IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 15th day of May, 2023.
Filed on 05.11.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R.Sholy, B.A.L, LLB (Member)
CC/No.285/2022
between
Complainant:- Opposite parties:-
Sri.Anees Asharaf HDFC Ergo General Insurance Co.Ltd.
S/o Asharaf Rep.by its Branch Manager
Vadakkeveli Branch office, 2nd floor,
Mannanchery P.O. Chicago Plaza, Rajaji road
Kavunkal, Alappuzha-688538 Near KSRTC bus stand
(Adv.Jose Y James) Ernakulam-682004
(Adv.Saji Isaac K J)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant is the owner of Honda Motor cycle bearing registration No.KL 04 AS 0229. It was insured with the opposite party M/s HDFC Ergo General Insurance Co. Ltd. for a period of one year from 13.01.2022 to 12.01.2023 with an IDV of Rs.1,41,896/-.
2. On 22.05.22 at about 10.15 PM when the complainant’s friend Muhammed Hunaiz was riding the motor cycle through Thalavadi – Punnamada road along with complainant as pillion rider it skidded while attempting to save a pedestrian who was crossing the road. The motor cycle hit on the offering box (Kanikkya Vanchi) of South Aryad Juma Masjid. The rider along with the complainant and the motor cycle fell down and the passengers sustained grievous injuries. The motor cycle also was damaged. The rider of the motor cycle succumbed to injuries on the date of accident itself. The motor cycle was entrusted with M/s John’s Honda and they prepared a primary estimate of Rs.1.27.446/-. A claim was lodged with the opposite party and a surveyor was duly appointed.
3. Inspite of passage of time there was no response from the opposite party and they are trying to evade from their liability. Sri.Muhammed Hunaiz had a valid driving license and the damages occurred to the motor cycle during the accident. Extra premium for covering own damage was also paid. The non processing of the claim amounts to deficiency of service from the part of opposite party. Hence the complaint is filed for realizing an amount of Rs.1,41,896/- along with interest and Rs.1 lakh as compensation.
4. Opposite party filed a version mainly contenting as follows:-
The complaint is an abuse of process and it is filed suppressing material facts. Complainant had availed a policy for his vehicle bearing registration No.KL 04 AS 0229 with an IDV of Rs.1,41,896/- for a period from 13.01.2022 to 12.01.2027. The insured vehicle is hypothecated with M/s HDFC Bank Ltd. Opposite party is liable to compensate the complainant only if there has been no violation of the conditions of the policy.
5. The seating capacity of the insured vehicle is only two. The registration certificate and the policy issued for the vehicle states the seating capacity as two. It is evident from the FIR in crime No.567/2022 of Alappuzha North police station that at the time of the accident it was carrying 3 passengers when the seating capacity was only two. As per the conditions of the policy “ The company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical break down, failures or breakages not for damage caused by over loading or strain of the insured vehicle not for loss of or damage to accessories by burglary, house breaking or theft unless such insured vehicle is stolen at the same time”. The terms of the insurance has to be strictly construed to determine the extent of liability of the insurer.
6. The complainant who is the insured had willfully permitted the vehicle to be used in violation of the conditions of the policy. The two wheeler was carrying more passengers and hence toppled when the rider of the vehicle applied brake suddenly. Since there was more persons, the rider lost balance which had contributed the accident. Since the complainant had breached the conditions of the policy he is not entitled for any amount. There is no deficiency of service from the part of opposite party. Complainant is not entitled for any relief including compensation and hence the complaint may be dismissed.
7. On the above pleadings following points were raised for consideration:-
- Whether there was violation of policy condition by the insured as alleged in the version?
- Whether there is any deficiency of service from the part of opposite party as alleged?
- Whether the complainant is entitled to realise an amount of Rs.1,41,896/- along with interest as prayed for ?
- Whether the complainant is entitled to realise an amount of Rs.1,00,000/- as compensation from the opposite party as prayed for ?
- Reliefs and costs?
8. Evidence in this case consists of the oral evidence of PW1, PW2 and Ext.A1 to A5 from the side of the complainant. Opposite party has not adduced any oral evidence Ext.B1 & B2 were marked. The commission report was marked as Ext.C1 and photographs were marked as Ext.C1 series.
9. Point No.1 to 4:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A5.
10. PW2 is an IRDA approved independent surveyor. On 20.02.2023 he inspected vehicle No.KL 04 AS 0229 and prepared Ext.C1 report. He had taken 36 photographs and it is marked as Ext.C1 series. The IDV of the vehicle was Rs.1,41,896/- and the repair estimate was Rs.1,27,446/-. As per Ext.C1 report the repairing cost is Rs.1,26,815/- and so he had recommended for total loss. The wreck value of the vehicle is Rs.20,000/- without RC.
11. PW1, the complainant is the owner of motor cycle bearing Reg. No. KL. 04-AS-0229. As per Ext.A2(Ext.B1) he had insured the vehicle with the opposite party M/s HDFC Ergo General Insurance Co. Ltd for a period of one year from 13/1/2022 to 12/1/2023 for own damage and for a period of 5years from 13/1/2022 to 12/1/2027 for liability policy within IDV of Rs. 1,41,896/-. While so on 22/5/2022 at about 10.15 PM when one Mr. Muhammad Hunaiz who is the friend of the complainant was riding the motor cycle along with PW1 as pillion rider through Thalavadi- Punnamada road from west to east and reached in front of South Aryad Juma Masjid, while avoiding a pedestrian who was crossing the road the motor cycle skidded while applying the brake and hit on the offering box of Juma Masjid. Sri. Muhammad Hunaiz who was riding the motor cycle succumbed to the injuries and PW1 sustained injuries. The vehicle was entrusted for repairs to M/s Johns Honda Alappuzha and as per Ext.A5 they prepared an estimate of Rs. 1,27,446/ - for repairs. The matter was duly intimated to the opposite party and a claim was lodged. Though a surveyor, appointed by the opposite party visited the workshop and made an assessment the claim was not processed by them and the amount was not sanctioned. Since the amount assessed by the workshop as per Ext.A5 estimate is more than 75% of the IDV total loss was recommended. Aggrieved by the non processing of the claim the complaint is filed for realizing an amount of Rs. 1,41,896/- along with interest being the IDV and Rs. 1 lakh as compensation for deficiency of service. Opposite party filed a version admitting the policy and the accident. According to them as per Ext.A3 registration certificate and as per Ext.A2 policy the seating capacity of the motor cycle was two. The evidence on record shows that at the time of accident there were two pillion riders other than the rider and so there was violation of policy condition. Hence according to them complainant is not entitled to realize an amount and there is no deficiency of service. Hence they prayed for dismissal of the complaint. Complainant got examined as PW1 and marked Ext. A1 to A5, out of which Ext.A5 was subject to proof. As per the request of the complainant an IRDA approved surveyor was appointed to inspect the vehicle. Accordingly on 20/2/2023 he inspected the vehicle and prepared a report. The surveyor was examined as PW2 and marked Ext.C1 report and C1(a)series (36 nos) photographs. PW2 stated that the repair estimate was Rs. 1,27,446/- and as per Ext.C1 report repairing cost is Rs. 1,28,615/-. A considered wreck value of Rs. 20,000/-. Since the loss was morethan 75% of the IDV he recommended for total loss. The IDV of the vehicle is Rs. 1,41,886/- from which he deducted Rs. 20,000/- being the wreck value (without RC) and Rs. 100/- as policy excess. The net liability calculated by him is Rs. 1,21,796/-. Relying upon the oral evidence of PW1 and 2 coupled with the documents marked the learned counsel appearing for the complainant pointed out that the complaint is proved as per law and so complainant is entitled to realise the amount along with compensation. If the complainant is not entitled to claim the entire amount it was contented that atleast he is entitled for 75% of the claim on nonstandard basis. In support of the contentions the learned counsel relied upon a catena of decisions of the Hon’ble Supreme Court and the Hon’ble National Consumer Disputes Redressal Commission. Per contra the learned counsel appearing for the opposite party pointed out that there was violation of permit . As per Ext.A2 policy and Ext.A3 Registration Certificate the seating capacity of the motor cycle was two. Though PW1 denied from Ext.A1 true copy of FIR, FIS and Final Report (Ext.B2) it is crystal clear that at the time of accident there were two pillion riders along with the rider who succumbed to the injuries. In said circumstances since there was violation of policy conditions opposite party rightly rejected the claim and there is no reason to interfere in the said order. In support of his contentions the learned counsel relied upon a ruling of the Hon'b’e Supreme Court in Lakshmi Chand Vs. Reliance General Insurance [(2016) 3 SCC 100]. It was pointed out that though the Hon’ble Supreme Court was pleased to allow the claim there is a finding that “ If the breach is so fundamental in nature so as to put an end to the contract.” the insurance company is entitled to repudiate the claim.
12. The learned counsel appearing for the opposite party contended that Ext.C1 report was prepared without giving notice to the opposite party. However PW2 stated that he had given notice to the opposite party but he has not produced the same along with Ext.C1 report. Admittedly at the time of getting claim application opposite party had appointed a surveyor to assess the damage. They have not produced the survey report for the best reason known to them. In said circumstances Ext.C1 report can be relied.
13. Here in this case Ext.A2(Ext.B1) policy is admitted by the opposite party and the accident is also not disputed. The only contention raised by the learned counsel appearing for the opposite party is that as per Ext.A2 policy and Ext.A3 RC the seating capacity of the motor cycle was two whereas the evidence on records shows that at the time of accident there were two pillion riders other than the rider. It was also pointed out that there was suppression of material fact in the complaint. In the complainant it is stated that there was only one pillion rider (PW1) other than Sri. Muhammad Hunaiz who was riding the motor cycle. As rightly pointed out by the learned counsel appearing for the opposite party in the complaint as well as in the chief affidavit the case of the complainant is that there was only one pillion rider other than the person who was riding the same. The learned counsel appearing for the opposite party though put questions thrice that in the vehicle there were three persons it was denied by PW1 and he contended that there were only two persons. However Ext.A1 document which is the true copy of FIR, FIS and Final Report shows otherwise. In the FIR it is stated that Mr. Muhammad Hunaiz was riding the motor cycle with two pillion riders by name Sri. Anees (PW1) and Sri. Adarsh. FI statement is given by one Sri. Jaleel who is the paternal uncle of PW1. In FI statement also it is stated that there were three riders in the motor cycle. Ext.A1 also contains the Final Report filed by the SI of police North Police Station, Alappuzha. It also shows that there were two pillion riders other than the rider. So though PW1 denied, from the documents produced by him it is pellucid that there were three riders at the time of accident which is violation of policy condition. As discussed earlier the capacity of the motor cycle as per Ext.A2 policy and Ext.A3 RC was only two. In the complaint as well as in the chief affidavit the case of PW1 is that the motor cycle skidded when the rider applied sudden brake to avoid a pedestrian . However Ext.A1 FIS and Final Report shows otherwise. In Ext.A1 FIS and Final Report there is no case that the accident occurred when the rider was saving a pedestrian and in the Final report it is stated that the rider lost control accidently and hit on the offering box. In said circumstances the learned counsel appearing for the opposite party contended that there was suppression of material facts and violation of policy condition and so the complainant is not entitled for a favourable order. The learned counsel appearing for the complainant relied upon a ruling of the Hon’ble Supreme Court in B.V. Nagaraju Vs. Oriental Insurance Co. Ltd, Divisional Officer, Hassan (1996 CPJ SC 218) = (1996 AIR SC 2054). In the said case the vehicle was authorized to carry six workmen, excluding the driver. However at the time of accident there were nine persons. The Hon’ble Supreme Court held that the presence of extra passengers does not make any difference to the risk involved and so the claim was allowed. In the said case the accident happened due to the negligence of the offending vehicle and it was also considered for awarding the entire amount. Another decision relied by the learned counsel appearing for the complainant is of the Hon’ble Supreme Court in Lakshmi Chand Vs. Reliance General Insurance (2016 CPJ SC 23) = (2016 AIR SC 315). The said decision was also relied by the learned counsel appearing for the opposite party. In the said case entire compensation was allowed. It was held that “ The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident.”
14. In this case also the cause of the accident was the rash and negligent riding of the offending vehicle.
15. The facts discussed above will show that the case in hand is different. As discussed earlier there was violation of policy condition. As per Ext.A2 policy and Ext.A3 Registration Certificate the seating capacity of the motor cycle was two whereas documentary evidence will show that there were two pillion riders other than the rider. In said circumstances complainant is not entitled for the full amount claimed by him. However as held by the Hon’ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance ( 2010) 4 SCC 536).
“75% of the claim amount can be awarded on non-standard basis.”
This decision was relied by the Hon’ble National Consumer Disputes Redressal Commission in Oriental Insurance Co. Vs. Girbar Sinh Nandwanshi (2015 SCC ONLINE NCDRC 2455 and awarded 75% of the amount on non standard basis. Considering the entire circumstances in this case we are of the opinion that complainant is entitled for the 75% of the loss as assessed by PW2 on non standard basis. As per Ext.C1 report PW2 assessed the damage of Rs. 1,21,796/- after deducting Rs. 20,000/- as wreck value. The damage sustained is more than 75% of the IDV and the vehicle was recommended for total loss and we approve the same. 75% of Rs. 1,21,796/- will come to Rs. 91,347/-. Accordingly we allow the said amount.
16. Complainant is claiming an amount of Rs. 1 lakh as compensation on account of deficiency of service. As discussed earlier we had found that the complaint was filed suppressing material facts and the docents produced by him shows the suppression of facts. However we had considered the claim of the complainant and allowed 75% of the same on non standard basis. Considering the fact that there was violation of the policy condition opposite party rejected the claim which according to them is valid. On getting the claim opposite party had appointed a surveyor. Hence there is no deficiency of service and so the complainant is not entitled to get any amount on account of compensation. These points are found accordingly.
17. Point No. 5
In the result complaint is allowed in part.
a) Complainant is allowed to realize an amount of Rs. 91,347/- from the opposite party.
b) Complainant is allowed to realize an amount of Rs.3000/- as cost from the opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 15th day of May, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Anees Asharaf (Complainant)
PW2 - Sri.Sinu A Backer (Commissioner)
Ext.A1 - Copy of FIR & FIS
Ext.A2 - Copy of policy of motor cycle
Ext.A3 - Copy of RC book
Ext.A4 - Copy of driving license
Ext.A5 - Copy of estimate
Ext.C1 - Commission report
Ext.C1 series - Photographs
Evidence of the opposite parties:
Ext.B1 - Copy of insurance policy
Ext.B2 - Copy of final report
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
