T.MARIMUTHU vs Oriental Insurance Co.Ltd.

THE complainant T. Marimuthu has insured his Ashok Leyland Cargo vehicle with the opposite party Oriental Insurance Company Ltd., for the period from 27.2.1996 to 26.2.1997 for a sum of Rs. 4,15,000/-. THE said vehicle met with a serious accident on 21.3.1996 within the limits of Kangeyam Police Station in which the vehicle was badly damaged. With the help of M/s. Malabar Engineering Works, the complainant brought the vehicle towing to M/s. T.V. Sundaram Iyengar & Sons, Trichy. According to the complainant, for that he spent a sum of Rs. 6,000/-. Now the case of the complainant is that he sought for quotations from M/s. T.V. Sundaram lyengar & Sons, Trichy for repairing the vehicle. THEy quoted a sum of Rs.3,66,340/- indicating that anything can be done only after dismantling the engine. M/s. Thangarethinam Industries has quoted a sum of Rs. 49,500/- for construction of body of the vehicle. Based on these quotations, on 11.4.1996, the complainant made a claim for Rs. 4,15,840/- with the opposite party Insurance Company. THE opposite party deputed a Surveyor to make an assessment of the damage, but the survey report has not been made available to the complainant. THE further case of the complainant is that even though he made the claim on 11.4.1996, the claim has not been settled till date. On account of the said conduct of the opposite party, the complainant has been put to unnecessary inconvenience and irreparable loss. THE complainant has prayed for an award for a sum of Rs. 4,15,000/- being the insurance amount; Rs. 6,000/- as towing charges, rent @ Rs. 30/- per day charged by M/s. T.V. Sundaram Iyengar & Sons, Trichy for the space occupied by the vehicle; Rs. 75,000/- towards misery created to the complainant by the delay caused by the opposite party in settling the matter and a sum of Rs. 5,000/- as the estimate charges paid to M/s. T.V. Sundaram Iyengar & Sons, Trichy.

THE opposite party contended that they had arranged for spot survey and later a detailed survey of the assessment of the damage. However, the complainant never wanted a copy of the survey report and therefore the allegation that no copy of the survey report was made available to him was not correct. THE opposite party took a decision to offer Rs. 2,15,000/- and informed the same to the complainant, but by his letter dated 31.7.1996, the complainant declined to accept it. THErefore, it is not correct to say that the opposite party did not take proper action in settling the claim. As per the terms of the insurance policy, in a claim of own damages, it is open to the Insurance Company to process the claim in a manner appropriate according to their finding and treat the claim either as total loss or cash loss or to accept the market value or the insured value whichever is lesser. THErefore, it is not open to the complainant to insist upon a particular method of settlement. In the present case, the opposite party has relied on the report of the Surveyor which is clear and self explanatory. THE complainant''s claim of the entire insured amount viz. Rs. 4,15,000/~ is not sustainable. THE towing charges is restricted under the policy and the complainant cannot claim Rs. 5,000/- (sic. Rs. 6,000/-). THE further claim of Rs. 5,000/- as charges for estimate and Rs. 75,000/- as damages for the misery cannot be sustained. The points that arise for consideration are: 1. whether there was deficiency in service on the part of the opposite party? and 2. if so, what relief can be granted to the complainant?

The vehicle had met with a serious accident on 21.3.1996. In the complaint, though it is not stated in so many words, it is clear that according to the complainant the loss is a total loss and therefore there is no question of repairing the vehicle and hence he must be paid the market value of the vehicle as on the date of the accident. Thus pleading, the complainant has prayed for the entire insurance amount of Rs. 4,15,000/-. The opposite party in its written version has not clearly stated as to whether they would be liable to pay the total loss or on repair basis. They have filed Ex. B-2 as the report prepared by the Surveyor. A perusal of it shows that the Surveyor has assessed the damage both on total loss basis and also on cash loss basis. In the report it is stated that the complainant was interested in settlement only on total loss basis. If the complainant is not entitled to settlement on total loss basis, the question arises as to why then the opposite party has stated so in the written version. They have simply stated that they rely on the Surveyor''s report. As stated supra, in the Surveyor''s report the estimate has been given on total loss basis also. The very fact that the Surveyor has assessed the loss on total loss basis also shows that the vehicle should have been very badly damaged. In these circumstances, it would be quite proper and just to make an award on total loss basis, that is, the complainant should be awarded the market value of the vehicle on the date of the accident. In the circumstances, it has to be considered that the vehicle had been insured on 27.2.1996 for a sum of Rs. 4,15,000/- and just within one month thereof i.e., 21.3.1996 the vehicle met with the accident. The complainant, to prove the market value, has filed Ex. A-6 as the estimate given by M/s. T.V. Sundaram Iyengar & Sons, Trichy for a sum of Rs. 3,66,340/- and Ex. A-5 as the estimate given by M/s. Thangarethinam Industries for a sum of Rs. 49,500/-. These two documents cannot be relied upon since they have not been proved by any evidence. There is no guarantee that the amounts stated therein are genuine and they are not inflated. As per Ex. B-2 Surveyor''s report, under the heading "Assessment on total basis", the market value of the vehicle had been mentioned as "Rs. 3,00,000/-". Then, deducting the salvage value of Rs. 75,000/- and adding the towing1 charges at Rs. 1,000/- and further deducting a sum of Rs. I,500/- as recovery through policy conditions, a sum of Rs. 2,24,500/- has been arrived at. We find no enough basis as to why we should not accept the market value given in the Surveyor''s report i.e., Rs. 3,00,000/ -. In these circumstances, we are of the view that on total loss basis, the opposite party has to pay to the complainant the market value of the vehicle viz., Rs. 3,00,000/-. Regarding the towing charges of Rs. 6,000/- claimed by the complainant, under the conditions of the policy, a sum of Rs. 1,000/- has been mentioned in the Surveyor''s report. Therefore, that amount can be ordered to be paid to the complainant. With regard to the claim of Rs.30/-per day as rent charges payable to M/s. T.V. Sundaram Iyengar & Sons, the Insurance Company cannot be made liable to pay that amount since they have not asked the complainant to leave the vehicle to M/s. T.V. Sundaram Iyengar & Sons. Coming to the question of a sum of Rs. 75,000/- claimed as damages for the misery caused to the complainant due to the delay caused by the opposite party in settling the claim, considering the facts of the case, it appears to us that certainly there was delay caused by the opposite party. The accident has happened on 21.3.1996. The complainant wrote a letter on 11.4.1996 to the opposite party claiming compensation of Rs. 4,15,800/-. But the opposite party have not settled the claim till date (i.e., till the date of filing of the complaint). The complaint was filed on 26.12.1996. In the written version also it is stated that the opposite party informed the complainant that they were prepared to offer a sum of Rs. 2,15,000/- but the complainant in his letter dated 31.7.1996 has rejected the said offer. But no evidence has been let in proof of such an offer having made and the alleged letter dated 31.7.1996 of the complainant which has been filed by the opposite party as Ex. B-1 is only to the Surveyor and not the opposite party and therein nothing is mentioned about any offer made by the opposite party. This shows that the opposite party have not made any offer of settlement of the claim till the complaint was filed. In this position, it would be proper to award interest to the complainant on the amount that would be payable by the opposite party for the delay. For making a proper settlement normally three months'' time is required. Now the claim was made by the complainant on 11.4.1996. So, the delay can be computed only from three months thereafter, i.e., from 11.7.1996. From this date, the opposite party is liable to pay interest till the date of payment. We do not think that the complainant can be awarded any separate amount for the alleged misery caused to him. The last claim made by the complainant is a sum of Rs. 5,000/- as the estimate charges paid by him to M/s. T.V. Sundaram Iyengar & Sons. This amount also, the Insurance Company cannot be made liable to pay as for this no evidence has been let in by the complainant.

IN the result, we pass an award directing the opposite party to pay a sum of Rs. 3,00,000/- as the market value of the vehicle, with interest thereon @ 12% per annum from 11.7.1996 till the date of payment and also a sum of Rs. 1,000/- as towing charges. We also award cost of Rs. 1,000/- to the complainant. We further order that these amounts shall be paid to the complainant within two months from today. We also state that the complainant will be at liberty to file a civil suit if he thinks that the market value would be more than the amount awarded in this order. It is made clear that the suit would be for the difference amount. Complaint disposed of.