IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 4th DAY OF MARCH 2020
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.43/2016
Naseema : Complainant
Pallivelil, Kallelibhagam
Karunagappally, Kollam-690546
[By Adv.M.A.Rasheed]
V/s
The Branch Manager : Opposite party
Bajaj Allianz Gen.Insurance Co.Ltd.
2nd Floor, A.Narayan Shopping Complex
Kadappakkada, Kollam-691008
[By Adv.S.Dileepkumar]
FAIR ORDER
Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President
This is a consumer complaint filed U/Sec.12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows.
The complainant is the registered owner of private Vehicle bearing No. KL-23/D 4457 Chevrolet Beat car was which insured with opposite party for the period from 16.04.2013 to 15.04.2014 for a sum of Rs.3,40,574/-. On 21.09.2013 at around 00.30 hrs, the above said vehicle met with an accident at Kavanad Junction on the National Highway and thereby the vehicle sustained major damage Sakthikulangara Police has registered Crime No.1306/2013 in respect of the accident. The matter was also intimated to the opposite party insurance company by the complainant. After the accident the vehicle was towed to the approved workshop DEEDI MOTORS PVT.LTD., Kollam as instructed by the opposite party. A rough estimate repaired by the workshop was also furnished to the opposite party. The claim of vehicle was also registered as claim reference No.OC-13-1602-1801-00003107 by the opposite party.
While the vehicle was brought to the approved workshop the opposite party made the complainant to believe that the whole repairing and other charges would be paid by the insurance company and the vehicle had to be at the workshop for about 9 months and also instructed the complainant to pay for the repairing and replacement of damaged parts and the opposite party made the complainant to believe that the said amount will be repaid by the opposite party. The complainant
paid Rs. 3,05,577/- out of her own funds for completion of the repair works and to make vehicle road worthy. When the complainant submits the bills the opposite party had not cared to settle the claim and thereafter the complainant personally contacted the opposite party but that they were raising lame excuses. Thereafter the complainant filed an affidavit before the Bajaj Alliance General Insurance Co.Ltd as instructed by the opposite party. However the complainant had received a notice dated 3.03.2014 from the opposite party in which it is stated that the claim of the complainant stands repudiated. The reasons stated in the repudiation letter are not at all sustainable. The opposite party is liable to settle the claim as the vehicle has been insured with them. Non settlement of the claim amounts to deficiency in service on the part of the opposite party. There is absolutely no reason or justification in the matter.
Hence the complainant filed the present complaint praying to direct the opposite party to settle the complainant’s claim of Rs.3,05,577/- with the interest at the rate of 12% per annum and also to pay compensation of Rs.50,000/- and cost of the proceedings.
The opposite party resisted the complaint by filing a detailed version raising the following contentions.
The complaint is not maintainable either in law or on facts.
The opposite party would admit the accident, and the claim lodged by the complainant. But would contend that after receipt of the claim, opposite party has deputed the IRDA licensed surveyor to assess the loss and also deputed an investigator to investigate the matter. Investigator has investigated the matter and submitted the investigation report wherein it has stated that the vehicle has already been sold and Driver is not having the valid driving license on the date of accident. Even IRDA licensed surveyor has submitted the final Survey report and thereby assessed the loss to the tune of Rs.1,46,671/- subject to terms and conditions. Without prejudice to our defence and without admitting the liability, it is submitted that opposite party’s liability will not be more than the loss assessed by the Surveyor if the claim is admissible under policy terms. The complainant has suppressed a material fact that the vehicle bearing reg.No.KL23/D-4457 was already sold and possession was also transferred to Mr.Sanal Kumar, S/o Chanmugham, Karthika, Njarackal, Murunthal A ward, Thrikkadavoor, Kollam on 02.05.2012. At the material time of accident the son of the transferee Mr.Sachin was the driver of the offending vehicle. The above offending vehicle was released by the said Sanal Kumar being the owner of the vehicle. Since the title of the vehicle was passed from the complainant to the transferee prior to the accident there is no insurable interest for the complainant at the time of accident which is a sine qua non of a contract of insurance. The driver of the offending vehicle was not having a valid and effective license at the material time of accident. Therefore he has violated the terms and conditions of policy and provisions of the MV Act. Hence complaint is deserved to be dismissed. Claim is not payable due to ineligibility and incompetency of the driver of the offending vehicle. The offending vehicle was being driven so negligently that it first hit a police jeep and then another car which itself points out the incompetency of the driver of the offending vehicle. The accident happened on 21.09.2013 and the complainant had sold the vehicle to Sanal Kumar on 02.05.2012. The said Sanal Kumar has been the owner in possession since 02.05.2012 and it was he who got released the vehicle from the police station on 29.09.2013 after giving an undertaking that he would produce the vehicle as and when required by the court. The rejection of the claim by the opposite parties was on genuine and valid grounds. There is no deficiency in service or unfair trade practice. Hence the complaint is only to be dismissed for lack of any consumer dispute. There is no purposeful denial of claim as alleged. The opposite party has only acted lawfully and as per the terms and conditions of the policy. There is absolutely no deficiency in service on the part of the opposite party and hence the opposite party is not liable to the complainant to any extent whatsoever. The prayer in the complaint is unsustainable in law and against the principles of law. The complainant has based his ease on false and frivolous contentions solely to abuse the process of the forum with ulterior motive.
In view of the above pleadings the points that arise for consideration are:-
- Whether the complainant was having insurable interest over the vehicle at the time of accident?
- Whether the driver of the car was not having the license at the time of accident?
- Whether the repudiation of the claim by the opposite parties is justifiable?
- Whether there is any deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get the reliefs and costs as prayed for?
- Reliefs and costs.
Evidence on the side of complainant consists of oral evidence of PW1 and Ext.P1 series to P14 documents. Ext. P13 has been marked subject to proof.
Evidence on the side of the opposite party consists of the oral evidence of DW1 to 3 and Ext.D1 to D7 documents, Ext. X1, X2 are also marked documents.
The learned counsel for the complainant and opposite party had filed notes of argument.
Heard both sides.
Points 1 to 4
For avoiding repetition of discussion of materials these 4 points are considered together. The specific case of the complainant is that he is the registered owner of a private vehicle Chevrolet Beat car bearing No.KL-23/D 4457 and it was insured with the opposite party for the period from 16.04.2013 to 15.04.2014 for a sum of Rs.3,40,574/- . However on 21.09.2013 at around 00.30 hrs the above said vehicle met with an accident at Kavanad Junction on the National Highway and the vehicle sustained major damage. But the claim raised by the complainant was repudiated by the insurance company. The opposite party would admit that the accident and rejection of claim lodged by the complainant. But according to the opposite party the complainant was not the owner of the vehicle at the material point of time and person who driven the car at the time was not having valid driving license. According to the opposite parties the complainant has sold the above vehicle to one Mr.Sanal Kumar, S/o Shanmugham and possession was also transferred as early on 02.05.2012 and at the material point of time Mr.Sachin son of transferee was the driver of the vehicle who was not having valid driving license to drive the said car and as the complainant is not having any insurable interest over the vehicle she is not entitled to get the insurance claim. The oral evidence of PW1 would show that the vehicle was standing in the name of Smt.Naseema as on the date of accident. The above version of PW1 stands corroborated by Ext.P13&P14 documents. Ext.P13 is the true copy of the RC book. The two pages attached to Ext.P13 document are previous owners details and owners details which would indicate that Smt.Naseema is the registered owner w.e.f 16.04.11 till 23.08.14 and w.e.f 24.08.14 Sanal kumar is the registered owner. The learned counsel for the opposite party has objected in marking the above documents. Hence the same has been marked subject to proof. Ext.P14 is the registration particulars issued from the MVI, Motor Vehicle Department which would clearly indicate that the said Sanal kumar.S was the present owner and Naseema was the previous owner till 24.08.14. The above entries in Ext.P14 documents substantiate the entries in P13 document. In view of Ext.P13 and P14 documents it is cristal clear that as on the date of accident Smt.Naseema the original complainant in this case was the registered owner and she continued to be the registered owner till 24.08.14. Admittedly the alleged incident took place on 21.09.13.
It is true that the opposite party has produced photo copy of the alleged sale agreement dated 24.05.12 and got marked as Ext.D3. On perusal of Ext.D3 it is seen that it is an agreement executed between one Sajeev.A and one Sanal kumar. Neither the complainant nor her husband is a party or signatory to Ext.D3. It is also not proved either through the seller or through the purchaser of the vehicle. When the said Sanal Kumar was in the witness box as PW2, Ext.D3 document has not been shown to him. Where is the original of Ext.D3 is also not explained by the learned counsel for opposite party. In the circumstances Ext.D3 is not a reliable document is prove the alleged sale of the car by its registered owner Smt.Naseema to Sanal kumar on 24.05.12 or any date previous to the date of accident. In this connection it is pertinent to point out that even according to the opposite parties the complainant has filed the original of P6 affidavit before the opposite party insurance company by stating that she is the registered owner of the vehicle as on the date of accident.
The learned counsel for the opposite party has pointed out the oral evidence of DW1 who registered the crime and conducted investigation in Crime No.1306/2013 which was registered in connection with the accident took place. According to DW1 the car involved in the accident was seized and released to one Sanal kumar on execution Ext.X1 3rd party keichit wherein it is stated that Sanal kumar is the owner of the car. But he would admit during cross examination on behalf of the complainant that RC details is attached to the CD file wherein it is stated that Naseema is the registered owner and the vehicle has been released to Sanalkumar on the basis of Ext.X2 authorization issued by the registered owner. According to DW1, the alleged sale letter (Ext.D3) or a copy of the same is not available in the CD file. It is also stated in the yathasthu(report) attached to the final report that the vehicle has been released to Sanal kumar(DW2) on the basis of authorization letter. In the light of the above evidence of DW1 the claim of the opposite party that Sanal kumar is the registered owner as per Ext.D3 sale agreement is not believable and acceptable at all.
DW2 is the alleged registered owner as per the contention of the opposite parties. But he denied having signed on any such sale agreement. The evidence of DW2 would further show that he has got released the car from the police station on the basis of Ext.X2 authorization letter issued by Naseema the registered owner. Towards the end of chief examination DW2 would admit that during the year 2014 he purchased the vehicle from the previous owner after the accident and without much delay he effected change of the name in the RC book and also taken insurance in his name. DW2 has specifically deposed during cross examination that he is having close acquaintance with Ashraf the husband of Naseema and the said Ashraf has gone abroad hence he was driving the said car and he took the car on the date of accident to take his mother to the Medical college and while returning from Medical College the vehicle met with accident. Later he purchased the vehicle involved in the accident. As on the date of accident the said Ashraf was working abroad and therefore he went to the police station along with X2 authorization and got released the car. In view of the materials discussed above it is cristal clear that Naseema was the registered owner of the car as on the date of accident and Sanal kumar purchased the car from the said Naseema only after the alleged accident. DW3 also would admit that in Ext.P11 Police Charge sheet it is stated that the vehicle has been release on 3rd party kaichit on the basis of the authorization(Ext.X2) of the registered owner. DW3 would also admit that Ext.D1 policy is a renewal policy and number of the previous policy has been mentioned in D1and that while renewing the policy, the insurance company used to verify the RC Book and policy will be renewed only in the name of the RC owner. The above versions of DW3 also would probabilise the case of the complainant that she was the RC owner as on the date of accident and therefore her name has been stated in the policy after verifying the RC book and hence the chance of selling the vehicle as per Ext.D1 sale agreement is remote.
Yet another contention of the opposite party is that one Sachin was driving the car at the time of occurrence but the said Sachin was not having any valid driving license and he was driving the car in a negligent manner and hence the vehicle met with the accident. Therefore the repudiation of the claim is legal and valid. In the light of the evidence available on record we find no forced in the above contention also. Even according to DW3 who is the legal executive of the opposite party insurance company has obtained Ext.P6 affidavit from the original complainant Naseema. On perusal of Ext.P6 it is seen stated that at the time of accident Mr.Sachin was riding the car and he was having valid learners license No.2/9181/2013-14 2478 dated 20.06.13 validity of which is 20.06.13 to 19.12.2013. It is also sworn in Ext.P6 affidavit that while Sachin was driving the car his father Sanal kumar who is having valid driving license was also sitting in the car. DW3 also would admit that complainant has filed P6 affidavit for the insurance company. It is further to be pointed out that the offence alleged in X1 police charge sheet in Crime No.1306/2013 of Sakthikulangara Police Station is punishable only u/s 223,337&338 . No specific allegation has been stated in the police charge that the accused Sachin was driving the car at the time of occurrence without any valid driving license nor he was incompetent to drive the motor car. In view of the materials discussed above it is clear that the vehicle was driven by Mr.Sachin who was having valid learners license and his father Sanal kumar(PW2) who was also having valid driving license was sitting by his side in the very same car.
The materials discussed above would clearly indicate that the two grounds urged to repudiate the claim lodged by the complainant are not tenable. Therefore the complainant is entitled to get the claim as per the terms of the policy conditions. In the circumstances it is clear that there is deficiency in service on the part of the opposite party in denying the claim lodged by the complainant. Points answered accordingly.
Point No.5
In view of the finding under point No.1 to 4 it is clear that the complainant is entitled to get the claim allowed and also entitled to get costs of the proceedings. In the circumstances the complaint is only to be allowed. Point answered accordingly.
Point No.6
In the result the complaint stands allowed in the following terms.
The opposite party is directed to review repudiation of the claim and settle the claim raised by the complainant by paying Rs.3,05,577/- along with interest @ 9% p.a from 03.03.14 till realization.
The opposite party is further directed to pay compensation to the tune of Rs.25,000/- to the complainant for deficiency in service on the part of the opposite party.
The opposite party is also directed to pay costs Rs.10,000/- to the complainant.
The opposite party is directed to comply with the above directions within 45 days from the date of getting a copy of the order failing which the complainant is entitled to realize Rs.3,30,577/- with interest @ 12% p.a from 03.03.2014 till realization along with costs Rs.10,000/- from the opposite party and also from the assets of the opposite party Insurance Company.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 4th day of March 2020.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Ashraf
Documents marked for the complainant
Ext.P1 series : Policy document and Copy of certificate cum policy schedule
Ext.P2 series : Bills
Ext.P3 : Copy of repudiation letter dated03.03.2014
Ext.P4 : Copy of learners license form.3
Ext.P5 : Copy of driving license
Ext.P6 : Copy of affidavit
Ext.P7 : Copy of FIR.
Ext.P8 : Copy of scene mahazar
Ext.P9 : Copy of vehicle mahazar
Ext.P10 : Copy of report of inspection of motor vehicle
Ext.P11 : Copy of final report
Ext.P12 : Power of attorney
Ext.P13 : Copy of RC Book, owners details(subject to prrof)
Ext.P14 : Registration particulars
Witnesses Examined for the opposite party:-
DW1 : Biju.S.T
DW2 : Sanalkumar
DW3 : Asha
Documents marked for opposite party:-
Ext.D1 : Private car package policy schedule(True copy)
Ext.D2 : Final survey report
Ext.D3 : copy of vehicle sale deed
Ext.D4 : copy of 3rd party kaichit
Ext.D5 : copy of notice-1
Ext.D6 : Copy of notice-2
Ext D7 : Copy of repudiation letter
Ext.X1 : 3rd party kaichit
Ext.X2 : Authorisation letter issued by Naseema
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
