DATE OF FILING : 29.11.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 28th day of February, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.SHEELA JACOB MEMBER
SMT.BINDU SOMAN MEMBER
C.C No.233/2010
Between
Complainant : Shinumon.P.C, S/o Chandran,
Perayil House,
Chakkupallom P.O,
6th Mile,
Idukki District.
(By Adv: Gem Korason)
And
Opposite Party : The Manager,
National Insurance Company Limited,
Ernakulam Branch No.1(Code No.570104),
P.B No.1797, South Junction,
Chittoor Road,
Cochin – 682 016.
(By Adv: Thomas Sebastian)
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant availed an insurance policy from the opposite party for his Maruti Alto car bearing Reg.No.KL-37/4288 for the period from 29.04.2008 to 28.04.2009. On 30.10.2008, the complainant with his 2 friends and the driver of the vehicle one Mr.Anish were travelling in the vehicle from Kumily to his shop, at 11.30 p.m the vehicle met with an accident at 3rd mile near the church. The vehicle was fully damaged due to the accident. An estimate was prepared by M/s.Popular Vehicles for the repair of the vehicle and the repair charges including labour comes around Rs.2,39,780/-. The complainant filed a claim before the opposite party for the repair of the vehicle. But the opposite party never acted upon the claim filed by the complainant. The vehicle was kept ideal for the last 2 years. So the complainant is using taxi for his day-today purchase for his shop. So this petition is filed for getting the insurance amount of the vehicle and also compensation.
2. As per the written version filed by the opposite party, the complainant's vehicle was insured with the opposite party as Policy No.4106178 for the period from 29.04.2008 to 28.04.2009 in the name of Shinumon.P.C. The complainant was not using the vehicle for his business purpose, but was using for hire or reward. The insured vehicle was driven by the complainant himself at the time of accident. A surveyor was deputed to assess the damages caused to the vehicle and an investigator was deputed to investigate the same. The investigator found that the vehicle bearing Reg.No.KL-37/4288 was driven by the complainant (insured) at the time of accident and he had no valid driving licence at the time of accident. In order to get the claim from the opposite party, the complainant has purposely suppressed the material fact that he was the driver of the insured vehicle at the time of accident. As per the policy condition, the vehicle can be used only for domestic purpose, social and pleasure purposes and for the insured's business. Further the investigator found that the vehicle was being used for hire/reward which is also a clear violation of the policy condition. Thus the complainant had wilfully committed breach of terms and conditions of the policy by driving the vehicle by him without having valid driving licence at the time of accident and the vehicle was being used for hire/reward. Since the complainant has violated the conditions of the policy, the opposite party is not liable to indemnify the damages caused to the insured vehicle. So the opposite party repudiated the claim and the matter was intimated to the complainant by a letter dated 16.04.2010. The loss or damages caused to the vehicle can be assessed on Repair Basis, on Total Loss Basis and on Salvage Loss Basis. The surveyor assessed the minimum liability of the insurer on repair basis is Rs.1,77,291.00. The insured's declared value(IDV) of the insured vehicle is Rs.2,17,133/-. The insured's declared value of the vehicle will be deemed to be the sum insured for the purpose of the policy. Therefore the maximum liability of the insurer is upto sum insured Rs.2,17,133/-. As per the policy condition, the insured vehicle will be treated as a constructive total loss if the aggregate cost of retrieval or repair of the vehicle exceed 75% of the insured's declared value of the vehicle. Since the liability of the insurer exceeds 75% of the IDV, the surveyor opted to assess the damage to the vehicle on total loss basis and on salvage loss basis. The loss assessed on total loss basis is Rs.1,46,633/- and on salvage loss basis is Rs.1,41,633/-. As per the policy condition the opposite party has liberty to opt any of those types of settlement. As the salvage loss basis is more beneficial and reasonable to indemnify the loss, the surveyor recommended to settle the claim on salvage loss basis settlement, subject to admissibility of claim. So as per the policy, the opposite party is liable to pay Rs.1,41,633/- on salvage loss basis if the claim is admissible or payable. Therefore if the Forum finds that the opposite party is liable to indemnify the complainant against the damages to the vehicle, then the opposite party is liable to pay only Rs.1,41,633/- as assessed by the surveyor according to the conditions of the policy.
3. The point for consideration is whether there was any deficiency in service from the part of the opposite party, and if so, for what relief the complainant is entitled to ?
4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P8 marked on the side of the complainant and the oral testimony of DWs 1 to 5 and Exts.R1 to R7 marked on the side of the opposite party.
5. The POINT :- The complainant deposed as PW1. The copy of the RC Book of the vehicle is marked as Ext.P1. The copy of the insurance policy of the vehicle is marked as Ext.P2. As per PW1, on 30.10.2008 he with his two friends and the driver of the vehicle one Mr.Aneesh were travelling the vehicle from Kumily to his shop, the vehicle met with an accident and the Kumily police has registered a crime as Crime No.361/08, copy of the FIR is marked as Ext.P3. A site mahazar was also prepared by the police and copy of the same is marked as Ext.P4. As per Ext.P3 FIR, the driver of the vehicle is Mr. Aneesh and the vehicle was fully damaged. An estimate was prepared by M/s.Popular Vehicles and Services for the repair of the vehicle ie, for a total amount of Rs.2,39,780/-, copy of the estimate of repairs is marked as Ext.P5(series). On cross examination of the learned counsel for the opposite party, PW1 deposed that he is conducting a watch shop and the said Aneesh is the permanent driver of the vehicle and having a salary of Rs.300/- per day. Santhosh and Robin were accompanied by the complainant at the time of accident and the complainant is not having valid driving licence. The said Aneesh examined as PW2. Copy of the driving licence of PW2 is marked as Ext.P6. A certificate issued by the Village Officer, Chakkupallom was produced to show that the said Aneesh is having another name as K.C.Varghese, which is marked as Ext.P7. PW2 deposed that he was the driver of the complainant. The accident was caused because PW2 turned down the vehicle to the right side while the control of the vehicle was lost. He was convicted in Crime No.361/08 before the Judicial First Class Magistrate Court II, Peerumedu under Section 279 and 337 because he was driving the vehicle at the time of accident. DW1 who is the Branch Manager of the opposite party has produced the policy with conditions, which is marked as Ext.R1(series). The investigation report dated 13.05.2009 is marked as Ext.R2 and another investigation report dated 20.05.2009 is marked as Ext.R3. As per the report of the investigator dated 13.05.2009, the vehicle was on operation as a taxi and said to have travelled a distance of about 29000 Km within a period of five months. The vehicle was taken delivery only on 16.05.2008 and it has met with an accident on 30.10.2008. It had been driven for 5 ½ months and the insured who runs an establishment could not claim to have driven such a long distance for his personal needs. As per Ext.R3 report, the insured vehicle was driven by the insured himself and he was replaced by Aneesh as Mr.Shinumon because he has not acquired even a learner's licence. The insured was misrepresenting facts to get the compensation and planned his friend Aneesh as the driver. But it is doubtful whether Aneesh also was in the vehicle. The survey report is marked as Ext.R4. DW2 who is the investigator who conducted investigation and he has recorded statements of one Mr.Subash and Mr.Robin who were also accompanied with the complainant at the time of accident. The statement of Subash is marked as Ext.R6 and that of Robin is marked as Ext.R7. As per Ext.R6 statement the complainant is having a Maruti Alto car which is driven by the complainant himself. At the time of accident the complainant was driving the vehicle and Subash was travelling in the back seat of the vehicle. As per Ext.R7 statement given by Robin, the vehicle was driven by the complainant at the time of accident. DW3 who is an insurance surveyor who was appointed by the insurance company to survey the vehicle. The total loss was assessed as per the policy conditions and the vehicle is having approved parts which amounts to Rs.1,63,166/-. DW4 is one Mr.Subash who also accompanied with the complainant at the time of accident. DW4 deposed that the vehicle was driven by Aneesh at the time of accident. The statement was given to the investigator only after 7 months of the accident. But a statement was given to the police on the very next day of the accident, copy of the same is marked as Ext.P8. As per Ext.P8 the vehicle was driven by One Aneesh at the time of accident. Another person who travelled in the vehicle is one Mr.Robin, who is deposed as DW5. As per DW5, the statement given to the surveyor was not correct and the statement given to the police is correct. The police has taken a statement on the very next day of the accident and it is stated to the police that the vehicle was driven by Aneesh at the time of accident. The statement given to the surveyor was after 7 months from the date of the accident.
6. As per the complainant, the vehicle was driven by his driver Aneesh, it met with an accident and total loss has been sustained to the vehicle. The approved parts of the vehicle itself comes around Rs.1,73,920/- and the estimate prepared by M/s.Popular Vehicles shows that the repair of the vehicle cost an amount of Rs.2,39,780/- including labour charges. As per the opposite party, they have appointed an investigator to investigate about the vehicle and as per the investigation report, the vehicle was using for taxi purpose because it had already covered a distance of about 29000 Km within 5 months of the delivery. The insured who runs an establishment could not claim to have driven such a long distance for his personal needs. As per Ext.R3 report the driver of the vehicle was the complainant himself and he is not having a valid driving licence at the time of accident. The investigator recorded the statement of one Mr.Subash and one Mr.Robin who were also accompanied by the complainant at the time of accident and as per their statement given to the surveyor, the vehicle was driven by the complainant himself, who is not having any valid driving licence. So the opposite party is not liable to indemnify the insured as per the policy conditions because there is a violation of the policy condition by the insured. But the deposition of the said Robin, DW5 states that the statement given to the investigator (DW2) was only after 7 months and the same is given as per the direction of the investigator. But DW5 was given a statement before the police on the very next day and in that statement the person who was driven the vehicle was Aneesh. As per DW4, he was also a person who given statement to the investigator. But as per the direction of the investigator he was given a statement and the statement was not correct, that statement was given only after 7 months of the accident. But he had given a statement to the police on the very next day of the accident which is Ext.P8, in which the person who was driven the vehicle was Aneesh. So we think that the investigation report is prepared only after 7 months of the accident and the police has prepared an FIR on the very next day of the accident. The statements were recorded on the very next day by the police and in that Ext.P8 statement the person who was driven the vehicle was Aneesh and he was convicted under Section 279 and 337 by the Judicial First Class Magistrate Court II, Peerumedu. So the report of the investigator is not at all believable. Ext.R4 is the survey report prepared by the independent surveyor of the opposite party and as per the survey report, the assessment was done on repair basis, on total loss basis and on salvage loss basis and the amount calculated as per on repair basis is Rs.1,77,291/-. So we think that the opposite party's claim that the vehicle was given for taxi at the time of accident is not at all sustainable because the complainant himself was also in the vehicle. So the contention of the opposite party that the complainant who is conducting a watch shop at Kumily for repair, sales and services, who was driven the vehicle and it was used for taxi is not at all believable. The other contention is that the complainant was driven the vehicle is also not believable because the statement of DW4 and DW5 given to the police are also supported the fact that the vehicle was driven by one Mr.Aneesh and the investigation report filed by the opposite party is prepared after 7 months. So the report of DW2 is also not at all believable. It is admitted by the opposite party that the vehicle was met with an accident and it occurred heavy loss. So the repudiation of the claim is a gross deficiency from the part of the opposite party. There is no evidence to show that the complainant sustained heavy loss because the vehicle was kept idle for 2 years and he used another vehicle for his business purpose. So we think that the opposite party must disburse an amount of Rs.1,77,291/- to the complainant as per the report filed by the opposite party's surveyor, which is Ext.R4.
Hence the petition allowed. The opposite party is directed to pay Rs.1,77,291/- to the complainant as per Ext.R4 survey report on repair basis with 9% interest from the date of this petition and Rs.1,500/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.
Pronounced in the Open Forum on this the 28th day of February, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/-
SMT. SHEELA JACOB(MEMBER)
Sd/-
SMT. BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - P.C. Shinumon
PW2 - K.C. Varghese
On the side of Opposite Party :
DW1 - G.Suresh
DW2 - V.U. Chandrasekharan Pillai
DW3 - B.I. Anshad
DW4 - Subash
DW5 - K.K. Robin
Exhibits:
On the side of Complainant:
Ext.P1 - Photocopy of R.C Book of the vehicle
Ext.P2 - Photocopy of Insurance Policy of the vehicle
Ext.P3 - Photocopy of FIR prepared by the Kumily police in Crime No.361/08
Ext.P4 - Photocopy of Site Mahazar prepared by Sri.P.K.Vijayan, S.I of Police, Kumily
Ext.P5 (a) - Photocopy of Estimate of Repairs prepared by M/s.Popular Vehicles & Services, Elamakkara, Cochin
Ext.P5(b) - Photocopy of Estimate for Approved Parts prepared by M/s.Popular Vehicles & Services, Elamakkara, Cochin
Ext.P6 - Photocopy of Driving Licence of PW2(K.C.Varghese)
Ext.P7 - Certificate dated 8.02.2011 issued by the Village Officer, Chakkupallom
Ext.P8 - Photocopy of Statement given to the Kumily police by DW4
On the side of Opposite Party :
Ext.R1(series) - Photocopy of Policy with conditions and Affidavit filed by DW1
Ext.R2 - Investigation Report dated 13.05.2009
Ext.R3 - Investigation Report dated 20.05.2009
Ext.R4 - Survey Report
Ext.R5 - Repudiation letter dated 16.04.2010 issued by the opposite party
Ext.R6 - Statement of DW4(Subash) dated 18.05.2009
Ext.R7 - Statement of DW5(K.K.Robin) dated 18.05.2009
