State Consumer Disputes Redressal Commission
The Manager vs Dr. Sajeev Mani on 31 January, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/793 (Arisen out of Order Dated 19/06/2012 in Case No. CC/08/209 of District Trissur) 1. MANAGER,NATIONAL INSURANCE CO.LTD branch office,ambika arcade,m.g.road THRISSUR KERALA ...........Appellant(s) Versus 1. DR.SAJEEV MANI ANIKASSERY HOUSE,IKKANDAWARRIER ROAD,OLLUR.P.O THRISSUR KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SMT.A.RADHA MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO.793/2012
JUDGMENT DATED 31/01/2014
(Appeal filed against the order in CC No.209/2008 on the file of CDRF, Thrissur dated 19/06/2012)
PRESENT:
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
APPELLANT:
The Manager,
National Insurance Co. Ltd.,
Branch Office, Ambika Arcade,
M.G. Road, Thrissur.
(By Adv: S. Rajeev)
Vs
RESPONDENT:
Dr. Sajeev Mani,
Anikkassery House,
Ikkandawarrier Road,
Ollur P.O., Thrissur.
(By Adv: Bimal.V.S)
JUDGMENT
SMT. A. RADHA : MEMBER
Aggrieved by the order passed by the CDRF, Thrissur in C.C.No.209/08, the opposite parties came up in appeal. The respondent is directed to pay Rs.2,05,801/- and Rs.5,000/- as compensation along with cost of Rs.750/-.
2. The case of the complainant is that the complainant's vehicle met with an accident and serious damage caused to the vehicle. The vehicle was entrusted for repair and as per the Insurance Policy the opposite party is liable to pay the entire cost of repair. The complainant incurred Rs.2,05,801/- for repairing the vehicle. Though the surveyor inspected the vehicle no amount was released to the complainant. On issuance of notice, the opposite party has not responded and hence the complaint filed.
3. The opposite party admitted the Insurance Policy whereas denied the liability to pay all the expenses incurred towards repair of the vehicle. The estimated loss comes to Rs.3,57,962/-. The Surveyor assessed the loss on repair basis for Rs.2,15,069/-. The IDV of the vehicle was Rs.2,57,143/-. The assessment of loss is 83.64% of the IDV and it is to be treated as constructive total loss if the loss exceeds 75% of the IDV. The Surveyor deputed by the company had not agreed for repairs nor gave instruction/work order to the repairers to repair the vehicle. The consent of the Surveyor was not handed over to carry out the repair work as such the opposite party is not legally liable to settle the claim of the complainant. As per the assessment made by the opposite party it is informed that the net liability of the company will be Rs.6,643/-. If the petitioners are not willing to accept wreck value the company will be taking the same on "as is where is condition" and settle the claim by paying the full amount ie. IDV. of the vehicle in this case Rs.2,57,143/-. Then the wreck will be the property of the opposite party. The complainant purposely suppressed what has all transpired in this case between the complainant and opposite party. There is no deficiency on the part of opposite party and the opposite party is not liable to pay the amount of Rs.2,05,801/-. There is no cause of action for claiming the compensation and the complaint is only to be dismissed.
4. The evidence consisted of proof affidavit filed by the complainant and the opposite party. Exbts.P1 to P9 and Exbts.R1 to R9 were produced in support of their case by complainant and opposite party respectively.
5. It is submitted by the counsel for the appellant that the vehicle insured with the opposite party was having valid policy commencing from 19/02/2007 to 18/02/2008. The vehicle met with an accident on 02/09/2007 causing heavy loss and the expenses for repair came to Rs.2,05,801/-. The surveyor assessed the loss for Rs.2,15,069/- against the total estimated repair of Rs.3,57,962/-. The IDV of the vehicle was Rs.2,57,143/- and the premium was remitted by the complainant. As the assessment of loss was 83.64% of IDV, the insurance will treat the vehicle on constructive total loss if the loss exceeds 75% of the IDV. He pointed out that the IDV for the private car package policy shows if the loss exceeds 75% of IDV it is to be treated as constructive total loss. As per condition No.3 under the private car package policy the company can treat the vehicle as "Constructive Total loss" if the loss exceeds 75% of the IDV. The respondent was not amenable to the condition and he repaired it himself without the instructions from the opposite party and the claim is to be treated as 'no claim'. In this case the company will take over the vehicle "as is where is condition" and the value of the wreck will be Rs.6,643/- which is the net liability of the company. As the respondent carried out the repair without the consent of the surveyor, it would be the sole responsibility of the complainant to settle the claim. It is argued that the District Forum failed to appreciate the condition No.3 of the policy. It is also pointed out that the liability of the company shall not exceed the total loss or the IDV of the vehicle as specified in the schedule minus the value of the wreck. The counsel pointed out that the vehicle was manufactured in the year 2003 and the insured value is Rs.2,57,143/-. The settlement of the claim without the consent of the Insurance Company or the surveyor tantamounts to violation of condition No.1 and 2 of the insurance policy. The Forum Below has not considered that the appellant had intimated the complainant regarding the net liability of the appellant will be Rs.6,643/-. If the complainant is not willing to accept the wreck insurance company will take over the same "as is where is condition" and settle the claim on payment of the IDV. The unilateral decision of repair of the vehicle without the consent of the insurer amounts to the violation of terms and conditions of that policy. The Forum has not applied any logic while imposing compensation and cost.
6. The submission made by the counsel for the respondent is that the appellant had not done the repair as per the estimate calculated by the surveyor. Though the surveyor inspected the vehicle nothing was transpired with regard to the repair of the vehicle. The complainant had to repair the vehicle as there had no response till the notice issued to the appellant. It is an admitted fact that the vehicle caused total loss and it is to be considered for payment of the IDV. It is also argued that there is no question of wreck as the vehicle had already repaired. There had no violation of policy on the part of the respondent. As the vehicle is having valid policy the appellant is liable to pay the repair charges of the vehicle. Being a total loss and if the loss is above 75% of IDV the complainant is entitled for the amount assessed by the surveyor.
7. Heard both parties in detail and perused the records. It is an undisputed fact that the vehicle is having valid policy during the period of accident. There is no question of not reporting of accident to the appellant. It is clear from the documents that the surveyor assessed the loss for Rs.2,15,069/-. As per the terms and conditions of the policy the insured vehicle shall be treated as constructive total loss and the appellant is entitled to the wreck "as is where is condition" and settle the claim by paying full amount of the vehicle ie., IDV of the vehicle. The complainant repaired the vehicle for Rs.2,05,801/- and as it is a total loss of the complainant is entitled for the repair charges.
8. The complainant repaired the vehicle for Rs.2,05,801/- and as it is a total loss and the complainant is entitled for the repair charges. As the instruction from the insurance company was not passed over to the complainant in time the complainant was constrained to repair the vehicle and the question of wreck does not arise. So we are of the view that the compensation and cost allowed by the Forum Below is to uphold.
In the result, appeal is dismissed and we uphold the order passed by the Forum Below. The order is to comply within 30 days on receipt of the copy of the order.
The office is directed to send a copy of this order to the Forum below along with LCR.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.793/2012
JUDGMENT DATED 31/01/2014
Sa.
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SMT.A.RADHA] MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER