SMT.MOLYKUTTY MATHEW : MEMBER

        This  is a complaint filed by the complainant U/S 12 of the Consumer Protection Act 1986  for an order directing  the  opposite parties to pay an amount of  Rs.67,427/- along with cost  of Rs.30,000/- to the complainant for the deficiency of service  on their part.

The brief  of the complaint:

     The complainant  is the owner of Honda WRV vehicle as per the Reg.No.KL-13-AK8281.  1^st OP was insured the vehicle as per  policy No.76081531190300002060.  The period of coverage as per the policy  from 11/9/2019 to 10/9/2020 and the policy assured bumper to bumper coverage to the vehicle.  Then the complainant’s vehicle met with an accident on 1/10/2019 at 4.p.m.  The complainant as well as her daughter is travelling  in the vehicle while causing  the accident.  Then the vehicle was taken to the service centre of Honda at Kannothumchal as per the request of the surveyor.  Thereafter the surveyor inspected the vehicle on 4/10/2019 and filed a survey report on 31/10/2019 narrating the total loss of the  vehicle is Rs.1,31,116/-. The surveyor inspected the vehicle on 4/10/2019 at the premises of Signature Automobiles Pvt.Ltd.  The complainant received the vehicle only on 3/10/2019 at 4.30 P.M.  After completing the repair work the service centre  has issued a bill for an amount of Rs.1,31,827/-.  The complainant  constrained to pay the amount and released the vehicle.  Thereafter the OP’s has generated an amount of Rs.64,400/- to the complainant and he is not entitled to get the entire amount actually spent by him for the release of the vehicle.  The act of OP’s complainant caused much mental agony and financial loss . So there is deficiency of service and unfair trade practice on the part of OP’s.  Hence the complaint.

       After filing the complaint notice issued to both OP’s.  After receiving the notice 2^nd OP not  appeared before the commission  and not filed version.  Then 2^nd OP  set exparte. 1^st OP appeared before the commission  and filed his written version contending  that while processing the claim of the complainant on the basis of the insurance policy  and its conditions,  On the basis of the assessment made by the  surveyor it was understood that the car KL13/AK 8281 was insured with M/s United India Assurance Co.Ltd vide policy No.76081531190300002060 for the period  from 11/9/2019 to 10/9/2020 and it was also found that the complainant had made 2 own damage claim with them and they have allowed the same.  The complainant therefore ceased for the eligibility of claiming “No claim bonus” for any subsequent insurance policy from any of the companies under the General Insurance companies in future.  At the time of submitting the claim form before the  1^st OP with malafide intention of availing  the benefit of claiming “no claim Bonus’ from them.  So the complainant is not entitled for any claim under the insurance policy and therefore the complaint is not maintainable against the 1^st OP.  Then the net loss assessed by the surveyor as Rs.1,31,116/- less the policy  excess Rs.1000/- and less salvage value  Rs.1316/-.  So the total amount  Rs.1,28,800/- and reduced  50% of the  assessed amount  ie, 64,400/- proportion to the ceased eligibility of  No claim bonus.  So the 1^st OP has allowed Rs.64,400/- to the complainant as full and final satisfaction of the claim.  Disallowing a portion of the claim which the complainant is legally not entitled  as per the terms and conditions of the contract of insurance may not be  construed as an act  of deficiency  of service or unfair trade practice.  There is no  cause of action for filing the complaint  and there is no deficiency of service from the side of 1^st OP.  So the complaint may be  dismissed.

      On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of  opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The  evidence  consists of the oral testimony of PW 1 and  Exts. A1 to A4 were  marked.  From OP’s side DW1 was examined  and Ext.B1  marked.

Issue No.1: 

                The  Complainant’s daughter Ajna filed a witness list and  examined as a witness in this case. The  Complainant’s daughter adduced evidence before the commission by submitting  her chief affidavit in lieu of  her chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version. She was cross examined as PW1 by the OP.  The documents  Exts.A1 to A4  marked on her  part to substantiate her case.  According to PW1, the vehicle  KL-13AK 8281 insured  to 1^st OP.  On 1/10/2019 the vehicle met with an accident and damage caused to the car and forward a claim to 1^st OP.  But 1^st OP denied the claim and not re-imburse the full  repair charge to the complainant.  In Ext.A4 clearly shows that the complainant paid the repair charges and other expenses incurred for the vehicle damaged in an accident.  As per the  report of  insurance surveyor, loss assessor one Mr.Jayaraj reported that the vehicle KL-13/AK 8281 observes the damages and incurred  net loss Rs.1,30,116.19/-.  As per Exts.A1 to A4 shows that the vehicle is insured with 1^st OP and 1^st OP is denied the full repair charges.  The 1^st OP  submitted that there is no deficiency of service on his part.  On OP’s side DW1, the officer in charge of United India Insurance Company, Senior Assistant examined as DW1 and Ext.B1 marked.  As per Ext.B1 the letter  in reply issued by DW1 , he specifically stated that there were two previous claim with them. In his evidence  he stated that “previous claim report  ചെയ്യാതെ policy എടുത്താൽ subsequent claim repudiate  ചെയ്യും. But in this case the OP has paid Rs.64,400/- to the complainant for the repair charge of the vehicle.  As per Ext.A4 the surveyor report, the actual loss  also reported by the surveyor.  But the OP denied the  balance amount.  So there is deficiency of service on his part.  On perusal of the pleadings, documents and evidence we, the commission hold that the  complainant is the insurer who insured the vehicle to 1^st OP.  The vehicle is damaged due to accident and repair  expense bills also produced.  So we are of the considered view that the 1^st OP is liable to pay the balance  repair amount  to complainant.  So 1^st OP  failed to do so . We hold that there is deficiency of service and unfair trade practice on the part of 1^st opposite party .  Hence  issue No.1 found in favour of the complainant and  answered accordingly.

Issue Nos.2&3:

        As discussed above the complainant is insured his vehicle in the  1^st OP. The accident occurred on 1/10/2019, within the period of insurance.  So we hold  that  the  1^st OP is directly bound to redressal the grievance caused to the complainant.  So the complainant is entitled to get the balance repair charge of the vehicle from the 1^st  OP.  Therefore we hold that the 1^st opposite party is liable to pay the balance repair charge of Rs.65,716/- to the complainant along with Rs.7000/- as compensation and Rs.3000/- as litigation cost.  Thus issue No.2&3 are also accordingly answered. 

         In the result the complaint is allowed in part  directing the 1^st opposite party  to pay the balance repair charge of Rs.65,716/- to the complainant along with Rs.7000/- as compensation for mental agony of the complainant and Rs.3000/- as litigation cost  within  30 days of  receipt  of this order. In default the amount of Rs.65,716/- carries 9% interest  per annum from the date of order till realization.  Failing which the  complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.

Exts:

A1- copy of RC

A2-Policy

A3- Tax invoice

A4- Survey report

B1- Reply letter to new India Assurance Co.

PW1-Abdul Azeez- complainant

DW1-Melwin George .N-1^st  OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR