D.o.F: 25/02/2010 D.o.O:12/11/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.46/10 Dated this, the 12th day of November 2010. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER Manoj Kumar Karikotu, S/o Thankappan Asari Sanjeevani Bhavan, Panathur Po : Complainant (Adv. P Narayanan Hosdurg) 1.Divisional Manager Oriental Insurance Co.Ltd, : Opposite parties Sree Narayana Park Road,Kannur. 2.Manager, Oriental Insurance Co.Ltd Micro Office at Kanhangad, Po.Kanhangad. (Adv.S. Mahalinga ,Kasaragod.) ORDER SRI.K.T.SIDHIQ : PRESIDENT Whether the happening of an accident itself entitle the assured to claim the loss stipulated in the insurance policy or in other words whether the insured is liable to settle the claim before completing the repair of the vehicle involved in an accident is the issue to be settled in this consumer complaint. The case of complainant Manoj Kumar is that his car bearing Reg. No. KL 60/4768 insured with opposite party vide policy No.441699/31/2009/1276 involved in an accident on 4/8/09 and suffered extensive damages. It was taken to the repairer and kept there. The repairer estimated the price for repair at ` 165921/-. The complainant intimated the fact to the insurer. But as per letters dtd.18/12/2009 and 23/12/09 the Ist opposite party has informed that they would settle the bill only after submitting the repair bills after completion of the repair work. According to complainant he is in a financial difficulty hence he could not repair the vehicle by his own fund. The opposite parties have collected the premium for providing service to the complainant. They failed to render their service to repair the vehicle. According to complainant the opposite parties cannot insist for repair the vehicle on complainants cost and to collect repair charges after completion of the repair. Therefore, the complaint alleging deficiency in service on the part of opposite parties. 2. In the version opposite parties contended that the IDV (Insured’s declared value) of the vehicle is `1,10,000/- as per the policy. On receiving intimation about the accident 2 surveyors were deputed for spot survey and loss assessment. Accordingly, though the surveyor deputed for loss assessment made several visits to assess the loss. But the complainant failed to complete the repair work or submit his bills to assess the actual loss. Hence surveyor intimated the non co-operation of the complainant in processing the final survey and therefore on the available data filed his report assessing net liability at ` 28657/-. According to opposite parties unless the repair work is completed and informed to the opposite party for conducting final survey the processing of the claim is in peril and the present claim of the complainant is premature and has no legs to stand. Complainant is not entitled for the relief claimed. Hence it is to be dismissed. 3. Complainant filed proof affidavit in support of his claim as PW1. Exts.A1 to A4 marked. One witness is examined as PW2. Both witnesses were cross examined. On the side of opposite parties DW 1 examined. Exts.B1 to B5 marked. Both sides heard Documents perused. 4. As aforementioned the issue to be settled is whether the complainant is entitled for the relief claimed ? 5. It is a fact that the complainant has not spend the amount as shown in Ext.A1 estimate to repair the vehicle. Therefore he is not entitled to get that amount mentioned in the estimate. Ext.B2 is also an estimate prepared by PW2 for repairing the complainant’s vehicle . Ext.A1 estimate is also issued by PW2. But in Ext.B2 the total amount including labour charge is ` 81000/- only. How this difference is occurred in Exts.A1 & Ext.B2 is nowhere explained by PW2. Though he deposed that at the time of issuing Ext.B2 the vehicle was not dismantled. Therefore both the estimates are not acceptable for a fair disposal of this case and the complainant is not entitled for the said amount. 6. Ext.B4 is the survey report. As per Ext.B4 survey report the surveyors assessment is ` 28,657/-only. Therefore the complainant is entitled for that amount only. The claim of the complainant for the amount shown in Ext.A1 is not allowable in view of the decision of Hon’ble Suprem,e Court in the case of United India Insurance Co.Ltd vs. Kantika color Lab & others reported in 2010 CTJ 729 (Supreme Court)(CP) In the said judgment the Ho’ble Supreme Court has held as follows Contracts of insurance are generally in the nature of contracts of indemnity. Excepting in the case of contracts of life insurance, personal accidents and sickness of contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the events against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount, stipulated in the contract of insurance which signifies the outer limit of the insurance company’s liability. The amount mentioned in the policy does not signifies that the insurance company gurantees payment of the said amount regardless of the actual loss suffered by the insured. The law on the subject in this country is no different from that prevalent in England, which has been summed up in Halsbury’s lLws of England- 4th Edition in the following words: The happening of the event does not of itself entitle the assured to payment of the sum stipulated in the policy , the event must, in fact, result in a pecuniary loss to the assured, who then becomes entitle to be indemnified subject to the limitations of his contract. He cannot recover more than the sum insured for that sum is all that he has stipulate for by his premiums and it fixes maximum liability of the insurers. Even with in that limit, however, he cannot recover more than what he establishes to be the actual amount of his loss. The contract being one of indemnity only , he can recover the actual amount of his loss, and no more, whatever may have been his estimate of what his loss would be likely to be and whatever the premium he may have paid, calculated on the basis of that estimate.” Apart from that the Hon’ble Kerala State Consumer Disputes Redressal Commission in the appeal No 112/2010 between Oriental Insurance Co.Ltd vs. Perinadu Grama Panchayath decided on 30/10/10 has held that the complainant ought to have got the vehicle repaired and intimated the fact of effecting repairs to the appellant. The complainant also ought to have requested to make the payment directly to the repairer if they chose to do so. The liability of the insurance company is to make good the loss and not to get the vehicle repaired and handed over to the assured. The complainant has no case that he spent the amount `165921/- as shown in Ext.A1 to repair of the vehicle. Therefore applying the dictum laid down by the Hon’ble Supreme Court and the view taken by Hon’ble State Commission, Kerala in the above cases the complainant is entitled only for the amount mentioned in Ext.B4 survey report ie ` 28657/-. Therefore the complaint is allowed to that extent. The opposite party is directed to pay ` 28,700/- (rounded figure) @9% per annum from the date of complaint till payment together with a cost of ` 3000/- . Time for compliance is 30 days from the date of receipt of copy of order. Failing which ` 28700/- will carry interest @12% from today till payment. Exts: A1-9/2/10- estimate issued by Fast cars Automobiles,Kanhangad. A2-18/12/09-letter issued from Ist OP A3-23/12/09- letter issued from Regional Manager of OP A4-7/8/09- copy of certificate issued by SHO Hosdurg B1-12/10/09- Survey report B2- 7/8/09-estimate issued by Fast cars Automobiles,Kanhangad B3-Private car package policy B4-Survey report B5-18/12/09- reply of Ext.A3 PW1- Manoj Kumar K- complainant PW2 –Dinesh Babu-witness of PW1 DW1-M.P.Thamban Nambiar-witness of OP Sd/ Sd/ MEMBER PRESIDENT eva /Forwarded by order/ SENIOR SUPERINTENDENT | 
