D.O.F:11/04/2019
D.O.O:30/12/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.71/2019
Dated this, the 30th day of December 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Mr. Abdul Naheem. A
S/o Ahmed Ankola,
Thoufeeque Manzil, Khazilane, : Complainant
Thalangara – P.O, Kasaragod – 671122
(Adv: Shrikanta Shetty)
And
1. The Branch Manager,
National Insurance Company Ltd.
Third floor, High Lane Plaza,
M.G Road, Kasaragod 671121
2. Divisional Manager,
Divisional Office,
National Insurance Company Ltd, : Opposite Parties
Bank Road, Opp: Hotel Safara,
Above Corporation Bank,
Main Branch, Kannur – 67001.
3. Regional Manager,
Regional Office ,
National Insurance Company Ltd.
1st and 2nd floor,
Omana Buildings, Jews Street,
Padma Junction, Kochi – 682035.
(Adv: C. Damodaran)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 ( as amended ) The facts of the case in brief is that the complainant is the owner of car bearing No - KL 14 - K - 6699. The Vehicle has been insured with the opposite party with policy No.571 101311710002420. On 28-04-2018, at near Chittari Petrol Pump, the car met with an accident and due to the toppling the car got completely damaged, and became unfit for repair and fit to be assessed under total loss basis only. A claim is lodged with the Opposite Party No.1 to make good the loss sustained by the complainant under own damage. The Opposite Party No.1 entrusted the matter to a surveyor Raghavan Kizhakke Veetil for investigation and assess the loss. The said surveyor was insisting the complainant to repair the said car knowingly that it is not worth for the complainant, which was protested by the complainant. He had some religious prejudice towards the complainant, which was evidenced from his words. Hence the surveyor developed some vengeance with the complainant and submitted an arbitrary and biased report to the Opposite Party No.1. The above report of the surveyor is not acceptable as genuine as it is only to help insurance company. With the present condition of the damage of the car, it is waste of money to repair and re instate it to road worthy condition. The repair work as per the estimation of Amana Toyota, Periya would come to Rs.10,01,121/- and it would only fetch income to repairer and is not beneficial to Complainant. The garage service man and technicians opined that it is not possible to restore the said car to its original position and look and performance. The above car is made in 2011 and if repaired the complainant would incur huge depreciation, and additional 28% GST etc. As per the policy, the IDV is only Rs.9 lakhs. Additional financial burden separately fall upon the shoulder of the complainant as the Opposite Parties will put the repair bill amount only as per the policy conditions. But the surveyor did not report the true condition of the car to the Opposite Parties, due to his vested interests. The Opposite Parties without serving a copy of the Survey report or disclosing the stand taken by them pressurized the complainant to settle the claim on repair basis and blamed the complainant for delay . By the time the Amana Toyota demanded ground rent for keeping the said car for long time. The Opposite Parties have to make good of the loss sustained by the complainant. The Opposite Parties ought to have settled the claim on the total loss basis, but recommending on repair basis to cause loss to the complainant. Hence there is service deficiency and unfair trade practice on their part. Hence this complaint is filed for directing the Opposite Parties to settle the claim of the complainant in respect of his Vehicle No. KL 14 K 6699 on total loss basis or any other mode as deem under circumstance of the case and to pay floor ground rent of Amana Toyota ,where the Vehicle is kept for survey and to pay compensation of Rs.50,000/- and costs.
The entered appearance through their counsels who filed written Version.
As per the version of the Opposite Parties the complaint is false frivolous, vexatious and as such unsustainable at Iaw. The Opposite Parties admitted the insurance coverage of the vehicle No KL 14 K6699. But it is denied the contention that the car is unfit for repair and fit to be assessed on total loss basis only. Neither the complainant nor the Opposite Parties can have any opinion as regards the repairing of the car or of considering of total Ioss of the vehicle. Surveyor's recommendations and loss assessment is binding on the insurer and insured. The claim settlement is always based on the policy terms and conditions and model wise depreciation. Since the complainant is entitled only to 50% costs of the spare parts as the vehicle is more than 5 years old, it is true that he does not get the full amount spent for repair. Bye-passing policy conditions and ignoring depreciation is unknown practice in own damage claim settlement. Allegation regarding surveyor developing vengeance is denied as false. Total loss settlement is possible only when repair costs exceeds 75% of lDV. Since the repair charges recommended by the surveyor is Rs.4,18,747/- ,which is below 50 % of IDV, considering total basis is luxury , resulting in unjust gain to complainant and against the spirit of contract of insurance . The Opposite Parties are liable only to the extent of legally due amount. The allegation that the garage service man and technicians opined that it is not possible to restore the said car to its original position and look and performance is false and hence denied. The further allegation that the surveyor attempted to insult the complainant's religion is false and denied. This allegation is only a pressure tactics adopted to compel the surveyor and Opposite Parties. All communications were promptly and correctly replied. The complainant alone is responsible for keeping the vehicle in garage for long time .There is no service deficiency on the part of Opposite Parties. The complaint is liable to be dismissed.
The Complainant filed proof affidavit in Iieu of chief examination and marked documents as Ext. A 1 to Ext. A 7 and Ext. C - 1 . He was cross examined as PW 1. Another witness Sri.Praveen chandra Shetty the second surveyor appointed by the way of an expert commissioner , is also examined as PW - 2 from complainants side.
The Ext - A1 is a copy of the Estimation of the Vehicle by Toyota VPK Motors , Ext A 2 is the copy of the letter dated 21-06-2018 sent by surveyor Raghavan to the complaint, Ext. A3 is the copy of the letter dated 20-10-2018 sent by surveyor Sri.Raghavan to the complainant, Ext. A4 is the copy of letter dated 01.01.2018 by Complainant to surveyor Sri.Raghavan , Ext. A5 is the copy of Advocate Notice dated 11.01.2019 sent to Opposite Party No.1, Ext. A 6 is the unsettled letter dated 24.01.2019 issued by Opposite Party to the complainant, Ext. A 7 is the copy of Survey Report sent by Opposite Party No .1 to the complainant. The report of the second surveyor ,the expert commissioner is marked as Ext.C1.
From the side of Opposite Parties, the first surveyor Sri. Raghavan is examined, who filed proof affidavit in lieu of chief examination and marked documents Ext. B1 to Ext.B 5 . He was cross examined as DW 1. Ext. B1 is the first Survey Report dated 01-11- 2018 prepared by Surveyor Sri.Raghavan, Ext B1(a) series are photographs Ext B 2 is the initial Estimate dated 28-04-2018, Ext. B 3 is the Second Estimate dated 29-10-2018 , Ext. B4 is the copy of the letter dated 30-11-2018 issued by Surveyor Sri.Raghavan to VPK Motors, Ext. B5 is the letter dated 01-11-2018 issued by the complainant to Surveyor Sri.Raghavan.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
1. Whether there is any service deficiency or unfair trade practice on the part of the opposite party?
2. If so, what is the relief?
For convenience, both these issues are considered together.
Here the specific case of the complainant is that his car met with an accident and due to the toppling the car got completely damaged, and became unfit for repair and fit to be assessed under total loss basis only.
A claim is lodged with the Opposite Party No.1 to make good the loss sustained by the complainant under own damage .The Opposite Party No.1 entrusted the matter to a surveyor Raghavan Kizhakke Veetil for investigation and assess the loss. The said surveyor was insisting the complainant to repair the said car knowingly that it is not worth for the complainant, which was protested by the complainant. He had some religious prejudice towards the complainant, which was evidenced from his words.
Hence the surveyor developed some vengeance with the complainant and submitted an arbitrary and biased report to the Opposite Party No.1. The above report of the surveyor is not acceptable as genuine as it is only to help insurance company. With the present condition of the damage of the car, it is waste of money to repair and re instate it to road worthy condition.
The repair work as per the estimation of Amana Toyota, Periya would come to Rs.10,01,121/- and it would only fetch income to repairer and is not beneficial to Complainant. The garage service man and technicians opined that it is not possible to restore the said car to its original position and look and performance.
The above car is made in 2011 and if repaired the complainant would incur huge depreciation, and additional 28 % GST etc. As per the policy, the IDV is only Rs.9 lakhs. Additional financial burden separately fall upon the shoulder of the complainant as the OPs will pay the repair bill amount only as per the policy conditions. But the surveyor did not report the true condition of the car to the Opposite Parties, due to his vested interests. The Opposite Parties without serving a copy of the Survey report or disclosing the stand taken by them pressurized the complainant to settle the claim on repair basis and blamed the complainant for delay . By the time the Amana Toyota demanded ground rent for keeping the said car for long time. The Opposite Parties have to make good of the loss sustained by the complainant. The Opposite Parties ought to have settled the claim on the total loss basis, but recommending on repair basis to cause loss to the complainant. Hence there is service deficiency and unfair trade practice on their part.
As per the version of the Opposite Parties, they admitted the insurance coverage of the vehicle No KL 14 K6699. But they denied the contention that the car is unfit for repair and fit to be assessed on total loss basis only. Neither the complainant nor the Opposite Parties can have any opinion as regards the repairing of the car or of considering of total Ioss of the vehicle. Surveyor's recommendations and loss assessment is binding on the insurer and insured. The claim settlement is always based on the policy terms and conditions and model wise depreciation. Since the complainant is entitled only to 50% costs of the spare parts as the vehicle is more than 5 years old, it is true that he does not get the full amount spent for repair. Bye-passing policy conditions and ignoring depreciation is unknown practice in own damage claim settlement. Allegation regarding surveyor developing vengeance is denied as false. Total loss settlement is possible only when repair costs exceeds 75% of lDV. Since the repair charges recommended by the surveyor is Rs.4,18,747/- ,which is below 50 % of IDV, considering total basis is luxury , resulting in unjust gain to complainant and against the spirit of contract of insurance . The Opposite Parties are liable only to the extent of legally due amount.
The allegation that the garage service man and technicians opined that it is not possible to restore the said car to its original position and look and performance is false and hence denied. The further allegation that the surveyor attempted to insult the complainant's religion is false and denied. This allegation is only a pressure tactics adopted to compel the surveyor and Opposite Parties. All communications were promptly and correctly replied. The complainant alone is responsible for keeping the vehicle in garage for long time .There is no service deficiency on the part of Opposite Parties. The complaint is liable to be dismissed.
Here the main issue is the validity and reliability of the survey report in an insurance claim. It is settled by various judgments of our Apex courts that the surveyor's report is not the last and final word. Also it is specifically held in some cases that the surveyor's report is not so sacrosanct as to be incapable of being departed from.
The Insurance Act 1938, even while assigning an important role for the surveyor, casts an obligation on him under sub- section ( 1 A) of Section 64 UM to comply with the code of conduct in respect of his duties, responsibilities, and other personal requirements as specified under the Act.
This provision reads as follows:
" (1A) Every surveyor and loss assessor shall comply with the code of conduct in respect of their duties, responsibilities and other professional requirements as may be specified by the regulations made by the Authority. Two things flow out of the above discussion . They are (i ) that the survey or is governed by a code of conduct, the breach of which may give rise to jeopardy. If it is found that there is inadequacy in quality, nature and manner of performance of duties and responsibilities of surveyor, in a manner prescribed by the regulations as to their code of conduct and once it is found that the report is based on adhocism and vitiated by arbitrariness, then such report cannot be accepted.
The code of conduct specifies the professional and ethical requirements for conduct of their professional work. The surveyor shall behave ethically and with integrity in professional pursuits, act impartially when acting on instructions from an insurer in relation with an insurance policy holder's claim, under a policy issued by that insurer, conduct himself with courtesy and consideration with all people with whom he comes in to contact during the course of his work.
Further IRDA (Protection of Policy holder's Interest) Regulations 2002 stipulates the time limit for appointment of the surveyors, which is 72 hours from the time of intimation of the claim to the insurer/ occurrence of the event, resulting in Ioss or damages and submissions of survey report by Surveyor within one month from the date of the appointment by the insurer.
In exceptional cases there could be a delay in submission of survey report beyond 30 days. Then he has to seek extension of time from insurer under intimation to the insured. However, in no case the time limit for submission of Survey report can exceed 6 months from date of appointment.
In this case the date of accident was on 28-04-2018, Date of allotment of survey was on 09 -05-2018, Date of survey was on 09 -05-2018, But the survey report is dated 01-11- 2018. and there for it is presumed to be submitted to the Opposite Party Company on or after 01-11- 2018.
It is pertinent to note that the surveyor didn't serve a copy to the insured, the complainant. It is evident from the records. The Ext. A 5 is the Lawyer's registered notice sent on behalf of the complainant. It is dated 11-01-2019 and it shows that after about more than 2 months a copy of the survey report was not served to the insured either by the surveyor or the OPs. But it is also seen that during this 8 months the surveyor and OPs were sending letters one by one to the complainant in order to compel him to start the repair work of the car, keeping him in darkness about the Survey report. There is no whisper regarding the delay in submission of the report. He never intimated the insurer or insured that he require more time for submission of report.
Ordinarily when an accident occurs, and claim form is submitted, the surveyor appointed would inspect the vehicle and file report and upon the report the insurance company approves the report and give necessary direction to the work shop for repair, with an undertaking to pay an amount fixed by them. Here that is not happened.
Therefore it is evident from the records that the surveyor entrusted by the Opposite Parties didn't perform his duty fairly. His behaviour towards the insured was not according to code of conduct. So his report Ext. B1 cannot be accepted since it is being vitiated by some personal agenda.
As per the guidelines, Surveyors and Loss Assessors shall be appointed either by insurers or insured to assess loss for policies having premium above Rs. 20,000/-
Insured or claimant needs to notify claim to the insurer in the stipulated time allowed by insurer.
Upon claim notification, the insurer should immediately respond to the insured or claimant, about any further requirements. In case, if surveyor is required to be appointed to assess the claim, the insurers needs to appoint the person within 72 hours of the receipt of intimation from the insured or claimant.
Here since the 1st surveyor appointed by the insurer didn't acted impartially, the complainant filed IA 182/2019 to appoint a second surveyor by the way of an expert commissioner. The complainant alleged that Sri. Raghavan, the surveyor appointed by OPs is on inimical terms with him and the report filed by him was against his interest. It was submitted that the report of Sri Raghavan recommended settlement on repair basis which is not agreeable for the complainant since the repairing work is not worth to get the above car for road worthy condition and use by him.
The IA was allowed and accordingly Sri. Praveen Chandra shetty was appointed as an expert commissioner who filed detailed Survey Report after inspection. The Commissioner's report is marked as Ext. C -1, which shows that the commissioner - inspected the Vehicle on 12 - 12-2019 and filed his report on 14.12.2019 before this commission. The commissioner noted the damages of the car and reported that the front bumber crushed and torn along with its ornaments and attachments. Body shell assembly crushed and smashed severely on its all pannels and sustained deep bruise marks all over. Front fender RH, front fender LH bonnet hood, hood lock member, LH apron, both headlight support panels, both side apron members, front wind shield glass frame, both side body panels (along with their A,B & C Pillars and quarter panel inners, front LH door roof top panel, LH running board and front LHside of floor panel crushed in and smashed . Front RH door, rear RH door and tail door twisted and lost their original curvature. In short the Body shell assembly is beyond scope of satisfactory repair and no insured will accept such an extensive repair to body shell that requires cutting open of its every joint and panels. Both headlights, Front LH turn signal light, ornamental grille, Iouvers, instrument panel, air cleaner, glasses etc. broken, Head Iining torn. Front both suspension assemblies bent and twisted along with linkage. Chassis frame bent and twisted severely on its front suspension holding pivots. First cross member caved in. AC condenser caved inwards. Seats bent and twisted. Rest of the spare parts that crushed and broken as a result of direct impact of the stated accident are listed in detail under spare part schedule.
The commissioner estimates net repair liability to a tune of Rs.689 223.74/- approx. excluding liability towards hidden damages, that may come in to light once the vehicle is dismantled for inspection of hidden damage during repairs.
The Commissioner surveyor states that since the net repair liability exceeds 75% of the Rs.9,00,000/-. the lDV of the Vehicle, the settlement of forgoing claim falls under constructive total loss, subject to the terms and conditions of the policy.
In case of repair being under taken, a lengthy supplementary estimate is expected towards unestimated spare parts/internal components that will come to light only after dismantling of the vehicle. This will further increase the liability of the insurers, to the tune of Rs. 25,000/- without any doubt. The Commissioner further states that hence the repairing of the vehicle is not at all economical and the forgoing claim falls qualifies for settlement under constructive total Ioss.
The commissioner was examined as PW 2 and he was thoroughly cross examined by the Opposite Parties counsel, but nothing has been elicited to discredit his version.
The commissioner specifically explained in his report that "Body shell assembly crushed and smashed severely on its all pannels and sustained deep bruise marks all over. Front fender RH, front fender LH bonnet hood, hood lock member, LH apron, Both headlight support panels, both side apron members, front wind shield glass frame, both side body panels (along with their A,B & C Pillars and quarter panel linners, front LH door roof top panel, LH running board and front LH side of floor panel crushed in and smashed . Front RH door, rear RH door and tail door twisted and lost their original curvature. In short the Body shell assembly is beyond scope of satisfactory repair and no insured will accept such an extensive repair to body shell that requires cutting open of its every joint and panels."
Comparing the Ext. C1, the Commissioner's report with Ext. B1, the first survey report, we are of the view that the first survey report is silent on damage to the body shell. The report doesn’t consider the vehicle in its total. The report only describes part by part. Moreover, during the cross examination, the Surveyor, who was examined as DW1 deposed to the effect that he had not noted the damage to the body shell. So considering the facts and circumstance of the case and available evidence this commission is of the view that the Ext. C1 , the Commissioner surveyor’s report is more reliable in adjudicating of this case. So the claim of the complainant to be settled on the constructive total loss basis.
The Opposite Party ought to have been settled the claim on the basis of constructive total Ioss. But due to the delay in submission of report of the surveyor the OP didn't come forward to settle the claim in time. Admittedly the report was filed 01-11- 2018. It is also undisputed that a copy of the report was served to the complainant after the issuance of the Lawyers notice dated 11-01-2019. The damaged car was being kept in the workshop all along the period of 8 months. So there was no reliable information to the complainant regarding the contents of the Survey Report till then. It was not with serving the copy of the Report, the Surveyor compelled the complainant to repair the vehicle. It is needless to say that the condition of the vehicle would have been further deteriorated due to this keeping of the vehicle unattended. The argument of Opposite Parties is also endorse the fact that during this period, there is a chance of causing damages by wear and tear. IRDA (Protection of Policy holder's Interest) Regulations 2002 stipulates the time limit for appointment of the surveyors, which is 72 hours from the time of intimation of the claim to the insurer about the occurrence of the event , resulting in Ioss or damages and submissions of survey report by Surveyor within one month from the date of the appointment by the insurer. In exceptional cases there could be a delay in submission of survey report beyond 30 days. Then he has to seek extention of time from insurer under intimation to the insured. However, in no case the time limit for submission of Survey report can exceed 6 months from date of appointment
So the surveyor is appointed for the timely survey of the vehicle and submitting the report. But for unknown reason or reasons best known to him, he delayed the filing of the report. Actually the surveyor behaved against the guidelines. Even though it can be argued that the surveyor had a maximum of 6 months time for filing the Report, he did not explain as to what exceptional circumstances was there in this particular case.
Important thing is that herein this case, the Opposite Parties were keeping silent on the delay in submission of the Survey Report. There is no case for Opposite Parties or evidence to show that Opposite Parties have sent any reminder to the Surveyor seeking early submission of the report. So it cannot be held that the complainant alone is responsible for keeping the vehicle in garage for long time. The Opposite Parties are answerable for the delay in filing of the Survey report and thereby causing to keep the vehicle unattended for long time.
Therefore there is negligence and service deficiency on the part of the Opposite Parties in this case, due to which the complainant suffered mental agony and hardships, apart from monetary loss. The Opposite Parties are liable to compensate for that. The complainant states that the Opposite Parties are also liable to pay floor ground rent of Amana Toyota , where the vehicle is kept for long time due to the negligent attitude of the first surveyor and thereby Opposite Parties.
Here the vehicle was aged 6 years at the time of the accident. IDV is Rs.9,00,000/- As per the Ext.C1 commission survey report, the present IDV of the Vehicle is Rs.7,25,000/- instead of the actual IDV of Rs.9,00,000/-as per Policy .The Ext C1, further show that the damaged vehicle would fetch Rs.2,75,000/- as its wreck value. As per the calculation of the complainant, the total loss of the complainant would be Rs. 4,50,000/-less the policy excess Rs.2,000/-.Thus after deduction it would be Rs.4,48,000/- This amount is almost nearer to the suggested settlement amount of Rs.4,18,747/- as shown in theExt.B1, the first surveyor’s report. Therefore this commission is inclined to fix the amount of Rs. 4, 48,000/- as insurance benefit, in this case.
The complainant prays for an order directing the Opposite Parties to pay compensation of Rs.50,000/-for mental agony and hardships. Regarding the compensation for mental agony and hardships, there is no reliable data before this commission. This commission hold that Rs.30, 000/- would be a reasonable amount towards compensation. The OPs argue that the floor ground rent, being remote loss is not payable by the insurer as per the policy condition. Here there is no detail of floor ground rent of the workshop place hence this commission is not inclined to allow any amount in that head.
In result, the complaint is allowed and the Opposite Parties are jointly and severally directed to pay an amount of Rs 4, 48,000/- as insurance benefit, with interest at the rate of 8% per annum from 11-04-2019, the date of complaint to the date of payment, and Rs.30,000/- (Rupees Thirty Thousand only) towards compensation for mental agony and hardships and Rs. 10,000/-, (Rupees Ten thousand only) towards costs to the complainant. The complainant is entitled for the damaged vehicle and he is at liberty to deal with it.
Time for compliance is 30 days from the receipt of the copy of the Judgment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Estimation coy
A2- A letter Dt: 21/06/2018
A3- A letter Dt: 20/10/2018
A4- A letter Dt: 01/11/2018
A5- Lawyers notice
A6- unsettled letter
A7- Survey report
B1- survey report
B2 & B3- Estimation Copy
B4- A letter Dt: 30/11/2018
B5- Letter Dt: 01/11/2018
C1- Expert Commission report
Witness Examined
Pw1- Abdul Naheem.A
Pw2- Praveenchandrashetty
Dw1- Raghavan.K.V
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
