SMT. RAVI SUSHA  : PRESIDENT

       Complainant filed  this complaint  U/S 35 of the  Consumer Protection Act 2019 seeking to get  an order directing opposite party to pay Rs.1,00,000/- to the complainant towards compensation for the  financial loss and mental agony happened  due to the deficiency in service on the part of OP together with  Rs.10,000/- towards cost of the proceedings of this complaint.

        The facts are that  the complainant is the RC owner of the bus KL51 C 5362 had insured  with OP and  that the  vehicle was met with an accident and it informed to OP.   The complainant spent Rs.27200/- as repairing charges to the vehicle. The complainant  is entitled to insurance benefits from the OP, however the OP has denied her claim.  It is submitted that there was deficiency in service and unfair trade practice on the side of OP, in considering her claim application submitting before OP.  According to complainant she had incurred Rs.27200/- towards replacing  of parts and repair expense to the insured vehicle.  So she is eligible to get the said amount towards policy benefit. Hence the complaint.

        After receiving notice OP entered appearance  and filed written version.  OP admitted policy in dispute and also accident of the vehicle, it is contended that premium was calculated on the basis of carrying  of passengers.  RC relating to the insured vehicle shows the passengers capacity permitted to be carried in the insured vehicle as 40(33+7).  It is submitted that instead of paying premium for 40 passengers, the complainant paid premium for 34 passengers only with of deficit of 6 passengers.  Under the Insurance Act, this amounts to under  insurance and in order to entertain a claim under such circumstance, it is the duty of the insured to make good the deficit of last three premiums or to suffer 25% of the claim amount. The amount claimed  Rs.27100/-  and therefore 25% of the  said sum, coming to Rs.6800/- is liable to deducted from the assessed net loss. The complainant declined to pay the said deficit sum.  Hence the OP treated that the complainant is not in pursuing the claim. The net loss caused to the complainant is assessed by the  surveyor  is  Rs.21,100/-.  The net loss reimbursable is  assessed to Rs.21,100/- subject to payment of the deficit sum in premium.  By paying the deficit in premium, the policy can be made good for the remaining period of its validity by resolving the issue of under insurance.  In such circumstance, the reimbursable amount will be Rs.14,300/-.  There was no deficiency in service on the part of  OP.  Hence prayed for the dismissal of the complaint.

     At the evidence time, complainant  has filed her chief affidavit and documents.  Examined as PW1. Documents were marked as Exts.A1 to A6. PW1 was cross examined by OP. On the side of  OP Exts.B1 to B4 were marked.  The Surveyor and  Loss Assessor  who prepared Ext.B4  was examined as DW1.  DW1 was cross examined by complainant.

     The case of complainant is that there was deficiency in service and unfair trade practice on the side of OP, in considering her claim application submitting before OP.  According to complainant she had incurred Rs.27200/- towards replacing  of parts and repair expense to the insured vehicle.  So she is eligible to get the said amount towards policy benefit.

   Though OP admitted policy in dispute and also accident of the vehicle, it is contended that premium was calculated on the basis of carrying  of passengers.  RC relating to the insured vehicle shows the passengers capacity permitted to be carried in the insured vehicle as 40(33+7).  It is submitted that instead of paying premium for 40 passengers, the complainant paid premium for 34 passengers only with of deficit of 6 passengers.  Under the Insurance Act, this amounts to under  insurance and in order to entertain a claim under such circumstance, it is the duty of the insured to make good the deficit of last three premiums or to suffer 25% of the claim amount.  The complainant declined to pay the said deficit sum.  Hence the OP treated that the complainant is not in pursuing the claim.

    Here policy is marked as Ext.A1(B1).  In Ext.A1 seating capacity of the vehicle including driver is shown as 31+3.  Gross premium paid is Rs.52147/-.  In Ext.B3 proposal form, number of passengers is stated as 31+3=34.  In the certificate of Registration of the vehicle, seating capacity is 33+7=40.

      In the proposal form the seating capacity stated by complainant  is 31+3=34 and on the  basis of the said  proposal form, OP has issued policy after receiving premium.  In the insurance certificate no such condition as raised by the OP in this case is stipulated. PW1 also deposed at the time  of taking policy, no such condition is informed to her. The Insurance Surveyor and Loss Assessor also not mentioned such a fact  in his report(Ext.B4).  The surveyor reported that the cause of loss as per claim form appears to be  genuine.  So raising of  defect such as under insurance at the time of submitting claim application  is not fare.  So our view is that the complainant is entitled to get the eligible claim amount.

     The next point to be  decided  is what is the eligible  claim amount entitled to the complainant?

   Ext.B4 is the survey report, prepared by the Insurance Surveyor and Loss Assessor.  The net amount assessed by the surveyor is Rs.21,100/-.  The surveyor assessed the total parts amount as 15,600/- instead of  Rs.17200/-.  The bill supplied  by the workshop shows that the total amount  received from the complainant for replacing the parts is Rs.17200/- and labour charge is Rs.10,000/-.  The original bills are produced here.  So  the complainant is entitled to get Rs.27,200/- from  OP towards claim amount.

     On perusal of available documents, we can reveal that as per R.C of the vehicle and permit seating capacity is 33+7 ie 40 person.  As per insurance policy and permit it is observed that seating capacity claimed by the complainant is 31+3 persons.  The premium paid was also for 34 persons.

    In the result complaint is allowed in part.  Opposite party is  directed to  pay Rs.27200/- towards the claim amount to the complainant.  Opposite party is also directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards cost of the proceedings of this complaint.  Opposite party  shall comply the awarded amount within one month from the date of receipt of  certified copy of this order.  Failing which complainant is entitled to  get interest@9% per annum to the awarded amount Rs.27,200/- +Rs. 10,000/- from the date of order till realization by filing Execution Application against opposite party  as per the provisions in Consumer Protection Act 2019.

Exts:

A1- Insurance policy

A2-Copy of RC

A3-G.D register from Kuthuparamba police

A4&A5-reply issued by OP

A6-complainant issued a letter to OP

B1-copy of policy

B2-Proposal form

B3-copy of the transfer policy

B4-survey report

PW1-Anandavalli.K-complainant

DW1-Sarath.K- witness of OP.

  Sd/                                                 Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva                                                                          

                                                                /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR