By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act to get reimbursement of repair bill of Rs.24,100/- of his vehicle No. KL 12 E 5336 from the opposite parties.
2. Brief of the complaint:- Complainant is the registered owner of the Maruti Alto Lxi car bearing No. KL 12 E 5336 and the complainant having valid driving license bearing No.12/5369/2013. The vehicle is insured with the opposite party for the period from 04.08.2016 to 03.08.2017 vide policy No.VPC0758659000100. While so on 16.01.2017 this car met with an accident. When the complainant had taken the above car for an urgent matter from his house, due to the projection of one of the roots of a tree to the road, the vehicle was hit an electric post at the left side of the car then as a sudden provocation the complainant turned the vehicle to right side, then the vehicle hit on a wall situated at the right side. The said accident happened during the policy period with the opposite parties. The said accident happened due to the projected root of a tree situated near to the road. Since the complainant is in hurry, the same was not noticed by the complainant. The said accident happened to the complainant's vehicle bearing Reg. No.KL 12 E 5336 is not an intentional one but it is purely an accidental. Because of the said accident the doors at both sides, bonnet, front bumper, parts in between the front door and front bumper, lamps etc were got damaged.
3. It is further submits that after the said accident, the complainant had taken the vehicle to Indus Motors, Kakkavayal, Kalpetta, the authorized workshop of the Maruti, for repairing works on 23.01.2017 and a JOB CARD was issued after analysing the condition of the vehicle. On the same day itself the complainant had submitted a claim application for insurance claim for the vehicle repair to the opposite party No.1's office. But later the opposite party No.1 and 2 informed the complainant that they are not liable for the entire damages caused to the vehicle and they are liable to pay only the damages caused at the right side of the vehicle and they will not be liable to pay the left side damages. It is also informed the complainant that they are liable for an amount of Rs.6,721/ - alone. The total bill for repairing the vehicle from the Indus Motors, Kakkavayal was Rs.24,100/-. The same was very well known to the opposite parties and even then they are not ready to reimburse the actual amount to the complainant. Since the opposite parties are adamant in their stand the complainant paid the entire amount from his own hand to the work shop and taken delivery of the repaired vehicle on 20.02.2017. The complainant had insured the vehicle bearing No. K.L 12 E 5336 with the opposite party under private car package policy scheme and the opposite parties are legally liable to pay the actual amount spend towards for repairing the damages caused to the vehicle due to an accident. The decision taken by the opposite parties on the claim reimbursement application of the complainant was not proper, immature, illegal and arbitrary. The complainant has every reasons to believe that the intention of the opposite parties is to grab unlawful gain by rejecting complainant's genuine claim and the act and conduct of opposite parties are not only legally impermissible but also socially abhorring and the same is shear deficiency of service and unfair trade practice and the same has to be prevented by lawful action. The decision taken over complainant's claim application is illegal, improper and against justice, which caused heavy financial loss and mental agony to the complainant for which opposite parties only responsible and the same has to be compensated by the opposite parties. The complainant have every right to get back the amount from the opposite party which he spend towards repairing of vehicle bearing No. KL 12 E 5336 under the insurance policy and compensation for the unfair trade practice and deficiency of service of opposite party along with cost of the proceedings.
4. On receipt of notice opposite parties appeared and version filed. In the version opposite parties submitted that the instant complaint is not at all maintainable either in facts or in law as the claim of the complainant was rightly settled by the opposite parties for the damages which were relevant to the cause and nature of the accident reported, based on the surveyor's assessment of loss. The claim of the complainant having been settled properly and in due respect to the terms and conditions of the contract of insurance, there is no deficiency in service or unfair trade practice warranting relief from this Hon'ble Forum. Hence the instant complaint is liable to be dismissed by this Hon'ble Forum. Opposite party further submitted that, originally the complainant had taken a private car package policy in respect of his Maruti Alto LXI vehicle vide policy no. VPC0758659000100 for the period of insurance from 04.08.2016 to 03.08.2017 from the opposite parties, subject to terms and conditions therein. The subject policy was a roll-over policy with break in insurance. Thereafter the complainant had lodged a claim with respect to accidental damage to the subject insured vehicle which had occurred on 16.01.2017, vide claim form. On intimation of the claim, the opposite parties had appointed motor surveyor Mr. Anoop Jose to assess the loss and damage to the subject insured vehicle. The surveyor, by considering the relevant damage which matched with the cause and nature of accident narrated in the claim form, had considered damage to the Right front side only to be relevant to the cause of accident narrated in the claim form and approved the repairs. Further, the damages to the left side which were claimed by the complainant were found to be pre-existing the policy inception as per the vehicle inspection which was done prior to issuing the policy. The net assessment value of Rs.6,702/- was arrived at by the surveyor in his report. Thereafter, on the basis of the surveyor's assessment of relevant damage, the claim of the complainant was admitted and settled at Rs.6,721/ - by payment directly in favour of the repairer M/s Indus Motors Pvt Ltd vide cheque No.548535 dated 01.02.2017 and the same was intimated to the complainant vide letter dated 06.03.2017.
5. It is submitted that, in view of the above, the claim of the complainant was rightly and properly settled by the opposite parties in terms of the policy and the assessment arrived at by the surveyor. The opposite parties cannot be bound to accept the repairer's estimate on face value in-toto and the admissible amount of claim can only be worked out on the basis of which damages occurred due to the accident and which damages were already existing on the vehicle prior to the accident. In this this regard, it is submitted that, the surveyor's report is a valuable document and the same has to be given due importance as held in a number of decisions of the Hon'ble National Consumer Disputes Redressal Commission. The Hon'ble National Commission in Nand Kishore Jaiswal Vs National Insurance Co. Ltd. (2009) CPJ 194 (NC) held that the surveyor report is a valuable document and it should be given due credence unless there are adequate reasons to discard the same. It is further submitted that the Hon'ble National Commission in the case of New India Assurance Co. Ltd. and another Vs. New Good Luck Retrading Works; 111 (2009) CPJ 262 (NC), has held that the surveyor's report is an important document and the same cannot be brushed aside easily without valid justification. It is submitted that the similar principle is upheld in ,i.e. that the report of surveyor appointed by insurance company is an important document and the same should not be rejected by Fora unless cogent reason have been recorded for doing so and also in Garg Acylics Ltd. v. United India Insurance Co. Ltd., 2015 (1) CRP273 (NC) wherein it was held that the report of the surveyor is to be given much more weightage than any other document. In the instant case, the opposite parties have relied on the accident narration in the claim form and the surveyor's assessment of damage to arrive at the proper liability in respect of the claim as per assessment. Hence in view of the strong presumption in favour of the surveyor's report, the complainant cannot claim anything over and above the same. Further, the repairer's estimate cannot be binding on the insurer as the repairer need not restrict the repairs to damages which occurred only in the accident claimed for and can prepare an estimate for entire damages/pending maintenance to the subject insured vehicle, regardless of whether such damages existed prior to the policy inception or not.
6. Complainant adduced evidence as PW1 and Ext.A1 to A5 documents were marked through him. Opposite party has not adduced oral evidence. But Ext.B1 to B5 documents were marked on the part of them, out of which Ext.B2 photocopy of Survey Report and Ext.B5 photographs of the disputed vehicle were marked with objection by the complainant. Complainant alleged that opposite parties denied his genuine claim with respect to the vehicle repair. At the time of the accident the subject vehicle had insured with opposite party under private car package policy scheme and the opposite parties are legally liable to pay the actual amount spend towards for repairing the damages caused to the vehicle due to the accident. On receipt of claim form opposite party informed the complainant that they are liable for right side damages only and they are liable for an amount of Rs.6,721/- alone based on the insurance Surveyor's Report. The Surveyor had considered damage to the Right front side only to be relevant to the cause of accident narrated in the claim form and approved the repairs, the damage to the left side were found to be pre-existing the policy inception as per the vehicle inspection which was done prior to issuing the policy.
7. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?.
2. Relief and Cost.
8. Point No.1:- On going through the Ext.A3 Cash Receipt dated 20.02.2017 it appears that complainant has paid entire bill amount of Rs.21,000/- to the Indus Motors Companay Private Limited workshop. Opposite party produced Ext.B4 claim form. On verification of Ext.B4, it is found that it is the complainant, who himself submitted the claim form to the opposite party on 17.01.2017 itself. Hence defence of the opposite party that they had paid the eligible amount of Rs.6,721/- to the repairer is not a reliable one in this case. Through Ext.A3 dated 20.02.2017 complainant had remitted the entire bill amount of Rs.21,000/- to the repairer. Even though opposite party produced Ext.B3 Letter dated 06.03.2017 and Postal Receipt stating that they had send a cheque for Rs.6,721/- to the repairer as insurance claim prior to that the complainant remitted the entire bill amount as per Ext.A3 to the repairer ie on 20.02.2017. Hence opposite party can very well take steps to reimburse the same from the repairer. So as complainant objected Ext.B2 Surveyor’s Report since it is a photocopy and he hasn't received any information regarding the Surveyor's inspection of vehicle but the Surveyor has not examined as a witness on the part of opposite party to over rule the objection raised by the complainant.
9. Opposite party argued relaying on the Survey Report that the Surveyor reported that the damages in the Lt side is not a new one. Hence complainant is not entitled for the repair cost of the LT side but complainant argued relaying on the ruling of Hon'ble Supreme Court in New India Assurance Company Limited Vs. Pradeep Kumar dated 9th April 2009 that Surveyor's Report is not the last and final word to determine the claim. Here original of the Ext.B2 has not produced before us. Surveyor has not examined, no piece of evidence is before us to prove that before inspection of the vehicle the Surveyor has contacted the complainant. Hence in our view complainant's claim is a genuine one and opposite parties rejected the claimwithout any valid reasons. Hence in our opinion opposite parties are failed to prove their objections beyond doubt and there is nothing before us to disbelieve the case of the complainant. Hence we opine that opposite parties were deficient in providing their service and as a valid insurance policy holder complainant is entitled to get claim amount. Point No.1 is found accordingly.
10. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get the claim amount as prayed in the complaint. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and opposite parties are directed to pay the claim amount of Rs.21,000/- (Rupees Twenty One Thousand) to the complainant. Also opposite parties are directed to pay Rs.3,000/- (Rupees Three Thousand) as compensation and cost of this proceedings. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order. Failing which the complainant is entitled for an interest at the rate of 12% for the whole sum till realization.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 17th day of October 2017.
Date of Filing:06.03.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Soopy. Agriculture.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Copy of Driving License.
A3. Copy of Certificate of Insurance and Policy Schedule.
A4. Copy of Liability Computation Sheet.
A5(1). Cash Receipt. Dt:20.02.2017.
A5(2). Job Card Retail Invoice. Dt:28.01.2017.
A5(3). Job Card Retail Invoice. Dt:28.01.2017.
A5(4). Job Card Retail Invoice. Dt:28.01.2017.
A5(5). Job Card Retail Invoice. Dt:11.02.2017.
A5(6). Job Card Retail Invoice. Dt:11.02.2017..
Exhibits for the opposite parties:-
B1. Copy of Certificate of Insurance and Policy Schedule.
B2. Copy of Survey Loss Assistant Report.
B3. Copy of RPAD Receipt.
B4. Copy of Motor Insurance Claim Form.
B5. Copy of Photographs (3 Nos).
Sd/-
PRESIDENT, CDRF, WAYANAD.
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