O R D E R.
By Sri. Ananthakrishnan. P.S, President:-
This is a complaint filed under Section 12 of Consumer Protection Act, 1986.
2. The complainant’s case in brief is as follows: - The Complainant is the owner of 2011model Cheverlot Tavera bearing Reg. No. KL 35-C 2390. The vehicle was insured with Opposite Party as per Policy No. 76220031160100002905 from 28.6.2017 to 27.6.2018. The vehicle was met with an accident on 7.8.2017 at 9 a.m at Nerookumchal near Engapuzha and the vehicle was seriously damaged. Therefore, an accident case was registered by Thamarassery Police. Thereafter, the complainant filed an insurance claim petition before the Opposite Party and obtained an estimate of repair from the Garage M/s Autowil, at Variyad. The surveyor deputed by the Opposite Party also inspected the vehicle. After assessment, the insurance surveyor as well as the expert from the garage submitted that the vehicle is not repairable and this is case of total loss and if the party is very particular in repairing the vehicle, the cost of repair may come up to Rs.7,67,940/-. So, they advised to settle the insurance claim for a total loss. Therefore, the Complainant approached the Opposite Party and requested to settle the claim on total loss basis. But the Opposite Party offered only Rs.2,00,000/- which is against the terms and condition of the policy. The value of vehicle shown in the policy for the period of insurance is Rs. 5,00,000/- and accordingly, premium was also being paid on the said value. Thus the Opposite Party is bound to give Rs.5,00,000/- as total loss of the vehicle. Therefore, the Opposite Party committed breach of contract. There is deficiency in their service also. Since, the Opposite Party failed to settle the insurance claim within a reasonable time, the Complainant lost his livelihood. The Complainant and his family were depending upon the income derived from the vehicle for their survival. The Complainant purchased the vehicle on loan under a self employment scheme from the Wayand District Driver Co-operative Society, Kalpetta. He has a loan liability of Rs. 1,60,000/- which he can settle only from the insurance claim. Since, the vehicle is kept in the premises of M/s Autowil, the Complainant is paying parking fees of Rs.100/- per day from 15.8.2017 on wards and the Complainant is unable to pay the EMI which resulted heavy loss of money. Hence, this complaint to get Rs.5,00,000/- as total loss with an interest @ 16% per annum till realisation, to get a sum of Rs.50,000/- towards damages, loss of lively hood, loss of money to be paid towards loan interest, loss of parking fee, mental agony, pain and hardship due to the delay in settlement with cost of Rs. 25,000/-.
3. The Opposite Party filed version contenting as follows: - They admitted that the Complainant is the owner of the vehicle as stated in the complaint. They also admitted that the vehicle was met with an accident and at the time of accident, the vehicle was having a valid insurance policy in favour of the Complainant. They admitted that the Complainant put forth an insurance claim before the Opposite Party and demanded Rs. 5,00,000/- as total loss of the vehicle. The Complainant is not entitled to get Rs. 5,00,000/- as total loss. The accident was on 7.8.2017. The Opposite Party deputed a surveyor to assess the damage. The surveyor inspected the vehicle on 12.8.2017 and 23.10.2017and assessed the actual damage caused to the vehicle as Rs. 1,59,084/- after deducting Rs. 1,000/- towards policy excess . The complainant had agreed to repair the vehicle and submitted an estimate. On 14.11.2017, the Opposite Party asked the complainant to produce the repaired vehicle with original bills for inspection by the surveyor. But, he did not produce the repair bills and vehicle for re-inspection so far. He alone is responsible for the delay. So, the Complainant is liable for the loss if any caused to him. He demanded for the settlement as per the estimate given by the auto garage which is Rs.9,10,346/-. This is an unreasonable assessment. The estimate includes replacement of major items such as body shell, chassis frame, gear box assembly etc. which do not warrant replacement. These items can be reasonably repaired. The vehicle is still lying in open place and exposing to sun and rain which may cause deterioration. The Complainant has not taken any positive steps to protect the vehicle from sun and rain. Since vehicle is in a repairable condition, the Complainant is not entitled to get total loss as prayed for. There is no deficiency in the service of the Opposite Party. There is also no breach of contract. The payment of parking fee if any is not due to any default of the Opposite Party. The manufacturing of this type of vehicle was stopped by the company and their service centre at Wayand is also closed. For this reason alone, the Complainant is insisting to get the claim as total loss. They denied that the Complainant is entitled to get Rs. 5,00,000/- towards damages with interest @ 16 % per annum, Rs. 50,000/- towards damages etc. and Rs. 25,000/- towards cost. Thus the complaint is to be dismissed.
4. On the above pleading the points to be considered here are:-
1. Whether there is any deficiency in the service of the Opposite Party as
alleged? If so, whether the Complainant is entitled to the monetary
benefits asked for?
- Reliefs and cost.
5. The evidence in this case consist of oral testimony of PW1 to PW3, OPW1
to OPW3, Ext. A1, A2 series, B1, X1series and C1. Heard both sides.
6. Point No.1:- This is a complaint related to an insurance claim. The Complainant is the owner of Cheverlot Tavera bearing Registration No.KL-35-C 2390 which was insured with the Opposite Party. The said vehicle was met with an accident on 07.08.2017 at 9 a. m at Narookumchal near Engapuzha. There is no dispute with regard to the ownership of the vehicle. Opposite Party admitted the accident and existence of a valid insurance at the time of accident. No dispute that the IDV of the vehicle is Rs. 5,00,000/-. The Complainant’s case is that M/S Autowil, a workshop authorised by the Opposite Party assessed the required charge for the repair of the vehicle as Rs.7,67,940/- which is more than the IDV and therefore, he is entitled to get Rs. 5,00,000/- as total loss of the vehicle. But the Opposite Party disputed the repair charge assessed by M/S Autowill. According to them, the vehicle is repairable and their surveyor assessed the value of the repair as Rs.1,59,084/- and thus the claim cannot be treated as a total loss.
7. To prove the Complainant’s case, he has given evidence as PW1. He has also examined PW2- Service Advisor of Autowil, PW3- Expert Commissioner and marked Ext. A1, A2 series and C1. Ext. X1 series were also marked from the side of the Opposite Party, their Divisional Manager was examined as OPW1. OPW2 and OPW3 were also examined from their side and marked Ext. B1.
8. As already stated, the specific case of the Complainant is that he is entitled to get Rs.5,00,000/- as a total loss. According to him, an expert of the workshop and the surveyor of Opposite Party reported that the vehicle is not repairable. According to him, since the repairable charge assessed by the expert is more than the value of the IDV, he is entitled to get the claim as total loss. But, it is evident that here, the expert or the surveyor of the Opposite Party never reported that the vehicle is not repairable. According to OPW2, surveyor, the vehicle can be repaired for Rs.1,59,084/- and according to PW2, the expert of the Autowil, vehicle can only be repaired for Rs.9,10,346/-. Ext. X1 series contains the report of PW2 and OPW2. Ext.B1 is the policy certificate which contains the conditions and schedule of the policy. Ext. B1 would go to show that the IDV will be treated as the market value throughout the policy period without any further depreciation for the purpose of total loss. It also shows that the insured vehicle will be treated as constructive total loss, if aggregate cost of repair of the vehicle exceeds 75 % of the IDV of the vehicle. Therefore, according to the policy condition, if the aggregate cost of repair of the vehicle exceeds 75 % of the IDV, the claim can be treated as total loss. We do admit that PW2 reported that the expected repair charge is Rs.9,10,346/-. So, it is more than the IDV. But, we have to consider that OPW2, the Surveyor of the Opposite Party reported that the repair charge is Rs.1,59,084/-. The Complainant has not produced any materials to prove that the report of the Surveyor is not correct. He has taken out an expert commission. The commissioner, PW3 has filed Ext.C1 report. He noted the damages and classified those as repairable, replaceable and are not having serious. But he has not assessed the amount for the repair. The Complainant has not taken any other expert commissioner to assess the actual value of the repair. No doubt, PW2 is not an independent person. He is an employee of the workshop. Therefore his evidence cannot be accepted as such. Since the Complainant disputed the value assessed by the surveyor, he is bound to get the help of another expert to assess the value of the repair. The case of the Complainant would go to show that the report of PW2 is to be accepted and the report of OPW2 is to be rejected. That attitude should be depreciated. Since, the Complainant has not taken an expert commission to assess the charge of the repair, we have no other way to reject the report of PW2. Moreover, here absolutely there is no evidence to prove that the Surveyor is biased as contended by the Complainant. Therefore, we have to hold that there is no deficiency in the service of the Opposite Party and thus the Complainant is not entitled to the amount asked for as the insurance claim with compensation and cost. So the point is answered against the Complainant.
9. Point No.2:- Since we found that point No.1 is against the Complainant, the complainant is not entitled to get any relief.
In the result the complaint is dismissed, but without cost.
Dictated to the Confidential Assistant, transcribed by him and corrected by me
and pronounced in the Open Commission on this the 31st day of March 2022.
Dated of filing : 01.11.2017
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the complainant:
PW1. Mansoor Rahman. Complainant.
PW2. Jayveer. Service Advisor.
PW3. Baby C.A. A.M.V.I.
Witness for the Opposite Party:
OPW1. K. Somanathan Nair. Divisional Manager.
OPW2. A.K. Krishna Kumar. General Insurance Surveyor.
OPW3. Musthafa. A.K. A.M.V.I
Exhibits for the complainant:
A1. Account Details.
A2(a) Copy of Letter.
A2(b) Acknowledgement Card.
C1 Commission Report. 09.03.2018.
Exhibit for the Opposite Party:
B1. Copy of Policy Schedule cum Certificate of Insurance.
X1(a). Quotation. dt:10.08.2017.
X1(b). Pick Ticket. dt:26.10.2017.
X1© . Pick Ticket. dt:03.11.2017.
X1(d1) Letter. dt:15.08.2017.
X1(d2) Letter. dt:31.10.2017.
