BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 11th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.49/2013
(Admitted on 07.02.2013)
Mr. Maxim DSilva,
S/o Jerome DSilva,
Aged about 55 years,
R/o Jeremiah,
Church Gate, Kulshekar,
Mangalore 575005.
….. COMPLAINANT
(Advocate for the Complainant: Sri JRN)
VERSUS
The Branch Manager,
The New India Assurance Co. Ltd,
Ram Bhavan Complex,
Kodialbail,
Mangalore 575003.
…...........OPPOSITE PARTY
(Advocate for the Opposite Party: Smt. HM)
ORDER DELIVERED BY HONBLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he insured his vehicle No.KA.19B.1125 with opposite party met with an accident and was immediately claimed with opposite party but opposite party had issued the policy covering the risk of the complainants’ vehicle failed to make payment towards the damages sustained by the complainant. As per the Motor Vehicle Survey report damages assessed by surveyor at Rs.76,500/ hence seeks the reliefs claimed against opposite party.
II. Opposite party in the written version admits the insurance coverage policy issued to complainant’s vehicle. The surveyor Mr. G.N. Sudheer and Mr. H. Nataraj who were deputed inspected as per damages respectively filed their reports. The opponent has called for certain documents as per letter dated 02.02.12, 09.03.12 and 28.6.12 from complainant but were not complied. There is no repudiation of complainants claim the question of settlement does not arise as documents were not furnished. Hence seeks dismissal of the complaint.
2. In support of the above complainant Mr. Maxim D’Silva filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C10 as detailed in the annexure here below. On behalf of the opposite parties Mr. Sheshappa Naik M (RW1) Administrative Officer, New India Assurance Co. Ltd, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R9 as detailed in the annexure here below. Mr. G.N. Sudheer (RW2) Surveyor and Loss Assessor and Mr. H Natraj (RW3) Surveyor and Loss Assessor also filed affidavit evidence.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant side filed notes of argument. Opposite party addressed oral argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the party. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The insurance policy issued covering complainants risk of his vehicle in question is undisputed. The claim made by complainant and that was not settled by opposite party is undisputed. As such there is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the Affirmative.
POINTS No. (ii): Opposite party claims he issued 3 letters to complainant on 02.02.12, 09.03.12 and 28.6.12 to complainant calling certain documents. Ex.R5 is the said copy of the document to complainant to produce the bill of the repair of the bills and cash memos to their office and surrender the salvage Ex.R5 reads thus:
With reference to your letter dated nil regarding above we have provided you copy of the survey report and during your visit to our office and Divisional office we have conveyed you for repairing the vehicle and submit the bills/cash memos and comply the other formalities. We once again put in on record that as per the terms and conditions of the policy you are requested to repair the vehicle and submit the bills and cash memos to our office and surrender the salvage.
By letter dated 8.2.12 opposite party had offered to settle the cash even by letter of 29.3.12 consent for settlement of loss or else of the repair the vehicle and submit the bills and cash memos are mentioned. Under Ex.R8 the letter dated 28th June 2012 opposite party repeated their letter as per Ex.R7 and also cash loss basis claims settlement at regional office.
2. Thus on going through Ex.R5 quoted above one thing is certain the complainant is requested to repair the vehicle and submit the bills and receive cash memo. But as per Ex.C9 the Motor Final Survey report the surveyor assessed the loss at on 3 different head first one assessment on cash loss basis at Rs.50,300, second assessed on total loss basis Rs.86,500 and on assessing salvage loss basis Rs.76,500 it is even according to Ex.R5 opposite party sought salvage considering these and the assessment under the head assessed on salvage loss basis the received value showed at Rs.55,000 the insurer liability assessed at Rs.76,500 accepted by the complainants is liability to be accepted and that opposite party shall be directed to pay this amount with interest. Considering that the surveyor in the report has mentioned while mentioning at page 3 of this Ex.R5 the following the insured expressed inability:
The insured expressed his inability to repair the vehicle on repair loss basis due to basis due to his financial constraints. Hence I am herewith giving the assessment on Cash Loss Basis, Total Loss Basis & Salvage Loss Basis. Insurers may consider any one of the mode of settlement at their discretion.
POINTS No. (iii): This figures of 76,500 in the circumstance is accepted as the failure of opposite party to conclude the claim of the complainant one way or the other. Even after mention made to surveyor as to inability to repair the vehicle on repair loss basis. Hence as such we are of the opinion that the deficiency on the part of the opposite party to settle the complainant’s claim. We are of the view that opposite party shall be directed to pay the amount of Rs.76,500 with interest at 9 % from the date of petition till the date of payment. Opposite party shall be directed to pay Rs.5,000/ as compensation towards mental agony, pain and suffering, advocate fee fixed at Rs.3000/-. Wherefore the following
ORDER
The complaint is allowed with cost. The opposite party is directed to pay Rs.76,500/ (Rupees Seventy Six thousand Five hundred only) to complainant with interest at the rate of 9% from the date of petition till the date of payment.
2. Opposite party is also directed to pay Rs.5,000/ (Rupees Five thousand only) as compensation to complainant.
3. Advocate fee fixed at Rs.3,000/ (Rupees Three thousand only).
4. The above amounts shall pay within 30 day from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 11th April 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Maxim D’Silva
Documents marked on behalf of the Complainant:
Ex.C1: 13.01.2012: Copy of the letters sent to opposite party
Ex.C2: 14.12.2011: Copy of the letters sent to opposite party
Ex.C3: 20.01.2012: Copy of the letters sent to opposite party
Ex.C4: 07.02.2012: Copy of the letters sent to opposite party
Ex.C5: 08.02.2012: Copy of the letters sent to opposite party
Ex.C6: 06.11.2012: Office copy of Lawyers Notice
Ex.C7: 07.11.2012: Acknowledgement
Ex.C8: 16.11.2011: Copy of claim intimation letter
Ex.C9: 28.11.2011: Copy of the Survey Report
Ex.C10: 28.11.2011: Notarised copy of R.C. bearing Vehicle No.KA.19.B1125
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Mr. Sheshappa Naik M (RW1) Administrative Officer, New India Assurance Co. Ltd
RW2 Mr. G.N. Sudheer Surveyor and Loss Assessor
RW3 Mr. H Natraj Surveyor and Loss Assessor
Documents marked on behalf of the Opposite Party:
Ex.R1: Policy
Ex.R2: Survey report by N. Sudheer
Ex.R3: Survey Report by H. Natraj
Ex.R4: Letter Dated 14.12.2011 issued by company
Ex.R5: Letter with acknowledgement dated 02.02.2012 issued by Company
Ex.R6: Letter dated 08.02.2012 issued by company
Ex.R7: Letter with acknowledgement dated 29.03.2012 issued by Company
Ex.R8: Letter dated 28.06.2012 issued by Company
Ex.R9: Motor Claim form
Dated: 11.04.2017 PRESIDENT
