BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 29/10/2013

Date of Order : 23/05/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 738/2013

Between

And

O R D E R

A. Rajesh, President.

1. This complaint is preferred by the complainant seeking direction against the opposite parties to pay the insurance claim under non-standard basis, in view of the decision rendered by the Hon'ble Apex Court in Amalendu Sahu Vs. Oriental Insurance Company (2010 SAR Civil 405) together with compensation and costs of the proceedings.

2. The opposite party filed their version stating that on receipt of the insurance claim, they deputed an insurance surveyor to assess the damages of the vehicle and the surveyor assessed the damages at Rs. 75,301.95. It is stated that since at the time of accident, the vehicle is not having valid fitness certificate the opposite parties repudiated the insurance claim. It is further stated that in the absence of spot survey 25% of the claim amount will be deducted as per the terms and conditions of the policy. The opposite parties maintain that there is no deficiency in service on their part in rejecting the insurance claim of the complainant.

3. No oral evidence was adduced by the parties. Exts. A1 to A3 and Exts. B1 to B3 were marked on the side of the complainant and the opposite parties respectively. Heard the learned counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get the insurance claim from the opposite parties as prayed for?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- It is not in dispute that the complainant was holding Ext. B1 insurance policy for his vehicle bearing Registration No. KL-7G7317 for the period from 10-12-2012 to 09-12-2013. It is also not in dispute that during the currency of the policy, the vehicle met with an accident on 17-01-2013. In furtherance of the accident, the complainant duly submitted an insurance claim with the opposite parties and they deputed an insurance surveyor to assess the damages and he assessed the damages at Rs. 75,301.95 as per Ext. B3 survey report. Thereafter, the opposite parties repudiated the insurance claim of the complainant vide Ext. A3 letter dated 10-09-2013 for the following reason :-

“The vehicle has no valid fitness certificate at the material time of accident.”

6. The Hon'ble Supreme Court in Amalendu Sahu Vs. Oriental Insurance Company Ltd. (Supra) held as follows :-

“In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Ltd. V. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below :-

7. The learned counsel for the opposite parties vehemently and vigorously contended that as per the terms of the insurance policy claim amount. 25% will be deducted from the claim amount in the absence of spot survey. The said contention of the opposite parties is not sustainable in law, especially since the same does not find a place in Ext. A3 repudiation letter issued by the opposite parties to the complainant. The Hon'ble National Consumer Disputes Redressal Commission in M/s. Abhilash Jewellery Vs. The New India Assurance Co. Ltd. 2003 (1) CPR 85 NC, held that “Consumer Fora should not allow insurance company to take up plea of violation of terms of policy which had not been a ground for repudiation of claim.” In view of the above, we are only to hold that the complainant is entitled to get 'insurance claim' in line with the pronouncement of the Hon'ble Apex Court in Amalendu Sahu Vs. Oriental Insurance Co. Ltd. (Supra) together with interest @ 12% p.a. from the date of complaint till realisation. It is made clear that the complainant is entitled to get 75% of the amount assessed by the insurance surveyor, since nothing is on record to discard or reject the findings of the insurance surveyor in Ext. B3. It was so held by the Hon'ble Supreme Court in Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. & Anr. II (2010) CPJ 1 SC.

8. Point No. ii. :- The primary grievance of the complainant having been met adequately, we refrain from awarding compensation and costs of the proceedings. Rejected hence.

9. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay to the complainant 75% of the amount assessed by the insurance surveyor as per Ext. B3 together with interest @ 12% p.a. from the date of this complaint till realization.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 23^rd day of May 2014.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

=========