IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 12th day of July, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 111/2018 (filed on 08-06-2018)
Petitioner : Sasikumar K.R.
S/o. Raghavan Nair,
Kuzhimattathil House,
Peroor P.O.
Ettumanoor 686 637.
(Adv. Denny Jose Mathew)
Vs.
Opposite party : National Insurance Co. Ltd.
Rep. by Divisional Manager,
Kottayam Divisional Office,
CSI Square, Baker Hill,
Kottayam – 686 001.
(Adv. C.J. Jomi)
O R D E R
Smt. Bindhu R. Member
The petitioner is the owner of a motor cycle made by Bajaj Ltd. of model KTM 200 with reg.no KL05AN 2248 for his personal use which was validly insured with the opposite party and the opposite party had issued a policy bearing no 570600/31/16/6200002204. As per the policy the opposite party is liable to indemnify the petitioner towards all losses incurring to the petitioner on account of the use of the said vehicle, for a period from 27.5.2016 to 26.05.2017. On 16.8.2016 at about 9 pm the said vehicle met with an accident near Kumaranaloor over bridge and the vehicle had been damaged seriously. The driver of the vehicle was holding a valid license. After the accident both the parties entered into an agreement to suffer their own loss because they had approximate equal losses.
The complainant suffered much loss due to the accident. Immediately after the accident the petitioner had submitted necessary claim form as well as relevant documents evidencing the cause of the accident as well as details regarding the insurance policy. But the opposite party informed the complainant that on their scrutiny it was revealed that the said vehicle was driven by some other person at the time of accident. This was considered as a violation of policy condition and misrepresentation of material facts and so they were unable to proceed with the claim and hence the claim is treated as ‘no claim’. Thus the complaint is filed for compensation.
Upon notice the opposite party appeared and filed version.
The opposite party contended in the version that the own damage claim of the vehicle no KL/05/AN/2248 was intimated to the opposite party only on 7.9.2016. On the basis of the same an IRDA licensed surveyor Mr. Binu Varkey was appointed to assess the damages. As there was delay in the intimation of the claim, an investigator Mr.Chandrachudan was appointed to investigate the matter. After investigation it was found that the person who had driven the said motor cycle at the time or accident had no valid license who was none other than the son of the complainant. Therefore the claim was repudiated and repudiation letter was sent to the complainant on 2.12.16. The accident happened due to the collision of insured vehicle with another bike. In the accident both the riders have sustained injuries and Sidharthan was taken to Caritas Hospital and Salim, owner of the non offending motor cycle was taken to Medical college Hospital, Kottayam for treatment. As the accident occurred solely due to the negligent diving of the motor cycle by a person not having license, the dispute regarding compensation for damages was compromised between the parties. Therefore neither a Criminal case not a GD entry was registered with the police. Further the complainant intimated the accident before the insurance company belatedly on 7.9.2016. In the meanwhile the complainant entered into criminal conspiracy with one Harikrishnan V.K and showed his name in the claim form as the rider of the said motorcycle and submitted the copy of his license also.
The accident happened while the vehicle was used in violation of the driver’s clause in the policy, limiting use of vehicle only by a person holding an effective driving license. The complainant had suppressed a material fact and made a misrepresentation for getting his claim sanctioned. Therefore the repudiation of the claim is valid in accordance with the policy conditions and there is no deficiency of service on the part of the opposite party. As per the clause 3 of the General Exception of the policy the opposite party is not liable to compensate if at the time of accident, the vehicle was driven by a person having no valid driving license.
In the evidence part, the complainant was examined as PW1 on affidavit and Exhibits A1 to A7 were marked whereas the opposite party produced Exibits B1 to B4. B4 marked subject to proof. PW1 and PW2 were examined from the side of the complainant and DW1 and DW2 were examined from the side of the opposite party.
Upon a detailed perusal of the complaint, version and evidence on record we would like to frame the following issues:
- Whether the complainant has succeeded in establishing deficiency in service from the part of the opposite party?
2. If so what are the reliefs?
For the sake of convenience point no 1 and 2 are considered together.
Issue no 1 & 2
The complaint has been filed against the repudiation of the insurance claim made by the complainant upon an accident which took place on 16.08.2016 within the insurance period. The complainant has alleged that though serious injuries were sustained to the rider of the vehicle, ie his son, the opposite party has not approved his claim and it is a clear deficiency in service which should be compensated.
The opposite party has defended the above allegations by contenting that the rider of the vehicle had no valid licence at the time of the accident and hence the insurance claim could not be awarded. We have conducted a detailed examination of the evidence on record.
The complainant produced Exhibit A3, an agreement entered into between the complainant, one Harikrishnan who allegedly rode the bike at the time of accident and one Salim, who rode the 2nd bike and injured. In A3 agreement the 3 parties agreed not to involve police or any other persons as they had compromised between them. But as the opposite party’s counsel pointed out
the said document seems executed on a stamp paper of valuation Rs.100 and dated 20.10.16 which is two months after the occurrence of the accident. The complainant did not care to inform the insurance company also until 7.9.2016.3 weeks after the accident.
Allegedly, the complainant’s son and his friend were riding the motorcycle and hit with another bike and thus the accident happened. In ordinary prudence if such an accident occurs, immediately the matter would have been informed to the police and even if there was no case between the parties, the same would have been recorded in the General Diary of police. The complainant if had a genuine intention to claim for the damages, he would have informed the police and the insurance company immediately. Moreover, the act of the complainant to execute a tripartite agreement between the parties involved, that too after 2 months seems to be something not genuine. Even though the complainant made delay in submitting the claim, he ought to have informed the police on time. Here the complainant neither informed the police nor informed the company and hence lost the chance to prove who had ridden the bike at the time of the accident. The complainant himself was examined as PW1. In his deposition he is not affirmative about the incidents. He deposed that the Exbt.A3 was written in 10 to 15 days after the accident. But it is very clear from the document itself that the document was executed on or after 20.10.2016. Thus we find no merit in the deposition of PW1 and PW2. The complainant has failed to produce any cogent evidence to prove that the driver of the motorbike was having a valid driving licence at the time of the accident. Hence we find that as the complainant did not approach this Commission with clean hands, the complaint is to be dismissed. Accordingly the complaint is dismissed.
Pronounced in the Open Commission on this the 12th day of July, 2021.
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 - Sasikumar K.R.
Pw2 – Harikrishnan K.
Witness from the side of opposite party
Dw1 – K. Chandrachooden
Dw2 – Salim
Exhibits marked from the side of complainant
A1 -Certificate of insurance cum policy schedule dtd.27-05-16 issued by
opposite party
A2 – Copy of certificate of registration (KL-05-AN-2248)
A3 – Copy of agreement
A4 – Copy of estimate bill dtd.17-10-16 by Joyees International, Kottayam
A5 – Copy of invoice dtd.19-10-16 by Joyees International, Kottayam.
A6 – Letter dtd.02-12-16 by Kottayam Divisional office to petitioner
A7 – Copy of driving license
Exhibits marked from the side of opposite party
B1 – Motor insurance claim form (policy No.570600/31/16/6200002204)
B2 – Letter dtd.12-01-2018 by petitioner to opposite party
B3 - Investigation report dtd.11-11-16from K. Chandrachudan to the opposite
party
B4 - Letter dtd.08-11-16 from Salim to opposite party
By Order
Senior Superintendent
