IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of June, 2017.
Filed on 17/06/2015
Present
1. Smt. Elizabeth George, President
2. Smt. Jasmine.D. (Member)
in
C.C.No.186/2015
Between
Complainant:- Opposite Parties:-
Sri. T.V.Sudharsanan, The New India Assurance
S/o Viswanathan, Co.Ltd, Rept by its Branch
Thekkethalakal House Manager, Vaikom Branch
Arthunkal PO, Cherthala Taluk NS.S.Union Building,
Alappuzha. Vaikom PO 686 141
(By Adv.V.N. Subhangan & (By Adv.C. Muraleedharan)
D.Deepak)
O R D E R
SMT ELIZABETH GEORGE ( PRESIDENT)
The case of the complainant is as follows:-
The complainant is the registered owner of vehicle No.KL32E5255 S.K 407 tipper. He insured his vehicle with the opposite party for the period from 09/01/2014 to 08/01/2015 and the policy taken was commercial vehicle package policy. The vehicle met with a road accident on 11/07/2014 near Ennikkara junction at Thiruvananthapuram. The intimation of the accident was given to the opposite party and vehicle was inspected by the representative of the opposite party. As per the direction of opposite party the vehicle was taken to Popular Mega Motors Pvt.Ltd for repairs, who gave an estimate of repairs to the tune of Rs.2,30,074/-. Since there was delay in getting the amount from the opposite party the complainant paid the amount to the Popular Mega Motors Pvt.Ltd on 26/12/14. Complainant paid Rs. 10,400/- to the Kavery Crane & Recovery Service for taking vehicle to the service center. Complainant lodged claim for the insurance amount to the opposite party but it was repudiated by the opposite party on the ground of overloading of persons. Alleging deficiency in service on the part of opposite party the complaint is filed.
2.Version of the opposite party is as follows:
Complaint is not maintainable. The Forum has no territorial jurisdiction to entertain the matter. All the averments in the complaint are not fully correct hence denied. The opposite party issued a Commercial vehicle package policy to the vehicle KL-32E/5255 a tipper lorry for the period from 9/1/14 to 8/1/15. The complainant had submitted a claim form on 17/7/14 that the vehicle met with a accident on 11//7/14 and damaged. Immediately surveyor was appointed for spot inspection and assessment. The surveyor submitted the report. On perusal of police records it was found the vehicle was carrying 5 persons in addition to driver which is against the RC which allows only 3 persons including the driver. More over the vehicle is goods carriage one not allowed to carry passengers of any type. The carrying of excess person is against the policy condition hence the claim was repudiated. The complainant made application before the grievance cell which replied with the same reasons. Hence the complainant is not entitled to get any amount from the opposite party. The company acted fairly, reasonably, justifiably within the frame work of policy, hence there is absolutely no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed with cost.
3.The complainant was examined as PW1. The documents produced were marked as Ext.A1 to A8. Opposite party was examined as RW1 and documents produced were marked as Ext.B1 to B7. The Surveyor was examined as RW2.
4.Points for considerations are:
1) Whether the complaint is maintainable?
2) Whether there is any deficiency in service on the part of opposite party?
3) If so the reliefs and costs?
Point No.1
According to the opposite party the policy was issued from Vaikom a place at Kottayam District, the accident occurred at Thiruvananthapuram and hence cause of action or part of cause of action has arisen within the jurisdiction of this Forum. The version in this case is filed by the opposite party New India Assurance Co.Ltd represented by Divisional Manager Alappuzha. As per Section 11 sub clause 2(b) a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction “ any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution or”. Since there is branch office at Alappuzha the cause of action has arisen within the jurisdiction of this Forum and hence the complaint is found maintainable.
Point No.2
It is an admitted fact that the vehicle was insured with the opposite party for the period from 9/1/14 to 8/1/15. There is no dispute with regard to the accident on 11/7/14. According to the complainant the opposite party repudiated the claim stating that the vehicle was overloading of persons than the approved number of persons allowed in the vehicle. Ext.A6 is the letter dated 2/3/15 issued by the opposite party repudiating the claim of the complainant. So the only question is that whether at the time of the accident the vehicle was overloaded or not and whether the vehicle was carrying the persons beyond permitted seating capacity of the vehicle or not. According to the opposite party as per the police records the vehicle was carrying 5 persons in addition to driver which is against the RC which allows only 3 persons including the driver. On verifying FIR it is seen that the vehicle was carrying 5 persons in addition to driver. As per the RC produced by the opposite party which marked as Ext.B4 the seating capacity of the vehicle was 3. But there is nothing on record to show that overloading of the vehicle has contributed to the accident of the vehicle. Hence we are of opinion that merely because 2 persons beyond the permitted seating capacity were travelling in the vehicle at the time accident it cannot be said that the complainant has violated the terms and conditions of the insurance policy. The claim of the complainant cannot be repudiated on that ground and it amounts to deficiency in service on the part of opposite party. The Hon’ble Apex Court in the case of Amalendu Sahoo Vs Oriental Insurance Company Limited II (2010)CPJ 9 (S.C) allowed the quantum of compensation at 75% if there is no fundamental breach of terms and conditions of the policy. Relying upon the said decision we are of opinion that complainant is entitled to get compensation on non-standard basis.
According to the complainant he paid repair charges of the vehicle at the tune of Rs.2,30,074/- . In order to substantiate this he produced the receipt issued by the Popular Mega Motors Ltd dtd 26/12/14. According to the opposite party the surveyor assessed the damages and the amount arrived by them is only Rs. 1,13,300/-. In order to substantiate the contention opposite party produced the survey report which marked as Ext.B3. It is a well settled principle of a law that the surveyor report is an authenticated documents and the same cannot be brushed aside. As per Ext.B3 survey report the net liability on account of the damages caused to the vehicle is Rs. 1,17,192.02. Hence complainant is entitled to get 75% of the 1,17,192/-.
In the result complaint is allowed.
Opposite party is directed to pay Rs.87,894(75% of 1,17,192) towards compensation with interest at the rate of 9% from the date of repudiation of the claim amount ie from 2/3/15 till realization. Opposite party is further directed to pay Rs.5000/- to the complainant towards compensation for the mental agony and Rs. 2000/- towards cost the proceedings. Failing which the amount will carry interest at 12% per annum till its realization.
The Order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in the open Forum on this the 30th day of June 2017.
Sd/- Smt. Elizabeth George (President)
Sd/- Smt. Jasmine.D (Member)
Appendix
Evidence of the complainant
PW1 -T.V.Sudharsanan(Witness)
Ext.A1-Copy of Policy Schedule cum Certificate of Insurance
Ext.A2-Copy of receipt issued from Popular Mega Motors Ltd dtd 26/12/14
Ext.A3-Copy of bill issued from Kavery Crane &Recovery Service
Ext.A4-Copy of Invoice issued from Popular Mega Motors (India)Ltd
Ext.A5-Copy of letter to OP
Ext.A6-Copy of repudiation letter dtd 2/3/15 issued by Sr.Branch Manager
Ext.A7-Copy of letter to Grievance Cell dtd 17/3/15
Ext.A8-Copy of reply letter dtd 15/5/15
Evidence of the Opposite party
RW1-Aprain Thomas(Witness)
RW2-P.S.Suresh Babu(Witness)
Ext.B1-Copy of policy Schedule cum Certificate of Insurance
Ext.B2-Copy of Motor Claim Form
Ext.B3-Copy of Survey Report
Ext.B4-Copy of Certificate of Registration
Ext.B5-Copy of FIR
Ext.B6-Copy of Repudiation letter of Branch dtd 2/3/15
Ext.B7-Copy of repudiation of DO dtd 15/5/15
//True Copy//
By Order
Senior Superintendent.
To
Complainant/Opposite party/S.F
