BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.47/2014

Dated this the 2^nd day of May 2018

(Date of Institution: 17.06.2014)

T. Anbuchezhian, son of Tamilzharasan

No.37, Othavadai Street, Mudaliarpet,          

Puducherry – 605 004.

….     Complainant

vs

1. The Divisional Manager

    The Oriental Insurance Company Ltd.,

    No.179, Easwaran Koil Street,

    Puducherry – 605 001.

2. The Regional Manager

    The Oriental Insurance Company Ltd.,

    U.I.L. Building, IV Floor, No.4

    ESPLANADE, Broadway,   

    Chennai – 600 108.   

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT:  Thiru P. Ilango, Advocate

FOR THE OPPOSITE PARTIES: Thiru B. Mohandoss, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for ;

1. Directing the Opposite Parties to pay a sum of  Rs.3,75,000/- which is 75% of the insured sum of Rs.5,00,000/- towards the claim settlement on total loss basis for the vehicle;
2. Directing the Opposite Parties to pay a sum of Rs.1,00,000/- towards compensation for negligence, deficiency in service and unfair trade practice and for mental mental agony and harassment;
3. To pay a sum of Rs.15,000/- cost towards cost of this complaint.

2.  The case of the complainant is as follows:

            The complainant has a volkswagan-LMV car bearing registration No.PY-01-BH-8999 and the same has been insured with the first opposite party for the value of Rs.5,00,000/- vide policy No.413900/31/2013/4943, valid from 18.03.2013 to 17.03.2014.  The said vehicle met with an accident on 27.09.2013 at about 03.00 p.m. on Trichy-Chennai Main Road at Konalai Village and the said accident was duly reported to the Station House Officer of Siruganur Police Station,  Tiruchirapalli District, Tamil Nadu and a case has been registered in FIR No.445/2013. Due to the said accident the complainant’s vehicle has been completely damaged at it became not fit for use.  The complainant has intimated the said accident and made a claim in this regard with OP1 on 30.09.2013 and produced the photos of the damaged vehicle and the estimation of the damaged vehicle dated 07.10.2013 issued by the Susee Automotive PVt. Ltd., Trichy amounting to Rs.6,82,576.93 and also the  supplementary estimation of the damaged vehicle dated 11.12.2013 issued by the same Susee Automotive Pvt. Ltd amounting to Rs.2,46,980/-.  As the vehicle has been totally damaged due to the accident and became not fit for further use, the complainant wanted to settle his claim on total loss basis and has demanded the first opposite party for the same.  But the first opposite party has informed to the complainant through his letter dated 12.12.2013 and 13.01.2014, that the claim could be considered only on repair basis and further required the complainant to produce the final bills of repair replacement of spares.  The complainant is not willing and intend to repair the totally damaged vehicle by spending a huge amount which will exceed the actual price of a new vehicle  and demanded the first opposite party to settle the claim on total loss basis.  That  in the letter dated 12.12.2013 addressed to the complainant by the first opposite party it was stated that the opposite parties’ company Surveyor Er. A.V. Karthikeyan has assessed the loss approximately at Rs.3,04,274/- and later as per letter dated 27.02.2014 has revised to a tune of Rs.3,52,542/-.  That the Motor Draft Report dated 18.11.2013 issued by the opposite parties’ Company Surveyou Er. A.V. Karthikeyan and the Revised Motor Draft Report would reveal, that the liability of the opposite parties would likely to touch or cross 75% of the sum insured i.e. Rs.5,00,000/- . But, inspite of the above fact, the opposite parties have insisted the complainant to submit the final bills of repair replacement before the payment of the settlement amount.   The Surveyor of the opposite parties in the Revised Motor Draft Report has clearly stated as follows:

          “During my discussion with the repairers they feel that there may be few more parts that may require replacement, on dismantling.  They also feel that the labour charges be revised upward by atleast Rs.10,000/-.  In which case, the liability is likely to touch on cross 75% of the sum insured”.

           That if the complainant got repaired the damaged vehicle by spending more than Rs.3,75,000/- which is the 75% of the sum insured, the opposite parties are not liable to pay the complainant the excess amount so spend by him.  In such circumstances the opposite parties are liable to settle the complainants' claim only on total loss basis and in doing so, no prejudice or loss would be caused to them.  But the opposite parties are very much reluctant to settle the just claim of the complainant for no valid reason.    That since 30.09.2013, the date on which the complainant made his claim with the first opposite party and even after several reminder through E-mail, the opposite parties have not taken any fruitful steps to settle the claim but, dragged on the issue by adamantly insisting for the repair basis settlement, which is not fair on their part, which is amount to negligence and deficiency in service and unfair trade practice adopted by them.  So, on 10.03.2014 the complainant has caused to issue a Lawyer Notice to the first opposite party calling upon him to pay the claim settlement amount of Rs.3,75,000/- and another sum of Rs.1,00,000/- towards the  compensation for mental agony caused due to the deficiency in service totally a sum of Rs.4,75,000/- and  first opposite party having acknowledged the said notice on 12.03.2014 failed to respond or to pay any amount.  Further, the complainant has issued a reminder to the first opposite party on 15.05.2014 and even then the opposite parties have not chosen to settle the claim.  Hence this complainant.

          3. The reply version filed by first opposite party and adopted by second opposite party briefly discloses the following:

          The complaint is not maintainable in law or on facts.  The opposite parties admitted that the complainant is the owner of the Volkswagan car bearing Regn. No.PY-01-BH-8999 and that the said vehicle was insured with the  1^st opposite party for the value of Rs.5,00,000/- for the period 18.03.2013 to 17.03.2014 and also admitted the fact of accident occurred on 27.09.2013.    However, there is no truth in the allegation that the vehicle has been completely damaged and has become unfit for use.  It is further admitted by the opposite parties that the complainant has submitted the estimation of the damaged vehicle dated 07.10.2013 issued by Susee Automative Pvt. Ltd for Rs.6,82,576.93 in addition to the supplementary estimation of the damaged vehicle dated 11.12.2013 for
Rs. 2,46,980/-.  It is stated by the opposite parties that the OP1 has informed the complainant through  letters dated 12.12.2013 and 13.01.2014 that the claim could be considered only on repair bases and further required the complainant to produce the final bills of repair/ replacement of spares.  However, the complainant is not justified in adamantly refusing to get the damaged vehicle repaired on the false contention that the amounts spent on repair will exceed the actual price of the new vehicle of the same kind.  This opposite party does not admit the allegation that he has not shown any interest towards the settlement of claim.  The fact remains that the 1^st opposite party has made prompt arrangement for inspection of the vehicle and for assessment of loss by deputing the surveyor Mr. A.V. Karthikeyan.    The Complainant has failed to understand that opposite party No.1 is a public undertaking and it cannot act according to its whims and fancies through its officers.  The insurance company deals with public funds and it has got rules and regulation in settling the claims of the insured.  It has to apply its mind over the facts and circumstances attending to the claims and has to process the claim in the light of the terms and conditions of the policy and other relevant documents.  To satisfy the requirement of complainant, they sent Revised Motor Draft Report through letter dated 27.02.2014 wherein it has been clearly pointed out that the 1^st opposite party could settle the claim only for Rs.3,52,542/-  The complainant has not submitted the final bills of repair/replacement as requested by the 1^st opposite party in the letter dated 13.01.2014.  As such the contention made by complainant that even after lapse of several months, the  1^st opposite party has not taken any fruitful steps to settle the claim is not correct and valid in law.  The 1^st opposite party submitted that the contention of the complainant that the opposite parties can very well settle the claim of the complainant on total loss basis by paying Rs.3,75,000/-  is without substance and cannot be maintained in law.  There is no total loss, either actual or constructive in the facts and circumstances of the case.  Moreover, such a settlement is also not possible as per the terms and conditions of the relevant policy.  Under such circumstances the contention of the complainant that the OPs are very much reluctant to settle the just claim of the complainant for no valid reason cannot be accepted as valid one.  The Opposite Parties have not any decision in this regard in an arbitrary manner.  On the other hand they have applied their mind over all relevant and necessary facts and not accepted the request of the complainant to settle the claim to satisfy his requirements.  Before taking such a decision the OPs have taken prompt and necessary steps like collecting supporting documents from the complainant, appointing Surveyor to inspect the vehicle concerned and to assess the loss, obtaining legal opinion from the panel lawyer of the company etc.  There is no negligence committed by the OPs in processing the claim of the complainant.  Under such circumstances the opposite parties are not at fault and the complainant cannot have any valid grievance in this regard.  There is no cause of action for a complaint against the Opposite Parties since there is no deficiency in service committed by them towards the complainant.  Hence, the prayed to dismiss the complaint. 

 4.      On the side of the complainant, the complainant himself examined as CW1 and Exs.C1 to C20 were marked.  On the side of opposite parties, one Mr. K. Segar, Assistant Manager of OP1 company examined as RW1 and Exs.R1 to R4 were marked.    

5.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any unfair trade practice and deficiency in service?
3. To what relief the complainant is entitled for?

