DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Civil Station, Palakkad – 678001, Kerala
Dated this the 27th day of February, 2009.
Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member
C.C.No.62/2006
Puduppariyaram Grama Panchayat, Puduppariyaram, Palakkad. Represented by its Special Grade Secretary - Complainant (By Adv.K.Balachandran) Vs
Oriental Insurance Co. Ltd., Shobha TSM Complex, Railway Station Road, Palakkad. - Opposite party (By Adv.P.M.Ramesan) O R D E R
By Smt.Seena.H, President
The brief facts of the complaint are as follows:
Complainant's jeep KL9 F458 (1998 Model) was insured with the opposite party on 16.7.1998 and policy was renewed from time to time. For the year 2001-2002 i.e. 27.7.2001 to 26.7.2002 the jeep was insured with the opposite party for its estimated value i.e. Rs.3,56,000/-. Jeep was with new upholstery comfortable seat, body covered with best quality of sheet, doors and curtain and other accessories were fixed. The battery and tyres were in good condition. The jeep was being used for essential purpose of President and Secretary and has got expert driver. So far no accident has occurred. Jeep ran 83302 kms only so far and the jeep was properly maintained. At the time of renewing the insurance policy i.e on 27.7.2001 the opposite party inspected the jeep and satisfied the conditions and also convinced its estimated value at Rs.3,56,000/- and insured the jeep for the same amount by accepting premium for Rs.3,56,000/-.
2. The jeep was stolen on 18.6.2002 night. The complainant filed complaint before the Hemambika Nagar police station and they registered the crime and this fact was intimated to the company on 19.6.2002 itself and also filed claim form before the opposite party on 22.6.2002 claiming insured amount i.e Rs.3,56,000/-. But the opposite party did
not settle the matter. When the complainant persuaded and threatened legal action then only opposite party intimated that as per their survey report, the surveyor valued market value as Rs.1,65,000/- and also stated that they would disburse only 75% of the amount and the balance would be disbursed only after producing non traceable certificate from the police. Immediately after getting this information complainant objected the valuation report and demanded the estimated value. Since the opposite party did not settle the matter complainant filed this petition. Usually the opposite party had to settle the matter within one month. Since the opposite party did not settle the matter within 3 months i.e reasonable time, the complainant is entitled to get interest at the rate of 12% from 22.9.2006 and further entitled to get damages with interest also at the above rate.
3. Opposite party has filed version disputing the claim made by complainant on each ground. It is admitted by the opposite party that the vehicle No.KL 9 F458 was insured with the opposite party at the relevant time. But the liability of the opposite party is subject to the terms and conditions of the policy. As per the conditions of the policy, in the case of theft of the vehicle, the insurer need to pay only the actual market value of the vehicle or the estimated value in the policy, whichever is lesser. It is denied by the opposite party that, the value of the jeep was considerably increased, the upholstery was changed into a comfortable and valuable one, covering sheet was replaced by best quality and doors were fixed. No accessories were fixed in the said jeep by the complainant. The opposite party has contented that, since the vehicle belonged to Panchayat, the matter will not come under the purview of Consumer Protection Act. Further it is also contended that, the complaint is barred by law of limitation, i.e the vehicle has been lost on 18.6.2002. In the ordinary course the complaint ought to have been filed within 2 years i.e 18.6.2004. But the same is filed long after that, so the complaint is to be dismissed on that ground alone. Further as per the conditions in the policy, any disputes between the parties are to be settled after referring the same to an arbitrator. On that ground also the complaint is not maintainable.
4. Evidence adduced consists of proof affidavit and Exts.A1 to A11 series and Ext.A12 marked on the side of complainant and proof affidavit and Exts.B1 to B6 marked on the side of opposite party. Surveyor was cross examined as DW1.
5. Points for consideration are,
1. Whether the complaint is maintainable? 2. Whether the complaint is barred by limitation? 3. Whether there is deficiency of service on the part of the opposite party? and 4. If so, what is the reliefs and cost?
5. Point No.1: Opposite party has raised a contention that as per the conditions of the policy if any disputes arises between the parties, it has to be settled by appointing an arbitrator under the Arbitration Act and hence the forum has no jurisdiction to entertain the complaint. As per Sec 3 of the Consumer Protection Act, the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence we hold the view that the complaint is maintainable before this forum.
6. Point No.2: According to the opposite party, cause of action for the complaint arose on 18/06/2002, the date on which theft of the vehicle happened. Complainant submits that by a series of letter correspondence between the complainant and opposite party, complainant was under the impression that opposite party will be settling the matters at the earliest. Finally as per Ext.A8 and Ext.A10, opposite party offered to settle for a lessor amount and part payment of that amount. So cause of action arose only on 09/01/2006, date of denial of the claim. We are also of the view that date of cause of action is not the date of occurrence of theft but the date of which claim was repudiated. As per Ext.A8, claim was partly denied on 9/01/2006. Hence complaint is filed within time.
7. Point No.3 & 4: The prime question for consideration in this case is whether the part repudiation of the claim of the complainant by the opposite party is justified or not?
8. There is no dispute with regard to the existence of the policy and theft of the vehicle. According to the complainant, opposite party estimated the value of the vehicle as Rs.3,56,000/- and accepted premium on that basis. So they have to pay the estimated value as stated in the insurance policy. The fact is evident from Ext.A1, the insurance policy. The contention of opposite party is that, the amount payable by them is subject to the terms and condition of the policy. As per the conditions of policy in case of theft of the vehicle, company is liable to pay the actual market value of the vehicle or the estimated value by the insurer, whichever is lesser. Two independent surveyors were appointed and they reported the marked value of the vehicle as Rs.1,65,000/-. Opposite party offered to pay the said
amount which the complainant refused to accept. Further in the year 2002 and before that, the insurance policy was based upon Insured's Estimated Value (IEV) of the vehicle. After 2003, the Insurance Tariff Committee has changed it to Insured's Declared Value (IDV). The vehicle will be having a fixed value and the same will be shown in the policy. Actual value will be fixed after assessing the depreciation.
9. It is evident from Ext.A1 that the estimated value of the vehicle was Rs.3,56,000/- and premium was accepted for that amount. The learned counsel for the opposite party has vehemently argued that in the year 2002 and before that insurance policy was based on insured's estimated value (IEV) of the vehicle and after 2003 on Insured”s Declared Value (IDV). At the juncture it is relevant to note that the theft of the vehicle occurred on 18/2/2002 and claim form was preferred on 22/6/2002 as is evident from Ext.A4 and proof affidavit of complainant. So as admitted by the opposite party, claim is to be based upon Insured's Estimated Value i.e Rs.3,56,000/-.
10. Another aspect of the case is that, as per the contention of the opposite party. complainant was insuring the vehicle for Rs.3,56,000/- every year and the opposite party has not examined the vehicle as to its value for insuring the same. We are of the view that having received the premium for Rs.3,56,000/-, opposite party cannot escape from liability stating flimsy reasons. Opposite party ought to have insisted the complainant to insure for a lesser amount.
11. Further opposite party has contented that vehicle was used by the Panchayat for all purposes and as it has a trailer attached to it and it is used for transporting goods also. Therefore the value of the vehicle has been considerably decreased. In National Insurance Co. Ltd. V. Nitinkhandelwal IV(2008) CPJ I(SC), Hon'ble Supreme Court has settled the position of law in the manner that in case of theft of vehicle, the breach of condition is not germane and the further nature of use of the vehicle should not be looked into.
12. In view of the above said discussion and in the light of the decision stated above, we are of the view that claim should be based up Insured's Estimated Value. However as the vehicle was used for about 4 years, depreciation of 40% has to be reduced. Complainant has to be compensated for a delay caused for the settlement of the claim.
13. In the result complaint allowed. Opposite party is directed to pay an amount of Rs.2,13,600/- (Rupees Two lakhs thirteen thousand and six hundred only) being the claim amount reducing depreciation together with 9% interest from 22/9/2002 to the date of complaint and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realisation.
14. Pronounced in the open court on this the 27th day of February, 2009. Sd/- Smt.Seena.H, President Sd/- Smt.Preetha.G.Nair, Member Sd/- Smt.Bhanumathi.A.K, Member Appendix Exhibits marked on the side of complainant Ext.A1 – Policy certificate (Original) Ext.A2 – Policy conditions Ext.A3 – Endorsement Ext.A4 – FIR dt.19.6.02 Ext.A5 – Letter from District Superintendent of Police dt.26.11.03 Ext.A6 – Letter dt.8.1.05 Ext.A7 – Letter from opposite party dt.23.4.03 Ext.A8 – Intimation from opposite party dt.9.1.06 Ext.A9 - Intimation from opposite party dt.15.2.06 Ext.A10 - Intimation from opposite party dt. 3.5.06 Ext.A11 (Series) – 47 in Nos. Copy of vouchers (subject to production of original) Ext.A12 – Extract of Log book Exhibits marked on the side of opposite party Ext.B1 – Policy certificate with condition of policy Ext.B2 – Valuation report dt.28.2.03 Ext.B3 – Valuation report dt.24.4.03
Ext.B4 – Letter from opposite party to complainant dt.9.1.06 Ext.B5 – Letter from opposite party to complainant dt.15.2.06 Ext.B6 – Letter dt.3.5.06 from opposite party to complainant.
......................Smt.Bhanumathi.A.K
......................Smt.Preetha.G.Nair
......................Smt.Seena.H | | 
