SMT. RAVI SUSHA  : PRESIDENT

         Complainant  has filed this complaint  U/S 12 of Consumer Protection Act 1986  for getting an order  directing opposite party No.1 (a) to release the amount as claimed by the 2^nd OP in completion of the repair and maintenance work of the vehicle(b) direct 2^nd OP to complete all repair and maintenance works and return the said vehicle road worthy to  the complainant at the earliest(c) direct opposite parties 1&2 to pay  an amount of Rs.2,00,000/- as compensation and  to pay cost of the proceedings.

   The brief facts of the case are that the complainant had purchased a Yamaha YZF R15 V2 motor cycle  Reg.No.KL 58AA9573 from 2^nd OP for Rs.1,19,431/- A Honda Deo Scooter  was exchanged with the 2^nd OP for an amount of Rs.40,000/-  Thus the total sale consideration of the said motor cycle was Rs.1,59,431/- The said vehicle was insured with 1^st OP for the insured amount of Rs.50000/- and  issued an insurance certificate No.3361/01140886/000/00 for the period from 14/5/2019 to the midnight of 13/5/2024.  On 30/6/2019 at 4.00 p.m the said vehicle  was met with an accident near Punnol, New Mahe , causing several major damages  and the incident was reported to the New Mahe police station on the very same day itself and the details were entered in the G.D  as item No.14.  No case was registered in that  regard as neither any person was injured nor any property was damaged in the  said accident.  During  and after the occurrence of the  accident the complainant entrusted the vehicle for repair and maintenance works with the  2^nd OP on 2/7/2019 and had  also orally directed the 2^nd OP to claim expenses incurred for the repair works from the 1^st OP.  The 2^nd OP issued an acknowledgment slip for the same job card No.2534.  They had also promised the complainant that they will intimate the 1^st OP regarding the accident occurred and the damages caused to the vehicle  shall also take necessary steps to claim the amount incurred for repair and maintenance works of the vehicle.  The 2^nd OP as per a voucher No.SE192039 dtd.23/7/2019 prepared an estimation amount for the repair and maintenance works of the vehicle  to be Rs.36,231/-.  The same was sent to the 1^st OP for their verification and for releasing the said amount  for the completion of the repair and maintenance works.  The 2^nd OP intimated the same to the 1^st OP regarding the said accident and prepared an estimation voucher regarding the accident and the damages sustained to the vehicle. The 1^st OP rejected the claim submitted by the 2^nd OP on behalf of the complainant.  The complainant immediately upon occurrence of the accident intimated the same to the  New Mahe police station who in return had made an enquiry about the veracity of the same and upon finding and being satisfied that no person was injured or any property was damaged, issued a certificate to the complainant to be produced before the insurer.  The complainant’s vehicle is still covered under the insurance policy provided  by the 1^st OP and he still pays the premium of the said policy duly.  Thus the  complainant  is rightfully entitled  under law to  claim and receive the amount and the vehicle  is  still with the custody of  the 2^nd OP since the repair and maintenance  works are not completed.  The 2^nd OP is not ready to repair and maintain the vehicle as the 1^st OP denies payment of the amount required for repairing the vehicle.  The complainant submits that due to negligence of the 2^nd OP in taking care of the said vehicle is being  damaged due to rust, rain and neglect.  2^nd OP has gone back from performing all their duties towards the complainant.  They were liable to intimate the 1^st OP when the complainant told the 2^nd OP regarding the accident and entrusted them with his vehicle for proper repair and maintenance.  If at all they had caused any delay in intimating the 1^st OP regarding the accident and the estimated amount required for the repair of the vehicle, it is purely caused due to the negligence and deficiency of service by 2^nd OP only.  Therefore both OPs have indulged in unfair trade practices restrictive trade practices and deficiency in service.  Hence filed this complaint.  

     After receiving notices,  OPs 1&2 filed version.  It is  pleaded by 1^st OP  that  the policy 3361/01140886/000/00 was issued to the complainant as owner of KL 58AA 9573 Yamaha model YZF R 15-V2 for a period from 14/5/2019 to 13/5/2020 for own damage liability and from 14/5/2019 to 13/5/2024 for 3^rd party liability and the liability, if any is subject to various terms, conditions limitations and exclusions noted in the policy and its wordings.  It is submitted that the alleged accident occurred on 30/6/2019.  That matter was intimated to 1^st OP only on 24/7/2020 through call centre.  Neither the complainant nor the 2^nd OP intimated the matter in time, 1^st OP would have got chance to verify the matter and assess the damages in time.  The delay occurred in intimation is willful from the part of complainant and 2^nd OP.  Even after getting  the delayed intimation  this OP had sought the complainant to explain and clarify the reasons for delay.  The clarification offered by claimant was not satisfactory.  Since the complainant had not intimated the claim in time, there is violation of policy conditions.  1^st OP had rightly repudiated the claim vide its letter dtd.5/8/2019.  The complainant had violated the condition No.1 and 9.  Thus the belated intimation constitutes breach of contract and  condition No.1&9  of the policy issued, rendering the claim inadmissible.  Due to delay  1^st was not in a position to assess the damages sustained to the vehicle if any in time.  Further submitted that without admitting the liability, upon receipt of the delayed intimation of the claim, 1^st OP had deputed the surveyor to assess the alleged damage caused to the vehicle.  The surveyor submitted the assessment of net liability  for Rs.25580.05.  There is no unfair trade practices, restrictive trade practices and deficiency in service and prayed for the  dismissal of complaint.

