IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 31st DAY OF OCTOBER 2019
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.SandhyaRani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC No.224/15
Siyad,
S/o Salim,
Veliyil Veedu, : Complainant
ERavipuram P.O.,
Kollam-11.
(By Adv.Sheeja Kannan)
V/s
- M/s National Insurance Co.Ltd.,
3, Middleten Street,
Post Box No.9229,
Kolkata 700071.:Opposite Parties
(By Adv.S.Dileep Kumar)
- M/s.National Insurance Co.Ltd.,
Divisional Office,
Parameswaran Pillai Bhavan,
Hospital Road, Kollam-1.
(By Adv.S.Dileep Kumar)
FAIR ORDER
Smt.S.Sandhya Rani, BSc,LL.B, Member
Complainant is the registered owner of Maruti Swift Dzire Car bearing Reg.No.KL/24 A-7071 having Engine No.D.13A1165667 and chasis No.MA 3FKEB 2500141277 with policy No.57050031/12/6100025970 valid from 20.12.2013 to 19.12.2014 and 1st opposite party is the registered office of the 2nd opposite party. On 06.12.2014 the said vehicle met with an accident with another car bearing Reg.No.KL-02AG 1099 at Kollam-Thiruvananthapuram NH near Sithara Junction Kottiyam. Due to the impact of the accident all the persons travelled in both vehicles sustained injuries and the complainant’s vehicle became totally damaged. At the time of accident complainant’s vehicle was driven by his friend Mr. Rafi and a case was registered against him as Crime No.2342/14 u/s 279,337,338 IPC. Immediately after the accident, the matter was informed to the 2nd opposite party for claiming insurance amount. Responding to this the 2nd opposite party informed that the application will be sanctioned within a short time. Later the complainant’s claim was rejected wide dated 16.02.2015 and 16.03.2015 stating that the vehicle was used for the purpose of hire/reward at the time of accident. But the said reason alleged by the opposite parties are baseless and against the facts and further complainant submits that at the time of accident the vehicle was driven by his friend Rafi, who is having valid driving license and due to the friendship the vehicle was handed over to him as his personal use. Therefore there is no policy violation and complainant is entitled to get the insurance claim from opposite parties for the damages sustained to the vehicle without any delay. Rejection of the complainant’s claim without any valid reason amounts to deficiency in service and dereliction of duty on the part of the opposite parties. Moreover the complainant submits that the vehicle is having hypothecation with HDFC bank, Kollam Branch due to the rejection of said claim amount in time they had to face legal proceeding initiated by the aforesaid bank. So the opposite parties are liable to pay insurance claim amount caused to his vehicle contrary to it they are liable to pay compensation for deficiency in service committed by them and for the mental agony caused to the complainant. Hence this complaint.
The opposite parties resisted the complaint by filing a joint written version admitting that the complainant availed a package policy from opposite parties for his Swift Dizire Car for a period from 20.12.2013 to 19.12.2014. However they would content that as a private car package policy there was specific contractual obligations imposed over the same that the vehicle should be used for the personal and private use of the insured alone and the policy does not cover the use of vehicle on hire or reward. In the meantime opposite party got informed on 29.12.2014 that the vehicle owned by the complainant met with an accident on 06.12.2014 at about 8.15 pm near Sithara Junction, Kottiyam. Though the alleged incident occurred on 06.12.2014 the same was reported to the opposite party only after 24 days after the date of occurrence. It was a mandatory condition under the said policy that the insured shall intimate the claim in writing to the opposite parties immediately after the occurrence of the accident but here there is a substantial delay in intimating the claim to opposite party .Again the complainant deliberately denied another opportunity of the opposite parties to conduct a spot survey of the damaged vehicle before shifting the vehicle from the place of occurrence due to the delay in reporting the claim. Though the opposite parties issued a claim form to the complainant, he submitted the duly filled and signed claim form only on 29.12.2014 along with estimate dated 12.12.2014 given by the repairer M/s Sarathy Autocard, Kollam. There is no justification from the part of complainant for the delay in reporting the incident to the opposite parties even though he had received the estimate as early on 12.12.2014 from the repairer repaired. On receipt of the claim form and estimate opposite parties deputed Mr.P.A.Suresh Babu a licensed insurance surveyor and loss assessor, for conducting survey as to the extent of loss sustained to the vehicle on account of the accident. As per the estimate given by the repairer, the cost of parts and repairing charges will become 4,46,684. Here the sum insured of the vehicle under the policy is Rs.2,60,000/- and the surveyor assessed the work value of the vehicle as Rs.1,75,000/- on the basis of an enquiry made with salvage value and he recommended to settle the claim on salvage loss basis to a sum of Rs.84,000/-.
Points for consideration
- Whether there is any deficiency in service on the part of opposite parties in rejecting the insurance claim in respect of the car belongs to the complainant?
- Whether the complainant is entitled to get the relief claimed for.
- Relief and cost?
Evidence on the side complainant consists of oral evidence of PW1 Ext.P1 to P6.
Ext.P1 photocopy of the vehicle bearing KL 24 A 7071, Ext.P2 is the insurance policy issued from the 2nd opposite party dated 20.12.2013 to 19.12.2014. Ext.P3 is the FIR EFIS. Ext.P4 repudiation letter issued from the National Insurance company Ltd. Dated 16.02.2015, Ext.P5. Insurance Company Ltd., dated 16.03.2015, Ext.P6 copy of final report of CC.No.1427/15.
Opposite parties evidence consists of oral evidence of DW1 & DW2 and Exts.D1 to D4 marked, Ext.D1 is the surveyor report and Ext.D2 Investigation report. D3 & D4 repudiation letters issued by opposite parties.
Learned counsel for the complainant has neither filed any notes of argument nor advanced any oral argument though sufficient opportunity was granted. The learned counsel for the opposite party has filed notes of argument and advanced oral argument .
It is clear from the available materials that the opposite party appointed a private investigator to conduct an enquiry and during enquiry it is revealed that one Mr.Muhammed Rafi took the vehicle on hire from the complainant that the said Mohammed Rafi is an Engineering student studying at Unus college of Engineering look the vehicle on hire and the passengers in the vehicle who sustained injuries are also friends of Muhammed Rafi studying in the very same college with him one Mr.Nishad and the accident occurred while the vehicle was in the custody of Mr.Muhammed Rafi and he has given Rs.1,50,000/- to the insured complainant by way of settlement, even prior to the intimation of the claim to the opposite parties. Since the complainant was using the vehicle in violation of the policy conditions by giving the vehicle on hire, the opposite parties repudiated the claim. The opposite parties would further allege that there is a delay of 24 days in reporting the incident to the opposite party. But the complainant denied the relationship between the complainant and the driver of the insured vehicle and also about the use of the vehicle at the time of accident.
However the complainant has taken no effort to resist the contention of opposite parties that the vehicle was used for the purpose of hire reward. And also no evidence to discredit the repudiation letters issued by opposite parties.
Point No.1 &2
There is no dispute regarding the alleged accident sustained the Maruti Swift Dzireacr bearing Reg.No.KL/24 A-7071 having Engine No.D13A1165667 and chasis No.MA3FKEB 2500141277 which belongs to the complainant. There is also no dispute with regard to the date of accident and the damages sustained to the said vehicle and injuries to the passengers in it, Kottiyam Police has taken a case with regard to the accident. It is pertinent to note that accident was on 06.12.2014 and the intimation given to the insurer is only 29.12.2014. Here the complainant soon after the accident approached the repairer and prepared the estimate of the vehicle with regard to damage. Thereafter only he had intimated the incident to the opposite party insurance company. Even according to PW1 he intimated the fact to the insurance company only on 29.12.2014 which is after 3 and odd weeks (after 23 days). Hence it is clear that the there is inordinate delay in intimating the factum of accident to the opposite party insurance company and thereby violated policy condition No.1.
Another contention of the opposite party is that though the policy issued was a private car package policy with a specific condition that vehicle can be used for personal and private use of the insured alone but the complaint had violated that condition that rented out the car to one Shafi who was plying the car by carrying for more passengers at the time of accident and thereby violated the contractual obligation and therefore the complainant is not entitled to get the benefit of the private car package policy.
Ext.P2 is admitted by certificate of insurance cum policy schedule issued in respect of the car involved in the accident belonged to the complainant. The limitation as to use is specifically stated in the following terms, ‘ the policy covers use of the vehicle for any purpose other than @ heir or reward @ carriage of goods other than samples or personal luggage etc. Therefore it is clear that if the vehicle has been given of n heir for reward at the time of accident the policy holder is not entitled to get compensation for the damage sustained. Now we shall consider whether at the time of accident the vehicle was given on heir or for reward.
It is true that the complainant had denied the allegation that he rented out the car to Mr.Rafi in para 4 of the proof affidavit. However he would admit in the very same paragraph that on the alleged date of occurrence at about 7 pm Mr.Rafi, who is non other than his friend came over his residence and demanded the car for plying the same for his journey by making him to believe that the car will be returned at 10 p m on the same day. As said Rafi is one of his friends also on the basis of the above undertaking he entrusted the car to the above said Shafi. However which plying the car by Said Shafi through Kottiyam Sithara Junction it collide with another car at about 8.15 p m near Sithara Junction and as a result both vehicles sustained injuries and the car belongs to him completely damaged PW1, further admits that Kottiyam police has registered crime No.2342/2014. In respect of the accident against the said Rafi registered Ext.P3 FIR. In the light of the above admission of complainant/PW1 , it is cristal clear that he has hand over the car to said Rafi, who was driving the car. The allegations in Ext.P3 FIR&FIS would indicate the incident would happened due to the negligence of the said Rafi PW1 would further admitting in the cross examination that ‘ A]-IS ka-b¯v hml\w HmSn-¨n-cp-¶Xv Muhammad Rafi BWv. A]-IS ka-b¯v Sn Rafi sb IqSmsX 4 t]À IqSn Dm-bn-cp-¶p. AhÀ hnZ-ymÀ°n-Ifpw kplr-¯p-¡fpw Bbn-cp-¶p. Fsâ t]cn A]-ISw \S-¡p¶ kabw 2 hml-\-§Ä Dm-bn-cp-¶p.
The above admission of the complainant would probabilise the contentions of the opposite parties that he has rendered out the car on a ‘rent a car’ basis to the said Rafi who was to plying the same by carrying the passengers . The oral evidence of DW2 who is a private investigator appointed by National Insurance Company who conducted an investigation into the alleged accident and filed Ext.D2 report where in it is stated that the accident occurred when the car was being used by Sri.Rafi on hire.
It is clear from the available materials that the opposite party appointed a private investigator to conduct an enquiry and during enquiry it is revealed that one Mr.Muhammed Rafi took the vehicle on hire from the complainant that the said Mohammed Rafi is an Engineering student studying at Unus college of Engineering look the vehicle on hire and the passengers in the vehicle who sustained injuries are also friends of Muhammed Rafi studying in the very same college with him one Mr.Nishad and the accident occurred while the vehicle was in the custody of Mr.Muhammed Rafi and he has given Rs.1,50,000/- to the insured complainant by way of settlement, even prior to the intimation of the claim to the opposite parties. Since the complainant was using the vehicle in violation of the policy conditions by giving the vehicle on hire, the opposite parties repudiated the claim. The opposite parties would further allege that there is a delay of 24 days in reporting the incident to the opposite party. But the complainant denied the relationship between the complainant and the driver of the insured vehicle and also about the use of the vehicle at the time of accident.
However the complainant has taken no effort to resist the contention of opposite parties that the vehicle was used for the purpose of hire/reward. And also no evidence to discredit the repudiation letters issued by opposite parties.
In view of the evidence discussed above it is cristal clear that the complainant was not in the use of the vehicle at the time of accident but it was used by one Rafi who obtained the vehicle for rent to transport passengers and thereby violated the “limitations as to the use of the vehicle”. Hence the repudiation of the policy by the Insurance Company is legal , valid and justifiable. In the circumstance the forum is not expected to attribute any deficiency in service and unfair trade practice on the part of opposite parties and therefore the complainant is not entitled to get the insurance claim or compensation as claimed in the complaint.
The points answered accordingly.
Point No 3
In the result complaint stands dismissed.
No cost.
Dictated to the Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31st day of October 2019.
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/-
INDEX
Witnesses Examined for the Complainant:- Siyad
Documents marked for the complainant
Ext.P1:- Copy of the RC Book
Ext.P2:- Copy of the Insurance policy certificate
Ext.P3:- Copy of the FIR with FIS
Ext.P4:-Copy of the Letter dated 16.02.2015
Ext.P5:-Copy of the Letter dated 16.03.2015
Ext.P6:- Copy of final report of CC No.1427/15
Witness examined for the opposite party:-
DW1:-P.S.Suresh Babu
DW2:-V.Sivan Pillai
Documents marked for the opposite party:-
Ext.D1:-Surveyor report
Ext.D2:-Investigation report
Ext.D3:-Repudiation letter
Ext.D4:-Repudiation letter
Forwarded/by Order
Senior superintendent
