1:- Partly in the affirmative Point No.2:- As per order R E A S O N S - Point No.1:- It is an admitted fact that the complainant is the registered owner of Mahindra XUV 500 vehicle bearing registration No.KA-12-P-6776 being purchased in September 2012 and that the said vehicle was insured with OP-1 bearing Policy No.422804/31/2013/5173 valid from 24/09/2012 to 23/09/2013. It is also admitted that the said vehicle was insured with OP-1 for the value of Rs.13,00,000/-. It is also admitted that the said vehicle met with an accident on 22/03/2013. The complainant has produced the driving licence of the driver who was driving at the time of the accident to which there is no objection by OP-1. The OP-1 admits of getting informed regarding the accident of the above said vehicle and also deputes a competent surveyor for investigation and loss. The complainant in her complaint, affidavit and written arguments has submitted that the impact of the accident of the above said vehicle was such that the vehicle had become scrap and it was taken to the authorized workshop of OP-2 after informing about it to the OP-1. The complainant has produced the letter given by OP-2 dated 17/06/2013 wherein it is stated that the said vehicle is beyond repairable condition but still OP-2 prepared an estimate quoting total repair charges (including spares and labour) at Rs.13,79,760/-. The letter of the OP-2 further stated that since OP-2 did not have business tie-up or cashless tie-up with OP-1 an advance of 50% of the repair estimation cost i.e. Rs.6,50,000/- would be required before hand in order to start the repair. Here since OP-2 is an authorized workshop of Mahindra and Mahindra Range of vehicle which includes the above said vehicle, the value of estimate arrived by OP-2 need not be questioned or doubted.
- Now coming to the point of the OP-1 sating that they had deputed a competent surveyor for investigating and assessing the loss and that the total loss assessed by the surveyor is Rs.6,61,968-93 and that the damaged vehicle could be repaired by insurer’s liability as per the terms and conditions, on perusal of the spot inspection report submitted by OP-1 in page No.4 it is stated by the surveyor and loss assessor of OP-1 that, whatever damages were noted and taken into consideration were to the extent of visibility and it any other damages as such, has to be verified at the time of dismantling the damaged portion. This statement clearly states that the surveyor has not gone into the details which making an estimation for detecting the loss incurred.
The Surveyor had come to an assessment without dismantling the vehicle and not inspecting the condition of the engine. The fact that OP-1 had not noted any damage to the engine of the above said vehicle but the same surveyor in his second report dated 14/12/2015 has stated that there is damage to the engine block and it might have occurred while shifting the vehicle in the workshop shows that the surveyor had not looked into the amount of damage to the said vehicle at the first instance and had given a report without properly checking the whole vehicle. - The citation produced by the learned counsel for OP-1 in II (2009) CPJ 45(NC) cannot be taken into consideration as the surveyor has raised a doubt in our minds regarding the clarity at which he had arrived for quoting Rs.7,00,000/- as total damages without first checking the engine and arriving at the loss only through external inspection. It is to be taken into account that when a person in general gets his vehicle insured with an Insurance Company, it is being insured with the intention and belief that if the insured vehicle meets with an accident the Insurance Company will come to their rescue. In this case looking at the photographs produced by the complainant and OP-1’s surveyor’s photos produced it is clearly evident that the above said vehicle has totally been damaged and is a fit case for claiming total loss from OP-1.
- The OP-2 has been placed exparte since they have not appeared even after notice being duly served. The complainant has no where pressed any claim on OP-2. Hence the case against OP-2 is dismissed.
- In view of all the aforesaid reasons and going through all the documents submitted by both the parties, we are of the opinion that the complainant has established his case as made out in the complaint by placing sufficient materials on record. The OP-1 is directed to treat the damages to the vehicle on total loss basis and reimburse the full insured amount of Rs.13,00,000/-with 7% interest from the date of institution of the above complaint till the date of realization of the amount.
- Point No.2:- In view of our finds we proceed to pass the following;
O R D E R The complaint filed under section 12 of the CP Act by Smt.K.P. Accamma on 18/09/2013 against the OP-1 is hereby partly allowed. - The OP-1 is hereby directed to treat the damages to vehicle of the complainant on total loss basis and reimburse the full insured amount of Rs.13,00,000/- with 7% interest from the date of institution of the above complaint till the date of realization of the amount.
- The OP-1 is also liable to pay a sum of Rs.15,000/- to the complainant towards mental agony and Rs.5,000/- towards the cost of this proceedings within 1 month from the date of this order failing which the complainant is at liberty to recover the said total amount of Rs.20,000/- with interest at the rate of 10% per annum from the date of this order till realization of the entire amount.
- If this order is violated the complainant is also at liberty to file private complaint against OP-1 for the offences punishable under section 27 of Consumer Protection Act, which is punishable with imprisonment as well as fine.
- Issue certified copies of this order at free of cost to both the parties.
(Dictated to the Stenographer and got it transcribed and corrected and pronounced in the open Forum on this 25th day of October 2016) (LATHA.M.S.) (V.A. PATIL) (K.D.PARVATHY) MEMBER PRESIDENT MEMBER | |