By Smt. C.S. Sulekha Beevi, President,

1. Complainant who was working at Malanjikhand, entrusted his hold articles along with Premier Pandmini Car & Bajaj Chetak Scooter to be transported to his home town in Malappuram District while returning after his retirement. The articles thus transported were insured under Transit policy with second opposite party for a sum of Rs.2,13,000/- and complainant paid premium of Rs.5,713/- on 15-4-1999. The car was covered by comprehensive insurance policy of second opposite party valid from 19-9-1998 to 18-9-1999. The Scooter was insured by comprehensive policy under second opposite party having validity from 28-01-1999 to 27-01-2000. Though all these vehicle policies were in force the transit insurance policy was taken by complainant as an additional security. As per the transit insurance policy, denting, scratching and polishing were excluded. The vehicles were simultaneously covered under comprehensive policies. When the vehicles reached destination on 28-4-1999 both these vehicles sustained damages during transit. Complainant immediately reported the matter to 1^st opposite party on 28-4-1999 along with details regarding damages & photocopies of the policies. The vehicles were loaded in the truck with sufficient care and necessary jigs, fixtures and clamping devices were applied to avoid damages to the vehicles. All these were applied and used as per instructions of officers of 2^nd opposite party who had inspected the loading and were satisfied before transit. On intimating about the damage 1^st opposite party deputed a Surveyor who inspected and prepared summary of damage caused to both vehicles. Complainant preferred claim for Rs.12,000/- towards expenses for repairing the vehicles. Though complainant issued several letters to opposite party to settle the claim, there was no response from opposite party. On 15-9-2000 complainant received a letter from office of opposite party seeking records and though all original records were already furnished, complainant again furnished copies as instructed by opposite party. Another letter was received from 2^nd opposite party and complainant complied the instructions stated there in also. The bills for expenses incurred for repairing the vehicles which was more than Rs.20,000/- was also furnished to opposite party. 1^st opposite party stated that there will be depreciation as per law and the claim will be limited to Rs.12,000/- together with fees paid to Surveyor. The complainant suffered cardiac disorders and was unable to pursue the matter for a couple of years thereafter. Opposite party also did not issue any further intimation to complainant as to the decision taken upon the claim. A week prior to filing of this complaint, when complainant approached 1^st opposite party and enquired about the claim he was informed that nothing could be done and adviced the complainant to fight it out against second opposite party. Hence this complaint alleging deficiency in service and claiming Rs.20,000/- with interest @ 18% from 28-4-1999 till payment and compensation of Rs.15,000/- together with costs of Rs.5,000/-.

2. Opposite party filed version contending that the complaint is barred by limitation. That complainant has not served notice, as per law, to the carrier and has thus deprived opposite party from obtaining relief and remedy against the carrier. That it is the duty of the complainant to ensure that the vehicles which were under transit were securely loaded inside the truck. That the damage resulted only due to negligence of complainant in improper loading and fixing of the vehicles into the truck. The averments regarding quantum of damages sustained are denied as false. That in the letters written to opposite party complainant has admitted that the damages sustained was only Rs.11,876/-. That the claim for Rs.20,000/- is baseless. That complainant did not produce necessary documents to settle the claim even after repeated requests. The delay occurred only due to latches on the part of complainant and that there is no deficiency in service on the part of opposite party. That as per the transit policy loss caused due to denting, scratching are excluded from policy and opposite party is not liable to compensate for such damages. That complaint is only to be dismissed.

3. Evidence consists of affidavit filed by complainant and Exts.A1 to A11 marked for him. Opposite party filed counter affidavit and Exts.B1 to B4 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether the complaint is barred by limitation.

(ii) Whether opposite parties are deficient in service.

(iii) If so, reliefs and costs.

5. Point (i):-

The foremost contention raised by opposite party is that the complaint is barred by limitation. It is submitted that the goods reached on 28-4-1999 and the complainant also preferred a claim before opposite party. That the complaint filed on 16-10-2003 is barred by limitation. Complainant had filed I.A.206/2003 under Sec.24A along with the complaint to condone the delay in filing the complaint. The reason stated was that he was suffering from cardiac problem. This petition allowed on 31-12-2003. Further in the present case, it is submitted by complainant that opposite party did not intimate complainant whether the claim was repudiated or not. Opposite party has no case that they send any letter informing the inability to pay compensation. Generally insurance company has to settle a claim within three months after receiving the claim. The decision taken upon the claim has to be communicated tot he consumer. The cause of action to file a complaint accrues against the consumer only from the date he receives the knowledge of repudiation. Hence opposite party cannot raise the contention that the complaint is barred by limitation. We therefore hold that this complaint is maintainable and not barred by limitation.

6. Point (ii):-

The claim is resisted by opposite party mainly on the following grounds. (i) That complainant did not serve notice against the public carrier (ii) That complainant did not furnish necessary documents to settle the claim. (iii) That damage tot he vehicles were caused due to negligence on the part of complainant in not properly fixing the vehicles inside the truck (iv) That as per the transit policy loss caused due to scratching, denting are excluded.

7. The complaint is filed only against the insurance company and carrier is not a party. Complainant has preferred a claim to opposite party immediately when the goods reached destination. Ext.A10 is the claim form submitted by complainant on 29-4-1999. Against the query No.27 which reads as “Has a notice of claim been filed against the carrier?” Complainant has answered as follows:

“Notice was given but no response. Copy enclosed”.

Opposite party has not disputed that this statement made in Column 27 is incorrect. On receiving claim first opposite party arranged for conduct of survey. Ext.A10 proves that complainant has sufficiently complied with the provision of law in serving notice against the carrier. We therefore are of the view that opposite party cannot deny liability on this technical ground.

8. Another ground raised by opposite party is that complainant failed to furnish relevant documents necessary to settle the claim. Opposite party has not produced any single communication issued to complainant seeking him to furnish documents. In Ext.B2 which is a letter dated, 17-8-2000 send by complainant to second opposite party, it is stated by complainant in para 11 that all relevant documents were send to second opposite party. He has given the details of all documents furnished by him to second opposite party. It is candid from Ext.B2 that complainant has furnished documents necessary for settling the claim.

9. It is submitted by opposite party that the damage tot he vehicles happened due to the negligence of the complainant in not taking proper care in loading and fixing the vehicles inside the truck. Complainant has affirmed that the vehicles were loaded in the truck and fixed with all care and caution as per instructions of officers of second opposite party and that these officers inspected and were satisfied before transit of the goods. Opposite party has not adduced any contra evidence to discredit this affirmation made by complainant.

10. Another contention raised from the side of opposite party is that the loss sustained to the vehicle was a result of denting and scratching and that such loss are excluded as per Ext.A1 transit policy. The damage caused to the vehicles have been inspected and reported by the Surveyor as per Ext.A11 survey report. The surveyor has not stated anywhere in Ext.A11 that the damage noted by him was due to denting and scratching. In our view opposite party cannot rely upon this exclusion clause merely on assumptions. In Ext.A11 the loss assessed by surveyor for both the vehicles together is Rs.7,540/-. We consider that complainant is definitely entitled to this amount. Illegal retention of legitimate amount is deficiency in service. Further in the present case opposite parties have failed to communicate to the complainant their decision arrived upon the claim. Opposite party has maintained silence by not sending any letter of repudiation tot he consumer which is definitely imperfect service. For the foregoing reasons we find opposite parties deficient in service.

11. Point (iii):-

As discussed in point (ii) complainant is entitled to Rs.7,540/- assessed by surveyor under Ext.A1 transit policy. We consider that he has to be compensated for the deficiency also. In our view interest at the rate of 6% per annum upon the above amount would not only be sufficient compensation to complainant but will also serve to improve the quality of service of opposite party No.1 & 2.

12. In the result we allow this complaint and order both opposite parties jointly and severally to pay Rs.7,540/- (Rupees Seven thousand, five hundred and forty only) to the complainant along with interest @ 6% per annum from date of complaint till payment within one month from the date of receipt of copy of this order.

Dated this 11th day of February, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A11

Ext.A1 : Marine Cargo/Inland Transit Policy No.320903/P1/00006/00-19/79

Ext.A2 : Carbon copy of the letter dated,. 28-4-1999 by complainant to

1^st opposite party.

Ext.A3 : Carbon copy of the registered letter with ack. Due dated,. 28-4-1999

by complainant to 2^nd opposite party.

Ext.A4 : Letter dated, 10-10-2000 by complainant to 2^nd opposite party.

Ext.A5 : Carbon copy of the registered letter dated, 25-01-2000

by complainant to 2^nd opposite party.

Ext.A6 : Carbon copy of the registered letter with ack. Due by complainant

to Regional Manager, National Insurance Company Ltd.

Ext.A7 : Photo copies of the cash bills (5 Nos.)

Ext.A8 series : Repair charges of vehicles (2 Nos.)

Ext.A9 : Certificate dated, 22-4-1999 given by Senior Administrative

Officer of Hindustan Copper Ltd. in the name of complainant.

Ext.A10 : Claim Form dated, 29-4-1999 submitted by complainant

to opposite party.

Ext.A11 : Survey report dated, 07-5-1999 by Insurance Surveyor.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B4

Ext.B1 : Motor Claim Form dated, 10-10-2000 submitted by complainant

to opposite party.

Ext.B2 : Registered letter with ack. Due dated, 17-8-2000 by complainant

to Regional Manager, National Insurance Company Ltd.

Ext.B3 : Registered letter with ack. Due dated, 07-5-1999 from complainant

to 2^nd opposite party.

Ext.B4 : Registered letter dated, 25-01-2000 from complainant to 2^nd opposite party.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER