IN  THE CONSUMER  DISPUTES  REDRESSAL  FORUM,    KOLLAM

                                                      DATED THIS THE      12 ^th   DAY OF    AUGUST   2020

Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

      Sri.Stanly Harold, B.A.LLB, Member   

CC.No.165/2015

Lali.P                                                          :         Complainant

S/o Peethambaran

Mukaluvila Veedu, Kannanalloor

Pallimon P.O

Kollam-691579.

[By Adv.Pradeep Kumar.S.J]

V/s

1. General Manager                                :         Opposite parties

         M/s Cholamandalam General

         Insurance Company Ltd.

         Kollam Branch Office

        Kadappakkada, Kollam.

       [By Adv.S.Muraidharan Pillai]

2. Popular Vehicles and Service Ltd.

        (Authorised Maruti Dealer)

        Building No.MRV 19 A

         Govindamangalam Road

       Pulamon Junction

       Kottarakkara-691531.

     [By Adv.George Mathews]

3. IndusInd Bank Ltd.

          Kollam Main Branch

         Chinnakkada , Kollam.

        [By Adv.K.B.Sreekumar]

ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

1.            This is a petition filed under Section 12 of the Consumer Protection Act 1986 seeking various reliefs under section 14 of the said Act against opposite parties No.1 to 3 who are the insurer M/s Cholamandalam MS General Insurance  the authorized dealer to the Popular Vehicle and Service Centre and the financier of the vehicle M/s Indus Ind Bank Ltd. Kollam. 

2.       The averments in the complaint as stands amended in short are as follows.

The complainant is the owner of   Swift VDI car bearing KL 02/AJ-55/19.  The complainant has purchased the said vehicle from the 2^nd opposite party by availing loan from the 3^rd opposite party.  The vehicle has been validly insured with 1^st opposite party. The vehicle met with an accident on 11.02.2015 by hitting on an electric post whereby the vehicle has sustained total loss of the vehicle.  The same was shifted to the 2^nd opposite party authorized service centre on the same day and the matter was intimated to the 1^st opposite party insurance company who in turn arranged a surveyor and handed over the survey report to the complainant on 26.02.15.  The estimated cost  was Rs.3,64,928/-.  As a result of the accident one electric post was totally damaged.  The complainant has  deposited Rs.11493/- at Kottarakkara West Electricity Office on 11.02.2015 to replace the damaged Electric post.  The complainant is entitled to realize the said loss along with interest from the 1^st opposite party Insurance company.  On 25.03.15 when the complainant went to the office of the 2^nd opposite party and on enquiry, it was understood  that the claim lodged before the 1^st opposite party  by the complainant has been rejected by stating that the accident has not been reported in time and that fact was reported to the 2^nd opposite party.  The complainant used to enquire about his claim to the 1^st opposite party and on 16.04.15 one letter has been received from the 1^st opposite party stating that the claim has been rejected.  In the said letter the date of registering the claim has been stated as 03.03.2015 which is not correct.  Though the complainant has registered the claim within 15 days from the date of  accident and on the basis of that claim the 1^st opposite party deputed a surveyor and the said surveyor in turn has made an estimate and filed the same before the 2^nd opposite party on 26.02.2015.  But by concealing these materials facts the 1^st opposite party has rejected the claim which amounts to deficiency in service on the part of the 1^st opposite party.  According to the complainant the rejection of her claim by concealing the exact date of  lodging the claim and also the deputation of surveyor has caused much mental agony to the complainant apart from monitory loss.  Hence the complaint.

3.       Opposite parties resisted the complaint by filing separate versions.  The 1^st opposite party has also filed additional version.  The opposite parties would admit the following facts.  The complainant is the owner of the vehicle bearing No. KL-2 AJ 5919 and the said vehicle has been validly insured with 1^st opposite party vide policy bearing No.3362/00791931/000/02. The said vehicle met with an accident on 11.02.2015.However the 1^st opposite party would content that it  has received a claim intimation from the complainant on 03.03.2015 stating that the vehicle had met with an accident on 11.02.15.  On the basis of that intimation the 1^st opposite party had arranged a surveyor who after making survey has filed a report indicating the loss and damage caused to the vehicle.  The surveyor has assessed the  liability of the insurer as Rs.1,19,999.79/-.  The assessment of the surveyor was intimated to the insured and also to the 3^rd opposite financier who is the 1^st owner of the vehicle. The 1^st opposite party would also contend that the claim intimation has been received from the complainant only on 03.03.2015 and hence there is an inordinate delay of 20 days from the date of accident and  thereby the complainant committed breach of policy condition No.1 and 9.  Insured has not given proper and convincing explanation for the delay.  Hence the repudiation of the claim is legal and proper.  There was no willful latches on the side of the 1^st opposite party in repudiating the claim.

4.       The 2^nd opposite party would further admit that the Maruthi Swift VDI car belongs to the complainant was brought to the 2^nd opposite party’s garage with the help of  recovery van for repairing pursuant to an accident took place on 11.02.2015.  As requested by the 2^nd opposite party the documents relating to the vehicle were produced by the complainant  on 22.02.2015 and the 2^nd opposite party had opened online job card on 26.02.2015.  There after the 2^nd opposite party  issued estimate of the repairing expenses to the complainant.  Only after the issuance of the estimate the complainant submitted the claim application to the 1^st opposite party insurance company.  On 02.03.2015 when the complainant visited the 2^nd opposite party workshop showed the documents  in respect of the claim intimation to the 1^st opposite party.  Thereafter the insurance company had deputed their surveyor to inspect the vehicle.  Accordingly the surveyor has visited the 2^nd opposite parties premises and inspected the vehicle.  But so far neither the 1^st opposite party nor the complainant furnished the work order to the 2^ndopposite  party who could be able to start the work only after getting the work order either from the insurance company or from the complainant.  The 2^nd opposite party had issued letter for the 1^st opposite party to issue work order.  The 2^nd opposite party is ready and willing to repair the vehicle immediately on getting the work order. 

5.       It is further contented by the 2^nd opposite party that it is not a necessary party and has been deliberately made as a party inorder to invoke the territorial jurisdiction to file the case before this Forum.  The 2^nd opposite party has no objection to allow the complainant to take away the damaged vehicle after paying the floor rent.  There is no cause of action from the complainant against the 2^nd opposite party.  Hence  the complainant is not entitled to get any relief from the 2^nd opposite party. 

6.       The 3^rd opposite party would content that the complainant has obtained a loan of Rs.4,00,000/- from the 3^rd opposite party for the purpose of the purchasing disputed Maruthi Swift car by executing loan agreement dated 21.12.2011 in favor of the 3^rd opposite party agreeing to repay loan amount with interest and other charges totaling Rs.5,43,800/-.  The said amount was agreed to be repaid  in 48 equal installments.  The loan was granted by hypothecating the vehicle in favor of the 3^rd opposite party.  The lien was executed on the vehicle by the 3^rd opposite party which was duly noted in the insurance policy of the vehicle.  The vehicle involved in this case was having valid insurance coverage at the time of the alleged accident.  As on 30.05.2015 the 3^rd opposite party has received an amount of Rs.85,000/- from the 1^st opposite party  towards settlement of insurance claim of the complainant and the said amount was duly created in the loan account of the complainant.  Being the financier the 3^rd opposite party is entitled to do so as per the terms of the agreement as long as arrears are pending.  Huge amounts is pending as arrears and  the 3^rd opposite party is entitled to recover the amounts from the complainant if he fails to settle the arrears.  The complainant has not sought for any relief against opposite party No.3 financier. The 3^rd opposite party further prays to pass an order directing the 1^st opposite  party to clear the dues to the 3^rd opposite party from out of  the insurance claim if any granted.  The 3^rd opposite party is not liable for any relief or  costs of the proceedings. The 1^stopposite party filed additional version with respect to the claim raised by the 3^rd opposite party.  According to 1^st opposite party as per clause 13(5) of the loan agreement the financier(3^rd opposite party)  empowered to collect compensation from the insurance company for the dues payable to them.

7.       In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties No.1 and 2 in repudiating the insurance claim lodged by the complainant?
2. Whether the complainant is entitled to get the insurance  claim of Rs.3,64,500/- along with interest from the 1^st opposite party insurance company?
3. Whether the complainant is entitled to get Rs.11,493/- being the amount paid on account of the damage caused to the electric post due to the hit of the insured car?
4. Whether the complainant is entitled to get compensation as claimed?
5. Reliefs and costs.

8.       Evidence on the side of the complainant consists of  theoral evidence of PW1 and Ext.P1 to P5 documents.  Evidence on the side of the 1^st opposite party consists of the oral evidence of DW1, Ext.D1 to D3 document.  2^nd and 3^rdopposite parties have not adduced any evidence either oral or documentary.

9.       Opposite parties No.1 to 3 have filed separate notes of argument. But the complainant has not filed any notes of argument.

10.     Though the case has been specifically posted for hearing the learned counsel for the complainant and 1^st and 3^rd opposite parties have not turned up and advanced any oral argument. Heard the learned advocates appearing for opposite party No.2.

Point No.1

11.     The following are the admitted facts in this case.  The complainant is the owner of the Swift VDI car bearing No.KL-2/AJ 5519 as per Ext.P1 RC book.  The said car has been purchased by availing loan from the 3^rd opposite party bank.  The said car has been validly insured with the 1^st opposite party which has issued Ext.P2 insurance policy.    The 2^nd opposite party is the authorized service agent of Maruti motors Ltd.  The insured car met with an accident on 11.02.2015 while it was plying through Neduvathoor Junction by hitting on the electric post.  Due to the impact of the hit the electric post has been fully damaged.  The said car has been brought to the 2^nd opposite party dealer and authorized service centre.  The IDV of the car shown in Ext.P2 policy is Rs.3,64,928/-.  The complainant would further admit that on getting information the 2^nd  opposite party sent recovery van and taken the damaged vehicle from the spot and as work order has not been given to the 2^nd opposite party either by himself or by 1^st opposite party .  Hence the 2^nd opposite party has not started the repair work of the damaged vehicle and that the 2^nd opposite party told him that the work will be started as and when the work order will be received and in the circumstances there is no deficiency in service  on the part of the 2^nd opposite party and the complainant has not been seeking any relief against the 2^nd opposite party.  PW1 would further admit that the financier has been impleaded as 3^rd opposite party simply because it was granted loan and taken insurance policy from the 1^st opposite party on behalf of the complainant that he is bound to pay the loan installment as per Ext.D1 agreement and he has been paying the same also.  However the complainant has not sought any relief against 3^rd opposite party also.  In short all the relief sought are against 1^st opposite party only.

12.     According to PW1 after shifting the vehicle to the service centre he intimated the fact  of accident to all the opposite parties and on getting information the 1^st opposite party has deputed a surveyor who surveyed the damaged vehicle and filed Ext.P3 series service estimate dated 26.02.2015 by stating that Rs.2,99,409.48 is required for repairing the vehicle.  PW1 has further sworn in the proof affidavit that on 25.03.2015 he went to the 2^nd opposite service centre and enquired about the details of  his car.  There upon it was understood that the claim  lodged by the complainant  was rejected by the 1^st opposite party insurance company on the ground that the fact of accident has not been reported to the insurance company.  The rejection of the claim has been intimated to the 2^nd opposite party by the 1^st opposite party and from the 2^nd opposite party he happened  to know about the fact.  However by knowing the rejection of the claim through 2^nd opposite party he went to the 1^st opposite parties office and enquired about the fact.  There upon  the officials of the 1^st opposite party has issued Ext.P4 letter dated 16.04.2015 stating that the claim has been rejected.  According to PW1 though he has reported the fact  opposite party 1 to 3 in time the 1^st opposite party has repudiated the claim by stating false reasons.  Though the complainant would claim in the complaint as well as in the proof affidavit that the fact of accident was reported to all opposite parties in time, the2^nd and 3^rd opposite parties have not denied the above claim of the complainant. 

13.     However the 1^st opposite party would deny the above claim and would contend that the 1^st opposite party has received a claim intimation from the complainant only on 03.03.2015 by stating that the vehicle has met with an accident on 11.02.2015 and hence there is an inordinate delay of reporting the fact of accident to the  insurance company which is against the policy condition and therefore the 1^st opposite party has repudiated the claim as per Ext.P4 letter. But in view of the materials available on record the above contention of the 1^stopposite party that the claim has not been intimated to the complainant in proper time appears to be  not correct.  The 2^nd and 3^rd opposite parties have not denied having intimated  the details of accident in time by the complainant and therefore there is every chance for reporting the claim to the 1^st opposite party also. 

14.     It is clear from the available materials that the surveyor deputed by the 1^st opposite party insurance company has went to the 2^nd opposite party service centre and filed Ext.P3 series report dated 26.02.2015.  If the accident  was reported only  03.03.2015 as claimed by the learned counsel for the 1^st opposite party there is no chance of deputing any surveyor by 1^st opposite party to visit the damaged vehicle  kept at the 2^nd opposite party service station and prepare Ext.P3series report dated 26.02.2018.  In the circumstance there is every chance of reporting the fact to the 1^st opposite party immediately after the accident orally as claimed by the complainant  and then only the authorities of 1^st opposite party can apply their mind and depute the surveyor.

15.     It is seen contented in page No,5 of the argument note that the complainant has  given intimation to the 1^st opposite party  only on 03.03.2015 and that fact is admitted by PW1.  The above contention  of the learned counsel for 1^st opposite party is also incorrect.  PW1 is  not seen made any such admission.  What is admitted by him in the cross examination is A]-I-S-hn-hcwH¶mw FXrI£nsbAdnbn-¨n-«n-söp ]d-bp-¶p.(Q) Ad-nbn-¨n-cp¶p(Ans.) 03.03.2015 BWvH¶mw FXrI£nsb A]-I-S-hn-hcwAdnbn-¨-sX¶p ]d-bp-¶p.(Q).  icn-b-Ã.(Ans.)  1Dw 3Dw FXrI£nIsf Adn-bn-¨mtWm Ce-Iv{Sn-knän t_mÀUp-am-bpÅ tIkv skän sNbvXXv.(Q).    H¶mw FXrI£nbpsS ^oÂUvÌm^v Bb dnbmkpw IqSn-bmWv Sn s¢bnw skän sNbvX-Xv (Ans.)  In the light of the above question and answers it is clear that intimation was given  to the 1^st opposite party at the earliest opportunity and on the basis of the intimation 1^st opposite party has deputed Mr.Riyas to settle the claim with the electricity board and the contention to the contrary is devoid of any merit. 

16.     It is further to be pointed out that the 2^nd opposite party would contend in its version paragraph 4 that when the complainant revisited the 2^nd opposite party workshop on 02.03.15 he had shown a document in respect of the claim intimation to the 1^st opposite party.  If that is believed the contention of the 1^st opposite party that claim was intimated only on 03.03.2015 is apparently incorrect.  In the circumstance it is crystal clear that the complainant has reported the fact  of the accident well within time and the 1^st opposite party insurance company has acted up on that intimation, deputed a surveyor who  filed Ext.P3 report within 14 days of the accident. 

17.     Admittedly the complainant has not given any written intimation before lodging the claim.  But it is clear  from the available materials that the complainant has physically present at the 1^st opposite party insurance company 2^nd opposite party service centre  and 3^rd opposite party bank  and  intimated the fact of accident to these 3 opposite parties.  Accordingly 1^st and 2^nd opposite parties have acted up on and brought the vehicle to the service centre by the 2^nd opposite party by  deputing men and materials and the 1^st opposite party has deputed  a surveyor to assess the damage sustained to the vehicle.  It is also brought out in evidence that the 1^st opposite party has  deputed its field staff Mr.Riyas to settle the claim with the Electricity Board as the vehicle hit on the electric post and damaged the same and the complainant settled the claim with the Electricity Board in the presence of  the said Riyas by paying Rs.11493/-. Without intimating the fact of accident by the complainant there is no chance of deputing the field staff by the 1^st opposite party to settle the claim of 3^rd party electricity board.  In the circumstance we find no merit in contending that the complainant has not intimated the fact of accident to the 1^st opposite party immediately after the accident.

18.     The 1^st opposite party would contend that the claim has been repudiated on the ground that there is delay in intimating the fact of accident to the insurance company at the same time it is brought out in evidence through DW1 that after denying the claim, 3^rd opposite party has produced Ext.D1 agreement and opposite party No.1 allowed the insurance claim. The above contentions and the subsequent conduct of 1^st opposite party in allowing the claim for a lesser amount would not go together.  After issuing Ext.P4 repudiation letter the finding of the 1^st opposite party that the complainant is entitled to get a lesser amount of Rs.1,19,999/- only towards the insurance claim and paying Rs.85000/- as demanded by 3^rd opposite party  towards loan repayment due from the complainant till that day itself would indicate that rejection of the claim as stated in Ext.P4 is not proper. 

19.     In view of the reasons stated above the rejection of the claim lodged by the complainant as per Ext.P4 letter is not legal and proper and there is deficiency in service on the part of the insurance company in repudiating the claim.  Repudiating the claim and thereafter allowing the claim for a lesser amount and giving a portion of the same to the 3^rd opposite party bank definitely amounts to unfair trade practice also on the part of the 1^st opposite party.  The point answered accordingly.

Point No.2 and 3

20.     For avoiding repetition of discussion of materials these 2 points are considered together.  The definite case of the complainant is that on the basis of the intimation given by himself by directly approaching the 1^st opposite party insurance company at their office, the said company  deputed a surveyor who visited the 2^nd opposite party service centre verified the damaged vehicle and filed Ext.P3 estimate dated 26.02.2015 stating that an amount of  Rs.2,99,409.48/- is required for setting right the entire damages caused to the vehicle during the accident.  The letter issued by 2^nd opposite party service station is also attached to Ext.P3 series estimate would indicate that Ext.P3 estimate has been approved by the 2^nd opposite party service centre.  It is also brought out in evidence that the accident occurred due to the hit of the vehicle on the electric post of a third party and hence the complainant paid Rs.11,493/- towards electricity board which is a 3^rd party in the presence of the field staff Mr.Riyas deputed by the 1^st opposite party. Ext.P5 letter issued on behalf of the Assistant Engineer, Electrical Section, Kottarakkara would clearly indicate that the accident occurred at about 2 am on 11.02.2015 by hitting the car on the electric post and due to the impact of the hit the electric post has been broken and caused damage to the electricity board and that the complainant Sri.Lali.P has paid Rs.5933/- towards the value of the electric post and Rs.5560/- towards the labour charges.  It is further stated in Ext.P5 letter that as the said amount of Rs.11494/- has been received the electricity board has no more grievance in the matter.  Ext.P5 letter is dated 11.02.2015 which would indicate that on the same day of the incident the matter was settled with the electricity board in the presence of the field staff of 1^st opposite party by paying the loss caused due to the hit of the vehicle on the electricity post.  The 1^st opposite party would deny during cross examination of PW1 that the claim of 3^rdparty  electricity board was settled in the presence of any representative deputed by 1^st opposite party but the same was settled by the complainant voluntarily.  However the 1^st opposite party has not denied the claim of the complainant that Mr.Riyas is the representative of the 1^st opposite party insurance company nor examined the said Riyas and denied having not present on behalf of 1^st opposite party and participated in the process of settlement of the  claim by the complainant with the electricity board.  In view of the materials discussed above it is clear that the total damage estimated is Rs.2,99,409/- as per Ext.P3 series estimate plus Rs.11,493/- paid to 3^rd party electricity Board which amounts to Rs.3,10,902/-.However the complainant would claim Rs.3,64,500/-.  But what is the basis of the said claim is not explained either in the complaint or when the complainant was in the witness box as PW1.

21.     It is brought out in evidence through DW1 who is none  other than the Senior Manager of the 1^st opposite party insurance company that Ext.P2/D2 is a package private policy.  As per the said policy the complainant is entitled to get on own damage, 3^rd party damage and PA cover.  According to DW1 after sending Ext.P4 repudiation letter the claim has been considered again by the company and sanctioned Rs.1,19,999/-during the 5^th month of 2015 and intimated that fact to the complainant and 3^rd opposite party. But the 1^st opposite party has no such case in the written version.  No letter intimating the fact that claim has been partly allowed has been seen sent to the complainant.  Though a claim of Rs.3,64,500/-  has been lodged by the complainant an amount of Rs.1,19,999/- has been granted on the basis of Ext.D3 survey report and policy conditions and out of the said amount Rs.85,000/- has been paid to the 3^rd opposite party bank on 30.05.2015 on the basis of the request and loan agreement produced by the 3^rd opposite party.  it is also brought out in evidence through DW1 that the entire loan arrears due from the complainant has been paid to the 3^rd opposite party by the 1^st opposite party and that fact was intimated to the complainant by sending letter.  DW1 would further admit that K.S.E.B is the 3^rd party in this case and insurance company  is bound to pay  damages sustained by 3^rd party also.  But would contend that in the present case the insurance company is not liable to pay 3^rd party damages to the electricity board as the complainant has  paid the same without the consent of the 1^st opposite party and no GD entry or FIR has been produced.  But in this case the surveyor has not asked to assess the 3^rd party damage and that the insurance company has not given work order to the 2^nd opposite party till date.

22.     According to PW1 the 1^st opposite party insurance company has deputed the surveyor who in turn has assessed that Rs.2,99,409.48 is required for getting the vehicle repaired and filed Ext.P2 report. Though PW1 was subjected to severe cross examination nothing material has been brought out to disbelieve the above version. It is true that the 1^st opposite party has got marked Ext.D3 motor final survey report (subject to proof) through DW1 wherein a lesser amount of Rs.1,19,999/- shown as the net liability of the insurer.  But it is pertinent to be note that the marking of this report has not been made absolute by examining the surveyor who prepared it.  It is pertinent to point out that this survey report has not been shown to the complainant when he was in the witness box as PW1 nor it is seen produced along with the version or additional version filed by 1^st opposite party .  But it was produced only when DW1 was examined.  In the circumstance we find merit in the allegation of the complainant that it is a concocted document by the 1^st opposite party for reducing the claim and no such surveyor has been deputed by the 1^st opposite party  nor the said report has been prepared in the  presence of the complainant or after issuing notice to him.

23.     The learned counsel for the 1^st opposite party would raise a contention in the notes of argument that the  complainant would admit when she was in the witness box as PW1, that  the surveyor deputed by the 1^st opposite party had inspected the vehicle and assessed the loss to the tune of Rs.1,19,999/- prepared  Ext.D3 survey report and a copy of the same has been given to the complainant.  But the above contention is contrary to the facts.  What is admitted by PW1 during cross examination recorded in page No.3 last and beginning of Page No.4 of the cross examination of PW1 is that claim surveyor assess sNbvXn-«pt­m?(Q)D­v(Ans.).  further down he adds 3,65,000/- cq] assess sNbvXn-«p­v  It is clear from the amount stated that PW1 is referring to Ext.P3 report which is clear from the remaining question and answer also that surveyor assesssNbvXXv1,19,999.79/- cq] BsW¶v ]d-bp-¶p.  AXn-s\-¸än F\n-¡-dn-bn-Ã.  \n§-fpsS km¶n-²-y-¯n-emWv Sn XpI assess sNbvX-sX¶pw AXv Xm¦sf Adn-bn-¨n-«p-s­¶pw ]d-bp-¶p.  AXvicn-b-Ã. In view of the above questions put and answers elicited by the learned counsel for the 1^st opposite party when the complainant was in the witness box it is clear that PW1 has never admitted the preparation of Ext.D3 survey report by the surveyor by fixing Rs.1,19,999/- as the loss caused to the complainant.  What PW1 admitted during cross examination is  not the preparation of Ext.D3 survey report but the preparation of P3 survey report  In the circumstances it is clear that as the loss caused to the insured vehicle due to the accident is as shown in Ext.P3 survey reports and the complainant is entitled to get the amount shown in that P3 report.

24.     It is further stated in the argument note page No.3  that the complainant is eligible only for the balance amount of Rs.34,999/- after adjusting Rs.85,000/- paid to the 3^rd party from 1,19,999/- which is the total eligible amount as per the survey report.  It is further contented that the financier being the  1^st owner of the  vehicle is eligible to collect the amount from the insurer, the 1^st opposite party as per clause13(5) of Ext.D1 agreement.  It is true that as per clause 13(5) of D1 agreement  the 3^rd opposite party is eligible to get the defaulted amount due from the complainant and it is brought out in evidence that the 1^st opposite party has paid Rs.85,000/- to the 3^rd opposite party as full and final settlement of the amount due to 3^rd opposite party from the complainant. It is to be pointed out that DW1 would admit during cross examination(page 8) that hmZn \ÂIp-hm-\p-­m-bn-cp¶ AXp-h-sc-bpÅ IpSn-ÈnI apgp-h\pw tNÀ¶tà Sn 85000/-þ cq] AS-¨Xv(Q) AsX(Ans) IqSn-ÈnI kw_-Ôn¨ tÌävsaâv \ÂIn-bn-cpt¶m(Q) CÃ(Ans).  3þmw FXrI£n IpSnÈnI F¶p-]-d-ª-Xp- ap-gp-h³ \ÂIn-bntÃ(Q) \ÂIn(Ans).In view of the above admission of DW1 it is crystal clear that amount of Rs.85,000/- alone is due to the 3^rd opposite party from the complainant and that amount  has been given to the 3^rdopposite party  Bank by the 1^st opposite party insurance company as per clause 13(5) of D1 agreement.   In view of clause 13(5) of D1 agreement we find force in the above contention.  Therefore the complainant is entitled to get the remaining amount from the actual loss caused to him on account of the accident which is liable to be paid by the insurance company ie, the amount covered by P2 which is Rs.2,99,409.48/- +amount paid by the complainant as 3^rd party damages covered by P5 which is 11493/- which (3,10,902 -85,000/- = 2,25,902/- )and not Rs.34,999/- as claimed by the 1^st opposite party in the argument note page No.4. 

Point No.4

25.     It is clear from the available materials that though proper intimation was given and opposite parties No.1 & 2 have acted upon on the basis of that intimation ultimately the claim has been repudiated by the 1^st opposite party by issuing Ext.P4 repudiation letter stating that no written intimation has been given.  But later the same 1^st opposite party has allowed the claim by assessing damages to the tune of Rs.1,19,999/- only.   According to the complainant the denial of the claim by alleging the reason that complainant has not intimated the fact of accident to the opposite party has caused much mental agony apart from financial loss.  We find much force in the above allegation.  As the repudiation of the claim lodged by the 1^st opposite party by alleging lame excuses and subsequently allowing the claim for a lesser amount definitely would cause much mental agony apart from financial loss to the complainant as claimed in the complaint. Therefore the complainant is entitled to get a reasonable compensation apart from Rs.2,25,902/-  being the amount required for  repairing  the car after adjusting Rs.85,000/- paid by the 1^st opposite party to the 3^rd opposite party as full and final settlement of the claim.  The points answered accordingly.

Point No.5

          In the result the complaint stands allowed in the following terms.

1. The 1^st opposite party is directed to pay Rs.2,25,902/- being the amount of loss sustained to the insured vehicle on account of the accident to the complainant with interest @ 6% p.a from the date of complaint till realization.
2. The 1^st opposite party is also directed to pay Rs.25,000/- as compensation for the mental agony  sustained to the complainant with interest @6% p.a from the date of complaint till realization.
3. The 1^stopposite party is also directed  to pay Rs.10,000/- as costs of the proceedings to the complainant.

Opposite party No.1 is directed to comply with the above directions No.(i) to (iii) within 45 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover Rs.2,60,902/- with interest @ 9% p.a from the date of complaint except interest for costs from 1^st opposite party and its assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  12^th   day of  August   2020.

E.M.Muhammed Ibrahim:Sd/-

           Stanly Harold:Sd/-

                                                                                   Forwarded/by Order

                                                                                   Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           Lali.P

Documents marked for the  complainant

Ext.P1             :           True copy of RC Book

Ext.P2             :           True copy of motor policy schedule cum certificate of insurance

Ext.P3 series   :           True copy of service estimate

Ext.P4             :           True copy of lawyer notice

Ext.P5             :           Letter issued by Assistant Engineer, Electrical Section, Kottarakkara.

Witnesses Examined for the opposite party:-

DW1               :           Aneesh Varghese

Documents marked for opposite party:-

Ext.D1             :           Certified copy of loan agreement between the complainant and 3^rd

                                    opposite party.

Ext.D2            :           True copy of motor policy schedule cum certificate of insurance

Ext.D3            :           Motor final survey report     

E.M.Muhammed Ibrahim:Sd/-

                                                                                    Stanly Harold:Sd/-

                                                                                  Forwarded/by Order

                                                                                   Senior Superintendent