APPEAL NO.343/07 JUDGMENT DATED 29.8.09 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Sri.Babu Varghese, S/0 Varghese , Athanickal Puthenpurayil House, Mannathoor Post, Muvattupuzha, -- APPELLANT Ernakulam (Dist) (By Adv.George Cheriyan Karippaparambil) Vs. 1. The Branch Manager, New India Assurance Co.Ltd., 1st Flor, Tharayil Chambers, Opposite Power House, Bypass, Vyttila, Cochin-19. 2. The Manager, -- RESPONDENTS Popular Hyundai, Popular Motor World Private Ltd., Vazhakkala, Ernakulam, Cochin. (R1 by Adv.T.J.Lakshmanan & R2 by Boby Varghese & Ors.) JUDGMENT SRI.S.CHANDRAMOHAN NAIR,MEMBER It is aggrieved by the dismissal of the complaint in CC.498/06 of CDRF, Ernakulam that the present appeal is filed by the complainant calling for the interference of this Commission as to the sustainability of the order passed by the Forum below. 2. The Complaint has approached the Forum alleging that he was not given the amount claimed by him towards the repair charges consequent to an accident to his vehicle, which was insured by him with the first opposite party. It is also his case that the policy was taken during the period from 23.3.06 to 22.3.07 and that it was during the validity of the policy that the accident happened and even though he had spent Rs.40,100/- towards the repair charges and Rs.2000/- towards towing charges, the first opposite party had paid him only a sum of Rs.23,800/- for the reason that there was policy violation as his vehicle was fitted with a LPG kit also. The opposite parties ought to have paid him the total amount of Rs.42,100/- . The complaint was filed praying for directions to the opposite parties to honour the claim with 12% interest and compensation of Rs.5000/- along with costs. 3. The first opposite party resisted the complaint by filing version where it was stated the complainant was paid the amount of Rs.23,800/- only as there was a policy violation and the amount was arrived at on sub-standard basis. It was also submitted that the opposite party was not informed of the fitment of the LPG kit and if the same was informed, they would have insured the vehicle considering the fitment of the LPG kit also whereby the complaint would have to pay a higher premium. The first opposite party contended that there was no deficiency in service on their part. 4. The second opposite party also filed version contending that there was no deficiency in service on their part and they issued the bill for the actual works done and pleading that there was no deficiency in service they also prayed for the dismissal of the complaint. 5. The evidence adduced consisted of the oral testimony of PW1 and documents A1 to A4 on the side of the complainant and on the side of the opposite party Exts.B1 to B4 are marked. 6. We heard both sides. 7. The learned counsel for the appellant vehemently argued his case based on the averments in the complaint and the grounds urged in the memorandum of the present appeal. It is his very case that the first opposite party ought to have allowed the claim in toto as it was evident from Ext.A1 that the vehicle was fitted with petrol/LPG and at the time of insurance itself the same was there and it was fully knowing that the vehicle was fitted with LPG that the first opposite party had insured the vehicle. He invited our attention to Ext.A1 where the descriptions of the vehicle are noted. He gave much importance to the column ‘fuel’ where it is stated that the vehicle is fitted with LPG also as it is noted that the vehicle can be plied both in petrol and LPG. Thus, he canvassed for the position that there was no violation of policy conditions and that the opposite party had committed deficiency in service in honoring the claim of the complainant. He has also relied on the decision of the Hon. Supreme Court in National Insurance Company Vs. Nitin Khandelwal 2008 CTJ 680 (Supreme Court) CPJ) where it is held that the repudiation of the Insurance claim by the company on the ground of breach of condition is not sustainable and the decision of the Hon. National Commission in Esys Information Technologies Ltd. Vs. New India Assurance Co. Ltd. 2008 CTJ 1187 (CP) (NCDRC) where it is held that after having received the benefit from the complainant by way of premium, the Insurance Company could not contend that there was a mistake on its part in charging the premium. Thus, it is his very case that the Forum below had failed in appreciating the case in its correct perspective. 8. On hearing the learned counsel for the appellant we find that it is the admitted case of both parties that the vehicle had a valid Insurance policy at the time of accident. The first opposite party’s case is that the information regarding the fitment of the LPG kit in the vehicle was not informed and if that was informed they would have charged a higher premium and in the absence of the said information it is the contention of the opposite party that the complainant is not entitled to any amount other than the one sanctioned by the opposite party on sub-standard basis. However, on a perusal of the documents we find that as per Ext.A1, there is an endorsement regarding the fitment of the LPG. So it is clear that at the time of taking Insurance the vehicle had LPG kit fitted in it and it is on perusal registration certificate of the vehicle that the first opposite party issued the Insurance policy. They have also engaged a surveyor who filed his report as Ext.A3. The surveyor has assessed the net amount payable at Rs.34,004.04. It is also noted that the towing charge1,500/- is also included in the said survey assessment. The National Commission in New India Assurance Company Ltd. cited above has un-equivocally found that after having received the benefit from the complainant by way of premium, the Insurance Company could not contend that there was a mistake on its part in charging the premium. In the instant case the opposite party would contend that they would have charged a higher premium if the information regarding the fitment of LPG kit was given to them. But it is noted that Ext.A1 contains the information regarding the fitment of LPG. The opposite party ought to have been vigilant in charging a higher premium when the vehicle is fitted with LPG kit. It is also found that it is on examination of the vehicle that policy is given by the Insurance Companies. If they have omitted to find out the fitment of LPG kit in the vehicle and the endorsement of the said fact in the registration certificate it is for them to suffer. The complainant cannot be asked or directed to suffer the loss endured by him due to the lapse of the opposite party. 9. The opposite party has submitted that the complainant is entitled to only Rs.23,800/-. But the survey report would show that the complainant is entitled to a sum of Rs.34,004.04. On an appreciation of the entire facts and circumstances of the case we find that the complainant is entitled to the said amount of Rs.34,004.04 which is assessed by the surveyor. The opposite party cannot be allowed to reduce the amount on the ground of non-information of the fitment of LPG in the vehicle. It is also to be seen that the accident happened not due to the fitment of LPG, but due to skidding and hitting on the culvert. By taking this circumstance also into considerations, we find that the complainant is entitled to get the payment of Rs.34,004.04 assessed by the surveyor. The complainant is also entitled to interest at 9% per annum from the date of the complaint before the forum below till the date of payment. It is made clear that if the first opposite party/first respondent has already paid any amount they are liable for interest only for the balance amount from the date of the complaint till the date of payment. The complainant is also entitled to a cost of Rs.2,000/- for the proceedings through out. In the result, the order of the forum in CC 498/06 is set aside. The appeal is allowed in part thereby the 1st opposite party/respondent is directed to pay to the complainant a sum of Rs.34,004.04 with interest at 9% per annum from the date of the complaint till the date payment with cost of Rs.2,000/-. If any amount has already been paid, the first opposite party/first respondent will be liable for interest only for the balance amount as noted above. The appeal is disposed of accordingly. S.CHANDRAMOHAN NAIR -- MEMBER VALSALA SARANGADHARAN -- MEMBER
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