IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 10th day of November, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No. 32/08 (Filed on 16.04.2008)Between: Giju Ravindran, aged 31, Anjilimoottil House, Nellima P.O., Thiruvalla – 689 542. (By Adv. R. Gopikrishnan) ... Complainant. And: 1. Bajaj Allianz General Insurance Co.Ltd., represented by its Administrative- Officer, G.E. Plaza, Airport Road, Yerwada, Pune – 411 006. 2. The Branch Manager, Bajaj Allianz General Insurance Co.Ltd., Anugraha, T.C. 28/2222, 2nd Floor, M.G. Road, Pazhavangadi, Thiruvananthapuram – 695 023. (By Adv. Sam Koshy) 3. The Manager, Sarathy Auto Cards, Authorised Maruti Dealer, Kuttoor P.O., Thiruvalla. (By Adv. David Koshy) ... Opposite parties. ORDER Sri. N. Premkumar (Member): The complainant filed this complaint for getting a relief from the Forum. 2. Fact of the case in brief is as follows: Complainant is the owner of a Maruti 800 car bearing Reg. No.KL-03M/3097. The said vehicle was insured with the first opposite party and the policy certificate was issued by the second opposite party. The period of policy was from 2nd May 2006 to 1st May 2007. The said policy was taken through the third opposite party. The insured value of the vehicle was ` 1,52,696 and premium of ` 5,555 was paid by the complainant and the policy number was BA-2006570. 3. On 27.08.2006, the complainant’s vehicle collided with one Ambassador car bearing Reg. No.KL-03D/9426. As a result of the accident, the complainant suffered serious injuries and he was immediately taken to Poyyanil Hospital, Kozhencherry for treatment. In the accident, Koipuram Police registered a case against the driver who runs the vehicle KL-03D/9426. Complainant’s vehicle completely damaged in the accident. After the accident, complainant’s near relatives and the complainant himself intimated the matter to the second and third opposite parties. But instead of indemnify the complainant’s loss, the second opposite party seeks some clarification based on misconcepts and he clarified the queries. 4. From the very beginning, the second opposite party was not diligent in the process of claim of the complainant. Till this time, the second opposite party has not released the legal claim of the complainant. Now the complainant convinced that the legally entitled claim of the complainant was repudiated by the first and second opposite parties on frivolous, untenable and unjustifiable grounds. The opposite parties have no right to do so. The said acts of the opposite parties amounts to deficiency in service. The complainant’s damaged vehicle was not repaired till now because of his inability to meet the expenditure for the same. The opposite parties above said acts cause much mental agony, sufferings and distress to the complainant. Hence, this complaint for getting the value of the damaged vehicle with interest, compensation and cost. 5. Opposite parties 1 and 2 entered appearance and filed version stating that complaint is not maintainable either in law or on facts. They admit that the vehicle KL03M/3097 stood insured and covering the period from 02.05.2006 to 01.05.2007. They also admit that they received a claim form from the complainant stating that the insured vehicle sustained damage consequent to a collision with an Ambassador car on 27.08.2006. Though the accident took place on 27.08.2006, the accident took place on 27.08.2006; the complainant had not given the intimation in time despite the clear stipulation that the loss should be brought to the notice of the insurer immediately. The complainant cared to lodge the claim only on 18.09.2006. No satisfactory explanation is forthcoming from the part of the complainant as to the delay. The delay in reporting the claim denied the insurance company as opportunity to conduct a spot survey so as to sort out the damage, which was sustained directly due to the accident. On the date of receipt of the intimation of the claim itself a detailed survey was conducted by the IRDA approved surveyor. 6. The opposite parties 1 and 2 had meticulously processed the claim with due application of mind and observed that the claim is not payable. While processing the claim, it was seen from the medical records that the person who was driving the vehicle at the material time was under the influence of alcohol. In the medical records it was made mentioned that the smell of alcohol was found at the time of examination by the doctor. It is pertinent to examine at the time of exclusion 2C attached to the policy with reads as follows:- 7. “The company shall not be liable to make any payment in respect of any accidental loss or damage whilst the insured or any person driving with the knowledge or consent of the insured is under the influence of intoxicating liquor or drugs”. 8. In this case, the vehicle was said to be driven by none other than the insured who is the complainant herein. On a perusal of the accident-register-wound certificate issued by Fellowship Hospital, Kumbanad, it can be seen that the complainant was brought to that hospital on 27.08.2006 at 06-55 p.m. It is clearly noted down therein that the complainant consumed alcohol. Therefore, the claim is not payable. 9. Moreover, the vehicle is of petrol engine as per registration certificate. But at the time of the alleged accident, it was fitted with LPG, fuel kit, whereas the policy has been opted by the complainant for petrol vehicle as recorded in the registration certificate. The said act amounts to the alteration and the same is done without the consent of the registering authority or the insurance company. Such an alteration behind the back of the insurance company and the registering authority makes the policy void consequent to material alteration. That reason also is sufficient to hold that the claim is not payable. During the inspection by the surveyor it was found that LPG was fitted in the car and it was not endorsed with the registering authority or insurance company as LPG increases the risk. It needs extra premium to be paid. Thus the material fact has not been disclosed and as such there is violation of the principle of utmost good faith. 10. The vehicle insured under the above said policy is registered under the private car policy. There are certain limitation as to use by which the use of vehicle is restricted to certain purposes. But in gross violation of the same the complainant was using the said vehicle for driving tuitions, which is found not endorsed in the insurance policy. The policy issued to the complainant does not operate to cover if the vehicle has been used for any purpose, which is not permitted under the policy. The complainant and his wife are running a driving school in the name and style Ammu’s Driving School. The insured vehicle also was used for driving tuition purpose. 11. The opposite parties 1 and 2 have processed the claim in view of the said matters herein above and found that the claim is not payable and rightly repudiated the claim and the same was intimated to the complainant. Therefore opposite parties 1 and 2 canvassed for the dismissal of the complaint with cost. 12. 3rd opposite party entered appearance and filed separate version stating that the claim is against the 1st and 2nd opposite parties. The 3rd opposite party has been formally impleaded in the party array in this complaint. They admit the accident on 27.8.2006 and the damaged vehicle was taken to the 3rd opposite party for repairs. The opposite parties 1 and 2 refused to indemnify the claim. The 3rd opposite party is not a necessary party in this complaint. The insurance policy is between the owner of the vehicle and the 1st and 2nd opposite parties. 13. There is no allegation in the complaint against the 3rd opposite party. Neither any deficiency of service nor any negligence had been alleged by the complainant against the 3rd opposite party. Repairs and maintenance due to the accident of the vehicle was effected accepting the settled principles as per the terms and conditions in the policy. The insurance company conducted the survey. The 3rd opposite party is not liable to pay any compensation to the complainant as indicated in the prayer B in the complaint. The 3rd opposite party is not liable to pay cost of the proceedings to the complainant. Therefore 3rd opposite party canvassed for the dismissal of the complaint with cost. 14. From the above pleadings, the following points are raised for consideration: (1) Whether the complaint is maintainable before the Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 15. Evidence of the complaint consists of the proof affidavit filed by the complainant along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 to A7 and C1 to C4. 16. Evidence of opposite parties consists of the proof affidavit filed by the opposite parties 1 and 2 along with certain documents. Documents produced were marked as Ext.B1 to B5 series. Surveyor was examined as DW1. After the closure of evidence, both parties were heard. 17. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A7. Ext.A1 is the copy of registration certificate of vehicle No.KL-03M/3097. Ext.A2 is the copy of insurance certificate issued by opposite parties 1 and 2. Ext.A3 is the copy of FIR registered by the Koipuram Police connected with the accident of the vehicle. Ext.A4 is the mahazar of the vehicle. Ext.A5 is the discharge summary of the complainant issued from Poyanil Hospital. Ext.A6 is the attested copy of FIR and FI statement from Judicial First Class Magistrate Court II, Pathanamthitta. Ext.A7 is the attested copy of mahazar and vehicle mahazar from Judicial First Class Magistrate Court II, Pathanamthitta. Commissioner was examined as PW2 and marked as Exts.C1 to C4. Exts.C1 and C2 are the Commission Reports. Ext.C3 is the photos of the vehicle. Ext.C4 series are the negatives of Ext.C3. 18. In order to prove the opposite parties’ case, opposite parties 1 and 2 filed proof affidavit along with certain documents. Documents produced were marked as Exts.B1 to B5 series. Ext.B1 is the accident register-cum-wound certificate of the complainant issued from Fellowship Mission Hospital. Ext.B2 is the motor insurance claim form. Ext.B3 is the copy of terms and conditions of Bajaj Allianz. Ext.B6 is the final survey report of the surveyor. Ext.B5 is the 2 C.D. of the vehicle. Ext.B5(a) is the photos (2 in number) of the vehicle. 19. On the basis of the contention and averment of the parties, we have perused the entire material on record. It is seen that there is no dispute regarding the accident and the validity of insurance policy. Opposite parties contention is that the complainant who had driven the vehicle at the time of accident was under the influence of alcohol. Moreover, complainant altered the vehicle and fitted with LPG fuel kit without the consent of registering authority and also the vehicle was used for driving tuitions. For the above said violations, the claim is repudiated and the repudiation is legal. 20. On a perusal of Ext.B1, it is seen that the doctor recorded ‘smell of alcohol’ in the wound certificate. A mere smell of alcohol does not mean that he is under the influence of alcohol unless otherwise proved. Smell of alcohol stated by the doctor in Ext.B1 is not sufficient to record a finding that the complainant was driving the vehicle in the state of intoxication or under the influence of intoxicating liquor or drug. There is no report regarding the clinical finding of blood test or breathing test to corroborate Ext.B1. The doctor who recorded Ext.B1 has not cited as a witness to prove their contention. Moreover, Ext.A6 does not reveal that complainant was under the influence of alcohol. On a perusal of Exts. A4, A6 and A7, it is pertinent to note that an Ambassador car bearing reg. No. KL-03D/9426 driven in a rash and negligent manner and hit complainant’s vehicle. Therefore, it is seen that the cause of accident is not the fault of the complainant. In the above said fact and circumstances, repudiation of complainant’s claim is not justifiable. 21. With regard to the allegation of alteration of LPG fuel kit and driving tuition, there is lack of positive and convincing evidence to prove the same, which is evident in DW1’s deposition, which is as follows: “B4þ hml\w driving schoolþ\v D]tbmKn¡p¶Xmbncp¶psh¶v {]tXyIn¨v tcJs¸Sp¯nbn«nÔ. (Page No.3) “LPG switch panel Dmbncp¶Xmbn tcJs¸Sp¯nbn«nÃ. LPG kit-þ DÄs¸« bmsXmcp kwKXnIfpw hml\¯n In«nÔ. (Page No.4) 22. On a perusal of Ext.C2 Commission Report, it is cystal clear that the vehicle has neither fitted LPG kit nor modified dual control for driving tuition. The report from C2 in page No.3 is as follows: “hml\w ]cntim[n¨ kab¯v Sn hml\w driving schoolþsâ Bhiy¯nte¡v D]tbmKn¡¯¡ hn[¯n modify sN¿p¶Xn\mbn Duel control (clutch pedal and brake pedal) ]nSn¸n¨n«pÅXmbn ImWp¶nÃmsb¶pw, Sn Imdn LPG kit LSn¸n¨Xmbn ImWp¶nsöpw, AXn\pÅ Hcp¡§Ä \S¯nbn«pÅXmbn ImWm³ km[n¡m¯Xpw BIp¶p”. 23. Even for argument sake, if we admit the allegation of LPG kit, the cause of accident is not due to LPG kit fitted in car. Evidence on record shows that accident is caused by an Ambassador car coming from opposite direction and hit the complainant’s vehicle. Therefore, there is no nexus between the allegation of LPG kit fitted in car and the cause of accident. 24. From the over all fact and circumstances of the case, it is found that repudiation of complainant’s claim is irrational, unfair and against the principle of consumer justice. It is a clear deficiency of service. Evidence shows that the damaged vehicle is repairable. Therefore, complaint is partly allowable and maintainable before the Forum. Opposite parties 1 and 2 are liable to pay the claim based on Ext.B4 report with interest and cost. Since interest is allowed, separate compensation is not allowable. On a perusal of the evidence, we cannot find any deficiency on 3rd opposite party. Therefore, they are exonerating from liability. 25. In the result, complaint is partly allowed, thereby opposite parties 1 and 2 are directed to pay ` 93,353 (Rupees Ninety three thousand three hundred and fifty three only) with 7% interest to the complainant from the date of filing of this complaint till this date. Complaint is also allowed to realise ` 2,000 (Rupees Two thousand only) as cost from them. The amount so awarded is to be given to the complainant within one month from the date of receipt of this order, failing which the whole amount will follow 10% interest per annum from this date, till the realisation of the whole amount. Pronounced in the Open Forum on this the 10th day of November, 2010. (Sd/-) N. Premkumar, (Member) Sri. Jacob Stephen (President) : (Sd/-) Smt. C. Lathika Bhai (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Giju Raveendran. PW2 : Vinodkumar. R. Exhibits marked on the side of the complainant: A1 : Photocopy of the certificate of registration. A2 : Photocopy of the certificate of insurance. A3 : Photocopy of the First Information Report registered by Koipuram Police. A4 : Photocopy of the mahazar. A5 : Photocopy of the discharge summary. A6 : Photocopy of the FIR and FIS statement submitted before the Judicial First Class Magistrate Court II, Pathanamthitta. A7 : Scene mahazar and vehicle mahazar Witness examined on the side of the opposite parties: DW1 : Biju Cyriac. Exhibits marked on the side of the opposite parties: B1 : Photocopy of the accident register-cum-wound certificate. B2 : Motor Insurance Claim Form. B3 : Photocopy of the Private Car Package Policy. B4 : Photocopy of the Final Survey Report. B5 : Compact Disk (2 in number) B5(a) : Photos (2 in number). Court Exhibits: C1 & C2 : Commission Reports. C3, C3(a), C3(b), C3(c), C3(d), C3(e) & C3(f) : Photos (7 in number) C4 Series : Negatives. (By Order) Senior Superintendent. Copy to:- (1) Giju Ravindran, Anjilimoottil House, Nellima P.O., Thiruvalla – 689 542. (2) Administrative Officer, Bajaj Allianz General Insurance Co.Ltd., G.E. Plaza, Airport Road, Yerwada, Pune – 411 006. (3) The Branch Manager, Bajaj Allianz General Insurance Co.Ltd., Anugraha, T.C. 28/2222, 2nd Floor, M.G. Road, Pazhavangadi, Thiruvananthapuram – 695 023. (4) The Manager, Sarathy Auto Cards, Authorised Maruti Dealer, Kuttoor P.O., Thiruvalla. (5) The Stock File. | 
