?IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 13th day of September, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.24/2012 (Filed on 19.01.2012)
Between:
1. Yohannan. K.T, aged 60 years,
Anish Bhavan,
Kanjiram Nilkkunnathil,
Mallassery.P.O.
(Father of the deceased)
2. Alice Mathew, aged 58 years,
-do. –do.
(Mother of the deceased)
3. Teenu Yohannan,
-do. –do.
(Sister of the deceased)
(Rep. by P/A holder, the 1st
complainant)
(By Adv. Mathew George) …. Complainants
And:
1. Muthoot Honda,
Ring Road, Pathanamthitta
(By Adv. R. Gopikrishnan)
2. The Office Head,
Reliance General Insurance-
Co. Ltd.XL/3599, 4th Floor,
Elizabeth Alexander Memorial-
Building, Shanmugham Road,
Marine Drive, Kochi – 682 002.
(By Adv. Sailesh Kumar) …. Opposite parties.
O R D E R
Smt. K.P. Padmasree (Member):
Complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complainant’s case is that they are the legal heirs of the deceased Anish Yohannan. Anish Yohannan died in a motor vehicle accident took place on 15.11.2010, in which Pathanamthitta Police registered a Crime No.1248/10. The deceased was riding the motor cycle bearing registration No.KL.03 T-6085 insured with the 2nd opposite party. The deceased himself was the owner and insurance certificate holder of the said vehicle. The above said motor cycle also completely damaged. Hence the complainants have two cause of action against the 2nd opposite party.
3. The vehicle insured with the 2nd opposite party under a valid package policy vide policy No.2207402312010870 valid from 06.10.2010 to 05.10.2011. The said policy was insured at the time of the delivery through the 1st opposite party. 1st opposite party is the authorized dealer of Honda Motor cycle as well as the authorized agent of the 2nd opposite party for the insurance of the policy. As per the aforesaid policy which is a package/comprehensive policy covers the own damage risk as well as personal accident coverage to the owner cum driver of the vehicle and for which the 2nd opposite party had received the respective premium.
4. The vehicle was entrusted to the 1st opposite party for repairing on 23.11.2010 i.e. 8 days after the death of the insured. All the formalities were fulfilled by the complainant for getting the claim.
5. While enquiring about the personal accident coverage the complainants were advised by the 1st opposite party to approach the micro office of the 2nd opposite party at Pathanamthitta. Accordingly, complainant visited the micro office and submitted the necessary claim form, with all relevant documents. After that as demanded by the 1st opposite party, complainant was constrained to pay a sum of ` 20,000 vide receipt No.42529 dated 18.03.2011 for the repair work of the vehicle. But the motor cycle has not been repaired, and they recommended for a total loss. The insured vehicle sustained total loss. In such case, the claim probably depends upon the market value of the vehicle as per the terms of policy and relevant tariffs. The market value of such vehicle in total loss shall be insured declared value of ` 48,063.
6. The complainants approached the opposite parties office again and again. But they have evaded from making any positive response. Complainants sent a registered notice to the 1st opposite party on 02.11.2011. But they didn’t act upon. Hence this complaint for the following reliefs.
(a) To direct the 2nd opposite party to pay the sum of ` 1,00,000 with interest at the rate of 12% per annum from the date of death as the claim under personal accident coverage.
(b) To direct the 2nd opposite party to pay a sum of ` 48,063 with interest at the rate of 12% from 15.11.2010 till realization.
(c) Direct the 1st opposite party to return the amount of ` 20,000 with interest at the rate of 12% from 18.03.2011 and also cost and compensation of ` 32,500.
7. Both opposite parties entered appearance and filed separate versions.
8. 1st opposite party filed version with the following contentions. First of all they have challenged the maintainability of the complaint. They have raised the contention that the complainant not availed any service from the 1st opposite party. Without availing service, nobody can claim compensation for deficiency of service. 1st opposite party also filed I.A.52/12, Challenging the maintainability of the complaint on the said ground.
9. 1st opposite party admitted that they are the authorized dealer of M/s. Honda Motor Cycle. They also admitted that complainant entrusted the vehicle with them for repairing on 23.11.2010. The allegation that while enquiring about the personal accident coverage, the complainants were advised by the 1st opposite party to approach the Micro office of 2nd opposite party is true, because it is a transaction between the complainant and 2nd opposite party.
10. 1st opposite party admitted that they have received ` 20,000 from the complainants for repairing. The actual fact that on 23.11.2010 the vehicle was brought before the 1st opposite party for repair. One person, who claimed himself as the R.C owner of the vehicle told to the 1st opposite party that he didn’t want back the vehicle or claim amount as it is the vehicle caused death to his son. After one month he came to the service centre again and requested to arrange the claim on total loss basis. The 1st opposite party accordingly submitted claim form to the insurance company but the insurance company denied the claim on the basis of delayed intimation. The said fact was intimated to the complainant and he told that he is ready to repair the two wheeler at his own expenses. Then he remitted an amount of ` 20,000. Now the vehicle is ready for delivery after repair. The said fact also intimated to the complainants. The total bill amount for repair is ` 40,000. But yet he didn’t take back the vehicle. So the 1st opposite party is not liable to return the said amount with interest to the complainant. There is no cause of action against the 1st opposite party in this case. So the 1st opposite party prays for the dismissal of the complaint against them with their cost.
11. 2nd opposite party filed version with the following contentions. They admitted that they have issued a comprehensive insurance policy to the vehicle. The allegation of the complainant that the insured vehicle sustained total loss is not correct. The surveyor appointed by the 2nd opposite party conducted survey and assessed damages to the tune of ` 27,600. There is an inordinate delay in giving intimation regarding the alleged accident to the 2nd opposite party. So the 2nd opposite party didn’t get an opportunity to appoint a surveyor to assess the correct damage immediately after the alleged accident. So the 2nd opposite party is not liable to pay any amount as compensation. There is no deficiency of service by the 2nd opposite party. They pray for the dismissal of the complaint.
12. On the basis of the pleadings of the parties, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
13. The evidence of this complaint consists of the oral evidence of PW1, DW1, DW2, Exts.A1 to A9(a) and B1 to B4. After closure of evidence, both sides were heard.
14. Point No.1:- Even though the opposite parties challenged the maintainability of the complaint on the ground that they are not the consumers of the opposite parties. As per the order in I.A.No.52/12 Forum dismissed the petition, on a finding that original consumer is no more and this complaint is filed by the legal heirs of the deceased and they produced the legal heir ship certificate. Therefore, this complaint is found maintainable before this Forum.
15. Point Nos.2 and 3:- The allegation of the complainant is that the son of the complainant Sri. Anish Yohannan died in a motor cycle accident took place on 15.11.2010. The said vehicle insured with the 2nd opposite party under a valid package policy covers the own damage risk as well as personal accident coverage to the owner cum driver of the vehicle and for which 2nd opposite party had received the respective premium. The said policy was issued at the time of the delivery through the 1st opposite party. The vehicle was entrusted to the 1st opposite party for repair. As per their demand complainant paid a sum of ` 20,000 for repair. But the motor cycle hasn’t yet repaired.
16. For getting the personal accident coverage, complainant visited the 2nd opposite party and submitted the necessary claim form with supporting documents. But no action was taken by them. A registered notice was also given, but to no avail. The above said act of the opposite parties is a clear deficiency in service and they are liable to the complainant.
17. In order to prove the complainant’s case, 1st complainant filed proof affidavit and adduced oral evidence as PW1 and the documents produced by him were marked as Exts.A1 to A9. Ext.A1 is the attested copy of death certificate of Anish Yohannan. Ext.A2 is the legal heir ship certificate of Anish Yohannan. Ext.A3 is the vehicle deposit receipt dated 23.11.2010 issued by 1st opposite party. Ext.A4 is the payment receipt from 1st opposite party dated 18.03.2011. Ext.A5 and A5(a) are the copy of registered notice and its postal receipt sent by the complainant to the 2nd opposite party. Ext.A6 is the certified copy of FIR and FIS in Crime No.1248/10. Ext.A7 is the certified copy of charge sheet. Ext.A8 is the invoice of the insured vehicle. Ext.A9 is the copy of insurance policy. Ext.A9(a) is the terms and conditions of Ext.A9.
18. On the other hand, the contention of the opposite parties is that even though the vehicle entrusted with the 1st opposite party for repair on 23.11.2010. Complainant told to the 1st opposite party that he didn’t want back the vehicle or claim amount as it is the vehicle caused accident death to his son. Thereafter, after one month he come to the service centre again and requested the 1st opposite party to arrange the claim on total loss basis. The 1st opposite party submitted the claim form to the 2nd opposite party. But the 2nd opposite party denied the claim on the basis of delayed intimation. Complainant remitted ` 20,000 for the repair work. The total bill amount is ` 40,000. That was intimated to the complainant. But he didn’t take back the vehicle. So there is no deficiency of service on the part of the opposite parties.
19. In order to prove the contentions of the opposite parties, 1st and 2nd opposite parties filed proof affidavit. On the basis of the proof affidavit, 1st opposite party was examined as DW1 and 2nd opposite party was examined as DW2. Ext.B1 to B4 marked through 2nd opposite party. Ext.B1 is the authorization letter from the head office of General Insurance. Ext.B2 is the survey report produced by 2nd opposite party. Ext.B3 is the repudiation letter filed by 2nd opposite party. Ext.B4 is the proposal details of the proposer.
20. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the insurer and insured relationship. The vehicle as well as the driver of the vehicle was insured with 2nd opposite party vide a comprehensive policy which is marked as Ext.A9. 2nd opposite party also admitted that the vehicle was insured with limited liability of ` 1,00,000 to the registered owner as personal accident coverage and own damages for the vehicle. The validity of the policy was not challenged by the opposite parties and the only contention by the 2nd opposite party, to deny the claim is with regard to the inordinate delay in intimation of accident.
21. It is evident from Ext.A3 document and from the contention of the opposite parties that the vehicle involved in the accident was brought before the 1st opposite party for repairing the same on 23.11.2010 i.e. 8 days after the accident. Even though the vehicle was brought before the 1st opposite party, they failed to make intimation of the occurrence to the 2nd opposite party so that they couldn’t act upon the claim. Even though the 1st opposite party, service dealer is the authorized agent of the 2nd opposite party insurance company the 1st opposite party miserably failed to do their duty as they have principal and agent relationship with the 2nd opposite party. 1st opposite party contended that which was happened due to the submission made by a person who claimed himself as the R.C owner of the vehicle is quiet unbelievable. The records reveals that the R.C owner of the vehicle is the deceased Anish Yohannan. It is clearly revealed from Ext.A7 charge sheet, that the said occurrence of accident was properly intimated to the police station concerned. When the complainant approached the opposite parties for getting the vehicle repaired and for getting the personal accident claim amount, the 2nd opposite party denied the same with a lame excuse of 1 month delay in intimation. In the circumstances that a young person having an age of 26 years had died in a road accident, casting a shadow of grief and sorrow to his family. How the family members can think of making intimation to the insurance company immediately to get the accident claim benefits. What was required to be done in such situation is to make intimation before the concerned police and that was properly done in this case. The police prepared the Ext.A7 charge sheet after making a proper investigation.
22. Deceased Anish Yohannan is the only son of his parents. In an atmosphere heavily laden with grief and sorrow all around the family, no one thought of insurance cover and formalities required for getting the insurance amount. It was only after the clouds of sorrow and grief got slightly shattered one started thinking of money, assets, liabilities left by the deceased. That is why the 1st complainant approached the opposite parties after one month of the incident. It is reasonable. So there is no willful laches on the part of the complainants in approaching the insurance company after delay for some days. Hence we find that the 2nd opposite party is liable for the personal accident coverage.
23. Then coming to the dispute of repairing cost. As per Ext.A9 IDV, of the vehicle is shown as ` 48,063. 1st opposite party repaired the vehicle as per Ext.A8 bill and the repairing cost is ` 40,699. As per the terms of policy condition, the insured vehicle shall be treated as constructive Total Loss if the cost of repairing exceeds 75% of the IDV. In this case, the 1st opposite party had already repaired the vehicle and it is ready for delivery and the cost of repairs is more than 75% of IDV. Complainant already made part payment also. So the demand of the complainant for getting the total loss benefit is not relevant in the circumstances and such a situation occurred due to the communication gap between the parties. So the own damage part of this dispute can also be settled by fastening the liability to the 2nd opposite party. Hence we also find 2nd opposite party is liable to pay the repairing cost to the complainant after deducting the permissible depreciation.
24. For the reasons stated above, 2nd opposite party cannot be justified in repudiating the claim. It is a clear deficiency in service on the part of the 2nd opposite party. Hence the complaint is allowable.
25. In the result, this complaint is allowed with the following directions:
(1) 1st opposite party is directed to return the vehicle of the complainant on getting the balance bill amount of ` 20,000 (Rupees Twenty Thousand only) from the complainant, as they have already repaired the same.
(2) 2nd opposite party is directed to pay the assured amount of ` 1,00,000 (Rupees One Lakh only) with interest at 9% per annum from the date of filing of this complaint till this date within 30 days from the date of receipt of this order.
(3) 2nd opposite party is further directed to pay the repairing bill to the complainant after deducting the permissible deductions of the parts replaced and other works done by 1st opposite party within 30 days from the date of receipt of this order.
(4) In the nature and circumstances of the case, no separate order for cost and compensation.
(5) In default, complainant is allowed to realize the
whole amount ordered herein above with 10%
interest per annum from today till the whole
realization.
Declared in the Open Forum on this the 13th day of September, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainants:
PW1 : Yohannan. K.T.
Exhibits marked on the side of the complainants:
A1 : Attested copy of death certificate of Anish Yohannan. A2 : Legal heirs certificate of Anish Yohannan.
A3 : Vehicle deposit dated 23.11.2010 issued by 1st
opposite party.
A4 : Payment receipt from 1st opposite party dated
18.03.2011.
A5 : Copy of registered notice sent by the complainant to
the 2nd opposite party.
A5(a): Postal receipt of Ext. A5
A6 : Certified copy of FIR and FIS in Crime No.1248/10.
A7 : Certified copy of charge sheet.
A8 : Invoice of the insured vehicle.
A9 : Copy of insurance policy.
A9(a): Terms and conditions of Ext.A9.
Witness examined on the side of the opposite parties:
DW1 : Harishkumar.
DW2 : Rajeshkumar. P.K.
Exhibits marked on the side of the opposite parties:
B1 : Authorization letter dated 26.06.2012 from the second
opposite party.
B2 : Survey report of 2nd opposite party.
B3 : Repudiation letter dated 11.04.2011 sent by 2nd
opposite party to Anish Yohannan.
B4 : Proposal details of the proposer.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Yohannan. K.T, Anish Bhavan, Kanjiram-
Nilkkunnathil, Mallassery.P.O.
(2) Muthoot Honda, Ring Road, Pathanamthitta
(3) The Office Head, Reliance General Insurance-
Co. Ltd.XL/3599, 4th Floor, Elizabeth Alexander
Memorial Building, Shanmugham Road,
Marine Drive, Kochi – 682 002.
(4) The Stock File.
