D.o.F:19/12/11
D.o.O:17/10/12
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.351 /2011
Dated this, the 17th day of October 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.RAMADEVI.P : MEMBER
SMT.BEENA.K.G : MEMBER
Mohammed Raeese.K.K : Complainant
S/o Kunhammad.C,
Achumadath House,Arayikadavu Road,
Arangadi, Po.Kanhangad.
(Adv.P.Latheesh Hosdurg)
Manager,
Reliance General Insurance Company Ltd : Opposite party
2nd floor, Vishnu Building, K.P. Vallon Road,
Kadavanthara, Kochin
(Adv.S Mammu Taliparamba)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
In short case of complainant is that the opposite party with whom his Maruti Omni van bearing Reg.No. KL 14/G 5308 has been registered was met with an accident and caused extensive damages. The surveyor deputed by the opposite party inspected the vehicle and assessed the damages. However opposite party repudiated the claim of the complainant stating that the complainant was using the vehicle for commercial purpose where as it had only a private car policy. According to the complainant there was no sufficient reason to repudiate the claim and therefore alleging deficiency in service complainant filed instant complaint.
2. According to opposite party the vehicle is insured with opposite party on the date of accident under private car policy. But as per the investigation conducted and also documents furnished by the complainant it was revealed that the vehicle was using for commercial purpose as EICHER SERVICE VAN. As such the complainant has violated the policy condition and therefore the claim is repudiated. Hence there is no deficiency in service on the part of opposite party.
3. Complainant filed proof affidavit in lieu of examination-in- chief and Exts.A1 to Ext.A7 are marked on his side. On the side of opposite party Exts.B1&B2 marked. Both sides heard. Documents perused.
4. The only issue to be settled in this complaint is whether the repudiation of claim by the opposite party can be justified.
5. Exts.A2&B1 are the copies of the policy issued to the complainant. It shows that the vehicle in dispute was insured as a private car vehicle. But the copies of the photographs contained in Ext.B2 copy of survey report shows that the vehicle vehicle was using as a EICHER SERVICE VEHICLE. So evidently there is violation of policy conditions. Now the moot question that poses before us whether such a violation allows the opposite party to repudiate the claim in toto or not.
6 The Hon’ble Supreme Court in the case of B.V. Nagaraju vs. Oriental Insurance Co.Ltd reported in 1996 AIR 2054(SC) 1996(4)SCC 647 has held that the exclusion clause of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle.
“ The misuse of the vehicle was some what irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed by which, by themselves, had gone to contribute to the causing of the accident’’.
Further the Hon’ble Apex Court in the case of Amalendu Sahoo vs Oriental Insurance Co.Ltd reported in II(2010)CPJ (SC) has relying on the cases of National Insurance Co.Ltd vs Nitin Khandelwal reported in 2008(7) SCALE 351 and United India Insurance Co.Ltd vs Gian Singh reported in 2006 CTJ 221 (CP)(NCDRC) held that in case of violation of conditions of the policy as to the nature of use of the vehicle, the claim ought to be settled on non-standard basis.
7. Further, the Hon’ble National Commission in the case of New India Assurance Co.Ltd vs. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144(NC) while answering to the question whether the insurance company can repudiate the claim in a case where the vehicle carrying passengers and the driver did not have a proper driving license which met with an accident, has explained the general guide lines set out by the General Insurance Corperation about the settling of all such non-standard claim and held that such claim ought to have settled as per that guide lines.
8 One of the guideline mentioned in that case is that the insured is entitled for 75% of the warranty/admissible claim in case of breach of policy conditions including limitations as to its use.
In the instant case on hand the contention of the opposite party is that the complainant was using the vehicle which is covered by a private car policy , as a commercial vehicle.
In view of the above settled legal positions it cannot be hold that the repudiation of claim in toto is justifiable . Hence it amounts to deficiency in service and the opposite party is liable to indemnify the loss sustained to the complainant.
9. Relief & costs.
As per Ext.B2 copy of surveyors Report the net liability of the insurer is `31000/-. Complainant is entitled for 75% of the said amount.
In the result complaint Is partly allowed and opposite party is directed to pay ` 23250/- with interest @9% from the date of complaint till payment together with a cost of `3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of this order. Failing which opposite party shall be further liable to pay interest for `23250/- @ 12% from today till payment.
Exts.
A1- copy of RC
A2- copy of private car vehicle certificate cum policy
A3to A6- copy of bills
A7-copy of letter sent to PW1 by op
B1- copy of private car vehicle certificate cum policy
B2-copy of survey report
MEMBER MEMBER PRESIDENT
eva
