By Smt. C.S. Sulekha Beevi, President, 1. Complainant is aggrieved that opposite party failed to compensate the loss sustained in an accident on 29-4-2006 to his vehicle KL-10 X-4150 insured with opposite party. 2. Opposite party filed version admitting the accident and insurance coverage for the vehicle. Opposite party contends the following: A spot survey was conducted through panel surveyor Sri.M.Vivek on 02-05-2006 and he submitted report on 16-5-2006. A final survey was arranged by opposite party through Sri.M.Ashraf. The said surveyor visited the repairer M/s T.V. Sundaram Iyengar, Valluvambrum on 10-5-2006 and 17-5-2006. Assessment of visible damages were made by this surveyor and he requested complainant to co-operate in dismantling the vehicle for detailed inspection. The letter sent to complainant by the surveyor Sri.Ashraf for dismantling the vehicle was returned undelivered., The repairer T.V.Sundaram Iyengar, Valluvambrum also sent a letter to complainant to give his approval for dismantling of vehicle for inspection by surveyor. Complainant took an adamant attitude and has not given assistance to the Insurance Company to assess loss; which is violation of policy condition. Proper survey could not be conducted since insured did not give consent for dismantling the vehicle. The estimate given by T.V.Sundaram Iyengar, Valluvambrum is a hypothetical one. Complainant has failed to comply policy conditions and therefore there is no deficiency in service. 3. Evidence consists of affidavits filed by either sides. Exts.A1 to A5 marked on the side of complainant. Exts.B1 to B4 marked on behalf of opposite party. Points that arise for consideration are:- (i) Whether opposite party is deficient in service? (ii) If so, reliefs and costs. 4. According to complainant the Mahindra jeep No.KL-10 X-4150 purchased by him from M/s T.V.Sundaram Iyengar, Valluvambrum was insured with opposite party. Ext.A3 is the Certificate cum policy schedule. During the currency of the policy the vehicle met with an accident on 29-4-2006. Complainant reported the accident to opposite party. Vehicle was entrusted to the workshop of T.V.S., Valluvambrum, the dealer. The service engineer attached to M/s T.V.S. Valluvambrum prepared an estimate of Rs.3,96,000/- towards cost of repair of the vehicle. This estimate is Ext.A2. The prayer in complaint is seeking payment of Rs.3,96,000/- as calculated in Ext.A2. The main resistance put forward by opposite party is that complainant failed to co-operate with the surveyor for assessing the damages b y permitting to dismantle the vehicle. Opposite party relies upon Ext.B1 and B2 which are letters issued to complainant by surveyor and M/s T.V.S. VAlluvambrum asking complainant to do the needful for dismantling the vehicle for the purpose of assessing loss. Thus the moot question to be considered is whether opposite party was justified in requesting the complainant for dismantling the vehicle, or whether the request for dismantling was only a guise to delay and deny the claim. 5. Complainant contends that the loss sustained to the vehicle is an instance of constructive total loss (hereafter mentioned as CTL). In Ext.A2 the estimate of cost of repairs is Rs.3,96,000/-. It is also stated in Ext.A2 that this estimate does not include the cost of repairs of parts found damaged at the time of dismantling which would be provided by supplementary bills. Therefore the actual cost of repair would go higher than that calculated in Ext.A2. The insured’s declare value (IDV) of the vehicle in Ext.A3 policy is Rs.3,80,218/-. As per Ext.A3 if the cost of repair is higher than 75% of the IDV it is to be treated as CTL. The loss detailed in Ext.B3 also would go to show that the vehicle is totally damaged. Thus the evidence tendered by complainant through affidavit supported by leadings and documents would prove that the loss sustained is an instance of constructive total loss. Opposite party affirms that a surveyor Sri.M.Vivek was appointed on 02-5-2006 and submitted his report on 16-5-2006. Opposite party has failed to produce this survey report. Ext.B3 is the survey report of the second surveyor Sri.M.Ashraf. B3 is totally silent as to the report submitted by Sri.M.Vivek. Nothing is stated in Ext.B3 as to how much the 2nd surveyor relies on the findings of 1st surveyor and how much of it is rejected. No reason is offered by opposite party for appointing a second surveyor. It is settled law that Insurance Company cannot appoint one surveyor after another without assigning specific reasons for rejecting the report of previous surveyors. No explanation is put forth as to why the 1st survey report was totally unaccepted by opposite party. The details of damages noted in Ext.B3 survey report also supports the case of the complainant that the vehicle was totally damaged. We have, therefore no doubt to conclude that opposite party was insisting for dismantling the vehicle only as delay and deny tactics. From the evidence tendered and materials on record complainant has established and proved that the loss sustained to the vehicle is a case of constructive total loss. The act of opposite party not taking a bonafide approach to settle the claim amounts to deficiency in service. 6. Point (ii):-Complainant is entitled to compensation as in the case of constructive total loss of the vehicle. The IDV of the vehicle is Rs.3,80,218/-. The date of commencement of policy and registration of the vehicle is 22-12-2005. The date of accident is 29-4-2006. So the age of the vehicle is less than 6 months and the depreciation to be deducted is 5% of IDV. Therefore the compensation payable is Rs.3,61,208/- (Rs.3,80,218/- - Rs.19,010/-). Taking into consideration that the salvage is retained by complainant we do not make any order of interest. In our view the sum of Rs.3,61,208/- would serve justice to complainant. 7. In the result, complaint allowed. We order opposite party to pay sum of Rs.3,61,208/-(Rupees three lakh, sixty one thousand, two hundred and eight only) to the complainant along with costs of Rs.2000/- (Rupees two thousand only) within three weeks from the date of receipt of copy of this order failing which complainant will be entitled to interest @ 12% upon the sum of Rs.3,61,208/- from the date of order till realisation. Dated this 12th day of March, 2008. C.S. SULEKHA BEEVI, PRESIDENT E. AYISHAKUTTY, MEMBER APPENDIX Witness examined on the side of the complainant : Nil Documents marked on the side of the complainant : Ext.A1 to A5 Ext.A1 : Photo copy of the certificate of registration dated, 22-12-05 issued by R.T.O., Malappuram tocomplainant. Ext.A2 : Photo copy of the estimate dated, 08-5-2006 by service engineer to complainant. Ext.A3 : Photo copy of the certificate-cum-policy schedule dated, 23-12-2005 issued by opposite party to complainant. Ext.A4 : Photo copy of the G.D. Certificate dated, 3-5-2006 issued by Sub Inspector of Police, Malappuram to complainant. Ext.A5 : Photo copy of the Fitness Certificate dated, 27-12-2005 issued by R.T.A., Malappuram to complainant. Witness examined on the side of the opposite parties : Nil Documents marked on the side of the opposite parties : Ext.B1 to B4 Ext.B1 : Photo copy of the letter dated, 26-6-2006 sent by Insurance Surveyor to complainant. Ext.B2 : Photo copy of the letter dated, 05-7-2006 sent by Service Engineer to complainant. Ext.B3 : Interim survey report dated, 15-8-2006 prepared by Insurance Surveyor. Ext.B4 : Commercial Vehicles Package Policy. C.S. SULEKHA BEEVI, PRESIDENT E. AYISHAKUTTY, MEMBER ORDER
By Smt. C. S. Sulekha Beevi, President,
1. Complainant is aggrieved that opposite party failed to compensate the loss sustained in an accident on 29-4-2006 to his vehicle KL-10 X-4150 insured with opposite party. 2. Opposite party filed version admitting the accident and insurance coverage for the vehicle. Opposite party contends the following: A spot survey was conducted through panel surveyor Sri.M.Vivek on 02-05-2006 and he submitted report on 16-5-2006. A final survey was arranged by opposite party through Sri.M.Ashraf. The said surveyor visited the repairer M/s T.V. Sundaram Iyengar, Valluvambrum on 10-5-2006 and 17-5-2006. Assessment of visible damages were made by this surveyor and he requested complainant to co-operate in dismantling the vehicle for detailed inspection. The letter sent to complainant by the surveyor Sri.Ashraf for dismantling the vehicle was returned undelivered., The repairer T.V.Sundaram Iyengar, Valluvambrum also sent a letter to complainant to give his approval for dismantling of vehicle for inspection by surveyor. Complainant took an adamant attitude and has not given assistance to the Insurance Company to assess loss; which is violation of policy condition. Proper survey could not be conducted since insured did not give consent for dismantling the vehicle. The estimate given by T.V.Sundaram Iyengar, Valluvambrum is a hypothetical one. Complainant has failed to comply policy conditions and therefore there is no deficiency in service. 3. This case was originally disposed by this Forum on 12-3-2008. By such order this Forum had held the loss sustained to the vehicle to be a case of constructive total loss. After deducting 5% depreciation from the IDV of the vehicle, the opposite party was under orders to pay Rs.3,61,208/- to the complainant along with costs of Rs.2,000/-. The matter was taken in appeal by opposite party. As per judgment dated, 10-8-2009 the above order of this Forum was set aside and the case was remanded for fresh disposal with directions to permit parties to adduce evidence and also to ascertain the actual amount required for repair of the vehicle. 4. After remand, parties adduced fresh evidence. The complainant filed additional affidavit and he was examined as PW1. Ext.A1 to A5 were the documents marked on his side prior to remand and these still remain on records. Ext.A6 was produced and marked in addition. On behalf of opposite party, the Divisional Manager of the insurance company who is not a party in the case filed counter affidavit on behalf of opposite party also. He was examined as DW4 on 12-01-2010. DW1 to DW3 are witnesses examined on behalf of opposite party on 18-11-2009, 21-12-2009 and 06-01-2010 respectively. Exts.B1 to B4 are the documents marked prior to remand and still remain in the records. Ext.B5 is the additional document produced by opposite party. 5. Points for consideration:- (i) Whether opposite party is deficient in service? (ii) If so, reliefs and costs.
Point (i) & (ii):-
The issuance of the insurance policy, it's validity during the relevant time of accident and the occurrence of accident are admitted. The complaint is resisted by opposite party raising the contention that complainant failed to co-operate with the company for assessing the loss sustained, as the complainant did not give necessary permission for conduct of detailed inspection by dismantling the vehicle. The actual loss therefore could not be assessed by the surveyor, and opposite party was unable to settle the claim. It is the case of opposite party that dismantling the vehicle and detailed inspection of damage if any to interior parts/components was extremely necessary for assessing the actual damages. 7. The accident happened on 29-4-2006. According to opposite party the accident was reported to opposite party on 02-5-2006. n the same day opposite party appointed Sri.M.Vivek as the Surveyor for conduct of spot0t survey. This surveyor submitted his report on 16-5-2006. Meanwhile opposite party appointed Sri.M. Ashraf for conducting the final survey. The vehicle was garaged at T.V.S. Velluvambrum who is the repairer/dealer. The final surveyor inspected the vehicle on 10-5-2006 and 17-5-2006. He made assessment of the visible damages and then requested the complainant to give permission to dismantle the vehicle for conducting detailed inspection of damage if any to interior parts. As there was no response from the side of the complainant, this surveyor issued a letter to the complainant requesting him to give consent for dismantling the vehicle and to facilitate detailed inspection. The letter is said to be returned with endorsement, 'addressee left place without instruction, returned to sender'. The repairer, T.V.S. Velluvambrum also had send a letter for the same purpose. These letters are produced and marked as Ext.B1 and B2 respectively. Relevant portion of Ext.B1 reads as under:- "I inspected the vehicle on 09-05-2006 at M/s. T.V.Sundaram Iyengar & Sons Ltd., Valluvambram. You are advised to inform the undersigned after dismantling the body shell and mechanical units for inspection and to finalise the claim. It is regrettable to see that you have not turns up so far in spite of repeated requests in this regard. Hence I hereby request you to inform me within 10 days from the date of receipt of this letter, the date on which the vehicle can be inspected after dismantling. As the claim is pending for a pretty long time, please treat this as "MOST URGENT."
Relevant portion of Ext.B2 reads as under:- "This is to reference the above accident vehicle No.KL10X4150 (major). We received the above vehicle for accident work and submitted the estimate of work to insurance co. They allotted Mr.Ashraf (Insurance Surveyor) for surveying the above and he surveyed on 09-05-2006. He request to dismantle the above vehicle for inspecting mecahnical damages. But not get the approval for dismantling from you end. Now we received a letter from insurance surveyor asking to arrange inspection after dismantle the vehicle within 10 days from the receipt of the above letter. This for your kind information. So please give the approval for dismantle the above vehicle for inspection or kindly arrange to take the vehicle outside within 10 days from the date of receipt of this letter. Otherwise we are forced to charge garage rent for each day. Please treat this matter as most urgent." 8. Surveyor is a person appointed by the insurance company under the provisions of the Insurance Act. Hence his request for co-operation has to be given due regard by the insured. Ext.B1 and B2 unequivocally establish that complainant was sufficiently informed that the conduct of survey cannot be completed without his co-operation for dismantling the vehicle. 9. Due to fail on the part of the complainant to respond to Ext.B1 and B2, the final survey report could not be submitted by the surveyor and the claim remained unsettled. It was submitted by opposite party that the claim file was neither closed nor the claim denied. It remained unsettled. It is in this factual scenagio that this complaint was filed before the Forum. The repairer, T.V.S., Velluvambram had submitted Ext.A2 estimate of Rs.3,96,000/- to the insurance company. In this estimate the repairer has included cost of repair/replacement of internal parts of the vehicle also though not checked by dismantling the vehicle. 10. Complainant laid thrust upon this amount stated in Ext.A2 and claims compensation on the basis of constructive total loss. The prayer in the complaint is to allow the amount estimated in Ext.A2. This Forum by it's earlier order had directed opposite party to pay Rs.3,61,208/- under the policy. It was also held by us then that taking into consideration that the salvage is retained by the complainant, no interest is awarded upon the amount. 11. After remand of the case, the complainant filed additional affidavit. It is affirmed by him in this affidavit, that to avoid further damage to the salvage by rusting, he sold the salvage as scrap for Rs.45,000/-. That out of this he paid Rs.4,500/- towards demurrage charges to T.V.S., velluvambram for keeping the vehicle at their garage. It was submitted by the counsel for complainant that as the Forum had not ordered interest upon the compensation, the salvage was sold to protect the interest on the property of the complainant. 12. Thus the situation presented before us, when the case was taken up after remand, was that the vehicle had been sold. So any effort on our part to arrange for a further survey so as to assess the actual damage in order to aid us in quantifying the compensation was not possible. We therefore proceed to analyse the issue with the available evidence which is placed by the parties. 13. The complainant contends that he sold the vehicle/salvage from the garage at T.V.S. Velluvambram, and that it fetched an amount of Rs.45,000/- only. Complainant has not produced any document to support the transaction of sale. In cross examination he has stated that he does not know on which date the vehicle was sold and to exactly whom it was sold. His (PW1) evidence in this regard is as under: "വാഹനം അപകട ശേഷം ഞാന് repair ചെയ്തിട്ടില്ല. വാഹനം വിറ്റത് ബാബു എന്നയാള്ക്കാണ്. അയാളുടെ മുഴുവന് പേരും address-ഉം അറിയില്ല. അയാള് എവിടെയുളള ആളാണ് എന്നറിയില്ല. Workshop-ല് നിന്നുമാണ് വിറ്റത്. T.V.S. Workshop-ന് അറിയുമോ എന്നറിയില്ല. വിറ്റ date കൃത്യമായി ഓര്ക്കുന്നില്ല. 2006-ലാണ് വിറ്റത് എന്നാണ് ഓര്മ്മ. ഈ കേസ് കൊടുത്തശേഷമാണ് വിറ്റത്." "ഈ കേസ് നിലനില്ക്കുംപോള് വാഹനം വിറ്റു എന്നു പറഞ്ഞാല് വാഹനം 2006-ലാണോ
2007-ലാണോ വിറ്റത് എന്ന് ഓര്മ്മയില്ല. വാഹനം വിറ്റതിന് യാതൊരു രേഖയും ഇല്ല. 4500/- ക. T.V.S.-ല് വാടക കൊടുത്തതിന്ന് bill കിട്ടിയിട്ടില്ല എന്നാണ് ഓര്മ്മ. എത്ര ദിവസം നിര്ത്തിയിട്ടതിന്നാണ് 4500/- ക. വാടക കൊടുത്തത് എന്ന് കൃത്യമായി പറയാന് പറ്റില്ല."
