IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of January, 2016
Filed on 21.4.2015
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.121/2015
between
Complainant:- Opposite Party:-
Smt. Meena Philip The Divisional Manager
Ellickal House National Insurance Company
Cheppad P.O. Nelson Comlex P.B. No. 60, Karthikappally Taluk Puthiyidom, Kayamkulam
Alappuzha (By Adv. T.S. Suresh)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
Complainant is the owner of motor car make Tata Indigo bearing registration No.KL–29A–6206. The car is insured with the opposite party during the period from 27.11.2011 to 26.11.2012. The said car was used earlier as a contract carriage under permit. On 29.9.2012 the permit was changed to owner’s private for facilitating private use of the vehicle. On 29.9.2012 after change of the permit, while the complainant and her family travelling in the car at about 5.35 p.m., the car met with an accident and it was reported to the Police also. The matter was also reported to the RF Motors Private Ltd., Thiruvampady and the opposite party. The assessor of the opposite party assessed the damages sustained by the vehicle and prepared the report. A bill of Rs.2,55,000/- was sent by the RF Motors, Alappzuha to the opposite party towards repairing charges. But the opposite party failed to fulfill their contractual obligation. The dispute between the RF Motors and the opposite party thereby nonpayment of the bills by the opposite party, the vehicle is laying with the RF Motors for the past so many months. The complainant filed a pre-litigation petition before the Alappuzha District Permanent Lok Adalath. The opposite party did not settle the matter and the complainant’s car laying in the parking area of RF Motors, Alappuzha. The opposite party is liable to meet the cost of the repair charges of the car involved in the accident. As a result of negligence and deficiency in service from the part of the opposite party, the complainant suffered irreparable loss, hence the complaint is filed.
2. The version of the opposite party is as follows:-
The averment in para 1 to 4 of the complainant is admitted. It is true that the opposite party issued a package policy with respect to car No. KL-29 – A – 6206 owned by the complainant vide policy No.571400/31/11/6300014328 w.e.f. 27.11.2011 to 26.11.2012 and the ID vale under the policy is Rs.3,00,000/-. The said policy was issued for a passenger carrying commercial vehicle. But the complainant herein later converted the vehicle as a private car without intimating the company and hence no changes was effected in the policy issued. Hence the company has no liability. There is no inters disputes between this opposite party and RF motors. When the own damage claim received, opposite party deputed an independent qualified surveyor and the surveyor assessed loss and submitted survey report stating the amount payable for admissible claim amounting Rs.1,22,080/-. But on a verification of the vehicle records it is noticed that the policy issued by the company is for passenger carrying commercial vehicle. But the insured has converted the vehicle as a private car without intimating the company and has not changed the said conversion in the policy document also, and it is a violation of policy condition. Hence the company intimated the insured the inability to entertain the claim. But even then company offered settlement on non slandered basis at 75% of the assessed amount Rs.1,22,080/- amounting Rs. 89,845/- and intimated the said fact as per letter dated 22.11.2013 with loss voucher requesting the insured to resubmit duly signed voucher and cash receipt from RF Motors with written consent to that effect within 15 days of the receipt of the letter on failure the offer of settlement on non slandered basis will stands cancelled. In response to the letter the complainant herein as per letter dated 22.11.2013 also agreed to settle the claim on non slandered basis. But the complainant has not so far turned up to produce the said loss voucher with cash receipt from RF Motors. Hence there is no other way company was forced to repudiate the claim and company informed the complaint herein about the repudiation of the claim.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A5. Opposite party was examined as RW1. The document produced marked as Ext.B1 and B7.
4. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite party?
3) If so the reliefs and costs?
5. Point No.1:- It is an admitted fact that opposite party has issued a package policy with respect to car No. KL–29A–6206 owned by the complainant through policy No. 571400/3111/ 6300014328 w.e.f. 27.11.2011 to 26.11.2012. According to the complainant the permit of the vehicle was changed on 29.9.2012 to owner’s private. The complainant further stated that his vehicle was inspected by J.R.T.O., Kayamkulam on 29.9.2012 and certified as complying with the provisions of M.V. Act, 1988. Ext.A4 evidenced the same. On 29.9.2012 after changing of the permit while the complainant and her family travelling in the car at about 5.35 p.m. the car met with an accident. The matter was reported to the Police and necessary entries made in the general diary of Changanasserry Police Station. Ext.A3 evidenced the same. The car was taken to RF Motors and the RF Motors submitted a bill for Rs.2,55,000/- towards repairing charges to the opposite party. Since the insurance company failed to meet the expenses incurred to the RF Motors, the vehicle of the complainant has been with hold by the RF Motors. The contention of the opposite party is that since there is a violation of policy condition, company offered settlement on nonstandard basis and intimated the said fact as per letter dated 22.11.2013 with loss voucher requesting the complainant submit duly signed voucher and cash receipt of RF Motors, on failure the offer on settlement on non standard basis stands cancelled. Even though complainant agreed to settle the claim on non standard basis, complainant has not so far turn up to produce the said loss voucher with cash receipt from RF Motors. In order to substantiate their contention, the documents produced by the opposite party were marked as Exts.B1 to B7. Ext.B3 shows that they offered an amount on non standard basis at 75% of the assessed amount amounting to Rs.89,845/-. Ext.A4 letter dated 22.11.2013 issued by the complainant shows that she is willing to accept the offer made by the opposite party. But the opposite party admitted in the version that even though complainant agreed to settle the claim of non standard basis she has not so far turn up to produce the said loss voucher with cash receipt from RF Motors. According to the complainant as per the policy condition, opposite party is liable to meet the cost of the repair charge of the car involved in the accident. So the question to be answered is whether the opposite party is entitled to settle the claim on non standard basis. As per the decision report in KLT 2015(2) page No.139 “Unless it is shown that the breech was so fundamental that it led to the accident there cannot be an automatic direction to allow insurance company to recover amount from the owner. Insurer cannot claim exoneration from its liability if vehicle gets involved in accident after the expiry of validity of fitness certificate or permit.” In the instant case as per Ext.A4 the permit was changed on 29.9.2012 to owner’s private. The opposite party repudiated the claim stating that the policy issued by the company is for passenger carrying commercial vehicle and insured has converted the vehicle as a private car without intimating the company and there is a violation of policy condition. As per Ext.A3 the accident occurred was on 29.9.2012 at about 5.35 p.m. If a transport vehicle permitted only for carrying goods it carries passengers certainly the insurer can say that it is a policy violation. If such a vehicle is used only for the permitted purposes and the accident occurs when the permit or fitness certificate seized to exist it amounts to a technical violation only which will not entitled the insurer to disown the liability. In a decision reported in 2015 (3) KLJ page No.501 it is stated that if a transport vehicle was not used as a transport vehicle at the time of accident, the absence of permit will not result in any violation of the condition of policy. The prohibition is limited to the use of the vehicle as a transport vehicle without a valid permit. In the instant case, the opposite party repudiated the claim stating that the policy issued was for commercial vehicle and at the time of accident it used as a private vehicle. It is pertinent to note that as per Ext.A3 the vehicle was transferred to private vehicle on 29.9.2012 and it was a Saturday. The accident occurred on the same day at 5.35 p.m. Since the date of transfer was on Saturday, the complainant has not get a chance to inform the matter to the company. Ext.A3 shows that the date of accident was on 29.9.2012 at 5.35 p.m. In the light of the above discussion, we are of opinion that the opposite party cannot repudiate the claim of the complainant stating that there is a policy violation. The failure on the part of the opposite party to consider the claim of the complainant amounts to deficiency in service. In this case it is admitted by the opposite party that the Surveyor assessed loss and submit survey report stating the amount payable for admissible claim amount to Rs.1,22,080/-. Hence we are of opinion that the opposite party is liable to pay the amount assessed by the Surveyor.
In the result, complaint allowed partly. The opposite party is directed to pay Rs.1,22,080/- (Rupees one lakh twenty two thousand and eighty only) with 8% interest from the date of filing the complaint till realization. There is no order as to compensation or costs. The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 30th day of January, 2016. Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd /- Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Meena Philip (Witness)
Ext.A1 - Copy of the certificate of registration
Ext.A2 - Copy of the certificate of Insurance of Passengers Carrying Commercial Vehicle
Ext.A3 - True copy of the letter dated 29.9.2012
Ext.A4 - Copy of the receipt
Ext.A5 - Copy of the letter dated 15.1.2014
Evidence of the opposite party:-
RW1 - K. Sreekumar (Witness)
Ext.B1 - Certified true copy of the Certificate of Insurance cum Policy schedule
Ext.B2 - Attested copy of Motor Survey Report dated 20.4.2013
Ext.B3 - Attested copy of the letter dated 22.11.2013
Ext.B4 - Attested copy of the letter dated 22.11.2013
Ext.B5 - Attested copy of the letter dated 27.11.13
Ext.B6 - Attested copy of the letter dated 7.1.2014
Ext.B7 - Attested copy of the registered letter dated 13.2.2014
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- pr/-
Compared by:-
