IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Wednesday the 19th day of February, 2014
Filed on 06.06.2011
Present
- Smt. Elizabeth George (President)
- Sri. Xavier Antony (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.190/2011
between
Complainant:- Opposite Party:-
Sri. Rajeshkumar Regional Claim Manager
Chakkalayil Veedu HDFC Ergo General Insurance
Parumala P.O. Co. Ltd., # 4E, 4th Floor
Kadapra Muri K.G. Oxford Business Centre
Thiruvalla Taluk Sreekandath Road
Pathanamthitta Dt. Ravipuram, Kochi – 682 016
(By Adv. C.E. Manoj) (By Adv. P.K. Mathew)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant is the owner of Chevrolet Spark Car bearing registration No. KL-27-A-7891 insured with the opposite party. The said car was used by the complainant for his own purpose. On 27.3.2011 the car met with an accident. At the time of accident the car was driven by one Mr.Saji who was a friend of Mr.Vinod, the driver of the complainant. Due to the accident Saji died and the vehicle was badly damaged. The matter was reported to the opposite party and according to their direction, the complainant entrusted the vehicle to the work shop of M/s. Deedi Motors, Trivandrum for repairing. On 24.5.2011 complainant got a letter from the opposite party stating that they are repudiating the claim of the complainant. Hence complaint is filed.
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There is no defective service on the part of the opposite party. At the time of accident, the car was used for hire and reward (renter car) which is clear violation of policy terms and conditions. It was hired by Mr.Vinod along with his friend and driven by Mr.Saji who died in the accident. As per General Exception No.3(a) of the policy document, the company shall not be liable under the policy in respect of any accidental loss damage and or liability caused sustained or incurred while the vehicle insured is being used otherwise than in accordance with the limitations as to use-hire and reward. So this opposite party has rightly closed the claim as no claim.
3. The points came up for consideration are:-
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get relief and cost?
- Complainant filed proof affidavit and documents produced were marked as Exts.A1 to A5. ExtA1 is the copy of the notice, A2 is the letter dated 24.5.11 issued by the opposite party, A3 is the copy of the FIR, A4 is the copy of the certificate of registration and A5 is the letter dated 27.7.2011 issued by the Servicing Manager, Deedi Motors. The Surveyor of the opposite party was examined as RW1. The opposite party was examined as RW2. Documents produced were marked as Exts.B1 and B2. Exts.B3, B4 and B5 were marked subject to objection. Ext.B1 is the Survey report and B2 is the copy of the policy.
5. It is an admitted fact that the vehicle involved in the accident has valid policy during the time of accident. Ext.B2 is the private car package policy and it is valid from 4.6.2010 to 3.6.2011. The main contention of the opposite party is that since the complainant violated the policy condition, they are not liable for the accidental loss for damage caused to the vehicle. According to the opposite party, the vehicle involved in the accident was used for hire and reward. It was hired by Mr. Vinod along with his friend and driven by Saji who died in the said accident. In order to substantiate this contention, the opposite party produced the statement of the mother of the deceased Saji and his friends. But these statements were not proved by examining them. Hence this document have no evidentiary value. But in Ext.B1 survey report, the surveyor mentioned under the title cause and nature of accident that “ as per the claim form & FIR details it shows that on 27.3.2011 in the afternoon when the insured vehicle reached at the accident spot, accidentally the control over the vehicle got lost and dashed on a tree on the road side causing damages. The matter is informed to the Chengannnur Police Station and they issued FIR. Scrutinizing the damages and considering the nature of incident, I am of the opinion that the damages are tallying with the cause of accident. Since there is doubt prevailing in the case we arranged an investigation and concludes that the insured vehicle used for hire on reward at the time of accident.” While cross examining the RW2 Surveyor, he specifically stated that his findings were the part of his survey. According to the complainant, he has not rented out his car to anybody. He entrusted his car to his driver and it was driven by Saji without the knowledge of the complainant. It is pertinent to note that the complainant failed to bring his driver Vinod to the witness box in order to prove this allegation. Ext.A1 is the legal notice issued to the father of the deceased Saji by the driver of the complainant named Vinod. It was marked without examining Mr. Vinod. If the vehicle was not rented out as alleged by the complainant, then there is no need for issuing a notice demanding the depreciation amount from the father of the deceased. Hence evidence produced by both parties, we are of opinion that at the time of accident, the vehicle was used for hire and reward and hence there is violation of policy conditions. It is the settled position even if there is violation of policy conditions, the insurer is liable to pay the claim on non standard basis. Reliance placed on decision site in 2010 (11) CPJ 9 Supreme Court. So in the interest of justice this Forum is to proceed the case based on the non standard basis. Ext.B2 the survey report is an important document and that cannot be brushed aside. The surveyor assessed the damage to the tune of Rs.1,73,230.05/-.
In the result, the complaint is allowed. The opposite party is directed to pay 75% of the assessed survey amount ie. Rs.1,29,922.87/- (Rupees one lakh twenty nine thousand nine hundred twenty two and eighty seven paise only) with 9% interest from the date of filing the complaint till realization along with the cost of Rs.2000/- (Rupees two thousand only) to the complainant. Failing which the interest is to be paid at 12% per annum on receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and
pronounced in open Forum on this the 19th day of February, 2014.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
Ext.A1 - Copy of the notice
Ext.A2 - Letter dated 24.5.11 issued by the opposite party
Ext.A3 - Copy of the FIR
Ext.A4 - Copy of the certificate of registration
Ext.A5 - Letter dated 27.7.2011 issued by the Servicing Manager, Deedi
Motors
Evidence of the opposite party:-
RW1 - Ambili George (Witness)
RW2 - Vinod. V. (Witness)
Ext.B1 - Survey report
Ext.B2 - Copy of the policy
// True Copy // By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/- Compared by:-
