KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 134/2007
JUDGMENT DATED: 22.12.2010
PRESENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
Shyam Sudheer, : APPELLANT
S/o Chemban,
Maraka Prambil House,
Malippuram.P.O.,
Ernakulam District.
(By Adv.K.A.Shamsudeen)
Vs.
United India Insurance Co.Ltd., : RESPONDENT
Branch Office, North Paravur,
Rep. by Branch Manager.
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
Appellant was the complainant and respondent was the opposite party in CC.No.463/06 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of the opposite party/United India Insurance Co.Ltd. in denying the insurance claim of Rs.1,23,210/- with respect to the repair charges including the cost of the replaced spare parts of the insured vehicle bearing Regn.No.KL-13/9378. It was alleged that the opposite party/Insurance Co. offered Rs.47,500/- which was awarded by the Insurance Ombudsman. But the complainant was not amenable for the aforesaid offer. Hence he filed the complaint for Rs.1,23,210/- towards the repair charges with compensation of Rs.10000/- for mental agony and cost of Rs.1000/-. Thus the complainant claimed a total Rs.1,34,210/-.
2. The opposite party entered appearance before the Forum below and filed written version denying alleged deficiency in service. They contended that on getting intimation about the damage to the insured vehicle, the opposite party deputed an approved and licensed loss assessor (surveyor) for assessing the loss; that the surveyor assessed the loss at Rs.47440/- including the cost of spare parts and labour charges. The complainant/insured was not prepared to accept the amount assessed by the surveyor; that the complainant preferred complaint before the Insurance Ombudsman and that the Insurance Ombudsman awarded Rs.47500/-; that the complainant was not satisfied with the aforesaid award passed by the Insurance Ombudsman. Hence he filed the present complaint; that the complainant is not entitled to any amount as claimed in the complaint. Therefore, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below the complainant filed proof affidavit and he was examined as PW1; Exts.A1 to A7 documents were also marked on the side of the complainant. From the side of the opposite party the approved surveyor was examined as DW1. Exts.B1 to B4 documents were also marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below negatived the case of the complainant regarding deficiency of service and thereby the complaint in CC.463/06 was dismissed vide impugned order dated 23.2.07. Hence the present appeal.
4. We heard the learned counsel for the appellant/complainant. There was no representation for the respondent/opposite party. The counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the surveyor failed to assess the damage caused to the insured vehicle and further submitted that the bills and vouchers produced by the complainant were sufficient enough to allow the claim for Rs.1,23,210/-. It is further submitted that the passing of the award by the Insurance Ombudsman will not take away the right of the complainant to file complaint under consumer Protection Act, 1986. It is also pointed out that the Forum below cannot be justified in dismissing the complaint without allowing any of the claim putforward by the complainant/insured. Thus, the appellant/complainant prayed for setting aside the impugned order dated 23..2..07 passed by the CDRF, Ernakulam, in CC.463/06.
5. The points that arise for consideration are:-
1) Whether there was any deficiency in service on the part of the respondent/opposite party/Insurance Company as alleged by the applellant/complainant?
2) Whether the appellant/complainant has succeeded in establishing his claim for Rs.1,23,210/- towards the repair charges of the insured vehicle bearing registration No.KL.13/9378 which met with a road traffic accident on 24.7.03?
3) Whether the CDRF, Ernakulam can be justified in dismissing the complaint in CC.463/06 by holding that there was no deficiency in service on the part of the opposite party/United India Insurance Co.Ltd.?
6. Points 1 to 3:-
There is no dispute that the appellant/complainant insured his stage carriage bearing Reg.No.KL.13/9378 with the opposite party/United India Insurance Co. Ltd. at the branch office North Paravoor. Ext.A1 is copy of the insurance certificate issued by the opposite party insuring the aforesaid stage carriage with an IDV of Rs.2,00,000/-. The issuance of the original of Ext.A1 insurance certificate insuring the aforesaid vehicle is admitted by the respondent/opposite party/Insurance co.. Ext.A1 policy of insurance was for the period from 27.5.03 to 26.5.04. The aforesaid insured vehicle met with an accident on 24.7.03 and sustained damage to the insured vehicle in the aforesaid road traffic accident. The fact that the insured vehicle sustained damage in the aforesaid road traffic accident is admitted. It is also an admitted fact that on getting intimation about the accident, the opposite party insurance company deputed approved surveyor and loss assessor and thereby the approved surveyor assessed the loss and submitted a survey report. Ext.B3 is the survey report dated 16.12.03 submitted by the approved surveyor, P.J.Varghese, BE; FAGE; FIISA. The surveyor assessed the total loss after deducting the policy excess of Rs.1500/- and salvage value of Rs.2750/- at Rs.50739/-. The aforesaid net total loss was fixed after deducting depreciation of 50% of the total value of spare parts. But the opposite party/Insurance Co. offered Rs.47500/- towards the loss suffered by the complainant/insured. The opposite party has also relied on the award passed by the Insurance Ombudsman fixing the claim amount at Rs.47500/-. So, the present complaint was filed by the insured as CC.463/06 on the file of CDRF, Ernakulam.
7. The complainant claimed Rs.1,23,210/- towards the repair charges. The complainant produced Ext.A2 series of bills which are photocopies of the bills issued by Quality Automobiles and Body works, Edavanakad and the bill issued by Lakshmi works, Vyttila , Kochi-19. Ext.A2 series would also take in photocopies of bills issued by the some other dealers in automobile spare parts and a timber merchant. But the complainant has not adduced any evidence to prove Ext.A2 series of bills, to substantiate the aforesaid claim for Rs.1,23,210/-. The complainant who was examined as PW1 was cross examined on A2 series of bills. It is also suggested that those bills were concocted documents to claim huge amount by way of repair charges. PW1 has categorically admitted that he does not know about the charges claimed by way of gas welding charges and what was the necessity for such gas welding. He also admitted the fact that he was having 14 buses and the affairs of those buses were being looked after by some other person. But nobody was examined from the side of the complainant to prove A2 series of bills. The cross examination of PW1 would give an indication that photocopies of the bills are not genuine bills and those bills require authenticity. Unfortunately, the complainant failed to adduce any authentic and acceptable evidence to substantiate his claim for Rs.1,23,210/- towards repair charges.
8. The complainant as PW1 admitted the fact that the insured vehicle is of 1992 model and at the time of the accident the insured vehicle was 10 years old. It is further admitted by PW1 that the replaced spare parts would attract depreciation and that complainant being the insured will get cost of the spare parts after deducting depreciation. Ext.A2 series of bills would make it clear that the complainant has not deducted any amount by way of depreciation. It is admitted by PW1 that cost of spare parts would come to Rs.93500/-. The definite case of the opposite parties/Insurance Co. is that 50% is to be deducted by way of depreciation. In B3 survey report, the surveyor has also deducted depreciation at 50%. Ext.B3 survey report would show cost of the spare parts which required replacement would come to Rs.66968/- and after depreciation cost of parts would come to Rs.36289/- The aforesaid case of the opposite party/Insurance Co. that 50% is to be deducted by way of depreciation from the total cost of parts is not disputed by the complainant. On the other hand, the testimony of PW1 would strengthen the said case of the insurance company and that of the approved surveyor who assessed the loss. Thus, it can be seen that the claim for Rs.1,23,210/- towards repair charges is legally unsustainable.
9. The approved surveyor and loss assessor filed B3 survey report along with the estimate for repair submitted by Quality Automobiles and Body works. Edavanakkad. The policy conditions attached to A1 insurance certificate is also produced. Ext.B4 series are photographs of the insured (damaged) vehicle. Ext.B4 series are photographs were produced by the approved surveyor alongwith his B3 survey report. It is also deposed by DW1 that he conducted inspection of the damaged (insured) vehicle after giving notice to both parties and in the presence of the complainant, the owner of the insured vehicle. It is also deposed that the inspection was conducted at the premises of the workshop and in the presence of the owner of the workshop. It is categorically deposed by DW1 that he inspected the damaged insured vehicle after dismandling the engine and he made a detailed examination of the vehicle including the engine parts, for the purpose of assessing the loss sustained to the insured vehicle which met with road traffic accident. DW1 was cross examined for the complainant; but nothing could be brought out to discredit or disbelieve the testimony of DW1 and Ext.B3 report. 10.The surveyor as DW1 categorically deposed regarding the labour charge including mechanical charge for repairing the damaged vehicle which was insured with the opposite party/United India Insurance Company. It is deposed by DW1 that the workshop owner who submitted the estimate agreed for doing the repair works (labour charge including charges for mechanical works) at Rs.18700/-. B3 survey report would show that the estimate was given by Quality Automobiles and Body works, Edavanakkad and it is dated 26.11.03. DW1 has also deposed that the labour charges agreed by the workshop owner has been endorsed at the bottom of the estimate itself. He categorically deposed that the workshop owner was ready and willing to execute the repair works for the damaged vehicle(insured vehicle) at Rs.18700/- by way of labour charges including mechanical works. The aforesaid testimony of DW1 has not been controverted by examining the workshop owner of Quality Automobile and Body works, Edavanakkad who submitted estimate for the repair works. It is to be noted that DW1 is an approved/ licensed surveyor/loss assessor and valuer. The mere fact that DW1 is an insurance surveyor and he had submitted survey report for the opposite party/insurance company with respect to some other cases could not be taken as a ground to hold that he is not an approved surveyor or that his B3 survey report cannot be accepted . It is to be noted that the licensed/approved surveyors will be doing their duty as surveyors for various insurance companies and that the surveyors are recognized and approved to do such duties and works as licensed and approved surveyors. Evidently approved surveyors like DW1 had submitted survey reports in so many other cases and those survey reports might have been filed at the request or instance of insurance companies like the opposite party/ insurance company. But the assessment made by the surveyor on earlier occasions with respect to some other matters will not adversely affect the independent nature and character of the approved surveyor. It is held by the Hon’ble Supreme Court in United India Insurance Co.Ltd. & others Vs. Roshan Lal Oil Mills Ltd. & others reported in (2000) 10 SCC-19 that report of approved surveyor is to be considered as an important piece of evidence and non-consideration of the survey report would lead to miscarriage of justice unless cogent and valid reasons are assigned. In this case complainant could not adduce any evidence to discard or reject the testimony of DW1 and Ext.B3 survey report submitted by him. So, we have no hesitation to rely on B3 survey report submitted by DW1, the approved and licensed surveyor.
11. Ext.B3 survey report would show that the approved surveyor assessed the net total loss at Rs.50739/-. The aforesaid net total loss has been assessed after deducting depreciation at 50% for the parts required replacement. The surveyor has also deducted policy excess of Rs.1500/- and salvage value of Rs.2750/-. The policy conditions attached to B3 survey report would make it clear that the 50% is to be deducted by way of depreciation with respect to the insured vehicle which is 10 years old. The insured vehicle in the present case was of 1992 model. The accident in this case occurred on 24.7.03. On the date of accident , the insured vehicle was more that 10 years old. If that be so, the surveyor can be justified in taking 50% by way of depreciation from the cost of the spare parts required replacement.
12. As per the policy condition namely condition No.I under the head Section I the loss or damage to the vehicle insured would show that all parts made of glass do not warrant any depreciation. In other words the glass parts do not attract the provision for depreciation. Ext.B5 survey report would make it clear that windscreen laminated wind glass 2 Nos. and quarter glass 1 No. required replacement and the amount of the aforesaid glasses would come to Rs.2550/- including sales tax. The cost would come to Rs.2805/-. The surveyor did not make any depreciation for the cost of the aforesaid glasses. This would make it clear that the surveyor assessed the net loss in a just and proper manner by following the policy conditions. So, the net loss assessed by the surveyor at Rs.50739/- is to be accepted. B3 survey report would also show that the appellant/complainant being the insured was entitled to get Rs.50739/- for repairing the insured vehicle.
13. It is the definite case of the respondent/opposite party that they offered only Rs.47500/- to the appellant/complainant towards the loss sustained to his insured vehicle which was insured with the respondent/opposite party/insurance company. It can be seen that by offering Rs.47500/- by way of damage or loss would make it clear that the respondent/opposite party/Insurance company was not prepared to pay the loss assessed by the approved surveyor. Admittedly as per B3 survey report the net total loss was assessed at Rs.50739/-. Instead of offering the said sum of Rs.50739/-, the respondent/opposite party/Insurance company has only offered Rs.47500/-. The aforesaid action on the part of the opposite party/Insurance company would amount to deficiency in service.
14. No reason or explanation is forthcoming from the side of respondent/opposite party/Insurance company for their failure in paying the said sum of Rs.50739/- which was assessed by approved surveyor by way of net total loss. It is categorically contended by the opposite party/Insurance company in their written version that the approved surveyor assessed the loss at Rs.47440/-. The aforesaid contention adopted in para 4 of the written version can not be believed or accepted. On the otherhand, Ext.B3 survey report would show that the net total loss assessed by the surveyor would come to Rs.50739/-. The aforesaid pleadings would also show that the opposite party was ready to pay a sum of Rs,47440/- to the complainant/insured at the 1st instance. It would also show that thereafter the Insurance Ombudsman directed the insurance company to pay Rs.47500/-and thereby the respondent/opposite party insurance company offered Rs.47500/-. The aforesaid action on the part of the opposite party would also amount to deficiency in service. In fact, the respondent/opposite party/Insurance company accepted B3 survey report. In such a situation it was incumbent upon the insurance company to pay the amount assessed by the approved surveyor towards the net total loss. The respondent/ opposite party/Insurance company is expected to pay the net total loss of Rs.50739/- which was assessed by the approved surveyor. The aforesaid failure would amount to deficiency in service. The Forum below cannot be justified in holding that there was no deficiency in service on the part of the opposite party/United India Insurance company. So, this Commission have no hesitation to setaside the aforesaid finding made by the Forum below.
15. Forum below has also taken a stand that the Insurance Ombudsman fixed the quantum of compensation at Rs.47500/- It can be seen that the complainant/insured was not amenable for the aforesaid compensation of Rs.47500/-. There is no justification on the part of the Insurance company in reducing the insurance claim and fixing the same at Rs.47500/-. It is to be noted that the award passed by the Insurance Ombudsman in complaint No.10/KCH/ G1/11-004-138/2004-05 under rule 16 of the Redressal of public grievances rules 1998 has no binding force and that the award passed by the Insurance Ombudsman cannot be executed without the consent and concurrence of the insured/complainant. It is established in this case that the complainant/insured was not ready to accept Ext.A5 award. So, the Forum below can not be justified in relying Ext.A5 award passed by the Insurance Ombudsman, Kochi and dismissing the complaint filed by the complainant under the Consumer Protection Act.1986. It is to be borne in mind that passing of the award by Insurance Ombudsman under the provisions of the Redressal of public grievances rules, 1998 would not ban or ban the right of the consumer to prefer a complaint under the provisions of the consumer Protection Act, 1986. Thus, the impugned order passed by the forum below in CC.463/06 is liable to be quashed. Hence we do so. These points are answered accordingly.
In the result the appeal is allowed. The impugned order dated 23.2.07 passed by CDRF, Ernakulam in CC.463/06 is set aside. The complaint in CC.463/06 is allowed and thereby respondent/opposite party/United India Insurance Co.Ltd. is directed to pay Rs.50739/- to the appellant/complainant (insured of the stage carriage bearing Reg.No.KL-13/9378) with interest at the rate of 9% per annum from the date of complaint in CC.463/06 till the date of realization. The appellant/complainant is also entitled to get cost of Rs.2000/- from the respondent/opposite party/Insurance Co. The decreed amount with interest and cost is to be paid within one month from the date of receipt of copy of this judgment.
M.V.VISWANATHAN : JUDICIAL MEMBER
M.K.ABDULLA SONA : MEMBER
ps
