IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 13th day of April 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No. 84/2021 (Filed on 17.04.2021)
Complainant : Jithin Johny, S/o Johny
Pacheril House, Vaikom P.O
Naduvile Village
Vaikom Taluk
(By Adv.George Joseph)
Vs
Opposite parties :1. New India Assurance Company Ltd
Represented by Regional Manager
New India Assurance Co.Ltd
Kandamkulathi Towers 36/707
Mahatma Gandhi Road,
Opp.Maharajas College Ground
Kochi -682 011
2. New India Assurance Co.Ltd
Represented by Manager,
New India Assurance Co.Ltd
Vaikom Branch, Vaikom P.O
(By Adv.P.G.Girija)
O R D E R
Smt.Bindhu.R, Member
The Complaint is filed under section 35 of the Consumer Protection Act 2019.
The complainant had insured his vehicle KL 36F 2871 Mahindra Imperio (L.M.V.Goods Carriage) with the opposite parties vide policy no 76250131180300009847 from 03.11.2018 to 02.11.2019. On 17.04.2019 the said vehicle met with an accident by hitting on the railing of the bridge on the side of the road. The accident happened because of the breakage of the tyre while running.The accident was intimated to the 2nd opposite party immediately and the surveyor appointed by the opposite parties visited the site and assessed the loss and thereafter the vehicle was transferred to T.V.S.Mahindra showroom, Edappalli at the cost of the complainant on 17.04.2019.Thereafter another surveyor assessed the loss and reported as constructive total loss. But later the opposite parties changed the assessment from constructive total loss to salvage settlement and had hidden this fact from the complainant. As per the report of the surveyor which showed that there was 76% constructive total loss but the opposite parties removed the claim from the constructive total loss and without knowing this the complainant signed all the papers brought by the opposite parties. Due to such unlawful acts of the opposite parties, the said vehicle had to sell for Rs.1,40,000/- whereas the actual value assessed by the surveyor as IDV Rs.5,75,000/-. The opposite parties had only paid Rs.2,92,000/- towards the insurance amount. The opposite parties are bound to give the amount as per the constructive total loss assessment prepared by the surveyor. The unfair act of the opposite parties in denying the said amount has caused heavy financial loss in paying the loan dues, by not selling the vehicle on time etc. and severe mental agony to the complainant. The opposite parties are bound to pay Rs.1,82,500/- along with Rs.1,00,000/- as compensation towards mental agony and hence the complaint is filed.
The opposite parties appeared on receipt of notice from this commission and filed joint version in which they have denied all the allegations in the complaint by contending that though they processed the claim initially, they repudiated the claim because the driver had no valid badge for driving a commercial LMV. The complainant approached the Honourable High Court and as per the direction of the High Court, another surveyor was appointed and since the vehicle was hypothecated to HDD Finance Ltd. The only possible settlement was that of salvage basis which is a kind of total loss. In such type of assessment the wreck will be retained with the insured. The wreck value is assessed by the surveyor by adopting the highest offer obtained from among three wreck buyers whose name are specified by the surveyor in his report. Out of these quotations, the biggest was Rs.2,80,000/-. The IDV of the vehicle was Rs.5,75,000/-. The surveyor’s assessment was Rs.4,41,088/- which is 76% of the IDV. As per the policy, if the repair basis loss exceeds 75% of the IDV, such kind of settlement cannot be done. So the wreck value of Rs.2,80,000/- and policy excess deductible is deducted from the IDV which came to be Rs.2,92,000/-and it was paid to the financier of the vehicle as per the instruction of the complainant. The wreck was with the complainant and he was free either to repair not. The complainant sold the vehicle but not for Rs.1,40,000/- but has not produced any proof regarding the sale price. The complainant had suppressed the payment of Rs.2,92,000/- by the opposite parties to the financier with ulterior motive.
The complainant has given notarised consent letter accepting a sum of Rs.2,92,000/- in full and final settlement on Net of salvage loss basis which is a kind of total loss. As per this letter he had given his consent for settlement on net of salvage loss basis for an amount of Rs.2,92,000/- retaining the wreck with him. Since the opposite party has acted according to the consent letter of the complainant, the complainant is stopped from alleging that he wanted more amount from the opposite party. The net of salvage basis is one type of total loss. No further amount is payable to the complainant. The complainant is not entitled to get the amounts of Rs.39,500/- and Rs.1,82,000/- as claimed. The complaint is liable to be dismissed.
The complainant has filed evidence affidavit along with Exhibits A1 to A11 and the opposite parties also filed affidavit in lieu of chief examination along with Exhibits B1 to B3.
We have given a thoughtful consideration on the pleadings and evidence on record and see that the points to be answered are:-
1. Whether there is any deficiency of service on the part of the opposite parties and if so what are the reliefs to be granted to the complainant?
- Answering the above points we see that the case of the complainant is that his vehicle been subjected to an accident in which the surveyor of the insurance company assessed total loss but gave only part of the amount by defrauding the complainant. The claim of the complainant is to get the IDV amount of the vehicle as the loss assessed is total loss. But according to the opposite party the loss assessed by the surveyor is only constructive total loss (salvage basis )with RC and hence the amount payable is only the amount after deducting the value of the salvage from the amount of total IDV and all other deductible amounts deducted.
- On an evaluation we find that Exhibit B1 and A4 are the same, which is the surveyor report in which the loss is assessed as constructive total loss basis(a) salvage loss basis:
Vehicle IDV - Rs. 5,75,000/- wreckage on its as is where is condition (with RC)- 2,80,000/-
Less Policy deductible - Rs.500
Total - 2,94,500/-
Thus the surveyor has made the assessment in a proper way. We do not find any discrepancy in the assessment of the surveyor. Though the loss assessed was in constructive total loss, as the scrap was left with the complainant himself, the opposite party had to deduct the value of the salvage and the policy deductible amount is deducted further. So we find that in total loss assessment the amount to be paid is the amount of IDV after deducting the policy excess and the wreck value if any. In case of constructive total loss- salvage loss is in as is where is condition. So he is at liberty to sell the salvage at any price along with RC. Moreover, the surveyor has made the deduction as per the quotations received regarding the salvage of the vehicle. In exhibits B2 to B2 (b), the highest bid is Rs.2,80,000/- The complainant’s financier has received the amount of Rs.2,93,000/- from the opposite party and finally on 28.05.2020 sold out the wreck for Rs.1,40,000/-. Exhibit B3 is the notarised consent letter executed by the complainant giving his consent to the amount of Rs.2,92,000/-. Exhibit B4 is the copy of the National register of E register of the Ministry for Road Transport and Highways which shows the RC status of the impugned vehicle as active. So it is inferred that the vehicle in dispute had been sold by the complainant and that is being used by somebody even recently.
So we do not find any deficiency in service on the part of the opposite parties in settling the claim as per the assessment.
Hence the complaint is dismissed.
Pronounced in the pen Commission on this the 13th day of April, 2023.
Smt.Bindhu.R, Member sd/-
Sri.Manulal.V.S, President sd/-
Sri.K.M.Anto, Member sd/-
Appendix
Exhibits marked from the side of the complainant
A1- Copy of the policy schedule cum certificate of insurance issued by the New India Assurance Co.Ltd.
A2- Copy of R.C.Book.
A3- Copy of motor claim form of The New India Assurance Co.Ltd.
A4- Copy of final survey report signed by Tom Jose, Surveyor, dated 20.06.2019.
A5- Vehicle sale agreement dated 28.05.2020.
A6- Original bill of Divine Road Assistance & Crane Service dated 29.07.2019.
A7- Copy of cash receipt dated 18.09.2019.
A8- Copy of loan recall notice dated 20.08.2019 issued by HDB financial services.
A9- Copy of legal notice dated 08.09.2020.
A10, A10 (a)- Postal receipts
A11, A11(a)- Postal acknowledgment cards.
Exhibits marked from the side of the opposite parties
B1- Final survey report signed by Tom Jose, Surveyor, dated 20.06.2019.
B2- Copy of email (quotation for purchase of accident vehicle) dated 20.06.2019 at 4.09 pm.
B2(a)- Copy of email (quotation for purchase of accident vehicle) dated 20.06.2019 at 3.06 pm.
B2(b)- Copy of email (quotation for purchase of accident vehicle) dated 21.05.2019 at 12.21 pm.
B3- Insured’s Consent Letter dated 08.07.2019.
B4- Copy of RC status of KL 36F 2874.
Sworn statement from the side of opposite parties.
DW1- Asha Rose Thomas, D/o Baby Thomas K, Chakkalackal House, Athirampuzha
Dw2- Tom Jose, S/o Joseph K.T, Kalappurayil House, Priya Nagar-144, Angamaly
By order
Sd/-
Assistant Registrar
