IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 29^th day of July,  2022.

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 105/2021 (Filed on 08-07-2021)

Petitioner                                            :         Sheeba Mathew,

                                                                   W/o. Mathukutty K.L.

                                                                   Vattukulamattom House,

                                                                   Peroor P.O.  Kottayam.

                                                                   (Adv. Asha Antony

and Adv. Arjun Sai Krishnan)

                                                                            Vs.

Opposite party                                   :         The New India Assurance Co. Ltd.

                                                                   Erattupetta Branch, 1^st Floor,

                                                                   Chiramel Building, Erattupetta

                                                                   Rep. by Branch Manager.

                                                                   (Adv. P.G. Girija)

O  R  D  E  R

Sri. Manulal V.S. President

The case is filed under Section 35 of Consumer Protection Act, 2019. Case of the complainant is as follows:

Complainant is the registered owner of the Maruthi Ritz car bearing registration number KL-35-C-509. The car was insured with the opposite party under a package policy vide policy no.98000003117062690008 for the period from 19-3-2018 to 18-3-2019. The insured declared value of the vehicle was                         Rs.1,62,000/-.The car met with an accident on 4-3-2019 in between Kandanchira Junction and Peroor junction in Pattithanam-Manarcadu By-Pass Road.                            The complainant submitted claim for compensation which was processed by the opposite party.

On 2-6-2020 the opposite party instructed the complainant to furnish the original registration certificate, copy of the final police report, and the reason for the delay caused in filing the claim. Copy of the document were given to the opposite party on 19-6-2020 along with a letter stating the reason for the delay.

The complainant obtained the vehicle from the Judicial First Class Magistrate Court, Ettumanoor and bring the vehicle to the courtyard of the complainant. According to the complainant one T.U. Babu who introduced himself as the insurance surveyor of vehicles, associated with the Kottayam branch of the opposite party, informed the complainant that the vehicle would fetch a value of Rs.25,000/- only. One Sanoop Nair and Deepak inspected the vehicle under the supervision of T.U.Babu and telephoned the complainant and negotiated the amount for the vehicle. After negotiations, they suggested Rs.45,000/- as price and also demanded Rs.4000/- as commission. The Branch Manager of the opposite party Aneesh Raj also negotiated the complainant over phone on                             17-7-20 and requested the complainant to agree the amount of Rs.45,000/-.                       The opposite party informed the complainant that the vehicle has now an estimated value of Rs.45,000/- only and the complainant is eligible for a claim of Rs.116000/- only. If the complainant was amenable to settle the claim for Rs.1,16,000/- the complainant was directed to give a written undertaking for the same on 17-7-20 itself otherwise the claim would be closed. The complainant gave the undertaking as demanded by the opposite party to the surveyor on                       17-7-20. The opposite party also gave assurance to the complainant that the balance amount of Rs.1,16,000/- would be paid by cheque or through account transfer. Accordingly, the insurance surveyor disposed the car on the strength of undertaking given on 17-7-20 by the complainant. They had taken Rs.4000 as commission and deposited an amount of Rs.41,000/- in to the account of the complainant by Subin who was alleged to be the purchaser of the car. According to the complainant in spite of her repeated demand the opposite party did not give the balance amount as per their assurance. On 29-9-20 complainant received a letter from the opposite party stating that the claim of the complainant was repudiated and closed on the reason that the vehicle was used in place, which

was not permitted by the concerned authorities to use and access, by the public. It is also stated in the letter that the road was not opened to the public and necessary signboard were exhibited in the road to provide precautions to the people. The complaint filed by the complainant before the Grievance Department of the opposite party was rejected. Thereafter the complainant filed complaint before the insurance ombudsman. Insurance ombudsman also rejected the claim.

It is submitted in the complaint that the place of accident was a public place and every public have right to access. According the complainant the opposite party has a liability to settle the claim. If the opposite party has intention to repudiate the claim, they ought not have taken undertaking by the complainant to sell the vehicle for Rs.45,000/- and the complainant is entitled to receive                              Rs.1,16,000/- towards her claim. .It is averred in the complaint that the act of the opposite party amounts to deficiency in-service and unfair trade practice. Hence this complaint.

Upon notice opposite party appeared before the commission and filed version contending as follows:

The vehicle bearing registration no. KL-35C-509 was insured with the opposite party for a period from 19-3-2018 to 18-3-2018 with an IDV of Rs.1,62,000/ in the name of the complainant vide package policy. The alleged accident was on 4-3-2019 and the complainant submitted the claim only on 4-3-

20. On receipt of claim, Surveyor T.V.Babu was deputed to survey the damage caused to the complainant’s vehicle and he inspected the vehicle on 13-3-20.                  The averment in the complaint that the surveyor informed the complainant that the vehicle would fetch a value of Rs.25,000/- is false. Quotations were invited among several quotations received online and offline, the highest one was for                        Rs.45,000/- and it was amenable for the complainant and it was sold by her for                    Rs.45,000/-. The surveyor has suggested that out of the four modes off settlement, salvage loss basis settlement was found advantageous to both the insured was well as the insurer. As per salvage loss assessment , out of the total IDV of Rs.1,62,000 the wreck value of Rs.45,000/- was deducted and he assessed the loss as Rs.1,16,000/-. On receipt of the survey report, the opposite party processed the claim. The final report in crime no. 416/19 submitted by the police                                   before the JFMC Ettumanoor has cited Assistant Engineer, PWD (Roads         Division) Etumanoor as Cw40 and attached report prepared by him. As per this report , it is stated that the place of occurrence i.e. road where the accident took place was not open to the public as the road works were not completed and necessary sign boards were exhibited in the road to provide precautions to people. So the vehicle was not driven in public place and there is violation of terms and conditions of the policy by using the vehicle against section 2(34) of the M.V.Act. Therefore, on the basis of the above said report, the claim of the complainant could not be honoured and it was intimated to the complainant. The complainant sold the vehicle for Rs.45,000/- as she was fully convinced that it was the maximum value which the vehicle would fetch in the severely damaged condition. The opposite party or anybody under them never forced the complainant to sell, the wreck for  Rs. 45,000/-. There is no deficiency in service or unfair trade practice on the part of the opposite party.

Complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A15. Divisional Manger of the opposite party filed proof affidavit in lieu of chief examination and exhibits B1 to B7 were marked from the side of the opposite party.

On evaluation of complaint version and evidence on record, we would like to consider the following points.

(1)Whether there is any deficiency in service or unfair trade practice on the side

         of the opposite party?

(2)If so what are the reliefs and costs?

Point umber 1 and 2.

There is no dispute on the fact that the vehicle of the complainant which bearing registration number KL-35C-509 was insured with the opposite party for a period from 19-3-2018 to 18-3-2018 with an IDV of Rs.1,62,000/ vide package policy.

It is proved by Exhibit A15 that the said vehicle met with an accident on  4-3-2019 in between Kandanchira Junction and Peroor junction in Pattihnam-Manarcadu By- Pass Road. It is proved by exhibit B5 survey report by the Surveyor deputed by the opposite party that the vehicle had sustained severe damages for which the cost for repair works would exceed the IDV of the vehicle. On perusal of exhibit B5 we can see that the surveyor assessed the damages to the vehicle and came to conclusion that the vehicle was in a total loss condition and he recommended for the settlement in salvage loss settlement. The specific case of the complainant is that though she had agreed to settle the claim at salvage loss basis for an amount of Rs.1,62,000/- as offered by the surveyor and agreed to sell the wreck for an amount of Rs.45,000/- the opposite party repudiated the claim after selling the wreck and depositing an amount of Rs.41,000/- into her account Exhibit B4 is the letter given by the complainant to the surveyor on                        17-7-20. On perusal of exhibit B4 we can see that she had agreed to settle the claim for an amount of Rs.1,16,000/- after retaining the wreck which worth Rs.45,000/-.Therefore we cannot accept the contention of the complainant that the vehicle had been sold by the surveyor of the opposite party and credited Rs.45,000/- to her account. Complaint was resisted by the opposite party on the ground that there was a violation of policy condition by using the vehicle against the provisions of section 2(34) of Motor Vehicle Act .

Section 2 (34) of motor Vehicle act 1988 defines Public place as “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;.

The Guidelines in such cases have been issued by the Hon’ble National Consumer Disputes Redressal Commission in the case titled New India Assurance Company Ltd. Vs. Narayan Prasad Appaprasad Pathak, II (2006) CPJ 144 (NC) which is reproduced as under:-

          The said guidelines have been upheld by the Hon’ble Supreme Court of India in the case titled Amalendu Sahoo Versus Oriental Insurance Company Limited, 2010 (4)Supreme Court Cases 536.

Here in case admittedly the vehicle is at total loss conditions. Exhibit B5 proves that the surveyor has suggested that out of the four modes off settlement, salvage loss basis settlement was found advantageous to both the insured as well as the insurer.

In this type of settlement in event of major loss the settlement is on total loss basis and salvage is also retained by the insured.

Thereby the insurers pay the customer the IDV value less salvage value of the vehicle and any other additional deductions as per the policy. The admissible claim as per the contract of insurance is Rs.1,62,000/- ie the insured declared value of the vehicle. In the light of the decisions in New India Assurance Company Ltd. Vs. Narayan Prasad Appaprasad Pathak, II (2006) CPJ 144 (NC) and Amalendu SahooVersus Oriental Insurance Company Limited, 2010 (4)Supreme Court Cases 536 opposite party is bound to pay Rs.1,21,500/- i.e 75% of Rs.1,62,000/- to the complainant. Admittedly the complainant sold the vehicle for Rs. 45,000/-. Therefore we are of the opinion that the complainant is entitled only for Rs.76,000/-(1,21,500-45,000) from the opposite party. The opposite party has committed deficiency in service by not honouring the claim of the complainant as per law. No doubt the complainant has suffered much mental agony and hardship due to the deficient act of the opposite party for which they are liable.

In the light of the above discussed evidence and decision we allow the complaint and pass the following order.

(1 ) We hereby direct the opposite party to pay Rs.76,000/- to the complainant .

(2 )We hereby direct the opposite party to pay Rs.25,000/- as compensation to the complainant for the mental agony and hardship suffered due to the deficiency in service on the part of the opposite party.

1. We hereby direct the opposite party to pay Rs.3000/- to the complainant as the cost of this litigation.

The Order shall be complied within 30 days from the date of receipt of order failing which the amounts will carry 9% from the date of this order till realization.

Pronounced in the Open Commission on this the 29^th day of July, 2022

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 – Copy of certificate cum policy schedule

A2 – Copy of letter dtd.02-06-2020 by opposite party to petitioner

A3 – Copy of letter dtd.19-06-2020 by petitioner to opposite party

A4 – Copy of letter dtd.17-07-2020 by petitioner to Insurance Surveyor

A5-Copy of letter dtd.02-06-2020 by opposite party to petitioner

A6 – Copy of appeal petition dtd.14-10-2020submitted before the Grievance Department by petitioner

A7 – Repudiation letter dtd.23-10-2020 by opposite party to petitioner

A8 –Copy of postal cover addressed to petitioner by opposite party

A9 – Copy of RC book (KL-35-C-509)

A10- Copy of appeal petition dtd.02-12-2020 submitted before the Hon’ble Insurance Ombusman by petitioner

A11- Copy of letter dtd.24-02-21 from the Insurance Ombudsman to petitioner

A12 –Copy of Award of complaint No.KOC-G-049-2021-0188 from the Insurance Ombudsman, Kochi

A13 –Copy of mahazar dtd.05-03-19 from Ettumanoor Police Station

A14 – Copy of statement account

A15 – Copy of final report in Crime No.416/19 submitted before J.F.M.C.

        Ettumanoor

Exhibits marked from the side of opposite party

B1 – Copy of policy with conditions

B2 –Copy claim form and motor accident claim intimation

B3 series – E-mail communication regarding quotation (7 nos.)

B4- Letter dtd.17-07-2020 by peititoner to insurance surveyor

B5 – Survey report dtd.15-05-2020 by T.V. Babu

B6 – Copy of final report in Crime No.416/19 submitted before J.F.M.C.

        Ettumanoor

                                                                                                By Order

j3cs                                                                                Assistant Registrar