By: Smt. E. Ayishakutty, Member, ( In-Charge of President)
Complainant purchased a new Toyota Innova car and it was insured with opposite party No1, the reliance general Insurance Company Ltd. On 21/04/2010. with vide policy No2202311000582 for the period from 21/04/2010 to 20/04/2011. On 04/09/2010 the vehicle was met an accident in the local limit of Theevatipatti police station near Selem in Tamilnadu state. A vehicle which was coming from the same direction with a rash and negligent manner hit the car and run away. The car was fell down in a valley on the left side. The registration number of the vehicle was not known to the car driver and the police. Two of the passengers in the car were died in the accident and others were seriously injured. The car was totally damaged in the accident and it was registered in the Theevatipatti police station as crime No. 371/2010 on 4/9/2010. Then complainant filed an application before 1st opposite party for getting the insurance coverage of the vehicle. Complainant complied all the legal formalities for getting the claim. But opposite party repudiated the claim of the complainant stating that the insured vehicle was registered with a seating capacity of 7 and there were 9(nine) persons traveled in the vehicle at the time of accident and hence the claim of the complainant was repudiated. As per the terms and conditions of the policy opposite party No1 is liable to indemnify the loss sustained to the complainant. The act of opposite party amounts deficiency of service and hence he filed this complaint before the Forum alleging deficiency of service on the part of opposite party.
Complainant prays to direct opposite parties to replace the totally damaged vehicle or to pay an amount of Rs.9,54,716/- towards the cost of the vehicle. He also request to get Rs.2 lakhs towards compensation for mental agony and inconvenience caused the complainant due to the deficiency of service of opposite parties along with cost of Rs.3000/-.
Opposite party No 1, No2, and No3 filed version. Opposite party No1 and No2, the Reliance General Insurance Company Ltd deny all the averments and allegations raised by the complainant except those which they specifically admitted. They submit that opposite party issued the policy to one Abdul Rasheed A in respect of the vehicle with engine No 2KD 6459561 and Chassis No MBJ 11 JV 40072 145950410 but in the R.C of the vehicle is in the name of AbduRashad. A. They further submit that at the time of accident 9 persons travelled in the vehicle but as per registration certificate it was registered with a seating capacity of 7 persons. Therefore the act of complainant is against the motor vehicle Act and the policy conditions. Opposite party state that the vehicle insured with him as private vehicle. In commercial vehicles the seating capacity of this type of vehicle is 9 persons. Opposite party again submits that he arranged a surveyor and the surveyor after detailed inspection submitted a survey report stating the net loss for the damages to the alleged vehicle Rs. 8,59,907/-. He state that complainant was not able to give him a satisfactory explanation for the excess passengers carried in the vehicle. Opposite party submits that the accident was not with in the jurisdiction of this Forum. As per Registration Certificate of the vehicle it was registered at Ottapalam and complainant is a native of Palakkad. Opposite party has no office with in the jurisdiction of this Forum. Opposite parties have not done any deficiency towards the complainant and hence the complaint is to be dismissed with cost of opposite party.
Opposite party No 3 in his version submits that the dispute is only against 1st , second and 4th opposite parties. He states that as per the request of the complainant he financed him to purchase the alleged vehicle from the dealer of M/s VPK Motors Pvt. Ltd. The loan was allowed to him as per hire-purchase agreement executed with the complainant and as per this agreement complainant has to pay a sum of Rs. 9,64,100/- with in 48 monthly installments commencing from 22/4/2010 and ending on 10/3/2014. The Hypothetication was endorsed in the R.C of the vehicle. He states that the case of the complainant is against the insurance company regarding the repudiation of his claim on the accident of the insured vehicle and opposite party No3, the financier is no way involved in this case. Hence the complaint is liable to dismiss against this opposite party.
Complainant filed affidavit with documents as evidence Ext A1 to A4 marked on his side. Opposite party No1, No2 and No3 filed counter affidavit. Ext.B1 to B4 mark on behalf of Opposite party No1 and Opposite party No2. No documents filed by Opposite party No3. No oral evidence adduced both sides.
Points to decide :-
(i) Whether the Forum has jurisdiction to entertain this complaint ?
(ii)Whether opposite party is deficient in his service towards
the complainant?
(iii) If so what is the relief and cost ?
(i) Opposite party No1 and No2 content that the Forum has no Jurisdiction to entertain this complaint, Since the accident was occurred near Salem in Tamilnadu and vehicle was registered at Ottapalam and the complainant is residing at Palakkad district. They also content that they have no office at Perinthalmanna. It is an admitted fact that the accident was occurred near Salem in Tamilnadu. The accident was registered at Theevatipatti police station near Selem. It is evident from the FIR that is marked as Ext.B3 which shows that the vehicle started its journey from Perinthalmanna to Bangalore at the local limit of Theevatipatti police station near Selem in Tamilnadu and unknown vehicle dashed the alleged car and it fell in to a pit on the left side. The informant of the accident to the police who was one of the traveler in the accidented vehicle told the police that he and his companions took the vehicle from his uncle AbduRashad for the journey to Bangalore for attending an interview at Harindra Multimedia College at Bangalore on 4/9/2010. As per RC, the vehicle was registered at Ottapalam. It is also admitted. But now the RC owner ie the complainant is residing at Pattani House, Kolothumpadi, Pathaikkara, post , Perinthalmanna, Malappuram district which is under the jurisdiction of this Forum. The opposite party No.2, the Branch Insurance officer, Reliance General Insurance Company Ltd., Mashreque trade center, Calicut Road, opposite Municipal Office Perinthalmanna is the branch office of opposite party No1 which is also under the jurisdiction of this Forum. Hence the Forum has jurisdiction to entertain this complaint.
(ii) Another contention of opposite party is that he issued the policy to the name of AbdulRasheed but in the RC of the alleged vehicle the registered owner is Abdul Rashad.
As per Ext A1 opposite party issued the policy infavore of the vehicle with chassis No MBJ11 JV 40072145950410 and Engine No 2 KD 6459561. In the RC of the vehicle the engine number and chassis number is same as in the policy . From the RC of the vehicle it is evident that the owner ship of the vehicle is not changed till the date. So it may be mistakenly scribed the name of RC owner as Abdul Rasheed . A S/o Abdulsamed instead of Abdul Rashad. A S/o Abdul samad. No change in the address of him in RC and policy certificate.
The main contention raised by opposite party for the repudiation of the claim of complainant is that at the time of accident the vehicle carried 9 persons. As per RC of the vehicle the seating capacity is 7 person. Hence he rejected the claim. Opposite party has no dispute regarding the accident and the damage of the vehicle. He also has no dispute regarding the insurance coverage to the vehicle at the time of accident. Here opposite party repudiated the claim by saying that complainant had violated the Motor vehicle Act and policy conditions by carrying 9 persons instead of the seating capacity of 7. But he has no case that the vehicle was met an accident and damage occurred due to the overload of the vehicle. He says in his version that the seating capacity of such type of commercial vehicle is 9 persons but the alleged vehicle is registered as private and the seating capacity is only 7. Ext B3 the FIR shows that the informant of the accident to the police was Mr Saleek S/o Samsudheen who have only 20 years old who is one of the passengers of the vehicle at the time of accident and others were his companions. They were traveling from Perinthalmanna to Bangalore for attending an interview at Hareendra Multimedia College Bangalore on 4/9/2010 at 10 am. The accident was occurred in the same day at 3.am near Salem by hitting an unknown vehicle. The registration number is not known to the driver and the police. This vehicle dashed the car and the car fell into a valley and totally damaged. Two persons among the travelers were died and others sustained serious injuries. As per FIR the accused is the unknown vehicle which dashed the alleged car and not due to the excess passengers. It is also keep in mind that the passengers of the vehicle were young persons who has gone to attend an interview at Bangalore. One of the persons named Saleek S/o Samshudeen who is the informant of the accident, has only 20 years old other passengers in the vehicle is his companions. So there is no chance to having excess weight in the vehicle than the admitted capacity. From the above circumstances we hold that denial of the claims by saying the accidented vehicle carried 9 persons instead of 7 is not justifiable and hence the act of opposite party amounts deficiency of service towards the complainant.
(iii) The photos of the damaged vehicle as well as the survey report shows that the vehicle was totally damaged in the alleged accident. The insured value of the vehicle as per ExtA1 is Rs. 9,54,716/- opposite party appointed surveyor AR Abilash and he submitted a report after detailed inspection of the vehicle. The net loss for the damages as per the survey report Ext B4 is Rs. 8,59,907/-. Therefore we direct opposite party to pay the amount as per the survey report submitted by the insurance surveyor with 9% interest per annum as compensation to the deficiency of service on the part of opposite party.
In the result we allow the complaint and opposite party No 1 and No2 jointly and severely pay to the complainant a sum of Rs.8,59,907/- with 9% interest per annum from the date of complaint till realization of the order along with cost of Rs. 2000/- with in one month from the date of receipt of copy of this order.
Dated this 28th day of June, 2012.
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E. AYISHAKUTTY, MEMBER, (In-Charge of President )
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MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nill
Documents marked on the side of the complainant : Ext A1 to A4(s)
Ext.A1 : Copy of the insurance policy.
Ext.A2 : Copy of claim Repudiation letter issued by opposite party No1 to the complainant on 9/12/2010
Ext A3 : Survey report (copy)
Ext A4(s) : Private and confidential Motor (final) survey Report photo copy, FIR photo copy, Policy certificate Photo copy, RC of the vehicle photo copy and photos of the accidented vehicle
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext B1 to B4
Ext.B1 : Copy of the registration certificate of the alleged vehicle KL 51 A 8043.
Ext B2 : Copy of policy certificate
Ext B3 : FIR (copy)
Ext B4 : Survey Report of Insurance Surveyor.
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E. AYISHAKUTTY, MEMBER, (In-Charge ofPresident )
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MOHAMMED MUSTHAFA KOOTHRADAN, MEMBER
