CONSUMER DISPUTES REDRESSAL FORUM    PALAKKAD

Dated this the 15^th day of March 2014

PRESENT :  SMT. SEENA. H, PRESIDENT

                   :  SMT.  SHINY. P.R, MEMBER

                   :  SMT. SUMA. K.P, MEMBER                           Date  of filing :12/8/2013

                                                            CC /  134 / 2013

Rosamma Varghese,

W/o. Mamachan, H.M. Quarters,

Patagiri. P.O, Nelliyampathi,

Palakkad Dt.                                                                :           Complainant

(By Adv. Joy Kanjirathinchalil)

                        Vs

The Branch Manager,

Royal Sundaram Alliance Insurance Co. Ltd.,

Indus Motors,

Vadakkumuri – NH – 47,

Kannadi, Kuzhalmandam,

Palakkad Dt.

(By Adv. P. Prasad)

The Branch Manager,

Indus Motors (P) Ltd.,

Vadakkumuri – NH – 47,

Kannadi, Kuzhalmandam,

Palakkad Dt.                                                                :           Opposite parties

(By Adv. C.K. Bhaskaran & Adv. P.K. Aboobacker)

                                                            O R D E R

By Smt. Seena. H, President

Brief case of the complainant :-

Complainant availed a motor vehicle policy valid from 12/5/2012 to 11/5/2013 for her Alto Car from 1^st opposite party.  On 17/9/2012 the vehicle met with an accident at Mukkada when it ran over a hump.  As a result the outer part and engine got damaged and the vehicle stopped.  Accident was immediately intimated to the 2^nd opposite party and 2^nd opposite party arranged mechanic from their branch at Karikkode.  The vehicle was towed to their service station and was repaired.  Surveyor appointed by 1^st opposite party has examined the vehicle.  Claim form along with all the requisite documents were handed over to 1^st opposite party for processing the claim.  Complainant has expended an amount of Rs. 39,900/- for effecting repairs and the same was paid to Indus Motors, Karikkode, Kollam.  According to the complainant, he is entitled for the claim amount.  All the documents as requested by 1^st opposite party has already been handed over.  The act of opposite parties in not disbursing the genuine claim of the complainant amounts to clear deficiency in service and unfair trade practice.  Hence the complainant prays for an order directing the opposite parties to realize the claim amount of 39,900/- along with 12% interest, Rs. 20,000/- towards mental agony and Rs. 10,000/- towards the cost of the proceedings.

Opposite parties filed version contenting the following:-

1^st opposite party admits the policy and the happening of the accident within the period of the policy.  Further admits that a claim form was received on 5/10/2012 stating that the vehicle met with an accident on 17/9/2012.  1^st opposite party further submits that it seems that the complainant had driven the vehicle after the accident thereby resulting in damaging the inner parts of the engine.  Further stated that complainant has dismantled the vehicle even before informing about the claim to the opposite party and even before the examination by the Surveyor appointed.  As a result engine assessment cannot be done by the Surveyor.  According to 1^st opposite party as the complainant had driven the vehicle after the accident,  the same resulted in further damages to the engine’s internal parts like engine block, crankshaft,  bearings and piston rings.  It is submitted that as per the terms and conditions of the policy, aggravation loss is not covered.  Hence the complainant’s claim for damages to the engine is not payable under Condition No.4 of the terms of the policy.  Surveyor has also given report stating that the damages towards inner parts of engine is not payable as the same was due to aggravated damage.  Opposite parties is only liable to pay Rs. 637/- as per the survey report and that too on production of requisite claim documents.  Hence according to 1^st opposite party, complaint is liable to be dismissed.

            2^nd opposite party admits that the vehicle was brought for repairs to 2^nd opposite party’s workshop after an accident as told by the complainant.  After receiving consent from the complainant, the vehicle was repaired.  Total bill for Rs. 39,900/- was paid by the complainant.  2^nd opposite party deny the say of the complainant that they promised to get the full claim amount paid by 1^st opposite party.  2^nd opposite party has extended all help to present the claim form in time to 1^st opposite party.  2^nd opposite party has no role in allowing or repudiating the claim.  Hence no deficiency in service on their part.

            The evidence adduced by the parties consists of their respective chief affidavits.  Ext.A1 to Ext. A9 marked on the side of the complainant.  Ext. B1 to Ext.B5 marked on the side of opposite parties.  Complainant cross examined  as PW1.

Issues to be considered are;

1.  Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost entitled to the complainant?

Issues 1 & 2

            Heard both parties and perused the documents on record.

