D.O.F. 04.10.2011
D.O.O. 19.12.2013
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. Sona Jayaraman K. : Member
Sri. Babu Sebastian : Member
Dated this the 19th day of December, 2013.
C.C.No.300/2011
P.R. Rajanandanan,
“Sreenandanam”, : Complainant
Kodolipparam, Pattannur P.O.
Edayannur Via, Thalassery Taluk,
Kannur – 670 595
1.German Motors,
The Authorised dealers of Chevrolet Sales
India Pvt. Ltd.,
B.P. VI-14A, Valapattanam P.O.,
Kannur-670 010
(Rep. by Advocate Pramod K. ) : Opposite Parties
2. The Divisional Manager
The Future General India Insurance Co. Ltd.,
5th floor, Sky Tower, Opp. Hotel Hysan,
Mavoor Road Junction, Bank Road, Calicut.
PIN : 673 001
(Rep. by Adv. S. Mammu )
O R D E R
Sri. K. Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite parties to pay an amount of `4,45,000 as compensation.
The case of the complainant in brief is as follows : Complainant purchased Chevrolet Tavera Wagon manufactured in the year 2011 from 1st opposite party, authorized dealer of service centre of German Motors India Pvt. Ltd. He has duly registered the vehicle on 09.05.2011. Vehicle was insured with 2nd opposite party. 2nd opposite party has branch office at Kannur. He had made application for getting tourist permit.
On 04.06.2011 the vehicle met with an accident at Kozhikode with truck. Front portion on right side of the vehicle was severely damaged and the same informed to Kozhikode City Traffic Police and registered the crime. The surveyor inspected and reported the damage to 2nd opposite party. On 11.06.2011 vehicle was carried to opposite party’s service centre at Kannur for repair. 1st opposite party kept the vehicle without repairing the same in order to get approval from 2nd opposite party regarding Insurance claim. Complainant also approached 2nd opposite party to settle the claim. 2nd opposite party repudiated the claim by letter dated 08.08.2011, stating that the vehicle was used for commercial purpose at the time of accident, and was not having Tourist Taxi Permit on the date of accident. It was also alleged payment for permit was made only on 08.06.2011 after the accident. Ultimately they rejected claim stating that since the vehicle was not having permit the claim will not be considered. Complainant has not violated any condition. The vehicle was used only for private use and all passengers were gratuitors passengers. Thus complainant was constrained to pay an amount of `3,45,000 to 1st opposite party. It is deficiency in service amounts to unfair trade practice. Hence this complaint.
Pursuant to the notice opposite party made appearance and filed version denying the main allegations of complainant. In brief, 1st opposite party contended as follows : 1st opposite party is not aware of the accident and of police case with regard to the accident. Since the damage was not due to manufacturing defect complainant was informed that they could not repair the vehicle under warranty and also advised to inform 2nd opposite party to deal with the issue. This opposite party has nothing to do with the repudiation of claim by 2nd opposite party. Sicne the claim was repudiated by 2nd opposite party complainant is liable to pay the amount and thus collected the amount from him. The repair was carried out with the consent of the complainant. Since it was an accident, the damage did not come under the purview of the warranty. Complainant’s claim before Insurance Company was repudiated on the ground of violation of policy condition since the vehicle which was registered as a private vehicle had been used for commercial purpose. Opposite party repaired the vehicle with the consent of the complainant. He paid the amount without any complaint. The real dispute is in between complainant and 2nd opposite party. This opposite party is an unnecessary party. Hence to dismiss the complaint against 1st opposite party.
2nd opposite party filed version separately denying the allegations of the complainant, the brief of which is as follows : This opposite party disputes the damage and other expenses alleged to have been sustained to the vehicle. The vehicle in question did not have permit at the time of alleged accident. The complainant violated the policy condition and this repudiation of claim is perfectly justifiable. Indemnity is subjected to the terms and conditions of the policy and deduction. The calculation of loss is subjected to depreciation and deduction of certain components specifically excluded by terms and conditions. Complainant is not entitled to any relief. The denial of claim is based on the policy conditions and stipulations of the Motor Vehicle Act. There is no deficiency in service on the part of this opposite party. Hence to dismiss the complainant.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite parties. If so which party is liable for the same?
- Whether the complainant is entitled for the remedy as prayed in the complaint?
- Relief and cost.
The evidence consisted of the oral evidence adduced by PW1 and Ext.A1 to A13 on the side of complainant. No evidence adduced on the side of opposite parties. PW1 was cross examined for 1st and 2nd opposite party.
Issues No.1 to 3 :
Admittedly complainant purchased the subject matter vehicle from 1st opposite party and insured with 2nd opposite party, from 06.05.2011 to 05.05.2012. The vehicle met with an accident at Kozhikode with a truck and sustained damage which the same was reported to City Traffic Police, Kozhikkode wherefrom, registered a crime. The Surveyor of 2nd opposite party inspected the property and submitted report. Vehicle was taken to the garage of 1st opposite party on 11.06.2011. Vehicle was repaired and the charge was obtained from complainant since the damage was not come under warranty. Insurance Company repudiated the claim on the ground that the vehicle was not having permit at the time of accident and the vehicle was used for commercial purpose.
The case of the complainant is that the vehicle was used only for private use and all passenger were gratuitors passengers at the time of accident. There was no violation of policy condition. The denial of claim is unlawful and part of unfair trade practice. Insurance company on the other hand contended that there was no permit at the time of accident and hence complainant violated the policy conditions, which perfectly justify the repudiation of claim.
Complainant adduced evidence by way of chief affidavit in lieu of examination in chief, in tune with his pleading together with supporting documents. Ext.A1 is the repudiation letter informing that the vehicle was used for commercial purpose and there is no permit at the time of accident so they were not in a position to consider the claim in favour of the complainant. Complainant deposed in cross examination thus “അപകട സമയത്ത് കേരളത്തിൽ എവിടെയും ഓടാനുള്ള permit ഉണ്ട് . സംഭവകാലത്ത് വാഹനത്തിനു ടൂറിസ്റ്റ് ടാക്സിയായി ഓടിക്കാനുള്ള permit ഉണ്ടായിരുന്നില്ല എന്ന് പറഞ്ഞാൽ ശരിയല്ല. കേരളത്തിൽ വാഹനം ടൂറിസ്റ്റ് ടാക്സി ആയി ഓടിക്കുന്നതിനു പ്രത്യേക അനുമതി വേണമെന്നില്ല.” Opposite party did not challenge this evidence by adducing rebuttal evidence.
Opposite party contended that the vehicle had been used as a tourist taxi without having valid tourist taxi permit. On going through the evidence it can be seen that Ext.A5 is the FIR which reveal the fact that the vehicle was carrying patients from Uruvachal to Kottayam when it met with the accident on 04.06.2011. Ext.A4 is the certificate of registration to use the vehicle as taxi. That means complainant can use the vehicle anywhere in the state. Complainant’s case is that at the time of accident the vehicle was carrying patient and not carrying any hired passenger. FIR by Traffic Police shows that the vehicle was carrying patients. Under such a situation in the absence of evidence contrary to that of complainant, it is not possible to jump into conclusion that the vehicle was used for the purpose of commercial purpose. It is also come in evidence that the vehicle was driven by the brother of the complainant himself. Opposite party failed to place materials before the Forum to come into conclusion that the vehicle was used for commercial purpose.
In the light of the above discussion we are of opinion that the denial of claims on the ground of using it for commercial purpose and use of vehicle without permit cannot be justified. The opposite party is liable to consider the claim since the complainant has been possessed the valid policy at the time of accident. Denial of Insurance claim in the case in hand on the ground of technical aspect can only be considered as denial of natural justice to complainant/ policy holder.
Complainant pleaded that he has paid `3,45,000 to 1st opposite party as repair charge. He has also adduced evidence by way of proof evidence that he was compelled to pay the repair charge `3,45,000 to 1st opposite party since Insurance Company repudiated the claim. Ext.A12 goes to shows that he has paid more than `3,45,000 as repair charges to German Motors / 1st opposite party. 2nd opposite party contended that the method of calculation of the premium and the payment of the loss is not one and the same as alleged in the complaint. It is subjected to depreciation and deduction of certain components specifically excluded by the terms and condition. Except Ext.B1 opposite party has not produced any documents. It has come in evidence that the surveyor deputed by 2nd opposite party inspected the subject matter and submitted report. That is not disputed by opposite parties. If that be so, there is no justification for not producing the report before the Forum. The loss assessment calculated by the Surveyor in usual course would have been an authoritative one helpful to arrive at a proper conclusion. Opposite party did not produce the same. If the amount calculated by the complainant is more, opposite party could have been pointed out the correct loss excluding the depreciation and deduction. If it is not done it can also be believed that the amount calculated by the Surveyor was more than that of amount claimed by the complainant. If it is less there is nothing prevented opposite party from producing the report of the Surveyor consisting of the calculation of loss. No attempt has been made by 2nd opposite party to adduce any evidence. Hence, we are of opinion that complainant is entitled to get an amount of `3,00,000 as the claim amount. However, we are avoiding the interest though it took much delay.
The facts and circumstances of the case teach us to hold that there is deficiency in service on the part of opposite party and this 2nd opposite party is liable to pay an amount of `3,00,000 as claim amount. Complainant is also entitled for an amount of compensation `25,000 together with `1500 as cost of this litigation. Hence the issues No.1 to 3 is answered in favour of the complainant.
In the result, the complaint is allowed directing the 2nd opposite party to pay an amount of `3,00,000 (Rupees Three Lakh only) as claim amount and an amount of `25,000 (Rupees Twenty Five Thousand only) as compensation together with `1500 (Rupees One Thousand Five Hundred only) as cost of this litigation within one month from the date of receipt of this letter, failing which the complainant is entitled to receive interest at the rate of 8% from the date of filing of this case till the realization of the account. The complainant is at liberty to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.
Dated this the 19th day of December, 2013.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Retail Sales order booking form.
A2. Vehicle sale statement.
A3. Insurance Certificate dated 06.05.2011.
A4. Copy of R.C.
A5. F.I.R. dated 05.06.2011.
A6. Copy of receipt from 1st OP.
A7. Copy of repudiation letter dated 08.08.2013.
A8. Copy of receipt by 1st OP dated 29.08.2011.
A9. Copy of receipt by 1st OP dated 01.09.2011.
A10. Copy of Tourist permit.
A11. Copy of Taxi registration certificate.
A12. Receipts issued by opposite party (10 in number).
A13. Repair order.
Exhibits for the opposite party
Nil
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
