IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 19th day of July, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 50/2017 (filed on 22/02/2017)
Petitioners : Thomas Jose,
Mattttaaappallil House,
7th mile, Elikulam P.O.
Kottayam – 686577.
(Adv. Vivek Soman K.)
Vs.
Opposite Party : The Divisional Manager,
Oriental Insurance Company Ltd.
Cheeranvelil Building,
P.B. No. 124,
Near Mini Civil Station,
Kanjirappally – 686 507.
(Adv. P.C. Chacko)
O R D E R
Smt. Bindhu R, Member
This complaint filed under Section 12 of Consumer Protection Act, 1986.
The complainant was the owner of a Honda city car bearing Reg. No. KL-34/C-7503. The said vehicle insured with the opposite party under private car package policy and a nil depreciation policy for a premium of Rs.11,500/-. On 08-08-2016, the said vehicle met with an accident while being driven by the complainant. Immediately after the accident the same was informed to the opposite party. The complainant submitted a claim on 17-08-2016. A surveyor was appointed by the opposite party for assessing the loss. On the day of accident itself the vehicle was entrusted with Vision Honda Private Limited, which is an authorized service center of Honda for repair. They have issued a temporary repair estimate for a total amount of Rs.4,85,095/- (Rupees Four lakhs eighty five thousand ninety five only). After 4 days the complainant got a message from Vision Honda that the said vehicle had been inspected by a Surveyor of the opposite party. The repair works of the vehicle was to be started after the approval from the opposite party. But on several visit to Vision Honda, the complainant was informed that they had not got the definite reply from the opposite party. On 31-10-2016, the complainant sent a registered notice to the opposite party seeking urgent action on his claim. On 17-11-2016, the complainant again issued a registered notice to the opposite party. It was also mentioned in the said notice that the opposite party wanted the matter to discuss with the Surveyor which was a procedure in practice. The surveyor was asserting that after repair there could be many problems to the vehicle. The Surveyor issued a notice to the complainant on 21-11-2016 intimating that when the repair amount exceeds 75% of IDV there was no provision for repair basis settlement, instead the claim had to be treated on total loss basis. On 24-11-2016, the complainant replied to the Surveyor informing him that the estimate given by the authorized service center did not exceed above 75% of IDV and hence he preferred to get the vehicle repaired. The complainant informed this to the opposite party also. On 30-11-2016, a notice was issued to the complainant from Vision Honda to pay a sum of Rs.39,500/- as demurrage charges etc. for consuming their valuable space from 08-08-2016 till date. On 03-01-2017, the opposite party issued another notice with a discharge voucher informing that the Surveyor had reported the case as total loss and for processing the total loss settlement the complainant had to submit certain documents. He conveyed his unwillingness to total loss settlement by issuing a letter by hand to the opposite party on 13-01-2017, the complainant prefers repair of the vehicle as repair estimate is below the IDV. From 08-08-2016 vehicle lies in the same state of damage sustained at the time of accident. If the vehicle is kept idle the other parts which were not damaged also would become useless. The complainant requested to give permission to take the car from Honda Vision Motors workshop in order to avoid further demurrage as he was intending to take up the matter to higher statutory authorities. But the opposite party replied to insure that the vehicle was maintained in as is where is condition till the disposal of the claim. It was also informed that the shifting would be at the responsibility of the complainant. The act of the opposite party in not settling the claim and insisting the settlement on total loss basis when the assessed loss does not exceed 75% of the IDV amounts to deficiency in service and hence the complaint is filed. As the car which was regularly used by the complainant for his conveyance from Elikulam to Changanacherry was kept idle, the complainant had to avail other vehicles for his travel in which he had to suffer huge loss and hardships.
Upon notice from this Commission, the opposite party appeared before the Commission and filed version.
Admitting the policy, the opposite party contents that the IDV of the said vehicle as per the policy was Rs.6,50,000/-. The vehicle was stated to have met with an accident on 08-08-2016 but the matter was reported to the opposite party only after taking the vehicle to the workshop, those denying the legal rights of the opposite party for having a spot survey so as to rule out all sort of foul play that might happen immediately after the accident. As and when the opposite party get information of the accident, a qualified and well experienced surveyor Mr. V. Anil Kumar had been deputed to conduct the survey of the vehicle. At the time of survey an estimate of loss to the tune of Rs.4,86,595/- which is 74.63% of IDV (without dismantling the parts) against the IDV of 6,50,000/-. The Surveyor has made a detailed inspection without dismantling the parts and found that damaged parts were not included in the estimate and liability amounts for repair exceeded 75% of IDV. As per the terms and conditions of the said policy, settlement of claim could be possible only up to 75% of IDV amount. The Surveyor conducted prolonged discussions with the complainant to appraise him about the said condition of the policy. The expenses for repair exceeding 75% of IDV had to be borne by the complainant. But the complainant insisted for a settlement on repair basis.
Meanwhile the complainant managed to obtain the revised estimate from the workshop for an amount of Rs.4,64,333/- dated 30-09-2016 based on the external damage and handed over the same to the Surveyor on 15-11-2016. Immediately the Surveyor conducted a detailed inspection of the vehicle again and found that the revised estimate had been prepared by purposefully excluding several visible damaged parts such as windshield glass, sealant kit windshield glass beeding, review mirror etc. approximately amounting to Rs.12,000/- which includes labour charges. The damage to the internal parts were not ascertained. Due to the frontal and rear impact the damage of the vehicle was so heavy and thus the internal damage of vehicle could be ascertained only after dismantling the vehicle parts. Thus the liability amount of repair exceeded 75% of IDV and since the complainant was not amenable for the payment of the amount in excess of 75% of IDV, the work order could not be given to the workshop. He was not amenable for the settlement of the claim on total loss basis also. The opposite party can settle the claim only according to the terms and conditions of the policy. Being a party to the insurance contract the complainant is also legally bound by the terms and conditions.
The surveyor has later prepared a survey report dtd.07-12-16 adopting different mode of assessment ie.
- Repair loss basis assessment to the tune of Rs.4,65,453.45/- which is excluding Rs.1000/- towards policy excess and Rs.3500/- towards salvage value. The surveyor assessed the anticipated loss if dismantled would be Rs.50,000/-. Thus net assessed loss on repair basis was Rs.5,15,453.45 (4,65,453+50,000/-) which is exceeding the 75% of IDV. The dismantling of the parts could not be insisted upon since if the vehicle is dismantled, it would affect resale value of the wreck in case of settlement on other mode.
- Assessment on total loss basis with R.C. book, net loss assessed at Rs.3,69,000/- and
- Assessment on total loss basis without RC – Net loss on salvage loss basis at Rs.5,99,000/-. The survey report and photos attached therewith are produced herewith.
The opposite party and the Surveyor informed all the above facts to the
complainant. The opposite party was ready to settle the claim in terms of survey report but the complainant was not amenable to the same. The surveyor had conducted the survey after intimating the complainant over phone and all the conditions were also intimated. The complainant was so adamant that he neither gave his consent for the payment of balance amount if any nor consented to the other mode of settlement that is total loss basis. So the Surveyor could not inspect the workshop to start the repair work. The Surveyor assessed the loss on repair basis at Rs.5,15,453.45/- which included the assessment of damage to the internal parts. The allegation that the damage caused to the vehicle was less than 75% of IDV is incorrect. On 03-01-2017, after receiving the survey report, the opposite party issued a letter to the complainant intimating him their willingness to settle the claim on total loss basis at Rs.6,49,000/- (Rupees Six lakhs and forty-nine thousand only) including Rs.1,000/- (Rupees thousand) towards the policy excess. To the request of the complainant to remove the vehicle from the workshop, the opposite party replied that the removal of the vehicle was at his responsibility and the vehicle should be is ‘as is where is condition’ till the disposal of the claim. Hence there is no cause of action for the complainant and the complaint is not eligible for any reliefs and the complaint is liable to be dismissed.
The complainant has filed Exhibits A1 to A13 along with proof affidavit. From the part of the opposite party the surveyor was examined as DW1 and the opposite party was examined as DW2 and Exhibits B1 to B5 series were marked. On examining the evidence on record and the pleading we would like to examine whether any deficiency of service from the opposite party is established by the complainant and if so what are the reliefs he is entitled to. The case is that the complainant’s car while in the insurance policy period met with an accident on 8.8.2016 and on intimation the opposite party appointed a surveyor and obtained a report of total loss. The opposite party informed the complainant to settle the claim on total loss or repair basis in which he had to pay the additional amount. The complainant was not amenable to both these offers. The opposite party had not given sufficient direction to the workshop and hence the complainant got no redressal for his grievance. The opposite party defending the allegations contented that there was delay in informing the op about the accident. Even then they appointed a surveyor and as per his report, the vehicle was in a total loss condition and as the estimate exceeded the 75%of the IDV, they suggested for a settlement as total loss. But the complainant was not amenable and the opposite party suggested two other settlement options also but the complainant did not consented to them also.
The complainant’s counsel put forward the argument that the opposite party issued a letter to the complainant only after 4months and 26 days from the date of accident intending to settle the claim on total loss basis as the survey report revealed a damage of more than 75% of the IDV of the vehicle. The complainant
was not willing for the same as the detailed repair estimate from vision Honda,
the authorised service center of Honda cars was below 75% of IDV of the vehicle.
The surveyor suggested for other methods of settlement whereas the opposite
party suggested for settlement on net salvage value.
The counsel for the complainant pointed out that as per the regulation 12(4) of IRDAI (Insurance surveyors & Loss Assessors) Regulations 2015, a surveyor is to be appointed within 72 hours of receipt of intimation of the accident from the insured and also notice of such appointment shall be sent in writing to the insured. As per regulation 13(2) and 13(3) the surveyor has to submit the report within 30 days of his appointment and if not the surveyor shall under intimation to the insured seek an extension of time. Here the accident took place on 08/08/16 ,the surveyor was appointed on 17.8.2016, the report was filed on 17.12.16 only. According to the complainant he had intimated the opposite party about the accident on the same day itself which is evident from Exbt A3. Moreover, from the deposition of DW1 and DW2 the report was filed on 17.12.16 but from Exhibit A11 it can be seen that the report was filed only on 03.01.17.According to the complainant the accident was informed to the opposite party on the same day itself and it is evident from Exbt.A3.The complainant’s counsel argued that the surveyor is restrained from taking part in any kind of settlement as per regulations 13(15) and 13 (19).Here the opposite party has not made any kind of settlement suggestions to the complainant.
Further regarding the spot survey, if the insurance company didn’t get the timely intimation and could not conduct spot survey the claim would have been repudiated in the initial stage itself. It was because of the act of the opposite party in not demanding the survey report on time and direct the workshop, the vehicle had to be kept idle which caused the demand of demurrage charges by the workshop. The delaying tactics, casual approach and arrogant attitude of the opposite party caused all the damages to the complainant.
In this case we see that the accident involving the vehicle of the complainant was on 8.8.2016.The insurance claim was submitted only on 17.08.16.The opposite party appointed the surveyor as per Exbt B5 (b) on 17.08.16, the same day itself. So it is seen that there is no delay in the appointment of the surveyor as alleged by the complainant. Thereafter on 3.1.17 vide exhibit A11, the opposite party informed the complainant about the survey report and requested to produce required documents. To this letter the complainant replied on 13.1.17 expressing his opinion of not receiving the offer of settlement on total loss basis but he preferred to repair the vehicle. The surveyor filed the report only on 07/12/16 after an elapse of more than 3 months.
Here in this case, the opposite party accepted the claim from the complainant and this itself is an admission and hence the contentions regarding absence of intimation, delayed submission of claim proposal etc. have become infructuous. Now the point to be looked into is whether the opposite party has acted in accordance with the provisions of Insurance act to provide proper service to the insured or not.
The opposite party processed the claim of the complainant and informed him that the surveyor has filed a report of total loss for which the complainant was not amenable. The complainant informed the opposite party that he was ready for a repair basis settlement. The opposite party has stated in the version itself that the dismantling of the vehicle could not be insisted as the dismantling would affect the other mode of settlement ie the settlement on total loss. So it is evident that the opposite party though put forward 3 types of settlement methods intended
only to settle on total loss basis. The insured has informed the opposite party that
he was ready to accept the offer of repair loss basis. The opposite party ought have either considered this or repudiated the claim within time. Hence we are of the considered opinion that the opposite party has committed deficiency in service by taking no action on the policy claim submitted by the complainant within the turn around time of 30 days and hence the complaint is to be allowed.
Thus we allow the complaint in part and direct the opposite party to give
Rs.4 ,85,095/- with 9% interest from the date of petition till realization.
The Order shall be complied with within a period of 30 days from the date of receipt of Order.
Pronounced in the Open Commission on this the 19th day of July, 2021.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of opposite party
Dw1 - Anil Kumar V.
Dw2 - Santhosh K.P.
Exhibits marked from the side of complainant
A1 -Copy of policy No.442800/31/31/2016/16509 dtd.24-03-16
A2 - Copy of temporary repair estimate from Vision Honda Motors pvt. Ltd.dtd.11-08-2016.
A3 – Copy of registered notice dtd.03-10-16 by petitioner to opposite parties.
A4 – Notice dtd.21-11-16 by V. Anilkumar to complainant
A5 – Copy of notice dtd.24-11-16 by complainant to the opposite party
A6 – Copy of notice dtd.29-03-17 by complainant to the opposite party
A7 – Copy of notice dtd.26-11-16 from complainant to opposite party
A8 - Copy of notice dtd.2811-16 from complainant to opposite party
A9 – Copy of notice dtd.30-11-16 from Honda vision motors pvt. Ltd to
complainant.
A10- Copy of notice dtd.17-12-16 from complainant to opposite party
A11- Copy of notice dtd.03-01-17 by opposite party to petitioner
A12- Copy of notice dtd.13-01-17 by complainant to the opposite party
A13 – Copy of notice dtd.30-01-17 by opposite party to petitioner
Exhibits marked from the side of opposite party
B1 – Copy of policy No.442800/31/2016/16509
B1(a) – Policy conditions
B2 – Survey report
B2 (a) – Photographs of vehicle (16 nos.)
B3 – Temporary estimate by Vision Honda
B4- Filled Motor claim form dtd.17-08-16 by complainant
B5(a) – E-mail letter dtd.17-08-16
B5 (b) – Copy of letter dtd.17-08-16 from D.O. Kanjirappally to RO Cochin
By Order
Senior Superintendent
