State Consumer Disputes Redressal Commission
The Chairman And Managing Director, vs Kavitha, on 20 June, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/42 (Arisen out of Order Dated 30/04/2011 in Case No. CC/04/295 of District Thiruvananthapuram) 1. NEW INDIA ASSURANCE COMPANY LTD M.G.ROAD MUMBAI MAHARASHTRA ...........Appellant(s) Versus 1. KAVITHA THALAKONAM,POOJAPURA, TRIVANDRUM KERALA ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 42/2012
JUDGMENT DATED : 20.6.2012
PRESENT:
SHRI. M.K. ABDULLA SONA : MEMBER
1. The Chairman and Managing Director,
New India Assurance Co. Ltd.,
New India Assurance Building,
87, Mahatma Gandhi Road,
Fort, Mumbai - 400 001.
2. The Regional Manager,
New India Assurance Co. Ltd.,
Regional Office,
Kandamathel Tower,
Post Box No. 1049, 86707,
M.G. Road, Ernakulam.
: APPELLANTS
3. The Divisional Manager,
New India Assurance Co. Ltd.,
Divisional Office,
Kottarathil Building,
Palayam, Thiruvananthapuram.
(By Adv. M. Nizamudeen)
Vs.
Kavitha, T.C. No. 17/209, Thalakonam, : RESPONDENT
Poojapura, Thiruvananthapuram.
(By Adv. Krishnakumar, amicus curiae)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Thiruvananthapuram in OP No. 295/04 which filed on 22.07.04, order dated 30.04.2011. The appellants are the opposite parties and respondent is the complainant respectively in the above order.
2. This appeal prefers under the order passed by the Forum below that directed the opposite parties to pay Rs.1,58,980/- with 12% interest from the date of filing of the complaint from 22.07.04 till realization along with a cost of Rs.2,000/- to the complainant. Since interest has been ordered, there is no separate order as to compensation.
3. In short, the complainant's car Fiat Uno car, which insured with the opposite parties Insurance Company for an amount of Rs.1,52,000/- being IDV value of the car fixed by the Insurance Company that on 05.07.2006. The car met with an accident at Vazhuthacaud, Thiruvananthapuram, causing heavy damage to it, that the accident was reported to the 3rd appellant and the police and that the complainant had lodged a claim to the 3rd appellant/3rd opposite party. The complainant's allegation is that she taken the car to the garage of the authorized dealer and service agents namely M/s. Sundaran Iyengar & sons, that the TVS garage had quoted an estimate of Rs.48,980/- and it was forwarded to the 3rd appellant/3rd opposite party, subsequent to which the car was inspected by the insurance surveyor and the damage assessed by him that the opposite parties proposed a total settlement under cash loss basis to which the complainant agreed, but even after six months there was no progress in this regard, that the complainant was told by the surveyor of the 3rd opposite party that the company had rejected the previous offer and will accept her claim only to the extend of repairing the car, that she accepted the claim unwillingly, that meanwhile the 3rd opposite party/insurance company again put up a new proposal that the car is to be shifted to another workshop for repair and that the complainant should submit a revised estimate to which the complainant unhappily agreed due to her helplessness and that the surveyor of the insurance company had directed the complainant to lift the car to a workshop namely "car care" Killippalam and that, accordingly the mechanics from that garage had gone to the TVS garage where they were informed, that an amount of Rs.15,000/- had to be paid to them before shifting the car. The respondent/complainant further contended that the demand for Rs.15,000/- made by M/s TVS was vehemently opposed by her and that the 3rd appellant/opposite party had sent a letter dated :09.01.2004 to her stating that they should be given a revised estimate failing which the claim will be treated as 'no claim' and it will be presumed that the complainant is not interested in the claim. The respondent/complainant contended that the appellants/opposite parties did not take any positive steps to settle the claim, that notice dated: 29.04.2004 was issued by her to the opposite parties demanding an amount of Rs.3,10,000/- to which the appellants/opposite parties sent a reply dated 25.05.2004 raising untenable contentions and that the act of opposite parties amounts to deficiency in service. The respondent/complainant claimed an amount of Rs.1,54,200/- as insured amount as per the policy, Rs.45,000/- towards compensation for the loss sustained for being unable to use the car, Rs.13,180/- as interest and Rs.1,00,000/- as compensation for mental agony etc, totaling Rs.3,10,000/-. Hence the complaint.
4. The opposite parties appeared and filed their joint version and contended that the petition is not maintainable. The claim was reported to the 3rd opposite party only on 02.07.2003. The complainant had submitted claim to the 3rd opposite party only after the lapse of 28 days, i.e, on 28.07.2003. On receipt of the claim the opposite parties deputed independent licensed insurance surveyor to conduct survey and assess the loss caused to the vehicle. The estimate submitted by M/s TVS was baseless, exaggerated and exorbitant. Further contended that the complainant is against M/s. TVS who had submitted an exaggerated estimate without any basis and had demanded, as per the allegations of the complainant Rs.15,000/- as estimation charges and garage rent from the complainant. It is evident from the allegations in the complaint that M/s. TVS had acted illegally. It is further submitted that the opposite parties were constrained to close the claim as no claim due to the fault of the complainant herself in not lifting the car to another workshop and not submitting a revised estimate. The averment that the opposite parties proposed total settlement on cash loss basis is not true of facts. The averment that pursuant to the letter dated 09.01.2004 sent by the opposite parties, the complainant had visited the 3rd opposite party's office and expressed her willingness to adhere to the conditions stated in the letter is false and denied. The averment that the opposite parties took no action to settle the claim is false and denied. The opposite parties had acted only in good faith and bonafide. The opposite parties are not liable to compensate the claim; the opposite parties are also not caused any delay. The complainant is not entitled to get any amount to the opposite parties.
5. The Power of Attorney holder of the complainant has filed affidavit and marked Exts. P1 to P11 on the part of the complainant. The opposite parties have filed their counter affidavit and the opposite parties have produced documents but not seen marked.
6. The Forum below raised two points mainly for consideration;
1. Whether there is any deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled for any of the reliefs claimed in the complainant?
7. The Forum below discussed above two points jointly and answered in accordance with the available evidence and the facts and circumstances of the case.
8. The Forum below taken a view that though the survey report has not been marked we have given our careful attention to both the reports. Among the two varying estimates made by the surveyor and that of the authorized dealer, we are inclined to accept the estimate prepared by the authorized workshop TVS as the same is more detailed and has the details of damages and has made recommendations accordingly. The opposite party has miserably failed to establish their contention in their version though ample opportunity to adduce evidence was given to them. Though the complainant has contended that the opposite party had initially offered total settlement under cash loss basis, there is no evidence adduced to support the same. From the above discussions and evidence on record the Forum below found that the complainant is entitled for an amount of Rs.1,48,980/- from the opposite parties as per the evidence adduced by the complainant; which stands unshaken. It is further found that an additional amount of Rs.10,000/- could be added further as the authorized workshop had stated that while dismantling or while carrying out repairs, if any major jobs needs attention or any major parts needs replacement, charges will be extra.
9. In the result, the complaint allowed and passed the above impugned order.
10. This appeal came before this commission for final hearing; the counsel for the appellant vehemently argued on the grounds of appeal memorandum that the order passed by the Forum below is not in accordance with the provisions of law and evidence. It is liable to be dismissed. The Forum below did not given ample opportunity to adduce the evidence for the appellant/opposite party. Forum below also did not follow the strict principles of law and evidence. According to the appellant; this order is not legally sustainable. The counsel for the appellant argued that the Forum below failed to appreciate the survey report produced by the opposite parties. Replace to allow the appeal and set aside the impugned order passed by the Forum below.
8. On other side, this commission appointed Adv. Krishnakumar as amicus curiae for appearing on behalf of the respondent/complainant. He argued after his detail study of the case. He submitted that the survey report just produced before the Forum below. There was no attend taken by opposite party to cross examining the complainant or to prove the survey report through the surveyor as a witness. He read the contents of the survey report. The last phara of the report; it is seeing a remarks:- the repair assessment is discharged after the superficial examination of the vehicle, when dismantling the vehicle any parts founded defective its replacement cost will be extra. This report is not having no seal of the insurance company etc. anywhere in this report. The qualification of the expert commissioner P.S. Suresh Babu DAE, DISA. The counsel strongly submitted that the survey report cannot be treated as a piece of evidence as per the provisions of the evidence act. He also submitted that the complainant produced a very detail assumption estimate from the TVS and authorized dealer and workshop of the Fiat Uno Car. It is marked as Ext. P3 and the opposite parties did not oppose the marking of the documents before the Forum below. But the counsel for the appellant argued that this documents cannot be accepted even a survey report is available regarding the amount of the repair of the car in this dispute.
9. Heard both parties in detail and perused the entire evidence available in the case records. It is seeing that there is no evidence adduced from the part of the opposite parties. The survey report of the insurance company is a recognized documents and it is valid than the estimate prepared by a private dealer and workshop. But this survey report cannot be considered as a recognized documents as per evidence Act. The 1st instance, this document is not seeing marked as exhibits. It also not seeing any steps taken the opposite party to prove this document through their surveyor who prepared this report. There is no seal of the surveyor or the seal of the insurance company in this document. This document cannot be treated as a piece of evidence as per the evidence Act. On other hand, the Ext.P3 document is the estimate prepared by the TVS, they are the dealer and service centre of the vehicle cannot be accepted fully as an evidence as per the evidence Act. In this document also, it is seen that this amount is varying on subject to so many conditions. In toto there are 3 figures are available in this case. One is sum assured as per the insurance policy Rs.1,52,000/- and the amount ordered by the Forum below on the basis of the Ext. P3 documents (estimate) is Rs.1,48,980/- and the amount assessed by the surveyor of the insurance company is Rs.62,952.75/-. It is deposed by the complainant in the box before the Forum below that the amount spent for shifting the vehicle from TVS workshop to car care workshop at Killipalam, as per the direction of the insurance company is Rs.10,000/-. There is no doubt that this amount already spend by the complainant for the above purpose as per the direction of the opposite party/insurance company.
10. In the order of the Forum below, it is seeing that the Forum below given ample opportunities to the opposite parties even though they did not mark the survey report an important document. On other side, the Forum below considered these unmarked documents and other side of totally discarded. What was the norm adopted by the Forum below that to assess the amount of Rs.1,48,980/-. It has done not accordance with any basic principle or not as per any documentary evidence. But the very same time, the complainant is definitely entitled to get an amount under the head of the insurance claim of the opposite parties. It ordered the total amount assessed by the TVS as per the estimate is not fair that also not deportable. In the circumstance, the insured amount under the policy is fixed as Rs.1,00,000/- it also directed the opposite parties to pay also Rs.10,000/- as expense spend by the complainant for shifting car from one workshop to another workshop as per the direction of the appellants. The Forum below passed the order strictly accordance with the provisions of law and evidence except the assessment of the amount ordered to pay by the opposite parties. This commission is modified this amount as Rs.1,00,000 + Rs.10,000 with interest @ 12% respectively.
In the result, this appeal is allowed in part and directed the opposite parties jointly and severally to pay an amount of Rs.1,10,000/- with 12% interest from the date of the order passed by the Forum below to the complainant along with cost of Rs.5,00/- to the complainant. The result portion of the appeal is modified accordingly. The counsel appointed by this commission Mr. Krishna Kumar as amicus curiae is also entitled to get legal remuneration of Rs.3,000/- from the Legal Aid Fund. The office is also directed to pay this amount to the Krishna Kumar.
The points of the appeal discussed one by one and answered accordingly. We do so.
M.K. ABDULLA SONA : MEMBER Da [ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER