Dismissed

K.a.Geevarghese v. National Insurance Co.Ltd

Kerala HC3 Oct 2019AS/42/2003

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal challenging a decree in a suit for insurance claim recovery. The court rejected the appellant's argument to rely on a later inspection report prepared by an adjudicator, holding it was unreliable due to the vehicle's condition and outdated repair estimates.

What did the court decide?

Appeal dismissed; impugned judgment maintaining the decree for Rs.75,511.12/- with interest is upheld.

K.a.Geevarghese Vs National Insurance Co.Ltd — Contract and Commercial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941

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AS.No.42 OF 2003

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AGAINST THE JUDGMENT AND DECREE IN O.S.NO.56/1999 DATED 10-07-2002 OF I ADDITIONAL SUB COURT,ERNAKULAM

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APPELLANT(PLAINTIFF):

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K.A.GEEVARGHESE, AGED 40 YEARS KALLAKADAMBIL HOUSE, MULANTHURUTHY, ERNAKULAM.

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BY ADV. SRI.MATHEWS K.PHILIP

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RESPONDENT(DEFENDANT):

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NATIONAL INSURANCE COMPANY LIMITED TRIPPUNITHURA BRANCH OFFICE, P.B.NO.48, MARKET JUNCTION, REPRESENTED BY ITS MANAGER.

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BY ADV. SRI.RAJAN P.KALIYATH

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AS.No.42 OF 2003

JUDGMENT

Dated this the 3rd day of October 2019

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The appellant is the plaintiff in O.S.No.56 of 1999 on the files of I Additional Sub Court, Ernakulam. The suit was filed by him for realisation of a sum of Rs.3,10,000/- with interest from the respondent. The respondent is the insurer of the vehicle belonging to the appellant. A 1991 model Goods Vehicle bearing Registration No.KL-7/C 1022 Tata 608 was damaged in a motor accident that occurred on 02.07.1998 at 4 a.m at Bernard Junction, Alappuzha. The said vehicle was hit

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by a tourist bus bearing registration No.KL-9/B 4999 and heavy damages were caused. The vehicle was insured with the respondent for a period from 30.01.1998 till 29.01.1999 and a comprehensive policy bearing No.570107/97/6306790 was issued by the respondent to the appellant.

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Immediately after the accident, on the basis of the information to the North Police Station, Alappuzha crime

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No.337 of 1998 was registered against the driver of the tourist bus for causing the accident. Since the vehicle was insured with the respondent in view of the damages sustained in the accident, the appellant had informed the respondent about the accident, following which a spot survey was conducted by an officer of the respondent. Thereafter, the vehicle was brought to Modern Automobile & Engineering Works, Chottanikkara for repairs.

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The appellant submitted a claim before the respondent on 06.07.1998 alongwith an estimate of repair works, for getting damages. A request was made by appellant to treat the vehicle as totally damaged and to compensate him, but was not accepted. The respondent was amenable only to replace damaged spare parts, which proposal, the appellant was not ready to accept. A surveyor was appointed by the respondent to inspect the vehicle on 10.07.1998. At his instruction, the spare parts were separated from the vehicle with the assistance of 4 labourers for 3 days. The surveyor failed to assess the damages properly and therefore he was replaced by another. He assessed the damages and Ext.B2

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survey report was prepared. thereafter, several

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correspondences were issued by the respondent to the appellant, but the latter did not respond to any of them. Even to the registered notice issued on 03.08.1998, the appellant did not respond. Thereupon a complaint was preferred by the appellant before the grievance cell of the respondent company. Even thereafter, no action was taken. As per the terms of the policy issued to the vehicle any disputes that occur shall be referred to an Arbitrator for it's decision. Despite a claim made by the appellant for referring disputes before an Arbitrator, the respondent did not care to take measures in that regard. Since the respondent was not ready and willing to settle the claim, the appellant was constrained to file O.S.No.56 of 1999 before the I Additional Sub Court, Ernakulam claiming Rs.3,10,000/- with interest at the rate of 12% per annum from the respondent.

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A written statement was filed by the respondent in the suit stating that the suit is not maintainable. Insurance coverage of the vehicle for the period as claimed by the appellant was admitted by the respondent. It was contended

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that subject to the terms and conditions of the policy, the maximum amount liable to be indemnified is Rs.3,10,000/-. The vehicle was not totally damaged in the accident, but sustained only damages noted by the licensed surveyor in his spot survey. Therefore, he is not entitled to get indemnification for the total amount covered by the policy issued in respect of the vehicle. Though a claim was made by the appellant before the respondent, the relevant documents required for consideration of the claim were not furnished. A detailed survey was also conducted by one Mr.B.I.Anshad, appointed to the satisfaction of the appellant and in consultation with him. A report was submitted after assessing the extend of damage as Rs.75,511.12/-. Since the appellant failed to submit repair bills and vehicular documents and even failed to get the damaged vehicle repaired in time the respondent was forced to settle his claim for the amount covered by Ext.B2 survey report. It is also contended in the written statement that the appellant has already initiated proceedings for recovering the amount from the driver, owner and insurer of the vehicle bearing registration No.KL-9/B 4999 and therefore

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the respondent is entitled to get subrogation. Accordingly, the respondent pleaded for dismissal of the suit.

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Issues were framed by I Additional Sub Court, Ernakulam based on rival pleadings of the parties. Trial was held based on issues. On the side of the appellant, himself was examined as PW1 and the Joint R.T.O, Cherthala was examined as PW2. Exts.A1 to A13 were marked on the side of the appellant. On the side of the respondents, the Administrative Officer of the respondent company was examined as DW1 and the licensed surveyor who prepared the survey report was examined as DW2. The policy copy as well as the report prepared by the licensed surveyor were marked from the side of the respondents as Exts.B1 and B2. The correspondences made by the respondent to the appellant were marked as Exts.B3 to B7 and spot survey report as Ext.B8. A commission was taken in the suit by the appellant and the report filed by the commissioner alongwith the estimate were marked as Exts. C1 and C1(a). The trial court has appreciated the oral as well as the documentary evidence adduced by both sides and ultimately decreed the suit for a

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sum of Rs.75,511.12/- with interest at the rate of 6% per annum from the date of the suit till realisation from the respondent.

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Four issues were raised by the trial court for arriving at the finding on merits. Issue Nos. 1 and 2 were found in favour of the appellant and issue No.3, against him. Consequently, the 4^th issue was answered partly in favour of the appellant and the suit was decreed accordingly. Aggrieved by the judgment partly allowing his claim the appellant has approached this Court against the disallowed part by limiting his total claim in the suit to Rs.1,61,724/- and limiting the claim in the appeal to Rs.86,212.88 (1,61,724-75,511.12).

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The contention of Sri.Mathews.K.Philip, the learned counsel for the appellant was that the trial court found issue No.4 partly against the appellant only on appreciation of the evidence in an improper manner. According to the learned counsel the trial court ought to have decreed the suit based on Ext.C1(a) report prepared by the Commissioner with the assistance of Motor Vehicle Inspector, Mattanchery. According to him as per Ext.C1(a), the total damages were assessed as

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Rs.2,43,680/- (Rs.38,790/- towards labour charges and Rs.2,04,890/- towards cost of spare parts). The appellant was entitled to get the aforesaid sum, after depreciation of Rs.40,000/- towards cost of spare parts alone. Therefore, the trial court ought to have deducted Rs.81,956/- from Rs.2,04,890/- and passed a decree for the balance sum with interest in favour of the appellant. It is also contended that the trial court is highly unjustified in relying on Ext.B2 to decree the suit. For the reasons, the impugned judgment is sought to be interfered with in the appeal.

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Sri.Rajan.P.Kaliyath, the learned Standing Counsel

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for the respondent has contended that Ext.C1(a) report was not relied upon by the trial court for reasons elaborately stated in the judgment under challenge. According to him, by Ext.A12 letter, the respondent has expressed his readiness to accept the assessment of damages by the licensed surveyor of respondent company and therefore, he cannot now deviate therefrom and to claim a higher sum as damages. It is also contended by the learned Standing Counsel that Exts.A6 to A10, produced by the appellant himself evidence the demands

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made by the respondent company to the appellant. The appellant failed to produce the required documents and that was the reason for delay in consideration of his claim. According to him in such circumstances the respondent has no other way than to rely on Ext.B2 to settle the claim of the appellant. Therefore, it is contended by the learned Standing Counsel that the judgment under challenge is not liable to be interfered with and the appeal deserves dismissal.

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According to the respondent damages were caused

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to the Goods vehicle belonging to the appellant in the accident occurred on 02.07.1998. To the satisfaction of the appellant, a surveyor was appointed to assess the damages that was resulted to the vehicle in the accident and Ext.B2 survey report was prepared. Immediately after the accident, an examination of the vehicle was done by a vehicle inspector and Ext.A4 report of inspection detailing the damages caused, was prepared. It is revealed from Exts.A6 to A10 produced by the appellant before the trial court that the appellant was addressed severally by the respondent demanding to produce the relevant documents pertaining to the vehicle and repair of

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it's damages, for settling his claim. But the appellant failed to produce any of the documents demanded by the respondent. Moreover, it is revealed from Ext.A12, a letter issued by the appellant to the respondent that the former was ready to settle the claim for the amount as fixed by the licensed surveyor. The learned counsel for the appellant, by drawing the attention of this Court to Page No.3 of deposition of PW1 contended that the appellant had only agreed to settle the claim for a sum of Rs.55,000/- as assessed by the surveyor to be granted towards labour charges and not for any settlement based on Ext.B2 as contended by the respondent. Eventhough, the recitals in Ext.A12 gather an impression as contended by the respondent, it is difficult to believe that a proposal different from the sum assessed and reported through Ext.B2 was made by the licensed surveyor. As per Ext.B2, appellant is entitled to get a sum of Rs.34,400/towards labour charges and Rs.43,111.12 towards cost of spare parts. In the aforesaid circumstances, it is improper to canvass for a position that the licenced surveyor has offered to settle the claim towards labour charges for Rs.55,000/-. The

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surveyor is not in a position to deviate from his survey report to state so. The contention of the appellant in that regard is therefore, repelled.

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In the suit filed by the appellant, it is true that a commission was taken up. The Advocate Commissioner has inspected the vehicle and filed Ext.C1(a) report. As revealed from Ext.C1(a) report, the inspection of the vehicle was done in the year 2000. As already stated the accident which caused damages to the vehicle was occurred in the year 1998, more specifically on 02.07.1998. Therefore, the inspection of the vehicle was held almost about two years after the accident. It is true that, the Commissioner has assessed the damages of the vehicle in Ext.C1(a) as Rs.2,43,680/- (Rs.38,790/towards labour charges and Rs.2,04,890/- towards cost of spare parts).

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The Motor Vehicle Inspector, Mattanchery who accompanied the Commissioner for inspection of the vehicle at the workshop was examined as PW2. Though PW2 deposed to the effect in examination in chief that the total damages assessed by him was worth Rs.2,43,680/-, as admitted by him

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during cross examination, the basis for assessment is not stated in Ext.C1(a). According to PW2, the assessment was made in the year 2000 with reference to the labour charges and cost of spare parts prevailing in that year and not with reference to the year 1998, when the accident resulting in damages to the vehicle was occurred. It is also brought out by the respondent in cross examination of PW2 that the depreciation of spare parts in terms of its use since 1991 was not deducted while arriving at the amount in Ext.C1(a). Moreover, PW2 has also stated that he was not aware of the date of accident and has not made a glance at the damages of the vehicle reported in Ext.A4 by the AMVI at the relevant time of accident. On the contrary, he had relied only on the damages visualised by him at the time of his inspection for assessment. It is also gathered from Ext. C1(a) that several parts of vehicle were reported by the Motor Vehicle Inspector, Mattanchery as rusted.

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It is revealed from the evidence on record that the vehicle was taken to a workshop namely 'Modern Automobile & Engineering Works, Chottanikkara' immediately after the

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accident. But, without getting the repair works done, it was kept idle there. Even at the time when the Advocate Commissioner alongwith the Motor Vehicle Inspector, Mattanchery inspected the vehicle at the workshop, the vehicle was found lying therein in an exposed manner. It must have been kept in that condition for two years preceding the inspection by the Advocate Commissioner and Motor Vehicle Inspector, Mattanchery and that might have been the reason for rusting of several parts noted in Ext.C1(a). PW2 has spoken during examination that he has not looked into the damages of the vehicle reported by the vehicle inspector in Ext.A4, the assessment made by him in Ext.C1(a) cannot be taken as based on the actual damages sustained by the vehicle in the accident. Rusting of certain parts of the body of the vehicle was reported by PW2. It was not noted by the licensed surveyor while preparing Ext.B2 and by the loss assessor while preparing Ext.B8, the spot inspection report. Therefore the excess damages noted by PW2 can only be the result of keeping the vehicle idle at the premises of the workshop. Moreover, PW2, during inspection has also taken

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note of damages to tyres and battery and the sum assessed in Ext.C1(a) also includes costs for replacement of those. Since no damages to tyres or battery were noted in Exts.A4 and B8 prepared by respective surveyors and loss assessors, and an assessment after excluding the damages caused to the vehicle due to keeping it idle at the premises of the workshop was not made independently by PW2, Ext.C1(a) is not liable to be relied upon. The vehicle being a 1991 model one, 40% is liable to be deducted from the total cost of spare parts, but, it has not been done while assessing the amount and for the reason also the amount arrived at by the Advocate Commissioner with the help of Motor Vehicle Inspector, Mattanchery in Ext.C1(a) is not liable to be relied upon. For the reasons, the trial court did not place reliance on Ext.C1(a). Ext.B2 was prepared by the licensed surveyor of the choice also of the appellant and the same being prepared purely based on damages reported by the vehicle inspector in Ext.A4 and the loss assessor and valuer in Ext.B8, it was relied on by the trial court to arrive at the sum payable to the appellant. None of the arguments advanced by the learned counsel for the appellant are found

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sustainable, in view of the discussions made hereinabove. This Court did not find any reason to discard Ext.B2 and accept Ext.C1(a) to enhance the amount payable to suit the claim raised by the appellant in the appeal.

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In the said circumstances, the appeal will not

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sustain. The impugned judgment is maintained.

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In the result, the appeal is dismissed with costs.

Sd/-

MARY JOSEPH

JUDGE

NAB

K.a.Geevarghese v. National Insurance Co.Ltd

Case brief

What is this about?

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K.a.Geevarghese v. National Insurance Co.Ltd

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