ORDER
By Sri. MOHANDASAN.K, PRESIDENT
Case of the complainant is as follows:-
1. The complainant purchased a Hero Honda splendor bike from the first opposite party on 18/12/2022. The vehicle was insured with the second opposite party and the vehicle number was KL10BG 2643 and the same was purchased with the financial assistance of Hero fin corp.
2. On 10/08/2022 the vehicle met with an accident at Faroke near Ramanattukara while one Mr. Mubashir was riding the motor bike. Mr. Mubashir died in the accident. The vehicle was taken in to the Faroke police station and the police registered a case in the matter. The complainant submitted that the accident was reported to the first opposite party through whom the vehicle was insured with the second opposite party. The vehicle was released from the police on 14/10/2022 and the same was taken to the first opposite party service center. But the motor cycle was not repaired even after two months but informed during December that the insurance stands denied due to delay in intimation of the accident. The complainant submit that the insurance policy certificate does not reveal such a condition. The complainant submitted that the insurance was not availed to the vehicle at his discretion but it was availed thorough the first opposite party and the complainant is not responsible for the delay caused intimating the accident.
3. The complainant submitted that the first opposite party availed insurance service of the second opposite party and so the first opposite party is also responsible for the denial of insurance by the second opposite party. The complainant prayed for compensation of Rs. 3, 50,000/- from the opposite parties.
4. On admission of the complaint notice was issued to the opposite parties and on receipt of notice opposite parries entered appearance and filed version.
4. The first opposite party denied the entire averments and allegations in the complaint. The first opposite party admitted that the complainant was approached the first opposite party and availed the motor cycle with the finance assistance as stated in the complaint. It is also admitted that the complainant brought the vehicle for repair work but all other averments are not within the knowledge of the first opposite party.
5. The opposite party submitted that they asked the complainant that whether he is proposing any particular insurance company for the insurance but the answer of the opposite party was negative. It was told that complainant is amenable for availing insurance from any of the insurance company. Accordingly the first opposite party initiated to avail the insurance of the second opposite party. But the first opposite party is not at all related to the second opposite party and not working under the second opposite party.
6. The first opposite party submitted that immediately on receipt of the damaged vehicle all the insurance claim details were submitted before the second opposite party but the second opposite party denied the insurance coverage. The first opposite party is not aware of the cause for denial of insurance coverage. The first opposite party is not able to repair the vehicle without the approval of the second opposite party. The first opposite party submitted that they are prepared to repair the vehicle immediately on approval by the second opposite party. If the second opposite party is not approving the repair claim the complainant will be liable for the payment of entire repair cost and that reason alone the first opposite party did not repair the vehicle.
7. The first opposite party denied the allegation that the insurance of the second opposite party availed by the first opposite party at his discretion. The first opposite party is responsible to provide the assistance to avail insurance coverage for the customers and only that reason the vehicle was insured with the second opposite party. There is no deficiency in service from the side of first opposite party. The complainant also not alleged any sort of deficiency against first opposite party. The first opposite party is prepared to repair the vehicle immediately on receipt of insured amount. The opposite party submitted that he is not liable to pay any claim of the complainant and the complaint is liable to be dismissed with cost to the first opposite party.
8. The second opposite party filed version denying the averments and allegations and claims contained in the complaint. It is submitted that the complaint is not maintainable either in law or on facts.
9. The complainant approached this Commission with unclean hands by suppressing the material facts regarding the complaint. The complaint is filed only to harass the opposite party by misusing the process of this Commission.
10. The second opposite party admitted that they had issued a two-wheeler package policy to the complainant’s vehicle with engine No. HA11EDMHM25332 and chassis No. MBLHAW126NHA03600 for a period commencing from 18/01/2022 to 17/01/2023 with insured declared value for Rs. 66,928/- and the same is subject to the terms and conditions of the policy. The relationship between the complainant and second opposite party is subject to the terms and conditions of the policy.
11. It is submitted that the alleged accident took place on 10/08/2022 and the complainant reported a claim before the opposite party only on 08/11/2022.
12. The submission of the second opposite party is that though the accident occurred on 10/08/2022 the complainant intimated the claim to the opposite party only on 08/11/2022, with an inordinate delay of 3 months from the date of alleged accident. It is submitted that as per the condition No.1 of the insurance policy issued to the complainant “notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require” . As per the condition No.9 of the policy “the due observance and fulfillment of the terms, conditions, and endorsement of the this policy in so far as they relate to anything to be done or complied with by the insured and the truth of this statements and answers in the said proposal shall be conditions precedent to any liability of the company to make payment under the policy”. It is submitted that the complainant himself admitted there was delay in intimating the claim to the opposite party. It is submitted that the explanation offered by the complainant for the delay is quite not logical.
13. The opposite party submitted that the insurance policy is being a contract of insurance like any other contract, the terms and conditions of the concluded contract are perfectly binding to the insured as well as the insurer in deciding the rights and liabilities arising under the contract. There was will full breach on the part of the complainant in the condition of the policy. In this complaint there is delay of three moths and there is no justification on the part of the complainant in giving intimation of the claim as mandated under policy condition immediately after the accident. So that the company can assign a surveyor so as to assess the exact damages suffered to the vehicle due to the accident in time.
14. Since there was willful violation of policy conditions No1and 9 from the side of complainant the opposite party sent a registered letter to the complainant on 24/11/2022 stating the in admissibility of the claim. This was done after seeking clarifications and explanations from the complainant which was not replay by the complainant.
15. The opposite party submitted that they had deputed a surveyor conducting the survey and assessing the extent of loss suffered to the vehicle due to the accident. The surveyor appointed by the opposite party had inspected the damaged vehicle and assessed the extent of loss to the tune of Rs. 6,850/-.
16. It is submitted that the opposite party sent a registered letter to the complainant on 16/12/2022 expressing the inability to consider the claim for the reasons specifically shown in the repudiation letter. The decision taken by the opposite party was by invoking the terms and conditions of the policy and there is no any kind of deficiency in service from the side of opposite party.
17. The opposite party submitted hat there is no cause of action to approach this Commission alleging any kind of deficiency in service against the opposite party after having deliberately violated the terms and conditions of the insurance policy. The complainant is not entitled to attribute any kind of deficiency or imperfection on the part of the opposite party in the subject matter of the complaint, which has been rejected by the opposite party after due application of mind in tune with the terms and conditions of the policy. The claim of the complainant is to the tune of Rs. 3, 50,000/- is not legally sustainable and is liable to be discarded. It is submitted the complainant is bound to pay heavy compensatory cost to the opposite party for filing this type of frivolous and baseless complaints. Hence the complaint is liable to be dismissed with cost to the opposite party.
18. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A4. The documents on the side of opposite party marked as Ext. B1 to B4. Ext. A1 is copy of job card issued by Mark motors dated 14/10/2022. Ext. A2 is copy of certificate of registration in respect of vehicle No. KL 10BG 2643 with chassis No. MBLHAW126NHA03600 and engine No. HA11EDMHM25332. Ext. A3 is copy of insurance policy No. 3410/00790381/000/00 valid from 18/01/2022 to 17/01/2027. Ext. A4 is the copy of FIR 450/22/ Faroke police station dated 11/08/2022. Ext. B1 is copy of insurance policy No. 3410/00790381/000/00 valid from 18/01/2022 to 17/01/2027. Ext. B2 is copy of insurance claim in respect of vehicle no. KL 10BG 2643 owned by Bushra. Ext.B3 is copy of motor survey report. Ext .B4 is copy of letter of repudiation issued by the second opposite party to the complainant dated 16/12/2022.
19. Heard complainant and the opposite parties, perused affidavit and documents. The following points arise for consideration:-
1) Whether there is deficiency in service on the part of the opposite party?
2) Relief and cost?
20. Point No.1and 2
The admitted case is that the complainant is the registered owner of vehicle no. KL 10 BG 2643 purchased from the first opposite party which stands insured with the second opposite party for the period 18/01/2022 to 17/01/2027. The vehicle was met with an accident on 10/08/2022 at Faroke near Ramanauttukara and the rider died in the accident. Ext. A4 the FIR and Ext.A3 and B1 the insurance particulars reveals the same.
21. The damaged vehicle was taken to the first opposite party from where the complainant purchased the vehicle and who is the authorized service center of the vehicle. Ext. A1 the service job card reveals the vehicle was taken to the first opposite party and the complainant submitted that the first opposite party intimated the accident and submitted claim before the insurance company. But the second opposite party denied the insurance coverage stating the violation of policy condition. The contention of the opposite party is that the accident took place on 10/08/2022 and the intimation of the accident received by the opposite party only on 08/11/2022 i.e. after 3 months of the accident. According to the second opposite party there is delay in reporting the accident and so holding volition of policy condition repudiated the claim. But it is a fact that the vehicle was met with accident as per document Ext. A3 and the same was taken to the first opposite party as per Ext. A1.
22. In this complaint the complainant has got a case that he did not prefer any of the insurance company to avail the insurance coverage for the vehicle. But the fist opposite party who issued the insurance policy of the second opposite party in favor of the complainant. Ext. A3 the policy schedule cum certificate of insurance issued on behalf of second opposite party reveals that the certificate is issued mark motors near railway gate Angadippuram Malappuram dist. So it is definite that the policy was issued through the first opposite party which reveals Ext. A3 policy copy. Ext A3 carries the seal of the first opposite party.
23. The complainant submitted that subsequent to the accident the vehicle was taken to the police custody and after completing the legal formalities the vehicle was released and thereafter it was taken to the service center itself and immediately intimated the accident to the insurance company, the second opposite party. The delay was not willful one and there was sufficient reason for the cause of delay if at all occurred.
24. The second opposite party submitted that as per the terms and conditions the repudiation of the claim was proper and the second opposite party is entitled to do so in the light of various decisions rendered by the courts including the apex court. But the fact remains that the vehicle was met with accident and the same was in the custody of the police and there after it was taken for the repair to the first opposite party. It appears there is sufficient reason for delay in intimating the accident to the second opposite party. The first opposite party, through whom the insurance policy was availed for the vehicle is responsible to intimate the insurance claim to the second opposite party and the second opposite party is bound to honor the intimation of the accident from the side of first opposite party on behalf of the complainant. Hence, in the interest of justice we hold the contention taken by the second opposite party that there is delay is hyper technical one and we find that there sufficient reason to condone the delay in intimating the accident to the second opposite party. The delay caused in the matter is no way affected the processing of the insurance claim. Hence the Commission finds that there is no reason to repudiate the claim of the complainant as per Ext. B4.
25. The second opposite party admitted that on receipt of intimation they deputed surveyor and obtained a motor survey report Ext.B3. The second opposite party submitted in the version the surveyor appointed by the opposite party had inspected the damaged vehicle and assessed the loss to the extent of Rs. 6,850/-. But Ext.B3 the motor survey report reveals the net liability of the insurer as Rs. 32,320/-. There is no document produced except Ext. B1 to B4 to support the contention of opposite party. Hence as per the Ext. B3 document the admitted liability of the insurance company is Rs. 32,230/-. The complainant produced Ext.A1 which reveals estimate of Rs. 45,000/-. But Ext. B1 is not disclosing the details of works to be carried out as part of the service. Hence the Commission hold that the second opposite party is liable to pay the repair cost of Rs. 32,320/- as stated by the insurance surveyor. It can be seen that the second opposite party repudiated the claim due to delay in intimating the accident caused to the vehicle as per the terms of insurance contract. It is a fact that there was delay in intimating the accident to the opposite party. Hence this commission is not inclined to allow the compensation as prayed in the complaint. But the complainant is entitled for the cost of the proceedings and the commission fix the same as rupees 10,000/-.
26. The complainant filed alleging deficiency of service against the first and second opposite parties. But there is no specific allegation against the first opposite party. The Commission do not find deficiency in service on the part of the first opposite party. The first opposite party is entitled to ensure that they will receive repair cost duly either from the complainant or from the insurance company. The first opposite party agreed to repair the vehicle on due approval of the claim by the insurance company.
27. In the light of above fact and circumstances we allow this complaint as follows: -
1) The second opposite party directed to issue the repair cost Rs. 32,320/-
(Rupees thirty two thousand three hundred and twenty only) to the complainant
as per Ext. B3 document.
2) The second opposite party is directed to pay Rs. 10,000/- (Rupees ten thousand
only) as cost of the proceedings.
3) The first opposite party is liable to repair the vehicle on receipt of estimate
amount as per Ext. B3 from the complainant without further delay.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled for interest at the rate of 9% per annum from the date of complaint to till date of payment.
Dated this 29th day of April, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A4
Ext.A1: Copy of job card issued by Mark motors dated 14/10/2022.
Ext.A2: Copy of certificate of registration in respect of vehicle no. KL 10BG 2643 with
chassis No.MBLHAW126NHA03600 and engine No.HA11EDMHM25332.
Ext A3: Copy of insurance policy No. 3410/00790381/000/00 valid from 18/01/2022 to
17/01/2027.
Ext A4: Copy of FIR 450/22/ Faroke police station dated 11/08/2022.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext.B1 to B4
Ext.B1: Copy of insurance policy No. 3410/00790381/000/00 valid from 18/01/2022 to
17/01/2027.
Ext.B2: Copy of insurance claim in respect of vehicle no. KL 10BG 2643 owned by
Bushra.
Ext.B3: Copy of motor survey report.
Ext.B4: Copy of letter of repudiation issued by the second opposite party to the
complainant dated 16/12/2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
