Karnataka

Belgaum

CC/306/2015

Sadanand M Pamdinni - Complainant(s)

Versus

The Oriental Insurance Company Ltd - Opp.Party(s)

N S Taragar

27 Dec 2016

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.302/2015

                       Date of filing: 22/06/2015

                                                                                                                 Date of disposal:27/12/2016

 

P R E S E N T :-

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT       -

Shri.Sadanand S/o Mallappa Pamdinni, Age: 62 Years, Occ: Legal Practitioner, R/o: N.M. Road, Chikodi, Dist.Belgaum, And also at “Neelakamal” Gandhi Nagar, Aajra Road, Gadhinglaj, Tq: Gadhinglaj, Dist.Kolahapur. .                          (Rep. by Sri.N.S.Taragar, Adv.)

- V/S -

 

OPPOSITE PARTY   -

The Oriental Insurance Company Ltd., Branch Office at Ashok Nagar, Nippani - 591237, Tq: Chikodi, Dist. Belagavi.                            (Rep. by Sri.M.T.Hegde, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “Op”) directed to settle the claim by paying an amount of Rs.1,95,422-40ps towards the charges of repairs and Rs.1,00,000/- towards compensation towards mental torture and agony and any other reliefs etc.,

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant is that, the complainant has purchased innova car bearing Reg.No.MH-09/DH-4000 in the year 2013 and insured with the OP insurance company and further on 03.09.2014 at about 3.45 p.m. the vehicle met with an accident with un-numbered Tum Tum vehicle and sustained damages. After the accident, the complainant has informed the OP through agent Ramesh Bosle, who in turn arranged to contact manager Shri.Kulkarni so also surveyor made phone to opponent company and requested to come and assess the damages caused to the vehicle and the situation of the accident. Though, the officials of the insurance company assured the complainant to visit the spot within a short time, but failed to come to the spot and advised the complainant to shift the car and further the complainant had to tow the said car near to Toyota Shodha Motors Pvt. Ltd., hardly 4 kilometer from the spot of the accident, at the advise of Agent, Manager and surveyor, the complainant did not filed the complaint to the Bagewadi Police Station and the police have visited the spot on the date of accident.

 

          Further, it is case of the complainant that, the vehicle was got repaired in the Toyota Shodha Motors Ltd., accordingly, the said servicing center has charged of Rs.1,95,422-40ps, towards the bill for having effected repairs to the vehicle. The estimated bill issued by Toyota Company was placed before the OP Company alongwith letter dtd:14.01.2015 requesting that, to settle the said bill since the vehicle was covered under the insurance policy, further the OP company instead of settling the said bill in its entirety and issued reply notice dtd:19.03.2015, there is a mention with regard to the deductions now sought to be deducted by the insurance company and informing that, the surveyor of the OP has assessed the repair charges at Rs.1,11,194/-. Out of this amount, the OP has made deductions of 25% towards Non-standard settlement, since no Police report and spot  survey to the extent of Rs.27,798/- and also deducted amount of Rs.2,000/- towards “excess” and Rs.1,396/- towards Salvage and agreed to settle the bill at Rs.79,000/- and asked the complainant to receive the said amount and issue a discharge voucher.  

 

          It is further case of the complainant that, the Insurance Policy is a package policy covering the risk of damages and further the OP Company did not make spot survey of the vehicle in time and therefore, he has no right to deduct anything from the repair bills issued by Authorized Service Centre and OP company furnishes all the details of the repairs, replacement of the parts etc., whereas the assessment done by the Surveyor of the OP Company only at Rs.1,11,194/- has no authenticity as compared to the bill issued by the Toyota servicing centre and OP company is liable to settle the policy claim by paying the repairs costs.  

 

          It is further also case of the complainant that, after receipt of the reply notice expressed his dissatisfaction and returned back the discharge voucher to the OP Company, making an endorsement of a note to accept the amount of Rs.79,000/- under protest on a condition that, the OP should make payment of the balance amount with cost interest @ 18% till realization. After return the discharge voucher back to the OP Company neither complied the request nor made any further correspondence, it shows that, there is a deficiency in service on the part of the OP, as it is against the principles of law. Hence, the complainant has constrained to file this complaint.

 

3.      After receipt of said notice to the Opponent, the Op has appeared through his Counsel and resisted the claim of the complainant is that, the contents of para 1 to 10 of the complaint are partly admitted and partly denied by OP and it is further OP contended that, after the incident, the complainant without informing to the police nor reporting to the OP lifted the vehicle and there is no evidence to show that, the said vehicle was damage and how it occurred, at least to substantiate the facts that, the spot photos would have been taken by the complainant to informed about the incident to the OP, but, the complainant did not do so for, on filing of the claim form on dtd:04.09.2014and after receipt of the claim notice from the complainant, the OP arranged a surveyor namely one Abhasaheb  K. Patil, he visited the Toyota Shodha Authorised Service Center and taken the photographs there only and after the repairs conducted final survey and submitted the report that, the net loss would be Rs.1,11,234/- after deducting excess of Rs.2,000/- and salvage of Rs.2,000/-.

 

          It is further case of the OP that, after receipt of the final survey report, the OP sent letter dtd:03.03.2015 and 19.03.2015 to the complainant to sign the discharge voucher towards full and final settlement of the claim for Rs.79,000/- (deducted 25% on Rs.1,11,234/- for no police report and spot survey, less excess Rs.2,000/- less salvage Rs.2,000/- net assessment Rs.79,000/-). Immediately, the complainant wrote a letter to the OP company and stated that, the letter dtd:19.03.2015 issued by the OP is nonsense correspondence and directed to make the payment of Rs.79,000/- under protest or will be liable for 18% interest on entire bill amount.

 

          It is further also case of the OP that, there is no deficiency of service on the part of OP that, the OP never denied the payment as per rules but, the complainant is not ready to accept the amount, and there is no repudiation of claim amount and further the complaint filed by the complainant there is no cause of action. On this count also the complaint of the complainant is liable to be rejected and there is no negligence or deficiency in service on the part of the OP and prayed for dismissal of the complaint.

 

 

4.       Both parties have filed their affidavit in support of their case, and on behalf of complainant has produced 09 documents which has marked as Ex.P-1 to Ex.P-9, for sake of our convenience we have marked P & R series. On behalf of the OP has also filed 11 documents and same are marked as Ex.R-1 to Ex.R-11 and both parties have filed their written argument. Heard the arguments on both sides.

 

 

Now, on the basis of these facts, the following points arise for our consideration:

 

1. Whether the complainant has proved that, there is deficiency of service on the part of the OP for not paying the claim amount?

 

 

2. What order?

 

 

5.       Our findings to the above points are as under:

 

                              

1. In the Affirmative.
2. As per the final order for the following:

 

 

:: R E A S O N S ::

 

6.      POINT NO:1:-  We have perused the pleadings of the parties and the evidence and documents placed on record of both parties and the arguments advanced, it is evident that, there is no dispute in respect of the ownership of the vehicle and subsisting insurance policy. The case of the complainant that, complainant has intimated about the said accident to the OP insurance company and submitted a letter dtd: 14.01.2015 requesting to settle the bill issued by the Toyota Authorized Service center estimate of repairs bill which is marked as Ex.P-2 towards the damaged of the said vehicle in accident, the vehicle has sustained damages to the tune of Rs.1,95,422-40ps which is quite evident from the estimation submitted by the complainant.  Inspite of submission of all the relevant documents for settlement of the claim of the complainant, the OP has send a letter enclosed with discharge voucher alongwith bank details and further OP sent a letter on dtd:19.03.2015 stating that, once again request the complainant to written the voucher duly discharged alongwith bank details to enable to OP Company to effect the transfer of complainant account to full and final of settlement of claim and further the case of the complainant is that, the vehicle was got repaired in the Toyota Shodha Motors Ltd., and charged of Rs.1,95,422-40ps, towards the bill for having effected repairs to the vehicle and requesting letter on dtd:14.01.2015 to settle the said bill, since the vehicle was covered under the insurance policy. The complainant claimed an amount of Rs.1,95,422-40ps as per estimation, for that proposition, the complainant has not produced the original bill towards expenses actual incurred and payment was made by cash/cheque, what was actual cost paid by complainant and even the complainant has not convince the Forum, why the Police complaint has been not registered though the complainant is a legal practitioner and he has not explained in respect of same and even the complainant not made effort to substantiate as alleged in the complaint regarding the claim of Rs.1,95,422-40ps and even the complainant has not substantiate to hold that, the complainant has spent Rs.1,95,442-40ps as claimed, therefore the complainant is not entitled to claim as stated in the complaint and same is not believable, as such the said bill is estimation. The said contentions are without provision of law and cogent documents to hold that, the complainant claim is justifiable.   Therefore in our views such contention has no merit and it is not acceptable in law.     Further the complainant has not tried to convince the Forum under what circumstances insurance company is liable to indemnify the insured to pay the estimation bill, the complainant has failed to substantiate the case as alleged in the complaint.   

 

The case of the OP is that, after the incident, the complainant without informing to the police nor reporting to the OP, lifted the vehicle and there is no evidence to show that, the said vehicle was damage and how it occurred, at least to substantiate the facts that, the spot photos would have been taken by the complainant to informed about the incident to the OP, but, the complainant did not do so for, on filing of the claim form on dtd:04.09.2014. Thereafter the OP arranged a surveyor namely one Abhasaheb  K. Patil, and visited the Toyota Shodha Authorised Service Center and taken the photographs there only and after the repairs conducted final survey and submitted that, the net loss would be Rs.1,11,234/- after deducting excess of Rs.2,000/- and salvage of Rs.2,000/-. After receipt of the final survey report,  the OP sent letter dtd:03.03.2015 and 19.03.2015 to the complainant to sign the discharge voucher towards full and final settlement of the claim for Rs.79,000/- by applying non standard base by deducted 25% on Rs.1,11,234/- for violation of terms and conditions of the policy i.e. no police report and spot survey  and net assessment is Rs.79,000/- as full and final settlement.  In order to prove this contention, the OP as not lead any corroborate evidence to hold that, the complainant is entitle on non-standard basis  and further the said contentions are without provision of law and cogent documents to hold that the OP assessment  is justifiable.   Therefore in our views such contention has no merit and it is not acceptable in law.     Further the OP has not tried to convince the Forum under what circumstances insurance company is liable to pay the Non standard basis to the insured, the OP has failed to substantiate the case as alleged in the written version and further also the OP has not established the case that, the complainant has give duly signed discharged voucher as alleged by the OP for that proposition neither the OP has analysis the same to give discharge voucher as full and final settlement. Therefore, the OP has insisting the complainant to give discharge voucher of Rs.79,000/- itself is deficiency of service for the reason that, there is no binding contention or there is no any terms and conditions contemplated in the policy bond. Therefore, in our consider view, the said contention alleged in the written version is not acceptable and it has no force in the said contentions.  More ever the complainant has paid the premium towards insurance and the duty of the insurer to indemnify the insured by way of settling the claim of the complainant. Looking to the facts and circumstances of the case, consequently with above observation we are of the consider opinion that, there is a deficiency of service on the part of OP, by insisting the complainant to endorse the voucher, it would be proper we award damage cost as per surveyor report after deducting the salvage and excess, it would be meets ends of justice and equity.  So, we award a damage cost of the vehicle is Rs.1,07,234/- (Rs.1,11,234 - Rs.4,000 salvage and excess). 

 

Now our considered opinion, we have no hesitation to hold that the insurance company is to be held liable to pay Rs.1,07,234/- as per surveyor report which is not disputed and challenge by the complainant. Hence we award of Rs.1,07,234/- towards damages to the vehicle, after deducted salvage and excess amount and the complainant is entitled for compensation of Rs.4,000/- towards mental agony and also Rs.1,000/- towards costs of the proceedings.  Accordingly, we answer Point No:1 in the Affirmative and proceed to pass the following:

 

O R D E R

 

For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is hereby allowed, partly with costs.

 

           The OP shall pay a sum of Rs.1,07,234/- to the complainant towards damages.

 

          The OP shall pay a sum of Rs.4,000/- towards mental agony and Rs.1,000/-towards costs of the proceedings.

 

          The OP is granted 8 weeks time for compliance of this order, failing to which the OP is liable to pay together with interest @ 9% p.a. from the date of complaint i.e. 22.06.2015 till its realization.  

 

 

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 27^th December -2016).

 

 

 

Sri A.G.Maldar, President

Smt. J.S. Kajagar,                Lady Member.

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