IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 21st day of October, 2021.
Filed on 25-02-2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.57/2019
between
Complainant:- Opposite parties:-
Sri.A.O.Philip 1. The Manager
S/o Mary kutty Oommen United India Insurance Co.Ltd.
Attumalil House, Veeyapuram P.O. Regd & Head office 24 White
Veeyapuram, Karthikappally Road, Chennai -60014
(Rep. by his power of attorney holder& (Rep.by its manager)
Wife Rini Philip)
(By Adv.Sri.Binny Joseph) 2. United India Insurance Co.Ltd.
(Rep.by its manager)
Dist.Office, Kottayam Geetha-
Trade Centre, M.C Road,
Nagampadam, Kottayam
(Adv.Sri.Thomson Pulthakady
For oppo.party 1 and 2)
3. M/s Kairali Ford
Ettumanoor, Kottayam
Athirampuzha P.O.
M.C Road, Parolickal Via
Ettumannoor.
(By Adv.Sri.P.Fazil)
4. The Manager
Kairali Ford Pvt.Ltd.
Office No.001 D-248
Abhishek Business Centre
Near Lekshmi Nagar Metro
Station, Delhi-110092
(Exparte)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant is the owner of 2010 model Ford Fiesta car bearing Reg. No.KL-29-C-0205. The vehicle is having an insurance package policy issued by opposite parties No.1 and 2and the premium paid was Rs.10,430/- for an IDV of Rs.3,50,000/-.
2. During the massive flood of 2018 the entire residence, property and the said vehicle were flooded and water level reached upto the battery of the vehicle which was lying in the car shed. As directed by the opposite parties the vehicle was brought to the yard at Changanassery spending an amount of Rs.4,500/-. The complainant approached the United India Insurance Company and they send their agent Sri.Bibi Paul and submitted a quotation for the repairing of the vehicle which was prepared by Mr.Sivan Pillai. As per the quotation an amount of Rs.8,92,580/- was fixed by the surveyor Mr.Sivan Pillai. The vehicle is insured for an amount of Rs.3,50,000/- for covering the damages including flood and earthquake and now the company is offering Rs.1,12,750/- for settlement instead of offering Rs.3,50,000/-.
3. As there was no reply to the letter sent by the complainant an e-mail was sent stating that the quotation for the repair work would exceed Rs.9,00,000/- and agreed for settlement of Rs.3,50,000/-. Strangely, 1st and 2nd opposite parties sent a letter stating that according to the India Motor Tariff a vehicle will be considered to be a total loss where the aggregate cost of retrieval and / or repair of the vehicle subject to terms and conditions of the policy exceed 75 % of IDV. In this case the repair basis is assessed as 53.74% of IDV only and hence the complainant is at liberty to repair the vehicle based on the matrix of repair basis assessment and submit the bill without any further delay.
4. There was total damage of vehicle as water reached up to the battery level and there is no scope for repairing. On 25.01.2019 opposite parties No.1 and 2 sent a letter offering for settlement on cash loss basis one time settlement based on flood claim matrix. They offered one time settlement of Rs.1,12,750/- instead of offering Rs.3,50,000/- which is against all the basic principle of insurance policy. Though complainant approached 2nd opposite party on many occasions to settle the claim he could not succeed. On 04.02.19 a lawyers notice was issued and there was no response. Opposite parties No.1 and 2 have committed gross negligence and carelessness in rendering proper service to the complainant and deliberately not settled claim amount. There is deficiency of service on the part of the opposite parties. Hence complaint may be allowed directing opposite parties No.1 and 2 to settle and disburse an amount of Rs.3,50,000/-. Complainant is also claiming an amount of Rs.2,00,000/- as compensation for the mental and physical agony.
5. 1st and 2nd opposite parties filed a version through its Divisional Manager mainly contenting as follows:-
This opposite parties had issued a policy and the liability of this opposite party to pay damages to the vehicle insured is according to the terms and conditions of the policy. This opposite parties had not directed the complainant to bring the vehicle to any yard. Mr.Bibi Paul is not the agent of Ford Fiesta Company. Mr.Sivan Pillai did not prepare any estimate of Rs.8,92,580/-. He is an independent panel surveyor deputed for final survey to assess the actual loss in respect of the subject claim. He has assessed the loss and submitted the report. As per the report the damage is assessed as 53.76% of IDV. As per India Motor Tariff a vehicle will be considered for total loss/ CTL, if the aggregate cost of retrieval and/or repair of the vehicle exceeds 75% of IDV. If the insured is not willing to repair the vehicle, he can opt for cash loss basis one time settlement based on matrix which is the lowest among above 4 modes of assessments. The claim may be considered for settlement on cash loss basis one time settlement for Rs.1,12,750/- retaining the wreck with insured under his risk and cancelling the policy as on the day of flood. In this mode of settlement insured has to furnish the written consent on stamp paper valued at Rs.200/- duly notarized. It is noted that the vehicle is lying in open exposed to sun and rain which may cause deterioration. Moreover the delay in repairs will cause the aggravation of damages for which the insurance company may not be liable. It is clear that the complainant is not entitled for the amount on the basis of total loss basis.
6. The opposite party intimated the complainant several times that they are ready to pay Rs.1,12,750/- on cash loss basis. It is fully in accordance with the report of approved valuer, assessor and surveyor Sri.Sivan Pillai. There is no deficiency of service or unfair trade practice from the part of these opposite parties. Complainant has not visited the office of the insurance company in connection with claim settlement. Hence the complaint may be dismissed with cost these opposite parties.
7. 3rd opposite party filed a version mainly contenting as follows:-
Complaint is bad for misjoinder. Kairali Ford is only a brand name and not the name of any legal entity. As per the records maintained by this opposite party the subject car was brought to this opposite party on 08.09.2018 as flood affected car. This opposite party intimated the matter to 1st and 2nd opposite party and they appointed Mr.Sivan Pillai, a surveyor who prepared an estimate of Rs.8,92,580/- on 13.09.18. The vehicle is lying idle since there is no response either from the complainant or the insurance company. On 15.03.19 this opposite party had sent a registered letter to the complainant to sort out the issues with opposite parties No.1 and 2. No primafacie case is brought out against this opposite party and the frivolous misconceived complaint may be dismissed.
Opposite party No.4 did not file any version and remained exparte.
8. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service from the part of the opposite parties No.1 and 2 ?
- Whether the complainant is entitled to get an order against opposite parties No.1 and 2 to settle the claim for Rs.3,50,000/- as prayed for?
- Whether the complainant is entitled to realise an amount of Rs.2,00,000/- as compensation from opposite parties No.1 and 2 as prayed for?
- Reliefs and cost?
9. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A9 from the side of the complainant and the oral evidence of RW1 and Ext.B1 & B2 from the side of opposite parties No.1 and 2. Ext.C1 commission report was marked by consent.
10. Point Nos.1 to 3
PW1 is the power of attorney holder of the complainant. She filed an affidavit in tune with the complaint and marked Ext.A1 to A9.
11. RW1 is a licensed surveyor and valuer for the last 39 years. On 13-09-18 he had inspected vehicle No.KL-29 C 205 which sustained damage during the flood of 2018. The report is marked Ext.B1. The vehicle was inspected as per Indian Motor Tariff and norms. If the loss is more than 75% of the IDV the vehicle will be recommended for total loss. Here since the damage was 53.76% of IDV it was not recommended for total loss. A matrix system was prepared for the flood affected vehicles. This vehicle was assessed as ‘C’ category since the water level was up to dash board. The total amount recommended was Rs.1,12,750/-. Ext.B2 policy and C1 commission report were marked by consent.
12. Complainant is the owner of 2010 model Ford Feista motor car bearing Reg.No.KL-29-C-0205. It was insured with the 2nd opposite party with an Insured Declared Value(IDV) of Rs. 3,50,000/- During the massive flood occurred in 2018 the vehicle was damaged since water level reached up to the battery level of the vehicle. The vehicle was shifted in a recovery van to 3rd opposite party M/s Kairali Ford for repairs. The matter was informed to the insurance company and they deputed a surveyor. The surveyor assessed damage of Rs.8,92,580/- and the company offered an amount of Rs.1,12,750/- whereas the complainant demanded Rs. 3,50,000/- being the IDV. Since the dispute was not settled complaint is filed for realizing an amount of Rs.3,50,000/- from the 2nd opposite party insurance company. Complainant is also seeking an amount of Rs. 2,00,000/- as compensation for deficiency in service and mental and physical agony. 1st and 2nd opposite parties filed a common version admitting the insurance policy. According to them as per the conditions of the policy if the repairing charges is more than 75% of the IDV only the vehicle will be recommended for total loss. Here in this case since the assessment is about 53.76%. of IDV, they offered an amount of Rs.1,12,750/-. It was also contended that a separate matrix system was adopted to assess vehicles affected by flood. 3rd opposite party filed a version admitting that the vehicle was brought to their workshop for repairs. A surveyor prepared an estimate for Rs.8,92,580/-. Since the insurance company was not ready to pay the amount, the vehicle was taken back by the complainant. The Power of Attorney holder who is none other than the wife of the complainant was examined as PW1 and Ext.A1 to A9 were marked. (Ext.A3 to A5 and Ext.A9 subject to proof). The surveyor was examined as RW1 and Ext.B1 survey report is marked. Ext.B2 policy and C1 was marked by consent.
13. The fact that complainant is the owner of the vehicle and that it was insured with the 2nd opposite party with an IDV of Rs.3,50,000/- is not in dispute. It is also an admitted case that the vehicle was damaged during the massive flood occurred in 2018. Now the dispute is regarding the amount offered by the insurance company. According to the complainant one Sri.Bibi Paul who was deputed from the insurance company submitted a quotation prepared by Sri. Sivan Pilla for an amount of Rs.8,92,580/-. According to them since the repairing charges is more than IDV they are entitled for Rs. 3,50,000/-. Per contra the insurance company contended that only if the repairing charges exceed 75% of IDV they will recovered for total loss. Here in this case the assessment of the surveyor was only 53.76% of IDV and they offered an amount of Rs. 1,12,750/-. Complainant is mainly relying upon Ext.A4 document to prove their case. Ext.A4 is an estimate seen prepared by surveyor Mr.Sivan Pillai. The total amount of Ext.A4 for repairs is Rs. 8,92,580/-. Per contra relying upon the oral evidence of RW1 and Ext.B1 report the learned counsel appearing for opposite parties 1 and 2 contended that as per the survey report the amount is only Rs. 1,12,750/-. A separate matrix system was adopted for the flood affected vehicles. As per the India Motor Tariff a vehicle will be considered for total loss if the repair charges exceeds 75% of IDV. In this case the assessment is 53.76% of IDV and they offered an amount of Rs.1,12,750/-. The surveyor was examined as RW1 by the opposite party. He deposed that on getting intimation on 13/9/2018 he inspected the vehicle at the premises of 3rd opposite party and prepared Ext.B1 report. He also stated that only if the repair charges exceed 75% of IDV they will recommend for total loss. Here in this case the since repair charge is 53.76% he recommended an amount of Rs.1,12,750/- adopting a matrix system which was adopted for the flood affected vehicle. The vehicle in question comes in C category of the matrix system.
14. As stated earlier complainant is relying upon Ext.A4 document. Ext.A4 was marked through PW1 subject to objection. It is seen prepared by surveyor Mr. Sivan Pillai. However when the said surveyor was examined as RW1, Ext.A4 was not proved by showing to him. Ext.A4 is not containing any date or the signature of the maker. Though the name of surveyor is shown as Sivan Pillai his signature is not available. Moreover as stated earlier when said Sivan Pillai was examined as RW1 it was not put to him and proved. So we are of the opinion that Ext.A4 cannot be relied upon. The evidence of RW1 coupled with Ext.B1 report shows that the repair charges assessed by him as per the matrix is Rs.1,12,750/-. Since the IDV of the vehicle was Rs.3,50,000/- the amount will come only to 53.76% and so he recommended to pay the amount. Though RW1was thoroughly cross examined nothing was brought out to discredit his testimony. Admittedly the vehicle was of 2010 model and RW1 stated that during 2018 its resale value was Rs. 2,00,000/-. Though he admitted that as per Ext.A 4 the estimate is Rs. 8,92,580/- it is not known who prepared Ext.A4. 3rd opposite party issued an estimate to him amounting to Rs. 11,00,000/-. So it can be seen that there is no consistency in the estimate prepared by 3rd opposite party.
15. Admittedly the IDV of the vehicle is Rs.3,50,000/-. Since the repair charges amounts to 53.76% of IDV the vehicle was not recommended for total loss. As per India Motor Tarriff and guidelines if the repair charges exceeds 75% of IDV then only it will be recommended for total loss. In said circumstances we are of the opinion that complainant is entitled to Rs. 1,12,750/- only. Ext.A6 letter was sent to the complainant by the Senior Divisional Manager of 3rd opposite party on 11/1/2019 informing that as per assessment amount repairs is only 53.74% of IDV and they are ready to settle for the amount. Thereafter Ext.A7 letter was sent on 25/1/2019 informing that the settlement amount is Rs. 1,12,750/- and requested complainant to submit written consent on stamp paper. However dissatisfied with the amount offered by the insurance company complainant filed this case seeking Rs. 3,50,000/- being the IDV of the vehicle. As discussed earlier though the repairing charges is shown in Ext.A4 is Rs. 8,92,580/- it was not proved by examining the person who prepared it. Since the company had offered 1,12,750/- as per Ext.A6 and A7 letters it cannot be considered that there was deficiency of service. On the basis of Ext.B1 survey report prepared by RW1 Rs.1,12,750/- was offered by the insurance company as early on 11/1/2019 and 25/1/2019 as per Ext.A6 and Ext.A7 letters. Dissatisfied with the amount the complaint is seen filed on 25/2/2019. From the evidence on record we are of the opinion that complainant is only entitled to Rs.1,12,750/- as per Ext.B1 assessment. RW1 has satisfactorily explained that complainant is not entitled for the IDV value since the repair charges come only 53.74% of IDV. The contention of the complainant that he is entitled for Rs.3,50,000/- being the IDV of the vehicle is untenable since the vehicle can be recommended for total loss only if the repair charges exceed 75% or more of IDV. After considering the entire circumstances insurance company offered an amount of Rs.1,12,750/- and we are also of the opinion that complainant is entitled for that much amount only. Complainant could not prove any deficiency of service and so there is no reason of mental or physical agony for him. As stated earlier as per Ext.A6 and A7 the company had offered amount arrived by the surveyor on 11/1/2019 and 25/1/2019. These points are found accordingly
16. Point No.4:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs. 1,12,750/- (Rupees One lakh twelve thousand seven hundred and fifty only) from the 2nd opposite party.
B) Parties are directed to bear their respective cost.
Order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 21st day of October, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Rini Philip(Power of Attorney Holder of the Complainant)
Ext.A1 - Original Power of Attorney
Ext.A2 - Copy of Insurance Certificate
Ext.A3 - Copy of Service Bill(S.O)
Ext.A4 - copy of Quotation(S.O)
Ext.A5 - Copy of email sent by the complainant to OP dtd.1/3/2019
(S.O)
Ext.A6 - Copy of Letter dtd. 11/1/2019
Ext.A7 - Copy of Letter dtd.25/1/2019
Ext.A8 - Lawyer Notice dtd. 5/2/2019
Ext.A9 - Photograph.(S.O)
Evidence of the opposite parties:-
RW1 - Sivan Pillai(Surveyor)
Ext.B1 - Survey Report
Ext.B2 - Copy of Policy certificate.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
