IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Friday the 14^thday of July, 2023.

                                      Filed on 09.02.2023

Present

1. Smt.P.R.Sholy, B.A.L, LLB  (President in Charge )
2. Smt C.K.Lekhamma . B.A. LLB (Member)
   •  

CC/No.40/2023

between

Complainant:-                                                     Opposite parties:-

Sri. Sebin B. Abraham                                  1.      Iffco- Tokio General Insurance

 S/o Babu Abraham                                                Co. Ltd, Regd Office,  Iffco Sadan

Puthuparambil House                                              CI Dist. Centre, Saket, 

Cheramankulangara                                                New Delhi-110017

Thathampally Ward                                                Rep by Authorized Signatory

Thathampally P.O

Alappuzha-688013                                        2.      Iffco- Tokio General Insurance

Rep by  POA Holder                                              Co. Ltd, 40/19, 1^st Floor, Iffco.

Sri. Babu Abraham                                                 Bhavan, Thottakat R, Near

(Adv. C. Parameswaran)                                        Kalyan Silks, Ernakulam

                                                                               Cochin-11, Rep by authorized

                                                                               Signatory.

                                                                               (Adv. D. Rajeev for OP 1 &2)

                                                                      3.      S.V. Motors- Alappuzha

                                                                               3/390 a, Sand L Complex

                                                                               Punnapra North, Sanathanapuram

                                                                               P.O, Kalarcode, Alappuzha-03

                                                                               Rep by authorized signatory

                                                                               (Adv. T. Saji  for 3^rd OP)

                                                                      4.      Yamaha Motor India, A3

                                                                               Industrial Area, Noida-Dadri Road

                                                                               Surajpur, Gautham Budh  Nagar

                                                                               Uttar Pradesh-201306

                                                                               Rep by authorized signatory.

                                                                               (Adv. R. Azad Babu)

O R D E R

SMT. SHOLY.P.R (PRESIDENT IN CHARGE)

Complaint filed u/s 35 of the Consumer Protection Act, 2019

1. Material averments briefly discussed is as follows:-

Complainant purchased a motor bike bearing Reg. No. KL.04-AS-2922 Yamha FZS manufactured by 4^th opposite party through its dealer 3^rd opposite party on 30/3/2022.  The vehicle was  insured by the opposite parties 1 and 2. While so on 30/6/2022 the said vehicle met with an accident  at Changanassery  causing damage  to the said vehicle.  It was reported to the police station  Changanassery and entered in  GD entry.  The complainant entrusted the vehicle to the 3^rd opposite party for   accidental services and repairs where the representatives of 1^st and 2^nd opposite party inspected the vehicle.  The 3^rd opposite party assured the complainant that they will process the claim  and repair the vehicle to the utmost satisfaction of the complainant.  The complainant  filed  claim on 5/10/2022.Believing the representations of 3^rd opposite party the complainant was under the bonafide belief that the claim will be settled  as per the terms and conditions of the policy at the instance of 3^rd opposite party.  The 3^rd opposite party informed that the insurance company repudiated the claim on the ground of delay and informed the complainant to give explanation for delay for processing the claim.  Accordingly the complainant entrusted a clarification for explaining the delay on 12/10/2022 to the supervisor of 3^rdopposite party named Sri. Hari.  On the same day itself the said Hari informed the complainant that the said letter was forwarded to the 1^st opposite party.  The 3^rd opposite party informed the complainant that  GD entry  related to the accident is  pre requisite for  lodging the claim. The non receipt of the GD entry was  the reason for the delay in submitting the claim.    The complainant had paid to 3^rd opposite party Rs. 33,000/- being the amount for repairing the vehicle as assured by 3^rd opposite party that the said amount is  to be refunded by 1^st opposite party and 2^nd opposite party insurance company and taken  the vehicle from 3^rd opposite party  on 23/11/2022.  On 26/12/2022 the complainant sent a mail to 1^st opposite party and it was replied by 1^st opposite party on 27/12/2022 over phone that “ we have already sent clarification letter, but not received proper revert from you.  Hence the claim closed without payment”.  Thereafter on 28/12/2022 the complainant  sent a legal notice  to the opposite parties and though the  same was accepted by the opposite parties, no reply was yet sent or comply the terms of the notice. The complainant also followed all the proceedings instructed by the 3^rd opposite party for allowing the claim, but the insurance company refused the claim. The insurance  company had not sought any clarification directly to the complaint, eventhough the address and details are with them for the live insurance of the complainant.  The  repudiation on the ground of delay is  untenable and unsustainable.  Hence this complaint.

2.       Version filed by the 1 and 2  opposite parties is  follows:-

The complaint is not maintainable  either in law or on facts.  Opposite parties 1 and 2 issued a policy in the name of complainant  for the Yamaha Motor cycle bearing Reg. No . KL.04-AS-2922 having policy coverage from 31/3/2022 to 30/3/2023

     Regarding the intimation to the insurance company the averments  is not correct.  Regarding the correspondence between complainant and with 3^rd and 4^th opposite party  the 1^st and 2^nd opposite party has no reliable knowledge for information. The complainant is legally bound to inform the insurance company regarding the accident within stipulated time and as per the terms and conditions of the policy. 

     The alleged accident occurred on 30/6/2022. But the matter was intimated to the insurance company only on  10/10/2022.  There  was an inordinate delay of 102 days in intimating the matter to the insurance company.  There is no proper explanation for the  inordinate delay in intimating the claim from the complainant.

     As per the  terms and conditions of the policy,  condition no. 1 specifically  and clearly stated that  “ Notice shall be given in writing to the company immediately upon the occurance of any accidental loss or damage”. But the complainant utterly failed to  comply the necessary legal formalities  in connection with the claim application.

     The  insurance is a contract and parties to the contract are abide by the  terms and conditions of the policy.  The company is having legal liability only to  the insured if the terms and conditions of the policy are correctly followed  by the insured of the vehicle.

       As per the explanation given by the complainant to the insurance company on 12/10/2022 it is stated that the delay was caused due to the non availability of   the GD copy from the concerned police station. But it is  to be noted that  the GD was entered by the police as early as on 1/7/2022 and there is no legal bar to get the GD copy on the same day.  The claim  should have intimated to the insurance company even without GD copy as for informing the accident GD copy is not required hence it is  a willful breach from the side of the complainant.  Due to the  inordinate delay the 1^st and 2^nd opposite party could not conduct proper investigation and proper loss assessment in this case.   There was absolutely no deficiency in service from the part of 1^st and 2^nd opposite parties. The opposite parties 1 and 2 never rejected any genuine claim under this policy.   This opposite parties is unnecessarily  dragged  into litigation without any cause or reason and hence  this opposite parties  are entitled to get compensatory cost from the complainant.  

3.  Opposite party No.3  is exparte.      4^th opposite party filed a version mainly contenting as follows:-

 This opposite party is not engaged in the business of manufacturing, distributing and selling two wheeler vehicles. Complainant has not made the 4^thopposite party as a necessary and proper party to the complaint. Complaint is false, frivolous, baseless and vexatious in nature and has been made to malign the goodwill and reputation of the opposite parties. The complainant had purchased “Yamaha FZS Motorcycle  on 30/3/2022 from opposite party No.3. The aforesaid motorcycle was delivered to the complainant after completing the process of P.D.I (i.e. Pre Delivery Inspection) to ensure perfect working condition of the Motorcycle. The complainant was informed at the time of sale of the motorcycle that the 4^th opposite party is limited only for any manufacturing defect in the motorcycle or post services problems within the period of warranty extended by the 4^th opposite party. The sale related issues such as insurance, generation of invoice, cash memo and registration of the motorcycle are solely handled by the Dealers of the 4^th  opposite party with the help of third parties. Being satisfied with the aforesaid facts, the complainant had  proceeded to purchase the motorcycle.

     There is no privity of contract or  role between the this opposite party and the complainant as 4^th opposite party not provide services with regard to insurance and  RTO registration.  Complainant has not alleged any deficiency in service on  part of the  4^th opposite party.  The complainant reveals that the grievance, if any, are against  opposite parties 1 to 3 only. It is not the case of the complainant  before this Hon’ble  court that the motorcycle repaired by 3^rd opposite party is not proper and has any defect or problem in the motorcycle.  In absence any deficiency in service or negligent services on part of this opposite party, the complaint qua this opposite party is liable to be dismissed.   The 4^th opposite party does not sell its two wheeler vehicles to any  individual customer and the this  opposite party sells its two wheeler vehicles to its authorized dealers only.  The relationship between the two on principal –to- principal basis.  No liability of this opposite party exists of claims on those parts of the motorcycle that have been subjected to mishandling or negligent treatment or by accidental damages by the user. 

     As per the terms of warranty, the 4^thopposite  party is only liable to replace and repair the defective part and not to replace the motorcycle with a new motorcycle. The complainant had opted to avail service of the opposite parties 1 and 2 for insurance of the motorcycle out of his own will and after performing his due diligence.  The claim for insurance is primarily between the complainant and opposite party No. 1 and 2 only.

     Upon enquiry, the complainant had informed the opposite party No.1 that he had met with an accident on 1/7/2022 at kottayam district. However, as he was busy in his personal life, he approached the 3^rd opposite party only on 22/8/2022 for accidental  repair  of the motorcycle.  Since the motor cycle of the complainant was under insurance, the officials of the 3^rd opposite party informed the complainant that he may claim  insurance from 1^st opposite party and 2 for repair of the motorcycle.  In terms of advise of the opposite party No.3 the complainant agreed to avail insurance of the repair works.

      In order to submit the insurance claim, the 3^rd opposite party requested the complainant to provide documents which were to be submitted with opposite parties 1 and 2. As a matter of fact, the 3^rd opposite party even helped/assisted the complainant in paper works and processing the insurance claim with the opposite parties 1 and 2 However, despite providing all assistance by 3^rd opposite party  the complainant delayed submission of requisite documents for intimation of insurance claim for reasons best known and attributable to him and resultantly, the claim intimation was submitted with the 1^st and 2^nd opposite party only on 8/10/2022. Pursuant thereof, the motorcycle  was inspected on 10/10/2022 by opposite party 1 and 2 wherein opposite party No.3 provided estimated quotation for repair works.

      Subsequent thereof, on 11/10/2022 the opposite party 1 and 2 raise query in claim intimation of the complainant particularly reason for delay in intimation  by the complainant. The said fact was informed  to the complainant and based on explanation provided by the complainant, the same was submitted with opposite party No.1 and 2.  However the processing of claim was delayed by opposite party No.1 and 2 for the reasons best known  to them and not attributable to the 4^thopposite party.

     In view of delay in approval of insurance claim, the complainant requested the 3^rd opposite party to commence repair works on cash basis.  The complainant further informed the opposite party No.3 that he shall independently puruse the insurance  claim with opposite party No. 1 and 2. Pursuant thereto, the opposite party no.3 commenced repair works and delivered the motorcycle to the complainant on 23/11/2022 to the complete satisfaction of the complainant.

      Complainant alleging that the opposite party No. 1 and 2 have wrongly rejected the insurance claim and is claiming the compensation for deficiency in service  for the said delay.  The 4^th opposite party cannot be made liable for the alleged actions of the opposite parties 1 and 2, which fall beyond the terms of warranty provided by the 4^th opposite party over the motorcycle.It was only upon receipt of complaint that the 4^thopposite party has come to know that the insurance claim of the complainant has been rejected by the opposite party No. 1 and 2 on the ground of inordinate delay in intimation of claim by the complainant and improper explanation for the delay. The said service is not provided by the 4^th opposite party nor there is any deficiency in service or defect in the motorcycle to make the 4^th opposite party liable. In view of the said circumstances the complaint may be dismissed against the 4^th opposite party.

4.    On the above pleadings following points were raised for consideration:-

1. Whether there was deficiency in service from the part of opposite parties?

2. Whether the complainant is entitled to realise an amount of Rs. 33,009/- as bill amount from the opposite parties?

3.  Whether the complainant is entitled to realize an amount of Rs.10,000/-   as compensation from the  opposite parties?

4. Reliefs and costs?

5. Evidence in this case consists of oral evidence of PW1 and Ext.A1 to A9 on the side of complainant. No oral as well as documentary evidence adduced by the opposite parties. Counsel appearing for the complainant and opposite parties 1 and 2 filed notes of arguments. Heard both sides.

6.      Point No. 1 to 3:-

PW1 is the Power of Attorney holder of the  complainant in this case who is the father of the complainant.  He filed an affidavit in tune with the complaint  and  got marked Ext.A1 to A9.

     Complainant’s case is that on 30/6/2022 while he was riding his Yamaha motor bike bearing Reg. No. KL.04.AS 2922 met with an accident  due to a sudden brake applied for avoiding a collision with another goods vehicle running in front of his vehicle at Changanassery and causing damage to his motor bike.  Though the said vehicle was having  insurance from 1^st and 2^nd opposite party during the period of the said  accident, the OD claim was repudiated by them which was initiated through 3^rd opposite party where the vehicle was entrusted for repairing. It was informed  by the 3^rd opposite party that  the insurance company repudiate the claim due to  delay in submitting the claim.

     According to the complainant the reason for the delay in submitting the claim was non-receipt of the GD entry form police station regarding the accident and it was explained in writing to the opposite parties 1 and 2. In the said circumstances of non settlement of the claim the complainant had paid the repairing charges of the  vehicle Rs. 33009/- to the 3^rd opposite party from his pocket.  Thereafter the complainant intimated the matter to the opposite parties and demanded the said amount through legal notice dtd. 28/12/2022 (Ext.A6). Though the notices were accepted by the opposite parties, they didn’t replied nor settled the claim of the  complainant. Hence this complaint filed for allowing the complainant for reimbursement of the amount Rs. 33009/- being  paid as bill amount for repairing the vehicle along with Rs. 10,000/-  being compensation from the  opposite parties.

      The 4^th opposite party, the manufacturer of the  subject matter vehicle Yamaha Motor bike, mainly contented that they have not related with the dispute of this complaint since the same was not related to any dispute with regard to the manufacture or after  sale service of the vehicle.  According to the 4^th opposite party the vehicle was entrusted for repairing to 3^rd opposite party on 22/8/2022 and  claim form received on 8/10/2022.

     3^rd opposite party remains exparte since they did not filed version within the stipulated period.

     Admittedly the complainant insured the vehicle to opposite parties 1 and 2 during the period from 31/3/2022 to 30/3/2023.  It is also admitted that the disputed accident  occurred  on 30/6/2022, which is within the period of said  insurance. The main contention of opposite parties 1 and 2 is that the delay in submitting the claim and its reason.  The complainant alleged that at the time of accident the same was intimated to the police station, changanassery, within the jurisdiction the accident occurred and thereafter the vehicle entrusted to 3^rd opposite party who is the dealer cum service provider of the said vehicle. The complainant further alleged that  3^rd opposite party assured all the matters regarding the insurance with opposite parties 1 and 2  something like an intermediary between complainant and 1^st and 2^nd opposite party.

    On perusal of the documents produced by the complainant it is noticed that Ext.A4 is the clarification letter sent by the complainant for explaining the reason  for delaying the claim  which is narrated as non receipt of GD entry with regard to the accident from Changanassery Police station. Admittedly the GD entry submitted to insurance  company after 102 days of date of occurrence. In this situation  we are also not believing the fact that whether the claim application submitted without GD entry and subsequently the  insurance company demanded the  same.  No such proof available among the exhibits. Moreover  it is  unbelievable that it has taken 102 days for obtaining GD entry from a distance of at least 25 km from the residence of the complainant, particularly it was entered on 1//7/2022 itself.

      From the crucial evidence of this dispute, ie, in Ext.A1 complete pages are not seen and on the other hand the complainant never alleged non issuance of the remaining parts of the said documents. From the total pages of 5 in number only  2 pages are available, and we doubted that it is in that missing portions the terms  and conditions are incorporated as alleged by the 1^st and 2^nd opposite parties regarding  the intimation of claim.  It is also to be noted that without getting an intimation opposite party will not be able to depute a surveyor to assess the damages to the vehicle.  Most policy wordings clearly state the timeline within which customers need to report a claim.  The problem however is that this time line is not communicated to the policy holder clearly at the time of sale of the policy. This is one of the main reasons why  genuine claims can get delayed.  Here in this case no such contention raised by the complainant.

 As per the insurer, the claim was considered basis the terms and conditions of the policy and judicial trends.  The law in this regard settled by judicial pronouncements.  It was held by the  Hon’ble Supreme Court in  Export Credit Guarantee Corporation of India Ltd.  Vs. M/s  Garg Sons International ( 2013 KHC 4040)

“Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance.  No exceptions can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted.  The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.”

15.     It was held by the Hon’ble High Court in  National Insurance Co. Ltd  Vs.  Sudhakaran and others(2018 (5) KHC 661)

“ Insurance Law- Contract of Insurance – Interpretation of- Held, normal rule is that the conditions specified in a policy, which is contract of insurance statutory in nature has to be strictly construed.”

So applying the principles  laid down by the Hon’ble Supreme Court and Hon’ble  High Court  it can be safely concluded that this Commission has no authority to relax the condition specified in the insurance policy.  The said condition is that the  notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage. Actually the accident occurred on 30/6/2022 and GD entered on  the next day ie, 1/7/2022. However in this case the claim given to the company only after 102 days which is in no way considered as immediately after the occurrence of the accident.  Though the complainant has got a case that he had received the GD entry regarding the accident only after delaying those days, it is not supported by any corroborative or convincing evidence. If the matter was informed to the opposite parties 1 and 2 in time there is no reason as to why it should be declined. In said circumstances we are of the view that complainant is not entitled for any relief sought for in the complaint since there is no deficiency of service proved on the part of opposite party and so these points are found against the complainant.

7.      Point No.4:-

  In the result complaint stands dismissed. Parties are directed to bear their respective cost.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 14^th  day of July, 2023.                                          

                                 Sd/-Smt. P.R. Sholy (President in Charge)

         Sd/-Smt.C.K.Lekhamma (Member)

Appendix:-Evidence of the complainant:-

PW1                    -        Babu Abraham (Complainant)

Ext.A1                -        Insurance policy   

Ext.A2                -        GD entry dtd. 1/7/2022

Ext.A3                -        Copy of Statement of Account

Ext.A4                -        letter dtd. 12/10/2022

Ext.A5                -        Tax Invoice dtd. 23/11/2022

Ext.A6                -        Copy of Notice

Ext.A7                -        Original Postal Receipts

Ext.A8                -        Acknowledgment Card

Ext.A9                -        Power of Attroney

Evidence of the opposite parties:-Nil

// True Copy //

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                  Assistant Registrar

Typed by:- Br/-

Compared by:-