D.O.F:17/03/2021

                                                                                                         D.O.O:30/01/2023

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD

        CC.No.66/2021

Dated this, the 30^th day of January 2023

PRESENT:

SRI.KRISHNAN.K                        :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Rohith.P, aged 45 years,

S/o. Ramavathi.P,

R/at Pattayil House,

Ramaram,                                                                              : Complainant

P.O.Nileshwar,

Kasaragod- 671314

                                    And

1. The Branch Manager,

New India Assurance Company Ltd;

Payyannur

P.O. Payyannur- 670307

(Adv. Ashok Kumar.A.C)

: Opposite Parties

2. Valsan. K, age about 50 years,

R/at Prasanthi, Nedumba,

P.O. Valiyapoyil,

Via- Cheruvathur,

Kasaragod

ORDER

SRI.KRISHNAN.K        : PRESIDENT

1. The complaint filed by the registered owner of vehicle KL-60 K 1323.  The vehicle is subjected to insurance policy by opposite party No.1.  The opposite party No.2 is the insurance agent.

The vehicle is insured with opposite party No.1 covering for the period from 06/10/2020 valid till 05/10/2021.Vehicle was in Valayar and from there insurance is renewed.Vehicle met with an accident on 07/10/2020 at 00.45 hours at Kavungal with in Malappuram Police Station limit.A tanker lorry while moving in from hit against a tree and tree is uprooted fell on the vehicle thereby and vehicle suffered damage.Accident is reported to the police, claimed insurance, Surveyor came to investigate the incident.Repair work is completed at authorized workshop, incurred Rs.1,42,507/-.The complainant received the message dated 11/02/2021 rejecting insurance claim stating that the accident occurred while moving to Palghat and insurance obtained at Kavungal.But claim is disallowed.Thereby there is serious deficiency in service of the opposite party, suffered mental tension and agony, claimed repair charges and together in compensation and cost of litigation.

2.       The opposite party No.1 filed written version.  The opposite party No.1 admitted insurance policy during the period.  But as per claim policy is obtained when vehicle was at Valayar check post.  Vehicle met with accident before reaching Valayar check post and policy is obtained after accident.  Spot survey to be conducted, spot photos must be obtained.  Complained suppressed accident and obtained policy.  Policy is issued in good faith and repudiated the claim as above.  Survey report shows actual loss to the vehicle is Rs.1,06,062/-. That there is no deficiency in service and complaint to be dismissed
3.      The Complainant filed chief affidavit.  Cross examined as PW1.  Ext.A1 to A4 marked.  Ext.A1 is policy certificate, Ext.A2 is GD entry, Ext.A3 is claim repudiation letter and bill copy is marked as Ext.A4.  Opposite party filed additional version that policy is paid after one month violated section 64 of Insurance Act.
4.      The Opposite party produced documents marked as Ext.B1 being the policy claim.  Ext.B2 policy proposal form, Ext.B3 is the survey report showing claim.  Ext.B4 is reputation letter, Ext.B5 insurance policy.
5.      Points for consideration in the case is :-

1. Whether insurance company is justified in repudiating the claim for insurance on the ground that vehicle policy is obtained after accident and no spot photos and not requested for spot survey?
2. Whether there is any Deficiency in service and if so whether complainant is entitled for compensation? If so, for what reliefs?

Answer to points No.1 to 2

6.      In this case, insurance admitted.  Surveyor report, shows Rs.1,06,062/- as justifiable whereas complainant says that he already spent Rs.1,42,567/-.  Complainant admits that during accident vehicle covered valid policy.  Company repudiated claim on the ground that vehicle met with accident prior to obtaining policy.
7.      The two judge bench in oriental insurance Co.Ltd Vs Meena Variyal and others (2007) 5 SCC 428 expressed the view that in order to avoid liability, the insurer must establish that there was breach on the part of the insured.  Section 64 VB in the Insurance Act, 1938, 64 VB no risk to be assumed unless premium is received in advance.

1. No insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium is not received by him or is guaranteed to be paid by such person in such manner and within such time or may be prescribed or unless and until deposit of such amount as may be prescribed, is made advance in the prescribed manner.
2. For the purpose of the section, in the case of risks for which premium can be ascertained in advance, the risk may assumed not earlier than the date on which the premium has been paid in cash or by cheque to the insurer.  Exploration:- where the premium is tendered by postal money order or cheque sent by post, the risk may be assumed on the date on which the money order is booked or the cheque is posted, as the case maybe.

8.      So even in cases premium is received or is guaranteed to be paid within such time prescribed is covered there in and risk may be assumed on the date cheque is posted as the case may be.  There is no violation of section 64 of Insurance Act.
9.       The opposite party No.1 except filing documents referred to above, no evidence is made available to prove their case or to disprove the claim of complainant.  No evidence available to support their claim that complainant is disentitled to insurance claim towards the repair charges of the vehicle paid by the complainant.  In the re-examination it is stated that policy is obtained on 06/10/2020 evening and accident is on 07/10/2020 for which there is no cross examination.  No suggestion regarding repayment of premium after one month.

Thus we find that there is no justifiable reason to decline insurance benefits to the complainant in the case since there is no evidence or proof that policy is obtained after accident or suppressing accident.Non-payment of benefits to the insured for unjustifiable reasons amount to deficiency in service and hence, the complainant is entitled for compensation.

We accordingly, direct the opposite party No.1 company to settle the claim of the complainant in the amount reported to in the surveyors report for which complainant did not raise any objection for effecting repairs to the damaged vehicle namely Rs.1,06,062/-.We further direct to pay interest at the rate of 8% per annum from the date of repudiation to the claim by the opposite party company till repayment the opposite party company is further directed to pay Rs.15,000/- as compensations for deficiency in service and also pay Rs.5,000/- as cost of litigation claim amount opposite party No.2 rejected.

10.         In the result complaint is partly allowed opposite party No.1 is directed to pay Rs.1,06,062/- (Rupees One lakh Six Thousand and Sixty Two only) to complainant towards repair charges with interest 8% per annum from date of repudiation of a claim by the company till date of payment and Rs.15,000/- (Rupees Fifteen Thousand only) as compensation for deficiency in service and Rs.5,000/- (Rupees Five Thousand only) as cost of litigation within 30 days of the receipt of the order.

     Sd/-                                                   Sd/-                                                         Sd/-

MEMBER                                    MEMBER                                     PRESIDENT

Exhibits

A1: Policy certificate

A2: General Diary Abstract

A3: Claim repudiation letter

A4 series are copy of the bills

B1: Policy claim

B2: Policy proposal form

B3: Survey report showing claim

B4: Reputation letter

B5: Postal Acknowledgment card

Witness cross-examined

Pw1: Rohith.P

      Sd/-                                                 Sd/-                                              Sd/-

MEMBER                                    MEMBER                                     PRESIDENT

Forwarded by Order

                                                                                    Assistant Registrar

Ps/