   2^nd OP filed version .  It is admitting the purchase of  a Yamaha YZF R15 V2 motor cycle  Reg.No.KL 58AA9573 by the complainant. It is stated that there is no tie-up between 2^nd OP and 1^st OP in two wheeler insurance policy. It is submitted that the alleged accident was occurred and  if any damages caused,  then the duty of complainant that immediately to inform the covered  by the 1^st OP insurance company or insurance surveyor.  Thereafter the insurance surveyor assess the damages and to calculate how much amount for the precondition of the vehicle and the said proportion amount on the basis of policy condition to transfer  complainant bank account or service dealers account.  In the above alleged accident  case the 2^nd OP has no role for the intimation to the 1^st OP.  It is further  denied that after the occurrence of said accident the complainant entrusted the vehicle for repair and maintenance works with the 2^nd OP on 2/7/2019 and had also orally directed the 2^nd OP to claim expenses incurred for the repair works from the 1^st OP and the 2^nd OP issued an  acknowledgment slip for the same bearing  job card serial No.2534.  Here the damages  for the repair works assessed by this OP was only on 23/7/2019 as requested by the complainant and the maintenance works of the vehicle to be Rs.36231/- is correct.  The complainant’s vehicle is still within the custody of 2^nd OP since the  repair and maintenance works are not started.  The repair works started when the payment made by the complainant or the 1^st OP. 2^nd OP further requested the complainant that immediately paid the  above said amount for started repair works, otherwise the same is return back from the showroom in the still condition. There is absolutely no, deficiency of service or unfair trade practice and prayed for the  dismissal of complaint.

       At the evidence time, complainant has filed his chief affidavit and documents.  He has  been examined as PW1 and marked Exts.A1 to A5.  Ext.A1 is job card dtd.2/7/2019 issued by 2^nd OP.  Ext.A2 is General  diary  entry certificate issued by New Mahe police station.  Ext.A3 is estimate voucher.  Ext.A4 series is claim repudiation letters(3 in Nos.).  Ext.A5 is copy of policy certificate.  One more witness , the father of complainant was examined as PW2 on the side of complainant.  On the side of OPs, Regional claims manager of 1^st OP Mr.Anish Varghese has filed his chief affidavit  and has been examined as DW1.  Exts.B1 to B5 were marked on the side of  1^st OP.  Ext.B1 policy schedule, Ext.B2 letter sent  by  complainant to 1^st OP dtd.26/7/2019, Exts.B3&B4 are copies of letters sent by 1^st OP to complainant .  Ext.B5 final survey report.  PWs 1&2 and DW1 were subjected to cross-examination for the rival parties.

   After that the learned counsels for the complainant and 1^st OP filed their written argument notes.

   The submission of the learned counsel for the 1^st OP is that there was delay in giving intimation of accident  to 1^st OP by the complainant, which is  in violation of conditions Nos 1&9 of the insurance policy.  In disputably, the matter was informed to the New Mahe police station  on 30/6/2019 itself and entered in GD as item No.14(Ext.A2) .  No case was registered in this regard and none is injured in this incident and the complainant informed the matter to 2^nd OP and the vehicle was brought to 2^nd OP on 2//7/2019(Ext.A1), the acknowledgment issued by 2^nd OP revealed the said fact.  According to complainant 2^nd OP promised that they will intimate the 1^st OP Insurance company regarding the accident occurred and the damages caused  to the vehicle and shall take necessary steps to claim the amount incurred for repair and maintenance work of the vehicle.  It is seen that the  letter of  intimation of accident  of the vehicle was on 24/7/2019.

   1^st OP contended that due to delay in intimation, 1^st OP was not in a position to assess the damages sustained to the vehicle and thus the belated intimation  constitutes breach of contract and condition of the policy issued.  So the claim is being rejected.  According to 1^st OP intimation shall be given in writing to the  company immediately upon the  occurrence of any accidental loss or damage for  effecting  post claim activities   like to verify the matter and assess the damage in time.  Hence it is evident that on getting  claim application , Insurance company have appointed Surveyor and loss Assessor and assessed the quantum of loss  happened to the vehicle.

     In Jagdish Prasad vs. ICICI  Lombard General Insurance  Co.Ltd 2013(3) CLT136 NC, it is held by the Hon’ble National Commission that the  insurers decision to reject a claim shall be based on sound logic and valid grounds.  Further held that  rejection of claims on purely technical grounds in a mechanical fashion will result in  policy holders losing  confidence in the insurance industry, giving  rise to excessive litigation.  Therefore, it is advised that all  insurers need to  develop a sound mechanism of their own to handle such  claims with utmost care and caution.  It is also  advised that the insurers must not repudiate such  claims unless and until  the reasons of delay are specifically ascertained, recorded and the insurers should  satisfy themselves  that the  delayed  claims  would have  otherwise been  rejected  even if  reported in time.

   Here complainant  submitted and informed to Insurance company that he has intimated the incident to police station on that day itself and entered into the GD.  Further intimated to 2^nd OP also, who had promised to him,  at the time of taking insurance  of 1^st OP based on their instigation, that upon  occurrence any repair work under insurance they shall contact the insurer for submitting  estimation vouchers and also in successfully claiming such  amounts incurred for such works.  Exts.A1&A2 reveals  the above said facts.  Further it is evident that the rejection of claim was only due to delayed intimation.  Ext.A4 series reveals the said fact.  Hence it is very clear  from the above facts that the claim of complainant is a bonafide claims.  Hence according  to the above said decision of Hon’ble National Commission, the Insurance company cannot repudiate  bonafide claims on technical grounds like delay in  intimation.  Ext.A2  the certificate issued by SHO, New Mahe police station is the  best piece of evidence to prove that the vehicle got damaged due to accident.

   Thus the repudiation of complainant’s claim was contrary to the contention that the delay in  intimation was willful  and explanation was not satisfactory.  A person whose vehicle got damaged in an accident, straightaway may not got to the Insurance company to claim compensation.  At the first instance he intimates the matter to concerned police station.  After that  approach to the  place from where he purchased the vehicle  for its repair work.  Here complainant alleged as he approached 2^nd OP immediately on the nearby day for its repair work and for submitting claim form  with estimate of repair work.  Ext.A1 shows that the complainant entrusted the vehicle to 2^nd OP on 2/7/2019.  But Ext.A3 shows that the estimate for repair work for submitting  before 1^st OP was prepared only on 23/7/2019.  Further it is evident that the claim application was filed on 24//7/2019.  Under these circumstances, it was indeed that there was  deficiency in service on the part of 2^nd OP in preparing estimate for the repair work without  any delay.  There was deficiency in service on the part of Insurance company also due to repudiating the genuine claim on the ground of delay in intimation immediately after the accident.  It would not be fair or reasonable to reject even the genuine claims of the insurance which had been  verified and found  to be correct by the  surveyor.  The cause of loss described by the  surveyor in his report Ext.B5 that “ while plying  the insured vehicle when reached at the  accident spot a dog suddenly  cross the road mean while  the driver turned the vehicle but lost  control and  hit to a electric post  caused damages”.

   There  are decisions of Appellate commissions that there may be a condition in the policy regarding delay in intimation but that does not mean that the insurer can take the shelter under that condition and  repudiate the claim of the  claimant, which is otherwise prove d to be  genuine.  Hence from the facts and circumstances of the case, there is deficiency in service on the part of both OPs.  The repudiation of the claim made by the 1^st OP is not justifiable.  On perusal of  Ext.B5 survey report, the total assessment made  the surveyor on account  of value of spare parts and labour charges is Rs.26959.47.  Complainant has produced only  Ext.A3 estimate for the repair work prepared  by 2^nd OP.  No other authentic evidence has not been produced by the complainant to discard the assessment made by the surveyor.  Hence for assessing the quantum of damages, Ext.B5 can be taken.  It is evident that the vehicle is still  at the service centre of 2^nd OP without doing repair work.

   In the result complaint is allowed in part.  1^st opposite party  is directed to pay the claim amount  Rs.26959.47 as assessed by the surveyor, to 2^nd opposite party for the repair work of vehicle and 2^nd opposite party is directed to do all repair and maintenance work and return the said vehicle  road worthy to the complainant.  The excess amount if require for the repair work of the vehicle in dispute than Rs.26959.47,  that amount must be taken by 2^nd opposite party.  Opposite parties 1&2 are further directed to pay Rs.20,000/- towards compensation for the mental agony caused to the complainant and Rs.5000/- towards cost of the proceedings.  The opposite parties shall comply the order within one month from the date of receipt of the order.  Failing which  opposite parties 1&2  shall pay interest @9% per annum for Rs.20,000/- and  further 1^st opposite party shall  pay interest @9% per annum for Rs. 26959.47  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 - job card dtd.2/7/2019 issued by 2nd OP.

A2 - General  diary  entry certificate issued by New Mahe police station. 

A3- estimate voucher.

A4 series- claim repudiation letters(3 in Nos.).

A5- copy of policy certificate. 

B1 -policy schedule

B2- letter sent  by  complainant to 1st OP dtd.26/7/2019,

B3&B4- copies of letters sent by 1st OP to complainant

B5 -final survey report.

PW1-Amar Prakash.C.K-complainant

PW2-Prakashan.C.K-witness of PW1

DW1-Anish Varghese-1^st OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR