IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 27th day of February, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 60/2021 (Filed on 08/03/2021)
Complainant : Celine Kurian, W/o Prof.Kurian N.K
Neeliyara House, Padinjattinkara P.O
Kottayam.
(By Adv.Avaneesh V.N)
Vs
Opposite party : United India Insurance Company Ltd
Rep. by Divisional Manager
Divisional Office, Kulangara Towers
V.C.Road, Kacherithazham
Moovattupuzha, Ernakulam-686661.
(By Adv.P.G.Girija)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
The case of the complainant is as follows: The complainant purchased a Tata Hexa Car on 24-08-2017 and the same was insured with the opposite party vide policy no. 101100311P110334336 for a period from 20-10-2017 to 19-10-2018. The insurance was a Bumper to Bumper insurance and the IDV of the vehicle was Rs.15,00,000/-. On 02-05-2018, the said vehicle met with an accident at Pulluvazhy, Perumbavoor. The vehicle was in a total loss condition. After obtaining G.D. entry from the police station that vehicle was entrusted to the workshop of M.K. Motors, Kottayam for repair works. After repair, the workshop authorities issued a bill for Rs.8,79,787/- towards repair charges to the opposite party. But the opposite party partially rejected the claim and sanctioned only Rs.8,46,419/-. The opposite party partially rejected the claim of Rs.33,368/- without any basis. According to the complainant out of the amount of Rs.33,368/- he is entitled to Rs.29,962/- after deducting the amount of consumables and policy excess amount. Thus complainant is entitled to Rs.29,962/- with interest. It is further averred in the complaint that there was a deduction of salvage value for the damaged parts and nowhere in the policy stated that the salvage should be borne by the registered owner of the vehicle. According to the complainant the act of the opposite party amounts to deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant praying for an order to direct the opposite party to pay Rs.29,962/- with 12% along with Rs.10,000/- as compensation and Rs.10,000/- as litigation cost.
Upon notice opposite party appeared before the commission and filed version contending as follows:
The complainant’s vehicle bearing Reg no. KL-35-H-3135 was insured with the opposite party for a period from 20-10-2017 to 19-10-2018 vide a private car package policy. The total bill amount for the repair of the vehicle was Rs.8,79,787/- and the claim was approved for Rs.8,46,429/- based on the surveyor report. The surveyor assessed the labour charges as Rs.1,05,610/- against the estimated amount of Rs.1,07,000/- and the cost of parts to the tune of Rs.7,53,309/- against the estimated amount of Rs.8,21,565/-. The surveyor assessed the total loss as Rs.8,46,419.61/- after deducting Rs.2,000/- as policy excess and Rs.9,500/- as salvage value. The surveyor disallowed the parts worth Rs.21,867/- including the consumables and those which did not warrant replacement. Out of the claim amount of the complainant Rs.33,368/- was deducted as stated above. There is no deficiency in service on the part of the opposite party.
The complainant filed the proof affidavit and marked Exhibits A1 to A6 from the side of the complainant. M.K.Suresh kumar who is the Divisional Manager of the opposite party filed the proof affidavit and marked Exhibits B1 to B3. From the side of the opposite party. T.V.Babu who is the Surveyor of the opposite party examined as DW1 and Exhibit B3(a) is marked through the DW1.
On the evaluation of the complaint version and evidence on record, we would like to consider the following points.
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and costs?
Point number 1 and 2
It is an admitted fact that Complainant’s vehicle bearing Reg No. KL-35-H-3135 was insured with the opposite party vide policy no. 101100311P110334336 for a period from 20-10-2017 to 19-10-2018. On perusal of Exhibit A1 policy, we can see that the same was a private Car Package Policy and the insured declared value of the vehicle was Rs.15,00,000/. There is no dispute on the fact that the said vehicle was met with an accident on 02-05-2018, at Pulluvazhy, Perumbavoor. And the vehicle was entrusted to the workshop of M.K. Motors, Kottayam for repair works. Though the complainant has lodged a claim for an amount of Rs.8,79,787/- the opposite party allowed only to the tune of Rs.8,46,419/-.
According to the complainant, the partial rejection of the claim under a bumper-to-bumper policy amounts to a deficiency in service on the part of the opposite party. On perusal of Exhibit A2 repudiation letter, we can see that the opposite party disallowed the cost of parts worth Rs.21,867/- including the consumables. It is further admitted by the opposite party that they disallowed Rs.9,500/- as the value of the salvage which is retained by the complainant.
It is contended by the opposite party that they had disallowed the parts which do not warrant the replacement and some are disallowed as those are consumable items.
The main issue for consideration before us is whether the Petitioner is entitled to the full amount incurred towards repair charges paid to the Workshops authorized by the Insurance Company or for the amount assessed by the Surveyor.
A bare perusal of Exhibit A1 policy makes it crystal clear that the policy is covered under 'Nil Depreciation Cover'. As per 'Nil Depreciation, the Insurance Company is liable to indemnify the complainant for the full value of expenses incurred for replacement of damaged parts of the insured vehicle without application of depreciation thereon subject to deduction of excess of Rs. 2000 from the admissible claim amount.
On perusal of Exhibit B3(a) we can see that the surveyor did not make any deduction under the head of the depreciation. DW1 deposed before the commission that in his survey report he had not stated the reason for deducting the amount from the estimate.
In the case of Ankur Surana v. United India Insurance Co. Ltd., I (2013) CPJ 440 (NC), Hon'ble National Commission observed that "it is well established by now that the report of the surveyor is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the Surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/petitioner since the respondents/OPs had filed the surveyor's report as their evidence. “In Khatema Fibres Ltd. vs New India Assurance Company Ltd. Reported in 2021 (5) KLT 1130(SC) Hon’ble Apex Court has held as under 32’’.
It is true that even any inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law or which has been undertaken to be performed pursuant to a contract, will fall within the definition of the expression ‘deficiency’. But to come within the said parameter, the appellant should be able to establish (i) either that the Surveyor did not comply with the code of conduct in respect of his duties, responsibilities and other professional requirements as specified by the regulations made under the Act, in terms of Section 64UM(1A) of the Insurance Act, 1938, as it stood then; or (ii) that the insurer acted arbitrarily in rejecting the whole or a part of the Surveyor’s Report in exercise of the discretion available under the Proviso to section 64UM(2) of the Insurance Act, 1938.
A Consumer Forum which is primarily concerned with an allegation of deficiency in service cannot subject the surveyor’s report to forensic examination of its anatomy, just as a civil court could do. Once it is found that there was no inadequacy in the quality, nature and manner of performance of the duties and responsibilities of the surveyor, in a manner prescribed by the Regulations as to their code of conduct and once it is found that the report is not based on adhocism or vitiated by arbitrariness, then the jurisdiction of the Consumer Forum to go further would stop.”
Though the surveyor was cross-examined by the complainant nothing was elucidated to discredit his report. Moreover, the complainant did not adduce any evidence to show that the surveyor disallowed the cost of any parts which are to be replaced or repaired by the repairer. It is admitted by the complainant that he is only entitled to the cost of damaged parts and labour charges after deducting the policy excess and the cost of the consumables.
Keeping in view the peculiar facts and circumstances of the case, we are of the opinion that the complainant is failed to prove his case with cogent evidence and the complaint is liable to be dismissed. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 27th day of February, 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Private Car package policy of United India Insurance Company Limited.
A2- Copy of letter dated 29.11.2019 from United India Insurance Co.Ltd.
A3- Copy of letter to the Manager, United India Insurance Co.Ltd, dated 20.11.2019.
A4- Copy of legal notice dated 19.03.2020
A5- Postal acknowledgment card.
A6- Copy of R.C.Book.
Exhibits marked from the side of opposite party
B1- Private Car Package Policy issued by United India Insurance Company Limited.
B2- Copy of letter to the complainant dated 29.11.2019.
B3 & B3 (a) - Copy of private and confidential motor survey report dated 25.01.2019.
Sworn statement from the side of opposite party
DW1 - T.V.Babu, S/o T.L.Varkey, Thuruthel House, Pala.
By order
sd/-
Assistant Registrar
