BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 01/09/2012

Date of Order : 31/05/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 530/2012

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. The facts of the case leading to this complaint are as follows :-

The complainant insured her car having registration No. KL 7 BK 1280 with the opposite party for the period from 01-12-2010 to 30-11-2011. The car met with an accident on 18-10-2011, when the car was about to enter into the garage. The car was on the reverse gear and the right rear side of the car hit on the concrete post of the gate and damages caused to the body of the car. Eventhough, the car was entrusted for repair with M/s. Peninsular Honda on 19-10-2011, later the car was taken back and entrusted to M/s. Kattookkaran Automobiles, Beerankunju Road, Cochin – 18. In the mean time, on 25-10-2011, the opposite party disallowed the claim on the ground that the surveyor reported that the damages are not due to any accident. The complainant incurred Rs. 7,500/- towards repair charges and took delivery of the repaired vehicle from M/s. Kattokkaran Automobiles on 08-11-2011. The complainant caused a lawyer notice dated 21-01-2012 to the opposite party stating that there is deficiency in service on the part of the opposite party and claiming Rs. 1,21,500/- towards the actual expenses incurred along with compensation and costs of the proceedings. Later, this complaint is filed before this Forum claiming Rs. 1,00,000/- towards repairing charges, compensation and costs of the proceedings. This complaint hence.

2. The version of the opposite party states as follows :-

It is submitted that the complainant insured her car for the period from 01-12-2010 to 30-11-2011 that barely after 6 months of commencement of the policy period, the complainant made the 1^st claim for the loss occurred due to an accident on 25-06-2011. The above claim No. C2300 11027140 was settled by payment of Rs. 4,000/- to the complainant. Exactly after 3 months, another claim was made by the complainant in respect of loss occurred due to the accident on 25-09-2011. The above claim No. C 2300 11056108m was disallowed since very same damages were noticed as in the previous claim for loss occurred on 25-06-2011. Since the damages were due to rusting and corrosion not covered by the policy, the above claim was disallowed, again after 3 weeks, a third claim was put forward by the complainant alleging accidental damages occurred to the vehicle on 17-10-2011, while taking reverse turn of the vehicle. The right side of the car got scratched near the rusted portion and this third claim was repudiated vide letter 16-11-2011 of the opposite party stating that the damages are not accidental and the repair charges are below Rs. 10,000/-. The opposite party also denied their liability to pay the hiring charges incurred by the complainant of Rs. 14,000/-. It is submitted that the claim was repudiated in conformity with the policy terms and conditions that there is no deficiency on the part of the opposite party and the loss occurred to the complainant is not due to any conduct of the opposite party. Hence, the complainant is liable to be dismissed with compensatory costs to the opposite party.

3. The complainant's husband was examined as PW1 and the documentary evidences adduced by the complainant were marked as Exts. A1 to A8. The witness for the opposite party was examined as DW1 and the documentary evidences. Exts. B1, B2, B3 series and B4 were marked on the side of the opposite party. Heard the counsel for both parties.

4. The points that came up for consideration are as follows :-

1. Whether the complainant is entitled to get Rs. 75,000/- towards repair charges under the policy?

2. Whether the complainant is entitled to get Rs. 14,000/- towards hire charges incurred while the insured car was garaged for repair?

3. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- The Honda City car with Registration No. KL 7 BK 1280 owned by the complainant was insured with the opposite party for the period from 01-12-2010 to 30-11-2011. The car met with an accident on 18-10-2011, when the car was about to enter the garage. The very next day, the car was entrusted with M/s. Peninsular Honda for repairs as evidenced by Ext. A1. On repeated requests, the opposite party company deputed their surveyor and the surveyor surveyed the vehicle. Subsequently, the opposite party company informed the complainant vide Ext. A4 letter dated 21-10-2011 that the damages found are not accidental in nature, but forged, hence the opposite party is not liable to pay any damages. On getting the above letter, the complainant took back her car from M/s. Peninsular Honda on 25-10-23011 as evidenced by Ext. A2 and got the vehicle repaired at Kattookkaran Automobiles and took delivery of the repaired vehicle from Kattookkaran Automobiles on 08-11-2011 after paying Rs. 7,500/- towards repair charges as evidenced by Ext. A6. Thereafter, the complainant caused a lawyer notice dated 21-01-2012 to the opposite party company as demanding Rs. 1,21,500/- towards actual expenses incurred which included repair charges of Rs. 7,500/-, hire charges of Rs. 14,000/-, compensation for mental agony and costs of the proceedings. Ext. B3 series produced by the opposite party evidence that the complainant had made a claim after 6 months of the inception of the insurance policy vide claim No. C 2300 11027140 for loss occurred due to accident on 25-06-2011. The above claim was settled by paying an amount of Rs. 4,000/-. Again after 3 months, the complainant put forward another claim vide claim No. C 2300 11056108 for the loss occurred due to accident on 25-09-2011. This claim was disallowed by the opposite party vide their letter dated 04-10-2011 stating that the very same damages were noticed as in the previous claim for loss occurred on 25-06-2011 as evidenced by Ext. B1 series. The 3^rd claim was made after 3 weeks vide claim No. C 2300 11061326 for the loss occurred due to accident on 17-10-2011. (In the complaint, the date of accident is mentioned as 18-10-2011) as evidenced by Ext. B2 series. This claim was also repudiated by the opposite party vide their letter dated 16-11-2011 stating that the damages found and not accidental, but forget, since the damages are not relevant within the cause mentioned and not within the scope of policy conditions, the opposite party cannot consider the claim for loss assessment. Hence closed as 'No claim'. The opposite party also denied the liability for any damages arising out of the above claim. In the above 3 accidents, the damages occurred on the right side of the car at the rear side, when the car was hit against the pillar or gate to the garage. The loss occurred due to the accident on 25-06-2011 was settled by payment of Rs. 4,000/- and the 2^nd claim for the loss occurred due to the accident on 25-09-2011 was disallowed, since the damages were noticed as within in the previous insurance claim as evidenced by Ext. B1 series and that the policy does not cover rusting and corrosion. It is submitted by the opposite party that damages occurred in the third claim due to accident on 17-10-2011 are scratches 'near' the rusted portion (not in the rusted portion) and for these fresh scratches, the complainant is entitled to the benefit of the policy. We find that the repair charges incurred and claimed by the complainant is inclusive of correcting the corrosive and rusted portion, therefore, the 3^rd claim in C 2300 11061326 can be allowed after deducting the claim amount in the second claim No. C 2300 110561089 which was incurred for correcting the corrosive or rusted portion. We therefore direct that the opposite party to allow the third claim vide Claim No. C2300 11061226 vide Ext. B2 series after deducting the claim in the 2^nd claim application dated 01-10-2011.

6. Point No. ii. :- The complainant has not produced any reliable evidence to show that she had incurred hire charges of Rs. 14,000/- during the time when the insured car was garaged for repair. The complainant failed to prove that the expenses incurred was due to any conduct on the part of the opposite party. Therefore, we find that the complainant is not entitled to get hire charges of Rs. 14,000/- incurred by her.

7. Point No. iii. :- Considering all the facts and circumstances, we find no reason to allow compensation or costs, especially in view of the fact that the complainant failed to prove any loss due to deficiency in service on the part of the opposite party.

8. In the result, the complaint is partly allowed and we direct that the opposite party to process the claim application made by the complainant in pursuance of the accident on 17-10-2011 and the opposite party shall allow the claim after deducting the claim amount in the 2^nd claim application dated 01-10-2011, which was earlier disallowed by the opposite party.

The order shall be complied with, within a period of sixty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 31^st day of May 2014.

Sd/- V.K. Beena Kumari, Member.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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