By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to pay the insurance claim for the losses caused his vehicle due to an accident.
2. Brief of the complaint:- The complainant is a consumer of the opposite parties, which is a company provides motor vehicle insurance. The complainant insured his lorry bearing Reg. No. KA.01.AA.5513 with the opposite party No.1 for the period 31.01.2014 to 30.01.2015 vide Policy No.442290/31/2014/4012. On 16.04.2014 while driving the above vehicle, by the driver Muhammed Musthafa, the vehicle fell upside down in the National Highway near to the E.B Office, Minnur Village within the limit of Ambur Taluk Police station, Vellore Dt., Tamilnadu state. Based on the above incident a complaint was lodged before the Inspector of Police, Ambur Taluk Police station which numbered as CSR No.118/2014 on 16.04.2014. The above said lorry was in a fully damaged condition as it is fell in to a deep area aside to the Highway. The matter was informed to the opposite party and since the incident happened at Tamilnadu State, an officer of the opposite party came from Gopichettypalayam to the spot, and assessed and surveyed the vehicle. As suggested by the officer and the opposite party No.1, complainant lifted the lorry with the help of machineries and produced before the workshop. The officer of the opposite party took photographs of the damaged vehicle. An estimate for an amount of Rs.2,14,400/- was furnished to the opposite party prepared by "Sri Shrinidhi Body builders's the opposite party sanctioned it. During the work, an additional estimate for an amount Rs.26,750/- also furnished to the opposite party which also sanctioned. During the work, the officer of the company used to visit the workshop several times and after the completion of the work, he took photographs of the repaired vehicle for office purpose.
3. The complainant has incurred Rs.2,18,328/- as expenditure on various heads for the re-condition of the vehicle. The complainant submitted the all original bills before the 1st opposite party to reimburse the amount after proper deductions. But the opposite party allowed only Rs.91,740/- towards the claim. The complainant not accepted the above amount as it is too low and enquired about the same with the manager of the opposite party No.1. He said that as per the assessment of the surveyor the claim amount was Rs.99,990/- and. after deducting policy excess Rs.1,500/- Salvage value of Rs.6,750/-, the net amount payable was calculated is Rs.91,740/-. Without the consent of the complainant, the opposite party transferred the above said amount to the bank account of the complainant. The surveyor or the opposite party had not furnish a copy of his survey and assessment report to this complainant. The assessment of the surveyor is vague, not true and not reflects the exact loss and damages caused to the vehicle. He has assessed the damages without any basis and in a vague manner. There is a huge difference between the exact expense incurred and the allowed claim amount. The opposite party had not verified the assessed amount with the actual amount spent. The complainant approached the opposite party No.1, the Manager several times to reassess the claim passed but the opposite party No.1 stated to the complainant that he has to consult the superior officer for the same. On 24.04.2015 the complainant approached the opposite party No.1, the manager and he was not ready to hear the complainant and he arrogantly avoided the complainant. He further said that the complainant will not get any remedy from any forum. The act of the opposite party is a serious deficiency in service. The cause of action of the complaint arose on 24.04.2015 when the opposite party No.1 deny the claim of the complainant. Therefore it is humbly prayed that this Honourable Forum may be pleased to pass order directing the opposite party to Pay a sum of Rs.2,18,328/- as claim for the vehicle. Pay an amount of Rs.1,00,000/- towards, compensation to the complainant. Pay an amount of Rs.2,000/- as the cost of this proceeding and allow such other and further relief which this Honourable forum deems fit to grant during the case.
4. On receipt of Notice, opposite parties filed version stating that this opposite party denies the entire allegations and claims contained in the complaint except those expressly admitted therein and put the complainant to strict proof of the same. The complaint is not maintainable either in law or on facts and the same is liable to be dismissed. This opposite party submits that the above complaint is legally not maintainable, devoid of any merit and deserves to be dismissed in limine. This opposite party admits that the Ashok Leyland Lorry No. KA 01 AA 5513 was insured with this opposite party for the period from 31.01.2014 to 30.01.2015 and the said policy covers the alleged date of accident. The liability of this opposite party if any is limited to the terms and conditions of policy and provisions and exceptions of MV act. This opposite party has received the information from the complainant that the insured vehicle met with an accident on 16.04.2014 from Ambur, Vellore District. Spot survey and final was arranged by this opposite party through Gobichettipalayam branch of the opposite party. IRDA licensed surveyor Mr. P. Santhanam, Erode as the final surveyor assessed the loss as per the terms and conditions and exclusions of the policy. As per the final survey report, the loss was assessed as to the tune of Rs.91,740/- and after obtaining the discharge voucher in full and final settlement of the claim from the complainant ie insured, the claim amount transferred to his account on 21.07.2014.
5. The settlement details as under:-
Total Labour charges - Rs.34,600/-.
Spare Parts with nil depreciation - Rs. 2,550/-
Spare Parts with 25% depreciation - Rs. 57,840/-
Spare Parts with 50% depreciation - Rs. 2,500/-
Add. Towing charge - Rs. 2,500/-
Rs.99,990/-
Less Policy Excess - Rs. 1,500/-
Salvage valued - Rs. 6,750/-
Rs.91,740/-.
6. The settlement details were already convinced to the complainant by this opposite party. It is submitted that the present complaint is not maintainable against this opposite party since the policy issued to the complainant provides for invoking of arbitration proceedings in all the cases of quantum disputes and in this complaint IRDA licensed surveyor assessed the loss for sum of Rs.91,740/- now the complainant is seeking for Rs.2,18,328/- for the damages of his vehicle. It is humbly submitted that as per policy terms the claim of complainant only as per the assessment made by an IRDA licensed surveyor's for a sum of Rs.91,740/- however the complainant has sought an higher amount of compensation from this opposite party which is baseless and untenable. It is submitted that the claim of the complainant has been processed as per the loss assessed by the surveyor read with the terms of the contract. Without prejudice to above said (supra) it is submitted that the present complaint which involves complicated questions of facts and law can be and ought to be adjudicated upon by competent Civil Court requiring voluminous evidence as the complainant is disputed in quantum to be paid under the policy terms issued to him. Further the HON'BLE NATIONAL COMMISSION IN CHAMPALAL VERMA VS ORIENTAL INSURANCE CO. LTD., (III (2008) CPJ 93(NC)) has held that the consumer forums cannot go into quantum disputes and such disputes has to be referred to Civil Court or to Arbitration. It is submitted that the HON'BLE NATIONAL COMMISSION HAS HELD IN NEW INDIA ASSURANCE CO VS SEHRAWAT INDIA (P) LTD (III (2009) CPJ 4 (NC)) has held in Para-11 that the report of the surveyor has to be given due importance in arriving at the conclusion about the net loss suffered. It is submitted that the complainant herein never produced any evidence contrary to the conclusion arrived by the statutory surveyor. It is settled law that report of statutory has to be given due importance in arriving at the conclusion about the net loss suffered by the consumer unless there is substantial evidence to the contrary. The surveyor's report is a valuable document and it should be given due credence unless there are adequate reasons to discard the same. It is submitted that the insurance policy conditions binds both the insured and insurer therefore the insured cannot claim anything more than what is mentioned under the said terms. The complainant is not entitled to get more than what is assessed by the surveyor. Hon'ble State Commission and National Commissions consider this point in various cases. The complainant is not entitled to get any amount. There is no deficiency of service on the part of the opposite party. The complaint is not entitled to get any amount as compensation from this opposite party either in law or on facts. The attempt of the complainant is to capitalize on a claim that is without any bases whatsoever. No legal notice sent to this opposite party. This opposite party reserves its right to file an additional version at a later stage as and when new facts are brought to the notice of the company. It is therefore prayed that the complainant may be dismissed with cost of this opposite party.
7. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A20 documents were marked. Ext.A1 is the policy. Ext.A2 is the copy of Authorization Certificate of National Permit (Goods). Ext.A3 is the Copy of Certificate. Ext.A4 copy of Petition Receipt. Ext.A5 is the Estimate. Ext.A6 is the copy of Supplementary Estimate. Ext.A7 to A16 are the Copy of Cash Bills. Ext.A17 is the copy of Labour Cash Bill dated 23.06.2014. Ext.A18 to A20 is the copies of Cash Bill.
8. Opposite parties also filed proof affidavit and he is examined as OPW1 and Ext.B1 to B3 documents were marked and opposite parties witness is examined as OPW2. Ext.B1 is the policy. Ext.B2 is the Motor Final Survey Report.
9. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
10. Point No.1:- The policy and accident is admitted by the opposite parties and only thing is to be decided is Whether entitled claim is given or not. As per Ext.B2 Report the Surveyor sanctioned Rs.91,740/- including the labour charges of Rs.34,600/-. Excluding the labour charge all the material cost, the normal depreciation is to be deducted and the Surveyor deducted it also. But in the case of labour charge no deduction or depreciation value is to be counted. Ext.A17 is the Labour cash Bill which shows the labour charge as Rs.73,000/-. The labour charge is to be fixed by the proprietor of the body workshop. Reducing the labour charge from Rs.73,000/- to Rs.35,600/- by the Surveyor could not be allowed. So we are in the opinion that reducing the labour charge to the tune of Rs.37,400/- (Rs.73,000 –Rs.37,400) is a clear case of deficiency of service and unfair trade practice from the side of Surveyor and not allowing the full labour charge collected by the body builders is a deficiency of service and unfair trade practice from the side of opposite parties. Hence the Point No.1 is found accordingly.
12. Point No.2:- Since the Point No.1 is found against the opposite parties, they are jointly and severally liable to pay the remaining labour charge of Rs.37,400/- to the complainant and also liable to pay cost and compensation. Hence the Point No.2 is found accordingly.
In the result, the complaint is partly allowed and the opposite parties jointly and severally directed to pay the remaining labour charges of Rs.37,400/- (Rupees Thirty Seven Thousand and Four Hundred) and Rs.2,000/- (Rupees Two Thousand) as compensation and Rs.1,000/- (Rupees One Thousand) as cost of the proceedings to the complainant. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 10th day of March 2016.
Date of Filing:16.06.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Mohammed. Complainant.
Witness for the Opposite Parties:-
OPW1. Satheesh Kumar. Manager in charge of Extension counter of Oriental
Insurance Co Ltd.
OPW2. Santhanam. Independent Insurance Surveyor.
Exhibits for the complainant:
A1. Copy of Insurance Policy.
A2. Copy of Authorization Certificate of National Permit(Goods).
A3. Copy of Certificate. Dt:16.04.2014.
A4. Copy of Petition Receipt.
A5. Estimate.
A6. Copy of Supplementary Evidence.
A7. Copy of Bill. Dt:17.04.2014.
A8. Copy of Bill. Dt:17.04.2014.
A9. Copy of Bill. Dt:21.04.2014.
A10. Copy of Bill. Dt:22.05.2014.
A11. Copy of Bill. Dt:02.06.2014.
A12. Copy of Bill. Dt:04.06.2014.
A13. Copy of Bill. Dt:10.06.2014.
A14. Copy of Bill. Dt:10.06.2014.
A15. Copy of Bill. Dt:20.06.2014.
A16. Copy of Bill. Dt:23.06.2014.
A17. Copy of Labour Cash Bill. Dt:23.06.2014.
A18. Copy of Bill. Dt:24.06.2014.
A19. Copy of Bill. Dt:24.06.2014.
A20. Copy of Bill. Dt:25.06.2013.
Exhibits for the opposite parties:-
B1. Motor Insurance Certificate cum Policy Schedule.
B2. Copy of Motor Final Survey Report. Dt:01.07.2014.
B3. Copy of Discharge Voucher (Accidental Department).
Sd/-
PRESIDENT, CDRF, WAYANAD.
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