Complaint filed on: 19-02-2021
Disposed on: 22-02-2022
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
CC.No.23/2021
DATED THIS THE 22nd DAY OF FEBRUARY, 2022
PRESENT
SRI.KUMARA.N, B.Sc., MBA, L.L.B, PRESIDENT (I/c)
SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER
Complainant: -
Sri.Kempegowda
S/o late Doddashanaiah,
Aged about 61 years,
R/at Kallupalaya village,
Taradakuppe post,
Kothagere hobli,
Kunigal Taluk,
Tumakuru district
(By Sri.K.S.Shivakumar, Advocate)
V/s
Opposite parties:-
- The Divisional Manger, United India Insurance Company Ltd,
Divisional Office, Jayadeva Complex, BH Road, Tumakuru town, Tumakuru
- The Regional Manager,
United India Insurance Company Ltd., The Regional office, Krushi Bhavan, 5th Floor, Nrupatunga Road,
Near Hudson Circle, Bengaluru -1
- The Chairman
Insurance Ombudsman,
Office of the Insurance Ombudsman, Office at #19/19, Jeevan Soudha Building, Ground Floor, 24th Main, J.P.Nagar, 1st Phase,
Bengaluru – 5600078
(OP No.1 and 2- By Sri.K.M.Chandra Shekaraiah, Advocate)
(OP No.3- Exparte)
ORDER
SRI.KUMARA.N., PRESIDENT (I/c)
This complaint has filed under Section 35 of the Consumer Protection Act, 2019 to direct the Opposite parties (hereinafter called as OPs) to pay remaining amount of Rs.1,31,000-00, towing and parking charges of Rs.3,000-00 and Rs.16,500-00 respectively and interest @ 2% on Rs.1,31,000-00 and Rs.2,61,572-00 from the date of claim till its payment, damages and incidental expenses of RS.25,000-00, Rs.1,00,000-00 towards inconvenience to the complainant and grant such other relief as deemed fit, in the interest of justice and equity.
2. It is the case of complainant that the complainant has purchased the Toyota Etios Liva bearing vehicle Reg.no.KA-06-D-3453, Chassis no.MBJK49BT1000715950 115, Engine no.IND1396077 and said vehicle was registered in the Regional Transport office at Tumakuru. On 1-8-2018 the said vehicle was converted into passenger carrying vehicle to private vehicle, which was insured with the OPs insurance company under comprehensive policy bearing no.07140031178118251899 which was valid from 19-3-2018 to 18-3-2019 and insured declared value (IDV) was Rs.3,92,572-00. On 20-10-2018 one Shivakumar Swamy.B.L s/o late Lingaiah was driving the said vehicle. At that point of time, said vehicle met with an accident at about 9.30 p.m, at Sopanahalli gate, Tumakuru taluk when the driver made attempts to avoid the stray dog, the driver last the control over the vehicle and dashed to road side cement guard stone and mud bund as a result the driver of the vehicle was sustained severe injuries i.e. left shaft femur fracture. The complainant further submitted that, the said accident was intimated to the 1st OP, accordingly on 4-1-2019 submitted claim form and further surveyor of the 1st OP visited the place of accident and assessed the vehicle as total loss and reported the same to the 1st OP. In spite of fulfilling all the conditions and requirements of insurance policy, the 1st OP has failed to pay the policy benefit and repudiated the claim of the complainant on 22-5-2019. On 17-6-2019 the complainant questioned the said repudiation before the Grievance Cell, United India Insurance Company Ltd, Regional office, Bengaluru, wherein the claim of the complainant was considered in part and the insured declared value (IDV) as per policy is Rs.3,92,572-00 and the said authority ordered OP to pay partial amount of Rs.2,62,572-00 accordingly the 1st paid the said amount and remaining amount of Rs.1,31,000-00 was not paid, as aggrieved by the said order of the Grievance Cell, the complainant has questioned before the 3rd OP on 7-2-2020 and on 8-6-2020 the 3rd OP confirmed the said order mechanically without considering the grievance of the complainant. There is no valid reasons given by the OPs to pay the amount of Rs.2,61,572-00 against to insured declared value (IDV) of Rs.3,92,572-00. The complainant further submits that by repudiating the claim of not paying as IDV value by the OPs causing deficiency in service and the policy terms does not envisages and support the act of the OPs. The 1st OP calling for document which is not relevant for the claim and the OPs have not furnished the copy of surveyor report to the complainant. The OPs have not settled the claim within the specified time limit and they are not transparent in settling the claim of complainant. The OPs adopted the attitude of avoiding payment of the amount to which the complainant is legally entitled. Hence, this complaint.
3. In response to the notice of this Commission, the OP no.1 and 2 have appeared through its learned counsel. Despite the service of notice, the OP No.3 has not appeared and placed exparte.
4. The OP Nos.1 and 2 have filed version submitted that the complaint is not maintainable either in law or on facts. The OPs further admitted that they issued a policy in the name of Kempegowda, for his Car (Taxi) bearing No.KA-06-D.3453 and the said policy was valid on the date of incident. The liability is subject to terms and conditions of the policy and other allegations made in the complaint were not within the knowledge of OPs. The OPs further submitted that as per the terms and conditions of the policy, the insured is under an obligation to immediately inform the insurance company or notice shall be given in writing and to give all such informations and assistance required by the OP Company. Further submitted that insured shifted the said vehicle for repairer on 5th day of accident but the same was not intimated to the OP Company. Further insured intimated the OP company about the loss/ damage due to accident on 4-1-2019 i.e. lapse of 74 days from the accident resulted in not provided opportunity to the OP company to conduct the spot survey, thereby the insured violated the terms and conditions of the policy. Though the driver of the vehicle has sustained grievous injuries, police complaint was lodged on 10-4-2019 after a lapse of 6 months. The complainant submitted estimation of repair on 25-1-2019 i.e. lapse of three months and it was estimated according to his whims and fancy. The OPs further submitted that the conversion of vehicle from commercial purpose to private use was not intimated, and said vehicle was not having valid FC on the date of accident, the driver of the said vehicle was not holding valid DL on the date of accident. In spite of that, the OPs given opportunity to investigate and assess the loss of the said vehicle accordingly after receiving intimation/claim form, the company has appointed the surveyor and the surveyor assessed the loss and submitted the report. In the claim, the OP Company has noticed several policy conditions violated. In view of the policy terms and conditions violated by the insured the OPs repudiated the claim, as a result insured approached the grievance cell authority of the OP Company about the repudiation accordingly the authority after considering all the facts and circumstances of the claim, as per the terms and conditions of the policy and considering the surveyor report has ordered/ directed the 1st OP to pay a sum of Rs.2,61,572-00 on total loss basis less salvage, accordingly the said order/direction has been confirmed by the 3rd OP authority. The 1st OP has paid a sum of Rs.2,61,572-00 to the insured and the complainant accepted the amount without any objections further the insured has retained the salvage worth of Rs.1,30,000-00 and the insured had sold the said vehicle to one M.Gangadhar. There is no deficiency of service on the part of OPs and the allegations against the OPs Company are baseless, false and denied. The OPs Company is not liable for any consequential loss, interest and any other incidental expenses. The OPs Company has not violated any terms and conditions of the policy and IRDA guidelines. The OPs Company is not liable to pay any balance amount of life tax paid. Hence the OPs prayed to dismiss the complaint with exemplary costs.
5. The complainant filed affidavit evidence and produced 10 documents. On behalf of OP 1 and 2 one Srinidhi, Divisional Manager has filed affidavit evidence and produced documents marked as Exs.R1 to R6(b).
6. We have heard the oral arguments of complainant and OP no.1 and 2 and the points that would arise for determination are as here under:
1) Whether the complainant proves that the quantum of loss fixed by the OPs is insufficient and deficiency of service part of OPs?
2) Is complainant entitled to the reliefs sought for?
7. Our findings on the aforesaid points are as follows:
Point No.1: In the affirmative
Point No.2: In the partly affirmative for the
below;
REASONS
8. Point No.1 and 2: The learned counsel for the complainant argued that the quantum of insurance claim of Rs.2,61,572-00 awarded by the OPs is contrary to the total loss suffered by the complainant, wherein the OPs even though settled the matter as liability on total loss basis with RC and IDV of the vehicle was Rs.3,92,532-00 and OPs deducted Rs.1,30,500-00 towards salvage which was against the policy terms and conditions.
9. The OPs counsel argued that as per the policy terms and conditions and by considering report of the surveyor claim settled.
10. The complainant produced Ex.P1, vehicle particulars on 7th Jan. 2019 which was in the name of Kempegowda who was the complainant, Exs.P2 and R3 documents produced by complainant and OPs which was policy bearing no.0714003117P118294275 which was in the name of complainant, Kempegowda for his vehicle bearing Reg.No.KA-06-D-3453 valid from 19-3-2019 to 18-3-2019. Ex.P3, Ex.R4 and Ex.P4, Ex.R5 produced by complainant and OPs respectively, motor claim form, submitted by the complainant to the 1st OP on 4-1-2019 and surveyor, loss assessor report dated 13-2-2019 of said vehicle respectively. Ex.P5 and Ex.P6, Ex.P7 and Ex.P8 which were documents produced by the complainant, repudiation letter of OPs, insured complaint to grievance cell, letter of claim awarded by OPs for Rs.2,61,572-00 and insured complaint dated 7-2-2020 to the Ombudsman respectively which proves that Kempegowda the complainant who holds valid policy at the time of said vehicle met with an accident i.e. 2-10-2018 accordingly submitted claim form to the OPs.
11. IDV is the maximum amount of claim which the insurance company would pay in case of vehicle is stolen or it suffers a total loss, in this case IDV of the vehicle was Rs.3,92,572-00.
12. In this case on perusal of Ex.P7 and Ex.R2 produced by complainant and OPs which proves that claim settled as total loss basis with RC by the OPs, the details as follows;
IDV as per policy : Rs.392572.00
Less: Highest quotation –
Net on salvage basis with RC: Rs.130000.00
Less: Compulsory Excess : Rs. 1000.00
Net Amount payable : Rs.261572.00
Accordingly Rs.2,61,572-00 the OPs paid to the complainant on 2-10-2019, in support that the OPs produced document Ex.R6. As per the policy of total loss basis with RC insured/complainant sold the vehicle to Mr.Gangadhara.M, accordingly ownership transferred on 1-3-2021, in support Ex.R1 produced.
13. Liability on total loss basis with RC, the net of salvage with RC means the claim is settled on total loss basis and salvage is not taken over by the company, but the salvage amount as suggested by the surveyor is deducted from claim payment and possession remaining with the insured, in this case in event of major loss the settlement is an total loss basis and salvage is also returned by the insured, thereby the insurer pay the customer the IDV value less salvage value of the vehicle and other deduction as per the policy. Thereafter insured is free to either repair or dispose of the vehicle and does not have to submit the bill of repairs or transfer the ownership of right to the insurer.
14. The decision of the Hon’ble Supreme Court in the case of Sri.Venkateshwara Syndicate V/s Oriental Insurance Company Limited And Another, (2009) 8 SCC 507 wherein Hon’ble Supreme Court has held that:-
“The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by the insured, a loss adjuster, popularly known as loss surveyor, is deputed who assess the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damages arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured.”
Accordingly in this case the surveyor appointed by the OPs as per the policy, in turn surveyor inspected the accident spot and vehicle which was damaged due to accident, by considering all factors including non reporting of converting commercial to private vehicle, surveyor assessed and submitted the loss report and assessed/suggested OPs to settlement of claim as total loss with RC works out to the more economical and accordingly submitted by the report dated 13-2-2019. Ex.P4 and Ex.R5 of complainant and OPs reveals that the surveyor assessed and calculated total loss basis with RC as follows;
Liability on total loss basis with RC:
IDV : 3,92,572.00
Less realisable salvage value with RC: 1,00,000.00
2,92,572.00
Less policy excess : 1,000.00
TOTAL : 2,91,572.00
Thus a perusal of the surveyor report and settlement report of the OPs, the OPs deducted Rs.1,30,500.00 as salvage against the estimation / assessment of surveyor who estimated to deduct Rs.1,00,000-00, which proves that the OPs deducted Rs.30,500-00 more without giving justification. Accordingly, we proceed to pass the following;
ORDER
The complaint is partly allowed with cost.
The OP Nos.1 and 2 are liable to pay Rs.30,500-00 along with compensation of Rs.5,000-00 and litigation cost of Rs.6,000-00 to the complainant within 30 days from the date of this order failing which, it shall carries interest @ 8% per annum from the date of complaint till its payment.
Furnish the copy of order to the complainant and opposite parties at free of cost.
(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 22nd day of February, 2022).
LADY MEMBER PRESIDENT (I/c)
