BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 387/2005 Filed on 22.11.2005

Dated : 15.04.2009

Complainant:

L. Mohanan, 8/479, 'Navaneetham', Pravachambalam, Nemom P.O, Thiruvananthapuram.

(By adv. T.R. Sheeja)

Opposite parties:

1. National Insurance Company Ltd., represented by its Divisional Manager, St. Joseph's Press Building, Vazhuthacaud, Thiruvananthapuram.

    

(By adv. U.S. Ganesh Kumar)

2. Popular Vehicles& Services Ltd., Kuttukaran Complex, Karamana P.O, Thiruvananthapuram.

    

(By adv. K.L. Narasimhan)

This O.P having been heard on 16.03.2009, the Forum on 15.04.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The facts that lead to the filing of the complaint are as follows: The complainant purchased a Maruti Esteem Diesel car Reg. No. KL-01-AF 5544 from the Popular Vehicles and Services, Karamana which was insured with the 1^st opposite party Maruti Udyog Ltd. under policy No. 8370268. Under the policy, the vehicle was insured for the period from 09.11.2004 to 08.11.2005 by a comprehensive insurance. The insured value of the vehicle was fixed at Rs. 4,91,151/- for which the premium charged was Rs. 19,003/-, the price of the vehicle was Rs. 5,17,003/-. The car met with an accident on 30.06.2005 by which the car was completely damaged. Damage of the vehicle and repair costs were estimated by the 2^nd opposite party at Rs. 5,58,270/-. Repairing of the vehicle by replacing parts would exceed the value of the vehicle and would affect the life of the vehicle. Therefore the complainant requested the opposite party for replacement with a new vehicle which the petitioner is entitled to. It was within eight months of purchase the vehicle was so damaged due to the accident. The complainant produced filled up claim form and relevant documents to the opposite parties to settle the claim. But inspite of lapse of more than four months since the date of accident, the amount was not paid. Therefore complainant sent a letter demanding the amount on 25.10.2005 to the opposite parties. To this notice the 1^st opposite party sent reply and it can be seen that policy can be honoured at all officers of the 1^st opposite party. Since the commitment was not honoured and the representation was given a go-bye by the 1^st opposite party, complainant had withdrawn the consent made on 08.10.2005. The consent letter was the result of misrepresentation. The service of the 1^st opposite party in not honouring the insurance in time is deficiency of service. Complainant has stated that he is entitled to get the full value of the vehicle that is Rs. 5,17,003/-. Apart from the above facts due to the delay in settling the claim, the vehicle had to be kept at the workshop of the 2^nd opposite party till 08.10.2005 for which complainant had to pay Rs. 7,160/- as demurrage. Complainant states that he is entitled to get reimbursement of the said amount. Complainant claims Rs. 1,00,000/- as compensation due to deprivation of a vehicle, mental agony, loss and sufferings. After filing the complaint, the 1^st opposite party remitted Rs. 2,30,000/- directly with the financier bank on 06.12.2005. Thereafter the complainant received Rs. 1,75,000/- as wreck value of the vehicle.

The 1^st opposite party in this case remained ex-parte. 2^nd opposite party Popular Vehicles and Services Ltd. filed their version. In their version they stated that 2^nd opposite party is not a necessary party in this case. They have no liability in this matter. They also contended that the allegation that complainant paid an amount of Rs. 7,160/- to the 2^nd opposite party on account of demurrage is not correct. The said charge of Rs. 7,160/- is paid towards the break down attending charge, towing charge, estimate preparation and survey conducting charges and the service tax therefrom. Hence they prayed for the dismissal of the complaint.

1^st opposite party is National Insurance Company and they remain exparte.

Complainant is seeking relief against the 1^st opposite party. The complainant and 2^nd opposite party filed proof affidavit. Examined the complainant as PW1 and he has produced 8 documents and that documents were marked as Exts. P1 to P8. Nobody has cross examined the complainant.

Points that would arise for consideration are:-

1. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs sought?

3. Costs.

Points (i) to (iii):- In this case the complainant is a leading advocate. He purchased the car for his own use. He insured the Maruti Esteem diesel car with the 1^st opposite party under Policy No. 8370208. the insured value of the vehicle was fixed as Rs. 4,91,151/- for which the premium charged was Rs. 19,003/-. Under that policy the vehicle was insured for the period from 09.11.2004 to 08.11.2005. The car met with an accident on 30.06.2005 by which the car was completely damaged. It was within eight months of purchase of the vehicle. The complainant several times approached the 1^st opposite party for replacement with a new vehicle, but it was not given. Lastly the officials of the 1^st opposite party agreed to settle the claim that the immediate payment will be effected and he consented for salvage value and gave consent letter. On representation made by the 1^st opposite party that the amount will be paid within two days, the original certificate of insurance was also given. But inspite of more than four months of the date of accident the amount was not paid. On 25.10.2005 the complainant sent notice to the opposite parties demanding the amount and the 1^st opposite party sent reply. Since the commitment was not honoured and the representation was given a go-bye by the 1^st opposite party, complainant had withdrawn the consent made on 08.10.2005. The consent letter was the result of misrepresentation. Hence this complaint. These are the facts of the case. To prove his contentions the complainant has filed proof affidavit and produced 8 documents. The documents were marked as Exts. P1 to P8. Ext. P1 is the copy of certificate of registration of the vehicle in the name of the complainant. Ext. P2 is the invoice of the car for Rs. 5,17,001.42 dated 23.09.2004. Ext. P3 is the copy of FIR with FIS with regard to the accident. Ext. P4 is the estimate of repairs made by the 2^nd opposite party at Rs. 5,58,270/-. Ext. P5 is the copy of letter sent by the complainant to the opposite parties on 25.10.2005 demanding the amount. Ext. P6 is the reply sent by the 1^st opposite party to the complainant. Ext. P7 is the letter issued by the 1^st opposite party on 25.10.2005. In this letter it can be seen that policy can be honoured at all offices of 1^st opposite party. It is against the stand taken by the opposite parties in Ext. P6 notice. In Ext. P6 letter the opposite parties stated that the claim can be settled only on receipt of the cancelled policy from Delhi Divisional Office.

We have gone through the evidences very carefully. The facts narrated above remain uncontroverted. Admittedly the accident had happened on 30.06.2005 during validity of the insurance policy, and there is no dispute regarding the insured amount, i.e, Rs. 4,91,151/- and there is no dispute in total loss assessed by the surveyor appointed by the insurer. We accordingly hold that in these circumstances, the company was bound to pay the insured value of the vehicle to the complainant. But the opposite party has not paid the amount in time. The opposite party denied the repeated requests and demands made by the complainant without any cause. The complainant submitted the filled up claim form and relevant documents in time. But the opposite party did not do their part promptly. After filing this complaint before this Forum the opposite party had paid Rs. 2,30,000/- directly with the financier bank on 06.12.2005. Thereafter the complainant received Rs. 1,75,000/- as wreck value of the vehicle. The service of the 1^st opposite party in not honouring the insurance in time is deficiency in service. Complainant is entitled to get the insured value of the vehicle Rs. 4,91,151/- from the 1^st opposite party. From this amount the complainant had got Rs. 4,05,000/-. Hence the complainant is entitled to get the balance amount of Rs. 86,151/- from the 1^st opposite party as the insurance claim amount. The complainant also demanded for the repayment of Rs. 7,160/- which he paid to the 2^nd opposite party as demurrage charge. But as per Ext. P8 that amount was not paid as demurrage charge, that was paid towards the breakdown attending charge, towing charge etc. Hence the complainant is not entitled to get that amount.

In this case due to the delay in paying the insured amount the complainant had suffered a lot of loss. Complainant had to spend time and money for visiting the offices of the opposite parties. Complainant had been paying interest also to his loan to the bank for the delayed months. Again, on account of dereliction of duty and negligence on the part of 1^st opposite party, complainant suffered loss and injury due to deprivation of a vehicle and mental agony. The complainant has produced a decision 2008(8) SCC 279 Dharmendra Goel Vs. Oriental Insurance Company Ltd, in this case the Hon'ble Supreme Court stated that “It is therefore obvious that in the light of this stringent provision and being in a dominant position the insurance companies often act in an unreasonable manner and after having accepted the value of a particular insured good disown that very figure on one pretext or the other when they called upon to pay compensation”. From the above said discussion, this Forum allow this complaint. On considering all the above, complainant is found entitled to get compensation of a sum of Rs. 10,000/-.

In the result, the 1^st opposite party is directed to pay Rs. 86,151/- to the complainant as the balance insured amount with 12% annual interest from 08.10.2005. The 1^st opposite party shall pay Rs. 10,000/- as compensation and Rs. 1,500/- as costs to the complainant. Time for compliance one month, thereafter 12% annual interest also shall be paid to the above said amounts till the date of realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of April 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 387/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - L. Mohanan

II COMPLAINANT'S DOCUMENTS :

P1 - Invoice No. 52058 dated 30.10.2004.

P2 - Photocopy of certificate of registration dated 19.11.2004.

P3 - Copy of FIR dated 02.07.2005 of City Traffic Police

Station.

P4 - Copy of estimate of repairs dated 06.07.2005.

P5 - Copy of advocate notice dated 25.10.2005 to the opposite

party.

P6 - Letter dated 28.10.2005 issued to the complainant.

P7 - Letter dated 25.10.2005 to the complainant.

P8 - Cash Bill No. 8205 dated 08.10.2005.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT