SMT.G. VASANTHAKUMARI, PRESIDENT.
Complainant’s case is that the complainant is the owner of a motorcycle bearing Reg.No.KL-16-C9177, that the above said vehicle is covered by a valid comprehensive insurance Policy with the 1st opp.party for a period commencing from 8..8..2008 to 7..8..2009, that on 12.8.2008 the vehicle was ridden by the complainant’s son along Ayoor Varkala Public Road and when he reached at Kalathara Junction at about 2.30 p.m. the vehicle hit against a street dog and thereby lost control of the driver and hit against an electric post and caused heavy damage to the vehicle, that the complainant reported the accident to the first opp.party on 13..8..2008 and claim form received from the1st opp.party ‘s office, it was filled up by complainant and submitted to the office and same was numbered as claim No.182/08, that the first opp.party did not take any step to repair the vehicle that the complainant got the estimate of the damaged vehicle through an authorized workshop named Karthika Automobiles, Manamboor Junction, Kallambalam and the vehicle was transported to the above workshop on 13..8.2008 for repair, that after preliminary investigation they prepared an estimate of Rs.10,514/- and complainant sent the estimate to the 1st opp.party, but they did not consider the estimate amount for the reasons known to them and when the vehicle was repaired in the above workshop and issued bills for actual cost of spare parts and labour charges the complainant sent a letter along with the bills issued by the workshop to the first opp.party, that the first opp.party was reluctant to compensate the actual amount of damage and then the complainant sent a letter to the 2nd opp.party to settle the matter, that there was no response from the 2nd opp.party, that the complainant is entitled to get an amount of Rs.6,449.58 being the repairing charge of the vehicle and also entitled to get compensation of Rs.10,000/- for personal injury and hardship caused due to the indifferent attitude of the opp.parties. The complainant also prayed for the costs of the proceedings.
The opp.parties 1 and 2 filed joint version contending that the complaint is not maintainable either in law or on facts, that the complainant has filed this case suppressing the material facts, that it is admitted that this opp.party had issued a Two wheeler package policy to the complainant’s vehicle bearing Reg.No.KL-16C/9177 for a period commencing from 8.8.2008 to 7..8..2009, that the complainant reported a claim before this opp.party on 14..8..2008 stating that the insured vehicle met with an accident at a place called Kalathara on 13..8..2008 at about 2.30 a.m., that the opp.party after receipt of the claim form and estimate from the repairer had deputed a licensed Insurance Surveyor and loss assessor Mr.Arun.S for assessing the extent of damage sustained to the insured vehicle, that the surveyor inspected the vehicle in detail at Karthika Auto Mobiles, where the damaged vehicle was kept for repairs, that the surveyor after detailed examination of the vehicle had submitted his final report dt. 5.9.2008 before this opp.party assessing the net loss payable to the insured to a sum of Rs.2394.12, including the labour charges and cost of spare parts after considering the depreciation applicable as per the policy condition, that the surveyor in his report has stated that the cause of accident and place of occurrence stated by the complainant in the claim form is found to be false on the basis of the enquiry made by him at the alleged accident spot., that the opp.party after receipt of the survey report sought explanation from the complainant about the finding of the investigation as to the cause of accident and place of occurrence differs from that of the version given by the complainant, that the complainant had clarified his version through his letter dated 30..10..2008, that the opp.party thereafter issued a voucher to the complainant in duplicate vide letter dt. 25..11..2008, for an amount of Rs.2344/- being full and final settlement of the claim for the effective discharge of the voucher for the purpose of settlement of the claim, that the complainant after receipt of the above letter failed to return the same to the opp.party and instead of that he has sent a letter to the opp.party demanding settlement of this claim for an amount of Rs.6449.53, that the opp.party thereafter issued a registered letter to the complainant on 22.12..2008, showing the details regarding the assessment made by the licensed surveyor and loss assessor towards a claim payable to the complainant, that the cost of spare parts after depreciation and the labour charges recommended by the surveyor and the net amount payable to the complainant after deducting policy excess and salvage value are specifically mentioned in the above letter, that in the above letter the opp.party further requested to the complainant to return the discharge voucher duly signed by him for settlement of the claim, that the complainant even after receipt of the above letter failed to send the discharge voucher enabling the opp.party to settle the claim, and so the opp.party issued a registered letter to the complainant on 5..2..2009 stating that the company will be forced to close the file of the complainant as ‘No claim’., if the complainant further failed to return the discharge voucher duly signed along with other details called for from the date of the receipt of the letter, that the quantum of loss assessed by the surveyor who is a competent person as per the license issued by the statutory authority, alone is acceptable for this opp.party in arriving the quantum of settlement of the claim preferred by the complainant, that the surveyor’s report is a statutory report prepared under Section 64 UM of the Insurance Act and it is a basic document for the assessment of loss payable under an insurance contract., that this opp.party had offered the settlement amount of Rs.2,344/- to the complainant on the basis of the report of the surveyor and the same is binding to the complainant as well in terms of the policy condition, that the estimate given by the repairer or the bill issued by the repairer are not at all relevant matters for considering the claim payable to the complainant under the terms and conditions of the insurance contract, that the opp.party is liable to settle the claim on the basis of the statutory report submitted by the licensed Insurance Surveyor and Loss Assessor on the basis of the terms and conditions of the policy and prayed to dismiss the complaint with cost to the opp.party.
Points that would arise for consideration are:
1. Whether the assessment made by the Government of India Insurance Surveyor and Loss Assessor is legally binding for the settlement of the claim under the Insurance Policy?
2. Reliefs and costs?
For the complainant PWs 1 and 2 were examined and marked Exts. P1 to P6
For the opp.parties DW.1 was examined and marked Exts. D1 toD5
POINTS 1 & 2
The complainant is the owner of motorcycle bearing Reg.No.KL-16C/9177 which was covered by a valid comprehensive insurance policy with the first opp.party for a period commencing from 8.8.2008 to 7..8..2009. On 12.8.2008 at about 2.30 p.m. the vehicle hit against a street dog and lost control of the driver and hit against an electric post and caused heavy damage to the vehicle and immediately the complainant reported the matter to the first opp.party and they registered a claim as claim No.182/2008 and had deputed a Government of India licensed insurance surveyor and loss assessor Mr. Arun for inspecting the vehicle and for assessing the extent of damage sustained Meanwhile the vehicle was transported to the approved and authorized workshop named Karthika Autombile, Manamboor, Kallambalam. The surveyor inspected the damaged vehicle in detail and had discussion with the repairer M/s. Karthika Auto Mobiles. After preliminary investigation the repairer prepared a preliminary estimate of Rs.10,514.16/- and sent to the first opp.party which was marked as Ext. P1. After completion of all works the repairer gave cash bill of spare parts for Rs.5,549.53/- and labour charge of Rs.900/- and the complainant sent a letter to the first opp.party for reimbursement of Rs.6.449.53/- the copy of the bills marked as Ext.P3., Ext.P4 is the letter received from the first opp.party denying the accident. The complainant claimed Rs.6449.53/- towards the value of spare parts and labour charges. According to the surveyor who assessed the extent of loss sustained to the vehicle as a result of the accident the damages comes to only Rs.2,394/- including salvage value of Rs.20/-. According to the opp.party the surveyor again examined the vehicle after completing the repair works and prepared the re-inspection report and subsequently the opp.party issued a letter to the complainant seeking clarification about the above discrepancy and the complainant thereafter sent a clarification letter to the opp.party and the opp.party thereafter issued a voucher to the complainant along with letter dated 25..11.2008 to a sum of Rs.2344/- towards full and final settlement of the claim with a request to retransmit the voucher after signature. But the complainant did not returned the voucher for settlement of the claim According to the complainant he has to get Rs.6449.53/- and according to the opp.party the complainant is entitled to get only Rs.2344/- and since there arose a dispute the complainant not returned the voucher for settlement of the claim.. The opp.party thereafter issued Ext.P4 letter dated 23..10..2008 to the complainant showing the details about the assessment of loss made by the surveyor and requested the complainant to return the voucher for settlement of the claim. The complainant has not cared to do so. So again the opp.party issued Ext. P5 registered letter to the complainant dated 5.2..2009 stating that, the opp.party will be forced to close the claim as ‘No claim’ if the complainant failed to return the voucher with his signature. Even then the complainant has not cared to return the voucher with his signature. In this case the complainant who was examined as PW.1 would swear in tune with the allegations in the complaint. The repairer who was examined as PW.2 would swear before the Forum that Surveyor eyB\B dlgUb\bX alYfSa alMjuj}kxxk The crucial question to be considered is whether the assessment of loss made by the Insurance Surveyor and loss assessor is statutorily acceptable or not in deciding the actual loss sustained to the complainant? The surveyor was examined as DW.1. He assessed the extent of loss payable under the claim to a sum of Rs.2344/-. The report was marked as Ext.D1. According to the opp.party the repairer has given a higher estimate for repairing the vehicle for all its defects existed even prior to the accident including painting etc. which were not related to the accident at all. Even though the surveyor who was examined as DW.1 was cross examined at length nothing was brought out in his cross examination to discredit the witness. In United India Insurance Company Ltd. V/s Roshan Land Oil Mills Ltd and another [2000[10]SCC at page 19] our apex court held that “a surveyors report which is required to be made U/s. 64 UM[2] of the Insurance Act 1938, is an important document and its non consideration results in serious miscarriage of justice and vitiates the judgement rendered by the court”. In Champalal Verma V/s Oriental Insurance Co. Ltd. [2008 CPJ Vol.3 at page 93] Our National Commission held that “the survey’s report to be given due weightage – Consumer Fora cannot go into quantum dispute as it will involve a detailed investigation, which cannot be dealt in the summary proceedings expected from the Consumer Protection Act 1986. The complainant shall be free to either approach the Civil Court or approach to IRDA under provision 64 UM of the Insurance Act or invoke the condition of the policy relating to reference to arbitration in case of quantum dispute.” In Nanda Kishore Lakhotia V/s. New India Assurance Co. Ltd. [1998 CPJ Vol II page 15] our National Commission held that “ it is not possible to sit in judgment on the report of the Surveyor as the appellant has furnished no material to attack the correctness of the
surveyor ‘s report even though he may be dissatisfied with the amount recommended by him.” In the case on hand also it is in evidence that the loss sustained to the complainant was properly assessed by a licensed insurance surveyor and loss assessor and the opp.party made all efforts to settle the claim but the claim could not be settled since the complainant is not ready to accept the claim as per the survey report and claiming the amount as per the repairer’s calculation. As we have already mentioned the opp.party is prepared to settle the claim as per Ext. D1 surveyor’s report . Hence so far as the facts and circumstances of the case is concerned there is no unfair trade practice as alleged by the complainant and hence the complaint is only to be dismissed.
In the result, the complaint is dismissed but in the circumstances of the case there is no order as to costs.
Dated this the 19th day of January, 2012.
I n d e x
List of witnesses for the complainant
PW.1. – Chintha Nirathan
PW.2. – Sreekumar
List of documents for the complainant
P1. – Estimate
P2. – Letter dated 16.9.2008
P3. – Letter dated 14..10.2008 and bills
P4. – Letter dated 23.10.2008
P5. – Letter dated 25..1..2008
P6. – Letter dated 16..12..2008
List of witnesses for the opp.party
DW.1. Arun
List of documents for the opp.party
D1. – Report
D2. – Claim report
D3. - Letter dt. 25..1..2008
D4. – Letter dated 22..12.2008
D5. –Letter dated 5..2..2009
