PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on :02/07/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member.
C.C. No.374/2010
Between
O.P. Jos Winson, : Complainant
S/o. Pappachan, (party-in-person)
Oliparambil house,
(XIV/275A),
Elamkunnapuzha,
Near govt. H.S. School,
Kochi-682 503.
And
The Manager, : Opposite parties
New India Assurance Co. Ltd., (By Adv. P.G. Ganappan,
Claims Hub, Anjali, Thrikkakara P.O.
Ernakulam Regional Ernakulam, Kochi-21)
Office (760000) Kandankulathy
Towers, M.G. Road,
Kochi-682 011.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant’s motor cycle which has been stolen on 30-09-2009. The complainant has filed a complaint dated 01-10-2009 before the Narakkal police. Simultaneously the complainant has filed a claim petition before the opposite party. The opposite party requested the complainant to furnish the final investigation report issued by the police. The police recovered the vehicle at Kuthiyathode on 16-12-2009, from a canal flooded with saline water. The police released the vehicle to the complainant and transferred the vehicle to the workshop, RR. Motors Ochanthuruth for repairs. The damaged vehicle has been inspected by the surveyor after that the vehicle was repaired. The bill amount comes at Rs.18,945/-. The complainant furnished the repair bill and details of other expense to the opposite party. Subsequently the opposite party as per letter dated 07-04-2010, issued cheque for Rs. 9,313/- as against the claim of the complainant for Rs. 22,645/-. Aggrieved by the action of the opposite party the complainant filed a grievance petition dated 19-04-2010 before the grievance cell of the opposite party. But the grievance cell has rejected the review petition without even allowing a personal hearing. The vehicle in question is fully covered by the insurance policy with the assurance of coverage amounting to IDV of Rs. 21,600/- and liability under section II (ii) on one event Rs. 1 lakh. That apart the policy issued by the opposite party guarantees the damages due to theft and all consequent expenses thereof. The complainants claim is within the bounds of the coverage of the policy ie. the assured IDV Rs. 21,600. The complainant approaches this Forum for seeking the following reliefs against the opposite party.
i. to direct the opposite party to release the expenses met by
the complainant in parity with the IDV assured as per policy
ii to pay a sum of Rs. 15,000/- as compensation for the mental
agony.
2. Version of the opposite party.
The complainant was insured his motor cycle with the opposite party for the period from 21-10-2008 to 20-10-2009 for the total Insured Declared Value (IDV) of Rs. 21,600/-. The legal liability if any of the opposite party is subject to the terms ad conditions of the policy issued by the opposite party. The complainant submitted a claim dated 02-10-2009 for total loss as the subject matter of insurance was lost by theft. As the insured vehicle was traced out the complainant submitted an estimate for repair dated 10-02-2010 from RR Motors, for an amount of Rs. 30,377/- including spare parts and labour charge of Rs. 3,000/- as against the IDV of Rs. 21,600/-. In the work estimate no expense was made in respect of the painting of the vehicle. The opposite party appointed an independent surveyor for necessary survey and loss assessment. The surveyor assessed the loss at Rs. 9,313/-. As the vehicle was 2004 model, some of the spare parts in plastic, glass battery and tyre were covered by 50% and other spare parts covered by 40% depreciation. On the basis of the assessment done by surveyor, by letter dated 07-04-2010 the opposite party by paying an amount of Rs. 9,313/- settled the claim as full and final and further claim of the complainant is not at all sustainable either in law or on facts. As against the payment of Rs.9,313/- the complainant submitted representation before the grievance cell and the grievance cell intimated to the complainant that the expenses claimed are not admissible under the scope of the policy and that the depreciation amount have to be considered depending upon the age of the vehicle. Therefore there is no deficiency of service on the part of the opposite party.
3. The complainant appeared in person. The opposite party represented through counsel. The complainant adduced oral as well as documentary evidence. Exts. A1 to A12 were marked. Opposite party adduced only documentary evidence. Exbts. B1 to B5 were marked on their side. Thereafter, we have heard both sides.
4. The points that arose for consideration are
i.Whether Ext. A5 surveyor’s report is binding on the
complainant?
ii.Whether the complainant is entitled to get the claim amount
from the opposite party?
iii. Compensation and costs if any?
5. Points Nos. 1&2. The complainant’s claim is that he is entitled to get the assured IDV of Rs. 21,600/-. The claim was settled by the opposite party as per the assessment of the insurance surveyor. Aggrieved by the above conduct of the opposite party he has approached this Forum.
Ext. A1, A2, A5 and A9 are the documents relating to the complaint before the police and the order of the Hon’ble CJM Court in connection with the theft of the vehicle in question. Ext. B1 is the policy, Ext. B2 and B3 series are the copies of proforma invoice and Tax invoice issued from RR Motors, Ext. B4 is the copy of bill check report of the surveyor and Exbt. B5 is the survey report.
The complainant submitted a decision rendered by Hon’ble Supreme Court in Dharmendra Goel Vs. Oriental Insurance Company Ltd. (2008) 8 SCC 279 in which renewal of the policy of the disputed vehicle was from 13-02-2003 to 12-03-2003. The accident occurred on 10-09-2002. The value of the vehicle had depreciated from Rs. 3,54,000/- to Rs. 1,80,000/-The Hon’ble Supreme Court found that it is not acceptable. Since the insurer was bound by the value put on the vehicle while renewing the policy. In the instant case theft of the vehicle was on 30-09-2009 that is just before one month of the date of expiry of the policy. Moreover it has admitted during cross examination of the complainant that his claim was based on repair basis. And he further admitted that if he receives the IDV from the opposite party the ownership of the vehicle would be vested with the opposite party and same is also applicable in the case of total loss repair. For the above reasons we are not relying on the above decision rendered by the Hon’ble Supreme Court. Admittedly there no evidence is before us to overcome the findings of Ex. B5 survey report. The Hon’ble Supreme Court in Sri. Venkateswar Syndiate Vs. Oriental Insuance Co. Ltd. (CP) 2009 CTJ 1199 held that “insurance surveyor/surveyors are appointed under insurance Act. Their reports are to be given due importance and there should be sufficient ground for not agreeing with the assessment made by them.” In the aforementioned reasons we are of the opinion that the complainant is entitled to get the insurance claim amount in tune with Ext. B5 surveyor report. Admittedly the complainant has received the cheque worth Rs. 9,313/-, that is the assessed amount by the surveyor in Ext. B5 report, from the opposite party. In view of that the complainant is entitled to get any more amount from the opposite party. Accordingly we disallow this complaint.
Pronounced in the open Forum on this the 30th day of September 2011
Sd/-C.K. Lekhamma, Member.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
