By. Smt. Bindu. R, President:

            This complaint is filed by Fathima. V. T, Afadhi Manzil, Valiyaparamba Post, Koduvally, Kozhikode against National Insurance Company Limited, Divisional Office-1 and another as Opposite Parties alleging deficiency of service and unfair trade practice.

            2.  The Complainant states that the Complainant is the RC owner of vehicle bearing Registration No.KL-57-Q-4170 Hyundai i20 Magna Car purchased from Opposite Party No.2 on 03.05.2017 to gift to her daughter for her marriage.  A temporary permit was taken at RTO, Koduvally through Opposite Party No.2 and the vehicle was delivered to the Complainant through Opposite Party No.2.  The vehicle was insured with Opposite Party No.1 through Opposite Party No.2 as package comprehensive policy with “nil depreciation and engine protect scheme”.  On 30.05.2017 the son-in-law of the Complainant named Mohammed Shareef has taken the vehicle to RTO Koduvally for the purpose of making permanent registration and the vehicle dashed on the wall of the bridge at Pookode at Vythiri and sustained damage to the vehicle.  The Complainant states that the matter was informed to the Opposite Party No.2 and all arrangement were done by the Opposite Party No.2 to tow the vehicle from the place of accident to the premises of Opposite Party No.2.  The Complainant states that since the insurance policy was a cashless policy the Complainant signed necessary Performa and forms as required.  The Complainant states that the Opposite Party No.2 had under taken that all the procedures and formalities in this regard shall be done by him for and on behalf of the Complainant and Opposite Party No.2 obtained all the vehicular documents from the Complainant and the spot of accident was also shown to the representatives of Opposite Party No.2.  The Complainant states that the authorized person of Opposite Party No.2 asserted that they have submitted the papers to the Opposite Party No.1 and the place of accident was shown to the Surveyor appointed by Opposite Party No.1.  The Complainant further states that Opposite Party No.2 insisted for an amount of Rs.6,000/- over and above the amount admitted by  Opposite Party No.2 for purchase of spare parts and labour costs and the delivery of the vehicle was taken by the Complainant by remitting the amount asked for by Opposite Party No.2  Complainant states that the Complainant received a letter from Opposite Party No.1 stating that the matter was closed as “no claim” and Opposite Party No.2 informed the Complainant that they will take care of the matter when the closure was put to notice of Opposite Party No.2.  The Complainant states that the Opposite Party No.1 never contacted the Complainant before closing the claim and the Complainant was under the belief that in the case of cashless policies, usually all matters are done in between Opposite Party No.1 and Opposite Party No.2 for which the Complainant has no role in it.  The Complainant states that the Complainant received a registered Lawyer Notice from Opposite Party No.2 demanding a sum of Rs.1,95,963/- as repairing charges of the vehicle, since the Opposite Party No.2 has not received the claim amount.  The Complainant alleges that Opposite Party No.2 had not provided sufficient documents to Opposite Party No.1,  Opposite Party No.1 and 2 colluded together to get unlawful gain from the Complainant. Hence the complaint is filed alleging deficiency of service and unfair trade practice from the side of Opposite Parties and praying for issuing direction to Opposite Party No.1 to pay the repair charges to Opposite Party No.2 including the price of spare parts and for other reliefs.

