IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 31st day of May, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 08/2019 (Filed on 17-01-2019)
Petitioner : Jameskutti Kurivilla,
Paruvasseril House,
Chemmalamattam P.O.
Kottayam - 686508
(Adv. Jisha Baby)
Vs.
Opposite parties : (1) AVG Motors,
Near St. Dominic College,
Podimattam, Parathod,
Kanjirappalli – 686512
(Adv. Sony Sebastian)
(2) Popular Vehicles and Services Ltd.
12th Mile, P.P. Road, Pala
(3) Maruti Insurance Broking Pvt Ltd.
Nelson Mandela Road,
Vasantkund, New Delhi – 110070
(Adv. Saji S. Nair and
Adv. P. Jayabal Menon)
Additional opposite party : (4) The Divisional Manager,
(Impleaded as per Order HDFC Ergo General Insurance
in IA 173/21 dtd.10-09-21) Co. Ltd. Chicago, Plaza,
Rajaji Road, Near KSRTC Bus stand
Ernakulam – 682035
(Adv. Saji Issac K.J)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows;
Complainant is the owner of the Maruthi Eco vehicle registration no. KL-35-G-4254. On 12-6-2018 the said vehicle collided with motor bike bearing Reg no. KL-35-F-2478 near Pinnakkanadu, Erattupetta and thereby caused severe damage to the vehicle. As a result of the accident the passengers of the bike sustained injuries and they were hospitalized. Due to the accident the complainant had suffered high variation in blood pressure and fever and got admitted at Caritas hospital for few days. After discharge from hospital complainant entrusted the vehicle to the second opposite party for repair works. Though the second opposite party assured that they would return the vehicle after 8 days, they did not carried out the repair works as offered by them. Due to the negligence of the second opposite party the complainant took back the vehicle and entrusted to first opposite party for repairing the vehicle. Later they informed that the vehicle was repaired and demanded to pay the cost of repair work as the insurance claim was
rejected by the insurer. It is alleged in the complaint that the insurance claim was rejected at the request of the second opposite party it is further alleged in the complaint that the insurance claim was rejected on the ground that there was a difference in date of accident which was furnished with the second opposite party. According to the complainant he had paid Rs.21,770/- towards the cost of repair to the first opposite party. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to refund Rs.21,770/- and to pay Rs.1,65,000/- for the deficiency in service and unfair trade practice on the part of the opposite parties along with Rs.10,000 as cost of this litigation.
Upon notice except second opposite party other opposite parties appeared before the commission and filed separate version. Despite the receipt of notice second opposite party neither care to appear before the commission or to file version. Hence the second opposite party is set ex-party.
Version of the first opposite party is as follows:
The complainant’s vehicle which had met with an accident was brought to the first opposite party’s service centre on 28-7-2018 for carrying out repairs. The complainant was then duly informed that as soon as approval was received from the insurance company since the complainant was claiming the insurance, immediate orders would be placed for the necessary parts from manufacturer of the vehicle and on receipt of parts, the repairs would be carried out and the vehicle made ready for delivery at the earliest. After dismantling the vehicle and ascertaining the damages, the claim was forwarded to the insurance company on 31-7-2018. When the same was followed up , the insurance company informed the first opposite party that an enquiry is being conducted into the said claim on account of some discrepancy in the date of accident while the complainant had taken the vehicle earlier to the second opposite party in respect of the said accident. Subsequently the first opposite party as well as the complainant were informed by the insurance company that the claim was rejected by the insurance company . thus after receiving the complainant’s approval ,immediately orders were placed for the parts and the repair works carried out without any delay and the complainant , after paying the bill amount took the delivery of the vehicle on 30-8-2018 to his total satisfaction. The allegations in paragraph 4 of the complaint are not concerning the first opposite party. The first opposite party is not aware of the complainant giving a mistaken date of accident or otherwise regarding the accident to the second opposite party. The allegation that the complainant had to undergo loss on account of the delay in delivery in the vehicle and that first opposite party also connived with the others are false. There is no deficiency in service or unfair trade practice on the part of the first opposite party.
Version of the third opposite party is as follows:
The complainant has no locustandi to initiate proceedings against the third opposite party. The complainant is not consumer of the third opposite party as defined in the consumer protection Act 1986. There exists no privity of contract between the complainant and the third opposite party. The third opposite party neither insured the vehicle nor received any premium/consideration from the complainant nor is the workshop wherein the allegedly damaged vehicle was taken for repairs. The complainant has impleaded the third opposite party without any reason and cause of action. The third opposite party is neither a necessary party nor a proper party to the complaint.
Third opposite party is merely an insurance broking entity. The role of the third opposite being a facilitator is to apprise the customers about the features and benefits of motor insurance products offered by various insurance companies. After this facilitation, customers buy insurance policy at their will and volition and pays premium which goes to the concerned insurance company. The third opposite party has no role to play in the present matter in dispute and the name of the third opposite party is liable to be deleted from the party array.
Fourth opposite party filed version contending as follows:
The complainant had availed a private car package policy for the fourth opposite party vide policy no.2311202246468000000 for the period from 1-6-2018 to 31-5-2019 for the vehicle bearing Reg no. KL-35-G-4245 having an IDV of 3,10,520. The allegation in the complaint regarding the damages caused to the vehicle of the complainant in the alleged accident on 12-6-2018 is false. The damages caused to the vehicle of the complainant was surveyed by independent licensed surveyor and loss assessor. The surveyor found that the damages caused to the vehicle was not sustained in the alleged accident on 12-6-2018 and that damages were the same damages as that of an earlier claim of the complainant. Though the accident was as alleged by the complainant occurred on 12-6-2018, there has been inordinate delay of 47 days in intimating the loss to the fourth opposite party. In reference to the old claim, as per the claim form, a vehicle coming from the front hit against the insured vehicle causing damage to the front side and front glass, the alleged damage happened on 24-6-2018. the claim was filed on 26-6-2018. The damage sustained in the said claim has been again sought to be indemnified in the current claim. During the survey it has been observed by the surveyor that damages claimed in the accident are unrelated to the date and cause of accident as reported by the complainant in claim form.
The damages does not commensurate with the cause of loss and were pre-existing damages. The entire damage claimed by the complainant in the claim form were also in existence in a previous claim submitted by the complainant. There has been misrepresentation of facts which were material to the claim. The complainant is not entitled for any reliefs and there is no deficiency in service on the part of the fourth opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A6 from the side of the complainant.
Honey Thomas Varghese who is the body shop manager of the first opposite party filed proof affidavit in lieu of chief examination. No documentary evidence from the side of the first opposite party. No oral evidence is adduced from the side of the third opposite party. Documents produced by the third opposite party along with the version is marked as exhibit B1.
Anish Bhaskaran who is the legal manager of the third opposite party filed proof affidavit in lieu of chief examination and marked exhibit B2 to B5 from the side of the third opposite party.
Heard the complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration: -
- Whether there is deficiency in service on the part of the opposite party.
- Reliefs and cost.
Point number 1 and 2
There is no dispute on the fact that complainant had availed a private car package policy for the fourth opposite party vide policy no. 2311202246468000000 for the period from 1-6-2018 to 31-5-2019 for the vehicle bearing Reg no. KL-35-G-4245. The IDV of the vehicle was 3,10,520. According to the complainant on 12-6-2018 the said vehicle collided with motor bike bearing Reg.no. KL-35-F-2478 near Pinnakkanadu, Erattupetta. Due to the said accident the vehicle of the complainant suffered severe damages. Specific case of the complainant is that though the vehicle was repaired at the
workshop of the first opposite party, the fourth opposite party who is the insurer of the vehicle rejected his claim.
The first opposite party as well as in the version and proof affidavit submitted that complainant’s vehicle which had met with an accident was brought to the first opposite party’s service centre on 28-7-2018 for carrying out repairs. It is proved by exhibit A6 that the complainant had paid Rs.21,770/- to the first opposite party towards the repair cost of the vehicle.
