Tamil Nadu

North Chennai

CC/187/2016

L.Senthil Kumaran Proprietor - Complainant(s)

Versus

The United India insurance company Ltd - Opp.Party(s)

S.Renuka

01 Jun 2018

ORDER

 

                                                            Complaint presented on: 22.11.2016 

                                                                Order pronounced on: 01.06.2018 

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

FRIDAY THE 01^st  DAY OF JUNE 2018

 

C.C.NO.187/2016

 

Mr.L.Senthil Kumaran,

Proprietor of M/s. His Grace Agencies,

No.14/8, Krishnan Koil Street,

Chennai – 600 001.

 

                                                                                    ….. Complainant

 

..Vs..

 

The United India Insurance Company Limited,

Rep by its Manager,

No.19, Andiappa Gramani Street,

Royapuram, Chennai – 600 013.

.....Opposite Party

Date of complaint                                        : 16.12.2016

Counsel for Complainant                            : S.Renuka

Counsel for  Opposite Party                           : M/s.Nageswaran & Narichania

 

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties to pay the balance sum of Rs.6,66,972/- with 24% interest and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant is the owner of the lorry bearing registration No.TN 25 R- 5252. The said vehicle met with an accident on 13.06.2015 at 9.15 p.m at Vaniyampadi to Krishnagiri NH Road. The said lorry was badly damaged and entrusted for repair to the authorized dealer M/s TV Sundaram Iyengar & sons Private Limited. The vehicle was insured with the opposite party for the period 12.03.2015 to 11.03.2016. The insured declared value (IDV) of the vehicle in the policy is Rs.12,60,000/-. The service dealer charged Rs.10,99,616/- for repair  and the complainant paid the same. The opposite party after assessing through their surveyor had settled a claim of Rs.5,93,028/-.

          2. As per the policy condition the IDV shall be treated as market value without any depreciation for the total loss or constructive total loss or repair of the vehicle exceeds 75% of the IDV of the vehicle. The repairing cost of the vehicle is more than 75% of the IDV of the vehicle. The opposite party had settled only 50% of the actual repairing cost and they failed to comply the policy condition. The complainant approached the opposite party several times and also issued legal notice dated 03.08.2016 to the opposite party to comply his demand to pay the total loss value. However, the opposite party gave reply dated 04.10.2016 with baseless charges. The complainant suffered with loss to the tune of Rs.6,66,972/- with interest. Since the complainant is entitled for the IDV value, the complainant filed this complaint to direct the opposite parties to pay the balance sum of Rs.6,66,972/- with 24% interest and also to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of the complaint.

3. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          This opposite party admits that the complainant insured his vehicle with them and the IDV value of the vehicle was Rs.12,60,000/-. The surveyor assessed the loss and opined that the value of the damaged parts to the vehicle was Rs.5,96,482/- and based on that the said amount was settled as claim of the complainant. The contention that without any depreciation for the purpose of total loss or constructive loss or repair of the vehicle exceeds 75% is denied and erroneous. It is the right of the insurer to consider the claim on repair basis or total loss basis.

          4. The vehicle met with an accident was capable of being repaired and also repaired in a working condition and the same is running.  At no point of time the complainant approached the opposite parties to settle the claim on total loss basis. The total loss means the vehicle is not repairable and the constructive total loss means the vehicle can be repaired, but the repair cost will be more than the insured declared value. Since the surveyor recommended for repair basis settlement, the claim will not fall within the ambit of the constructive total loss or total loss. Hence this opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

 

 

5. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1 

          It is an admitted facts that the  complainant is the owner of the lorry as per Ex.A5, registration certificate bearing  No.TN 25 R -5252 and the said vehicle met with an accident on 13.06.2015 at 9.15 p.m at Vaniyampadi to Krishnagiri NH Road and the said lorry was badly damaged and entrusted for repair to the authorized dealer M/s TV Sundaram Iyengar & sons Private Limited and the vehicle was insured with the opposite party for the period 12.03.2015 to 11.03.2016 and the policy issued by the opposite party is marked as Ex.A1 and the  insured declared value (IDV) of the vehicle in the policy is Rs.12,60,000/- and the service dealer gave Ex.A2 invoice for  Rs.10,99,616/- for repair  and the complainant paid the same under Ex.A3 receipts to the service dealer and the opposite party after assessing through their surveyor had settled a claim of Rs.5,93,028/- to the complainant and the complainant issued Ex.A7 legal notice to settle the claim of IDV value and for which the opposite parties gave Ex.A8 reply to the complainant.

          7. According to the complainant he had spent an amount of Rs.10,99,616/- for repair less than the IDV value of the vehicle fixed by the opposite party and as per the terms and policy to determine the claim the IDV value shall be treated as market value throughout the policy period and without any further depreciation for the purpose of total loss or constructive total loss or repair of the vehicle exceeds 75% of the IDV value the claim shall be calculated and paid to the complainant.

 

          8. The opposite party would contend that the complainant has used the vehicle for commercial purpose  and therefore the complainant is not a Consumer as per the order of the National Commission reported in IV (2016) CPJ 67(NC) (MAHINDRA & MAHINDRA LTD. VS. SRI SAI INDUSTRIES & ORS.)  and further the vehicle is in repairable condition and based on the surveyor assessment and deducting 25% as depreciation  has up held by the National Commission in an order reported in I (2017) CPJ 507 (NC) (NATIONAL INSURANCE CO.LTD. & ANR. VS. JOHNY MEHTA) and therefore after allowing depreciation the opposite party settled the claim is correct and therefore prays to dismiss the complaint.

          9. The terms and conditions issued by the insurer provide that the IDV value shall be treated as market value and depreciation cannot be allowed in the case of total loss or constructive loss of cases.  In this case the repairer/ service provider himself gave estimate of Rs.10,99,616/- for repair.  The IDV value fixed by the insurer is Rs.12,60,000/-. The repair of the vehicle exceeds 75% of the IDV value i.e the complainant paid a sum of Rs.10,99,616/-  to the service repairer. Therefore, the damage to the vehicle is held as constructive total loss. In that case, the complainant is entitled for the entire amount by way of claim paid by him for repair charges. This conclusion also supported by the order of the National Commission passed in FA No. A/10/272 dated 14.09.2010. In view of the same and the case referred by the opposite party reported in I (2017) CPJ 507 (NC) is not case total loss and therefore this order is not applicable to this case.

          10. The complainant is a proprietary Consent. Ex.A9 is the proof that the complainant is a proprietary concern. No doubt the vehicle is used for commercial purpose. Whereas, the complainant had paid premium to the opposite party and agreed to provide service to the vehicle by way of issuing policy to the complainant. The opposite party agreed to provide service through policy has no connection to provide service for the business of the complainant directly. Further the order of the National Commission referred by the opposite party reported in IV (2016) CPJ 76 (NC), they simply held commercial transaction. The facts in that case have not been known to us. Whereas  in the case in hand  the opposite parties agreed to provide service is something different and not connected with commercial transaction and therefore to provide service and hence the above referred order of the National Commission is not applicable to the  facts of the case in hand and hence it is held that the complainant is Consumer.

          11. As we discussed above, the complainant is entitled for the repair charges paid by him, the opposite party without honouring the entire expenses by way of claim and allowed only a part amount of Rs.5,93,028/- is deficiency on his part and therefore it is held that the opposite party has committed deficiency in service.

12. POINT NO:2

          The complainant spent a sum of Rs.10,99,616/- towards repair for his vehicle and the said amount paid by him through Ex.A3 receipt and the complainant is entitled for the entire expenses as held in point No.1. However, the opposite party partly allowed only a sum of Rs.5,93,028/-.to the complainant and hence the complainant is entitled for the balance sum of Rs.5,06,588/- towards repairing of the vehicle with 9% interest from the date of the complaint to till the date of this order. Having we have ordered interest for the claim amount, we are not inclined to order compensation amount to the complainant and however we further order the complainant is entitled for a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite party is   ordered to pay a sum of Rs.5,06,588/- (Rupees five lakhs six thousand five hundred and eighty eight only)  towards repairing charges with 9% interest from the date of presenting the complaint to till the date of this order to the Complainant  and also to pay  a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.  In respect of other relief the complaint is dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said repairing charges amount shall carry 9% interest till the date of the payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 1^st day of June 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 12.03.2015                   Insurance Policy

              to 11.03.2016

 

Ex.A2 dated 21.08.2015                   Credit Invoice bills given by TV Sundaram

                                                     Iyengar & Sons Pvt. Ltd for a total sum of

                                                     Rs.10,99,616/-

 

Ex.A3 dated 21.08.2015                   Payment Receipts for a total sum of Rs.10,99,616/-

                                                    issued by TV Sundaram Iyengar & Sons Pvt Ltd.

 

Ex.A4 dated 16.06.2015                   Towing charges Receipt issued by Swamy Crane

                                                    Service

 

Ex.A5 dated 15.07.2010                   Certificate of Registration

Ex.A6 dated 15.06.2015                   Inspection Report of Motor vehicle involved in

                                                    Accident

 

Ex.A7 dated 03.08.2016                   Legal Notice

 

Ex.A8 dated 04.10.2016                   Reply Notice

 

Ex.A9 dated 02.05.2007                   Petrol/Diesel Dealer Agreement

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                …….. NIL ……

 

 

 

MEMBER – I                                                               PRESIDENT