KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 644/2011
JUDGMENT DATED: 29..5.2012
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
HDFC Ergo General Insurance Co.Ltd., : APPELLANT
4th Floor, K.G.Oxford Business Centre,
Ravipuram, Kochi,
represented by its Manager – Legal
(By Adv.Sreevaraham G.Satheesh)
Vs.
Suresh kumar, : RESPONDENT
Ushasree, Mattom North,
Thattarambalam, Mavelikara.
(By Adv.R.Sreenivas)
JUDGMENT
SRI.M.K.ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Alappuzha in CC.67/10 dated 15.3.2010. The appellant is the opposite party and the respondent is the complainant in the above CC respectively. This order prefers under the direction of the Forum below that; the opposite parties directed to pay the complainant that the amount he insured for the patch up of his vehicle viz an amount of Rs.73000/- with interest at the rate of 12% per annum from the date of repudiation of the claim till the payment/recovery of the same. The opposite party is further directed to pay compensation of Rs.25000/- and cost of Rs.5000/- to the complainant.
2. The brief of the case is that the complainant is the owner of a Ford Fiesta car which insured with the appellant/3rd opposite party. On 18.12.09 the vehicle met with an accident and damaged. The complainant alleges that he informed the accident to the opposite party through his authorized agent. The vehicle was got repaired and returned to the complainant on payment of bill amount, subsequently claim was repudiate by the appellant/opposite party on the ground that the claim was intimated after a long delay of 20 days, there was no opportunity for the appellant for immediate inspection and assessment, which is nothing but a violation of condition No.1 of the policy and no clarification for the delay was given inspite of repeated requests. Against the repudiation the complainant filed the above complaint and the Forum below allowed the claim and passed the above impugned order. This order was challenged by the appellants before this Commission.
3. The evidence consisted of the oral testimony of the complainant/PW1 and from his side the documents Exts.A1 to A4 were marked. Ext.A1 is the bill receipt, Ext.A2 is the GD entry, Ext.A3 is the tax invoice and Ext.A4 is the letter from the surveyor. On the side of the opposite party, the Manager of the opposite party filed a proof affidavit, and documents Exts.B1 to B6 were marked on his side. Ext.B1 is the copy of the policy, Ext.B2 and B3 are the letters dated 8th February 2010and 24th February 2010 sent by the surveyor respectively, Ext.B4 is the survey report, Ext.B5 is the claim form and B6 is the policy conditions.
4. The Forum below heard both sides in detail and consider the entire facts adduced both sides. The Forum below taken a view that; the accident, policy and the damage sustained to the vehicle all are not virtually challenged or disputed. The opposite party appears to have denied the claim on the ground that the complainant intimated the fact of the accident belatedly to the opposite party. There is a delay of 20days and it is a violation of the condition of the policy, the opposite party vehemently argued on the basis of the said view, the claim by the complainant was practically repudiated. It is worthy of notice that the definite case of the complainant is that the accident was promptly intimated to the authorized agent of the opposite party. It is in line with his instruction that the vehicle was produced in the showroom one or 2 days after the accident. In the cross examination, the complainant appears to have asserted in similar lines. Surprisingly enough, the opposite party does not make it a point to disprove the contentions advanced by the complainant. No useful steps seemed have been taken by the opposite parties in this regard. The Forum was having a view that even if it was assumed that there is a delay of few days, the same by itself cannot be a ground to repudiate the complainant’s claim, more so when no prejudice caused by the said delay is proved by the opposite party. In the light of this, the Forum below felt all the contentions put forth by the opposite party to refuse the claim of the complainant does not merit acceptance. Needless to say the complainant is entitled to the amount he incurred to get the vehicle repaired. Turning its back a legitimate claim, the opposite party committed deficiency of service and inflicted mental agony to the complainant hence the order passed by the Forum below.
5. On this day this appeal came before this Commission for final hearing both counsel for the appellants and respondents are present and they argued their own cases vehemently in detail. The counsel for the appellant wrongly argued this appeal on the basis of the ground of appeal memorandum that the Forum below ignored the condition No.1 of the policy. The policy is an important document issued by the appellant/opposite party to the complainant. Thereafter the complainant was fully satisfied about the terms and conditions of the policy. The complainant did not obeyed the condition No.1 of the policy hence he have no right to get any claim under this head. The Forum below passed the order without follow the principles of law and evidence in argued that the order passed by the Forum below is not accordance with the provisions of the law and it is not legally sustainable. He prays to allow this appeal and set aside the impugned order passed by the Forum below. But on the other side the respondent/complainant argued that the complainant intimated the accident immediately to the authorized agent of the appellant/complainant and also intimated to the nearest police. The nearest police entered this GD(general diary)it marked as Ext.A2. The authorised agent of the insurance Company is well aware about these facts and he promised to the complainant that he will take up the matter to the company immediately. In the circumstance the stand taken by the appellant/respondent is not legally sustainable. The very same authorized agent will approach to the complainant on behalf of the appellant/company to canvass this insurance policy. He submitted that there is no denial of the accident from the part of the appellant/company but they are standing only on a hyper technicality relating to the delay of the 20 days of the intimation of the accident. He has submitted that the order passed by the Forum below is strictly accordance with the law and evidence and it is legally sustainable. He prays to dismiss this appeal and costs.
6. We heard in detail both the parties and perused the entire evidence. The counsel for the appellant produced a citation of the National Commission (2008 (2) CPJ page 182; United Insurance Co. vs Maya). It is the decision which is discussing about the relevancy of the surveyor and his report. The National commission held in this case that the amount assessed by the survey report is relevant and there is no hesitation to accept this as a claim amount unless it was proved that the survey report is in a question. In this page there is no dispute about the survey report and his assessment of the claim. The surveyor assessed the amount of Rs.63255/- as per Ext.B4 . Both sides did not take any steps to examine the surveyor who assessed this amount that means the survey report and his assessment of claim is acceptable to both sides. It cannot be say that 20 days is a long delay for intimating the accident to the company. Eventhough the complainant intimated the matter through their approved authorized agent and police immediately. As per the evidence in the policy conditions there is no specific time for the intimation is mentioned. In the circumstance it cannot be said that 20 days is not a delay. And in otherwise complainant informed the matter to their authorized agent and the police. It is the settled position that it is a deemed intimation of the accident. This insurance company is not a central or state government undertaking, the relation between the agent and the insurance company is par difference between the relation of the agent and of this appellant/company. The agent of this appellant/ company is not designate as agent by the appellant/company they designated him as a business executive or insurance advisor etc. The contentions raised by the appellant/opposite party is not legally sustainable but the complainant/ respondent is only entitled to get the amount assessed by the surveyor is only Rs.63255/- from the appellant/opposite party under this insurance policy. In the circumstance we decided to modify the result portion of the order passed by the Forum below. We uphold all other findings of the Forum below.
In the result this appeal is allowed in part and directed to the opposite party to pay Rs.63255/- the claim amount assessed by the surveyor; to the respondent/complainant with interest at the rate of 9% per annum from the date of the complaint till the payment. The opposite party is also directed to pay a compensation of Rs.15000/- and a cost of Rs.1000/- to the complainant. The opposite parties shall comply with the order with in 30 days of the date of this order. This appeal disposed in accordance with the above modifications. The points of the appeal discussed one by one and answered accordingly. No costs of appeal, ordered.
SRI.M.K.ABDULLA SONA : MEMBER
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
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