Oral Order : (Sri R.Lakshmi Narasimha Rao, Honble Member)
1. The respondent filed complaint seeking for indemnification of a sum of `1,93,825/-said to have been incurred for repairing of the insured Matiz car with interest, compensation and costs.
2. The respondent, is a doctor by profession insured the Matiz Car bearing registration No. AP 11 J 9958 with the appellant-insurance company for the period 25.1.2009 till 24.1.2006. On 17.5.2005 when the respondent with his family members was proceeding in the car, its left front tyre got burst, ÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂÂAXLE was broken as a result of which the respondent lost control over the steering of the vehicle and the car dashed to a lorry stationed on the side of the road and the car sustained damage.
3. The respondent made complaint to the police, Rajanagaram and intimated the accident to the appellant-insurance company. The police imposed compounding fee on the respondent. The surveyor appointed by the appellant assessed the loss caused to the vehicle. The respondent got estimated the damage caused to the vehicle by âJaya Sai Motor Rajamundry.
4. The respondent contended that the appellant failed to settle the claim for twenty months and it amounts to deficiency in service on the part of the appellant-insurance company.
5. The appellant-insurance company had contended that the police imposed fine under sections 177 r/w 184 of M.V.Act and as such the respondent is not entitled to claim damage from the appellant. The surveyor deputed by the appellant to assess the loss, requested the respondent to get dismantled the engine of the vehicle for the purpose of proper assessment of the loss caused to the vehicle and he addressed letters on 9-9-2005; 25-10-2009; 28-12-2005; 24-11-2006 and finally on 18-01-2007.
6. The respondent said to have not co-operated with the surveyor for proper assessment of damage. The respondent said to have issued notice to the appellant-insurance company after filing of the complaint before the District Forum. The appellant addressed letter dated 20-3-2007 stating the matter closed as âno claimâ.
7. The respondent, in support of his claim filed his affidavit and the documents,Ex.A.1 to A.8. On behalf of the appellant-insurance company, its Senior Assistant filed his affidavit and the documents,Ex.B.1 to B.10. During the pendency of the appeal, the appellant-insurance company has filed petition to receive documents which was allowed and the documents Exs.B11 and B12 were marked.
8. Aggrieved by the order of the District Forum, the opposite party-insurance company has filed the appeal contending that the respondent failed to co-operate with the surveyor and the respondent cannot attribute to the appellant the cause for delay in settlement of the claim and that the estimate was got prepared by the respondent to claim compensation as it contains several plastic and rubber items which cannot be reimbursed in full and other items which attract depreciation.
9. It is contended that the respondent had not examined the repairer nor filed the affidavit of the repairer and that the repairer is not a surveyor. It is contended that the vehicle is of 2002 model and having huge depreciation for value.
10. The point for consideration is whether the respondent is entitled to `1,93,825/- ?
11. The entire dispute is percolated to the amount the appellant-insurance company is liable to pay to the respondent towards indemnification in terms of the damage caused to various parts of the vehicle and the repairs undertaken thereto. On the horizon of terms of the insurance policy, the respondent claims the amount, `1,93,8825/- assessed by the repairer, Jaya Sai Motors, which was deputed by him for the purpose whereas the appellant-insurance company had stressed on the negligent attitude of the respondent in not extending co-operation to the surveyor by instructing the repairer to dismantle the engine of the car.
12. The respondent intimated the appellant on 17.5.2005 about the accident and in the letter there is request made for appointment of surveyor. The respondent enclosed copy of report submitted to the police, Rajanagaram. The surveyor addressed letter dated 9.9.2006 requesting the respondent to discuss the matter for settlement of the claim. The surveyor referred to the spot survey made by him on 3-6-2009 and the estimation made by the respondent even before the spot survey was conducted by him.
13. The surveyor in the subsequent reminder dated 25-10-2005 re-iterated the request to the respondent to attend for negotiations. It appears the surveyor requested the respondent with an intention to settle the matter as by that time the engine of the vehicle was not dismantled. The surveyor in his reminder-III dated 28-12-2005, sought for clarification from the respondent as to why seat assembly mentioned in supplementary estimate dated 20-9-2005 was not mentioned initial estimation. The letter reads as under:
âThis has reference to your claim and earlier letters dated 09.09.2005 and 25.10.2005 and I am in receipt of your estimate (supplementary) dt.20.09.2005. On 8.11.2005 the supplementary estimate shows engine Assy Rs.65,000.00 and Seat assy Rs.12,000.00. Coming to the engine assy, I have asked both you and repairers to dismantle the engine so that I can assess the damages, if any, that could be encountered inside the engine which is not visible without dismantling. Till date you have not dismantled the engine for my verification. I would request you to direct the repairers to dismantle the engine at earliest. Coming to the seat assy I would request you to clarify as to why the seat assy was not included in the initial estimation as the damages would have been visible as they were outwards.
14. Thereafter, the surveyor issued reminders dated 15-03-2006, 21.07.2006, 24-11-2006 and 18-1-2007 pointing out non-co-operation from the respondent and the repairer in dismantling the engine of the vehicle and he expressed his opinion that without the engine being dismantle, the damage to its parts cannot assessed and he expressed doubt as to how the seat assembly could be mentioned in supplementary estimation though not stated in the initial estimation despite seat assembly is clearly visible.
15. The respondent had denied the request made by the surveyor by issuing several reminders. The initial estimation and final estimation submitted by the respondent are prepared, as seen from reminders of the surveyor, without dismantling the engine. The repairer Jayasai Motors has assessed the loss to the âengine assembly at `65,000/-. The appellant had addressed letter dated 24-02-2007 informing the respondent that the claim would be closed if he does not arrange for dismantling of the engine. The letter reads as follows:
âWe would like to draw your kind attention to the personal discussions/Telephonic conversations the Undersigned had with you on several occasions and the correspondence exchanged by the surveyor Mr.A.V.KISHORE KUMAR, Rajahmundry. The surveyor vide his latest letter dt:18/01/2007 requested you to arrange for dismantling the damaged engine to enable him to assess the loss, but no action has been taken by you till date.
We once again request you to extent your co-operation and see that the requirements for completion of Survey is complied with within 15 days from the date of this letter, failing which it will be treated that you are not interested in the claim and we will be constrained to close the file as NO CLAIM.
16. In response to the letter dated 24-02-2007, addressed to him the respondent got issued notice dt.; 15-3-2007 and the respondent has not acceded to the request made by the appellant-insurance company to dismantle the engine of the vehicle. Nowhere in the notice, the respondent referred to the assessment made by Jaisai Motors and the objection of the surveyor thereto as also his non-cooperation in dismantling the engine of the car.
17. After receiving notice from the respondent, the appellant had issued notice dated 20-03-2007, that it has closed the claim stating that
âWith reference to the above we have requested you vide our letter No.610902/Motor OD/KRC, dt:24/02/2007 to arrange your vehicle for Dismantling the damaged engine to enable the surveyor to assess the loss but no action has been taken by you till date.
Since, we have no information from our end regarding the above subject matter we treat that you are not interest in this claim, we are closing the Claim as â NO CLAIM.
18. Thus, the facts emerged from the correspondence between the surveyor and the respondent and the appellant-insurance company and the respondent are that Jaisai Motors issued estimation, initial estimation and final estimation without taking steps for dismantling the engine of the vehicle the surveyor assessed the loss without dismantling the engine of the vehicle. The surveyor assessed the loss at `.47,338/-. The respondent got the supplementary estimate in respect of the seat assembly which was not damaged; the estimate in regard to the engine assembly includes the parts not covered by the terms of the insurance policy.
19. The surveyors report filed along with appeal would show the assessment made by him as follows.
SUMMARY OF ASSESSMENT
DESCRIPTIONÂ Â Â Â Â ESTIMATION ASSESSED
Spare Parts         169825.00 36838.00
Cabin  0.00                  0.00
Body  0.00                 0.00
Labour Charges    240000.00 13500.00
     193825.00 50338.00
     Less: Salvage value   3000.00
    47338.00
     Less: Policy Excess   500.00
    46838.00
     Add: Spot reapirs/Towing charges   500.00
     NET LOSS ASSESSED  47338.00
    20. The surveyor, thus assessed the loss to the tune of `47,338/-. The assessment made by Jaisai Motors as regards to damage caused to the engine assembly of the vehicle is for `65,000/-. The admitted fact being the Assessment made while the engine was intact and in view of the objection as to the damage caused to only certain parts of the vehicle, we consider the assessment as to the damaged parts of the engine assembly would be reasonable if the amount as assessed by the repairs, `65,000/- is reduced to `33,000/-.
21. The respondent should not be oblivious of his negligence in taking steps for dismantling the engine of the car. The amount arrived at, by the surveyor, `47,338/- plus the reduced sum from what was assessed by the repairs âJaisai motors `33,000/- comes to `80,338/- rounded off to `80,340/- is payable by the appellant-insurance company, with interest @ 9% per annum from the date of filing of the complaint.
22. In the result, the appeal is allowed. The order of the District Forum is modified. The appellant/opposite party directed to pay a sum of `80,340/- with interest @ 9% per annum from the date of filing of complaint till payment. The parties shall bear their own costs.