CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 22nd day of June, 2013
Present: Smt. Seena.H.President,
: Smt. Preetha.G.Nair, Member,
: Smt .Bhanumathi.A.K.Member Date of filing: 30.1.2013
CC/28/2013
Sreenivasan
S/o.Raman Nair,
Amrithakripa,
palappuram Post, : Complainant
Ottapalam,
Palakkad.
(By Adv.T.Kalidas)
Vs
The Branch Manager,
The New India Assurance
Company Ltd., Ottapalam Branch, : Opposite party
2nd Floor, JRJ Complex,
Ottapalam Post, Palakkad.
(By Adv.T.P.George)
O R D E R
By.Smt.PREETHA.G.NAIR. MEMBER
Case of the complainant in brief:-
The complainant has purchased a jeep bearing Reg.No.KL-51/B – 5888, to travel to his rubber estate and for his personal use. The complainant has insured his vehicle with the opposite party for a period from 28/05/12 to 27/5/13 with policy. The policy is a private car package policy and the complainant has paid Rs.13,977/- as premium to the opposite party. As per the terms of policy the opposite party has undertaken to indemnify the complainant all the damages and losses sustained to the vehicle.
On 21/06/12 the vehicle of the complainant met with an accident and the vehicle sustained extensive damages including bend to its chassis. Immediately the matter was informed to the opposite party and as instructed by them the vehicle was removed to ITL Motors for necessary repairs. Thereafter the insurance surveyor deputed by the opposite party has inspected the vehicle and was convinced about the extensive damages sustained to the vehicle. The surveyor assessed the damages sustained to the vehicle. But initially the opposite party arbitrarily has declined to indemnify the cost for replacement of chassis of the vehicle, which virtually become useless. But after much persuasion from the complainant for about a period of 2 ½
months, the opposite party finally has accepted to bear the cost of replacement of chassis.
In the accident the vehicle has sustained extensive damages and for the repair of the vehicle the complainant has actually incurred and spent an amount of Rs.1,30,816/- Moreover due to the delay caused by the opposite party the repair work was protracted for a period of two and half months. During this period the complainant was compelled to hire another vehicle for his personal use. For that purpose the complainant sustained a loss of Rs.35,000/- by way of hire charges. The actual amount spent for repair work of the vehicle was Rs.1,30,816/- . But the opposite party allowed and paid an amount of Rs.87,655/- only towards repair works. The complainant has accepted the amount with protest. The complainant was constrained to pay the balance amount of Rs.43,151/- which also the opposite party is legally liable to pay to him. The opposite party has arbitrarily and illegally reduced the quantum of actual damages without any legal basis. Then the complainant sent a lawyer notice to opposite party. After receiving the notice the opposite party sent a reply notice stating false allegation. Hence the complainant prays an order directing the opposite party to pay an amount of Rs. 1,28, 151/- as loss and damages and compensation to the complainant with 18% interest and pay the cost of the proceedings.
Opposite party filed version stating the following contentions. The opposite party admits that the vehicle bearing No.KL-51 B – 5888 was insured for the period from 28/05/12 to 27/05/13. Company will indemnify the insured against the loss or damages to the vehicle as per the terms of the policy. The policy issued to the vehicle is a private car package policy. But according to the complainant he was using the passenger vehicle for transporting goods every day. He has violated the policy conditions and motor vehicle rules. Since the policy is obtained by suppressing a material fact, by misrepresentation of facts the policy is void-ab initio. The opposite party admitted that the vehicle met with an accident on 21/06/12. The incident was reported to opposite party on 22/06/12 and on the same day itself an insurance surveyor was deputed and he had inspected the vehicle on the same day itself. But on visual inspection the whole damage could not be ascertained. So the chassis was dismantled . Only when it was dismantled it was found that the chassis was bent beyond repair. To get a new chassis the dealer has to make a request to the manufacturer. So for the whole process it took about 2 months time. There was no illegal or inordinate delay as alleged in the complaint.
The surveyor has submitted the report after completion of the work on 19/09/2012. The surveyor assessed the loss was Rs.87,763/- out of that Rs.87,665/- was paid to the complainant after deducting Rs.108 for e-payment charges by the opposite party on 5/11/2012 . The repair work was done by ITL Motors, who is the authorized service agent of Mahindra Ltd. The complainant has submitted Bill dated 31/08/2012 for 1,30,816/- issued by the authorised dealer for the work done. As per the terms of the policy conditions certain deduction and depreciation as made by the opposite party. A sum of Rs.17,500/- was deducted as salvage value. A sum of Rs.21,000/- was given for repair of damaged parts as labour charges. Compulsory excess of Rs.2,000/- is deducted. Sales Tax amount also deducted for the corresponding amount from the bill submitted by the complainant. For all parts made of rubber plastics etc. 50% will be deducted and if the age of the vehicle is more than one year 10% for all parts will be deducted as depreciation. In this case Rs.3,803/- was deducted at 50% for plastic and rubber items and Rs.7,758/- was deducted at 10% since the vehicle was more than one year.
As per the clause 4 (a) of the policy conditions in the schedule the company shall not be liable to make any payment for consequential loss. The alleged claim for Rs.35,000/- is a consequential loss due to the accident for which opposite party is not at all liable. The surveyor has assessed the loss after allowable deductions, such as salvage value, depreciation rubber and plastics etc, which are strictly on the basis of conditions in the policy rules and regulations. There is no deficiency of service or unfair trade practice on the part of opposite party. Hence the opposite party prayed that complaint may be dismissed.
Both parties filed their affidavit. Ext.A1 to A4 marked on the side of complainant. Ext.B1 to B4 marked on the side of opposite party. Surveyor was examined as DW1. Matter heard.
Issues to be considered are,
Whether there is any deficiency in service on the part of opposite party?
If so, what is the relief and cost?
ISSUES I & II
We perused relevant documents on record. Admittedly the complainant has insured his vehicle with the opposite party for a period from 28/05/2012 to 27/05/2013 and the premium of Rs.13,977/- was duly paid. As per Ext.B2 report the insurance surveyor assessed the net loss amount is Rs.87763.95/- As per Ext.B3 the retail invoice issued by the ITL Motors shows that the net bill amount is Rs. 1,30,816/-( Rupees One lakh thirty thousand eight hundred and sixteen only ) .
At the time of cross examination the insurance surveyor deposed that the salvage value of chassis considered is Rs.15000/- and the price of new chassis is Rs. 59,108/-
It is evident from Ext.B3 is that the price of new chassis is Rs.59,108/- . As per the private car package policy there is no depreciation for the vehicle of the age not exceeding 6 months. As per Ext.A1 the year of manufacture of the vehicle is on 2011. The vehicle of the complainant met with an accident on 21/06/12. The opposite party has not produced evidence to show that the damaged chassis given to the complainant . During the period of vehicle was in the workshop, the complainant was compelled to hire another vehicle for his personal travel and spent Rs.35,000/- for a period of 70 days.
But the complainant has not produced any documentary evidence to show that Rs.35000/- was spent for 70 days. According to the opposite party, as per clause 4 (a) of the policy conditions in the schedule the company shall not be liable to make any payment for consequential loss. The opposite party stated that 2 to 3 months time taken to get a new chassis . But the opposite party has not produced evidence to show the delay of getting the new chassis. Admittedly the repair work was done by ITL Motors is the authorized service agent of Mahindra Ltd. As per the terms of rubber, plastics etc. 50% will be deducted and if t he age of the vehicle is more than 1 year 10% for all parts will be deducted as per depreciation. The reply sent by the opposite party to the effect that they have cancelled the policy.
In the present case Rs.3,803/- was deducted for 50% and a sum of Rs.7,758/- was deducted for 10% since the vehicle was more than one year old. As per the terms of the policy conditions compulsory excess of Rs.2000/- is deducted. According to the opposite party sales tax service tax and loss of Rs.12,633/- is deducted. The opposite party has not produced evidence to show that sales tax, service tax and loss is deducted as per the policy conditions.
We considered that the opposite party has illegally deducted an amount of Rs.15,000/- as the salvage value for chassis and Rs.12,633/- as the sale tax, service tax and loss. The opposite party has not produced evidence to show that the delay of getting the new chassis.
In the above discussions we are of the view that there is deficiency in service on the part of opposite party. In the result complaint partly allowed. We direct the opposite party to pay the complainant an amount Rs 27,633/- (Rupees Twenty seven thousand six hundred and thirty three only) (15000+12633 ) as the deducted amount of salvage value for chassis and taxes and also pay Rs.5000/- (Rupees Five thousand only) as compensation for deficiency in service and Rs.1000/- ( Rupees thousand only ) as cost of the proceedings.
Order shall be complied with in one month from the date of receipt of Order, failing which the whole amount shall carry interest @9% per annum from the date of order till realization.
Pronounced in the open court on this the 22nd day of June, 2013.
Sd/-
Smt.Seena.H
President
Sd/-
Smt.Preetha.G.Nair,
Member
Sd/-
Smt.Bhanumathi.A.K
Member
APPENDIX
Exhibits marked on the side of the complainant.
Ext.A1:- Copy of Policy Schedule Cum Certificate of Insurance.
Ext.A2: - Copy of Retail Invoice of ITL Motors Limited.
Ext.A3: - Copy of lawyer notice issued to the opposite party.
Ext.A4: - Copy of reply notice
Exhibits marked on the side of the Opposite party
Ext.B1:- Policy Copy and Private car Package policy clause attested copy
Ext.B2:- Copy of Motor Survey Report
Ext.B3:- Copy of Retail Invoice of ITL Motors Pvt.Ltd.
Ext.B4;- Copy of Special claim report-Motors of New India Assurance Company.Ltd.
Witness examined on the side of complainant.
Nil
Witness marked on the side of opposite party
Gopinath.K.
Cost allowed
Rs. 1000/- (One Thousand only )allowed as cost of the proceedings.
