By Smt. PREETHI SIVARAMAN.C, MEMBER

1.The complaint in short is as follows:-

         Complainant is conducting a work shop for his livelihood.  He is the registered owner of KL-46-G-9595 Car and that was used for his livelihood purposes like purchasing spares, dropping the vehicle owners and for the use of his households etc. The said vehicle is used for his personal as well  as  for  work shop  purposes. TheToyota Etios VXD diesel  car is 2012 model and the same is insured with the opposite party as per policy No. 1019823116P105628028 for the period 29/07/2016 to 28/07/2017.  

2.       The vehicle was purchased by taking a loan bearing No PG/0198/F/15/000074 granted by  Magma Fincorp Kolkatha. The loan amount was Rs 4,00,000/- payable with  12% interest  payable  in 48 months. The balance amount for the vehicle was paid in cash. Since the financier threatened the complainant and complainant was forced to pay entire amount with interest, interest on interest and such other charges as demanded by them. Complainant again stated that the words written on the receipt issued by the financier will vanish within few days.  The last payment was made on 27/11/2018 and the amount paid is Rs 1,20,000/- .

3.      On 13/07/2017  at about  4.15 pm,  the car  belongs to  the complainant  was  hit by another vehicle bearing No.KL-53G-520 at Kulakkad  coming from  Cherpulasseri side  to Palakkad side. The vehicle came from opposite side in a rash and negligent manner with  high speed  and hit against the car of the complainant  which was driven by a driver of complainant from Palakkad to Kottakkal and the  friend of complainant Ramasubrhamanniyan died in that accident. Moreover, the car was completely damaged. The car was driven by one Noufal, paid driver of complainant. The complainant is having a work shop. The car was sent to bring spare parts from Coimbatore for the vehicle of Ramasubramaniyan was also coming to the work shop of the complainant. The estimate was taken and the opposite party deputed its surveyors. It was seen that the estimate will be more than the declared value of the vehicle. The opposite party  stated that, they  will treat this vehicle claim as total loss basis  and  they will pay  insured  declared value   of Rs.4,25,000/-. The estimate issued was for Rs.5,78,000/- by the service centre. 

4.      Complainant is a work shop owner and one day a person  came to  his  work shop  when  he was busy with working  and  he himself introduced that he is an officer  from insurance company  and he want a signature of complainant  to pass the claim. Believing the words, complainant was forced to sign in some papers and forms etc. But the claim was not paid even after months and the complainant’s vehicle was not repaired yet.

5.     Complainant submitted all records before the opposite party and   nothing was paid till this date. Whenever complainant made an enquiry opposite party always answered “still processing”. The complainant was made to wait for hours and finally the manager informed that, the claim of the complainant is repudiated on 20/07/2018.  The letter sent to the complainant was returned stating that address not correct. Opposite party informed him that the vehicle was used for commercial purpose and hence no amount will be paid.  The complainant informed them that the vehicle is used for his personal use and to bring the spare parts for his own  purpose and the driver is a paid driver of the complainant etc. The repudiation is baseless and the opposite party is harassing the complainant.

6.      The person died in that accident was an intimate friend of the complainant and he happened to get into the car on his journey to the work shop of complainant where his vehicle was entrusted for repairing.   Complainant again stated that, he had financial help from Magma Fincorp and full amount was paid by the complainant after the accident. The opposite party is trying to make out illegal gain and the complainant who paid huge sum as premium was put to suffer irreparable loss and hardship. The act of opposite party is clear deficiency in-service from their side.  Hence this complaint.

7.     The prayer of the complainant is that, he is entitled to get Rs. 4,25,000/-as the amount  for the insurance claim, Rs.3,00,000/- as compensation on account of deficiency in service  and unfair trade practice on the part of opposite party and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings. 

8.          On admission of the complaint notice was issued to the opposite party   and notice served on them and they appeared before the Commission through their counsel and filed version.

9.     In their version,   they denied all the averments in the complaint except those which are admitted there under.  They stated that when the complainant submitted the claim for damages to the vehicle KL-46-G-9595 to the opposite party, they arranged for an investigation in the matter. In this matter, Cherpulasseri police had registered Crime No. 472/2017. In that accident one Mr. Subramanian had died   and on verifying the documents it was seen that Mr. Subramanniyan had been an employee of Mr. Kabeer, owner of a perfume business.  Mr. Kabeer had engaged the vehicle for Mr. Subramanian to travel on his job and Mr. Subramaniyan had been travelling in the vehicle with perfume samples as part of his sales job  at the time of the accident.  

10.       The vehicle KL-46 G-9595 has been insured as a Private Car and as per the terms of policy and as per the statute, the vehicle is to be used only for private purposes and not for commercial purposes. By handing over the vehicle to be used for   commercial purposes and by allowing goods to be carried in it, the complainant has committed wilful breach of the terms and conditions of the policy. He is therefore not entitled to be reimbursed for the damages   sustained. 

11.    Opposite party again stated that, there is no deficiency of service from their side, hence they are not obligated to reimburse the repair charges and hence they had repudiated the claim of the complainant. As per the report submitted by the surveyor, the claim if it were to be settled should be settled on total loss basis.  The IDV of the vehicle had been Rs 4,25,000/-.  So, the complainant only be entitled to Rs 4,25,000/- minus the salvage value of the wreck.

12.         In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A3. Ext.A1 is the copy of Certificate of Insurance policy. Ext.A2 is the copy of receipt. Ext.A3 is the copy of the letter issued by Magma Fincorp Limited to complainant (2Nos.). Thereafter opposite party also filed affidavit and   the documents they filed are marked as  Ext. B1 to B5. Ext. B1 is the certified true copy of Private Car Package Policy from 29/07/2016 to midnight of 28/07/2017. Ext. B2 is the copy of FIR and FIS. Ext. B3 is the copy of statement given by Mr. Venkata Raman N.S.  before   SHO, Cherpulassaeri Police Station.  Ext.B4 is the copy of final report and charge sheet. Ext. B5 is the copy of survey report by N.G. Saseedaran, Surveyor and Loss assessor dated 12/03/2018.  

13.    Heard complainant and opposite party,   perused affidavits and documents.  The following points arise for consideration:-

1. Whether there is any deficiency of service and unfair trade practice on the part of opposite party.
2. If so, reliefs and cost.

14.      Point No.1 & 2:-

          The opposite party admitted that the vehicle involved in the complaint is owned by the complainant and the same stands insured with the opposite party for the period 29/07/2016 to 28/07/2017. It is also admitted that the vehicle was met with an accident and sustained damage. But the opposite party repudiated the claim stating that the vehicle was insured as a private car and as per the terms of the policy and as per the statute, the vehicle is to be used only for private purposes and not for commercial purposes.  In this complaint  the complainant  used  the vehicle for  commercial purposes  and by allowing  goods to be carried in it,  the complainant  has committed  wilful  breach  of the terms and conditions of the policy and so  the complainant is not entitled  to reimbursed  the damage. The opposite party further contented the repudiation was done after due investigation and application of mind. The opposite party produced Ext B2, B3,B4 documents to prove the contention. But none of these documents reveals the vehicle used for the commercial purpose or transporting goods in the vehicle. The complainant specifically submitted that the driver of the vehicle Mr. Noufal was working under him and the person Mr Ramasubramanniyan, who was travelling in the vehicle was his close friend who died in the accident. Allowing travelling a close friend in the car will not transform the use of the vehicle for commercial purpose.   In  the  absence of substantial evidence from

the  side  of  opposite party,  we cannot uphold  the contention of the opposite party

 that the vehicle involved in the complaint was used for commercial purpose. 

15.   The opposite party admitted the insurance of the vehicle for the period  29/07/2016 to 28/07/2017, which is  evident from Ext B1. The contention of the opposite party is that, the opposite party had appointed an IRDA licensed surveyor   to assess the damages. As per the report of IRDA licensed surveyor if the claim were settled should be on total loss basis. It is submitted that IDV of the vehicle had been Rs. 4.25 lakhs and so the complainant is entitled to get only Rs. 4,25,000 minus the salvage value of the wreck. The opposite party produced Ext.B5, the  report of  surveyor  which reveals   that insurer's  net liability  on total loss basis is Rs 3,64,000/- and insurer's  net liability on salvage loss on  basis  is Rs. 2,74,000/-. The report further reveals repair basis assessment that insurer’s net liability on repair basis is Rs. 3,89,339/-. It can be seen that the accident took place on 13/07/2017 and the surveyor prepared the report and submitted before the opposite party on 13/03/2018. But the opposite party was not prepared to settle the dispute contending that the vehicle was used for commercial purpose and as per terms and conditions, the complainant is not entitled the reimbursement. But from the perusal of documents, there is no reason to hold that the contention of the opposite party as correct and so the opposite party is liable to pay the IDV of the vehicle minus the salvage value of the wreck. Hence, we find that the complainant is entitled an amount of Rs. 2,74,000/- with interest at the rate of 9%  from the date of  complaint  to till date of payment. It is also relevant to see that the complainant suffered a lot of inconvenience and hardship due to the defective service and unfair trade practice from the side of opposite party. Hence, we allow Rs.1,00,000/- as compensation  towards the  inconvenience and hardship caused to the complainant on account of   defective service and  unfair trade practice  from the side of opposite party. The complainant is also entitled cost of Rs. 10,000/-. 

16.  In the light of above fact and circumstances we allow this complaint as follows:-

1. The opposite party is directed to pay Rs. 2,74,000/-(Rupees Two lakh seventy four thousand only) with interest at the rate of 9% per annum from the date of filing this complaint to till  the date of payment.
2. The opposite party is further directed to pay Rs. 1,00,000/- (Rupees One lakh only) as compensation on account of deficiency in service and unfair trade practice and thereby caused inconvenience and hardship to the complainant.
3. The opposite party is directed to pay Rs. 10,000/-(Rupees Ten thousand only)  as cost of the proceedings to the complainant.

        The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled 12% interest per annum for the above said entire amount from the date of order to till the date of payment.

Dated this 9^thday of  June , 2023.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                         : Nil

Documents marked on the side of the complainant                       : Ext.A1to A3

Ext. A1 :  Copy of Certificate of Insurance policy.

Ext.A2  : Copy of receipt.

Ext. A3 : Copy of the letter issued   by Magma Fincorp Limited to complainant

                 (2 Nos.).

Witness examined on the side of the opposite party                     : Nil

Documents marked on the side of the opposite party                  : Ext. B1 to B5

Ext. B1 : Certified true copy of Private Car Package Policy from 29/07/2016 to

                 midnight of 28/07/2017.

Ext. B2 : Copy of FIR and FIS.

Ext. B3 : Copy of  statement   given  by  Mr.  Venkata Raman before   SHO,

                Cherpulassaeri Police Station. 

Ext.B4  : Copy of final report and charge sheet.

Ext. B5  : Copy of survey report by N.G.Saseedaran, surveyor and loss assessor dated

                 12/03/2018.