IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of April, 2011
Filed on 17.09.10
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member) in
C.C.No.220/10
between
Complainant:- Opposite Party:-
Smt.K.V.Anna, The orental Insurance Company Ltd.,
W/o Chacko Jose, Rep. by its Branch Manager,
Yogiya Veedu, Branch Office, Opp. Seematti Theatre,
Muhamma.P.O., Cherthala, Near Y.M.C.A Bridge,
Alappuzha District. Alappuzha.
(By Adv.James Chacko) (By Adv.Elizabath George)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The complainant case is as follows:- The complainant is the registered owner of the Tata Indica Car bearing No.KL-4/S2599. The said vehicle was being used as a tourist taxi to eke out a living. The complainant had availed an insurance policy from the opposite party for an amount of Rs.180000/-(Rupees one lac eighty thousand only) for the said car. On 2nd October 2010, when the car was coming from Piravam to Alappuzha, the car met with an accident hitting against the Malakulam Bridge near Piravam. In the accident the passengers therein escaped without being hurt, but the car sustained 'total loss'. The factum of accident was informed to the Piravam Police Station. The opposite party was also promptly informed. The vehicle was taken to Concord Motors for repair. In line with opposite parties direction estimated Rs.3l8000/-(Rupees three lacs eighteen thousand only) against repair of the vehicle. The complainant lodged a claim for the policy amount with the opposite party. The complainant called on the opposite party's office on several occasions. The opposite party was reluctant to settle the amount with the complainant. The complainant caused to send a legal notice dated 25th June 2010 to the opposite party demanding the assured amount. The opposite party still failed to perform its legal obligation of settling the claim. There is deficiency of service on the part of the opposite party. The complainant sustained inexplicable mental agony and loss. Got aggrieved on this, the complainant approached this Forum seeking compensation and other relief.
1. Notice was sent. The opposite party appeared and filed version. The contention of the opposite party is that the complainant is a mere owner of the car. The car was being used as tourist taxi on hiring the service of another person as driver. As such, the said vehicle was used for commercial purpose, and hence the complainant is not a consumer, the opposite party avers. The opposite party hasn't directed the complainant to get the damage of the vehicle assessed by Concord Motors. Subsequent to the accident, the surveyor of the opposite party inspected the vehicle and assessed the liability of the opposite party on cash loss basis settlement as Rs.80000/-(Rupees eighty thousand only). The complainant has also agreed to the said settlement. With the result, the opposite party sent several registered letters to the complainant seeking to submit the consent letter to that effect. Notwithstanding repeated demands by the opposite party, the complainant backed out from the said settlement. The complainant is not entitled to claim the insurance benefits on the basis of total loss. When claiming total loss the complainant had to surrender the damaged vehicle immediately to the opposite party. The accident took place on 2nd October 2010. The vehicle is still in the custody of the complainant. The complainant is, as such estopped from claiming insurance benefit under 'total loss' at so a belated stage. The complainant has never approached the opposite party for the settlement of the claim. The reliefs sought are not appropriate to be allowed. The complaint is only to be dismissed with cost, the opposite party affirms.
2. The complainant evidence consists of the testimony of the complainant’s son Mr.Aneesh Jose as PW1, and the documents Exbts Al to A9 were marked. Exbt Al is the copy of the policy certificate, A2 is the copy of the legal notice issued to the opposite party, A3 is the copy of the GD entry, A4 is the copy of the RC Book, A5 is the copy of driving license of the driver, A6 is the estimate report prepared by Concord Motors, A7 is the copy of the surveyor report, A8 is the permit of the car, A9 is the photos of the damaged car. On the side of the opposite party, its divisional manager was examined as RW1, and the documents Exbts B1 to B3 were marked. Exbt B1 is the copy of the letter sent to the complainant, B2 is the copy of the refused letter and B3 is the survey report.
3. Keeping in mind the contentions of the parties, the questions come up before us for consideration are:-
(a) Whether the complainant is entitled to the insured amount?
(b) Compensation and cost?
4. The factum of accident or the policy is not denied or disputed. One of the contentions appears to have been taken by the opposite party is that the complainant is not a consumer. According to the opposite party, though the complainant is the registered owner of the vehicle in question, the same was used as a taxi being driven by a third person, and what is more the complainant has no case that the same was her livelihood. At the first blush itself, the said contention of the opposite party appears far-fetched and fanciful. Concededly, the complainant availed a policy from the opposite party for her vehicle. The subject matter of the said policy is the material vehicle. In the wake of this, we hold that whether the car was being used as a taxi or a third person was being engaged as a driver will not carry off the consumer status from the complainant. By the way, the momentous contention of the opposite party is that the complainant had agreed to settle the claim for Rs.80000/-(Rupees eighty thousand only), and afterward the complainant backed out from the agreement. That apart, the complainant has so far not surrendered the vehicle to the opposite party. This disentitles the complainant from claiming the policy amount on the basis of total loss, the opposite party argues. We went through the materials available on record. We meticulously perused the evidences let in by both the parties. Even going by Exbts Bl to B3, it appears that the opposite party has not brought on record any material to show before us that the complainant had concurred to settle the claim for an amount of Rs.80000/-(Rupees eighty thousand only). Similarly, the opposite party has no case that there is some outrageous violation of the terms and conditions of the policy. Seemingly, a surveyor report has been filed by the opposite party. But the opposite party did not make it a point to bring the concerned surveyor to the box, not even the affidavit of the surveyor was got filed which render the said report absolutely inconsequential. The complainant case, in the light of the above deliberations stands satisfactorily substantiated. Concededly, the opposite party inspected the vehicle and insured value was declared at Rs.1,80,000/ -(Rupees one lac eighty thousand only), and insured paid premium on this amount. In this context, we have no hesitation to hold that the opposite party is bound by the value put by it for the vehicle while issuing the insurance policy certificate to the complainant. However, we take notice that the vehicle had been got insured on 15th May 2009, and the accident took place on 2nd October 2009 viz. five months thereafter the policy. Obviously, the value of the vehicle must have been depreciated, no less than to that extent. To this point the complainant has produced a decision delivered by the Hon'ble Apex Court viz. 2008ACJ 2621, which is squarely germane to the present context. Bearing in mind the said aspect those five months had elapsed following the issuance of policy, we are of the view that the value of the vehicle is to be diminished by Rs.l0000/-(Rupees ten thousand only).
We, in view of the facts and findings herein above direct the opposite party to pay a sum of Rs.170000/-(Rupees one lac seventy thousand only)to the complainant with 9% interest per annum from the date of the complainant claiming the policy amount with the opposite party till its recovery. The opposite party is further directed to pay a compensation of Rs.20000/-(Rupees twenty thousand only) to the complainant and a cost of Rs.5000/-(Rupees five thousand only) which will serve the purpose. The opposite party shall comply with the order within 30 days of receipt of this order.
In the result the complaint is allowed accordingly.
Pronounced in open Forum on this the 30th day of April, 2011.
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
PW1 - Aneesh Jose (Witness)
Ext. A1 - The copy of the policy certificate
Ext. A2 - The copy of the legal notice issued to the opposite party and postal acknowledgment
Ext. A3 - The copy of the GD entry
Ext. A4 - The copy of the RC Book
Ext. A5 - The copy of driving license of the driver
Ext. A6 - The estimate report prepared by Concord Motors
Ext. A7 - The copy of the surveyor report
Ext. A8 - The copy of the permit of the car
Ext. A9 - The photos of the damaged car
Evidence of the opposite party:-
RW1 - Punnoose.K.K (Witness)
Ext. B1 - The copy of the letter sent to the complainant
Ext. B2 - The copy of the refused letter dated, 06.09.2010
Ext. B3 - The copy of the survey report
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
