DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 5th day of October 2010 .

Present : Smt. Seena.H, President

: Smt. Preetha.G. Nair, Member

: Smt. Bhanumathi.A.K, Member

C.C.No.136/2009

M. Rukiya

W/o. Ahammed Kabeer

Ambattuparambu Veedu

Vavulliapuram (P.O)

Alathur

Palakkad. - Complainant

(Adv. K. Kusalakumaran)

Vs

1. The Manager

HDFC, ERGO

General Insurance Company Limited

CHAIRSMAC

Ground Road

Kozhikode – 673 001.

(Adv. P. Prasad)

2. Manager

Radhiya Motors

Koottupatha

Coimbatore Road

Palakkad. - Opposite parties

(Party in person)

O R D E R

By Smt. Seena.H, President.

Complaint in brief:

Complainant filed claiming balance insurance amount paid as repair charges. Complainant is the R C owner of KL 49/A 3073 Trax Cruiser vehicle purchased from 2^nd opposite party. Vehicle was insured with 1^st Opposite party through 2^nd opposite party. Policy issued is a package policy. Complainant incurred an amount of Rs.26,239/- as repair charges, out of an accident. Opposite party paid only Rs.11,901/-. Complainant personally and through registered letter requested the opposite parties to pay the balance amount, for which through opposite parties received the letter has not replied. Hence the complaint. Complainant claims the balance amount together with compensation and cost.

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Both opposite parties filed version. According to 1^st opposite party claims of the complainant has been already paid except repair charges incurred for

1. Bumper removing, refitting and gap correction Rs.250/-

2. Electrical parts removing and fitting Rs.250/-

3. Body denting and leveling Rs.3,750/-

4. Body painting Rs.7,250/-.

According to 1^st opposite party, the above repair charges were not paid due to non coverage of the same in the policy conditions. 1^st Opposite party contented that as per policy conditions, IMT 21 is applicable, wherein there is a special exclusion towards loss or damage to lamps, tyres, tubes, mudguards, bonnet, side part bumpers and paint work. Further stated that if above stated repairs has to be considered, complainant has to pay an additional premium under IMT 23, which has not been paid. Hence there is no deficiency in service on the part of 1^st opposite party.

2^nd opposite party contented that 2^nd opposite party is an unnecessary party to the proceedings. 2^nd opposite party has received only the actual repair charges from the complainant and hence there is no deficiency in service on the part of 2^nd opposite party.

Complainant and 1^st opposite party filed their respective affidavits. 2^nd opposite party has not filed any affidavit. Exhibit A1 to A9 were marked on the side of the complainant. Exhibit B1 marked on the side of 1^st opposite party. Complainant was examined as PW1 and 1^st Opposite party was examined as DW1.

Now the issues for consideration are

1. Whether there is any deficiency in service on the part of opposite parties?

2. If so, the relief and costs complainant is entitled to?

Issues 1 & 2

The definite case of the complainant is that 1^st opposite party failed to disburse the whole amount incurred as repair charges following an accident.

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1^st Opposite party on the other hand contented that, they have paid whatever complainant is entitled to. Repair charges for bumper removing and fitting, electrical parts removing and fitting, body denting and leveling, body painting etc is not covered as per the policy conditions.

Heard both parties and perused relevant documents on record.

We find that there is no dispute as to the policy or accident or part payment of the insurance claim. The only question to be decided is whether as per policy conditions repair charges for the following is specifically excluded.

1. Bumper removing, refitting gap correction

2. Electrical parts removing and fitting

3. Body denting and leveling

4. Body painting.

Complainant while cross examining has admitted that the above stated parts were damaged and repairs effected.

We have gone through Exhibit B1, the copy of the insurance policy along with the terms and conditions.

Section I of the policy specifically refers to loss of or damage to the commercial vehicle insured under packaged policy. It is provided that the company will indemnify the insured against loss or damage to the vehicle insured following an accident. It is also provided that indemnification is subject to a deduction for depreciation at the rates mentioned below.

1. For all rubber/nylon/plastic parts, tyres, tubes, batteries and air bags – 50%

2. For fiber glass components – 30%

3. For all parts made of glass – Nil

4. Rate of depreciation for all other parts including wooden parts will be as per schedule. For not exceeding 6 months as per schedule, depreciation is nil

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Admittedly the repairs effected is with respect to bumper removing, refitting, gap correction, electrical parts removing and refitting, body denting & leveling, body painting etc.

The learned counsel for the opposite party argues for the position that IMT 21 – is applicable in this case, which provides a special exclusion that except in case of total loss of the vehicle insured, the insurer shall not be liable under Section 1 of the policy for loss of or damage to lamps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work. Complainant argued for the position that IMT 21 is not applicable to the present case since Section 1 of the policy specifically provides for indemnification.

On going through Exhibit B1 policy, it is seen that IMT 21 is specifically endorsed in it and stated that it is forming part of the policy. It is an admitted fact that opposite party paid the claim except the amount for which exclusion applies. Hence we find that complainant miserably failed to prove a case in his favour.

In the result, complaint dismissed.

Pronounced in the open court on this the 5th day of October, 2010

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Date of filing: 08/10/2009

Witness examined on the side of Complainant

Complainant was cross examined as PW1

Witness examined on the side of Opposite party

1^st Opposite party was cross examined as DW1

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Exhibits marked on the side of the complainant

1. Ext. A1 – Receipt of Radhia Motors

2. Ext. A2 – Copy of Driving licence

3. Ext. A3 - Copy of Contract Carriage Permit

4. Ext. A4 – Copy of Certificate of Registration

5. Ext. A5 – Copy of Passenger Carrying Vehicle Policy of HDFC ERGO General Insurance

Company Limited.

6. Ext. A6 – Statement of repair charges incurred to vehicle KL49A.3073

7. Ext. A7 – Copy of parts bill of Radhia Motors

8. Ext. A8 – Copy of Acknowledgement card of Department of Posts

9. Ext. A9 – Copy of Acknowledgement card of Department of Posts

Exhibits marked on the side of the Opposite Party

1. Ext. B1 – Copy of Certificate of Insurance cum Policy schedule of HDFC ERGO General Insurance Company Limited.

Forums Exhibits

Nil