BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 07/07/2010

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 381/2010

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the registered owner of the bus bearing Registration No. KL-17-B 2442. The complainant insured the vehicle with the opposite party for the period from 03-12-2009 to 02-12-2010. The vehicle met with an accident on 04-12-2009 at Pala and sustained several damages to the vehicle. Crime No. 991/2009 has been registered by Pala Police in connection with the accident. At the instance of the complainant, an approved insurance surveyor of the opposite party examined the vehicle and assessed the damages and submitted his report along with photographs of the vehicle before the opposite party. As per the instruction of the opposite party, the complainant had repaired the damages of the vehicle. On 04-02-2010, the complainant submitted insurance claim application before the opposite party. The opposite party rejected the insurance claim of the complainant stating the reasons pre-existing damages in the vehicle. Accordingly, the complainant received back the documents submitted along with the insurance claim application. The complainant had to spend Rs. 91,790/- to repair the defects of the vehicle. The complainant is entitled to get the amount together with a total compensation of Rs,. 20,000/- and Rs. 2,000/- towards costs of the proceedings. This complaint hence.

2. The version of the opposite party is as follows :-

Contract of insurance is a contract of uberrime fidei and the parties are bound by it. The claim of the complainant was repudiated as the damages alleged to have been caused in the accident had existed in the vehicle even at the time of issuing the policy. So, the opposite party is not liable to compensate the complainant. There has been no deficiency in service on the part of the opposite party. Even assuming without admitting, the liability of the opposite party is limited to the terms and conditions of the policy and according to the survey report. The opposite party is not liable to pay any amount as per the complaint. The complaint is devoid of any merit and is liable for dismissal.

3. The complainant and his witnesses were examined as PWs 1 and 2 respectively. Exts. A1 to A9 were marked on his side. The witness for the opposite party was examined as DW1. Ext. X1 and Ext. X1 (a) also were marked. Heard the learned counsel for the parties.

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

1. Whether the complainant is entitled to get the insurance claim from the opposite party?

2. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- The following issues are undisputed :

1. The complainant's vehicle bearing Registration No. KL-17 B 2442 met with an accident on 09-12-2009 at Munnani in Pala and the Pala police station registered Crime No. 991/2009 in the incident evident from Exts. A1 FIR.

2. The vehicle was insured with the opposite party for the period from 03-12-2009 to 02-12-2010 evident from Ext. A2 insurance policy.

3. At the request of the complainant an approved insurance surveyor has inspected the vehicle and assessed the damages to the tune of Rs. 42,134.71 seen from the survey report in Ext. X1.

4. The opposite party repudiated the insurance claim of the complainant as per Ext. A4 letter dated 05-06-2010 which reads as follows :-

“This has reference to your above mentioned claim. On verifying the back papers and pre-inspection photos submitted at the time of policy issuance, it has been clearly visible that the damages found on the vehicle were existed before the accident.

Hence vehicle was already damaged as per the pre-inspection report at the time of policy issuance, the Competent Authority has repudiated your claim. Kindly note that the Company reserves the right to repudiate the claim on any other grounds which may come to its notice later on.”

6. The learned counsel for the opposite party vehemently and vigorously contended that Ext. A2 policy was issued for the period from 03-12-2009 to 02-12-2010 and the complainant failed to renew the previous policy in time and there was break in between the previous policy and Ext. A2 policy. It is stated that the damages alleged to have been caused in the accident had existed in the vehicle prior to inception of the policy.

7. The agent of the opposite party who was examined as PW2 deposed that the insurance policy of the complainant has been received through him and he had an occasion to inspect the vehicle on 02-12-2009 and on the previous day and at that time he had not found any damages on the vehicle. The opposite party contends that by suppressing the damages and without examining the vehicle PW2 had taken steps to renew the policy. We are not to agree with the said contention of the opposite party for the simple reason that the opposite party ought to have examined the vehicle before issuing the policy. Now, the opposite party is not to approbate and reprobate at the same time. Moreover, PW2 the agent of the opposite party is still in their service with their office in Menaka. Besides the oral contentions of the opposite party, nothing is forthcoming on the part of the opposite party to come to a conclusion that the damages of the vehicle have been caused prior to the inception of the policy. In the absence of any evidence to the contrary, we are only to hold that the contentions of the opposite party does not hold water. Had the opposite party duly examined the vehicle properly the complaint would not have arisen at all which goes to show that there was evidently been a mistake on the part of the opposite party which has not been unproved. The Hon'ble Kerala State Consumer Disputes Redressal Commission in United India Insurance Co & Anr. Vs. V. Varghese and Anr. 2010 CPR 198, held that, “the insurance company is not expected to provide the insurance coverage without examining the goods.”

8. According to the complainant, he had to expend Rs. 91,790/- as per Ext. A5 to repair the vehicle in furtherance of the accident on 04-12-2009. Admittedly, an approved insurance surveyor appointed under the Insurance Act inspected the vehicle and assessed the quantum of damages at Rs. 42,134.17. The Hon'ble Supreme Court in Venkateswara Syndicate Vs. Oriental Insurance Co. Ltd. & Anr. 2009 CTJ (SC) (CP) P. 1189, held that “Insurance Surveyor/Surveyors are appointed by an Insurance Company under the provisions of the Insurance Act. Their reports are to be given due importance and there should be sufficient grounds for not agreeing with the assessment made by them.”

9. In the case at hand, nothing is on record to discard or set aside the finding of the insurance surveyor. The complainant is entitled only to get the amount assessed by the insurance surveyor together with interest.

10. Point No. i. :- We do not find any deficiency in service on the part of the opposite party, since they have been bonafide contested the matter to establish their own contentions. Compensation and costs of the proceedings are not called for.

11. In the result, we partly allow the complaint and direct that the opposite party shall pay Rs. 42,431.71 (Rupees Forty two thousand four hundred and thirty one and seventy one paise only) being the insurance claim of the complainant as assessed by the Insurance Surveyor in Ext. X1 with interest @ 12% p.a. from the date of complaint till realisation.

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 21^st day of December 2013.

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 :: Nil

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