BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 128/2006 Filed on 20.04.2006

Dated : 30.06.2010

Complainant:

Suseelan, S/o K.M. Krishnan, Puthooram Veedu, T.C 30/815, Pettah, Thiruvananthapuram.

(By adv. Nirmala Velayudhan)

Opposite party :

The Branch Manager, New India Assurance Company, T.C 42/82, 2^nd Floor, Government Press Road, Thiruvananthapuram.

(By adv. Sreevaraham G. Satheesh)

This O.P having been heard on 30.04.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant is the owner of Ford Icon 1.8 Diesel 2000 model car, bearing registration No. KL-01 AA 865. The said car involved in an accident on 23.04.2005 at about 11:30 a.m near VJT Hall. When a KSRTC bus overtook another vehicle, the KSRTC bus which was driven in a rash and negligent way hit the front of the car, as a result of which the front right of the car was damaged. Since it was peak hours and since a procession was going on, the car was to be removed from the spot immediately as directed by the traffic police. The car was then taken to the authorized workshop for Ford vehicles at Enchakkal, Thiruvananthapuram. After being informed of the accident the licensed surveyor from the 1^st opposite party came to the authorized workshop, inspection was conducted and assessed the actual extent of loss. The opposite party then gave permission to the authorized workshop to start the repair work. They completed the repairs and gave a bill for Rs. 60,847/- vide receipt No. 689 dated 18.05.2005. As per insurance contract of the opposite party with the complainant, they are liable to pay the bill amount directly to the workshop. The opposite party was met in person by the complainant and handed over the original bill from workshop, but the complainant was asked to pay the bill to the workshop directly by him. The complainant was assured that the opposite party would be sending the bill amount to him immediately. But for reasons known only to them, the bill amount of Rs. 60,847/- has not yet been reimbursed to the complainant. On issuance of a registered notice by the complainant the opposite party sent reply intimating that in the absence of a GD abstract from the police regarding the accident, the amount could not be disbursed. The complainant submits that no such GD abstract is required in this particular case since the accident was immediately reported to the opposite party and their licensed surveyor came and inspected the vehicle and convinced of the accident and as per their permission repair was started and completed and bill for the repair work issued by the workshop to the complainant. There is inordinate delay and latches on the part of the opposite party in clearing the amount due to the complainant as per the insurance contract. Hence this complaint.

Opposite party, New India Assurance Co. Ltd. filed their version. Opposite party stated that the accident alleged to have occurred in a very important locality where adequate traffic police is deployed especially at the relevant time to control the vehicular traffic. Still the complainant failed to produce even the extract of a G.D entry at least under the caption of 'motor occurrence' to sustain the alleged accident. When there was an allegation of negligence of the vehicle came from the opposite side the said fact should have subjected to an investigation by the statutory agency. Moreover, the complainant had intimated the opposite party about the accident only on 02.05.2005 and submitted the claim form only after a lapse of 9 days. Meantime he could have notified the traffic police about the accident alleged to occur at 11.30 a.m on 23.04.2005. Instead the vehicle was taken to Kairali Ford Service Centre, Enchakkal more than 4 k.m away from the alleged place of occurrence, which cast serious doubt as to the cause of damages sustained to the vehicle. The non-feasance of the said legal obligation supervenes the settlement of claim as mutually agreed in the contract of indemnity, which is specifically stipulated in the policy of insurance. The independent surveyor deputed by the opposite party assessed the loss and liability at Rs. 19,621.34 and on the basis of it the claim was processed by the opposite party and requested the complainant to furnish at least the G.D extract or police report as the latter had stated in column No. 11 of the claim form that the duty police had noted down the accident in order to settle the claim. But owing to the non-co-operative attitude of the complainant the settlement of the claim was dragging. The opposite party never issued work order to Kairali Ford Service Centre as alleged in the complaint. The opposite party never asked the complainant to pay the bill and the receipt issued to the complainant by the Kerala Cars Pvt. Ltd for an exorbitant amount of Rs. 60,847/- is not binding upon the opposite party as there was no privity with the insurance company. The insurer can settle the claim only within the parameters of the policy conditions and does not enjoin unfettered power to settle all the claim as all the settlement of claim are subject to statutory auditing. The insurer on receipt of information deputed a surveyor on the very same day itself and assessed the loss as such there is no deficiency in its part and the said legal position has been settled years ago by the National Commission. Merely because the surveyor has assessed the loss would not necessarily imply that the claim is payable. The opening words of the survey report it is stated that “the surveyor is issuing the report without prejudice in respect of the cause, nature and extent of loss and subject to the terms and conditions of the insurance policy”. Moreover the surveyor could not say about the accident as he did not witness it. Even though the complainant could not mention about any witness who saw the accident or at least furnish the name of the police constable alleged to have noted down the accident as stated in the claim form which would have enabled that the claim can be settled on the basis of the claim form submitted as such there is no estoppel at all. Opposite party further submitted that there is absolutely no deficiency of service on the part of the opposite party undertaken to be performed in pursuance of contract of insurance between the complainant and the opposite party.

In this case both parties filed proof affidavits and both parties cross examined each other. From the side of complainant the workshop authority was examined as PW2. From the opposite party's side the surveyor was examined as DW2. Complainant filed 5 documents and opposite party filed 6 documents.

Points that arise for consideration are:-

1. Whether there is deficiency in service occurred from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- In this case there is no dispute regarding the validity and existence of insurance. The case of the complainant is that his car met with an accident and incurred damages. The complainant paid an amount of Rs. 60,847/- towards the repairing charge. According to the opposite party as per the assessment of the independent surveyor the actual loss is only Rs. 19,621.34. Opposite party stated that they were always ready and willing to pay that amount to the complainant if the complainant produce sufficient document before them as per policy conditions. According to the opposite party, to settle the claim of an accident FIR or G.D entry is to be produced, in this case the complainant failed to do so and that on that reason only the claim could not be settled by the opposite party. In this case the documents produced by the complainant were marked as Exts. P1 to P5. Ext. P1 is the copy of certificate of registration of the car in the name of the complainant. Ext. P2 is the invoice issued by the Kairali Ford Workshop for an amount of Rs. 6,57,000/-. Ext. P3 is the receipt issued by the workshop to the complainant for the payment of Rs. 60,817/-. Ext. P4 is the copy of certificate of insurance. Ext. P5 is the copy of reply issued by the opposite party to the complainant dated 07.02.2006. In that letter opposite party informed the complainant that they already processed the claim of the complainant on the basis of surveyor's assessment and in the absence of required document they are unable to release payment voucher to him. Hence they requested to furnish the copy of police report/G.D extract relating to the accident. In this case the complainant did not produce any document to prove the alleged accident. The main contention of the opposite party is that the complainant stated that the accident occurred on 23.04.2005, but the complainant had intimated the opposite party about the accident only on 02.05.2005 i.e; after the lapse of 9 days. And moreover they have failed to produce even the extract of a G.D entry at least under the caption of motor occurrence, to sustain the alleged accident. In order to get the claim it is essential. The opposite party immediately deputed an independent surveyor to assess the loss and the net liability was assessed at Rs. 19,621.34. The surveyor's report is marked as Ext. D2. As per this report the net liability is fixed as Rs. 19,621.34. The surveyor was examined as DW2. Ext. D3 is the settlement intimation voucher prepared by the opposite party in favour of the complainant for an amount of Rs. 19,303/-. Ext. D5 is the repair estimate prepared by the Kairali Ford Workshop for an amount of Rs. 49,710/-. In that estimate separately noted the labour charges agreed for Rs. 11,500/-. Ext. D6 is the invoice prepared by the Kairali for an amount of Rs. 60,847/-. The service manager who prepared the invoice was examined as PW2. At the time of cross examination he stated that “Accident h¥k« 10 items h¡±Y©h damage Bi¢¶¤¾¥¨l¼¤« Ext. D6- v AY¢v¨¸T¡· dk items-D« party-i¤¨T Y¡vdj¬« dj¢LX¢µ® lÙ¢ J¥T¤Yv beautify ¨Oà¡u ©lÙ¢i¡ണ് h¡×¢i¨Y¼® dsi¤¼¤.” He answered “AY¢¨c´¤s¢µ® Fc¢´® As¢i¢¿”. From this deposition it is evident that the complainant has also replaced the parts which were not damaged in the accident.

In this case the complainant did not take any steps to prove the incident. It is the duty of the complainant to intimate the accident immediately to the police authority and take steps to furnish the accident report to the insurance authorities. For that reason only they could not disburse the amount as per the surveyor's assessment. As per the Insurance Act the opposite party is liable to pay the amount as per the assessment of the surveyor. Insurance is a contract in which both parties are bound to binding its terms and conditions. In this case the surveyor admitted that the damages found in the vehicle are due to the alleged accident. Consumer Protection Act is a benevolent legislation. We are always with the consumers. On the basis of the surveyor's admission we admit the accident. As per the provisions of the Insurance Act the opposite party deputed the independent surveyor to assess the total loss and on the basis of the surveyor's report the opposite party was ready and willing to pay the amount, but due to the absence of incident report as per policy conditions the opposite party could not issue the amount to the complainant. From the above mentioned discussions we find that it is reasonable to pay the amount to the complainant as per the surveyor's report, since there is an occurrence of an accident and due to that accident the complainant's vehicle has been damaged. The vehicle was duly insured with the opposite party. In these circumstances we direct the opposite party even though there is violation of policy conditions from the side of the complainant, the opposite party shall pay the amount on the basis of surveyor's report to the complainant. We have gone through the surveyor's report and the deposition of the surveyor. We find that the report is a genuine one. In this case the total liability of the opposite party as per the survey report (Ext. D2) is Rs. 19,621.34. Hence in the interest of natural justice, the complaint is allowed.

In the result, the opposite party is directed to pay Rs. 19,621/- along with 9% annual interest from 20.04.2006 (date of complaint) till the date of realization. No costs or compensation awarded, since there has been no deficiency in service from the side of opposite party. Time for compliance one month from the date of receipt of the order. Thereafter 12% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 128/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - K. Suseelan

PW2 - Reji Joseph

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of R.C Book

P2 - Copy of invoice

P3 - Copy of receipt dated 18.05.2005

P4 - Copy of certificate of insurance.

P5 - Copy of reply issued by the opposite party to complainant

dated 07.02.2006.

III OPPOSITE PARTY'S WITNESS :

DW1 - B. Krishnaprasad.

DW2 - V. Murali

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Accident claim intimation.

D2 - Motor Survey Report (Final) private and confidential dated 02.06.2005.

D3 - Copy of settlement intimation voucher prepared by the opposite party.

D4 - Motor survey report(Re-inspection) private and confidential

D5 - Repair estimate dated 02.05.2005

D6 - Invoice dated 04.05.2005

PRESIDENT