DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

TFriday the 28^th day of June 2024

CC.13/2013

Complainant

Mehroof Ali,

S/o Muhammed,

Kokkancheri Parambil,

P.O. Cheroopa, Kozhikode.

Opposite Party

M/s Royal Sundaram Alliance Insurance Co. Ltd,

M son’s Arcade, 4^th floor,

Cherootty road, Kozhikode.

(By Adv. Sri. Thomas Mathew)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT. 

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

      The complainant is looking after and managing the tipper lorry bearing registration No. KL-58-A-6660 owned by Naseer, S/o.              Abdulla Koya, Padanilam, Kunnamangalam. The said vehicle was insured with the opposite party by the RC owner Naseer, who          is now working abroad and he has authorised the complainant to contact the insurance company in connection with the claim put       in respect of the vehicle, which met with an accident on 17/03/2011 at Illikkunnu, Thalassery. Substantial damage was caused to         the vehicle in the accident. After the accident, the vehicle was taken to Sree. Auto Garage, Kunnamangalam and a sum of Rs.               3,08,450/- was spent for repairs. The surveyor deputed by the insurance company had inspected the vehicle and all the relevant           documents were duly submitted to the opposite party in time. The RC owner Sri. Naseer had contacted the insurance company in         person several times while he was available in the native place. All the relevant documents were submitted by the RC owner in           person. But the claim was not allowed by the opposite party. There was gross latches and deficiency of service on the part of the         opposite party in not allowing the claim. Hence the complaint for getting the claim amount of Rs. 3,08,450/- along with                       compensation of Rs. 1,00,000/-.

3. The opposite party has resisted the complaint by filing written version wherein almost all the allegations and claims made in the complaint are denied.  According to the opposite party, there was non-disclosure of material fact. The insured has not approached the Commission within 12 calendar months from the date of repudiation and therefore the opposite party is not liable to pay any sum under the claim. The complainant herein is not a consumer as defined under the Consumer Protection Act.  The complainant has no insurable interest in the vehicle. The policy was taken and the vehicle was registered in the name of Sri. Naseer. M. The complainant has not sought for any name transfer prior to the date of the accident. There is no privity of contract between the complainant and the opposite party. The transferee has no locus standi to file the complaint against the opposite party since the transferee did not effect any transfer of the policy in his name as per Section 157(2) of the Motor Vehicles Act by paying requisite fee. The damage claim was assessed on repair basis for a sum of Rs. 1,24,425/- by the insurance surveyor and therefore the maximum liability of the opposite party cannot exceed the said sum. Even the said sum of Rs. 1,24,425/- is not payable as the complainant has no insurable interest to claim for damages occurred to the vehicle. The complainant is not entitled to the reliefs prayed for. With the above contentions, the opposite party prays for dismissal of the complaint.             
4. The points that arise for determination in this complaint are;

1. Whether the complaint is maintainable?
2. Whether there was any deficiency of service on the part of the opposite party, as alleged?

2) Reliefs and costs.

5. The evidence consists of the oral evidence of PW1 and Exts A1 to A7 on the side of the complainant. No evidence was let in by the opposite party.
6. We heard both sides.
7. Point No 1:   The present complaint is against denial of insurance claim in connection with the damage cause to the tipper lorry bearing registration No. KL-58-A-6660 owned by Sri. Naseer. M, S/o. Abdulla Koya.
8. At the very outset, the learned counsel for the opposite party pointed out that the complainant herein has no locus standi to file the present complaint and there is no privity of contract between the complainant and the opposite party. It was also submitted that the complainant had violated the provisions of the Motor Vehicles Act by not getting the policy transferred in his name. On other hand, the learned counsel for the complainant vehemently argued that the RC owner in still Sri. Naseer and so the question of transfer of ownership or transfer of the insurance does not arise at all. It was pointed out that the complaint was filed by the complainant on behalf of the RC owner as authorised by him and subsequently through Ext A1 power of attorney.
9. Going by the evidence in hand, there is nothing to indicate that Sri. Naseer had transferred the ownership of the vehicle to the complainant herein. No document indicating any such transfer is forthcoming. Admittedly, the RC owner Sri. Naseer and the policy was issued in his name. The opposite party has no case that the claim was preferred by the complainant herein and not by Sri. Naseer. As long as there is no evidence of any such transfer, the contention of the opposite party in this regard cannot be sustained. It is stated in the complaint and is reiterated by the complainant while in the box as PW1 that he has been looking after the affairs of the vehicle since the RC owner is abroad and as authorised by him to contact the opposite party in connection with matters related to the claim. Moreover Ext A1 power of attorney was executed by the RC owner Sri. Naseer subsequently appointing the complainant herein as his true and lawful attorney and authorising him to appear before this Commission in connection with the present complaint on his behalf and do the needful. Therefore, according to us, the complainant is competent and has the locus standi to pursue the complaint.
10. The learned counsel for the opposite party has pointed out that as per the policy condition, the opposite party can disclaim the liability to the insured if the claim is not made a subject matter of litigation in a court of law within 12 calendar months from the date of repudiation. It was submitted that the claim was denied on 07/11/2011 and the present complaint was filed only on 07/01/2013 after one year and two months and hence the opposite party is not liable to pay any sum under the claim since the insured  had waived his right to sue by not filing the complaint within 12 months. It is true that the complaint was filed only on 07/01/2013. But the repudiation letter is not produced before this Commission. Equally, the terms and conditions of the policy is also not forthcoming. Apart from the bald averment in the complaint, the opposite party has not taken any effort to substantiate the contention by producing the relevant documents. The opposite party has not entered the box or made any effort to get the relevant documents marked and admitted in evidence. No effort was made to get the repudiation letter and the terms and conditions of the policy marked and admitted in evidence. In these circumstances, the contention of the opposite party cannot to be sustained. The complaint is against deficiency of service and is filed well within time as contemplated under Section 24-A of the Consumer Protection Act, 1986 and is perfectly maintainable before this Commission. 
11. Point No. 2:- Going by the averments in the written version of the opposite party, it can be seen that no specific reason is stated by the opposite party for repudiation of the claim, except stating that there is no privity of contract between the complainant herein and the opposite party and that the complainant has no insurable interest in the vehicle in question as the policy was taken by Sri. Naseer. In this context, it may be noted that the definite case of the complainant is that the claim was preferred by none other than Sri. Naseer, who is the insured and the RC owner. It is specifically pleaded in the complaint and reiterated by PW1 that the relevant documents were submitted to the insurance company by Sri. Naseer and he had contacted the opposite party in person on several occasions in connection with the claim. There is absolutely nothing in evidence to show that Sri. Naseer had transferred the ownership of the vehicle to the complainant herein. The accident is not disputed. The damage caused to the vehicle is not in disputed. The policy is admitted. The insurance surveyor deputed by the opposite party had inspected the vehicle and assessed the loss at Rs. 1,24,425/-, as per the averments in the version. That being the position, the insured Sri. Naseer is entitled to get the loss assessed by the surveyor amounting to Rs. 1,24,425/-.
12. From the above discussion, what emerges is that the claim was wrongly repudiated by the opposite party and thereby loss and injury was caused to the insured. The act of the opposite party in wrongly repudiating the claim and thereby denying the legitimate claim amounts to gross deficiency in service. The insured is entitled to get the loss assessed by the surveyor amounting to Rs. 1,24,425/-. It goes without saying that the act of the opposite party has caused mental agony and hardship to the insured and he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 10,000/- will be reasonable compensation in this case, apart from Rs. 5,000/- as cost of the proceedings.                
13. Point No. 3:- In the light of the finding on the above points, the complaint is disposed of as follows;

a)  CC.13/2013 is allowed in part.

b) The opposite party is hereby directed to pay a sum of Rs.1,24,425/-(Rupees one lakh twenty four thousand four hundred and twenty five only) with interest at the rate of 9% per annum from the date of the complaint ie, 07/01/2013 till actual payment, to the complainant herein for and on behalf of the insured Sri. Naseer. M.  

c) The opposite party is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) as compensation for the mental agony and hardship caused to the insured. The amount shall be paid to the complainant herein for and on behalf of the insured. 

d) The opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings. The cost shall be paid to the complainant herein for and on behalf of the insured. 

e) The payment as afore stated shall be made within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this, the 28^th day of June, 2024.

Date of Filing: 07/01/2013

                        Sd/-                                                                                                Sd/-

                 PRESIDENT                                                                                   MEMBER                                      

APPENDIX

Exhibits for the Complainant :

Ext A1 – Power of Attorney.

Ext A2 – Cash bill.

Ext A3 -Copy of Insurance Policy Schedule.

Ext A4 -Copy of FIR.

Ext A5 -Copy Insurance certificate.

Ext A6 -Letter from Royal Sundaram Alliance Insurance Company Ltd.

Ext A7 -Assessment report.

Exhibits for the Opposite Party

NIL

Witnesses for the Complainant

PW1 -    Mehroof Ali (Complainant)

Witnesses for the opposite party

NIL

                        Sd/-                                                                                               Sd/-

                 PRESIDENT                                                                                   MEMBER                                      

                                 True Copy,      

                                                                                                                                                   Sd/-        

                                                                                                                                     Assistant Registrar.