IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA
Dated this the 21st day of April, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No. 106/2013 (Filed on14.08.2013)
Between:
Manoj Thomas,
Thayil Mepurath,
Vadasserikara, Ranni Taluk,
Pathanamthitta. … Complainant.
(By Adv. Mathew Samuel)
And:
The New India Assurance-
Co. Ltd., .represented by its
Manager, Branch Office,
Pathanamthitta. … Opposite party.
(By Adv. P.D. Varghese)
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complainant against the opposite party for getting a relief from the Forum.
2. The brief facts of this complaint is as follows: The complainant is the registered owner of the tipper bearing registration No.KL-62-7847. The said tipper met with an accident on 18.02.2013 at Podimattom, Kanjirappally and sustained several damages including the loss of front cabin shell. The said vehicle is covered with a policy issued by the opposite party and it is valid on the date of accident. After the accident, the vehicle was taken to Gulf Body Works, Bhoothakkulam, Paravoor, Kollam for repairing with the consent and knowledge of the opposite party. Firstly, an estimate was prepared roughly in the presence of a valuator for Rs. 4,47,000/- by the workshop. Thereafter, the work was started and it was completed by 12.03.2013 and the workshop authorities issued final bill including the material cost and labour charge for Rs. 2,94,102/-. The details of the bill was submitted to the opposite party immediately. But they failed to pay the total claim amount. So the complainant was forced to pay the entire amount and released his vehicle from the workshop. Thereafter, the first opposite party without any explanation and arbitrarily sanctioned an amount of Rs. 1,40,666/- and directed the complainant to accept the said amount as full and final settlement. But the complainant did not accepted the said amount. Since the policy is valid and as per the terms and conditions of the policy, opposite party is bound to indemnify the total loss of the complainant. So the non-payment of the total amount of loss sustained to the complainant by the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant. Hence this complaint for the realization of Rs. 2,94,102/- with interest at the rate of 12% along with cost of this proceedings.
3. Opposite party filed their version with the following main contentions: Opposite party admitted the validity of the policy and the accident and the claim put forward by the complainant along with relevant documents including the estimate of Rs. 4,47,000/- issued by the Gulf Body Works, Kollam. On getting the claim form, Mr. George Joseph the approved surveyor was deputed for assessing the loss. Accordingly, the surveyor inspected the vehicle and submitted his kreport. The surveyor reported that the cabin of the vehicle was beyond repairs and the cost of a new cabin is Rs. 2,25,000/- and for getting a new cabin more than 2 months is required. But the complainant was not ready to accept the time limit and he requested for a second hand cabin costing Rs. 60,000/- which was readily available and thereafter the vehicle was repaired with a second hand cabin. The surveyor after considering the depreciation of the spare parts vide his report dated 18.03.2013 assessed the loss for Rs. 1,40,666/-. Accordingly, opposite party sanctioned the said amount. The decision to replace the damaged cabin with a second hand cabin was taken by the complainant himself due to the delay in getting a new cabin and hence he is not entitled to get any amount other than the amount sanctioned by the opposite party. Therefore, there is no cause of action and the opposite party has not committed any deficiency in service. With the above contentions, opposite party prays for the dismissal of the complaint with their cost.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral deposition of PW1, DW1 and Exts. A1 to A11 and B1 and B2. After closure of evidence, both sides were heard.
6. The Point: The complainant’s allegation is that the complainant’s vehicle sustained damaged due to an accident and the vehicle was repaired by the complainant with the consent of the opposite party for Rs. 2,94,102/-. The claim for the said amount is not sanctioned by the opposite party. Instead they have sanctioned only Rs. 1,40,666/-. The sanctioning of the above amount was based on the survey report of their surveyor and his assessment is without any reasons and is arbitrary. The above said act of the opposite party is a clear deficiency in service and the opposite party is liable to the complainant for the same.
7. In order to prove the case of the complainant, he filed a proof affidavit along with certain documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A11. Ext. A1 is the final bill for Rs. 2,94,102/- dated 12.03.2013 issued by Gulf Body Works. Exts. A2, A3, A4 and A5 are the different bills dated 25.02.2013 issued by N. Kannalagan Company, Madurai in the name of the complainant for the supply of various parts in connection with the repairs of the vehicle of the complainant. Ext. A6 is the bill for Rs. 32,500/- dated 25.02.2013 issued by Mahalekshmi Transports, Namakkal in the name of the complainant for transporting the cabin from Namakkal to Gulf Body Works, Kollam. Exts. A7, A8 and A9 are the different bills issued by the Gulf Body Works in the name of the complainant in connection with the vehicle repairs. Ext. A10 is the bill dated 03.03.2013 for Rs. 7,680/- issued by Friends Automobiles, Kadappakkada, Kollam in the name of the complainant. Ext. A11 is the letter dated 04.04.2013 issued by the opposite party in the name of the complainant intimating the sanction of Rs. 1,40,666/-.
8. On the other hand, the contention of the opposite party is that the damaged vehicle was inspected by their surveyor and filed his survey report. The said survey report revealed that the cabin of the vehicle was beyond repairs and a new cabin will cost Rs. 2,25,000/- and more than 2 months is required for getting a new cabin. But the complainant was not ready to wait for the said time and he requested for allowing to replace the cabin with a second hand cabin costing Rs. 60,000/- and the vehicle was repaired with a second hand cabin. The surveyor after considering the depreciation of the spare parts used for the repairs assessed the loss for Rs. 1,40,666/- and on the basis of the survey report, opposite party sanctioned Rs. 1,40,666/-. But the complainant was not willing to accept the said amount. As per the terms and conditions of the policy, the complainant is not entitled to get the entire amount of Rs. 2,94,102/- claimed by him as the said amount is calculated without considering the age of the vehicle and allowable depreciation etc. So they argued that the complainant is entitled to get only the amount of Rs. 1,40,666/- sanctioned by them.
9. In order to prove the case of the opposite party, their surveyor was examined as DW1 and 2 documents were marked as Exts. B1 and B2. Ext. B1 is the final survey report dated 18.03.2013 prepared by DW1. Ext. B2 is the copy of the policy certificate and the terms and conditions of the policy.
10. On the basis of the available materials on record, it is found that the parties have no dispute with regard to the validity of the policy and the accident of the vehicle. The only dispute is with regard to the quantum of the loss of the vehicle. According to the complainant, he had spent an amount of Rs. 2,94,102/- for the repairs of the vehicle. But as per the assessment made by the opposite party, the loss is only Rs. 1,40,666/-. It is pertinent to note that the amount spent by the complainant is the total cost of the repairs and the said amount is calculated without considering the allowable deductions based on the age of the vehicle and the allowable depreciation etc. This fact is also admitted by the complainant during his cross examination. The relevant portion of his deposition is as follows: “Rm³ s¢bnw sN¿p¶ 2,94,000/þ cq]m F\nbv¡v bYmÀ°-¯n dn¸-b-dnw-Kn\v sNe-hmb XpI-bm-Wv. hml-\-¯nsâ ]g-¡-a-\p-k-cn¨v dn¸-b-dnwKv tImÌn \n¶v depreciation Ipd-bp-sa¶v Adnbmw. Rm³ s¢bnw sNbvXncn-¡p¶ XpI depreciation Ipd-bv¡m-sX-bpÅ XpI-bm-Wv”. From the above deposition, it is clear that the complainant is well aware of the terms and conditions of the policy with regard to the deductions and depreciations. So he himself admitted that he is not entitled to get the amount claimed by him. Moreover, he had not adduced any cogent evidence to prove that the depreciation calculated by the opposite party and the loss assessed by the opposite party is false. Further, the complainant failed to prove the genuineness of the vouchers/cash bills produced by him with cogent and independent evidence. Exts. A2, A3, A4 and A5 are obtained from a firm dealing in second hand old motor parts and all parts of iron scrap. This reveals that the spare parts purchased by the complainant is second hand spare parts. But the price noted therein is the price of new spare parts when it is compared with the prices of new spare parts noted by the insurance surveyor in Ext. B1 survey report. So we have serious doubts regarding the genuineness of the vouchers/cash bills etc. produced and marked in evidence by the complainant. Thus we find that the complainant is failed to prove his case. So we are constrained to accept the assessment made in Ext. B1 survey report. Therefore, we find that there is no merit in this case and hence this complaint is liable to be dismissed.
11. However, the complainant is entitled to get the amount of loss assessed by the opposite party.
In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 21st day April, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Manoj Thomas.
Exhibits marked on the side of the complainant:
A1 : Final bill for Rs. 2,94,102/- dated 12.03.2013 issued by
Gulf Body Works, Kollam.
A2, A3, A4 and A5 : Different bills dated 25.02.2013 issued by N.
Kannalagan Company, Madurai in the name of the
complainant.
A6 : Bill for Rs. 32,500/- dated 25.02.2013 issued by
Mahalekshmi Transports, Namakkal in the name of the
complainant.
A7, A8 and A9 : Different bills issued by the Gulf Body Works in
the name of the complainant.
A10 : Bill dated 03.03.2013 for Rs. 7,680/- issued by Friends
Automobiles, Kadappakkada, Kollam in the name of the
complainant.
A11 : Letter dated 04.04.2013 issued by the opposite party in
the name of the complainant.
Witness examined on the side of the opposite party:
DW1 : George Joseph.
Exhibits marked on the side of the opposite party:
B1 : Final survey report dated 18.03.2013 prepared by George
Joseph, Insurance Surveyor.
B2 : Copy of the policy certificate and the terms and
conditions of the policy.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Manoj Thomas, Thayil Mepurath, Vadasserikara,
Ranni Taluk, Pathanamthitta. (2) Manager, New India Assurance Co. Ltd., Branch Office,
Pathanamthitta.
(3) The Stock File.