6. Point No.1:

          That on perusal of Ex.C1 Certificate of Registration, the complainant is the owner of vehicle Volkswagen and the said vehicle is insured with the OPs as per Ex.C1 the Motor Insurance Certificate covering the period from 18.03.2013 to 17.03.2014 for total value of Rs.5,00,000/- and paid premium of Rs.10,619/-.  Hence, the complainant is considered as a Consumer to the opposite parties. 

          7.  Point No.2:

We have perused the complaint, Exs.C1 to C20 and the evidence of complainant as CW1.   We have also perused the reply version filed by the opposite parties, Exs.R1 to R4 and the evidence of RW1. 

          8. The complainant purchased a Volkswagan Car bearing Regn. No.PY 01 BH 8999 and insured the vehicle with the first opposite party for the sum insured i.e. Insured Declared Value (IDV) for Rs.5.00 lakhs and paid premium of Rs.10,619/- covering period from 18.03.2013 to 17.03.2014  as per Ex.C1.  The said vehicle met with an accident on 27.09.2013 and it was totally damaged and the same was informed to the first opposite party on 30.09.2013.  The complainant submitted estimate of the damages of the vehicle to a tune of Rs.9,29,556.93 issued by one Susee Automotive Pvt Ltd., Trichy and demanded the opposite parties to settle the claim on total loss basis since the vehicle became unfit for road worthy.  But, the opposite parties alleged that the claim could be considered only on repair basis and required the complainant to produce bills of repair / replacement of spares.  The complainant further submitted that, the Surveyor belongs to OP company assessed the loss to the tune of Rs.3,52,542/- and also stated in the Revised Motor Draft Report that there may be few more parts that may require for replacement, on dismantling and felt the labour charges be revised upward by atleast Rs.10,000/- and it could touch or cross 75% of the sum insured.  The complainant requested the opposite parties to settle 75% of the IDV, but the same was refused by the opposite parties.   Since the opposite parties dragged on the proceedings instead of settling his claim, the complainant caused issuance of legal notice on 10.03.2014, even then, the opposite parties failed to send reply in time and neglected to settle the claim made by the complainant which lead the complainant to suffer monetary loss, mental agony and harassment and therefore, filed this complaint. 

          9. On the otherhand, though they admitted that the complainant's vehicle was insured with them and the said vehicle met with an accident, they denied the allegation that they have not shown any interest towards the settlement of claim.  The opposite parties further stated that they deputed a Surveyor to assess the loss and who in turn filed his Motor Draft Report and Revised Motor Draft Report and they were intended to settle the claim to a tune of Rs.3,52,542/- and the said fact was informed through reply notice dated 19.06.2014.  The allegation of the opposite parties is that the complainant alone not submitted the final bills of repair / replacement to the opposite party.  Hence, there is no truth in the allegations that the opposite parties have committed negligent act and unfair trade practice.

          10. When the matter came up for argument, the learned Counsel for the opposite parties filed a petition in M.P. 195 / 2017 along with a Motor Survey Report dated 9.8.2017 submitted by one Er. A. Raja Mohamad Yousuf, Surveyor / Loss Assessor to OP company, Puducherry who assessed the net loss to a tune of Rs.3,76,000/-  and also stated that the above assessment is made without dismantling the vehicle and on dismantling, the assessment is likely to go up and also the parts rates have been revised and the assessment is likely to go up by another Rs.24,000/- totaling to Rs.4,00,000/-. 

11. The Surveyor made assessment in three ways i.e. 1) On Repair basis without dismantling; 2) on Total Loss Basis and 3) Salvage Loss Basis.  On repair basis, he assessed as Rs.4,00,000/-;  on total loss basis, he assessed to a tune of Rs.4,99,000/- and on Salvage Loss Basis, he assessed as Rs.4,29,000/-.  After perusing the petition, the complainant filed counter and restricted his reliefs and agreed to get settled of the claim on "Loss Assessed on Salvage Loss Basis" for Rs.4,29,000/- and relinquished other reliefs. 

          12. From the above facts and discussions and upon the counter filed by the respondent / complainant in M.P. 195 / 2017, this Forum inclined to direct the opposite party to pay a sum of Rs.4,29,000/- to the complainant as per the Surveyor's Report agreed upon by the complainant.  This point is answered accordingly.

13.  POINT No.3:

          In the result, the complaint is hereby allowed and the OPs are jointly and severally directed to pay a sum of Rs.4,29,000/- towards full and final settlement of the claim to the complainant.  Since the complainant not insisted for other reliefs, the complainant is not entitled to any other reliefs.

Dated this the 2^nd day of May 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:

CW1           25.03.2015           T. Anbuchezhian

OPPOSITE PARTY'S WITNESS:

RW1           03.02.2016           K. Segar, Assistant Manager

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

  PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER