IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of February, 2014.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C. No. 107/2013 (Filed on 14.08.2013)
Between:
T.K. Prasad,
Thompil Puthenpurayil,
Manjadi P.O., Thiruvalla,
Pin – 689 105. … Complainant.
(By Adv. R. Gopikrishnan)
And:
The Oriental Insurance Co. Ltd.,
Branch Office,
Rajeswari Complex, Perunna,
Changanassery P.O.,
Pin – 686 101, represented by
its Branch Manager. … Opposite party.
(By Adv. P.D. Varghese)
ORDER
Sri. Jacob Stephen (President):
Complainant has approached this Forum for getting a relief from the Forum against the opposite party.
2. Brief facts of the complainant’s case is as follows: The complainant is the registered owner of a service bus bearing register No. KL-03H-4737 and the said bus is insured with the opposite party for a period from 25.01.2011 to 24.01.2012. While so on 20.04.2011 at about 6 a.m. it got fire due to short circuit while it was parking at the premises of H.P. petrol pump near to the old KSRTC Bus Station, Thiruvalla. The Fire Force came to the spot and extinguished the fire for avoiding further destruction at the site. In the fire, the bus was completely damaged. After the incident, the complainant took the estimate through Jaicobs Engineers, Vakathanam. Thereafter, the complainant intimated the matter to the opposite party who deputed their surveyors for assessing the loss. After assessing the loss, through their suveyors opposite party directed the complainant to repair the bus and made it available for service. But due to the extensive damages of the bus, it was not feasible for repairing and operating it as a service bus. This fact was also intimated to the opposite party. But opposite party has not done anything positively for settling the claim within time. Since the said bus is a service bus, if its permit continues without operating, the complainant is liable to pay the tax and other statutory payments to the government. This matter was also intimated to the opposite party and requested to settle the matter at the earliest. But opposite party’s stand was to repair the bus and they issued a notice to the complainant on 16.08.2011 with that effect. Since opposite party’s direction is not feasible, the complainant dismantled the bus as scrap on 10.08.2011 with the permission of Regional Transport Office, Pathanamthitta. The complainant was compelled to do so on the reason that, if otherwise, the complainant is liable to pay the tax and other statutory payments to the government without operating the service. Thereafter also, opposite parties directed the complainant to repair the bus vide their letter dated 02.01.2012. Since the complainant had a valid policy with the opposite party, they are liable to indemnify the loss of the complainant. But they are not prepared to consider the special circumstances of this case and they have not settled the claim so far, by saying untenable technical grounds. The non-settlement of the complainant’s claim by the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and they are liable to the complainant for the same. Hence this complaint for the realization of Rs. 2 lakhs, the loss caused to the complainant along with compensation of Rs.50,000/- and 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 complainant’s claim of the loss. According to them, on getting the claim along with the estimate of Jaicobs Engineers from the complainant, they deputed the surveyor Sri. Abraham Manak who inspected the vehicle on 28.04.2011 and submitted his spot survey report. Threafter, another surveyor Sri. V.N. Sivan Pillai was deputed for a detailed survey report and he also submitted the report dated 05.06.2011 assessing the damages in detail. He assessed the loss on repair loss basis, total loss basis/constructive total loss basis and on cash loss basis. The total amount calculated on repair basis come to Rs. 1,04,872/-. Total loss basis/CTL comes to Rs. 89,000/- and the cash loss basis amount is calculated as Rs. 73,662/-. As per the terms and conditions of the policy, the only mode of settlement available to the opposite party is repair loss basis. Therefore, opposite party’s directed the complainant to repair the bus on repair loss basis. But the complainant was reluctant to do so and expressed his willingness to settle the claim on any other basis other than repair basis. But the opposite party could not settle the claim as requested by the complainant as the terms and conditions of the policy does not allow the opposite party to do so. So opposite party sent 2 registered letters to the complainant for carrying out the repair works. But the complainant has not complied the directions of the opposite party or there was no response from the complainant for the letters. This being the facts, all other averments in the complaint is false and hence there is no deficiency in service from their part. 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 deposition of PW1, DW1 and Exts. A1 to A7 and Exts. B1 and B2. After closure of evidence, both sides were heard.
6. The Point: The allegations of the complainant is that the service bus owned by him was totally damaged due to the fire occurred on 20.04.2011. The said bus has valid insurance on the date of the incident. The complainant as well as the opposite party has complied all formalities which are required for settling the claim. After considering the surveyor’s report and the complainant’s claim, opposite party directed the complainant to repair the vehicle on repair loss basis as per the assessment made by their surveyor. But in the nature of the damages of the vehicle, complainant informed opposite party about the difficulties in the repair of the vehicle and requested for settling the claim on any other basis. But opposite party is not amenable for the request of the complainant and insisted the complainant to repair the vehicle. Since the repairing of the vehicle is not feasible and if the vehicle is kept without settling the claim, complainant has to pay the tax and other statutory payments to the government without operating its service. So with the permission of transport authorities, complainant dismantled the bus as scrap and informed it to the opposite party. Even after the dismantling also, opposite party was reluctant to settle the claim by saying that the assessed repairing cost does not exceeded 75% of the Insured’s Declared Value (IDV). According to the complainant, opposite party did not considered the circumstances of the case or the opinion of their surveyor that the repair loss settlement is not advisable and the assessment was made on the basis of the external visible damages and the surveyors recommendation that the claim can be settled on payment of Rs.30,000/- as per the willingness of the complaint. Therefore, the non-settlement of the complainant’s claim by the opposite party is a clear deficiency in service and they are liable to the complainant.
7. In order to prove the case o the complainant, complainant filed a proof affidavit in lieu of his chief examination along with 7 documents. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced are marked as Exts. A1 to A7. Ext. A1 is the copy of the Fire Occurrence Report in respect of the fire incident. Ext. A2 is the copy of FIR in respect of the fire occurrence. Ext. A3 is the copy of the estimate prepared by Jaicob Engineers. Ext. A4 is the copy of letter dated 16.08.2011 issued by the opposite party in the name of the complainant. Ext. A5 is the copy of another letter dated 02.0.1.2011 issued by the opposite party in the name of the complainant. Ext. A6 is the copy of letter dated 05.09.2011 issued by the Regional Transport Officer, Pathanamthitta to the Regional Transport Officer, Thiruvalla calling his report regarding the genuineness of dismantle of the bus. Ext. A7 is the copy of the insurance certificate-cum-policy schedule issued by the opposite party in respect of the bus in question.
8. On the other hand, the contention of the opposite party is that on getting the information and on getting the claim form from the complainant, they deputed their surveyors for assessing the loss of the vehicle for processing the complainant’s claim. The surveyors filed their preliminary and final survey reports in which the surveyors assessed the loss on repair loss basis, total loss basis/CTL and cash loss basis. Considering the assessments made by the surveyors, opposite party accepted the repair loss basis and advised the complainant to repair the vehicle. But the complainant was not prepared to repair the vehicle by saying that repairs are not feasible due to the extensive damages of the bus and requested for settling the claim on any other basis other than repair basis. But since the total retrieval cost does not exceed 75%, they are not in a position to settle the claim as requested by the complainant and they again requested the complainant to repair the vehicle. But he did not repaired the bus in spite of their direction. So according to the opposite party, the non-settlement of the complainant’s claim is due to the non-co-operative attitude of the complainant and hence they have not committed any deficiency in service.
9. In order to prove the case of the opposite party, the Administrative Officer of the opposite party was examined as DW1 and the surveyor’s report produced by him is marked as Ext. B1. Apart from Ext. B1, the policy condition in Ext. A7 showing that the settlement of the claim on total loss basis will be allowed only when the total repair costs assessed is more than 75% of the Insured’s Declared Value (IDV) shown in Ext. A7 is marked as Ext. B2.
10. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the only dispute between the parties is with regard to the mode of settlement. According to the complainant, in the nature and circumstances of the damages, repair loss basis is not feasible whereas the stand of the opposite party is that the repair loss basis is the only mode that can be adopted in this case in the nature and circumstances of the damage and on the basis of the survey report.
11. But on a perusal of Ext. B1 survey report, it is seen that the assessment made is on the basis of the visible external damages and there will be every chance for increasing the damages if the internal damages are assessed. It is further stated in the survey report that repair loss basis is not advisable in this case and the complainant had expressed his willingness in writing to settle the claim for Rs.30,000/- on cash loss basis and therefore the surveyor had recommended for cash loss basis settlement of Rs.30,000/- retaining the wreck with the insured.
12. It is pertinent to note that the opposite party has not considered the opinions and the recommendations of their surveyor and the nature and extent of the damages and the circumstances under which the complainant dismantled the bus. Such a stand was taken by the opposite party only for disallowing the claim. Moreover, the mode of settlement recommended by the surveyor was more profitable to the opposite party as the said amount is the lowest amount assessed when compared to the amount of loss assessed in the other modes of settlement. The request for the said Rs.30,000/- made by the complainant which is recommended by the surveyor is also not allowed by the opposite party. The stand taken by the opposite party is on mere technical grounds and it is simply for disallowing the complainant’s claim. Insurance laws are enacted for the benefit of the policy holders. But the opposite party ignored it and taken a stand for disallowing a genuine claim. So the non-settlement of the complainant’s claim for the least amount of Rs.30,000/- cannot be justified and it is a clear deficiency in service from the part of the opposite party. Therefore, this complaint is allowable.
13. In the result, this complaint is allowed, thereby the opposite party is directed to pay an amount of Rs.30,000/- (Rupees Thirty thousand only) with 8% interest per annum from the date of filing of this complaint along with compensation of Rs.5,000/- (Rupees Five thousand only) and cost of Rs.2,000/- (Rupees Two thousand only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount ordered herein above with 10% interest per annum from today till the realization of the whole amount.
Pronounced in the Open Forum on this the 26th day of February, 2014.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : T.K. Prasad.
Exhibits marked on the side of the complainant:
A1 : Copy of the report from the Fire Force dated 20.04.2011.
A2 : Copy of the First Information Report No. 537/2011 dated
20.04.2011.
A3 : Copy of the estimate from Jaicob Engineers dated 25.04.2011.
A4 : Copy of the letter from the opposite party dated 16.08.2011.
A5 : Copy of the letter from the opposite party dated 02.01.2012.
A6 : Copy of letter dated 05.09.2011 issued by the Regional Transport
Officer, Pathanamthitta to the Regional Transport Officer,
Thiruvalla.
A7 : Copy of the insurance certificate-cum-policy schedule issued by
the opposite party to the complainant.
Witness examined on the side of the opposite party:
DW1 : S. Krishnamoorthy.
Exhibits marked on the side of the opposite party:
B1 : Copy of Motor Interim Survey Report dated 05.06.2011.
B2 : Relevant portion in Ext. A7 insurance certificate-cum-policy
schedule.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) T.K. Prasad, Thompil Puthenpurayil, Manjadi P.O.,
Thiruvalla, Pin – 689 105.
(2) Branch Manager, Oriental Insurance Co. Ltd., Branch Office,
Rajeswari Complex, Perunna, Changanassery P.O.,
Pin – 686 101.
(3) The Stock File.
