BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P.V.JAYARAJAN : PRESIDENT
SMT. PREETHA G. NAIR : MEMBER
SRI. VIJU V.R : MEMBER
C.C. No. 231/2014 (Filed on 18.06.2014)
ORDER DATED: 18.07.2024
Complainant:
S. Aswakumar, S/o late P. Sukumaran, T.C. 27/1240(3), Kausthubham, Vanchiyoor P.O., Thiruvananthapuram-695 035.
Opposite party:
M/s Reliance E General Insurance Co. Ltd. represented by its Manager, 3rd Floor, 5th Level, Trans Towers, Vazhuthacaud, Thiruvananthapuram-695 014.
(By Adv. Prasanna Kumar Nair)
ORDER
SRI. P. V. JAYARAJAN: PRESIDENT
This complaint is filed under Sec. 12 of the Consumer Protection Act, 1986 and the matter stood over to this date for consideration. After hearing the matter this Commission passed an order as follows:
2. This is a complaint filed by the complainant against the opposite party alleging deficiency in service on the part of the opposite party. After admitting the complaint, notice was issued to the opposite party to appear before this Commission on 21.07.2014. Opposite party entered appearance and filed written version.
3. The case of the complainant in short is that the complainant is the registered owner of the Toyota Ethios car bearing Reg. No. KL-01 BA 9621. The above vehicle met with an accident on 14.02.2013, near Karikkakom Temple Bridge. Complainant was the driver at the time of accident. Trivandrum City Traffic police registered a crime against the complainant under Sec. 279, 337 and 338 of I.P.C. vide Crime No. 1084/14. Complainant has got valid driving license to drive the above vehicle. Opposite party is the insurer of the above car, vide Bumper to Bumper policy covering the period from 26.03.2013 to 25.03.2014. The accident was communicated to the opposite party through their agent Mr. Ramu. A claim was registered on 21.02.2014 and as per the instructions of the opposite party, all vehicle documents, FIR etc. were submitted along with the damaged vehicle before the Authorized Workshop-M/s Nippon Motor Corporation Pvt. Ltd., and a Senior Executive-Insurance Claims Department-Mr. Jayakumar of the opposite party inspected the car and on verification of the original R.C Book, Driving License, tax payment token, Policy, FIR, Total damage estimate of the car etc., he gave approval to repair and rectify the total damages sustained to the vehicle in the above accident. M/s Nippon Motor Corporation Pvt. Ltd. repaired and rectified the entire damages of the vehicle and that fact was communicated to the complainant and the opposite party on 26.03.2014. There has been inordinate delay in settling the final bill amount from the side of the opposite party for the reason that bill approval and passing authority is the Regional Office, Ernakulam and as per the instruction of the opposite party complainant was constrained to remit the entire bill amount of Rs. 32,926/- vide cash payment receipt No. SR/13-14/5881 dated 29.03.2014 being the total amount under various heads as repair charge, labour charge, painting, polishing, value of new parts etc. issued by M/s Nippon Motor Corporation Pvt. Ltd. On 09.05.2014, the complainant received a courier, which contains a cheque dated 29.03.2014 of HDFC Bank for Rs. 11,279/- in the name of the complainant. No reply has been received from the opposite party against the letters dated 01.04.2014 and 21.04.2014 till this date. So the complainant aggrieved by the deficiency in service and gross and willful negligence on the part of the opposite party in settling the claim of the complainant in time has filed this complaint for redressing his grievance to get the full bill amount of Rs. 32,926/-.
4. The opposite party filed written version admitting the policy and insurance coverage. According to the opposite party the liability if any on the part of the opposite party is restricted to the terms, conditions and limitation of the insurance policy. The opposite party admitted that the insured had reported a claim for damages to the vehicle following an accident near Karikkakom Temple Bridge and a case was registered against the complainant causing injuries to a pedestrian and another motor cycle. The opposite party contended that a survey was carried out by Mr. Jayakumar G. who in his report assessed the loss and advised the liability under the policy after applying depreciation as per the terms and conditions of the policy at Rs. 9,954/-.The contention of the opposite party is that during the time of survey multi damages were noted in the vehicle which in fact was not tallying with the damages caused during the alleged accident. As per the investigation conducted by the said Jayakumar, only the damages noted on the right hand side of the car was tallying with the narration given in the claim form and police records which were submitted for scrutiny. According to opposite party, the other damages noted on the LHS bumper, dicky, RR Bumper and LHS running board were not at all tallying with the said cause of loss. Hence the surveyor had not assessed the said loss. The opposite party further alleged that the complainant without getting the consent of the insurance company had carried out the repair works of the other damaged parts not related with the accident at his own discretion which is an express violation of the terms and conditions of the policy. The opposite party submitted that after completion of survey the opposite party has paid Rs. 11,279/- as full and final settlement of the claim to the complainant and hence no liability devolves on the opposite party for any expenses on repair made on the vehicle which were not tallying with the said cause of loss and also without getting the prior consent of the insurance company. The opposite party submitted that the opposite party had applied due application of mind in processing the claim and the assessment was made on the basis of the existing rules and regulations and hence there is no deficiency in service on the part of the opposite party as alleged by the complainant. According to the opposite party this complaint is lacking bonafides and hence no relief can be granted as prayed for and hence the complaint is liable to be dismissed.
5. The evidence in this case consists of PW1 and Exts. P1 to P10 from the side of the complainant. From the side of the opposite party DW1 filed proof affidavit and Exts. D1 to D8 were marked.
6. Issues to be considered are:
- Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?
- Whether the complainant is entitled to the reliefs claimed in the complaint?
- Order as to costs?
7. Issues (i) to (iii): Heard. Perused the affidavit, documents and connected records. The accident and insurance coverage is admitted by the opposite party. In the complaint as well as in the written version, the date of accident is shown as 14.02.2013, but as per the records produced before this Commission the accident is on 14.02.2014 near Karikkakom Temple Bridge. As there is no dispute with regard to the accident as well as policy coverage, we rely on the date mentioned in the police records as 14.02.2014. The complainant’s case is that he has spent Rs. 32,926/- for repairing the vehicle. But in spite of the fact that the vehicle was having a Bumper to Bumper insurance coverage the opposite party gave only Rs. 11,279/- and hence the complainant is entitled to get the balance amount of Rs. 21,647/-. According to the complainant no reason has been stated by the opposite party to withhold the balance payment of Rs. 21,647/-. As observed in the written version the opposite party’s contention is that the damages caused to the vehicle is not tallying with the narration given by the complainant in the claim form regarding the accident and hence the opposite party is not liable to pay the repair charges for the damages which were occurred to the vehicle prior to the accident. Hence though the valuer has assessed Rs. 9,954/- the opposite party has paid Rs. 11,279/- to the complainant as full and final settlement of the claim as per the terms and conditions of the policy and hence the complainant is not entitled for any other reliefs as claimed in the complaint. To substantiate the case of the complainant the complainant himself sworn an affidavit as PW1 and Exts. P1 to P10 were produced and marked. The complainant was also cross examined by the opposite party in detail. While cross examination Exts. D1 to D7 were marked though PW1 by the opposite party and subsequently Ext. D8 was also produced and marked by the opposite party. Ext. P1 is the copy of the policy. Ext. P2 is the copy of the invoice dated 20.03.2014 for Rs. 7,815/-. Ext. P3 is the copy of invoice dated 20.03.2014 for Rs. 23,651/-. Ext. P4 is the copy of the invoice dated 29.03.2014 for Rs. 1,460/-. Ext. P5 is the receipt voucher for Rs. 40,397/-. Ext. P6 is the letter sent to the opposite party on 31.03.2014. Ext. P7 is the letter sent to the opposite party on 21.04.2014. Ext. P8 is the copy of the cheque for Rs. 11,279/- received by the complainant. Ext. P9 is the letter sent to the opposite party on 01.04.2014. Ext. P10 is the postal receipt dated 21.04.2014. Ext. D1 is the policy copy with terms and conditions. Ext. D2 is the copy of the motor claim form. Ext. D3 is the copy of the R.C. Book of the vehicle. Ext. D4 is the copy of the Driving License. Ext. D5 is the copy of the FIR with FIS. Ext. D6 is the copy of the invoice dated 20.03.2014 for Rs. 7,815/-. Ext. D7 is the copy of the invoice dated 20.03.2014 for Rs. 23,651/-. Ext. D8 is the copy of the survey report. Complainant submitted that a Senior Executive of the opposite party firm namely Mr. Jayakumar inspected the vehicle for assessing the damage to the vehicle in the absence of the complainant and provided approval to the estimate prepared by the authorized workshop and after the said approval the repair work was carried out and subsequently on completion of the repair work the said information was passed to the opposite party in time. But according to the complainant the opposite party made inordinate delay in disbursing the amount to the workshop. In spite of sending several notices to the opposite party to reimburse the claim amount, there was no response. Only on 09.05.2014 the opposite party sent a Cheque of Rs. 11,279/- claiming to be the full and final settlement of the claim made by the complainant. The complainant also submitted that the person who has assessed the damage is only an employee of the opposite party and as per the provisions of the Insurance Act he is not qualified to assess the damage as the said Act provides specific qualifications for the surveyor and loss assessor in respect of a damaged vehicle. As the accident as well as the insurance coverage is admitted, most of the documents produced by both sides in respect of the accident as well as the insurance coverage need not be perused in detail. The reason for assessing the damage at a lesser amount by the officer of the opposite party is stated to be that the damages on the vehicle are not tallying with the narration of the incident of accident. In order to substantiate that contention the opposite party has not produced any documents. On the other hand, the claim of the complainant is that as the insurance coverage is Bumper to Bumper, there is no relevance for such a contention. We have gone through the claim form and police records. The vehicle hit on a pedestrian and also injuries were caused to two persons who were riding on a motor bike as per the police records. While deposing before this Commission as PW1 the complainant submitted that when he applied sudden brake a motor bike from the left side hit on this vehicle and injuries were caused to the passengers on that motor bike. When an accident happens during riding a vehicle, definitely the control of the driver will be missing and hence there is a possibility of having damages to different sides of the vehicle due to the accident. Hence the non-payment of the repair charges only on the basis of the fact that the damages are not tallying with the narration of accident in the claim form seems to be not acceptable. Moreover, while cross examination PW1 has stated that all the details of the incident of accident were narrated in detail in the complaint. While cross examination PW1 has admitted the signature in Ext. D2 claim form but denied that the entries made in Ext. D2 claim form are in his handwriting. It is pertinent to note that except the case of pre-existing damages to the vehicle, the insurance company has got no case that the complainant has not complied any of the pre-requisite requirements for claiming the insurance coverage. In such a situation, it is the duty of the opposite party insurance company to substantiate that the vehicle was having pre-existing damage prior to the accident. We find that the opposite party has totally failed to establish that the vehicle was having any pre-existing damage prior to the accident. Another allegation raised by the complainant is that assessing damage by an employee of the same insurance company as surveyor is against the provisions of the Insurance Act. The opposite party claims that the assessment by an insurance surveyor is required only when the damages exceeds an amount of Rs. 20,000/- and as such the assessment made by Mr. Jayakumar G. is a valid assessment. The contention of the opposite party is not supported by any provisions in the Act which were relied on by the opposite party. Moreover, only after inspection it will be revealed that whether the damage was more than Rs. 20,000/- or below. During this case no attempt was seen made by the opposite party insurance company to engage an independent surveyor to assess the damage caused to the vehicle of the complainant. It is pertinent to note that while marking Ext. D8 survey report, the complainant has seriously objected the same and the same was marked subject to objection. On a perusal of Ext. D8 survey report, it is seen that the same is not an original one which contains the signature of the surveyor. The objection raised by the complainant in marking Ext. D8 was that the maker of the document alone can mark the Ext. D8 survey report. We find that there is much force in the argument raised by the complainant to the effect that an employee of the insurance company is not qualified to assess the damages as a surveyor and file a survey report. Hence the inspection and assessment made by Mr. Jayakumar who is employed as the Senior Executive of the opposite party cannot be termed as a survey report of an independent insurance surveyor. Hence the assessment made by Mr. Jayakumar G. through his report on the ground that the damages caused to the vehicle is not tallying with the narration of the accident is not acceptable as an independent survey report. It is a well settled legal proposition that the party who alleges a fact is required to prove that aspect by adducing supporting evidence. Mere allegations does not prove anything. The onus of proving an allegation rests with the one who make such allegations. That being not done, hardly any cognizance can be taken of such allegations. Here in this case though the opposite party alleges that the vehicle was having pre-existing damages prior to the accident, they failed to adduce any supporting evidence to substantiate that aspect. Hence, we find that by swearing an affidavit as PW1 and facing cross examination by opposite party and by marking Exts. P1 to P10 documents, the complainant has succeeded in establishing his case against the opposite party. It is came in evidence that the claim was made by the complainant to the opposite party within time and all the required formalities were complied with. Admittedly, the accident was on 14.02.2014 and the opposite party has sent a portion of the claim amount only on 09.05.2014. It is also pertinent to note that the cheque issued by the opposite party which was received by the complainant on 09.05.2014 is dated 29.03.2014. Hence it is evident that the opposite party has decided to settle the claim on 29.03.2014 itself. But the same was sent to the complainant only on 09.05.2014 i.e; more than 40 days from the date of cheque. Complainant’s case is that he has issued notices to the opposite party but there was no response from the opposite party. A cheque prepared on 29.03.2014 in the name of the complainant was seen served to the complainant only on 09.05.2014 which shows that there is deficiency in service on the part of the opposite party. The reason stated by the opposite party for not paying the damage amount is also not supported by any evidence and hence we are unable to accept the explanation given by the opposite party for the refusal to pay Rs. 21,647/- to the complainant. As per the available evidence before this Commission, we find that there is deficiency in service on the part of the Opposite Party. It is also came in evidence that the complainant has suffered mental stress and financial loss due to the act of the opposite party. As the mental stress and financial loss to the complainant was caused due to the deficiency in service on the part of the opposite party, we find that the opposite party is liable to compensate the loss sustained by the complainant. In view of the above discussions, we find that this is a fit case to be allowed in favour of the complainant.
In the result, the complaint is allowed. The opposite party is directed to pay an amount of Rs. 21,647/- (Rupees Twenty One Thousand Six Hundred and Forty Seven only) with 6% interest from the date of filing this complaint i.e. from 18.06.2014, along with Rs. 10,000/- (Rupees Ten Thousand only) as compensation and Rs. 2,500/- (Rupees Two Thousand Five Hundred only) being the cost of this proceedings to the complainant within 30 days from the date of receipt of this order failing which the amount except cost shall carry an interest @ 9% per annum from the date of order till the date of remittance/realization.
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 Court, this the 18th day of July 2024.
Sd/-
P.V.JAYARAJAN : PRESIDENT
Sd/-
PREETHA G. NAIR : MEMBER
Sd/-
VIJU V.R : MEMBER
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C.C. No. 231/2014
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Aswakumar
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of policy
P2 - Copy of invoice dated 20.03.2014 for Rs. 7,815/-
P3 - Copy of invoice dated 20.03.2014 for Rs. 23,651/-
P4 - Copy of invoice dated 29.03.2014 for Rs. 1,460/-
P5 - Copy of receipt voucher for Rs. 40,397/-
P6 - Copy of letter sent to opposite party dated 31.03.2014
P7 - Copy of letter sent to opposite party dated 21.04.2014
P8 - Copy of cheque for Rs. 11,279/-
P9 - Copy of letter sent to opposite party dated 01.04.2014
P10 - Receipt issued by Professional Couriers
III OPPOSITE PARTY’S WITNESS:
DW1 - Arun Chandre
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of policy schedule
D2 - Copy of motor claim form
D3 - Copy of R.C. Book
D4 - Copy of driving license
D5 - Copy of FIR
D6 - Copy of invoice dated 20.03.2014 for Rs. 7,815/-
D7 - Copy of invoice dated 20.03.2014 for Rs. 23,651/-
D8 - Copy of survey report
Sd/-
PRESIDENT
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