DOF.16.7.2008

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:   President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:              Member

Dated this, the  23^rd  day of  April 2010

CC.164/2008

K.Venugopalan,

Bhama,

Kaliyangad, Post Ramdas Nagar,                                  Complainant

Kasaragod.

(Rep. by Adv.P.Vimalakumari)

1. Royal Sundaram Alliance Insurance Co. Ltd.,

   Corporate Claims Depot.

   Sundaram Towers,

   45 & 46 Whites Road,                                              Opposite parties

   Chennai 14.

  (K.Suresh Nambiar)

2. German Motors,

   B.P.6/14A P.O.Valapattanam

(Rep. by Adv.Shashi D Nambiar)

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to pay a sum of Rs.6814/- as repair charge with interest @ 10% and Rs.50, 000/- as cost of these proceedings.

            The case of the complaint in brief is as follow: complainant is the owner of the vehicle KL.14.F.9117. He purchased the vehicle on   17.8.06. It is being used as taxi which is the source of income for his livelihood out of self employment. The same is duly insured with the 1^st opposite party vide policy No.VC.45019.100. The insurance policy is arranged by 2^nd opposite party, who has internal tie up with 1^st opposite party. On 24.12.06 the vehicle was hired by a family for a travel from Kasaragod to Mysore. On 25.12.06 at about 1 A.M when the vehicle was reached Kushal Nagar, a sharp and shrill sound was heard from under the vehicle and on examination it was found that the oil tank was leaking. There was 30 liters of diesel in the tank and it was emptied within seconds. The vehicle was taken to a nearby workshop and some temporary seal were done to prevent the leakage. On 26.12.06 he contacted 2^nd opposite party. As directed by 2^nd  opposite party the complainant contacted the office of the Royal Sundaram in Ernakulam. They direct him to contact their Bangalore office, from when direction given to contact their surveyor at Mangalore. Mr.Naveenkumar. Complainant contacted the Surveyor and the vehicle was entrusted to Frontline Automobiles Mangalore for repair. Surveyor came there and assesses the damage. Thus oil tank was replaced and final bill Rs.6814/- was issued to complainant. Complainant was forced to pay the amount to release the vehicle. He was told by 2^nd opposite party that he can make claim from 1^st opposite party and get the amount refunded. The claim placed by the complainant was rejected on the ground that the damages do not tally with the scope of the policy. The damage caused solely due to the mishap on the run and it was purely an accident. More over the same happened during the warranty period. The Insurance Company keeping away from their liability by adopting unfair trade practice. In this case the repairs were done as per the direction of the Authorized service station of the General Motors. Both opposite parties caused the complainant to run between their offices. Complainant was in close contact with the office of both opposite parties. But the genuine claim repudiated as per letter dt.26.2.07. Hence this complaint.

            Pursuant to the notice opposite parties 1 and 2 entered appearance and filed version separately.

            1^st opposite party contended that the complainant made claim alleging  fuel tank was damaged due to an accident on 25.12.06. On perusal of the records 1^st opposite party came to the conclusion that the alleged cause and nature of accident does not tally with the damages. The claim form dated 8.2.07narated that on the way to Bangalore from Kasargod via Kushal Nagar a big stone came into touch with the tyre and hit the fuel tank and thereby lost 20 liters of diesel by leaking from the fuel tank. The surveyor and loss assessor proceeded to the workshop and observed that diesel tank was filled on the vehicle and found that the tank was temporarily repaired before his visit. In the final survey report dated 12.2.07 the surveyor observed that the damages to the fuel tank are irrelevant to the cause of accident. Surveyor also stated that the damages are old one and there are no new damages. In this case the repairs were carried out before the survey. Surveyor opined that  the claim may be deniedas there were total inconsistency in the nature of the accident and impact reported. The claim was repudiated on the ground that the cause and nature of accident does not tally with the damages. The exclusion clause also attracted in this matter which states that the company shall not liable to make any payment in respect of consequential loss, depreciation wear and tear. The surveyor has made a clear observation that the damages appear to be old and not a new one. Further the narration of the accident has no relevance with the actual damage caused to the vehicle. Complainant has not produced any documentary evidence to establish the occurrence of accident. Further in the claim the complainant has alleged that the police have been intimated but no documentary evidence has been attached in support of the averments. Opposite party denies the replacement. The complainant has immediately carried out temporary repairs before the surveyor could assess the nature and extent of the damage. Complainant has suppressed all the material facts before this Forum.

            2^nd opposite party contended that the grievances of the complainant is against 1sty opposite party. This opposite party is only a dealer of the 3^rd opposite party. The repair charges and other charges are available to the complainant in accordance with the terms and conditions of the insurance policy. Complainant has to satisfy the conditions. This opposite party promptly directed the complainant to contact the insurance company, 1^st opposite party and to do the needful. There is no service deficiency on the part of this opposite party. Hitting with a sharpened object and thereby causing damages on the oil tank could not be held as a manufacturing defect. Hence the manufacturer and this opposite party are not label for the claim raised by the complainant. Hence to dismiss the complaint against 2^nd opposite party.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the relief as claimed in the complaint/

3. Relief and cost.

            The evidence consist of oral evidence adduced by PW1 and documentary evidence Exts.A1 to A9 marked on the side of the of complainant and Exts.B1 & B2 marked on the side of opposite party. MO1 also marked by PW1 during the subsequent examination.

Issue Nos. 1 to 3

            Insurance is admitted. Complainant pleaded that on 24.12.06 the vehicle of the complainant KL.14/F.9117 was hired by a family for a travel from Kasaragod to Mysore. On 25.12.06 when the vehicle was reached at Kushal Nagar, a sharp and shrill sound was heard from under the vehicle and on examination he could understand that the oil tank was leaking. At the spot 30 liters of diesel was emptied by the leakage. The vehicle was immediately taken to nearby workshop and informed the same to 3^rd opposite party next day. But complainant was directed to contact 1^st opposite party Royal Sundaram Alliance Insurance co. Ltd., Ernakulam and they directed the complainant to contact their Bangalore office.  Royal Sundaram Alliance at Bangalore directed the complainant to contact the Surveyor Mr.Naveen Kumar at Mangalore. After contacting the surveyor came to the workshop and assessed the damage and subsequently the oil tank was replaced and a final bill of Rs.6, 814/- was paid by complainant himself. 2^nd opposite party did not pay the bill as per the policy condition. Complainant submitted claim before the insurance company.1^st opposite party on 10.3.06. But denied the claims. Complainant filed affidavit evidence in tune with the pleadings.

            It can be seen that the claim of the complainant was repudiated by 1^st opposite party on the ground that the cause and nature of the accident does not tally with the damages. The damages do not fall within the scope of the policy.

            1t opposite party contended that the tank was replaced before the surveyor could inspect the vehicle and the cause and effect on the vehicle in the alleged accident remains a mistery. Ext.B3 is the survey report and the surveyor did not recommend settlement of the claims as the accidental damage alleged and the event reported do not tally each other.

            PW1 has given evidence that the accident was informed to 1st opposite party on very next day of accident. Opposite party do admit this and also stated that a surveyor was  deputed to assess the loss. P/W1 in his chief affidavit has given evidence that the accident has taken place during the trip from Kasargod to Mysore.  2^nd opposite party in his version  stated that he had promptly directed the complainant to contact the insurance company and to do needful as such the incident was occurred far away from Kannur. Complainant also stated that it is by the direction of 1^st opposite party that he contacted the surveyor Naveen Kumar and it was with his direction that the vehicle had been entrusted to Front Line Automobiles for repair. It is a recognized service centre of General Motors. Evidence affidavit also states that new oil tank was fitted after the inspection of the surveyor. PW1 deposed in his cross examination that “service centre \n¶v tank  amä-W-sa¶v ]d-ªn-cp-¶p.  surveyor  t\m¡n-b-Xn\p tij-amWv Sm¦v amäm³ HmÀUÀ sImSp-¯Xv“. These facts were not challenged by the opposite party. Hence the incident is proved beyond doubt. The case of the opposite party is that the repair charges and other charges are available to the complainant if he satisfies the terms and conditions of the insurance policy. Opposite party did not make clear what are the terms and conditions that prevented them from settling the claims. Hitting with a sharpened object and thereby causing damages on the oil tank is definitely an accident. Those damages that carried out of such a hit cannot be considered as a manufacturing defect. It should also be considered that oil tank change had been recommended by the recognized service centre of General Motors. 1^st opposite party has no case that it is unnecessary but they contended that the claims was repudiated since they came into conclusion on perusal of the document that the alleged cause and nature of accident does not tally with the damages. But no explanation has been given what is the reason why they came in to such conclusion. Opposite party points out that in claim form it is reported that the vehicle was proceeding  towards Bangalore from Kasaragod whereas the complaint it was started from Kasaragod to Mysore via Kushal Nagar. This contradiction cannot be considered relevant since place of incident is one and the same in both statements and rout also is same. The opposite party contended that they have repudiated the claim only after proper application of mind by relying upon the observation and opinion of surveyor. But any such observation has brought before the Forum. In Ext.B2, the private and confidential motor (Final survey report) submitted by Naveen kumar, Engineer, surveyor & loss assessor observed and recorded that “Damage sustained by the vehicle justifies to the nature of the accident”.Ext.A4 the repudiation letter reveals the observation of 1^st opposite party thus: We observe from the claims papers that the cause and nature of accident does not tally with the damages”. The observation of 1^st opposite party does not tally with the remarks of the surveyor recorded in the Ext.B2 final report, whereas, it is quite contrary to his remarks. The ground upon which the claim was repudiate is unjustifiable, baseless and a step disregarding the remarks of the surveyor recorded in Ext.B2. This is only an attempt to escape from the liability. Insurance company, 1^st opposite party is liable to refund the charges.

            Complainant produced Ext.A8 cash invoice which shows he has paid Rs.6814/- as repair charges. The surveyor has computed the approximate liability as Rs.5823/-. But towing charges were not allowed in this calculation. Complainant was not given any evidence with respect to the towing charges. Even the distance between the sport of incident and nearby workshop has not been given. Hence we re not allowing any amount as towing charge. Surveyor has given a separate note with respect to the salvage. It says: “salvage as the damaged parts for which replacement have been allowed remain the property of the insurance company”. We do accept this note and consider replacement have been allowed.

            In the light of the above discussion we are of opening that complainant is entitled for the amount of Rs.5823/- as approximate liability of 1^st opposite party, based on the calculation submitted by surveyor and loss assessor Mr.Naveenkumar. The report Ext.B2 was submitted on 12.2.07 the claim was repudiated on 26.2.07. Complaint filed on 16.7.08. Date of legal notice is on 2.4.07. Since thee is no justification in disallowing the claim the insurance company is also liable to pay interest @10% from the date of 12.2.07. Complainant is also entitled for an amount of Rs.2000/- as compensation and Rs.1000/- as cost of these proceedings. Issues 1 to 3 are found in favour of the complainant.

            In the result, complaint is allowed, directing 1^st opposite party to pay a sum of Rs.5823/- (Rupees Five thousand eight hundred and twenty three only) as repair charges with interest @ 10% from 12.2.2007 till the date of payment. 1^st opposite party is further liable to pay an amount of Rs.2000/- (Rupees Two thousand only) as compensation together with Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against 1^st opposite party under the provisions of consumer protection act.

                                 Sd/-                                Sd/-                          Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1. Copy of the RC

A2.Copy of the policy

A3.Copy of claim letter dt.10.3.06

A4.Copy of repudiation letter dt.26.2.07

A5.Copy of lawyer notice sent to OP

A6 & 7.Postal  AD cards

A8.Copy of cash receipt of repair

A9.Copy of telephone bill

Exhibits for the opposite party

B1.Copy of motor insurance claim form

B2.Final survey report dt.12.2.07

Witness examined for the complainant

PW1.Complainant

                                                /forwarded by order/

                                                Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.