IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of March, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 99/2010 Filed on 09.07.2010)
Between:
Sri. Siju.K. Pius,
Kulathinte Melethil,
Thattayil P.O., Adoor,
Pathanamthitta.
(By Adv. Lalu John) …. Complainant.
And:
Branch Manager,
The New India Assurance Company Ltd.,
Changayil Building,
College Road, Pathanamthitta.
(By Adv. P.D. Varghese) …. Opposite party.
ORDER
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The case of the complainant in brief is as follows: The complainant is the registered owner of a Fiat Palio Car bearing Reg.No.KL-26/9569. The said vehicle was insured with the opposite party vide policy No.76090331090100002748. The policy coverage starts from 10.07.2009 and it expires on 09.07.2010. While so, the vehicle met with an accident/malacious act on 12.07.2009 at Gavi and the matter was reported to Moozhiyar police and they registered a case as Crime No. 47/2009 u/s.294(b), 427 R/W 34 IPC. The matter was also reported to the opposite party and the vehicle was taken to Kulathumkal Motors Service Centre, Thiruvananthapuram. After that the surveyor deputed by the opposite party assessed the loss and the complainant submitted claim form along with all relevant documents to the opposite party. But the opposite party repudiated the claim of the complainant and gave written communication to that effect on 03.03.2010. The complainant further states that there was inordinate delay in taking a decision. The act of the opposite party caused loss, damages, inconvenience and mental agony to the complainant and it is a clear deficiency in service and unfair trade practice. Hence this complaint for the realization of ` 1,50,860 with its interest at the rate of 12%, spent by him for the repairs of the vehicle along with compensation of `50,000 and cost of this proceedings.
3. Opposite party filed version and contended that the allegations levelled against opposite party are not correct and the complaint is not maintainable either in law or on fact. The opposite party admitted that they had issued a policy to vehicle No.KL.26/9569 for a period from 10.07.2009 to 09.07.2010. They contended that the immediate prior policy was issued by Reliance General Insurance Company. Opposite party issued the policy to the complainant on the basis of the proposal form and declaration dated 10.07.2009 and as per the declaration, the complainant affirmed that no claim has arisen in the expiring policy period. Complainant further declared that if the declaration is found to be incorrect, all benefits in the policy will be forfeited. On relying the declaration, the opposite party allowed 20% no claim bonus from the total premium. The opposite party states that the complainant suppressed material fact and thereby committed fraud. The opposite party further contended that the immediate prior policy was issued by the Reliance General Insurance Company for a period from 10.07.2008 to 09.07.2009. The premium to the said policy was paid by the complainant by a cheque which was dishonoured on presentation. Thereafter the Reliance General Insurance Co. cancelled the said policy and the matter was intimated to the complainant. The complainant suppressed those facts and hence the complainant is not entitled to get the benefit of no claim bonus. The complainant submitted a claim form on 11.08.2009 stating that the complainant’s vehicle had sustained heavy damages at Gavi by the malicious acts of some unknown persons. Along with the claim form, the complainant had also produced the copy of the FIR registered by the Moozhiyar police regarding the alleged incident. As per the FIR, the incident occurred on 12.07.2010 and it was reported before the police only on 03.08.2010. The delay in reporting the matter to the police and the opposite party cast serious doubts regarding the incident. Even though opposite party deputed a surveyor to assess the loss and damage to the vehicle and the report of the surveyor shows that the damages of the vehicle is ` 1,11,842.71. The claim made by the complainant was without any basis and the same was highly inflated. On the basis of these facts, the opposite party repudiated the claim of the complainant and the same was intimated through registered letter. Hence the opposite party is not liable to the complainant and they prayed for the dismissal of the above complaint with their cost.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral testimony of PW1, DWs.1 and 2 and Exts. A1 to A7 and B1 to B8. After closure of evidence, both sides filed their argument notes and they were heard.
6. The Point: The complainant’s allegation is that the complainant’s car sustained damages due to a malicious act at Gavi on 12.07.2009 while the insurance policy of the opposite party is in force. But the opposite party repudiated the complainant’s claim for ` 1,50,860 arbitrarily. According to the complainant, the reason for the said repudiation is baseless and illegal and hence opposite party is liable to the complainant.
7. In order to prove the complainant’s case, the complainant filed proof affidavit in lieu of his chief examination along with 5 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A5. Thereafter, as per the order in I.A. 103/2011, opposite party produced 2 documents and the said documents were marked as Exts. A6 and A7 with the consent of the opposite party. Ext. A1 is the photocopy of the certificate of registration of the complainant’s vehicle. Ext. A2 is the photocopy of the policy certificate in question. Exts. A3 to A3(d) are the FIR, FIS, vehicle mahazar, site mahazar and final report respectively prepared by Moozhiyar Police in Crime No. 47/2009 registered in connection with the incident which resulted in the damage of the complainant’s vehicle. Ext. A4 is the estimate cum cash receipt for ` 1,50,860 prepared and issued by Kulathunkal Motors Service Centre, Thiruvananthapuram in respect of the damages and the repairs of the vehicle. Ext. A5 is the repudiation letter dated 03.03.2010 issued by the opposite party to the complainant. Ext.A6 is the motor final survey report prepared by the opposite party’s surveyor in respect of the damages of the vehicle. Ext. A7 is the copy of Ext. A4 estimate cum cash receipt submitted by the complainant before the opposite party.
8. On the other hand, the contention of the opposite party is that the repudiation is genuine and legal. According to the opposite party, the complainant was a policy holder and he failed to intimate the incident within time and the complainant availed the benefit of no claim bonus suppressing real facts. The above said things are violations of the policy condition and hence the complainant is not entitled to get any benefits from the opposite party.
9. In order to prove the contentions of the opposite party, the opposite party filed a proof affidavit in lieu of his chief examination along with 3 documents. On the basis of the proof affidavit, opposite party was examined as DW1 and the documents produced were marked as Exts. B1 to B3. One witness was also examined for the opposite party as DW2 and 5 documents produced were marked as Exts. B4 to B8 through DW2. Ext. B1 is the copy of policy in question attached with the terms and conditions of the said policy. Exts. B1(a) and B1(b) are the relevant portions of Ext. B1 policy. Ext. B2 is the proposal form in respect of Ext. B1 policy. Ext. B3 is the declaration dated 10.07.2009 made by the complainant in connection with the no claim bonus. Ext. B4 is the copy of insurance policy issued by Reliance General Insurance Company in respect of the complainant’s vehicle valid from 10.07.2008 to 09.07.2009. Ext. B5 is the copy of cheque dated 10.07.2008 for ` 12,763 issued by the complainant in the name of Reliance General Insurance Company drawn on HDFC Bank. Ext. B6 is the dishonour memo and the intimation in respect of the dishonour of Ext. B5 cheque. Ext. B7 is the letter dated 04.08.2008 issued by Reliance General Insurance Company in the name of the complainant informing him about the cancellation of Ext. B4 policy. Ext. B8 is the copy of postal acknowledgment card signed by the complainant in respect of Ext. B7 letter.
10. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the damages of the vehicle and the issuance of the policy. The dispute raised by the opposite party is that the complainant’s policy was not in force on the date of the incident as it was cancelled due to the violation of the policy condition committed by the complainant by availing no claim bonus by suppressing the real facts and by giving belated intimation of the incident. As per the terms and conditions of the policy in question, i.e. Ext. B1(a), there is no stipulation regarding the number of days within which the intimation shall be given. In this case, the complainant reported the matter to the police on 03.08.2009 and the opposite party on 11.08.2009. Since no specific time limit is prescribed in the policy condition for intimating the matter to the insurance company, we do not find any dis-entitlement to the complainant for the alleged belated intimation given by the complainant as he had intimated the matter within 30 days from the date of incident. So we find that there is no merit in the contention of the opposite party regarding the belated intimation.
