IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Thursday the 7thday of March, 2019.
Filed on 15-10-2016
Present
1. Sri.E.M. Muhammed Ibrahim,B.A,LLM (President-in-charge)
2. Smt. Sheela Jacob, B.com,LLB (Member)
In
CC/No.322/2016
between
Complainant:- Opposite party:-
Sri. Faizal The Branch Manager
S/o Ebrahim, XX/291 National Insurance Co. Ltd.
Thaiparambil Alappuzha
Vellakkinar Ward (Adv. T.S. Suresh)
Alappuzha
(By Adv. Babu Joseph)
O R D E R
SRI. E.M. MUHAMMED IBRAHIM (PRESIDENT-IN-CHARGE)
This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.
2. The averments in the complaint in short, are as follows:-
Complainant is the owner and in possession of one Toyota car bearing Registration No.KL-4/AE-3653. The above mentioned vehicle was duly insured with the opposite party vide policy No.571401/31/14/6100002056 and the policy is valid from 18.5.2014 to 17.5.2015. On 20-10-2014 at about 6.30 p.m. the above vehicle met with an accident at Bernad junction near Kalavoor Alappuzha. The vehicle happened to hit on a tree while trying to save a person who came in a scooter suddenly from a pocket road. Fortunately no one from outside and persons traveling in the vehicle sustained any injury. Immediately after the accident the vehicle was taken to Nippon Toyota Showroom wherein detailed survey was done and damages were estimated to the tune of Rs.2,26,000/-. On the same day of accident, the matter was intimated to the opposite party. That on the basis of a written request made by the complainant claim form was issued by the opposite party and claim request was submitted on 27.10.2014. Thereafter the vehicle was repaired and released on 26.11.2014 and total cost of repair is Rs.1,19,596/-. Till this date the opposite party has not released the claim amount. In spite of the repeated requests made by the complainant to release the claim amount, the opposite party was offering lame excuses that the claim would be given very soon. The very intention of the opposite party is any how to cover the statutory period for approaching this Hon’ble Forum. The act of the opposite party is a clean violation of provisions of Consumer Protection Act and deficiency of service on the part of the opposite party.
3. The opposite party resisted the complaint by filing a detailed written version raising the following contentions:-
The complainant is not maintainable either in law or on facts. The complainant has approached the Forum with unclean hands by suppressing material facts. It is true that the opposite party issued a package policy with respect to private car No. KL-04-AE-3653 owned by the complainant vide policy No.571401/31/ 14/6100002056 w.e.f.18/5/2014 to 17/5/2015 and the ID value under the policy is Rs.10,40,000/-. The actual facts leading to the non disbursement of claim are as follows. The date of accident was 20/10/2014, own damage claim submitted before this opposite party is only on 28/10/2014 ie after one week from the date of accident. The above incident is second accident during the period of policy. Hence the complainant cannot say that he is ignorant about the procedures for OD claim. Even though the date of accident ie 20/10/2014 was a Monday and was a working day, and the accident took place at Bernad Junction, Kalavoor Alappuzha which is very near to Alappzha Branch office of the opposite party, the insured or his representative has not given either written or oral intimation to the company. Due to the said irresponsible act of the complainant, this opposite party has lost an opportunity to arrange spot survey to ascertain the exact thing about the accident and loss etc. as per Policy condition No.1 notice shall be given in writing to the company immediately up on the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require but In the present case intimation to the company was given after a break of one week, hence it cannot be said that the intimation given to the company was immediately after the accident. Hence it is clear that the complainant has violated the policy condition No.1 of policy. Apart from that the insured has not given the intimation of the accident to police. So there is no FIR or GD entry. Immediately when the opposite party received OD claim from the complainant herein, the opposite party arranged one survey to assess the damages and the surveyor assessed damage to the tune of Rs.1,09,133/- and after deducting policy excess Rs.2,000/- and additional excess Rs.2,500/- and 5% salvage value Rs.3,309/- it is reported that the liability payable by the company is Rs.1,01,323/- only. The statement given by the complaint regarding the accident is that vehicle hit on a tree. But the damages caused to the front bumper are very negligible. On the other hand the hood assembly of the vehicle has suffered a major impact. If the vehicle is hit on a tree, obviously the major impact would have been on the front bumper. Further no spot survey no spot photographs. So it is clear that the damages caused to the vehicle are not consistent with the statement given by the complainant in the claim form. So there is suspicious circumstance regarding the accident. Though the above defects were noted by the company, even then company offered a settlement of claim on non standard basis that 75% of the net amount payable and it will come to Rs.75,990/-. The complaint herein agreed to settle the claim for the said amount of Rs.75,900/- and the consent letter was drawn by the complainant herein in stamp paper worth Rs.50/-. But in the final stage the complaint has withdrawn from the settlement and has not signed in the consent letter. There is absolutely no illegal acts, fraud, misrepresentation and foul play and deficiency of service on the part of the opposite party as alleged. In any event complainant is entitled for any relief, compensation interest, cost etc, since there is no deficiency of service on the part of the opposite party.
4. In view of the above pleadings the points that arise for consideration are:-
1) Whether there is any deficiency in service on the part of the opposite party.
2) Whether the complainant is entitled to get the relief sought for.
3) Reliefs and costs.
5. Evidence on the side of complainant consists of the oral evidence of PW1 and Ext.A1 to A5 documents. Evidence on the side of the opposite party consists of the oral evidence of RW1 and RW2 and Ext.B1 to B6 documents. Both sides have filed notes of arguments. Heard both sides.
6. Point No.1 and 2:-
For avoiding repetition of discussion of materials these 3 points are considered together. The following are the admitted facts in this case. Complainant has obtained a package policy in respect of his car bearing engine no 571401/31/14/6100002056 and registration No. KL 04 AE 3653 The said policy is valid from 18-05-2014 to 17-05-2015 the ID value under the policy is Rs.10,40,000/. The said car involved an accident on 20-10-2014 at Bernad Junction Kalavoor Alappuzha however according to the opposite party neither the complainant nor his representative has given any oral or written intimation regarding the accident to the insurance company. The own damage was claimed before the opposite party only on 28-10-2014 which is after 1 week of the date of accident and that the above accident is the second accident during the policy period.
7. According to the complainant immediately after the accident the vehicle was taken Nippon Toyota showroom wherein a detailed survey was conducted and damages was estimated to the tune of Rs.2,26,000/- on the same day of accident the matter was informed by opposite party on a written request made by the complainant claim form was issued by the opposite party and duly filled up claim form was submitted on 27-10-2014. Thereafter the vehicle was repaired and released on 26-11-2011and the cost of repair is Rs.1,19,596/-. However the opposite party in spite of repeated requests has not released the amount by stating laying excuses.
8. According to the opposite party there is an inordinate delay of 8 days in intimating the accident to the opposite party and therefore the opposite party has lost the opportunity to arrange spot survey to ascertain the exact thing about the accident and loss etc. The learned counsel for the opposite party has argued that intimation was not given to the company immediately after the accident and there by violated the policy condition No.1 which would read “Notice shall be given in writing to the company immediately up on the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require”. It is further contended that the alleged incident is taken place at a public road but the complainant / insured was not given any intimation to the Policy Authorities and no FIR has been registered nor there is any GD entry. No photographs of the damaging vehicle was submitted to the insurance company by the complainant instead of intimating to the insurance company Police and taking photographs of the damaged vehicle the complainant after 1 week of the incident has lodged a claim for Rs.2,57,084/-. However on getting the other documents the opposite party deputed Mr. V.N.Sivan Pillai the A grade independent surveyor from Kottayam for assessing the loss. But the surveyor has reported that the incident alleged by the complainant is not consistent with the damages found on vehicle. According to the opposite party even if the assessment of the damages by surveyor is believed the complainant is entitled to get only Rs.1,11,323/-.
9. The complainant has been examines as PW1 who reiterated his averments in the complaint in the chief affidavit. However during cross examination it is brought out in evidence that immediately after the incident he has intimated the fact to the insurance agent Sri. Muhammed Hussain and that fact is stated in the complaint itself, but he has not reported the facts before Police. The vehicle hit against standing tree at the side of the road and thereby incident occurred. RW1 who is none other than the Divisional Manager of the National Insurance Co. Ltd. Alappuzha Division Office would admit that as per the policy condition even if the vehicle hit against standing tree the insurance company is liable to pay the claim amount.
10. RW1 would further admit that the insurance company has deputed one independent investigator by name Sourabhan who filed Ext.B6 report and in the second page of Ext.B6 it is stated that the incident is said to be genuine. The surveyor Sivanpillai has been examined RW2 according to him he contended survey in respect of the car bearing No. KL -AE 3653 involved in the accident and filed his report on 6-12-2014 by noting the damages found on the vehicle and also the advisable claim. However, the said report is not shown to the witness nor got marked in evidence. It is also brought out during cross examination of RW2 that one surveyor by name Sourabhan has conducted investigation and filed his report where in it is stated that the incident took place as alleged by the complainant. It is to be pointed out that RW1 who is the Divisional manager of the opposite party insurance company has concealed in his affidavit that one Sourabhan has initially conducted an investigation in respect of the incident and damaged vehicle and reported that incident occurred as claimed by the complainant. However during cross examination by the learned counsel for the complainant RW1 would admit that one Sourabhan has initially conducted investigation and reported that the said incident is said to be genuine.
11. It is clear from the available materials that the accident took place after 6.30 pm on 20-10-2014 which was a Friday Saturdays and Sundays are not a working days for the insurance company and the complainant on the next working day has reported the fact of the accident through the insurance agent Hassan who arranged to obtain the insurance policy. RW1 also would admit that the said Hassan is a retired staff of the insurance company. It is to be pointed out that without intimating the fact that the insured vehicle is involved in an accident and sustained damages the claim form will not be issued by the insurance company. But the date of issuance of the claim form is not noted in Ext.B2 document. In this connection it is pertinent to note the evidence of RW1 that he is not aware of the date of issuance of claim form. There is chance of record in the opposite party insurance company regarding the date of issue of the claim form. But RW1 without verifying the available record would claim that the claim form was issued at a belated stage. It is clear from the available materials that the complainant has reported the fact to the insurance company through the insurance agent a Hassan at the earliest possible opportunity and accordingly the insurance company has issued claim form and that it was filled up and returned to the opposite party on 27-10-2014.
12. It is also brought out in evidence that after getting knowledge of the incident the opposite party has deputed one Sourabhan who reported that the incident has taken place as claimed by the complainant. But by suppressing the report of the said Sourabhan the opposite party caused to conduct another survey by another surveyor (RW2) who filed his report dated 4-12-2014 before the opposite party insurance company. However it is clear from the available materials that RW2 has noted the damages found on the vehicle and suggested the claim amount entitled as per IRDA guidelines. According to RW2 he has also perused the report of investigation conducted by the investigator Sourabhan. It is further to be pointed out that the oral evidence of RW1 and Ext.B3 and by Ext.B4 documents would clearly indicate that the opposite party was ready to settle the claim on non standard basis for Rs.75,990/- but the complaint was not ready and willing to accept the same.
13. It is true that Ext.B6 is the motor survey report filed by V.N.S Pillai for SP engineers and survey where in it is stated that the cause of accident may be something other than the cause stated by a complainant (hit against the tree causing damages while swerving the vehicle to the road side on seeing the scooter being running by the pocket road). According to RW2 surveyor the front cover is comparatively lower than the hood assay and the major impact in this case is on the hood assay. According to him if the vehicle hit against the tree the major impact could have been caused to the front bumper. Hence he suspected the accident would have been happened by collision with heavy vehicle. It is crystal clear that the impact of the hit depends upon the force used which again depends on the speed of the vehicle. If the speed of the vehicle was very less while hitting the same against the standing tree while swerving the vehicle to the side road there is no chance of causing much impact on the front bumper especially when the bumper of the vehicle is less projected than the hood assay which is clear from Ext.A4 series photographs of the vehicle. In the 1st investigation report the investigator has taken photographs of the vehicle indicating damages but the insurance company has concealed the investigation report and the photographs etc for the reasons best not to the company. In the circumstance adverse inference under Sec.114 (g) of the Indian Evidence Act is to be drawn against the insurance company.
14. On evaluating the entire materials available on record we have no hesitation to hold that the delay in reporting the fact of accident to the insurance company is not due to the fault of the complainant as the incident has happened on a Friday evening at about 6.30 pm. Saturday and Sunday are holidays and the fact was intimated to the insurance company through the insurance agent Sri. Hassan on the next working day and claim form was obtained through the said Hassan. In the circumstances the condition No.1 in the policy condition cannot be said to be violated. The non reporting the fact to the police or non availability of G.D. entry is not material as any of the passengers nor even the driver has sustained any injury. In the circumstance the non-sanctioning of the claim amount by the opposite party amounts to deficiency in service and hence the complainant is entitled to get the reliefs allowed. The points answered accordingly.
Point No.3:-
In the result the complaint stands allowed directing the opposite party insurance company to pay Rs.1,19,596/- (Rupees one lakh nineteen thousand five hundred and ninety-six only) with interest at the rate of 6% per annum from the date of lodging the claim till payment or realization.
The opposite party also directed to pay Rs.25,000/- (Rupees twenty-five thousand only) as compensation for the deficiency in service and mental agony sustained by the complainant for the non-payment of insurance claim amount legally entitled to the complainant.
The opposite party is also directed to pay Rs.10,000/- (Rupees ten thousand only) as costs of proceedings.
The opposite party is directed to comply with the above directions within 45 days from the date of receipt of the copy of this order, failing which the complainant is allowed to recover Rs.1,44,596/- (Rupees one lakh forty-four thousand five hundred and ninety-six only) with interest at the rate of 12 % per annum from the date of decree till realization with cost Rs.10,000/- from the opposite party and its assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 07th day of March, 2019.
Sd/-Sri.E.M. Muhammed Ibrahim (President)
Sd/-Smt. Sheela Jacob (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Faisal.E (Witness)
Ext.A1 - Letter dtd 27-10-2014
Ext.A2 - Motor claim form
Ext.A3 - Certificate of Insurance cum policy schedule
Ext.A4 - Photographs
Ext.A5 - Bill issued by Nippon Toyota dtd 20-11-2014
Evidence of the opposite parties:-
RW1 - V.N.Sivan Pillai (witness)
RW2 - K. Sreekumar
Ext.B1 - Compliance certificate
Ext.B2 - Motor claim form
Ext.B3 - Copy of the agreement and consent mentioned in the
stamped paper
Ext.B4 - Letter dtd 04-02-2015
Ext.B5 - Letter dtd 15-12-2014
Ext.B6 - Motor Survey Report dtd 04-12-2014
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
