A Rajesh, President.
The case of the complainant is as follows:
The complainant’s vehicle bearing Regn. No. KL-06D7272 has been insured with the opposite parties for an amount of Rs. 5,56,405/-for the period from 17-02-2007 to 16-02-2008. During the currency period, the vehicle met with an accident on 09-02-2008 and sustained damages. The authorized service centre of the manufacturer in Madurai had estimated the value of repairs at Rs. 6,03,025/-. Subsequently at the instance of the 2nd opposite party the car was brought to RF motors, Ernakulam. They assessed the damage at Rs. 7,84,369.50 for repairing the car. As per the terms of the policy the vehicle has to be treated as total damage and the insured declared value has to be given to the complainant. Thereafter the complainant received an amount of Rs. 3,40,000/- from the opposite parties and Rs. 75,000/- towards salvage. Thus the complainant is before us seeking direction against the opposite parties to pay the following amounts.
i. further insurance claim Rs. 1,41,415/-
ii. towing charge of Rs. 19,500/-
iii. labour charges of Rs. 9,000/-
iv. surveyor’s fees of Rs. 5,155/- compensation and costs.
2. Version of the opposite parties
The opposite parties are only liable to compensate the complainant only according to the terms and conditions of the insurance policy. The independent licensed surveyor assessed the liability of the insurance company on repair basis at Rs. 3.75 lakhs. The claim of the complainant was settled on the basis of the agreement arrived at between the complainant and the opposite parties for an amount of Rs. 3.4 lakhs in full and final settlement of the claim. The opposite parties are not liable to pay any further amount to the complainant. The opposite parties request to dismiss the complaint.
3. Power of attorney holder of the complainant was examined as PW1. Witnesses for the complainant were examined as PWs, 2 & 3. Exts. A1 to A13 were marked on the complainant’s side. The Witness for the opposite parties was examined as DW1. Exts. B1 to B5 were marked on their side. Heard the counsel for the parties.
4. The points that came up for consideration are.
i. Whether the complainant is entitled to get further insurance claim from the opposite parties?
ii. Whether the complainant is entitled to get towing charge labour charge as well as surveyor’s fees from the opposite parties?
iii. Compensation and costs if any
5. Points Nos. i&ii. The parties are in consensus on the following issues.
i. The complainant’s vehicle bearing Regn. No. KL-06D7272 was insured with the opposite parties from 17-02-2007 to 16-02-2008.
ii. The vehicle met with an accident on 09-02-2008 within the currency of policy.
iii. The surveyor assessed the damages at Rs. 4,22,011.54 evidenced by Ext. A7 survey report.
iv. The claim was settled between the complainant and the opposite party by Ext. B1 agreement for Rs. 3,40,000/-.
v.The complainant received the amount from the opposite parties on 17/10/2008 evidenced by Ext. B2
vi. The complainant sold the damaged car for Rs. 75,000/- by Ext. B5 agreement dated 15-10-2008.
6. According to the complainant the opposite parties ought to have treated the damage of the vehicle in total loss basis and is liable to pay the insured declared value of the vehicle. Admittedly the surveyer assessed the damage of the car at Rs.4,22,011.54 evidenced by Ext. A7 survey report. However subsequently the complainant settled the insurance claim by executing Ext. B1 agreement.
7. The Hon’ble Supreme Court in Sri. Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. and another (SC) (CP) 2009 CTJ P-1189 held that, insurance surveyor/surveyors are appointed by an insurance company under the provisions of the Insurance Act. Their reports are to be given due importance and there should be sufficient grounds for not agreeing with the assessment made by them”. In the instant case nothing is on record to repudiate the assessment of the surveyor. Though PW1 the power of attorney holder of the complainant averred that complainant is illiterate and not aware of the contents of Ext. B1 agreement, the complainant party to Ext. B1 has not mounted the box to substantiate his contentions. The complainant does not have a case that the agreement is void abinitio since the vitiating elements of contract like fraud, coercion and misrepresentation was there at the time of execution of Ext. B1 agreement. The insurance claim having been squarely settled between the parties without demur the complainant is estopped from raising a contention that he is entitled to got further insurance claim from the opposite parties. One can not approbate and reprobate at the same time evidently in this instance. In view of the above we are only to hold that the complainant is not entitled to get any further amount from the opposite parties.
8. In the result, the complaint is dismissed. We order so.
Pronounced in the open Forum on this the 30th day of April 2011.