11. The next question is with regard to the no claim bonus issue. The opposite party has not adduced any evidence to prove that the complainant had availed any claim in the previous year from the previous insurer. Though the opposite party and the previous insurer, the Reliance General Insurance Company claimed that the previous year policy was cancelled due to the dishonour of the Ext. B5 cheque. But in Ext. B4, the previous policy, there is no entry for the so called cancellation. In this context, the deposition of PW1, is much relevant which is as follows: “dne-b³kn\p \ÂInb sN¡v dishonour Bb-t¸mÄ AhcpsS representative ho«n hcn-Ibpw sN¡v XncnsI \ÂIn ]Ww hm§n-s¡mp t]mIp-Ibpw sNbvXp.”. There is no challenge from the part of the opposite party against the above statement of PW1. Further, the following deposition of DW1 is also relevant in this case. “I¼\n kÀtÆ-bÀ X¿m-dm-¡nb dnt¸mÀ«v R§Ä AwKo-I-cn-¨n-«p-Å-Xm-Wv. kw`-h-Im-e-b-f-hn R§Ä \ÂInb policy valid BWv………….-lÀPnI£n¡v NCB bv¡v AÀl-X-bn-söv a\-Ên-em-bXv lÀPn-I£n Cu tIkn-\m-kv]-Z-amb claim h¨-Xn-\p-ti-j-am-Wv…………lÀPnI£n¡v A\Àl-ambn \ÂIn-b-sX¶p ]d-bp¶ No Claim Bonus XncnsI e`n-¡p-hm³ \mfn-Xp-hsc Fs´-¦nepw \S-]Sn kzoI-cn-¨n-«nà (Q & A). Ext.A5 AÃmsX lÀPnI£n¡v aäp I¯p-IÄ H¶pw \ÂIn-bn-«nÔ. Ext. A5 was issued on 03.03.2010 which is after about 8 months from the date of commencement of the complainant’s policy. The above said statement of DW1 cuts the root of their contention. Ext. B4 the previous policy in the name of the complainant issued by Reliance General Insurance is found valid as there is no endorsement in that policy showing that the said policy is cancelled. As per the deposition of DW1, the policy in question is valid on the date of accident and they have not taken any steps for recovering the no claim bonus alleged to have been availed by the complainant illegally clearly indicates that the contention is baseless and is raised only for repudiating a genuine claim. Therefore, we find that the repudiation of the complainant’s claim is a clear deficiency in service and the opposite party is liable for the same to the complainant. Hence this complaint is allowable with cost and compensation.
12. In the result, this complaint is allowed, thereby the opposite party is directed to pay an amount of ` 1,11,842-71 (Rupees One lakh eleven thousand eight hundred and forty two and seventy one paise only) the net loss assessed by the insurance surveyor as per Ext. A6 along with compensation of ` 3,500 (Rupees Three thousand five hundred only) and cost of ` 1,500 (Rupees One thousand five hundred only) within 20 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 28th day of March, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Siju. K. Pius.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the certificate of registration of the complainant’s
vehicle.
A2 : Photocopy of the policy certificate.
A3 to A3(d): FIR, FIS, vehicle mahazar, site mahazar and final report
respectively prepared by Moozhiyar Police in Crime No. 47/2009.
A4 : Estimate cum cash receipt for Rs. 1,50,860 prepared and issued by
the Kulathunkal Motors Service Centre, Thiruvananthapuram in
respect of the damages of the vehicle.
A5 : Repudiation letter dated 03.03.2010 issued by the opposite party
to the complainant.
A6 : Motor final survey report prepared by the opposite party’s
surveyor
in respect of the damages of the vehicle.
A7 : Copy of Ext. A4 estimate cum cash receipt submitted by the
complainant before the opposite party.
Witness examined on the side of the complainant:
DW1 : Usha Alexander.
DW2 : Mahesh. M.
Exhibits marked on the side of the complainant:
B1 : Copy of insurance policy with terms and conditions.
B1(a) & B1(b) : Relevant portions of Ext. B1 policy.
B2 : Proposal form in respect of Ext. B1 policy.
B3 : Declaration dated 10.07.2009 made by the complainant in
connection with the no claim bonus.
B4 : Copy of insurance policy issued by Reliance General Insurance
Company in respect of the complainant’s vehicle valid from
10.07.2008 to 09.07.2009.
B5 : Copy of cheque dated 10.07.2008 for Rs. 12,763 issued by the
complainant in the name of the Reliance General Insurance
Company drawn on HDFC Bank.
B6 : Dishonour memo and the intimation in respect of the dishonour of
Ext. B5 cheque.
B7 : Letter dated 04.08.2008 issued by Reliance General Insurance
Company in the name of the complainant.
B8 : Copy of postal acknowledgment card of Ext. B7 letter.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Sri. Siju.K. Pius, Kulathinte Melethil, Thattayil P.O., Adoor,
Pathanamthitta.
(2) Branch Manager, New India Assurance Company Ltd.,
Changayil Building, College Road, Pathanamthitta.
(3) The Stock File.
