By: Sri. Mohandasan K., President
Complaint in short is as follows:-
1. The complainant is the owner of TATA Super ace vehicle bearing registration No. KL 55 M 5411. The complainant and his family depends on the income derived from plying the said vehicle. The said vehicle is insured with the opposite party as per policy No.76190031170100011803 and the validity period of the policy commenced from 19/09/2017 and ends on 18/09/2018.
2. The complainant had parked the vehicle at Veliyathunad, before the flood occurred in Kerala on and after 15/08/2018. The complainant supplying food items by using the vehicle. Due to the flood almost all of the components below the roof of the vehicle submerged in flood water and hence the engine of the vehicle was damaged and became quite useless. The flood water remained the parking plot for many days and that was the reason for the damage caused to the engine. It was impossible to any human being including the complainant to approach the vehicle or to take away the same from the flood water. Thereafter the vehicle cannot not be get started or moved from there. The insurance surveyor Mr. P.A Santhosh inspected the said vehicle and assessed the damage and prepared a report. As per his assessment the loss was Rs.68,471/-.
3. Thereafter the complainant preferred a claim for the insurance benefit but the opposite party hesitated to accept the said claim stating that the fitness of the vehicle was expired on 02/07/2018. The complainant approached the opposite party several times to settle the claim. Finally, the complainant received a letter dated 03/06/2020 stating that the opposite party is not liable to entertain the said claim in the absence of valid fitness. Thereafter the complainant sent a registered notice to the opposite party through Adv. K.A. Samad on 31/08/2020 demanding to settle the claim. The opposite party received the same but did not respond and so the complainant approached the Consumer Commission for the redressal of grievance.
4. The damage to the vehicle was caused in parking condition i.e. at the time of incident the vehicle was in stationery position. The damage was caused due to flood and not in accident. So, the fitness of the vehicle does not count and even the vehicle with fitness certificate would cause the same damage in the flood in such situation. In a road accident it is true to say that unfit vehicle can contribute to the reason for accident.
5. Hence the complainant alleges gross deficiency in service and unfair trade practice against the opposite party. The complainant sustained a lot of hardship, mental agony and pain due to the act of the opposite party. The complainant purchased the vehicle by availing loan from Kerala Gramin Bank Tanalur Branch. The complainant became a defaulter and finally the loan became NPA. The complainant also availed loan from private persons for repairing the said vehicle. The complainant lost his income from the vehicle for many days, since the complainant could not ply the vehicle during that period. The complainant claims 1,00,000/- rupees from the opposite party due to financial loss sustained to the complainant. The complainant also prays for 1,00,000/- rupees on account of hardship, mental agony and pain suffered by the complainant. The complainant prays for Rs.68,417/- towards the loss sustained to the vehicle along with cost of Rs.10,000/-.
6. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed version denying the averments and allegations in the complaint.
7. According to opposite party complaint is not maintainable either under law or on fact and so complaint be dismissed with cost of the opposite party.
8. The opposite party admitted the vehicle No. KL 55 M 5411 TATA Super Ace pick was insured with the opposite party vide policy No.76190031170100011803 for the period from 19/09/2017 to 18/09/2018 against the own damage and third-party risks subject to the terms and conditions mentioned in the policy. As per the terms of the policy the vehicle should be kept in road worthy condition and also maintain complying the legal regards like permit, fitness etc.
9. The complainant made a claim before the opposite party for the damage sustained in the flood along with survey report. As per the claim vehicle was halted at godown of the shop of complainant. On receipt of the claim the opposite party perused complainants claim application, the documents and also the survey report. On perusal of documents, it is seen that the vehicle was not having fitness at the relevant time of alleged damage and as such not road worthy. It is settled position that in a transport vehicle is not having a fitness certificate it will be deemed as having no certificate of registration and in the above circumstances the opposite party constrained to reject the claim on violation of the basic policy condition and the same was duly intimated the complainant .
10. The opposite party never have given any assurance to complainant that the claim will be allowed and it is also denied that complainant several times approached the opposite party for the above purpose. The opposite party never dragged the matter and there is no delay from the part of opposite party. The opposite party had given reply to the complainant counsel who had sent a notice to the opposite party narrating the entire fact with reason to repudiate the claim. Hence, the submission of the opposite party is that the rejection of the claim was due to the violation of policy condition, which is specially stated in the policy terms and the complainant is well aware about the circumstances and the policy conditions. Hence the submission of the opposite party is that there are no latches on the side of opposite party and also there is no deficiency in service. The opposite party submitted that the claim was repudiated without any delay and was also conveyed to the complainant. The compliant is liable to be dismissed with cost of the opposite party.
11. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A5 and documents on the side of opposite party marked as Ext. B1 to B3. Ext. A1 is copy of certificate of registration of vehicle No. KL 55 M 5411. Ext. A2 is copy of policy schedule cum certificate of insurance and the policy No. is 76190031180100014928 valid from 26/09/2018 to 25/09/2019. Ext. A3 is copy of motor (Flood) final survey report issued by P.A Santhosh, surveyor dated 25/03/2019. Ext. A4 is copy of repudiation letter dated 03/06/2020 issued by opposite party. Ext. A5 is copy of lawyer notice issued by Adv. K.A samad to the opposite party. Ext. B1 is copy of policy schedule cum certificate of insurance issued by the opposite party in respect of policy No.76190031170100011803. Ext. B2 is copy of lawyer notice issued by Adv. P.V Suresh to Adv. K.A Samad dated 05/01/2021. Ext. B3 is postal acknowledgement.
12. Heard complainant and opposite party, perused affidavit and documents. Both side filed notes of argument also.
The following points arise for consideration:-
Whether there is deficiency in service on the part of the opposite party?
Relief and cost.
13. Point No.1 and 2
The opposite party admitted the vehicle No. KL 55-M-5411 TATA Super Ace Pickup was insured with the opposite party vide policy No.76190031170100011803 for the period from 19/09/2017 to 18/09/2018. But the opposite party denied the insurance claim on the ground that the vehicle was not having fitness at the relevant time of alleged damage and as such the vehicle was not road worthy. According to the opposite party it is a settled position that when a transport vehicle is not having a fitness certificate it will be deemed as having no certificate of registration. Hence the opposite party rejected the claim on violation of the basic policy condition. The submission of the opposite party is that the fitness of the vehicle was expired on 02/07/2018. On the other hand the compliant submit that the damage to the vehicle caused in parking condition and the vehicle was in a stationery position. The damage was caused due to flood and not in an accident. In a road traffic accident, it is true to say that an unfit vehicle can contribute the reason for accident. The lapse of fitness certificate of the vehicle has no role in the incident. So there is no merit in the contention of the opposite party and the claim is to be allowed.
14. The sole reason for the repudiation of the claim by the opposite party is want of fitness certificate for the vehicle. The vehicle was having valid fitness certificate at the time of subscribing the insurance policy. While the incident occurred in the matter, the vehicle was stationery at veliyathunad, due to the flood almost all of the components below the roof of the vehicle submerged in flood water and the engine of the vehicle was damaged thereby and became quite useless. The flood water remained in the parking area for many days and that was the reason for the damage caused to the engine. The complainant submitted that it was not possible to any human being including the complainant to approach the vehicle or to take away the same from the flood water. The complainant further submitted that it was the time that flood occurred in Kerala on and after 15/08/2018. Now the question is whether the denial of insurance claim solely due to expiry of fitness certificate during the relevant period that too to a vehicle which was stationery at the relevant time. The Commission is of the view that the repudiation of claim of complainant solely because of expiry of fitness certificate during the relevant days cannot be justified. It can be seen that the vehicle was stationery on that particular period. The absence of fitness certificate has not contributed anything towards the incident of flood occurred during the relevant period. The fitness certificate is required for a vehicle in a running condition. So lack of fitness certificate for certain days cannot be taken as ground for denial of insurance claim. Hence, we find that there is deficiency in service on the part of the opposite party.
15. The complainant submit that the complainant and his family depend on the income derived from playing the said vehicle. Due to denial of insurance claim the complainant has undergone hardship, mental agony and pain. The complainant submit that he purchased vehicle by availing loan from Kerala Gramin Bank, Tanalur Branch and due to denial of insurance coverage he was compelled to avail loan from private persona who repairing the vehicle. Hence, we submitted that he lost his income from the vehicle for many days since he could not play the vehicle during that period. We find there is merit in the contention of the complainant regarding the loss sustained by him due to the deficiency in service on the part of the opposite parties. But the complainant claims 1,00,000/- rupees towards the financial loss sustained by him and another 1,00,000/- rupees on account of hardship, mental agony and pain suffered by the complainant. The complainant in the complaint prayed 68,417/- rupees towards the law sustained towards the vehicle and 10,000/-rupees as cost. But there is no satisfactory evidence for the claim of complainant. The Complainant produced Ext. A3, the final survey report and which reveals the total assessment as los sustained to the complainant is Rs.41,083/-. The complainant definitely entitled surveyor assessed amount of Rs.41,083/-. The surveyor submitted the report on 25/03/2019. So the opposite party was liable to pay the assessed insurance amount Rs. 41,083/- within a period of one month thereafter itself. But the opposite party issued repudiation letter to the complainant on 03/06/2020. So, we find that the complainant is entitled insurance amount of Rs.41,083/- assessed by the surveyor with interest at the rate of 9% per annum from 25/04/2019 to till date of this order. The complainant is also entitled for a reasonable amount of compensation on account of deficiency in service and hereby caused inconvenience hardship and mental agony and financial loss and we fix it as Rs.50,000/-. The opposite parties further directed to pay Rs.10,000/- as cost of the proceedings.
In the light of above fact and circumstances we allow this complaint as follows:-
The opposite party is directed to pay Rs. 41,083/- with interest at the rate of 9% per annum from 25/04/2019 to till date of this order.
The opposite parties is directed to pay Rs.50,000/- as compensation on account of deficiency in service and thereby caused in convenience hardship mental agony and financial loss sustained to the complainant.
The opposite party is further directed to pay Rs.10,000/- as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite party is liable to pay interest on the above said entire amount at the rate of 12% per annum from the date of order till date of payment.
Dated this 13th day of February, 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.A1 to A5
Ext.A1: Copy of certificate of registration of vehicle No. KL 55 M 5411.
Ext.A2: Copy of policy schedule cum certificate of insurance and the policy No. is
76190031180100014928 valid from 26/09/2018 to 25/09/2019.
Ext A3: Copy of motor (Flood) final survey report issued by P.A Santhosh surveyor
dated 25/03/2019.
Ext A4: Copy of repudiation letter dated 03/06/2020 issued by opposite party.
Ext A5: Copy of lawyer notice issued by Adv. K.A samad to the opposite party.
Witness examined on the side of the opposite party: DW1 and DW2
Documents marked on the side of the opposite party: Ext. B1 to B
Ext.B1: Copy of policy schedule cum certificate of insurance issued by the opposite
party in respect of policy No.76190031170100011803.
Ext.B2: Copy of lawyer notice issued by Adv. P.V Suresh to Adv. K.A Samad dated
05/01/2021
Ext.B3: Postal acknowledgement.
Mohandasan K., President
Preethi Sivaraman C., Member
VPH Mohamed Ismayil C.V., Member
