IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 31stday of May, 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 255/2021 (Filed on 27-10-2021)
Petitioner : ThankamTresa George,
Paravarakath (H)
Amparanirappel P.O.
Pala – 686578.
(Adv. Sebastian Kurian and
Adv. Tom K. Jos)
Vs.
Opposite parties : 1) The Branch Manager,
United India Insurance Ltd.
Puthettu Arcade,
Near Kottaramattom Bus Stand,
Pala – 686571.
(Adv. P.G. Girija)
2) M/s. MG Kottayam,
CoastLine Garages India (P. Ltd)
MC Road, Kottayam – 686630.
(Adv. ShamilBasheer)
O R D E R
Smt. Bindhu R. Member
The Complaint is filed under Section 35 of the Consumer Protection Act, 2019.
The complainant purchased a MG Z SEV EXCLUSIVE car from the 2ndopposite party on 19.03.21 for a total cost of Rs.24,27,000/- upon hypothecation with YES Bank. The said car was insured with the 1stopposite party on 22.3.2021 by paying 38,018/- including the premium. The period of insurance was from 22.03.21 to 21.03.2022.The car got a temporary registration number KL2021-TR-0987W and delivered on 24.3.2021.On 24.3.2021, the car met with an accident at Pala Kottaramattam area while a pickup van with reg.no KL-17-T-1829 which was in front of the car abruptly swerved towards the right without any signal causing the complainant’s car hit on the pickup van. All the passengers in the car got injured. Pala Police was informed and they reached the spot immediately and a crime no 634/21 was registered where in the driver of the pickup van was made accused. The opposite party also was duly intimated and claim form also was submitted.
The car was garaged in the premises of the 2ndopposite party. The surveyor of the 1stopposite party inspected the car and intimated that the car was not reparable and recommended for a total loss. Thereafter they intimated that it can be repaired. But later though the complainant contacted the opposite party several times, but no action has been taken by the 1stopposite party yet. On 26.7.2021 the complainant and her husband met the DGM of the 1st opposite party and he also assured for an early settlement. The complainant sent letters to the 1st opposite party on 13.09.2021 and on 11.10.2021. But in spite of all these and a number of phone calls, no settlement was done by the 1stopposite party.
During this period the complainant had to hire taxi for her conveyance and a huge amount was incurred in this regard. Thus the opposite party has committed grave deficiency in service and hence the complaint is filed for compensation.
Notice was issued to the opposite parties and both the opposite parties appeared and filed version separately.
The 1st opposite party in its version has contended that the policy is admitted but it was the complainant’s vehicle which was driven in wrong side and hit the third party vehicle that too at a speed of 110 KM/hr which was evident from the stopped odometer.
The 1stopposite party appointed an authorised surveyor immediately and he visited the garage on 23.4.21 itself and subsequently on 21.6.21 and 25.6.21 at the 2ndopposite party’s garage .The garage of the 2nd opposite party was closed for a long time due to Covid-19. When the garage was opened, the surveyor assessed the damages and found that the vehicle was in the limit of repairs. Hence the surveyor sent a registered letter dated 3.7.2021 to the complainant and advised her to proceed with the repair of the vehicle. But the complainant was reluctant to this. There was no assurance given by the DGM of the company as alleged. The 1st opposite party is not liable to pay the amount towards the financier. Hence there is no deficiency of service on the part ofthe 1st opposite party. It was because of the complainant’s adamant attitude that the car was not repaired. The complainant has used the car with temporary registration for personal purpose violating the Motor vehicles rules. Moreover, the complainant’s car was driven at a speed of 110KM /hr at the time of accident which was evident from the stuck odometer. Hencethere is no deficiency of service on the part of the 1stopposite party and hencethe complaint is liable to be dismissed.
The 2ndopposite party in its version has contended that the complainant has purchased the vehicle from them and when it was brought to them after the accident, the car was completely damaged except the bumper and dickey. The four wheels, battery, shell, front side, front engine, electrical components, four doors, Airbags were fully damaged. The 2nd opposite party has no connection with the 1st opposite party. The 2nd opposite party has prepared an estimate after athorough inspection and handed over to the complainant but no instruction has been received from the complainant. There is no deficiency in service from the side of the 2nd opposite party and there is no relief sought for against them.Hence the complaint is liable to be dismissed.
The complainant has sworn the proof affidavit along with exhibit A1 toA8 and the 1stopposite party filed Exhibits B1 to B4 along with proof affidavit. The 2nd opposite party filed proof affidavit with no documentary evidence.
On examination of the pleadings and evidence on record we would like
to frame the following issues.
Issue no 1.Whether the non-settlement of claim by the 1stopposite party
is a deficiency of service and whether it has been established by the complainant?
Issue no 2 : If so what are the reliefs the complainant is entitled for?
The case of the complainant is that her brand new vehicle met with an accident for the reason of negligence of a third party on the day of delivery itself. But the 1st opposite party who is the insurer has not settled the claim submitted on ground that the accident took place due to the wrongful driving of the insured car’s driver.
The complainant has produced exhibit A4 FIRprepared by the SI of Pala police station in which it is clearly stated that the third party vehicle, a pick up van of numberKL-17 T 1829 negligently and abruptly turned towards the right sidewithout any signal causing the insured car no KL2021 TR 0987W hit with the said vehicle which caused damage to the vehicles andinjury to the passengers in both the vehicles.
The 1stopposite party’s contention is that the complainant’s car was driven at a speed of 110KM/hr. And as it was in such an exorbitant speed the accident happened. But there is no evidence to prove this. No odometer reading or evidence of some other mode is produced to prove that the car was at an over speed. Moreover, there is a specific FIR which is not at all challenged by the 1stopposite party anywhere. So we find that the allegation of over speed is a silly oneand hence not sustainable. Again the 1stopposite party alleges that the complainant’s car was driven through the wrong side of the road. No cogent evidence has been produced by the 1st opposite party to support this contention also.
Exhibit B1 is the survey report in which the surveyor has stated the assessment on repair basis, total loss basis and salvage loss basis. Rs.14,69,508.75 is shown as the amount in repair basis assessment. Rs. 23,04,650/- has been shown as the amount in total loss basis assessment and Rs. 15,54,650.00 is the amount is salvage loss basis.
The 1st opposite party has affirmed in the counter affidavit that they had directed the complainant to repair the vehicle and accordingly the complainant had availed consent form from the first opposite party, but thereafter she did not contact the first opposite party only for reasons known to her and the 1st opposite party has produced the form of the consent letter as Exhibit B4. In B4, the 1st opposite party has incorporated a clause that the insured requesting for a settlement of the claim under salvage loss basis.
The 1st opposite party has not produced any cogent evidence to prove that Exhibit B4 had been communicated to the complainant. Not only B4, no effective communication was made from the 1st opposite party to the complainant. From B4 only this much is clear that the 1st opposite party was ready for a settlement other than repair basis.
In the version of the 2nd opposite party it is contended that when the complainant’s car was reported first after the accident the car was completely damaged. So he suggested for a total loss settlement. The accident took place on 24.3.21 and the final survey report was submitted on 12.07.2021. The surveyorin his report has assessed in four methods.
One is assessment in repair basis, second one is assessment on total loss basis, third one is assessment on salvage loss basis and the last one is assessment on cash loss basis. According to the opposite party after receiving the surveyor report the opposite party has sent a consent form exhibit B4 to the complainant though she did not accept it or returned. Exhibit B4 is a suggestion put forward by the opposite party to the complainant for consenting to the settlement of the claim under salvage loss basis in which the wreck should be retained by the insured herself. From this itself we see that the opposite party was ready for the settlement on salvage loss basis also not only on repair loss basis.So the contention that the complainant was adamant on not repairing the vehicle is not admissible.
Moreover, through the surveyor submitted his report on 12.7.21, the 1st opposite party did not arrive at a settlement of the claim or did repudiate the claim till the filing of this complaint.For all these days the complainant insured was put to uncertainty with her new car in the garage almost completely damaged.
As per Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002.
“(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.”
Thus we find that the 1st opposite party has committed gross deficiency in their service by not acting upon the claim submitted by the complainant for long. As the settled position is that an insurance company cannot evade from the payment of claim amount raising some technical reasons.
There is deficiency of service if the insurance company does not take necessary action even after the submission of the survey report.(M.K.U.Private Ltd.Vs. United India Insurance Company NCDRC 2019)
If the survey report is based on surmises and conjectures, the insurance company should apply its mind logically to award the claim of the insured. (Prasanth Bhel Vs. New India Assurance Company, 2019 NCDRC).
Regarding the survey report, the surveyor has stated that there was negligence on the part of the insured in driving the vehicle through wrong side, over speed and during the temporary registration. But there is no evidence for the first two allegations. Further there is no law as to restrict the use of a vehicle with temporary registration. The use of a vehicle without a registration is punishable. But using a new vehicle with temporary registration is no offence under any Act in India which is raised as a contention by the opposite party.
- from Exhibit B1 report it is understood that the 3rd opposite party has given an estimate of Rs.38,089,60.00 for the repair of the vehicle.
The surveyor in the disallowed bills has shown that
6.Module pow bat elek distr Rs.1,43,232.00,
10.Panel I/P main Rs.62,307,
12.Panel assy sun roof Rs.19,754.00,
13.Module assy wsw sys Rs.7,737
19.Cluster assy.inst.Rs.28,013,
20.Navigation assy end mdl Rs. 65,254.00
21.Display assy nav end mdl Rs.32,109.00
22.Micro phone assy.m/tel Rs.1,695.00
23.Bracket m /tel mic Rs.118.00
24.sensor infl rstf/end imp Rs.1,705.00
25.Module assy FR radar end Rs.46,086.00.as damages, if any not confirmed.
Thus the above items are not concluded as damaged or repairable. Further as item III, he has narrated the anticipatory loss also which amounts to Rs.4,63,676/-.So the possible damages may amount more than 5 lakhs as per the surveyor.
In the assessment of total loss basis the wreck value is considered as Rs7,50,000/-. The anticipatory loss also comes around this amount. So the opposite party has not taken any decision on the claim put forward by the complainant so far. We find the willful silence of the opposite party as the deficiency of service on their part.
Moreover, considering the mental agony suffered by the complainant upon the occurrence of the accident on the same day of delivery and thereafter due to the uncertainty of her claim submitted before the 1st opposite party, the 1st opposite party is liable to compensate the complainant in terms of money. Since Consumer Protection Act is a social legislation to protect the interest of the consumers, the complainant is entitled for appropriate redressal. We find that the inaction of the 1st opposite party is a severe negligence on the part of it.
Thus in the light of above discussion we allow the complaint.
ORDER
- The 1st opposite party is directed to settle the claim of the complainant in the total loss assessment mode by paying the complainant Rs.23,04,650/- and retain the wreck with the 1st opposite party by surrendering the RC book of the vehicle by the complainant.
- The 1st opposite party is directed to pay a compensation of Rs. 1,00,000/- towards cost and compensation.
The opposite party shall comply the order within 30 days in default of which an interest @9% shall be paid to the amount from the date of order till realization.
Pronounced in the Open Commission on this the 31st day of May, 2022
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of invoice tax No.KTM/B2C/20-21071issued by 2nd opposite party
A2 – Copy of insurance policy No.1005073120P114887954
A3 – Copy of temporary registration certificate dtd.23-03-21 issued by Pala SRTO
A4 – Copy of FIR 0634 dtd.25-03-21 issued by Palai police station
A5- Copy of letter dtd.26-07-21 by petitioner to the 1st opposite party (Subject to objection)
A6 –Copy of letter by petitioner to the opposite party (Subject to objection)
A7 – Copy of letter dtd.11-10-21 by petitioner to opposite party (Subject to objection)
A8 – Copy of EMI details (subject to objection)
Exhibits marked from the side of opposite party
B1 – Copy of motor survey (interim) report dtd.12-07-2021 by SP Engineer and
Surveyors
B2 – Copy of letter dtd.03-07-2021 by SP Engineers and Surveyors
to the complainant
B3- Letter dtd.07-07-21 by petitioner to SP Engineers and Surveyors
B4 – Copy of consent letter
By Order
Assistant Registrar