            It is an admitted fact that the complainant has availed a policy from 1^st opposite party and accident happened within the period of coverage of the policy.  The place of accident ie, near railway level cross as deposed by PW1 is not seen disputed by the opposite parties.  The allegation of 1^st opposite party is that the complainant has plied the vehicle after the accident which has resulted in aggravation damages.  It is pertinent here to note that 1^st opposite party themselves is not sure whether the complainant had  plied the vehicle after the accident.  Relevant parts of the version is noted below;

“ It seems that the complainant had driven the vehicle and the same resulted in damaging the inner parts of the engine”.

            PW1 while cross examination has deposed that “Railway track ………. …….. accident ………... …….. pump …… move ……….. Side ………………………………

Further deposed that “Railway level cross ………………. accident ……...  Railway line  ……………………side ……………….. ”.

            It is true that the complainant has moved the vehicle a little from the accident spot.  The situation can be imagined if the vehicle was stopped then and there especially near a railway level cross.  We are of the view that complainant has done what a prudent man will do in such similar situation.  Other than mere pleadings  there is no evidence on record to show that the vehicle was driven a very long distance so as to cause aggravation loss.  Opposite parties has cited Condition No.4 of the terms and conditions of the policy in order to avoid payment is reproduced below;

Condition No.4 :-  “The insured shall take all reasonable steps to safeguard the private car from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the private car or any part thereof or any driver or employee of the Insured.  In the event of any accident or breakdown, the private car shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the private car be driven before the necessary repairs are effected any extension of the damage or any further damage to the private car shall be entirely at the insured’s own risk” .

            There is no concrete evidence before the Forum that whatever damage the vehicle sustained in due to the act of the complainant.  As per Ext.B3 Survey Report, the Surveyor has not assessed loss for all the damages incurred.  Whether it is payable or not, the Surveyor has a bounden duty to assess damage for all the loss.  There is no mention in the Survey Report that the engine was dismantled before survey and was not made available for inspection.  Ext.B1 simply states that repairer not called us for engine internal.  It is an admitted fact that an amount of Rs. 39,900/- was spent for repairs.  Since the pleadings of the 1^st opposite party is not supported by any evidence, we are not in a position to accept the same.  Ext.A7 and Ext.A8 evidences the fact that all the requisite documents were sent to 1^st opposite party.

            In view of the above stated facts and circumstances of the case, we are of the view that there is deficiency in service on the part of 1^st opposite party.  We do not find any deficiency in service on the part of 2^nd opposite party.

            In the result complaint allowed and we order the followings;

1. 1^st opposite party is directed to pay an amount of Rs. 39,900/- being the claim amount entitled to the complainant along with Rs. 5,000/- as compensation and   Rs. 1,000/- as cost of the proceedings.
2. 2^nd opposite party is exonerated from liability.
3. Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.

Pronounced in the open court on this the 15^th day of March 2014

                                                                                      Sd/-

                                                                                    Smt. Seena. H

                                                                                      President

                                                                                             Sd/-

                                                                                    Smt. Shiny. P.R

                                                                                         Member

                                                                                              Sd/-

                                                                                    Smt. Suma. K.P

                                                                                          Member

                                                            A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1  -           Certificate of Registration (copy) of complainant’s vehicle.

Ext.A2  -           Insurance Policy Certificate (original) of complainant issued by the 1^st opposite party.

Ext.A3  -           Driving License (copy) of complainant’s husband.

Ext.A4  -           Job Card Retail Invoice (copy) issued by the Indus Motors, Karikode, Kollam to the complainant.

Ext.A5  -           Reminder Notice (copy) sent by the 1^st opposite party to the complainant dated 15/10/2012.

Ext.A6  -           2^nd Reminder Notice (copy) sent by the 1^st opposite party to the complainant dated 25/10/2012.

Ext.A7 Series - Notice (copy) sent by the complainant to 1^st opposite party dated 30/10/2012 and its Courier Service Receipt (original).

Ext.A8  -           Notice (copy) sent by the complainant to 1^st opposite party dated 16/1/2013.

Ext.A9 Series – Notice (copy) with Postal Receipt and Acknowledgement Card sent by the complainant to 1^st opposite party dated 1/3/2013.        

Exhibits marked on the side of opposite parties

Ext.B1  -           Certificate of Insurance & Policy Schedule issued by 1^st opposite party to the complainant.

Ext.B2  -           Motor Insurance Claim Form (copy) issued by 1^st opposite party to the complainant.

Ext.B3  -           Survey Report (copy).

Ext.B4  -           1^st Reminder Notice issued by 1^st opposite party to the complainant dated 15/10/2012.

Ext.B5  -           2^nd Reminder Notice sent by the 1^st opposite party to the complainant dated 25/10/2012.

Witness marked on the side of complainant

PW1  - Rosamma Varghese (complainant)

Witness examined on the side of opposite parties

Nil

Cost allowed

Rs. 1,000/- (Rupees one thousand only) allowed as cost of the proceedings.