BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 33/1998 Filed on 20..01..1998

Dated: 15..06..2010

Complainant:

Jessie Jacob, T.C.14/1733, Vazhuthacaud, Thiruvananthapuram – 695 013.

(By Adv. K.A. Asharaf)

Opposite party:

The Oriental Insurance Company Ltd., Aristo Junction, Ramakrishna Building, East Thampanoor, Thiruvananthapuram.

(By Adv. G.S Kalkura)

This O.P having been heard on 30..12..2009, the Forum on 15..06..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant is the owner of tourist bus bearing Reg. No.KL 01-F-1551, that the vehicle was insured with the opposite party vide policy certificate No.1996/6454 dated 31/3/1996 and total insurance premium was Rs.18,956/-, that the above said vehicle met with an accident on 21/01/1997 at Madurai, that at the time of accident the policy was valid and enforceable against the opposite party, that complainant immediately reported the fact of the accident to the opposite party and submitted estimated expenditure to the tune of Rs.1,10,500/-, that the estimate was obtained from an authorised reputed workshop, that opposite party deputed a surveyor to assess the damage who came to the conclusion that the aforesaid expenditure of Rs. 1,10,500/- was reasonable, that on completion of the entire work complainant submitted a claim to the opposite party and surveyor again inspected the vehicle and came to a finding that entire work as authorised by the surveyor was done to his satisfaction, that the claim was submitted with original bills of goods purchased for the parts and for labour charges paid to the workshop mechanics. The total amount of expenditure incurred by the complainant is Rs. 84,405.32 towards purchase of materials and Rs. 27,920/- towards labour charges. The total amount of expenditure would come to Rs. 1,03,884.32, opposite party rejected the genuine claim submitted by the complainant and sent a letter on 25/8/1997 by registered post allowing only an amount of Rs. 29,230/- and requested the complainant to sign and discharge the voucher sent by the opposite party to make the payment of the amount to the complainant. There is total deficiency of service on the part of opposite party. Hence this complaint to direct opposite party to pay an amount of Rs. 1,03,884.32 towards damages to the complainant along with cost of the proceedings.

2. Opposite party filed version contending that complainant has no bonafides in instituting the complaint, that complainant has suppressed the material facts, that complainant who is bound to comply the terms and conditions of the policy, and that the complaint is barred by principles of estoppel, acquisence and waiver. It is submitted by opposite parties that on 24/1/1997 the complainant informed the opposite party that her vehicle met with an accident and the opposite party immediately issued a claim form to the complainant, complainant submitted the claim form on 24/1/1997, that on receipt of the claim form opposite party deputed a qualified and independent surveyor to assess and report the loss sustained to the complainant's vehicle, that surveyor inspected the vehicle and assessed the extent of loss inclusive of labour charges as Rs.31,405.00, that thereafter complainant informed the opposite party that the vehicle has been repaired on which opposite party once again deputed the surveyor to re-inspect the works carried out by the complainant. Surveyor submitted his report on 28/5/1997, that the opposite party prepared to settle the claim for a total amount of Rs.29,230/- towards full and final settlement of the claim. Opposite party issued a discharge voucher to be duly signed and discharged by the complainant so as to send the amount. Subsequently the complainant issued a letter dated NIL requesting the opposite party to reconsider the assessed amount and pay the amount claimed by her. In response to the said letter opposite party issued a reply dated 25/8/1997 informing the complainant that the amount of her claim has been arrived at, as per the policy conditions and as assessed by the independent surveyor. It is further informed that a sum of Rs.9,000/- is allowed towards labour charges as against an estimate of Rs. 61,120/- only after getting consent of the complainant's representative during the discussion with him. The mode of depreciation assessed by the complainant is incorrect and not in consonance with the loss assessed by the surveyor, that the opposite party is liable to pay only a sum of Rs.29,230/-. Hence opposite party prayed for dismissal of the complaint with compensatory cost.

3. The points that arise for consideration are:

1. Whether the complainant is entitled to make any claim in view of the discharge receipt executed in full and final settlement of all claims?

    

2. Whether the claim of the complainant is allowable?

    

3. Whether there is deficiency in service on the part of the opposite parties?

    

4. Whether the complainant is entitled to cost of the proceedings, If so, at what amount?

In support of the claim, complainant has filed proof affidavit as PW1 in lieu of chief examination and has marked Exts. P1 to P9. PW1 has been cross examined by opposite party. In rebuttal, opposite party has filed proof affidavit as DW1 and has marked Exts. D1 to D14. DW1 has been cross examined by the complainant. On behalf of opposite party, one witness (Surveyor) has been examined as DW2. DW2 has been cross examined by the complainant.

4. Points (i) to (iv): Admittedly, complainant's vehicle bearing Registration No. KL 01-F-1551 was insured with the opposite party Insurance Company under comprehensive Insurance policy issued by the opposite party and the policy was valid for the period from 31/3/1996 to 30/3/1997, and the vehicle insured was involved in an accident on 21/1/97 at Madurai and the same was reported to the opposite party and a Surveyor was deputed by opposite party to assess the damage caused to the vehicle in the accident, and the complainant was authorised to do the work at the workshop M/s. Thankom Motors works, Thaliyal, Karamana. It has been the case of the complainant that on completion of the entire work, complainant submitted a claim with bills to the opposite party and Surveyor again inspected the vehicle and came to a finding that entire work as authorised by the Surveyor of the opposite party was done to his satisfaction. It has also been the case of the complainant that he had incurred an amount of Rs. 84,405.32 towards purchase of materials and Rs.27,920/- towards labour charges for the entire work done by the mechanics, thereby the total amount of expenditure incurred by him was of Rs. 1,03,884.32. It has also been the case of the complainant that opposite party rejected the claim and sent a letter on 25/8/1997 by registered post allowing only an amount of Rs.29,230/- and requested the complainant to sign and discharge the voucher to make the payment of the said amount to the complainant. There is no point in dispute that opposite party had issued a discharge voucher to be duly signed and discharged by the complainant. It has been contended by the opposite party that complainant's representative received the aforesaid voucher, and subsequently complainant issued a letter dated Nil requesting to opposite party to reconsider the assessed amount and pay the amount claimed by her, that in response to the said letter the opposite party issued a reply dated 25/8/97 informing her that the amount of claim payable to her has been arrived at as per policy conditions and as assessed by the Independent Surveyor. It is the say of the opposite party that a sum of Rs. 9,000/- towards labour charges as against an estimate of Rs.61,120/- was allowed after getting consent of the complainant's representative/repairer during discussion with him. In his cross examination, the Power of Attorney Holder of the complainant (PW1) has admitted that Surveyor had inspected the vehicle before the repairing the vehicle and re-inspected the vehicle after the repair by the workshop authority. It is to be noted that nowhere in the complaint is it seen averred that the Surveyor has not reported the damage or not reported correctly the amount payable to her under the policy for the damage sustained by the vehicle in the accident. PW1 admitted that neither the opposite party nor the Surveyor has any enmity towards the complainant. It is the case of the opposite party that M/s. Thankom Motors, the repairer agreed to carry out the repair for Rs. 9,000/- and parts to be replaced are only the parts against which tick marks are put in Ext. D2 estimate. Surveyor has been examined as DW1, who gave evidence in support of the opposite party. Though DW2 has been cross examined by the complainant, nothing was brought out from him to show that the repairer has not agreed to carry out the repair for Rs. 9,000/- and that the damage reported by the Surveyor is not true. In his cross examination DW2 has deposed that, the repairer had signed in Ext. D2 estimate at the time of agreement, agreeing to carry out the repair for Rs. 9,000/-. There is no case on the part of the complainant that repairer has not agreed to carry out the repair works for Rs. 9,000/-. Ext. D6 is the photocopy of the AMVI's report who had noted the damage sustained by the vehicle in the accident after inspecting the vehicle involved in the accident and PW1 admitted that damage sustained in the accident noted in Ext. D6 is correct. Ext. D11 is the Surveyor Report. Though DW2 Surveyor has been cross examined by the complainant, nothing was brought out from him to discard Ext. D11 Report. Ext. D11 report clearly disproved the assertion made by the complainant in the complaint that on assessment of damage by the Surveyor he came to the conclusion that aforesaid expenditure of Rs.1,10,500/- involved for repairing the vehicle and replacement of spares was reasonable. It could be seen from Ext. D11 that liability of the Insurance Company assessed by the Surveyor is only Rs. 31,605/- being the amount payable by it for repairing the vehicle etc. Ext. D12 is the re-inspection report of the Surveyor. As per Ext. D12, it is seen that the Surveyor has inspected all the parts recommended by him and noticed that all the parts were changed with new one. It is pertinent to point out that the work estimate (Ext. D2) was prepared by M/s. Thankom Motor Works, in Ext. D2 repairer is seen signed and tick marks are put against some of the spare parts. Ext. P3 is the photocopy of Ext. D2. As per Ext. D2 the material required for repairing and labour charges for dismantling the damaged portion and setting right with new fittings. The very case of the opposite party is that the aforesaid Thankom Motors agreed to carry out the repair for Rs. 9,000/- and parts to be replaced are only the parts against which tick marks are put in Ext. D2 estimate. The Surveyor DW2 gave evidence in support of the opposite party. Though DW2 has been cross examined by the complainant, no suggestion was put to him that liability of the opposite party assessed by him is not correct. No suggestion was put to him in cross examination that the facts stated by him in Ext. D12 are not correct. Complainant has not examined the repairer to challenge the deposition of DW2 especially with regard to materials and labour charges approved by DW2. Complainant failed to adduce evidence to show that TV/VCR were damaged in the accident. It is well settled that Surveyor's report is an important document and unless and until, cogent material and alternative assessment from the side of the opponent, the same cannot be legally disputed. In this case, there is nothing on record from the side of the complainant to controvert the Surveyor report. Hence we accept Surveyor Report as genuine and correct. As per Surveyor Report, net liability assessed is Rs. 31,605/-. Ext. D9 is voucher for Rs. 29,230/-. As per Ext. D9 the discharge voucher is seen signed by the Manager, South Indian Bank Ltd., Chalai Branch. In his cross examination DW1 has deposed that the cheque for Rs. 29,230/- was sent to the bank as bank is the financier. In re-examination of DW1, he has deposed that the representative of the insured signed in Ext. P9. It is further deposed by DW1 that it was on the request of the financier of the vehicle the settled claim amount was sent to the bank. After re-examination of DW1, when complainant cross examined him with permission of the court, DW1 had deposed that though cheque was written in the banker's name, the same was not sent so far. It is pertinent to point out that complainant has never denied that the aforesaid bank had not financed for vehicle nor had she hypothecated the said vehicle to the said Bank. If the bank is the financier, till the termination of agreement bank will be the owner of the vehicle. No suggestion was put to DW1 during cross examination to show that bank has no right to receive the said amount. In view of the above discussion, we find bank has right to receive the said amount, and since the complainant was filed within reasonable time from the date of execution of the discharge receipt in full and final settlement, complainant is entitled to make further claim; complainant is entitled to get Rs. 31,605/- as assessed by the Surveyor in his Ext. D11 report.

In the result, complaint is partly allowed. Opposite party is directed to pay Rs. 2,375/- with 9% interest thereon along with cost of Rs.2,000/- in addition to the settled claim amount of Rs. 29,230/-.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of June, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No.33/1998

APPENDIX

I. Complainant's witness:

PW1 : Jacob

II. Complainant's documents:

P1 : Copy of certificate of insurance

P2 : Copy of policy

P3 : Copy of estimate

P4 : Copy of invoice

P5 : “ letter addressed to opposite party

P6 : “ bill of the labour charges

P7 : “ letter addressed to opposite party

P8 : Receipt of 'Not Insured'

P9 : Discharge voucher

III. Opposite party's witness:

DW1 : Rajan

DW2 : Vijayakumaran Nair

IV. Opposite party's documents:

D1 : Original Motor Claim Forms

D2 : Original Estimate

D3 : Copy of letter addressed to opposite party

D4 : “ registered letter dated 25/8/1997

D5 : Acknowledgment card

D6 : Copy of Form C.F.X

D7 : Original quotation

D8 : Original policy

D9 : Original discharge voucher

D10 : Motor Security Form

D11 : Assessment Sheet

D12 : Re-Inspection Report

D13 : Photographs & negatives

D14 : “ “

PRESIDENT