The fourth opposite party resisted the complaint stating that the damages caused to the vehicle was not sustained in the alleged accident on 12-6-2018 and that damages were the same damages as that of an earlier claim of the complainant.
According to the complainant due to the accident he had suffered high variation in blood pressure and fever and got admitted at Caritas hospital for few days. After discharge from hospital complainant entrusted the vehicle to the second opposite party for repair works.
When the second opposite party failed to return the vehicle after 8 days as offered by them, he took back the vehicle and entrusted to first opposite party for repairing the vehicle.
The fourth opposite party contended that the complainant had filed two claim forms wherein the time of accident was different. On perusal of exhibit B3 claim form we can see that wherein it was stated that the accident was occurred on 12-6-2018 at about 12.30 p.m. Exhibit B4 which is the claim form filed by the complainant on 26-6-2018 in which it was sated that the accident was occurred
on 24-6-2018 at 2.p.m. It is pertinent to note that in two claim forms the place of accident and the vehicle involved in the accident was same. Thus it is evident that the complainant had lodged two different claim form with the fourth opposite party regarding the damages sustained to his vehicle in the accident which was occurred at Erattupetta -kanjirappally road. However exhibit A1 which is the extract of the general diary dated 27-7-2018 of Thidanadu police station proves that on 12-6-2018 at 11.30 AM the said vehicle collided with motor bike bearing Reg no. KL-35-F-2478 at near Pinnakkanadu, Erattupetta.
During the course of argument the fourth opposite party contended that the driving licence of the complainant expired on 31-10-2017 and the same was renewed only on 12-6-2018. The Joint regional transport officer, Pala has filed X1 report stating the complainant has filed application for renewal of his motor driving licence on 12-6-2018 and the renewal of licence was effected on 15-6-2018. On perusal of exhibit X1(c) we can see that there was validity gap period for the licence of the complainant from 30-10-2017 to 12-6-2018. It is proved by X1 (a) that the complainant has paid the fee for the renewal of his driving licence on 12-6-2018 at 1:32:14 Pm ie after the accident occurred. Thus it is evident from the available evidence that the complainant has no valid driving licence at the time of accident. Section 3 of the Motor Vehicles Act, 1988 requires that the car shall be driven by a person having valid driving licence. Therefore, violation of mandatory provision of law is, proved. Supreme Court in Pradeep Kumar Jain Vs. Citibank & Anr. (1999) 6 SCC 361, HDFC Vs. Kumari Reshma, (2015) 3 SCC 679, Central Bank of India Vs. Jagbir Singh, (2015) 14 SCC 788 and United India Insurance Company Ltd. Vs. Sushil Kumar Godara, 2021 SCC Online 844, held that in case of violation of Motor Vehicle Act, 1988 the insurer is absolved from its liability under the insurance policy. The impugned repudiation does not suffer from any illegality. The complaint is liable to be dismissed. Hence the complaint is dismissed.
Pronounced in the Open Commission on this the 31st day of May, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of police report dtd.27-07-18 from Thidanad Police Station
A2 – Copy of insurance certificate issued by opposite party
A3 – Copy of Registration certificate (KL-35-G-4254)
A4 – Copy of discharge summary dtd.15-06-18 from Caritas Hospital
A5-Copy of body and paint repair job slip sheet from 2nd opposite party
A6- Copy of job card retail – tax invoice
Exhibits marked from the side of opposite party
B1 – Copy of certificate of renewal of licence from Insurance Regulatory and
Development Authority
B2 – Copy of certificate of insurance cum policy schedule by HDFC ERGO
General Insurance Company Ltd.
B3 – Copy of claim form
B4 – Copy of motor insurance claim form by 4th opposite party
B5 –Copy of GD Extract of Thidanad police station as on 27-07-18
Court Exhibit
X1 – Copy of letter No.C3/1121/2022/kp dtd.20-09-22 by Joint RTO to
Assistant Registrar, CDRC, Kottayam
By Order
Assistant Registrar
