Tamil Nadu

South Chennai

445/2008

m/s. Murugeshwari Enterprieses, Proprietor - Complainant(s)

Versus

M/s. IFFCO -TOKIO General Insurance Company Ltd. & another - Opp.Party(s)

S.Kingston Jerold

12 Jan 2018

ORDER

                                                                                                                           Date of Filing  : 29.10.2008

                                                                          Date of Order : 12.01.2018

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNA (SOUTH)

2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L,                    : PRESIDENT

                 TMT. K. AMALA, M.A. L.L.B.                                :  MEMBER-I

CC. NO.445/2008

FRIDAY THE 12^th DAY OF JANUARY 2018

M/s. Murugeshwari Enterprises,

Rep. by its Proprietor,

Mr.Pandiayaraj,

No.33, Venkat Narayana Road,

Nandanam,

Chennai 600 035.                                          .. Complainant.

                                       Vs

 

1. M/s. IFFCO-TOKIO GENERAL

INSURANCE COMPANY LTD.,

Rep. by its Manager,

No.28, North Usman Road,

T.Nagar, Chennai 600 017.

 

2. M/s . IFFCO-TOKIO GENERAL

INSURANCE COMPANY LTD.,

Rep. by its Manager,

IFFCO SADAN,

C1, Disst Centre,

Saket, New Delhi.                                           ..Opposite parties.

 

Counsel for complainant         :  M/s. S. Periyasamy  

Counsel for opposite parties  :   M/s. R.Vijaya Kamala

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section  12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.90,284/- towards damages caused to the vehicle and also to pay a sum of Rs.1,00,000/- for mental agony and Rs.10,000/- as cost of the complaint.

1. The averments of the complaint in brief are as follows:

          The complainant submit that  he  is the owner of the  vehicle bearing registration No.TN 09 AS 4583 insured with the opposite party insurance company for the period from 29.1.2007 to 28.1.2008.  On 29.12.2007 the impugned vehicle bearing registration No.TN 09 AS 4583 met with an accident while proceeding to Chennai to Nachokarani at place near Vijayanallore and sustained severe damage to the vehicle.  The complainant further state that due intimation regarding accident was given to the opposite parties and claim form also submitted.  The complainant approached the authorized service agent, Porur, Chennai and obtained estimate for repairing the vehicle.  The complainant expended a sum of Rs.2500/- towards towing charges.    The opposite parties appointed a surveyor who submitted a report.  Even after repeated reminders and requests the opposite parties has not come forward to settle the claim.  As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant. 

2. The brief averments in the written version filed by the opposite 2^nd party and adopted by the 1^st opposite party is as follows:

The  opposite parties deny each and every allegations except those that are specifically admitted herein.   The opposite parties submit that the vehicle TN.  09 AS 4583 met with an accident on 29.12.2007 and due FIR was registered.   At the time of accident there is a subsistence of policy.  The  opposite parties state that  this claim is related to own damage to the vehicle.  As per the policy premium paid for comprehensive risk; hence automatically duty cost upon the opposite parties to honour the claim.  But  there is a violation of policy condition namely as per the policy only one person is entitled to carry the vehicle.  In this case as per the surveyor’s report two persons including driver travelled in the vehicle.  In this policy there is nothing mentioned about the cleaner or any other person except one.  Since the two persons including driver travelled in the vehicle the opposite party rightly repudiated the claim.   Further the contention of the opposite parties is that even claim regarding own damage under comprehensive policy travelling excess  persons amounts to violation of policy condition.   Hence there is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 marked.  Proof affidavit of the opposite parties filed and Ex.B1  marked on the side of the opposite parties.

4. The points for consideration is :     

1. Whether the complainant is entitled to a sum of Rs.90,284/-towards damages caused to the vehicle bearing Registration  No.TN-09-AS-4583   as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- for mental agony with  cost of Rs.10,000/- as prayed for ?

5. POINTS 1 & 2:

          Heard the complainant counsel.  Perused the records namely complaint, written version, proof affidavit and documents.   Admittedly the complainant is the owner of  vehicle bearing registration No.TN 09 AS 4583 insured with the opposite party insurance company for the period from 29.1.2007 to 28.1.2008.  Ex.A1 is the registration certificate.   Ex.A2 is the copy of insurance policy.  It is also admitted that on 29.12.2007 the impugned vehicle bearing registration No.TN 09 AS 4583 met with an accident while proceeding to Chennai to Nachokarani at place near Vijayanallore and sustained severe damage to the vehicle.  Ex.A4 is the copy of the FIR.  The learned counsel for the complainant contended that due intimation regarding accident was given to the opposite parties and claim form also submitted.  The complainant approached the authorized service agent, Porur, Chennai and obtained estimate for repairing the vehicle as per Ex.A12.  The complainant expended a sum of Rs.2500/- towards towing charges.    The accident was happened when the policy was subsistence  also admitted. The opposite parties appointed a surveyor who submitted a report Ex.B1.  Even after repeated reminders and requests the opposite parties has not come forward to settle the claim.  Hence the complainant issued notices Ex.A6 & Ex.A10 dated 6.3.2008 & 16.4.2008 for which the opposite parties issued reply vide Ex.A9 repudiating the claim.  Hence the complainant is constrained to file this case claiming damages and compensation.

6.     The learned counsel for the complainant further contended that only reason alleged for repudiating the claim  by the opposite party is that at the time of accident the driver and a cleaner travelled in the pickup van.  As per insurance policy and R.C. book only driver alone is entitled to travel in the vehicle.   Hence there is a violation of policy condition.    Further the contention of the complainant is that on the basis of the principle of gratuitous passenger the opposite party insurance company cannot repudiate the claim because admittedly the complainant availed comprehensive policy of insurance, which covers own damage including property damage.  In this case the complainant is claiming own damage to the vehicle on the basis of comprehensive policy.  But the question of gratuitous  passenger never ruled out. 

7.     The contention of the opposite parties is that admittedly the vehicle TN.  09 AS 4583 met with an accident on 29.12.2007 and due FIR Ex.A4 was registered.  Admittedly at the time of accident there is a subsistence of policy.  The contention of the opposite parties is that this claim is related to own damage to the vehicle.  As per the policy premium paid for comprehensive risk; hence automatically duty cost upon the opposite parties to honour the claim.  But  there is a violation of policy conditions namely as per the policy only one person is entitled to carry the vehicle.  In this case as per the surveyor’s report Ex.B1 two persons including driver travelled in the vehicle.  In this policy there is nothing mentioned about the cleaner or any other person except one.  Since the two persons including driver travelled in the vehicle the opposite party rightly repudiated the claim.   Further the contention of the opposite parties is that even claim regarding own damage under comprehensive policy travelling excess  persons amounts to violation of policy condition.  Further the contention of the opposite parties is that the claim of Rs.90,284/- is exorbitant.  Complainant produced only estimate.  No bills produced.  

8.     The learned counsel for the opposite parties  cited a decision reported in 

2009 (1) CTC 1

IN THE HIGH COURT OF MADRAS

Branch Manager, United India Insurance Co. Ltd., Branch Office, Nethaji Bye Pass Road, Dharmapuri Town

..Vs..

Nagammal and 2 others

Considering the facts and circumstances of the case this forum is of the considered view that the  complainant is not entitled to any claim, since the complainant violated the terms and conditions of the policy by carrying two persons and the points are answered accordingly.

        In the result, the complaint is dismissed.  No cost.

          Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 12^th day of January 2018. 

 

MEMBER –I                                                                           PRESIDENT.

COMPLAINANT’S SIDE DOCUMENTS:

Ex.A1-               - Copy of R.C. book.

Ex.A2-               - Copy of IFFO TOKIO agreement.

Ex.A3-              - Copy of Driving License. 

Ex.A4 30.12.2007 - Copy of FIR.

Ex.A5-9.1.2008     - Copy of letter from opposite party.

Ex.A6- 6.3.2008    - Copy of legal notice.

Ex.A7- 11.3.2008  - Copy of Ack. Card.

Ex.A8- 16.3.2008  - Copy of Non Traceable Certificate.

Ex.A9- 17.3.2008  - Copy of reply notice.

Ex.A10- 16.4.2008         - Copy of legal notice.

Ex.A11- 31.12.2007 - Copy of receipt Rs.2500/-

Ex.A12- 29.1.2007         - Copy of receipt Rs.87,764/-

 

OPPOSITE  PARTIES SIDE DOCUMENTS:  -

Ex.B1- 7.1.2008  - Copy of survey report.

MEMBER –I                                                                           PRESIDENT.