DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 7^th  day of  August 2012

Present : Smt.Seena H, President

            : Smt. Preetha.G. Nair, Member

            : Smt. Bhanumathi.A.K, Member              Date of filing: 13/03/2012

(C.C.No.48/2012)

1.Pookoya Thangal,

   S/o.Koyakkuty Thangal,

  10-30 Pallikkal House,

  Mele Patambi,

  Ottapalam Taluk,

   Palakkad – 679 3006                                    -        Complainant

(By Adv.John John)

V/s

1. Manager,

   Reliance General Insurance,

   Branch Office, Mangalam Towers,

   Opp.Town Bus Stand,

   T.B.Road, Palakkad – 1

2.Manager,

   Reliance General Insurance

   2^nd Floor, Vishnu Building,

   K.P.Vallon Road,

   Kadavanthara,

   Cochin, Ernakulam

(By Adv.Ullas Sudhakaran)                                      -        Opposite parties

O R D E R

By Smt.PREETHA G NAIR, MEMBER

The complainant is the owner of the Toyota Innova 2.5EV P57 Str Motor Car bearing registration No.KL-12C-5555. He had insured the vehicle with the 2^nd opposite party through the 1^st opposite party. The insurance policy availed by the complainant is a comprehensive insurance policy. On 30/5/11 the complainant was travelling with his family members in the vehicle, it was hit by a lorry. Due to the accident two of the passengers in the vehicle died and other passengers got injured. The vehicle was also damaged due to the collision of the vehicle with the lorry. At the time of accident the vehicle was insured and the complainant had followed all the conditions laid down in the insurance policy provided by the opposite parties. The information regarding the accident was duly reported in time to the opposite parties.

On receipt of the information, the opposite parties contacted the complainant and he had furnished all the necessary details and documents as requested by them for assessing the damage. After submitting all the relevant and required documents the opposite parties directed the complainant to do the necessary repairing work. On getting the assurance from the opposite parties, the complainant entrusted the vehicle with Amana Toyota VPK Motors (P) Ltd. Calicut for doing the necessary repair works. The complainant paid Rs.3,06,715/- towards the expense for doing the repair work of the vehicle. After  paying the amount the complainant submitted all the bills and other related documents to the opposite parties for the disbursement of the amount spent by him.

The 2^nd opposite party issued a letter dated 19/10/11 stating that the claim made by the complainant is not tenable and hence could not consider the claim favourably. The opposite parties had deputed Mr.Rajanish / Ravikumar to assess/investigate the loss. They have found that the insured vehicle was over loaded the seating capacity and that the claim is not tenable. The 2^nd opposite party had mentioned in the notice dated 19/10/11 that from the police report submitted to them,  it is understood that 10 persons were travelling in the vehicle at the time of accident. The Police report dated 19/10/11 is only a preliminary statement and not conclusive proof to uphold that the complainant had violated the conditions laid down in the policy. The act of opposite parties have caused much hardship and mental agony to the complainant. The non disbursement of the amount to the complainant  by the opposite parties amounts to unfair trade practice. Hence the complainant prays an order directing the opposite parties to pay an amount of Rs.4,06,715/- as compensation with 12% interest till realization and cost.

Opposite party filed version stating the following contentions. Opposite party admits the complainant’s claim that he is the registered owner of Toyota Innova and the vehicle was insured with Reliance General Insurance Company for the period 28/5/2011 to 27/5/2012. Complainant’s vehicle was having a seating capacity of only 7 persons and he allowed the vehicle to be overloaded with 10 passengers and the same amounts to violation of material policy condition. It is true that opposite party had contacted the complainant on receiving information regarding the accident and furnished necessary documents for processing the claim. It is not fully correct to state that the opposite party had directed the complainant to carry out the necessary repair works and had assured  that he would be compensated by them.

In fact the opposite party had informed the complainant that his claim would be processed and he would be indemnified by them only if there is no violation of any policy condition. It is true that the opposite party had issued a letter dated 19/10/11 informing him that  claim is not maintainable for the reason that violated the policy condition by overloading the insured vehicle. In fact over loading of the vehicle is the cause for the accident and had the vehicle was not overloaded the driver of the insured vehicle would have more control over the vehicle and he could  have avoided the accident. The License of the driver of the vehicle is also not produced for scrutiny. Complainant is not legally entitled to get insurance claim and compensation. There is no deficiency of service or unfair trade practice on the part of opposite party. Hence the opposite party prayed that dismiss the complaint with cost.

Both parties filed their affidavit and documents. Ext.A1 to A6 marked on the side of complainant. Ext.B1 to B5 marked on the side of the opposite party. Matter heard. Both parties filed argument notes.

Issues to be considered are

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

2.    If so, what is the relief and cost ?

Issue No.1 & 2

Heard both parties and perused relevant documents on record. Admittedly the vehicle of the complainant was insured with the opposite parties from 28/5/11 to 27/5/12. The date of accident was 30/5/2011. Ext.A3 shows that the opposite parties repudiated the claim on the ground that insured vehicle was over loaded on the seating capacity. According to the opposite parties the police report submitted  that 10 persons were travelling in the vehicle at the time of accident. The seating capacity as per the registration certificate of vehicle is 7. It is evident from Ext.B2 the copy of certificate of registration mentioned that seating capacity is 7.

In Ext.B3 the survey report mentioned that driver named Ahammed Koya Thangal.P. had motor driving license  valid from 19/5/2005 to 18/5/2025. Also mentioned the motor driving license  No. and issuing authority. The opposite party has not examined the surveyor and to clarify whether the driver shows the motor driving license. Further the opposite party had not taken steps to call for the driving license of the driver. Also the driver is examined as PW2. At the time of cross examination the opposite parties have not raised objections regarding the allegation of the driving license. At the time of cross examination  PW2 deposed that at the time of accident the vehicle was stationery and there was five people and 3 children. In Ext.B5 signed by the complainant stated that in the vehicle 7 persons were passengers. In Ext.B4 also the complainant stated that 7 persons travelling at the time of accident. Ext.A2 attached with the statement of one Mr.Abu Thahir stated that C¶p Rm\pw, Fsâ   Afnb³ Bjn¡nsâ Imdn Fsâ `mcybpw, 2 Ip«pIfpw, Afnb³ Bjn¡pw D½ sFj _ohn AhcpsS aIÄ \Pvam_ohnbpw, Fsâ ktlmZcn dÒ¯v\ok, AhcpsS aIfmb XÉoa_ohn, XpS§nbhcpw aÁpw Fsâ ho«n \n¶pw s]§fpsS Heht¡mSpÅ ho«nte¡v sIm­phnSm³ t]mIp¶ kabw.

  The statement of Abu Thahir clearly shows that more than 7 passengers travelling in the vehicle at the time of accident. Also in the statement  shows that 2 of them were children.

At the time of cross examination of complainant also deposed that there were 9 passengers traveling at the time of accident including children. The opposite parties stated that overloading of the vehicle is the cause for the accident. The complainant has not produced evidence to show the age of children. According to opposite parties overloading is violation of material policy condition.  In Ext.A2 attached with the statement of Abu Thahir mentioned that at the time of accident the vehicle was stationery.  At the time of cross examination of PW1 and PW2 deposed that the vehicle was stationery and the lorry travelling in high speed and hit the vehicle.  No contradictory evidence produced by the opposite parties.  So we considered that overloading is not the cause of accident.  As per the statement at the time of accident there was 9 persons travelling in the vehicle. Also 2 of the passengers was children.  The opposite parties had not raised objections regarding the children.  So the repudiation of claim amounts to deficiency in service on the part of opposite parties.

In Ext.B3 the surveyor assessed the net claim amount is Rs.1,94,638/-.

In the present case the opposite parties repudiated the claim on the basis of violation of policy condition.   As per the available evidence there was no violation of policy condition.  So we ordered the claim amount assessed by the surveyor i.e Rs.1,94,638/-.

In the above discussions we are of the view that there is deficiency in service on the part of opposite parties.  In the result complaint partly allowed. We direct the opposite parties jointly and severally liable to pay the complainant an amount of Rs.1,94,638/-(Rupees One lakh ninety four thousand six hundred and thirty eight only) with 12% interest from the date of repudiation to date of order and pay Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization. 

Pronounced in the open court on this the 7^th  day of August  2012.

                                                                               Sd/-

Seena H

President

                                                                                    Sd/-

Preetha G Nair

Member

    Sd/-

Bhanumathi.A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Photocopy of Insurance Policy

Ext.A2 – Photocopy of FIR

Ext.A3 –  Photocopy of letter sent to complainant by the 2^nd opposite party 19/10/11

Ext.A4 – Photocopy of lawyer notice sent to complainant by the 2^nd opposite party dated 01/11/11

Ext.A5 – Photocopy of postal receipt dtd.11/11/2011

Ext.A6 – Tax invoice dated 6/9/11 of VPK Motors Ltd.

Complainant cross  examined

PW1 – Pookoya Thangal

PW2 – Ahammed Koya Thangal @Ashik

Exhibits marked on the side of the opposite party

Ext.B1 – Photocopy of insurance policy

Ext.B2 – Photocopy of certificate of registration of vehicle No.KL-12-C-5555

Ext.B3 – Copy of Survey Report

Ext.B4 – Copy of Motor Claim Form

Ext.B5 –  Copy of letter sent to opposite party by the complainant.

Cost Allowed

Rs.1,000/- allowed as cost of proceedings.