DATE OF FILING :1.12.2009.

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of March, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.225/2009

Between

Complainant : P.N. Mohanan,

Vishnu Bhavan,

Nedumkandam P.O.,

Thannimoodu,

Idukki – 685553.

(By Adv: V.M. Joy Mon)

And

Opposite Party : The Divisional Manager,

National Insurance Company Ltd.,

Divisional Office,

C.S.I. Square, Baker Hill,

Kottayam - 680001

(By Adv: Thomas Sebastian)

O R D E R

SRI.LAIJU RAMAKRISHANAN (PRESIDENT)

The complainant purchased a Maruthi Swift car through the sales executive from the Indus Motors Company Private Ltd. The petitioner availed full coverage insurance from the opposite party for the vehicle on 13.2.2009 and the premium was also paid. On 7.9.2009, at about 7.30 pm, when the complainant was driving the vehicle to his residence, the vehicle was skidded from the road because of heavy rain, hit on the boundary wall and sustained injury to the vehicle. The front right side of the vehicle and left back side of the vehicle were damaged due to the accident. The back side was hit on the pillar of the gate. The bumber, bulb, shaft etc. were damaged. The matter was intimated to the dealer, Indus Motors Private Ltd and the insurance company on the same day itself. The executive manager of the company named Mr. Ninan came to the house of the complainant and told that the vehicle will get the insurance coverage. He picked the vehicle to the company. The claim form was given through Indus Motors Company Ltd by the complainant. The complainant spent Rs.33,229/- for the repair of the vehicle, but the opposite party denied the claim on 29.10.2009 and a letter was given. The petition is filed against the deficiency in service of the opposite party for the repudiation of the claim.

2. The opposite party filed a written version stating that the repudiation of the claim was done by the Divisional Office, Kottayam of the opposite party and therefore Hon'ble CDRF Kottayam has only territorial jurisdiction to entertain the complaint. It is admitted by the opposite party that the vehicle KL-37-6026 was insured with the opposite party as per package policy having No.60185418 for the period from 13.2.2009 to 12.2.2010 in the name of Mr.P.N.Mohanan. The allegation of the complainant that the vehicle KL-37-6026 while proceeding to the complainant's house, due to heavy rain the vehicle skidded and hit against the wall of the right side of the gate, then came reverse and hit on the pillar of the gate thereby the vehicle sustained damage is false. The surveyor of the opposite party inspected the spot of the accident and submitted a survey report in respect of the alleged accident. In the report, it is submitted that the right hand front damage sustained to the car did not happen in the residence premises. It is further reported that if such damage had happened in the compound as alleged, the compound pillar and pipe would have damaged severally. There was no damage at the spot where the accident alleged to have been taken place. Eventhough some damage was sustained to the rear side of the car, there was no estimate or claim to repair the rear side of the car in the workshop estimate. The opposite party further informed that the complainant have to give explanation within fortnight of receipt of this letter to enable to take further action in respect of the complainant's claim. Since there is no reply or explanation from the complainant, the opposite party again examined the claim. The fact was informed to the complainant by a letter dated 10.12.2009 . Since there is no disclosure of facts regarding the occurrence of the accident, there is suppression of material facts. As there is suppression of material facts regarding the cause of accident in respect of alleged accident, this opposite party is not liable to pay insurance amount for the damage sustained to the complainant's vehicle. The allegation of the complainant that he had spent Rs.33,229/- for repairing the vehicle is not correct. As per the estimate submitted by the complainant along with claim form, the estimated amount to repair the vehicle is Rs.26,771/-. As per the terms and conditions of the policy, the amount assessed by the surveyor to the insured car is Rs.11,199.18/-. The surveyor assessed the cost of spare parts as Rs.10,090.22/-. The depreciation on spare parts is Rs.4,236.24/-. After deducting depreciation on the spare parts, the amount payable for spare parts is Rs.5,853.28/-.

The labour charge assessed by the surveyor is Rs.5,845.90/-. So the amount assured is

Rs.11,199.18/-. If the Forum finds that the opposite party is liable to indemnify the complainant against the damage sustained by the insured car, then this opposite party is liable to pay only Rs.11,199.18 /-.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 and Ext. P1 to P6 marked on the side of the complainant and the oral testimony of DWs1 & 2 and Ext.R1 & R6 marked on the side of the opposite parties.

5. The POINT :- The complaint is filed for getting insurance amount of the vehicle for the the repair. The complainant was examined as PW1. PW1 is an Ayurvedic Doctor practising at Nedumkandam. The vehicle was purchased on 13.2.2009 and it was duly insured to the opposite party on 13.2.2009. In the evening of 7.9.2009 at 7.30 pm, when the complainant was driving to his residence, due to heavy rain the vehicle skidded and hit against the wall, right side of the gate and then it came reverse, and hit on the pillar of the gate and thereby the vehicle sustained injuries to such as bulb, bumber, shaft etc.. The matter was intimated to the opposite party in the very same day itself. The executive manager of the company shifted the vehicle to the workshop for the repair of the vehicle on the very next day. Ext.P1 is the copy of the registration certificate of the vehicle. The repair of the vehicle cost Rs.33,229/-. Ext.P2 (series) is the bill received from the Indus Motors Company Private Ltd, Kottayam. Ext.P3 is the letter given by the insurance company to the complainant stating that the damage is found not consistent. The certificate of policy is marked as Ext.P4. The driving license of the complainant is marked as Ext.P6. No damage was happened to the pillar of the gate. Some plastering was damaged. The surveyor inspected after 20 days. The damaged portion were showed to the surveyor. The claim form is marked as Ext.R1. The company, Indus Motors has given the estimate to the opposite party. So the PW1 is not aware that whether the damages caused in the back side of the car was claimed in the claim form. The vehicle was taken by the Indus Motors after inspecting the same. The repudiation letter was received on 12.2.2009 and the copy of it is marked as Ext.P3. The opposite party was examined as DW1. Ext.R4 is the job estimate prepared from the Indus Motors. The survey report of the surveyor is marked as Ext.R5. The DW1 never inspected the place of accident. The job estimate was received from the Indus Motors Company with the claim form. Ext.R6 is the policy and its terms and conditions. DW2 is the surveyor who inspected the vehicle and the depreciation is calculated as 5% in the report. There is no depreciation for 1^st six months for the vehicle. DW2 cannot say, what quantity and quality of pipes used in the construction of complainant's residence. The damages of the back side of the vehicle is not written in the claim form.

