BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 295/2004 Filed on 22.07.2004

Dated : 30.04.2011

Complainant:

Kavitha, T.C 17/209, Thalakonam, Poojappura, Thiruvananthapuram.

(By adv. Prabhu Vijaya Kumar)

Opposite parties :

1. The Chairman and Managing Director, New India Assurance Co. Ltd., New India Assurance Building, 87, Mahatma Gandhi Road, Fort, Mumbai-400 001.

    

2. The Regional Manager, New India Assurance Co. Ltd., Regional Office, Kandamkulathil Tower, PB No. 1049, 86/707, M.G. Road, Ernakulam.

    

3. The Divisional Manager, New India Assurance Co. Ltd., Divisional Office, Kottarathil Building, Annexe, Palayam, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This O.P having been heard on 15.03.2011, the Forum on 30.04.2011 delivered the following:

ORDER

SMT. S.K. SREELA, MEMBER

The complainant had insured her car bearing Reg. No. KL-01/N 576 with the India Assurance Co. Ltd. for Rs. 1,52,000/- being the IDV value of the car fixed by the insurance company. The car was being used by the complainant for her personal transportation needs and whileso, on 05.07.2003 the car met with an accident at Vazhuthacaud, Thiruvananthapuram causing heavy damage to the car. The accident was duly reported by the complainant to the 3^rd opposite party. The matter was also reported to the police. The complainant promptly lodged a claim with the 3^rd opposite party and lifted the car to the garage of the authorized sales and service agents of FIAT, namely M/s Sundaram Iyengar & Sons. After the inspection of the car, TVS Garage had quoted an estimate of Rs. 1,48,980/- vide their estimate No. TVM/FIAT/EST/1303 dated 24.07.2003 and forwarded the same to the 3^rd opposite party. The car was inspected by the surveyor from the insurance company and the damage was assessed. While so, the opposite parties proposed a total settlement under cash loss basis to which the complainant agreed, but even after 6 months since there was no progress in this regard, the complainant again visited the 3^rd opposite party. The complainant was told by the surveyor of the 3^rd opposite party that the company had rejected the previous offer and will accept her claim only to the extent of repairing the car. Since the complainant did not have any other option she accepted the same unwillingly even though she was apprehensive about repairing a car which had suffered major damages. Meanwhile the company again put up a new proposal that the car is to be shifted to another workshop for the repair and submit a revised estimate to which the complainant unhappily agreed due to her helplessness. The surveyor of the insurance company had directed the complainant to lift the car to a workshop namely Car Care, Killippalam. Accordingly the mechanics from that garage had gone to the TVS garage where they were informed that an amount of Rs. 15,000/- had to be paid to the TVS garage before shifting the car from their premises. The complainant had expressed her unwillingness and unhappiness to do the repair work in a workshop other than a Fiat authorized workshop and her unwillingness to pay the garage rent and estimate due to TVS, vide her letter dated 19.01.2004 since no action was taken by the opposite parties to settle the claim even after her repeated visits to the insurance company's office. Since the opposite parties did not take any positive steps to settle the complainant's claim even after several visits by her to the 3^rd opposite party's office and also after many correspondence, the complainant was constrained to approach the Forum for redressal of her grievances.

Opposite parties have filed their joint version contending as follows: The complaint is not maintainable either in law or on facts. That the contention that complainant duly reported the accident to the 3^rd opposite party is false and denied. The claim was reported to the opposite parties only on 28.07.2003. The complainant had submitted claim to opposite parties only after the lapse of 28 days, i.e on 28.07.2003. On receipt of the claim the opposite parties deputed independent licenced insurance surveyor, Sri. P.S. Suresh Babu, to conduct survey and assess the loss caused to the vehicle. The estimate submitted by M/s T.V.S was baseless, exaggerated and exorbitant. The complainant who had discussions with the surveyor at the opposite party's office at Thiruvananthapuram therefore agreed and decided to lift the Uno car to another workshop and submit revised estimate. The decision to lift the Uno car to another workshop and submit revised estimate was taken on the express agreement of the complainant and the complainant herself was convinced that the estimate submitted by M/s TVS was baseless and exaggerated. But the complainant did not make any effort to submit revised estimate. Therefore the opposite parties vide letter dated 08.12.2003 requested the complainant to submit revised estimate urgently. As there was no response from the complainant the opposite parties again sent a letter on 9^th January 2004 to the complainant requesting her to submit the revised estimate within 15 days failing which the opposite parties would presume that the complainant is not interested in the claim and would close the file as “no claim”. As the complainant did not submit the revised estimate opposite parties were constrained to treat the complainant's claim as “no claim”. The averments to the contrary in paragraphs (6) to (13) of the complaint are false and hence denied. It is submitted that the remedy, if any, of the complainant is against M/s TVS who has submitted an exaggerated estimate without any basis and has demanded as per the allegations of the complainant Rs. 15,000/- as estimation charges and garage rent from the complainant. It is evident from the allegations in the complaint that M/s TVS had acted illegally. It is further submitted that the opposite parties were constrained to close the claim as “no claim” due to the fault of the complainant herself in not lifting the car to another workshop and not submitting a revised estimate. The averment that the opposite parties proposed a total settlement on cash loss basis is not true to facts and hence denied. The averment that persuant to the letter dated 09.01.2004 sent by the opposite parties, the complainant had visited the 3^rd opposite party's office and expressed her unwillingness to adhere to the conditions stated in the letter is false and denied. The averment that the opposite parties took no action to settle the claim is false and hence denied. The opposite parties had acted only in good faith and bonafide. The opposite parties are not liable to compensate the complainant. The opposite parties have also not caused any delay. The complainant is not entitled to get any amount from the opposite parties.

The Power of Attorney Holder of the complainant has filed affidavit and marked Exts. P1 to P11 on the part of the complainant. Opposite parties have filed their counter affidavit. Opposite parties have produced documents but not seen marked.

The points for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

Points (i) & (ii):- There is no dispute regarding the policy. The opposite parties have contended that the accident was reported to them after a lapse of 28 days i.e; on 28.07.2003. According to the complainant, the accident had occurred on 05.07.2003 and that she had duly informed the same to the insurance company and to the police. As per Ext. P2, the GD Abstract dated 07.07.2003, it is evident that the accident was reported to the police on the 2^nd day of such an incident. Ext. P4 is the estimate for repairs to be carried out to the complainant's vehicle, prepared by T.V. Sundaram Iyengar & Sons Ltd. As per Ext. P4 the complainant has been asked to shift the damaged car to another workshop and to submit the revised estimate from there. Though the opposite parties have produced documents and referred the same in their affidavit, they have not marked any documents on their part. As per the letter dated 18.12.2003 issued by the opposite party to the complainant, which is before us, the complainant has been asked to lift the damaged Uno car to another workshop and submit revised estimate. The reason stated by the insurance company for the same in their version is that the estimate submitted by M/s TVS was baseless, exaggerated and exorbitant. On the other hand, the opposite parties have contended that they had deputed independent licenced insurance surveyor to conduct survey and assess the loss caused to the vehicle. But the opposite parties have never bothered to examine the surveyor or establish their above contention. The complainant has produced the detailed estimate prepared by TVS which comes to a total of Rs. 1,48,980/-. The opposite parties in spite of their contention in the version that the said amount is exorbitant, has failed to challenge the same. Though the surveyor's report, an important document, is on record on affidavit which cannot be brushed aside, the same has to be proved when the same is strongly objected by the complainant and when there is a drastic difference in the amount towards loss assessed by the surveyor and that of the authorized sales and service agent. Further we do not understand the reasoning behind the act of the opposite parties in asking the complainant to lift the vehicle from the authorized workshop to another one. Though the surveyor's report has not been marked we have given our careful attention to both the reports. Among the two varying estimates made by the surveyor and that of the authorized dealer, we are inclined to accept the estimate prepared by the authorized workshop TVS as the same is more detailed and has the details of damages and has made recommendations accordingly. The opposite party has miserably failed to establish their contention in their version though ample opportunity for evidence were given to them.

Though the complainant has contended that the opposite party had initially offered total settlement under cash loss basis, there is no evidence adduced to support the same. From the above discussions and evidence on record, we find that the complainant is entitled for an amount of Rs. 1,48,980/- from the opposite parties as the evidence adduced by the complainant stands unshaken. It is further found that an additional amount of Rs. 10,000/- could be added further as the authorized workshop has stated that while dismantling or while carrying out repairs, if any major jobs needs attention or any major parts needs replacement, charges will be extra.

In the result, complaint is allowed. Opposite parties shall jointly and severally pay an amount of Rs. 1,58,980/- with 12% from the date of filing of the complaint i.e; from 22.07.2004 till realization along with a cost of Rs. 2,000/- to the complainant. Since interest has been ordered, there is no separate order as to compensation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of April 2011.

Sd/-

S.K. SREELA : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

jb

O.P. No. 295/2004

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of certificate of insurance of private car.

P2 - Copy of refer report by the contonment police station.

P3 - Copy of letter dated 24.07.2003

P4 - Copy of registered letter dated 09.01.2003.

P5 - Copy of letter dated 19.01.2004

P6 - Copy of advocate notice dated 29.04.2004.

P7 - Postal receipts.

P8 - Acknowledgement cards.

P9 - Copy of advocate notice dated 25.05.2004.

P10 - Copy of advocate notice dated 25.05.2004

P11 - Power of Attorney.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT