SMT. RAVI SUSHA: PRESIDENT

     Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 for getting an order directing opposite party No.2 to deliver his vehicle bearing Regn. No. KL-78-3566 to the complainant in a road worthy condition free from any defects and also relates to the getting of insurable benefit sought by the complainant in respect of the vehicle in dispute by opposite parties.  Further to pay Rs.1,00,000/- towards compensation for the mental agony happened to the complainant alleging deficiency in service on the part of opposite parties.

The facts, in brief, are that the complainant is at the registered owner of the motor vehicle –Hero Honda DIO-STD bearing Registration No. KL-78-3566.  The said vehicle is valid insured with OP No.1 having policy No.22052192375 0007595 for a period from 27/02/2019 to 26/02/2024.    The OP No.2 is the authorized dealer cum service centre of Hero Honda vehicles.    Further submitted that the subject vehicle met with an accident on 13/11/2019 and on the same day he entrusted the vehicle to OP No.2 and also given all necessary papers to OPNo.2, as per their assurance to proceed necessary steps for getting the insurance claim from OP No.1.  But the Insurance Company repudiated the claim because of the complainant had violated the policy conditions No.1 and 8 ie as per claim form and intimation the date of accident mentioned as on 12/01/2020  but as per garage records the vehicle entered the garage of OP No.2 on 13/11/2019.  There is 37 days delay in giving intimation to the insurance company.    In fact on 13/11/2019 the complainant entrusted the vehicle for repair to OP No.2 and on the same day itself he had signed all the papers for getting the insurance claim.  There is no delay on the part of complainant.  Stating all these facts the complainant caused to issue a registered lawyer notice to both OPs on 12/02/2021 calling up on them to pay compensation and also to deliver the vehicle in road worthy condition after processing the insurance claim of Rs.55,853/- being the repair chares.  The OP 2 acknowledged the notice on 15/02/2021 and sent a reply notice through advocate.  All the averments contained in the reply notice are false and hence denied.  Even though the OP No.1 accepted the notice they have not sent any reply.  Hence complaint. 

            OP No.1 in its written version, pleaded that it is submitted that as per the documents and the investigation in the matter, the complainant had violated the policy conditions No.1 as per claim form and intimation the date of accident mentioned as on 12/01/2020 but as per garage records the vehicle entered the garage of OP No.2 on 13/11/2019.  There is 37 days delay in giving intimation to the insurance company.  Moreover on investigation, the damage appear in the vehicle is mismatching with the accident and it does appear to be old in nature.  This OP had sent a letter to complainant on 10/06/2020, to give satisfactory explanation to the above points.  Since the complainant failed to give satisfactory explanation, so the claim of complainant was rejected. The claim of the complainant was repudiated by this OP due to breach of Principle of Utmost Good Faith & Condition No.1 and 8 of the Motor Insurance Policy.  There is no deficiency in service on the part of this OP and not liable to pay compensation to the complainant.  Hence, prayed for the dismissal of the complaint against OP No.1.

            OP No.2 in its written version stated that on 13/11/2019 vehicle –Hero Honda DIO-STD bearing Registration No. KL-78-3566 met with an accident and the same was entrusted with the OP NO.2 is true. The further allegations in the complaint that the complainant had given all the instruction to the OP No.2 on 13/11/2019 for processing the insurance claim in connection with the damages and also signed in all papers required by OP 2 as well as filed executive No.1 etc. and OP 2 had assured that the vehicle will be repaired within one month and will get the insurance claim from OP No.1 without any delay on cashless claim basis etc. are denied.  The OP No.2 had not drafted any letter as alleged by the complainant for getting insurance claim and no information or knowledge about the communication if any between complainant and OP No.1. In response to the lawyer notice issued to OPNo.2 by the complainant dated 03/02/2021, the OP No.2 had given proper and genuine reply through his counsel on 27/03/2021 stating all the facts.  The claim made by the complainant for damages etc. is not legally sustainable.  On 13/11/2019, the complainant had put the vehicle to the OP No.2 with the request to do the necessary repair and services. The OP No.2 had advised the complainant to contact the concerned insurance company with whom the vehicle was insured and also asked to bring the RC and necessary documents.  The OP No.2 further informed to make the payment of 50% of the total repairing charges so as to start repairing work.  But the complainant or any of his representatives had never contacted the OP 2.  No amount was paid so far.  Moreover the insurance claim with respect to their vehicle as to be done by the complainant itself not by OP No.2.  The OP No.2 further says that, there is no tie up between OP No.2 and OP No.1 as mentioned in the complaint.  No such cashless service scheme is also there.  OP No.2 further says that, he had contacted the complainant, several times on various occasions, with the demand to pay the amount to start the repairing work.  The OP No.2 advised the complainant to remove his vehicle, since he has not paid the amount to start the repairing work and the vehicle occupies a considerable place of OP No.2’s shop room and it causes in convenience to the OP No.2.  The OP No.2 further submits that the vehicle of complainant occupied 6 sq. feet areas in OP No.2’s service station.  On calculation of the rent of the building the vehicle belongs to the complainant had occupied 6 sq. feet area, for which Rs.60/- per day is required towards rent, which comes to the tune of Rs.30,000/- as of now.  The complainant is liable to pay the said amount to the OP No.2.  Hence, prayed for dismissal of complaint.

            The parties led evidence.  Complainant has filed his proof affidavit and document.  He was examined as Pw1 and Ext.A1 to A11 were marked.  OP No.1 submitted two documents.  Ext.B1 and B2.  The manager of OP2 filed his chief affidavit and has been examined as Dw1.

            After that the learned counsel of complainant and OPs made oral argument.  The learned counsel of OP No.1 also submitted written argument note.

            The undisputed facts of the present case are that, the complainant is the owner of the vehicle.  Hero Honda bearing Reg. No. KL-78-3566, purchased from OP No.2 and had got insured the vehicle with OP No.1 having policy No.22052 192 375 0007595 for a period from 27/02/2019 to 26/02/2024

            Complainant alleged that the subject vehicle met with an accident on 13/11/2019 and on the same day he entrusted the vehicle to OP No.2 and also given all necessary papers to OPNo.2, as per their assurance to proceed necessary steps for getting the insurance claim from OP No.1.  But the Insurance Company repudiated the claim that the complainant had violated the policy conditions No.1 and 8 ie as per claim form and intimation, the date of accident mentioned as on 12/01/2020  but as per garage records the vehicle entered the garage of OP No.2 on 13/11/2019.  There is 37 days delay in giving intimation to the insurance company.  Moreover on investigation, the damage appear in the vehicle is mismatching with the accident as alleged by the complainant.  OP No.1 contended that on 10/06/2020 they had sent a letter to complainant to give satisfactory explanation to the above points.  Since the complainant failed to give satisfactory explanation, the claim of complainant was rejected.  With regard OP No.1, the question for consideration before us is whether the delay in giving information and the submitting claim application by the complainant to the insurance company with respect to the accident by the vehicle is significant?

            Undisputed, there was a delay of about 37 days in informing the incident to the Insurance Company. 

            The leaned counsel of OP No.1 argued that as per the condition No. of the Insurance policy, the complainant was required to inform the Insurance Company immediately after the incident of accident without any delay and thus the complainant violated the condition No. 1 of  the insurance policy and for that reason, the insurance company cannot be made liable to pay claim or compensation to the complainant.

            Ext. B2 is the policy schedule with terms and conditions submitted by OP NO.1.  The condition No.1 of the Insurance policy clearly stipulated that a notice shall be given to the insurance company in writing immediately upon occurrence of any accident or loss or damage and in the event of any claim and there after the insured shall give all such information and assistance as the company shall require.  Condition No.1 of the Insurance policy is reproduced as “notice shall be given in writing to the company immediately up on the occurrence of any accidental or loss or damage and in the event  of any claim and there after the insured shall give all such information and assistance as the company shall require.  Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured.  Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy.  In case of theft or criminal act which may be the subject of claim under this policy the insured shall give immediate notice t the police and co-operate with the company in securing the conviction of the offender.”

            In the instant case, the learned counsel of OP No.1 further submitted that OP1 had sent Ext.B1 letter dated 18/02/2020 to complainant informing, to send clarification about the delay of 38 days in intimating the incident.  It is seen that Ext.A5 is the reply to Ext.B1.  In Ext.A5 we can see that the date of accident shown as 12/01/2020.  It is further seen that date of entrusting the vehicle to OP No.2 service centre was “on the date of accident” ie 12/01/2020.  But as contended by OP No.1, in Ext. A2 the date of entrusting the vehicle to OP No.2 was on 13/11/2019.  Further in the version of OP No.2, it is stated that the vehicle was entrusted to them on the date of accident itself and the date of accident was on 13/11/2019.

            It is a settled position that the terms of a contract of insurance have to be strictly contended and no exception can be made on the ground of equity.

            Hence from the facts of this case, we are of the view that repudiation of the claim of the complainant by OP No.1 is justifiable and there is no deficiency in service on the part of OP NO.1 Insurance Company.

            The other point to be considered is whether there is deficiency in service on the part of OP No.2.  Complainant alleged that the accident of the vehicle was informed to OP No.2 on the same day of accident itself ie. on 13/11/2019 and as per the assurance of OP NO.2, to inform the matter to OP No.1 and agreed to proceed for insurance claim on cashless basis.  Complainant had entrusted the vehicle and all the papers required by the Insurance Company and signed in all papers.  Complainant further alleged that, he had contacted OP NO.2 immediately after receiving Ext.B1 from OP No.1.  Then OP No.2 instructed to send Ext.A5 letter to OP No.1 and also instructed the date of accident mentioned shall be 12/01/2020.  Hence in Ext.A5 reply letter, the date of accident was shown as 12/014/2020 instead of 13/11/2019. According to complainant he had taken the Insurance policy as per the direction of OP No.2 and also the claim form with regard to the accident was filled and sent it to OP No.1 was by the staff of OP NO.2,  in which the date of accident mentioned as 12/01/2020.  Further OP No.2 had assured that they will inform OP No.1 about the accident and all necessary papers.  Complainant alleged that if any lapses happened and there by violated the policy condition, it is from the side of OP No.2.  The delay was from the side of OP No.2.

            The above said allegations are totally denied by OP No.2.  OP No.2 though agreed the date of accident of the vehicle and entrusted it to their garage on 13/11/2019, the further allegations are denied.  According to OP No.2 they never gave assurance to the complainant and given instruction that they would make arrangement and vehicle will get insurance claim from OP No.1 without any delay on cashless claim basis etc.  Further denied the allegation after getting Ext.B1 letters, they drafted a letter in a paper for the complainant and directed the complainant to sent it to OPNo.1 OP No.2 contended that, there is no tie up between OP 2 ad OP No.1, and all the necessary papers and claim form were filled by complainant himself and sent to OP NO.1.  OP NO.2 further stated that since complainant had not make any payment of 50% of the total repairing charges, as demanded many time, the repairing work has not been done.

            Dw1, the owner of OP NO.2, was subjected to cross-examination by the learned counsel of complainant.  During cross-examination Dw1 admitted that the complainant purchased the subject vehicle through his centre.  Further Ext.A3 the Reliance two wheeler package policy was shown to the witness, and asked about the mentioning of Peeyem Honda as an Intermediary.  Dw1 has answered that the name of   his centre is Peeyem Honda, Peravur and also the phone number of Intermediary as shown in Ext.A3 is not known to him.  The said statement of Dw1 cannot be believed.  From Ext.A3 it is revealed that the Intermediary as shown in it is of his institution.  Further Ext.A4 shows that the estimate was prepared by OP No.2 only on 10/02/2020.  During cross-examination he has deposed that the initial estimate was given on 21/11/2019.  This statement of Dw1also cannot be believed as he has not produced any evidence for that and also mentioned neither in his version nor in his chief-affidavit.  Further Dw1 though admitted that Bindu is one of his staff and familiar with her handwriting, he has deposed that he could not say the handwriting in the Ext.A11 belonged to her.  Here since complainant has alleged that Ext.A11 claim form was filled by Bindu the staff of OP No.2 and made mistake in stating the date of accident as 12/01/2020 instead of 13/11/2019, Dw1 could have examined the said Bindu, to prove his contention.  Further Dw1 admitted that the vehicle has not repaired till the date and has not informed the complainant about part payment for the repair.  Ext.A4 shows that the estimate was prepared only on 10/02/2020.  The aforesaid facts reveal that there is deficiency in service happened on the side of OP No.2 in informing the actual date of accident to OP NO.1 and also issuing estimate without any delay, for getting insurance claim to the complainant.

            Due to the facts and circumstances as stated above, OP No.2 is bound to rectify the defect of the vehicle of the complainant bearing Reg. No. KL-78-3566 in a road worthy condition without charging any repair expense, and also compensation for the mental agony and in convenience caused to the complainant.

            In the result the complaint is allowed in part.  Opposite party No.2 is directed to deliver the subject vehicle in this case bearing Reg. No:KL-78-3566  to the complainant in a road worthy condition free from any defects without receiving repairing expense; Opposite party No.2 is further directed to pay Rs.25,000/- as compensation.  Opposite party No.2, is directed to comply the order within one month from the date of receipt of the certified copy of this order.  Failing which opposite party No.2 will have to pay the IDV value of the vehicle ie Rs.52,954/- with 4% interest from the date of order till realization with compensation as awarded.  Complainant is liberty to execute the order as per the provision of Consumer Protection Act 2019.

Exts.

A1 – RC copy

A2 – Customer  Gate pass dated 13/11/2019

A3 – Copy of Insurance policy

A4 – Estimate copy dated 10/02/2020

A5 – Letter issued by  OP2 to complainant dated 28/02/2020 (objection raised by oP 2)

A6 – Claim rejection letter dated 24/06/2020

A7– Copy of lawyer notice

A8 (series) – Postal receipts

A9 – Reply notice dated 27/03/2021

A10 – Acknowledgment card

A11 – Claim form

B1-  Letter issued by OP1 to complainant dated 20/02/2020

B2- Policy Schedule with terms and conditions

Pw1-Complainant

Dw1-OP2

  Sd/                                                                         Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar