BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 154/2006 Filed on 27.05.2006

Dated : 30.09.2011

Complainant :

Manu C. Jacob, S/o R.C Jacob, T.C 15/664, House No. 93, M.P. Appan Nagar, Vazhuthacaud, Thiruvananthapuram represented by his father & Power of Attorney Holder R.C Jacob.

(By adv. Vazhuthacaud R. Narendran Nair)

Opposite parties :

1. M/s Bajaj Allianz General Insurance Company Ltd., Registered and Head Office, GE Plaza Airport Road, Yerwada, Pune-411 006.

2. M/s Bajaj Allianz General Insurance Company Ltd., T.C 28/2222, 2^nd Floor, Anugraha, M.G. Road, Pazhavangadi, Thiruvananthapuram.

(By adv. Sreevaraham G. Satheesh)

This O.P having been taken as heard on 04.08.2011, the Forum on 30.09.2011 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The facts of the case are as follows: The complainant is the registered owner of the vehicle Ford Ikon car KL-01AC 1528 and having permanent residence at Vazhuthacaud, Thiruvananthapuram. The vehicle of the complainant was insured with the opposite party vide policy No. OG 06-1601-1801-00001790 for a period from 26.09.2005 to 25.09.2006. The said vehicle met with an accident on 08.01.2006 near Irumbupalam in the Adimali-Munnar road while giving side to a Lorry coming from the opposite direction and the car fell into the Deviyar River. At the time of accident the said vehicle was in the personal use of complainant's friend and the vehicle was driven by Peeru Muhammed. At the time of accident apart from the said Peeru Muhammed three persons Karish Althaf (minor) aged 6 of T.C 42/PCRT 80, Kawdiar, Thiruvananthapuram, Kiran Althaf (minor) aged 6 and Asha Althaf aged 30 residing at the above address were in the car and they sustained only minor injuries. The accident was immediately reported to the Adimali Police Station on 08.01.2006 and G.D entry was made and the policeman attached to the Adimali police station visited the accident place and noted the damages sustained to the vehicle. Since the car was validly insured with the opposite parties, the complainant submitted necessary claim application to the opposite party on 17.01.2006 detailing the accident. The vehicle was received from the accident site after informing the accident to the police and after recording the damages sustained to the vehicle by the police the said vehicle was transported to Trivandrum and entrusted to the authorized workshop Kairali Ford for repairs. Since the complainant was in Chennai the father of the complainant was duly authorized to submit the claim application to the opposite party. Accordingly he submitted the claim application to the applicants and loss/damage was assessed by the insurance surveyor. Meantime on 09.02.2006 Mr. P.V. Sanjeev an officer of the opposite party along with V. Vinod Surveyor came to the complainant's house and offered a sum of Rs. 2.75 lakhs to settle the claim. Since this amount was not acceptable to the complainant the officer of the company requested three weeks times to obtain permission from Head office to raise the amount. But after that nothing had happened. The complainant repeatedly made requests to the opposite parties to settle the claim. Even though there is document to prove the accident and the vehicular particulars to settle the claim, without any valid reason and with malafide intention, the opposite parties, only to harass the complainant, have not settled the claim. On 27.04.2006 the opposite party issued a letter to the complainant informing that his claim is not admissible as per the terms of the policy. The reasons stated by the opposite party in denying the claim of the complainant are unsustainable and not at all based on true facts. Hence this complaint.

Opposite party has filed their version contending as follows: The complaint is not maintainable on facts or under law. That the vehicle KL-01 AC 1528 owned by one Manu C. Jacob was insured with the 2^nd opposite party. On 17.01.2006 a claim form was submitted alleging an accident on 08.01.2006. The claim form was not signed by the complainant, even though it was submitted in his name. The claim was surveyed by an independent surveyor and got investigated through a private investigating agency. The investigation report revealed that the claim is not genuine. There is full of suppression and concealment of facts. On the basis of the above report, further clarifications were sought for. But the clarifications were unsatisfactory and the available evidence showed that the vehicle was being used for hire, in violation of terms of policy. The claim was repudiated and informed to the complainant. The incident was not seen reported to the police. As per the G.D extract the damages of the car were noted as seen by a Head Constable. There is no mention, how he got information regarding the same. The averment that the accident was informed to the police is also not correct. No offer was ever made in this case as the claim was suspicious and no satisfactory explanations were given for the enquiries made by the opposite party from the beginning. These opposite parties never sent any such fax message directing the complainant to dispose the damaged vehicle. There is no unfair trade practice or any deficiency of services on the part of these opposite parties. Hence prays for dismissal of the complaint.

The complainant's power of Attorney Holder has been examined as PW1 and one witness has been examined as PW2 and marked Exts. P1 to P12 on their side. DW1 to DW4 were examined on behalf of opposite parties and Exts. D1 to D4 were marked.

The issues for consideration are:-

1. Whether there has been any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for any of the reliefs claimed in the complaint?

    

Points (i) & (ii):- The policy has been admitted by opposite party. But according to the opposite party, the vehicle in dispute was hired by one Althaf S/o Rasheed from one Najeeb with whom the vehicle was entrusted with by the complainant and that the claim form was not signed by the complainant even though it was submitted in his name. That the vehicle was driven by Peeru Muhammed is not correct. According to the pleadings in the complaint, it has been pleaded that the complainant had executed a Power of Attorney in favour of his father and accordingly this complaint has been filed and that at the time of accident the vehicle was in the personal use of complainant's friend and that the vehicle was driven by one Peeru Muhammed.

We have gone through the documents and evidence adduced by both parties. PW1, the Power of Attorney Holder of the complainant has deposed that the vehicle was entrusted with the complainant's friend Najeeb “എന്‍റെ വീട്ടില്‍ എപ്പോഴും ആളില്ലാത്തതുകൊണ്ട് ഞാന്‍ നജീബിനെ ഏല്‍പ്പിച്ചിരുന്നത്”. Further PW1 has deposed that, at the time of accident the vehicle was driven by Peeru Muhammed and PW1 came to know about the same through Peeru Muhammed only. PW2 Najeeb has deposed that complainant's father had no cars at the time of accident. He deposed that the car was entrusted with him by Manu for his own personal use and for taking care of the car. The car was driven by one Peeru Muhammed who is a relative of PW2 and that the same has not been rented out to Peeru Muhammed. Any way, it is an admitted fact that the vehicle was not driven by Najeeb with whom the vehicle was entrusted, by the complainant. Now when there is a doubt regarding the person who had driven the vehicle at the time of accident, the reports, if any, pertaining to accident are to be looked into. Ext. P2 is the GD entry dated 08.01.2006 i.e; on the date of accident. But from the GD entry it could be seen that it has been recorded that the Head Constable Adimali happened to see one Ford Ikon car in Deviyar river in damaged condition and that on further enquiry came to know that the passengers Karish Althaf, Kiran Althaf and one Asha Althaf who were in the car were taken to Adimali Morning Star Hospital and though they sustained only minor injuries, they had gone to Kothamangalam Hospital for scanning. So as per G.D entry the name of the driver is not evident. As per G.D entry it is true that there is no mentioning of anybody who had given such information. There is no evidence to show that the accident has been reported to the police. Najeeb has deposed that there is total loss, if at all such total loss was informed to Najeeb then why he has not taken steps to inform the accident to the insurance company is not clarified. As per Ext. D3(a) which has been issued by one Althaf to the private investigator, it has been mentioned that the vehicle was driven by him and while coming from Munnar the vehicle met with an accident and the vehicle was pulled out from the river the very next day.

Considering the above circumstances, what we have to look into is whether the accident was timely intimated to the insurance company to facilitate spot survey. From the records it can be seen that the insurance company has been intimated regarding the accident after about 9 days of such accident. The accident as mentioned in the complaint is a serious one causing severe damage to the vehicle. Even then the accident has not been timely reported to the police, the reason for which has not been explained by the complainant. Further, according to the complainant, the vehicle which was alleged to have been entrusted with Najeeb met with an accident while being driven by Peeru Muhammed. Then what prevented the said Najeeb from informing the said accident to the insurance company immediately stands unexplained. The alleged Peeru Muhammed could have informed the matter to the insurance company or the police at the earliest at least on the very next day. But they have failed to do so. Without informing either the police or the insurance company the vehicle has been removed from the accident spot denying the insurance company to conduct spot survey. From the above discussions, we find that the complainant has not approached the Forum with clean hands and that the complainant has failed to establish his claim against the opposite parties.

In the result, complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2011.

Sd/-

S.K. SREELA : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

jb

C.C. No. 154/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - R.C Jacob

PW2 - Najeeb

II COMPLAINANT'S DOCUMENTS :

P1 - Original power of Attorney

P2 - General Diary Extract of Adimali police station dated

08.01.2006

P3 - Copy of motor insurance claim form.

P4 - Copy of letter dated 08.03.2006

P5 - Copy of advocate notice dated 16.03.2006

P6 - Copy of advocate notice dated 03.04.2006.

P7 - Copy of letter dated 08.04.2006.

P8 - Copy of letter dated 08.04.2006

P9 - Copy of letter dated 10.04.2006.

P10 - Copy of letter dated 27.04.2006

P11 - Acknowledgement cards.

P12 - Copy of certificate cum policy schedule.

III OPPOSITE PARTY'S WITNESS :

DW1 - Aliyas John

DW2 - Vinod. V

DW3 - Santergen

DW4 - James Kurian

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of Motor Insurance Claim Form

D2 - Copy of Final Survey Report dated 06.04.2006.

D3 - Report on investigation.

D4 - Copy of letter dated 27.04.2006

Sd/-

PRESIDENT