The vehicle of the complainant met with an accident on 7.9.2009 at about 7.30 pm while PW1 was driving the vehicle to his house. The accident was occurred in the compound of the complainant's residence because of heavy rain. The vehicle skidded and hit on the wall of the gate. Again it came reverse and hit on the pillar of the gate. As per DW2 surveyor who inspected the vehicle, the right hand front damage sustained to the car did not happen in the complainant's residence premises. If the alleged accident and such damages had happened in his compound , the

compound pillar and pipe would have damaged severely. There was no damage on the spot where the accident alleged to have been taken place. No estimate or claim to repair the rear side of the car in the workshop, is seen in the estimate produced. The opposite party, as per DW1 deposed that the complainant suppressed the real facts, which is a violation of the policy condition. As per Ext.R5(series) the photographs taken by the surveyor, which reveals that the front right portion of the vehicle has sustained heavy damage and the back left side of the vehicle also caused damages, because the vehicle hit on the gate of the wall. But the DW1 never inspected the vehicle or the place of occurrence. DW2 is the surveyor who inspected the vehicle could not say the quantity and quality of the pillar and the steel used in the pillar. Ext.R5 photographs shows that the boundary wall and gate are built up with concrete beam and steel roll. The back side injury caused to the vehicle is shown in the photographs. As per the complainant, job card was given by the Indus Motors and the job estimate was also given by the Indus Motors.

The opposite party calculated 5% depreciation in the parts, but we think that the vehicle is a new one and it is having full coverage insurance policy. There is no police case reported or no other accident case reported, to show that the vehicle caused damages due to another accident in anywhere else. There is no police case reported to show that an illegal act has committed by the driver of the vehicle. The opposite party also never produced any evidence to show that the vehicle incurred damages in any other accident. Ext.R5 survey report produced by the opposite party shows that the vehicle has sustained severe damages in front and back. PW1 who is a doctor is also having a valid driving licence. There is no other accident reported to the vehicle. So we think that there is no reason to disbelieve the version of PW1. If the accident was caused in any other place, the opposite party should have indemnify for the same. So there is no reason for shifting the place of occurrence by PW1.

As per job estimate produced by the Indus Motors Company, Private Ltd to the opposite party on 11.9.2009, it is written that the repair charge of the vehicle is Rs.26,771.13. But as per DW2 surveyor, they have calculated a depreciation of 5% in certain parts and depreciation of 50% in certain parts. The estimate for the repair is Rs.11,199.18/-. But we think that the vehicle is purchased only on 13.2.2009 and the accident was caused on 7.9.2009. So only 6 months has been elapsed after the purchase of the vehicle. So it is not proper to depreciate the amount of insurance for the repair of the vehicle. The bill produced by PW1, Ext.P2 series, shows that the cost of repair for the vehicle is Rs.33,229/-, but the Ext.R4 job estimate shows that the net amount for repair of the vehicle is Rs.26,771/-. So we think that it is proper to award Rs.26,771/- for the repair of the vehicle and the repudiation of the claim by the opposite party is a gross deficiency in the part of the opposite party.

Hence the petition allowed. The opposite party is directed to pay an amount of Rs.26,771/- to the complainant within 1 month with 12% interest from the date of this petition. And Rs.2,000/- is ordered as cost of this petition within one month from receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 31^st day of March, 2010.

Sd/-

SRI. LAIJU RAMAKRISHANAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - P.N. Mohanan.

On the side of the Opposite party :

DW1 - Thomas C. Thomas.

DW2 - Thomas Kuruvila.

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of the Registration Certificate of the vehicle.

Ext.P2 - Cash receipt No.892 dated 24.9.2009, for Rs.5000/- issued by Indus Motors Co. Pvt. Ltd..

Ext.P2 (a) - Cash receipt No.7045 dated 20.10.2009, for Rs.28229/- issued by Indus Motors Co. Pvt. Ltd..

Ext.P2 (b) - Invoice No.001155 dated 30.9.2009, issued by Indus Motors Co. Pvt. Ltd..

Ext.P2 (c) - Job estimate dated 11.9.2009, prepared by Indus Motors Co. Pvt. Ltd..

Ext.P3 - The letter given by the opposite party to the complainant dated 29.10.2009

Ext.P4 - Attested copy of the Certificate of Policy of Policy No.60185418.

Ext.P5 - Photographs (2 numbers) of the injured vehicle.

Ext.P6 - Attested copy of Driving Licence of the complainant.

On the side of the Opposite party :

Ext.R1 - The Motor Claim Form submitted by complainant.

Ext.R2 - The letter given by the opposite party to the complainant dated 29.10.2009.

Ext.R3 - The letter given by the opposite party to the complainant dated 10.12.2009.

Ext.R4 - The job estimate No.00031, prepared by the Indus Motor Co. Ltd., Kottayam

dated 11.9.2009.

Ext.R5 - The private and confidential motor (final) survey report dated 23.9.2009,

of of the surveyor.

Ext.R6 - The Policy Certificate of the Policy No.60185418.