SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed U/s 35 of Consumer Protection Act 2019, for getting an order directing opposite parties to pay Rs.30,000/- towards loss sustained to his vehicle due to accident, Rs.10,000/- towards compensation and Rs.5,000/-  towards cost of the proceedings of this case.

Brief facts of the complainant’s claim is that the complainant is an auto driver owned a diesels ape Auto rickshaw as his own bearing No. KL/59 A 6194.  The OP No.1 is an employee of 2^nd OP.  He is working as marketing sales Executive of the 2^nd OP.  He made believe the complainant that their policy is much cheaper and beneficial than the other company’s policies and induced this complainant to take a policy of their company.  Believing, in the words of the 1^st OP this complainant decided to take their policy and handed over all the copies of his documents of his vehicle including the last year policy certificate and asked him to renew the insurances coverage for his vehicle for the year 2021-2022 and accordingly as per the request of the 1^st OP this complainant had given an amount of Rs.7,666/- to the 1^st OP towards the premium of their policy.  There after the 1^st OP issued an insurance policy certificate No. OG-21-4232-4803-00000270 dated 16/01/2021 to this complainant.  The said certificate bearing the name and seal of 2^nd OP.  The vehicle number, the type of vehicle and duration of insurance etc is also mentioned in the said certificate.  On believing its genuineness this complainant received the said certificate and kept in his custody.  On 19/09/2021 at about 6 pm the above said vehicle met with an accident and sustained heavy damage.  The complainant and fellow passengers sustained injury.  Subsequently the complainant submitted a claim form to the 2^nd OP for claiming his insurance coverage.  But the 2^nd OP repudiated the claim by saying that the description of the vehicle entered in their record is not tallying with the vehicle shown in the RC certificate.  In the certificate given to this complainant the description of the vehicle is shown as ‘Piaggion Ape Model D3s’, where as in the records it is shown as ‘Bajaj Auto Rickshaw 4 Strock, Rear Engine Petrol’.  The engine number, registered number, chassis number seating capacity etc. are similarly in both the certificate.  This mistake committed in the insurance certificate is not a fault of this complainant, but due the employee of the 2^nd OP.  The policy certificate issued by the 1^st OP to this complainant contains all the particulars in a right way.  However the OP received a premium amount of Rs.7,669/- from this complainant towards the insurance of the above said vehicle.  The entire mistakes in the certificate were happened only due to the latches on the part of the OPs.  This complainant sustained heavy loss and mental pain due this incident.  The act of OP is an unfair trade practice.  There is deficiency of service occurred to the complainant.  Hence the OP either jointly or severely liable to compensate the loss.  Hence the complaint.

After receiving notices, OPs 1 and 2 filed separate versions stating their contentions.  OP1 has submitted that this OP is an employee of the 2^nd OP.  He was recruited by the Mangaloru Branch manager of 2^nd OP and was working as territory head under that particular branch.  His work includes to recruit the agents and manage those agents.  He never canvassed business from individual customers for the 2^nd OP. So he had never contacted or canvassed the complainant or any other customers for vehicle policies.  All those works are done by the agent appointed by the 2^nd OP and received money towards the premium amount by the employee or staff deputed by the concern branch at Payyannur.  Further policy certificate to the customers are issued by the 2^nd OP directly through online and all the details of the concerned vehicle was entered after perusing the documents submitted by the customers through agents.  This OP was never worked as an agent or market Sales executive under the 2^nd OP. So he never had an occasion to collect the vehicular particulars from the complainant and issue a policy certificate.  Further submitted that the contention in the complaint that the entire mistake in the certificate were happen only due to latches on the part of the OPs and that the OPs either jointly  of severally liable to compensate the loss shown in the schedule of claim mentioned in the complaint etc. are false and baseless.  There are no deficiencies of service on the part of 1^st OP.  Hence, prayed for the dismissal of the complaint.      

            OP2 contended that the averment made in the complaint are baseless and with mala fide intent.  The complainant has made misconceived and baseless allegations of deficiency of service and unfair trade practice without any documentary evidence in support of her allegations made in the complaint.  It is submitted that the date of alleged loss is 19/09/2021 but the same has been intimated to this insurance company only on 22/09/2021.   There has been delay in claim intimation which is in contravention of policy terms and condition No. 1 of the policy. Further submitted on receiving claim intimation from the complainant the said claim was registered vide claim number OC-22-1602-1803-000000194 and immediately an independent surveyor was appointed to verify the genuineness of he said claim and to assess the alleged loss.  This shows that there has been no deficiency of services on the part of the answering insurance company.  It is submitted that as per the survey report, following observations were made.  Rollover, NCB worn slab, Vehicle  make & model wrong in policy.  It is further that as per RC and physical examination the vehicle insured is Ape Diesel 3.  But as per the policy it is Bajaj Rear Engine Petrol.  The complainant has not selected the correct model while choosing the policy which has caused to receipt of less premium by this answering OP.  That there has been breach of insurance contract as it is based on utmost good faith.  As per declaration clause of the policy.  It is submitted that as per the free look up  period mentioned in transcript of proposal the complainant could have intimated the answering insurance company in case of any disagreement/ objection within 15 days but the same has not been done on the captioned case.  Hence the policy was accepted by the insured complainant.  It is submitted that the complainant has caused breach of the insurance contract by no disclosing about RC owner transfer and availing No-claim Bonus.  This answering OP had issued policy upon the declaration given by the complainant.  This shows that the complainant has given wrong declaration which has led to breach of terms and condition of the insurance policy.  As an insurer this OP has not meted out any kind of negligence, unfair trade practice or deficiency of service.  The complainant is not entitled for any kind of compensation.  The 1^st OP is not an employee of the 2^nd OP.  If the complainant had believed the 1^st OP, it must have been at eh risk of him only.  This OP denies the content that the vehicle alleged to have met with an accident has a policy with this OP.  A policy has been issued to the complainant vide policy No. OG321-4232-1803-00000270 and that the said policy has been issued subject to policy terms conditions exclusions and limitations thereof.  Hence, prayed for the dismissal of the complaint.

Complainant has filed his chief-affidavit and documents.  He has been examined as Pw1 and marked Ext.A1 to A12.  One more witness was examined on the side of complainant.  Sub inspector of police, who has submitted charge sheet against OP No.1 in crime 523/2021 of Payyannur police station under IPC  Sec 420,465,468 and 471 as Pw2.  On the side of OPs, OP1 has filed his proof affidavit and examined as Dw1 marked Ext.B1 to B3.

The claim of the complainant had been rejected by OP No.2 mainly on the ground that  on enquiry, it was found by OP2  that as per RC and physical examination the vehicle insured is Ape Diesel 3.  But as per the policy it is Bajaj Rear Engine petrol.  According to OP2 the complainant has not selected the correct model while choosing the policy which has caused to receipt of less premium by the OP No.2.  Complainant alleged that OP No.1  is an employee of OP2.  He was working as marketing sales executive of OP2.    He made believe the complainant their policy is much cheaper and beneficial than the other company’s policies and induced this complainant to take a policy of their company.  Believing, in the words of the 1^st OP this complainant decided to take their policy and handed over all the copies of his documents of his vehicle including the last year policy certificate and asked him to renew the insurances coverage for his vehicle for the year 2021-2022 and accordingly as per the request of the 1^st OP, this complainant had given an amount of Rs.7,666/- to the 1^st OP towards the premium of their policy.  There after the 1^st OP issued the insurance policy certificate                       No. OG-21-4232-4803-00000270 dated 16/01/2021 to this complainant.  The said certificate bearing the name and seal of 2^nd OP.  Vehicle number, type of vehicle and duration of insurance etc is also mentioned in the said certificate.  The complainant has submitted the said certificate, marked as Ext.A3.  Complainant further alleged that after repudiating the claim application of the complainant, OP has sent policy certificate in which the description of the vehicle is different ie in the policy issued by OP2, the description of the vehicle is shown as ‘Bajaj Auto Rickshaw 4 strock rear Engine petrol’ instead of piaggio Ape Model D3S’ The said certificate is marked as Ext.A4.  OP 2 contended that premium of the vehicle mentioned in A4 policy is less than the premium amount for Piaggioo Ape Model D3s.  Complainant has stated that he had given Rs.7669 to OP No.1 for remitting to OP2. For the premium of getting insurance.  Pw2, the investigating officer also deposed that the complainant had given Rs.7669 as premium to OP No.1.  Pw2 also deposed that on enquiry it is revealed that OP No.1 is the employee of OP No.2.  It is an undisputed matter that OP2 had received Rs.6,318/- as premium from the  complainant herein Mr. Ramesan K.  The agent of the Insurance Company is required to explain all the details and also required to do good faith work to the customers.  A common man is not supposed to know all the technicalities of law.  According to complainant here in, OP No.1 had given Ext.A3 policy certificate.  On perusing Ext.A3 certificate all the details of  the vehicle including the model are the same.  So we cannot blame the complainant by not sending reply to Ext.A5 letter sent by OP No.2.  On accepting premium and having entered into an agreement with the complainant for the vehicle bearing No.  KL/59A/6194 cannot escape out of the liability merely by saying the model of the vehicle is different.  The engine number, chassis number, RegistrationNo., seating capacity etc. are same.

            It is presumed that the proposal form was filled by the agent of the OP No.2 ie OP No.1.  Normally the complainant as an insured might have only put signature in the filled proposal form. More over in the insurance certificate given by OP No.1, the model of vehicle also seen correct.  From the evidence, it is revealed that he was so many FIR was registered against OP No.1,  from his agency work from the 1^st crime against him itself.  The insurance policies should not be issued and repudiated in such a casual mechanical manner.  The policy entitles liability on both, insured and insurer sides.  It is rather exploitation of the customer and more or less fraud on the public.  Such practice should be strongly opposed.    The evidence given by OP No.1 that he had no relation with its transaction cannot be believed from taking the evidence of Pw2  and other evidence.

            Having considered all the facts and circumstances of the present case, we find that OPs, the employee as well as employer is liable for the loss happened to the complainant.  There is no case that the accident was caused due to the negligence on the side of complainant.  Through Ext. A9, A10 and A11 the complainant proved that he had paid Rs.28,234 to the workshop for the repairing work of the vehicle happened due the accident.   Since there is no authenticity in Ext. A12, it cannot be accepted.  So OPs 1 and 2 are jointly and severally liable to pay Rs.28,234/- to the complainant with compensation and cost.

            In the result the complaint is allowed in part.   Opposite parties 1 and 2 are directed to pay Rs.28,234/-  to the complainant.  Opposite parties are further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards cost of the proceedings of the case.  Opposite parties 1 and 2 are jointly and severally liable to pay the awarded amount within one month from the date of receipt of the certified copy of this order.  Failing which the awarded amount except cost, carries interest @9% per annum from the date of order till realization.  Complainant is at liberty to execute the order as per provisions in Consumer Protection Act 2019.

Exts.

A1-Copy of RC

A2- Copy of permit

A3- Policy certificate issued by OP1 to complainant (marked with objection)

A4-Policy certificate issued by company after the receipt of claim form (subject proof) 16/01/2021

A5-Copy of the reply given by  OP3 to complainant

A6- Copy of FIR (certified copy)

A7- Charge sheet

A8- Photos of vehicle 4 in numbers

A9 Bill issued by Automobile engineering works  Rs.16,800/- (subject proof)

A10- Original bill Rs.8086/-

A11-Tax Invoice Rs.3354/- (subject Proof)

A12-Labour charge Rs.5120/-(subject proof)

B1-Certified copy of letter issued by OP2 to DYSP Payyannur (marked with objection)

B2- Job offer letter issued by OP NO.2

B3- Termination letter issued by oP2 to Asharli M

Pw1-Complainant

Pw2-Vijesh P –witness of complainant

Dw1-OP1

      Sd/                                                                                    Sd/                                                     Sd/

PRESIDENT                                                                 MEMBER                                              MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar