Date of Filing: 15/09/2016

Date of Order: 27/04/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 27^TH DAY OF APRIL 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1227/2016

V/s

ORDER

BY SRI.D. SURESH. MEMBER.,

1.  This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 against the opposite party (herein after referred to as O.P) alleging deficiency in service and to direct O.P to pay the entire amount as per the final bill issued by RNS trucking, to pay a sum of Rs.10,00,000/- towards the loss suffered by the complainant because of the non usage of the vehicle from the date of accident with 12% interest, to pay a sum of Rs.1,00,000/- towards mental agony with interest and to pay a sum of Rs.50,000/- as litigation cost, legal notice and other expenses with interest and such other relief as this Hon’ble Forum deems fit and proper.

2.     The brief facts of the complaint are: that, the complainant purchased a comprehensive insurance policy for his vehicle bearing No.KA-51-B-8739 for the period from 10.05.2015 to 09.05.2016 vide policy No.3379/01187136/0000/00 from the Op. The said policy  is a package policy and he paid premium amount of Rs.64,832/-which includes own damages ADD –ON-COVER  (BENEFITS) and others liabilities. The said vehicle met with an accident on 28.05.2015, due to the said accident the vehicle was extensively damaged and same was intimated to the Op and also submitted claim form along with the relevant documents. During the time of accident, the vehicle was having valid permit, fitness certificate and driver of the said vehicle had valid DL as on the date of accident. After examining the vehicle, the service center gave estimation for repair, the damage caused to the vehicle was assessed to the tune of Rs.12,62, 833.46 /-. The service center by name RNS tracking repaired the vehicle and submitted the final bill towards the repair charges to the tune of Rs.10,21,234/-. Even after receiving estimate and surveyor report of his own assessor, Op has paid only a sum of Rs.8,26,203.83 and remaining amount was not paid, hence the vehicle is still lying in the garage of Op. The complainant has requested Op several times to make the full payment as per the final bill to the RNS tracking. But Op did not come forward to make full payment as per the final bill. While computing liability against the total bills, Op has deducted a sum of Rs.1,46,269/- as salvage which is against the terms and conditions of the policy. The deduction of Rs.1,95,030.17 as against the final bill of Rs.10,21,234/- is pure violation of policy terms and conditions and there is no basis for the same.  As per the terms and condition of the policy, Op cannot deduct any amount as depreciation or salvage. It is clear case of unfair trade practice and deficiency of service.  The complainant issued legal notice and there is no reply from the Op. Hence this complaint.

3.     Upon service of notice, O.P appeared before the Forum and filed its version contending that the complaint is not maintainable; it is vexatious, and frivolous to be dismissed. It is contended that the said vehicle is comprehensively insured with the Op for the period 10.05.2015 to 09.05.2016 vide policy no. 3379/01187136/000/00. It has further submitted that as per the cause title complainant’s name is being mentioned as M/s. Integrated Cargo and Courier represented by its Manager whereas as per the policy of insurance issued by the respondent in favour of the owner o f the vehicle is in fact as “INTEGRATED CARGO AND COUREIR SOLUTIONS PVT.LTL., as such complainant is not a consumer.  As such the above complaint does not fall under the ambit of C.P. Act. Further the complainant being a private limited company hence complainant is not maintainable.  The claim relating to the above complaint does not relates to own damage benefits which covers IMT No.23 FOR LAMPS TYRES/ TUBES MUDGUARDS BONET/SIE PARTS BUMPERS HEADLIGHTS AND PAINTWORK OF DAMAGED PARTION ONLY and item -D  ADD AN COVER (Benefits) gives waivers of reduction in depreciation benefit to the insurer.  Further he submitted that the accidental damages were so being caused due to negligence of driver of insured vehicle. The complainant ought to have intimated about the accident to the Op immediately after loss or damage caused to the insured vehicle so as to enable the Op to appoint an IRDA approved license surveyor to conduct spot survey and to submit report on the same. But in the present case, complainant intimated the facts about the incident on 30.05.2015, though he registered FIR with the Kundagol PS on 28.05.2015. It is clear violation of terms and conditions, as a result the respondent was deprived of appointing an IRDA surveyor to assess the loss immediately after the accident   and submitting the spot inspection survey report. The approved surveyor visited the garage and inspected the vehicle nearly 8 occasions and the alleged delay in assessing the claim has caused due to delay in submitting required and relevant documents by the complainant.  Further Op submits  that after considering the surveyor report, terms and conditions of the policy Op has settled the claim at Rs.8,26,203.83. Further complainant has not impleaded  RNS trucking as party to the above proceedings. Further  Op has deducted Rs.1,46,269/-towards salvage as per the terms and conditions of the policy and said salvage amount is as per the norms in regard to the settlement claim relating to own damage.  The said salvage is assessed by the surveyor and the same is reflected in the surveyor’s reports. Hence the claim is settled for Rs.8,26,203/- after deducting  Rs.1,46,269/- towards salvage. As such no stretch of imagination there is no delay, latches of deficiency in service.  Further, policy issued by the purely on the basis of basic principles of insurance approved by the IRDA. Hence Op is not liable to pay the claim of the complainant, hence prayed to dismiss the complainant        

4.    In order to substantiate their case, the complainant and O.P have filed their affidavit evidence and documents. Heard the arguments.

5.     On the basis of the above pleadings and evidence of the complainant and Op, the following points arise for our consideration:-

                                1)   Whether the complainant has proved

                       Deficiency in service on the part of the

                       O.P?

2)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

6.     Our answers to the above points are:-

POINT 1):         In the Negative.

POINT 2):         Do not survive.

For the following

REASONS.

POINT No.1:-

7.   The complainant has filed his affidavit evidence mainly reiterating the facts as stated in the complaint.   

8.   On perusal of the complaint, the oral evidence and the documents produced by the complainant, it becomes clear that the complainant is a firm engaged in transportation of cargo courier. He has a vehicle bearing No.KA-51-B-8739 for which he purchased a comprehensive insurance policy for the periods of 10.05.2015 to 09.05.2016 vide policy No. 3379/01187136/000/00. It is a package policy complainant paid of Rs.64,832/- as premium for said policy and which includes own damage and liability.  On 28.05.2015 the said vehicle met with an accident resulting in extensive damage to the vehicle and it is admitted by the OP that the complainant lodged complaint before Kundagol Police station and registered the FIR on 28.05.2015 and he had submitted claim form to the OP on 30.05.2015. It becomes clear that technically there is no delay in giving intimation to the Op. The very allegation in respect of the said issue that he had been deprived of appointing an IRDA surveyor to assess the damage immediately after the accident by submitting the spot inspection report does not come to the rescue of Op because the damaged vehicle was shifted to RNS trucking garage from the accident spot and RNS trucking had given estimate on 30.05.2015 itself which clearly indicates that on 30.05.2015 the said vehicle was not dismantled and it was in same position as the vehicle was there after met with an accident.  Even  after the vehicle shifted to the RNS trucking, there was no hindrance to the surveyor to examine the accidental  vehicle.  The Op himself admitted that the approved surveyor had visited the garage and inspected the vehicle on 8 occasions, and he submitted report on 18.02.2016 and delay in allowing claim is not intentional one but it is on reasonable grounds, as the complainant made delay in submitting required and relevant documents to assess the claim. As such Op has not violated the terms and conditions of the policy, there is no delay on part of Op in allowing the claim.  

9.       Further it is also not disputed that the Op deputed its own surveyor and inspected the vehicle and assessed the damages at Rs.8,26,203.83 only as against the total bill of Rs.10,21,234/-. Op has deducted Rs.1,95,030.17 towards salvage and other deduction as per the terms and condition of the policy.  The Op admits that it was informed about damages caused to insured by submitting claim form dated 30.05.2015. On the basis of claim form submitted by the complainant, the surveyor was appointed and he visited that RNS trucking / Bharat Benz and inspected vehicle and noted the damages and there on made note about the repairs required to recondition the accident vehicle and had assessed the same submitted the report. The claim of the complainant was since assessed at Rs.8,26,203. 87 with a mention of nil depreciation as per the policy and conditions thus Op insurance company informed to the complainant that they are ready to pay the claim as per the documents and surveyor reports within the ambit of policy and terms and conditions and the claim of the complainant being settled at Rs.8,26,203.87 after deducting the salvage and other deductions of Rs.1,95,030.17. The report of the surveyor is reliable documents to honour the claim of complainant which cannot be discarded lightly. After deducting salvage amount loss was assessed to the tune of Rs.8,26,203.87 and  settled the entire claim as per the surveyor reports.

10.   Further it’s not case of the complainant that the surveyor did not consider all the material facts while arriving at loss. The insurance company has relied not only on the opinion of the surveyor but also considered the non production of actual bill in respect of repair under taken by the RNS trucking / Bharat Benza in settling claim. Further the terms and condition of IRDA / insurance policy establish that if there is uncertainty about the loss the insurance company can go with rules framed under the law to allow the claim. And the complainant has not produced any third party opinion even after knowing the claim amount awarded by the insurance company. Such being case, the Op company rightly allowed the claim by awarding a sum of Rs.8,26,203.87  by deducting the salvage value of the Parts.  There is no ambiguity in the said terms and conditions, the interpretation is not against the insurer. Since it drafts the policy wording and same was communicated to the insured and they are free from ambiguity. In view of the above discussion, Op has rightly allowed the claim and complainant is not entitled any further amount as claimed in the complainant.  Hence we answer point No.1 in the Negative.   

POINT NO.2:-

11 When point No.1 is answered in the negative, holding that complainant is not entitled for the claim, no useful purpose will be served by discussing over point No.2. Hence we answer point.No.2 accordingly and pass the following:

ORDER

1. The complaint is here by dismissed.
2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this  Day of 27^th April 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

PW.1- Sri.J.A. Lowis- Complainant.

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:           Copy of the R.C and B register extract

Doc.No.2:           Copy of the policy certificate

Doc.No.3:           Copies of the permits of integrated vehicle

Doc.No.4:           Copies of the DL and extract and insured

driver

Doc.No.5:           Copies of the FIR and complaint

Doc.No.6:           Copy of the estimation issued by RNS

                            trucking

Doc.No.7:           Copy of the Final bill / Tax invoice

Doc.No.8:           Copy of the claim assessment letter

Doc.No.9:           Copy of the claim assessment letter

Doc.No.10:         Copy of the legal notice

Doc.No.11:         Copy of the postal receipt

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW.1- Sri. Sunil Ramesh – OP

Copies of Documents produced on behalf of Opposite Party/s

Doc.R.1:     Copy of the Policy

Doc.R.2:     Policy terms and conditions

Doc.R.3:     photo copy motor insurance claim form

Doc.R.4:     Photo copy of smart card RC

Doc.R.5:     B register extract obtained through net

Doc.R.6:     Challan towards tax paid

Doc.R.7:     Pan card photo copy of J.A.Louis

Doc.R.8:     Photo copy of DL of driver of complainant

Doc.R.9:     Photo Copy of FIR

Doc.R.10:   Photo copy of FIR

Doc.R.11:   Motor Survey report dt: 10.02.2016

Doc.R.12:   Motor Survey report dt: 05.03.2016

Doc.R.13:   Discharge Voucher

Doc.R.14:   Discharge Voucher

MEMBER                        PRESIDENT