            3.  Upon notice both Opposite Party No.1 and 2 entered in to appearance and filed their separate versions.

            4.  Opposite Party No.1 filed their version stating that there is no deficiency of service or unfair trade practice from the side of Opposite Party No.1.  According to them the Complainant had insured her car bearing Engine No.G4LAHM401894 Chassis No.MALBM51BLMH374757C having temporary registration Certificate No.KL-11-CF-TEMP-9809 with the Opposite Party No.1 for the period 03.05.2017 to 02.05.2018 and the same has been subsequently renewed and the liability of the Insurance Company if any is limited to the terms, conditions and exclusions of the policy.  Opposite Party No.1 contented that even though it is stated by the Complainant that the vehicle collided on the wall of the bridge on 30.05.2017 and the matter was reported to Opposite Party No.2 and to tow the vehicle to the premises of the Opposite Party No.2, according to the information received by the Opposite Party No.1 the vehicle was taken to the Opposite Party No.2 only on 05.06.2017.  Opposite Party No.1 is not aware about the undertaking given by Opposite Party No.2 to the Complainant and it is contented that there is no privity of contract or business tie up between Opposite Party No.1 and Opposite Party No.2.  According to the Opposite Party No.1, it is the duty of the Complainant to submit all the required documents and to furnish necessary details to Opposite Party No.1 as and when required by Opposite Party No.1 and Opposite Party No.1 has no knowledge about the Lawyer’s Notice sent by Opposite Party No.2 and the statement of collusion between Opposite Party No.1 and 2 are denied by Opposite Party No.1.  Opposite Party No.1 contented that the claim was intimated to the office of Opposite Party No.1 only on 16.06.2017 which is in gross violation of condition No.1 in the policy conditions.   It is also stipulated that no claim under the policy shall be payable unless this terms and conditions have been complied with.  Since insurance is  a contract between the insured and the insurer, the terms and conditions of the policy are equally applicable to the insured and the insurer.

            5. Opposite Party No.1 contented that on getting the claim form claiming damage to the car owned by the Complainant, an independent IRDA Licensed Surveyor Loss Assessor was appointed to survey the car and he had submitted a report dated 06.12.2017 answering the loss at Rs.1,54,258/- less excess without prejudice to the cause, nature of loss subject to the terms and conditions and exclusions of the policy of insurance.  The final Surveyor also certified in his report that the damage to the insured vehicle are not relevant to the reported accident.  The report specifically directs that the claim can be settled only after the spot inspection.  Srikrishna Prasad investigator Balussery was appointed to investigate into the matter and has enquired the matter with the insured and her daughter.  Thereafter Opposite Party No.1 had sent letter on 27.09.2018 requesting to the Complainant to furnish reliable evidence to the accident occurred on 30.05.2017 and also requested for the original driving licensee and to clarify the opinion of the Surveyor that the cause of accident as mentioned in the claim is inconsistent with the damages sustained to the insured vehicle.  The said notice was received by the Complainant on 28.09.2018 and since there is mistake in the year mentioned in the notice, another letter dated 10.10.2018 was also sent and that is also received by the Complainant.  Subsequently the original license of the driver and the original of the Permanent Registration Certificate were produced, but no evidence produced to prove the date of accident as 30.05.2017. The insured had not co-operated with the insurance investigator appointed by the Company for clarifying the correct date of accident or spot of accident and hence the Company was forced to close the claim as “no claim” and the same was intimated to the Complainant.  It is contented by the Opposite Party No.1 that the temporary registration of the vehicle expired on 01.06.2017 and the permanent registration of the vehicle is with effect from 04.08.2017 only. Hence there is more than two months break in the registration period and the Complainant has to prove that the accident occurred during the period in which the vehicle was duly registered in accordance with Motor Vehicles Act.  Opposite Party No.1 is not liable to pay compensation to the Complainant since the Complainant has violated the terms of the policy and he is not entitled to get any compensation.  There is no deficiency of service and unfair trade practice from the side of Opposite Party No.1 and therefore prayed for dismissal of the complaint with costs.

            6.  The Opposite Party No.2 filed their version stating that the Complainant purchased a i20 car from the sister concern of this Opposite Party and was brought before Opposite Party No.2 by Complainant’s agent Muhammed Sherief on 05.06.2017 alleging that vehicle dashed on a wall at Pookode at Vythiri, stating that the vehicle has a valid insurance and the insurance claim will be honored without objections.  Believing the version, Opposite Party No.2 undertook to submit the claim form to the Opposite Party No.1 and accordingly the vehicle was repaired and after repairing work Mr. Mohammed Shareef took the vehicle on 03.08.2017 after paying Rs.6,400/- being the cost of spare parts which are not covered under the policy.  It is contented by the Opposite Party No.2 that they were of the bonafide belief that the claim will be honoured, they delivered the vehicle to the Complainant’s agent Muhammed Sherief on 03.08.2017.  Thereafter Opposite Party No.2 received a registered letter from Opposite Party No.1 denying the insurance claim.  Immediately on getting the said letter, Opposite Party No.2 contacted the Complainant and her agent Muhammed Sherief requesting for payment of the bill amount which was neglected by them.  Hence Opposite Party No.2 sent a registered letter on 19.06.2019 to pay the bill amount of Rs.1,95,963/- with interest and cost of notice which was received by the Complainant on 24.06.2019.  It is contented by Opposite Party No.2 that the insurance claim was submitted to Opposite Party No.1 as instructed by the Complainant and the liability to keep the vehicle fit for honouring the claim is on the Complainant and not on Opposite Party No.2.  The Opposite Party No.2 is not liable for the insurance survey or any other process of the Opposite Party No.1 and the Complainant alone is liable to co-operate with those processes and the Opposite Party No.2 can assist the Complainant on their processes upon their written request.  In this case there was no request from the Complainant.  The claim investigation is to be done by Opposite Party No.1 and if they find any irregularities the claim will be rejected, and the Complainant is duty bound to see that the insurance is not denied to the Complainant.  It is stated by Opposite Party No.2 that it is not the Opposite Party No.2 who towed the vehicle to the service centre but it was the agent of the Complainant who brought the vehicle to the service centre on 05.06.2017.  It is contented in the version that as is learned that the Complainant stated to the Insurance Investigator over telephone that the damage was caused due to the collision with Diamond bus at Pookode.  It is also learned that according to the Opposite Party No.1 the temporary registration period of the vehicle was over on the date of the accident.  It is contented that though the Complainant stated that the accident was happened on 30.05.2017, the vehicle was brought to this Opposite Party only on 05.06.2017 ie after the temporary registration period  which was valid from 03.05.2017 to 01.06.2017 only.  The statement of intimation etc of the accident to Opposite Party No.2 and the vehicle brought to the service centre by Opposite Party No.2 etc are against facts and are made only to cover up the fact that the accident happened is beyond registration period.  It is contented by Opposite Party No.2 that they came to know about the accident only on 05.06.2017 when the agent of the Complainant brought the vehicle to the service centre of Opposite Party No.2.  The repair order issued to the agent of the Complainant Mr. Muhammed Sherief will reveal that the vehicle was handed over to Opposite Party No.2 only on 05.06.2017 for carrying out the repairs stated in the same.  It is stated by Opposite Party No.2 in the version that on enquiry regarding the reason for delay, Mr. Muhammed Sherief informed that he was unable to bring the vehicle immediately after the accident as he was out of station.  It is learned that the insurance was denied finding that the reason stated for accident is not true and there was no valid registration for the vehicle at the time of accident.  No fault can be casted upon Opposite Party No.2 and the complaint is filed on experimental basis and the Opposite Party No.2 is an unnecessary party in the proceedings and hence prayed for dismissal of the complaint with compensatory costs to Opposite Party No.2.

            7.  The evidence in this case consists of the oral testimonies of PW1, OPW1 and OPW2. Ext.A1 to A4 were marked from the side of the Complainant and Ext.B1 to B3 were marked from the side of Opposite Parties.

            8.  Heard both sides and the Commission had made a very thorough probe into the evidence and documents filed from either side along with facts and circumstances of the case.

            9.  The following are the main points to be analyzed in this complaint to derive into an inference of the facts.

1. Whether the Complainant had sustained to deficiency of service or unfair trade practice from the side of Opposite Parties.?
2. If so, the quantum of compensation and other reliefs for which the Complainant is eligible?
3. Costs of the proceedings if any.

10.  In this case, PW1 is Muhammed Sherief. T, Son-in-law of the Complainant.  Ext.A1 is the Copy of the Package Policy No.1003123118P101598940 with reference to vehicle No.KL-57-Q-4170 in favour of Mrs. Fathima. V. T.  Ext.A2 is the Copy of Registration Certificate of the vehicle bearing No.KL-57-Q-4170.  Ext.A3 are the Bills regarding the repair of the vehicle.  Ext.A4 is the Advocate’s notice dated 19.06.2019 issued by the Opposite Party No.2 calling upon the Complainant to remit the bill amount of Rs.1,95,963/- along with interest and legal expenses of Rs.2,000/-.  

11.  Ext.B1 is the Copy of Temporary Certificate of Registration valid from 03.05.2017 to 01.06.2017.  Ext.B2 dated 05.06.2017 is the copy kept in the service centre bearing signature of the customers ( in this case Muhammed Sherief son-in-law of the Complainant) in which it is stated “accident repairs” in the column of service advisor instructions. Ext.B3 is final survey report in which the driver particulars are mentioned as Mr. Muhammed Sherief. T and the total approximate loss is calculated as Rs.1,54,258.03/-.  In this case, Ext.B3 report of the Surveyor consists of a file containing all the relevant records for assessment of the loss.  A perusal of the same shows that it contains a letter dated 20.12.2017 written by V. T. Fathima in favour of the claim division National Insurance Company, Kozhikode which states “Fsâ DSaØXbnepff KL.11.C.F. Temp 9809 (KL-57Q-4170) \¼À hml\w Fsâ aIfmb A^v\ Xkv\ow BWv D]tbmKn¡p¶Xv.  Fsâ `À¯mhv KÄ^n t]mhp¶ Znhkw (30.05.2017) hb\m«nepff aIfpsS ho«n \n¶pw sImSphffnbnepff Fsâ ho«ntebv¡v hcpt¼mÄ ssh¯ncn F¶ Øe¯v h¨v A]IS¯n s]«p F¶p aIÄ ]dªdnªp”   The Complainant had not entered into the box for giving evidence, Mohammed Sherief son-in-law of the Complainant was examined as PW1.  According to PW1, the vehicle was insured as per Ext.A1 on 02.05.2018 for a period 03.05.2018 to 02.05.2019.  He also deposed that “Ext.A1 \v ap¼v Hcp insurance policy D­mbncp¶p.  B t]mfnkn Ime¯v kw`hn¨ A]ISs¯ kw_Ôn¨ XÀ¡¯nemWv ta ]cmXn sImSp¯n«pffXv. B insurance policy FSp¯Xv 02.05.2017 \v BWv”.  The copy of temporary permit of the vehicle is marked as Ext.B1.  PW1 deposed in the box that “hml\w  temporary registration FSp¯ tijw `mcy ho«nembncp¶p Fsâ hnhml Znhkamb 07.05.2017 \mWv hml\w F\n¡v X¶Xv.  sImSphffnbnse `mcy ho«n \n¶pw hml\w HmSn¨n«mWv sIm­ph¶Xv hml\w HmSn¨XmcmsW¶v AdnbnÔ.  PW1 also deposed that “Insurance I¼\nbpw Complainant Dw X½nepff communication s\ Ipdn¨v t\cn«dnhnà ]dªdnbmw”.  PW1 admitted that Ext.B2 is signed  by him and original is there in his possession.  PW1 denied the statement that the vehicle was produced in the service centre on 03.06.2017 and when he denies the date mentioned in Ext.B2 as 03.06.2017, the original receipt is not produced before the Commission to show that there is manipulation with the date in Ext.B2.  It is also deposed by PW1 that “hml\¯n\v insurance Csæn Ext.A3 {]Imcapff Bill sImSpt¡­ D¯chmZnXzw A\ymb¡mcn¡mWv. Insurance claim \ntj[n¨psIm­pff letter Ab¨ncp¶p.  BbXv lmPcm¡mXncn¡m³ {]tXyIn¨v ImcWsam¶panÔ. During cross-examination of Opposite Party No.1, PW1 deposed that “D½bpsS t]cnemWv RC Register sNbvXncn¡p¶Xv 01.06.2017 \v temporary registration Ahkm\n¨p.  ]n¶oSv sshInbmWv permanent registration FSp¡p¶Xv.  30.05.2017 \v B hml\w A]IS¯nÂs]«p F¶p ImWn¡m³ tcJ ssI¿n D­mbncp¶p.  Photos D­mbncp¶p.  Cu tImSXnbn lmPcm¡nbn«nÔ.  OPW1 is the Surveyor who filed Ext.B3 valuation and assessment Report of the vehicle who specifically stated in the box that “aXnen\v X«nb A]ISambn F\n¡v tXm¶nbn«nÔ.  During cross-examination by Opposite Party No.2, OPW1 deposed that “RC Owner ambn kwkmcn¨Xn \n¶mWv (t^mWnÂ) acpaI\mWv hml\w HmSn¨v Hcp tourist bus  CSn¨XmsW¶pw Ah\v hntZi¯v t]mIm³ XSÊap­mImXncn¡m\mWv aXnen CSn¨sX¶v ]dªXn\memWv aXnen CSn¨Xà F¶v a\Ênem¡nbXv”.  OPW1 further deposed that “CSn¨ tourist bus sâ \¼À RC Owner XcpIbpw Ahsc hnfn¨t¸mÄ AhÀ bus sâ photo Ab¨pX¶p. Record kw`mjWhpw photo bpw  Rm³ H¶mw FXrI£n¡v ssIamdn”.

12.  OPW2 is the Body shop Manager of Opposite Party No.2, who deposed that on the presumption that the claim will be granted by Opposite Party No.1, the vehicle was released to the Complainant after repair and OS.214/2020 is pending before the Munsiff’s Court, Kalpetta for realizing the cost of repairs from the Complainant. 

13.  In this case the perusal of entire evidence shows that the specific case of the Complainant is that the vehicle hit on the wall of the bridge on 30.05.2017 while the son-in-law of the Complainant has taken the vehicle to RTO, Koduvally for the purpose of permanent registration and sustained damage to the vehicle and it is the case of the Complainant that the accident was informed to the Opposite Party No.2 and had made arrangements to tow the vehicle from the place of accident to the premises of Opposite Party No.2.  According to Opposite Party No.2 they have made arrangements for repair of the vehicle and vehicle was released to the Complainant after repair on the presumption that the insurance claim will be passed by Opposite Party No.1.  But Opposite Party No.1 rejected the claim stating that the vehicle met with accident after the expiry of temporary registration and before taking the permanent registration.  According to Opposite Party No.1 the vehicle had temporary registration certificate from 03.05.2017 to 01.06.2017 and as per the records it is seen that the vehicle was taken to the Opposite Party No.2 only on 05.06.2017 ie after the expiry of temporary registration.  According to Opposite Party No.2 and as per Ext.B1, for accident repairs the vehicle was produced before Opposite Party No.2 on 05.06.2017 by Mohammed Sherif son-in-law of the Complainant.  There is no evidence to show that accident was actually happened on 30.05.2017 during the period of live registration for the vehicle.  The Complainant has no case that the date mentioned in Ext.B1 ie 05.06.2017 ie the date of production of the vehicle before Opposite Party No.2 is not correct.  When it is asserted by the Complainant that the accident occurred on 30.05.2017 the burden is on the Complainant to prove the date of accident as 30.05.2017.  In this case the Complainant had failed to establish the date of accident which is most significant as far as this case is concerned since the vehicle was having only a temporary permit valid from 03.05.2017 to 01.06.2017.  The vehicle was produced before Opposite Party No.2 only on 05.06.2017 which is not disputed by the Complainant. If it is so, the vehicle is produced before Opposite Party No.2 only after the validity period of the temporary registration of the vehicle.  The Complainant had not produced any documents to establish without doubt that the accident had happened on 30.05.2017 and therefore the insurance claim is preferred at the time and period when the vehicle was having a valid registration.

14.  Considering the entire aspects in detail and on perusing the records and the evidences, the Commission is of the opinion that Point No.1 is not proved by the Complainant on merit and hence Points No.2 and 3 are not considered by the Commission.

15.  In the above circumstances, the Commission is of the opinion that there is no merit in the complaint and hence Consumer Case is to be dismissed.

Hence Consumer Case No.95/2019 is dismissed without costs.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 28^th day of December 2023.

Date of Filing:-27.08.2019.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Muhammed Sherief. T.                            Business.      

Witness for the Opposite Parties:-

OPW1.          Razhil. T. S.                                                   GIC Surveyor.

OPW2.          Sreekanth. C. B.                                          Body shop Manager.

Exhibits for the Complainant:-

A1.                  Copy of Private Car Package Policy for the period of 03.05.2018 to

02.05.2019.           

A2.                  Copy of Registration Certificate.

A3.                  Invoice Summary.                                                  Dt:31.07.2017.

A4.                  Copy of Lawyer Notice.                                        Dt:19.06.2019.

Exhibits for the Opposite Parties:-

B1.                  Copy of Temporary Certificate of Registration.

B2.                  Copy of Repair Order.

B3.                  Copy of Motor Final Survey Report.                 Dt:06.12.2017.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-