Tamil Nadu

South Chennai

CC/308/2014

M/s.Elangovan - Complainant(s)

Versus

IFFCO-Tokio General Inssurance Co Ltd - Opp.Party(s)

M/s.V.Balaji

09 Oct 2019

ORDER

                                                                  Complaint presented on : 17.07.2014

                                                                    Date of Disposal            : 09.10.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.308/2014

DATED THIS WEDNESDAY THE 09^TH DAY OF OCTOBER 2019

                                 

Elangovan,

S/o. Mr. Shettu,

No.1/1, Brahadeswarar Nagar,

Arumbakkam,

Chennai – 600 106.                                                        .. Complainant.                                                

 

                                                                                              ..Versus..

 

 

IFFCO-TOKIO GENERAL INSURANCE CO. LTD.,

IFFCO BHAVAN,

Rep. by its Branch Manager,

No.128, Habibullah Road,

4^th Floor, T. Nagar,

Chennai – 600 017.                                                    ..  Opposite party.

 

Counsel for the complainant      : M/s. V. Balaji

Counsel for the opposite party  : Mr. Michael Marie Antony

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.6,89,000/- towards the claim on repair basis and to pay a sum of Rs.2,00,000/- towards compensation for deficiency in service and mental agony with cost of Rs.25,000/- to the complainant.

 

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he is the absolute owner of the vehicle bearing Registration No.TN 09 BF 6133 insured his vehicle with the opposite party on 12.11.2012 private car package policy vide Policy No. TIT – 91101922 the policy is valid from 12.11.2012 to 11.11.2013. The complainant submits that he had paid the total premium of Rs.43,619/- for own damage as well as third party liability.  The complainant submits that the vehicle met with an accident on 14.02.2013 near Kallupatti Pirivu Road within Thuvarankurichi Police Limit, the complainant immediately after the accident complained to the above police station, the FIR was lodged on 15.02.2013 ant the case was registered under Sections 297, 337 of IPC in Crime No.56/2013.  The complainant submits that after the accident the vehicle was taken to authorized service centre of Toyota Authorized Service Centre, Ambattur, the service centre raised the bill of Rs.6,89,000/-.  The complainant submits that the accident was immediately intimated to the opposite party and the opposite party has appointed spot surveyor and field  surveyor to assess the loss sustained to the vehicle due to damages and to examine the genuineness of the accident.   Thereafter, the complainant has filed claim application before the opposite party.   The opposite party has repudiated the claim of the complainant by sending a repudiation letter dated:22.03.2013 “on ascertain from the report of the investigator that the injured persons were travelling that the insured vehicle as paid passengers.   Since the vehicle was used for hire or reward at the material time of accident in violation of “Limitations as to use” as given in the face of the policy we are unable to consider your claim preferred. 

2.     The complainant submits that the repudiation is bad in law.  

1. Neither in the FIR nor in the Statement recorded by the police the injured persons were travelling stated that they are the paid servant.
2. The Surveyor has not given his report to the complainant within the time frame stipulated under IRDA regulations.
3. The Surveyor has assumed the power which is not given to the police even under CRPC.
4. The opposite party has not followed the law laid down by Hon’ble Supreme Court in 2010 (2) CPJ 9 SC and 2009 (1) CPJ 297 NC.

6) The complainant states that even one of the guidelines framed by the Insurance Company 75% of claim is admissible even where the condition of policy including limitation as to use was breached.   Thus failure to pay the amount, amounts to deficiency in service.

7. The complainant states that in law he is entitled to the following amounts:

a) Claim on repair basis                                    Rs.6,89,000/-

b) For rendering deficiency in service

and caused mental agony                                  Rs.2,00,000/-

c) Cost                                                               Rs.   25,000/-

                                                                        

                                                Total                  Rs.9,14,000/-

                                                                        

The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The opposite party states that the complainant insured his Toyota Innova car registered as TN 09 BF 6133 with the opposite party under private car package policy vide policy No.TIT /91101922 for the period from 12.11.2012 to 11.11.2013.  The opposite party states that the complainant had paid gross premium of Rs.43,619/- with insurance cover has been granted subject to terms and conditions stipulated in the policy.  The opposite party states that the complainant had carried the persons in the car as fare paying /paid passengers as per the report of the surveyor and the investigator. Therefore, as per the terms and conditions of the policy, the complainant used the vehicle for hire or reward amounts to violation of policy terms and conditions.  The opposite party states that since the complainant had used his car for hire or reward on the date of accident, the same is in contravention to the terms and conditions of the policy issued to the complainant as mentioned in the “limitation as to use” as given in the face of the policy.  Therefore, the opposite party in view of the violation of policy made by the complainant had expressed its inability to consider the claim and thus repudiated the same by its letter dated:22.03.2013. Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liability to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 to Ex.B3 are filed on the side of the opposite party.  

5.      The points for consideration is:

1. Whether the complainant is entitled to a sum of Rs.6,89,000/- towards claim on repair basis?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation for mental agony and deficiency in service with cost of Rs.25,000/- as prayed for?

6.      On point:-

The opposite party filed his written arguments. Heard the complainant’s Counsel also.  Perused the records namely; the complaint, written version, proof affidavits and documents. Admittedly, the complainant is the absolute owner of the vehicle bearing Registration No.TN 09 BF 6133; insured the vehicle with the opposite party on 12.11.2012 private car package policy vide Policy No. TIT – 91101922 the policy is valid from 12.11.2012 to 11.11.2013 as per Ex.A2 and it is admitted by the opposite party.  Further the contention of the complainant is that he had paid the a total premium of Rs.43,619/- for own damage as well as third party liability.   Further the contention of the complainant is that the vehicle met with an accident on 14.02.2013 near Kallupatti Pirivu Road within Thuvarankurichi Police Limit, the complainant immediately after the accident complained to the above police station, FIR was lodged on 15.02.2013 ant the case was registered under Sections 297, 337 of IPC in Crime No.56/2013 as per Ex.A3.  Further the contention of the complainant is that after the accident the vehicle was taken to authorized service centre of Toyota Authorized Service Centre, Ambattur, the service centre raised the bill of Rs.6,89,000/- as per Ex.A6 (S).   Further the contention of the complainant is that the accident was immediately intimated to the opposite party and the opposite party has appointed spot surveyor and field  surveyor to assess the loss sustained to the vehicle due to damages and to examine the genuineness of the accident.   But it is not denied by the opposite party.   Thereafter, the complainant has filed claim application before the opposite party.   The opposite party has repudiated the claim of the complainant by sending a repudiation letter dated:22.03.2013 “as ascertain from the report of the investigator that the injured persons were travelling that the insured vehicle as paid passengers.   Since the vehicle was used for hire or reward at the material time of accident in violation of “Limitations as to use” as given in the face of the policy we are unable to consider your claim preferred as above as per Ex.A5. 

7.     Further the contention of the complainant is that the repudiation is bad in law.  

5. Neither in the FIR nor in the Statement recorded by the police the injured persons were travelling stated that they are the paid servant.
6. The Surveyor has not given his report to the complainant within the time frame stipulated under IRDA regulations.
7. The Surveyor has assumed the power which is not given to the police even under CRPC.
8. The opposite party has not followed the law laid down by Hon’ble Supreme Court in 2010 (2) CPJ 9 SC and 2009 (1) CPJ 297 NC.

6) The complainant states that even one of the guidelines framed by the Insurance Company 75% of claim is admissible even where the condition of policy including limitation as to use was breached.   Thus failure to pay the amount, amounts to deficiency in service.

7. The complainant states that in law he is entitled to the following amounts:

a) Claim on repair basis                                          Rs.6,89,000/-

b) For rendering deficiency in service

and caused mental agony                                        Rs.2,00,000/-

c) Cost                                                                      Rs.   25,000/-

                                                                                     

                                                          Total               Rs.9,14,000/-

                                                                                     

8.     The contention of the opposite party is that admittedly, the complainant insured his Toyota Innova car registered as TN 09 BF 6133 with the opposite party under private car package policy vide policy No.TIT /91101922 for the period from 12.11.2012 to 11.11.2013 as per Ex.B1.  Further the contention of the opposite party is that the complainant had paid gross premium of Rs.43,619/- with insurance cover has been granted subject to terms and conditions stipulated in the policy, the complainant is also not disputed this fact.   Further the contention of the opposite party is that the complaint is not maintainable without production of terms and conditions of policy by the complainant but Ex.A1 is filed on the side of the complainant disentitle the claim and contention of the opposite party.   Futther the contention of the opposite party is that the complainant had carried the persons in the car as fare paying /paid passengers as per the report of the surveyor and the investigator, therefore, as per the terms and conditions of the policy, the complainant used the vehicle for hire or reward amounts to violation of policy terms and conditions as per Ex.B2 (S).  But on a careful perusal of records and investigation report filed by the investigator (Ex.B2(S) along with written statement obtained from one Mr. D. Subramanian was not proved before this Hon’ble Forum beyond reasonable doubt by examining Mr. D. Subramanian as witness to prove the written statement executed before the investigator is not acceptable either on law or on fact.   However, the opposite party has not produced any substantial evidence particularly to their contention as the complainant carried paid passengers in his car disproves the contention of the opposite party.   Therefore, the complainant has not violated the terms and conditions mentioned in the face of the policy “limitations as to use”.  Hence, the repudiation of claim by the opposite party amounts deficiency of service and unfair trade practice.   

9.     The learned Counsel cited the following decisions:

III (2000) CPJ 36 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

Kesarben

-Versus-

United India Insurance Co. Ltd.

Held that

          “The only plea taken by the insurer before the District Forum and the State Commission was that car was not supposed to be used for hire or reward.  It may be noted that evidence was not produced before the District Forum in the manner it is required under law. No one appeared before the District Forum from the appellant.   The said brother of the deceased was also not examined.  In this case, the report (of the Claims Minimisation Bureau) has also remained unproved since the Investigator has not been produced and there is no way in which the veracity of his report could be tested or decided”.

&

II (2010) CPJ 9 (SC)

SUPREME COURT OF INDIA

Between

Amalendu Sahoo

-Versus-

Oriental Insurance Co. Ltd.

Held that

          “15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.

          16. In the instant case, the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident.   Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in toto”.

Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall pay 75% of the claim amount with interest at the rate of 9% from the date of presentation of complaint to till the date of this order and a compensation of Rs.20,000/- towards metal agony with cost of Rs.10,000/-.

In the result, this complaint is allowed in part.   The opposite party is directed to pay 75% of the claim amount with interest at the rate of 9% p.a. from the date of presentation of the complaint (i.e.) 17.07.2014 to till the date of this order (i.e.) 09.10.2019 and to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards compensation for mental agony and deficiency in service with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order failing which, the said amounts shall carry interest at the rate of 9% p.a. till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 09^th day of October 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	12.11.2010	Copy of Registration Certificate
Ex.A2	12.11.2012	Copy of Policy
Ex.A3	15.02.2013	Copy of FIR
Ex.A4		Copy of statement recorded by the police
Ex.A5	22.03.2013	Copy of repudiation letter
Ex.A6		Copy of quotation issued by the Toyoto Show Room

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of insurance policy with terms and conditions
Ex.B2	06.03.2013	Copy of investigation report
Ex.B3	11.03.2013	Copy of Survey Report

 

 

 

MEMBER                                                                                PRESIDENT