Kerala High Court
Mariam Shibu Mathew vs Oriental Insurance Company on 30 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946
WP(C) NO. 18061 OF 2017
PETITIONER/S:
MARIAM SHIBU MATHEW, AGED 40, W/O. SHIBU,
PARANKIMAMVILA, KARIVELIL P.O., EZHUKONE,KOTTARAKKARA.
BY ADVS.
SRI.ARUN BABU
SRI.G.HARIPRASAD
RESPONDENT/S:
1 ORIENTAL INSURANCE COMPANY, REPRESENTED BY ITS GENERAL
MANAGER, DIVISIONAL OFFICE, 3RD FLOOR, LIC BUILDING,
RESIEENCY ROAD, CHINNAKKADA, KOLLAM-681001.
2 DEPUTY GENERAL MANAGER, ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, METRO PALACE, OPP. NORTH RAILWAY
STATION, ERNAKULAM-682018.
3 INSURANCE OMBUDSMAN, OFFICE OF THE INSURANCE OMBUDSMAN.
KOCHI-682016
BY ADVS.
SRI.P.JACOB MATHEW
SRI.MATHEWS JACOB SR.
SMT.PREETHY R. NAIR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.18061 of 2017
2
CR
HARISANKAR V. MENON, J
W.P.(C) No.18061 of 2017
th
Dated this the 30 day of August, 2024
JUDGMENT
The petitioner was the registered owner of a Mahindra Scorpio SLX vehicle bearing Registration No.KL-24-5913, which was insured with the first respondent herein for the period from 05.04.2016 to 04.04.2017. A reference to Ext.P1 policy would show that the Insured's Declared Value of the vehicle was fixed as Rs.4,49,000/- (Rupees four lakhs forty nine thousand only).
2. On 22.05.2016, the petitioner states that the vehicle referred above, caught fire and was totally damaged. The said vehicle was taken to the authorised service center for the purpose of repairs. Quotation was provided by the service center at Ext.P2. As per Ext.P2 quotation, the service center fixed the charges for repairing the car at Rs.8,07,268/- (Rupees eight lakhs seven thousand W.P.(C) No.18061 of 2017 3 two hundred and sixty eight only), which is almost double the Insured's Declared Value as per Ext.P1.
3. The Insurance Company-the first respondent sought a report from the surveyor. There were two reports provided by the surveyor. The first report dated 07.07.2016 shows an amount of Rs.2,18,719/- (Rupees two lakhs eighteen thousand seven hundred and nineteen only) towards the materials portion and an amount of Rs.50,000/- (Rupees fifty thousand only) towards the labour charges. After considering the depreciation as against the above, the value was fixed at Rs.1,25,216/- (Rupees one lakh twenty five thousand two hundred and sixteen only). The second report dated 08.07.2016, produced as Ext.P3 in the writ petition, had shown a total amount of Rs.4,45,805/- (Rupees four lakhs forty five thousand eight hundred and five only) for carrying out the repairs. However, the said report also speaks about depreciation against glass, metal, rubber parts and paints assessed as Rs.1,79,500.36 Rupees one lakh seventy nine thousand five hundred and thirty six paise W.P.(C) No.18061 of 2017 4 only) and the balance of Rs.2,59,671/- (Rupees two lakhs fifty nine thousand six hundred and seventy one only) was alone payable to the petitioner.
4. It is pointed out by the petitioner that, the above amount was not sufficient for carrying out the work and on account of the nature of the repairs needed, the case was one of total loss of vehicle, especially when the repairs was estimated as almost double the Insured's Declared Value. Insofar, as the first respondent was not prepared for accepting the request made by the petitioner, he preferred a complaint before the third respondent as evidenced by Ext.P5. The third respondent issued Ext.P6 award dated 27.03.2017. By the said award, the third respondent found that, the net amount payable being 2,59,671/-, (Rupees two lakhs fifty nine thousand six hundred and seventy one only), which is not in excess of 75% of the Insured's Declared Value, the case at hand cannot be considered as one of total loss. Finding thus, the contention of the petitioner to treat the case as one of total W.P.(C) No.18061 of 2017 5 loss was not accepted and an award was passed directing the insurance company to pay only an amount of Rs.2,59,671/- (Rupees two lakhs fifty nine thousand six hundred and seventy one only), against the actual repairs to be carried out.
5. It is in the above circumstances that, the captioned writ petition has been filed by the petitioner.
6. I have heard Sri. Aneesh Raj, the learned counsel for the petitioner and Sri. Jacob Mathew, the learned standing counsel for the first respondent herein.
7. The sole issue arising for consideration is as regards the sustainability of Ext.P6. The facts are not in dispute. The petitioner was having a valid policy as evidenced by Ext.P1, as regards the vehicle in question. The fact that, the vehicle suffered a fire accident is also not in dispute. The authorised service center by Ext.P2 pointed out that an amount of Rs.8,07,268/- (Rupees eight lakhs seven thousand two hundred and sixty eight only) would be required for carrying out the repair and for W.P.(C) No.18061 of 2017 6 making the vehicle road worthy. It is to be noticed that, the above amount fixed by the authorised service center is almost double the Insured's Declared Value as per Ext.P1. On a reference to the survey report at Ext.P3, it is noticed that an amount of Rs.4,45,805/- (Rupees four lakhs forty five thousand eight hundred and five only) was required for carrying out the repairs, before applying depreciation. It is in the above circumstances, that the petitioner took the matter before the third respondent. The case of the insurance company is that, the case at hand is not one of total loss, since according to the insurance company, for a case to be considered as a case of total loss, the amount required for carrying out the repair works should be in excess of 75% of Insured's Declared Value. Pursuant to the directions of this court, the learned counsel for the first respondent produced a copy of the entire policy in respect of the vehicle in question along with a memo dated 09.08.2024. The standing counsel would refer to Section 1 of the policy and would contend that deduction towards W.P.(C) No.18061 of 2017 7 depreciation as against rubber, nylon, plastic etc is fixed at 50% and as regards fiber glass components a deduction of 30% towards depreciation is required. However, it is to be noticed that the method of arriving at the value in the case of total loss/constructive total loss is separately provided by the policy as under:
"IDV shall be treated as the 'Market Value"
throughout the policy period without any further depreciation for the purpose of Total Loss (TL)/Constructive Total Loss (CTL) claims.
The insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle".
8. Thus, the consideration as regards a case of total loss/constructive total loss is being provided separately under the policy. Therefore, there need not be any reference to the provision under Section 1, while considering the question as to whether a particular case would fall under the category of total loss/constructive total W.P.(C) No.18061 of 2017 8 loss. The above quoted provision of Ext.P1 shows that in case of total loss/constructive total loss, it is the market value during the policy period that is having a relevance. In such circumstances, the reference to the depreciation by the third respondent herein, while issuing Ext.P6, appears to be not correct. It is settled principle of law that a specific provision overrides the general provision. [J.K.Cotton Spinning and Weaving Mills Co. Ltd., Vs. State of Uttar Pradesh & Others AIR 1961 SC 1170]. Here the provision under Section 1 of the policy, relied on by the counsel for the petitioner is a general one, whereas the afore extracted portion of the policy, is a specific one as regards total loss/constructive total loss. In such circumstances, I have no hesitation in setting aside Ext.P6. It is found that the case at hand has to be considered as a case of total loss/constructive total loss going by the above quoted conditions under the policy.
In such circumstances, I allow this writ petition, quashing Ext.P6 issued by the third respondent herein. The W.P.(C) No.18061 of 2017 9 first respondent is directed to process the claim made by the petitioner in tune with the principles laid down above, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment.
sd/-
HARISANKAR V. MENON, JUDGE R.AV W.P.(C) No.18061 of 2017 10 APPENDIX OF WP(C) 18061/2017 PETITIONER EXHIBITS EXHIBIT-P1 TRUE COPY OF THE POLICY BEARING NO.
441492/31/2017/5 ISSUED BY THE IST RESPONDENT EXHIBIT-P2 TRUE COPY OF THE QUOTATION ISSUED BY T.V. SUNDARAM IYENGAR AND SONS EXHIBIT-P3 TRUE COPY OF THE LETTER DATED 08/07/2016 ISSUED BY THE IST RESPONDENT ALONG WITH THE SURVEY REPORT EXHIBIT-P4 TRUE COPY OF THE LETTER DATED 11/01/2017 ISSUED BY THE 2ND RESPONDENT EXHIBIT-P5 TRUE COPY OF THE COMPLAINT FILED BEFORE THE 3RD RESPONDENT ON 31/01/2017 EXHIBIT-P6 TRUE COPY OF THE AWARD DATED 27/03/2017 BEARING NO. IO/KOC/A/G1/0357/2016-17 OF THE 3RD RESPONDENT