"Accident പറ്റി 2 വര്ഷത്തിന്നു മുന്പാണോ വിറ്റത് എന്ന് പറയാന് അറിയില്ല. വാഹനം financier T.V.S.-ല് നിന്നും seize ചെയ്തതാണ് എന്ന് പറഞ്ഞാല് അറിയില്ല."
"വാഹനത്തിന്െറ R.C. ഞാന് surrender ചെയ്തിട്ടുണ്ട്. T.V.S.-ല് നിന്നുമാണ് എല്ലാം ചെയ്തത്. Babu എന്നയാള് ആക്രികടക്കാരനുണ്ട് എന്ന് പറഞ്ഞു. എന്നോടു പറഞ്ഞത് ആരാണ് എന്ന് എനിക്കറിയില്ല. T.V.S. അറിഞ്ഞുകൊണ്ടാണ് കച്ചവടം നടന്നത് എന്ന് പറഞ്ഞാല് ശരിയല്ല. കച്ചവടം T.V.S.-കാര് അറിഞ്ഞിട്ടില്ല. 4500/- ക. വാടക തന്നാല് കൊണ്ടുപോകാമെ.ന്നു T.V.S. പറഞ്ഞു. അതു പ്രകാരം വാടക കൊടുത്തു കൊണ്ടുപോയി. Crane വന്ന് കെട്ടി വലിച്ചു കൊണ്ടുപോയി. അപ്പോള് ഞാന് അവിടെ ഉണ്ടായിരുന്നു. R.C. Surrender ചെയ്ത രേഖ ഫോറത്തില് ഹാജരാക്കിയിട്ടുണ്ടോ എന്നറിയില്ല. Surrender ചെയ്ത R.C.-യോ രേഖകളോ ഹാജരാക്കിക്കാണുന്നില്ല എന്ന് പറഞ്ഞാല് യാതൊരു കാരണവും ബോധിപ്പിക്കാനില്ല. സമയം അനുവദിച്ചാല് രേഖകള് ഹാജരാക്കാന് കഴിയുമെന്ന് ഉറപ്പു പറയാന് സാധിക്കില്ല." 14. The above evidence throws a shadow of falsity, upon the contention of the complainant that the vehicle was sold by him and that it fetched only Rs.45,000/-. When a vehicle which is subject matter of a litigation which has not become final, is sold, the complainant ought to have retained some evidence to support his contention. Complainant could have had the assessment of the value of the vehicle/salvage by the repairer T.V.S. Velluvambram, or any other private surveyor before sale of the vehicle. The vehicle was left at the garage for more than a year. The failure on the part of the complainant to conduct a valuation of the vehicle by a competent per son prior to sale and the absence of evidence to corroborate the transaction of sale falls short of the fairness expected from him in the given set of circumstances. We leave this issue here, and will be adverting to it later. 15. The main argument raised on behalf of opposite party was that the claim could not be settled only due to the non-co-operation of complainant, and that this amounted to violation of condition No.1 in the policy. That there is no deficiency in service on the part of opposite party and so the complainant is not entitled to any relief. We cannot fully agree with this argument. Complainant had paid premium for the insurance and the accident had occurred during the currency of the policy. Then opposite party is definitely bound to indemnify the loss sustained by the complainant. The violation of condition No.1 in the policy is not so fundamental so as to deny the claim in toto. Further DW4 has categorically deposed that the insurance company is always ready and willing to pay compensation to the complainant on receiving report of actual cost of repair. 16. An odd submission made by the learned counsel on behalf of the complainant was that in condition No.4 of the policy it is stated that the insurance company may at it's own option repair, reinstate or replace the vehicle. That in the instant case, insurance company failed to exercise this option and that the company could have repaired the vehicle if necessary by exercising the option. We cannot appreciate this submission at all. It is only a twisted version of what is stated in condition No.4 of the policy. Condition No.4 only intends to make it clear that in the course of indemnifying the loss the option of repairing, reinstating, or replacing with a new vehicle would be that of the insurance company and not that of the complainant. Hence this argument is disregarded by us. 17. Per se it is clear that complainant did not respond to the request for dismantling the vehicle and the detailed inspection by the Surveyor was not possible. Two surveyors have submitted their reports in this case. Prior to remand opposite party had produced only Ext.B3 interim report submitted by second surveyor. The survey report contended to be submitted by spot surveyor Sri.M.Vivek was not palaced before us. After remand, opposite party produced Ext.B5 which is the report submitted by Sri.M.Vivek. In Ext.B5 the surveyor has not made any assessment of loss/cost of repair of the vehicle. The surveyor has stated in Ext.B5 only the details of damage caused to the vehicle as observed by him without dismantling the vehicle. He has also reported about the nature and cause of accident. The final surveyor conducted inspection of the vehicle on 10-5-2006 and 17-5-2006. He made requests for dismantling the vehicle and then submitted Ext.B3 interim report on 15-8-2006. In Ext.B3 the loss of visible damage is assessed be Rs.40,113.95. In Ext.B3 the surveyor has stated as under: "It may please be noted that the assessment given above is for visible damages noticed at the time of survey. In spite of my repeated requests, the vehicle was not dismantled for detailed inspection. All correspondences in this regard were returned undelivered. Damages to internal components, if any can only be ascertained after inspection of the vehicle duly dismantled."
18. Thus the compensation assessed for the visible damages without dismantling the vehicle is Rs.40,113.95. As per Ext.A2 estimate prepared by the repairer the cost of repair is Rs.3,96,000/-. There is huge difference between these two figures. DW1 and DW3 who are surveyors appointed by the company deposed that dismantling the vehicle was absolutely necessary for assessing damages of internal parts. Generally, in all cases involving accident of vehicle it is not necessary to conduct inspection by dismantling the vehicle. Such request is made by the surveyor when there is a claim for damage to internal parts and also when on visible observation the surveyor also strongly believes that there is chance of damage to internal parts. The huge difference in the figures in Ext.A2 and Ext.B3 also lead to the possibility that there is damage to the internal parts of the vehicle. Our task ahead is to quantify the compensation payable to the complainant in the absence of survey report. 19. The service engineer at T.V.S., Velluvambram who prepared Ext.A2 estimate was examined as DW2. In Ext.A2 the cost of replacing the internal parts are also included. He has deposed that the actual cost of repair may be 20% less or higher than that is estimated by him in Ext.A2. The evidence of DW2 in this regard is as under: "1. "1 ½ വര്ഷം കഴിഞ്ഞ് വന്നത് വാഹനം എടുത്തു കൊണ്ടുപോകുവാനാണ്. വാഹനം repair ചെയ്യാതെയാണ് കൊണ്ടുപോയത്. കോടതിയില് നിന്നും settle ആയി എന്നു പറഞ്ഞാണ് വാഹനം കൊണ്ടുപോയത്. R.C. Owner തന്നെയാണ് വാഹനം കൊണ്ടുപോയത്. വാഹനം tow ചെയ്ത് കൊണ്ടുപോവുകയാണ് ചെയ്തത്. ഞങ്ങള് garage charge വാങ്ങി എന്നു പറഞ്ഞാല് ശരിയാണ്. 4000/- ക. garage charge വാങ്ങി എന്നാണ് ഓര്മ്മ. വാഹനം -ല് പണി ചെയ്യാതെ കിടത്തിയതിനാലാണ് ഈടാക്കിയത്. വാഹനം workshop-ല് പണി ചെയ്യാതെ കിടത്തിയതിനാലാണ് garage charge ഈടാക്കിയത്. വാഹനം repair ചെയ്യാഞ്ഞത് R.C. Owner approval തരാത്തതുകൊണ്ടാണ്. R.C. Owner വാഹനം garage-ല് വച്ചു തന്നെ ആര്ക്കെങ്കിലും വിറ്റുവോ എന്നറിയില്ല. 1 ½ വര്ഷത്തോളം മാത്രമെ വാഹനം garage-ല് നിര്ത്തിയിട്ടുളളൂ. ഞാന് Ext.A2 estimate dismantle ചെയ്യാതെ പുറമെ നിന്നുളള estimate ആണ് തയ്യാറാക്കിയത്. Chassis-ന്നു bend വരാന് സാധ്യതയുണ്ട് എന്നുളളതിനാലാണ് chassis replacement-ന്െറ വില estimate-ല് ചേര്ത്തത്. ഇപ്രകാരമുളള ഒരു accident-ന്ന് parts-ല് വരാവുന്ന തകരാറുകളുടെ സാധ്യത കണ്ടു കൊണ്ടാണ് dismantle ചെയ്യാതെ തന്നെ ആ parts-കള്ക്ക് estimate തയ്യാറാക്കിയത്." 2. "വാഹനം dismantle ചെയ്യുവാനായി പരാതിക്കാരന്ന് കത്തയച്ചിട്ടുണ്ട്. ആയതിന്ന് documents ഉണ്ട്. Ext.B2-വിന്െറ acknowledgement-ഉം office copy-യും office-ല് ഉണ്ട്. 2 വര്ഷം വാഹനം ഉപയോഗിക്കാതിരുന്നാല് salvage value പറയുകയാണെങ്കില് depreciation 2% to 5% ആണ്. ഞാനുണ്ടാക്കിയ estimate ആണ് Ext.A2. ആയത് എന്െറ engineering skill ഉപയോഗിച്ചും past experience വച്ചും damage വരാന് chance ഉളള കാര്യങ്ങള് പരിഗണിച്ച്തയ്യാറാക്കിയതാണ്. എനിക്ക് 8 വര്ഷത്തോളം damage assess ചെയ്തുളള experience ഉണ്ട്. Ext.A2-വില് dismantle ചെയ്യാതെയുളള damages-ന്െറ assessment total ആണ് കാണിച്ചിട്ടുളളത്. Dismantle ചെയ്താല് estimate സംഖ്യ വ്യത്യാസം വരാം. Ext.A2-വില് കണ്ട് ബോധ്യപ്പെട്ട് ചെയ്ത് തയ്യാറാക്കിയതാണ് എന്നു പറഞ്ഞാല് ശരിയാണ്. എന്െറ qualification diploma in Mechanical Engineering ആണ്." 3. "വാഹനം dismantle ചെയ്യാതെ assess ചെയ്തതുകൊണ്ട് work ചെയ്യുംപോള് സംഖ്യ കൂടുവാനോ കുറയുവാനോ സാധ്യതയുണ്ട്." 4. "Dismantle ചെയ്ത് assess ചെയ്താല് കദേശം 20% കുറയാനോ കൂടാനോ സാധ്യതയുണ്ട്." 20. According to DW2 who is an expert in the field of repairing vehicles and is a permanent employee of the dealer/repairer the actual cost of repair if assessed after dismantling the vehicle may be 20% less or higher than what is estimated in Ext.A2. If we calculate it as 20% less than the amount estimated in Ext.A2 the actual cost of repair would be Rs.3,16,800/- (ie., Rs.3,96,000/- - Rs.79,200/- = Rs.3,16,800/-). 21. The final surveyor who submitted Ext.B3 report was examined as DW1. His evidence as regards damage to the vehicle is as under: " വാഹനത്തിന്െറ top hood-ന്െറ structure pipe frames bent and twisted ആണെന്ന് ഞാന് note ചെയ്തിട്ടുണ്ട്. Co-driver-റുടെ seat-ന്െറ frame bent ചെയ്ത് twisted ആണെന്ന് note ചെയ്തിട്ടുണ്ട്. Radiator assembly-യും twisted ആയിരുന്നു. ഈ വസ്തുതകള് കാണിക്കുന്നത് hit-ന്െറ force ആണ്. Co-driver-റുടെ seat, driver- റുടെ left side-ല് ആണ്. ആ ഭാഗങ്ങള് damaged ആയി കാണുന്നത് കൊണ്ട് engine ഭാഗങ്ങളും damaged ആവാന് chance ഉണ്ട് എന്നു പറഞ്ഞാല് ശരിയല്ല. മുകളിലെ hood-ന്െറ structure pipes back end വരെ damaged ആയിരുന്നു എന്നു പറഞ്ഞാല് ശരിയാണ്. ഈ damage-ന്ന് ഞാന് recommend ചെയ്തിട്ടുളളത്, 'on bringing to roginal shape has to be painted'. Driver-റുടെ seat-ന്െറ ഭാഗമാണ് ഇടിച്ചിട്ടുളള ഭാഗം. ആ ഭാഗം seat പിന്നോട്ട് തളളിയിട്ടില്ല. അതു കൊണ്ടു തന്നെ ആ ഭാഗത്തല്ല ഇടിയിണ്ടായത് എന്നല്ല എന്െറ assessment. Driver-റുടെ seat displaced ആവാതെ, left side-ലുളള co-driver-റുടെ seat displaced ആകുന്നത് എന്നു പറഞ്ഞാല് വലതു ഭാഗത്തു തന്നെ ഇടി വരുവാനാണ് സാധ്യത. വളരെ തടിയുളള driver ഇരുന്നതുകൊണ്ടാണോ driver seat displaced ആവാഞ്ഞത് എന്നു ചോദിച്ചാല് അല്ല. Left side seat displaced ആവാന് കാരണം co-driver seat-ല് തടിയുളള ആള് ഇരുന്നതുകൊണ്ടാണ്." "Dismantle ചെയ്താല് chassis bend ഉണ്ടോ എന്നു നോക്കുവാന് മാത്രമെ സാധിക്കൂ. ആയത് hydraulic jack വച്ചു പൊക്കി നോക്കിയാല് മനസ്സിലാകും എന്നു പറഞ്ഞാല് ശരിയല്ല. Ext.B3 report സത്യസന്ധമല്ലാതെ opposite party കംപനിയുടെ താല്പര്യ പ്രകാരം തയ്യാറാക്കിയതാണ് എന്നു പറഞ്ഞാല് ശരിയല്ല;" 22. The details of damage noted by DW1 in Ext.B3 are as under: "1. Assy hood/bonnet complete depressed, buckled and deformed. 2. Bonnet clips/catches (2) broken. 3. Assy radiator guard complete pushed back and twisted. 4. Assy fender complete front RH smashed and ill shaped. 5. Extension/wheel arch front RH broken. 6. Head light assy RH broken. 7. Front indicator lamp turn signal RH broken. 8. Body shell RH side panel/skirt panel buckled and deformed at front. Cowl assy top cowl side and instrument buckled and deformed. Assy front floor panel wrinklet and lost shape. Assy panel dash/engine fire wall shielder bent and twisted. 9. Front wind shield frame badly bent and twisted. 10. Glass front wind shield (Laminated) broken. 11. Weather strip front wind shield cut. 12. Rear view mirror RH broken. 13. Top hood super structure pipe frame work bent and twisted. 14. Top hood canopy torn off at places. 15. Assy co-driver seat pipe frame work bent and twisted. 16. Front shock absorber RH bent and twisted. 17. Front RH spring main & 2nd leaves broken. 18. Radiator assy (5011510116, TATA TOYO) pushed back and twisted. 19. Air filter assy buckled and damaged. 20. Assy booster with master cylinder (TVS Girling, 29048266) pressed and crushed. 21. Assy front bumper bent and twisted. 22. Wheel disc front RH bent, twisted and found to have face out. 23. Front RH tyre (Sl.No.T 082025 NOV 05, APPOLLO) torn. 24. The affected body panels on braining to original shape has to be painted with matching colour.
23. The parts required to be replaced as stated by DW1 in Ext.B3 are as under: Sl. (A) Parts at Nil Sl. Assessed For use of In.Co.
No. Depreciation No. (Rs.) bill amount Payable 1. Bumper front 1 911.26 2. Front wind shield frame complete 1 2366.71 3. Booster with master cylinder assy 1 3517.80 4. Radiator assy 1 4414.14 5. Shock absorber front 1 636.78 6. Main leaf front spring 1 187.99 7. 2nd leaf front spring 1 171.84 8. Head light assy 1 637.20 9. Fender assy front 1 2329.25 10. Assy hood/bonnet complete 1 3184.19 11. Bonnet clip catches 258.00 12. Wheel disc front 1 1362.31 13. Glass front wind shield(Laminated) 1 1296.34 -------------
21073.81 Add: VAT (12.5%) 2634.22 ------------- (A) Total 23708.03
B.AT 50% DEPRECIATION 1. Weather strip front wind shield 1 363.00 2. Air filter assy 1 957.00 3. Front indicator turn signal 1 201.00 4. Extension front fender RH 1 320.43 5. Top canopy set 1 5805.00 6. Rear view mirror RH 1 203.00 7. Tyre front RH 1 2650.00 -------------- 10499.43
Add: VAT (12.5%) 1312.41 --------------- 11811.84 Less 50% Depreciation 5905.92 --------------- (B) Total 5905.92 ========= Summary of Assessment 1. Labour charge Net 12500.00 2. Towing charge 1000.00 3. Total cost of parts A. At Nil Depreciation 23708.03 B. At 50% Depreciation 5905.92 ---------------- 43113.95 Less Policy Excess 1000.00 Less Salvage value 2000.00 ---------------- Net Liability 40113.25 ========== (Rupees forty thousand one hundred thirteen, paise ninety five only)
24. The details of damage noted in Ext.B5 spot survey report by Sri.M.Vivek is as under: "1. Body, cabin, glass, cowl, upholstry, : Bonnet bent, folded & deshaped. Bonnet seat, grill, beeding, emblem, lock, clips bent. RS mudguard bent & deshap- winder, doors mudguards, bonnet, ed. Mudguard FRP broken. Scuttle dash dicky etc., bent & wringled. RS dash cowl bent & wringled. W/S frame bent, twisted &
deshaped. W/S glass broken. Grill assy. Bent & twisted. Hood frame pipes bent & upholstry torn. Instrument panel bent. Front seat frame bent & twisted. RS panel of the body bent.
Frame/cowl No: :
2. Lamps, switches, battery, wiring : RS indicator assy. & head lamp broken. Meters, etc. Steering horn cover broken. Battery No. : 3. Front suspension, main & stub axles, : Front RS shock absorber bent & twisted. Front axle No. :
4. Steering/fork assy., steering box, shafts, linkages and cables etc. : Tie rod end pipe bent & twisted. Steering box No. :
5. Spring sets, shackles, hangers and bushes etc. : RS leaf sppring set bent & twisted.
6. Chassis frame assy. : Front bumbper bent & deshaped.
7. Painting & polishing : Damaged portion needs painting.
8. Engine, radiator, ignition, fuel tank : Radiator cores pressed with the fan & lines etc. leaves & damaged. Fan leaves cracked. Air cleaner case broken. Engine No. : Ruel pump No. : Radiator No. :
9. Clutch, pedal, lever, cables and linkages etc. : No visible damages.
Gear box assy. Lever, linkages & cables etc. : No visible damages. Gear box No. : Propeller shafts, bed-yoke & teeth transmission chain etc. : No visible damages. Rear axle assy, crown wheel & pinion Rear axle No. : No visible damages. Brakeepedal, lever, cylinders, cables, hoses, pipes, shoes & brake drums etc. : Brake booster assy. Bent & damaged. Brake valve No. : Tyres, wheel disc, wheel rim, hubcaps : RS wheel rim bent & folded. RS tyre and other items. torn. Tyre No. : Apollo T082025 Nov 05"
25. On behalf of the complainant it was urged that the main parts of the vehicle including the engine & chasis were damaged and hence the claim has to be treated as a case of constructive total loss. This submission was counternanced by opposite party who submitted that damage was sustained only to the right side of the vehicle. 26. To appreciate and analyse these rival claims the photographs of the vehicle taken immediately after the accident would serve as material evidence. It is seen stated in the judgment of the Hon'ble State Commission that opposite party had produced some photographs before the Appellate Commission. It can also be seen that the Hon'ble State Commision had formed the opinion that the damage to the vehicle cannot be treated as a case of total loss basing upon such photographs. The relevant portion in para 5 of the judgment in appeal No.65/08 is as under: "The Forum has directed to pay the compensation as for total loss as the repair costs would exceed 75% of the declared value. The appellant has also produced the photographs taken by the spot Surveyor which would show the damages of the vehicle on the right hand side only. The photographs show that the wheels are intact. As per the photographs the right side headlight also appears intact. The above pictures would not show that the vehicle has sustained such damages that can be treated as total loss as such."
27. Interestingly, these photographs are not placed before us by opposite party. No photographs have been placed along with Ext.B3 or Ext.B5 survey reports. The spot surveyor, has no case that he took any photographs of the vehicle. Opposite party ought to have produced the photographs, furnished copies to the complainant and given an opportunity to the complainant to cross examine basing upon the photographs. Such evidence would have brought to light, to some extend, the actual damage sustained to the vehicle. For reasons best known to opposite party, no photographs are placed before us. No arguments were advanced on behalf of opposite party relying upon any such photographs which has been the main pointer before the State Commission. Though the counsel for opposite party assured this Forum on several dates that the photographs will be produced, it was never produced. For that matter, it is not seen stated either in Ext.B3 or Ext.B5 that the reports include enclosures/photographs. On suppression of such material evidence we are impelled to draw adverse inference against opposite party. From the description of damage stated in Ext.B3, Ext.B5 and Ext.A2 together with the oral evidence adduced by both sides we have no doubt to hold that the interior parts of the vehicle were also damaged seriously. At the same time there is no reliable evidence to hold that the cost of repair of the vehicle is higher than the IDV of the vehicle during the currency of the policy. 28. The upshot of above discussions is that the loss sustained to the vehicle cannot be treated as a case of constructive total loss. But he is entitled to compensation for the cost of repair of the vehicle. To quantify this amount we have to do some guesswork without which a finality to the dispute cannot be made. In Ext.B3 the surveyor has assessed Rs.40,113.95 for the external visible damage only. In Ext.A2 the repairer has assessed Rs.3,96,000/- which includes the cost for repairing internal parts also and is the estimate made without dismantling the vehicle. He (DW2) has deposed that the actual cost of repair may be 20% lower or higher from that stated in Ext.A2. To be on the safe side we take it as 20% less. This amount as stated earlier is Rs.3,16,800/-. The complainant is not entitled to this entire amount. The admitted value of the salvage has to be deducted. Complainant also claims Rs.4,500/- towards demurrage charges which was paid to the repairer, T.V.S., Velluvambram. Complainant had left the vehicle at the garage of the repairer at his own choice. So opposite party cannot be burdened with the demurrage charges paid by the complainant. We disallow the claim of Rs.4,500/- put forward by the complainant. As discussed earlier the admitted value/consideration stated to be received by the complainant is not reliable. The evidence of the complainant in this regard is totally shabby. He has not even disclosed the date of sale. The possibility that the vehicle was sold during the pendency of the case or it's appeal cannot be ruled out. Further complainant did not have the value of the vehicle/salvage assessed by a private surveyor. The complainant could have made an assessment of the actual cost of repair by a private surveyor and examined such surveyor as a witness. These facts put together with the non-co-operation of the complainant in giving assistance to conduct detailed inspection of the vehicle is contributory negligence on the part of complainant. We quantify such contributory negligence to an amount of Rs.1,00,000/-. This sum has to be deducted from the total amount of compensation along with the admitted value of salvage. 29. The compensation arrived by us is as shown under:- Amount estimated in Ext.A2 : Rs.3,96,000/- Less 20% : Rs.3,16,800/- Less admitted value of Salvage (Rs.45,000/-) : Rs.2,71,800/- Less amount of contributory negligence : Rs.1,00,000/- -------------------- Rs.1,71,800/- ============
30. The complainant is entitled to Rs.1,71,800/- as damages payable under the policy. It ha been held by the Hon'ble Apex Court in New India Assurance Company Vs. Pradeepkumar 2009 CTJ 599 decided on 09-4-2009. That although the assessment of loss by surveyor is a pre-requisite for settlement of insurance claim of twenty thousand rupees or more, the surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. So far as the case in hand is concerned, the company is liable to indemnify the loss and cannot reject the claim in toto due tot he lack of a survey report. 31. We have also to say that the insurance company had not issued any correspondence to the complainant requesting him to co-operate with conduct of detailed inspection. Thee has been no offer to pay the amount assessed in Ext.B3 for visible damages to the vehicle. The service provider should act in a consumer oriented way rather than be equally adamant with the complainant. We consider that interest @ 6% from the date of this order till payment will meet the ends of justice, taking into consideration the peculiar facts and circumstances of this case. We do not make any order as to costs. 32. In the result, we partly allow the complaint and order that opposite party shall pay to the complainant an amount of Rs.1,71,800/-(Rupees One lakh, seventy one thousand and eight hundred only) along with interest @ 6% per annum from the date of this order till payment within one month from the date of receipt of copy of this order. There is no order as to costs. Dated this 23rd day of February, 2010.
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER E. AYISHAKUTTY, MEMBER APPENDIX
Witness examined on the side of the complainant : PW1 PW1 : P. Aboobacker, Complainant. Documents marked on the side of the complainant : Ext.A1 to A6 Ext.A1 : Photo copy of the certificate of registration dated, 22-12-05 issued by R.T.O., Malappuram to complainant. Ext.A2 : Photo copy of the estimate dated, 08-5-2006 by service engineer to complainant. Ext.A3 : Photo copy of the certificate-cum-policy schedule dated, 23-12-2005 issued by opposite party to complainant. Ext.A4 : Photo copy of the G.D. Certificate dated, 3-5-2006 issued by Sub Inspector of Police, Malappuram to complainant. Ext.A5 : Photo copy of the Fitness Certificate dated, 27-12-2005 issued by R.T.A., Malappuram to complainant. Ext.A6 : Certificate of Fitness given by Motor Vehicle Inspector, R.T. Office, Malappuram to vehicle No.KL10/X-4150. Witness examined on the side of the opposite parties : DW1 to DW4 DW1 : M. Ashraf, Surveyor. DW2 : Fayas.K.K., Service-in-charge, TVS., Velluvambram. DW3 : M. Vivek, Insurance Surveyor. DW4 : M.K. Muraleedharan, Divisional Manager, Oriental Insurance Co.Ltd., Calicut. Documents marked on the side of the opposite parties : Ext.B1 to B5 Ext.B1 : Photo copy of the letter dated, 26-6-2006 sent by Insurance Surveyor to complainant. Ext.B2 : Photo copy of the letter dated, 05-7-2006 sent by Service Engineer to complainant. Ext.B3 : Interim survey report dated, 15-8-2006 prepared by Insurance Surveyor. Ext.B4 : Commercial Vehicles Package Policy. Ext.B5 : Private and confidential Motor Spot Survey Report by Sri.M.Vivek, Surveyor and Loss assessor of opposite party.
C.S. SULEKHA BEEVI, PRESIDENT
MOHAMMED MUSTAFA KOOTHRADAN, MEMBER E. AYISHAKUTTY, MEMBER
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