KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURA
APPEAL NO.65/2004
JUDGMENT DATED 24.1.2011
PRESENT
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
Prof.K.J.Mariamma
Thachet House,
Opposite M.T.High School
Railway Station Road, -- APPELLANT
Kottayam 686 001
Reptd. by husband and
Power of Attorney holder
T.T.Abraham.
Vs.
The Divisional manager
New India Assurance Company Ltd -- RESPONDENT
Divisional Office,
Kottayam 686 002.
(By Adv.M.Nizamudeen)
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
The above appeal is directed against the order dated 18th December 2003 of CDRF, Kottayam in OP.No.166/98. The complaint in the said OP.No.166/98 was filed by the appellant as complainant against the respondent as opposite party (Divisional Manager, M/s New India Assurance Company Ltd; Divisional Office, Kottayam) alleging deficiency in service in repudiating the insurance claim preferred by the complainant with respect to the insured vehicle bearing Registration No.KL 5 C-7755. The opposite party entered appearance and filed written version denying the alleged deficiency in service. It was contended that there was no existing comprehensive insurance policy with respect to the vehicle bearing Registration No.KL 5/C-7755; that the said comprehensive insurance policy valid from 9.8.97 to 8.8.98 was cancelled on 8.8.97 itself at the request of the complainant/insured vide letter dated 8.8.97.
2. Before the Forum, the power of attorney holder and the husband of the complainant was examined as PW1. Exts. A1 to A 22 documents were also marked on the side of the complainant. The opposite party, the Divisional Manager of M/s New India Assurance Company Ltd; Divisional Office, Kottayam was examined as DW1. Exts.B1 to B2 documents were also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 18th December 2003 dismissing the complaint in OP.166/98. Hence, the present appeal by the complainant in OP.No.166/98 on the file of CDRF, Kottayam.
3. We heard the counsel for both parties. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the vehicle bearing Registration No.KL 5/C-7755 was having a subsisting comprehensive insurance policy on 8.9.97; the date on which the insured vehicle met with an accident. It is also submitted that the respondent/opposite party Insurance Company was liable to indemnify the complainant/insured for the damages sustained on account of the damage caused to the insured vehicle in the said accident. It is further submitted that the respondent/opposite party fabricated and concocted documents so as to make it appear that the policy was cancelled with effect from 8.8.97 and the matter regarding intimation of the cancellation was intimated the complainant/insured. He also pointed out the failure on the part of the opposite party in producing the original dispatch register maintained at the office of the opposite party during the relevant period. He also pointed out the failure on the part of the opposite party in not maintaining inward register evidencing acceptance of correspondence by the opposite party. The appellant challenged the correctness of the impugned order passed by the Forum below and argued for the position that the Forum below failed to appreciate the evidence available on record in its correct perspective. Thus, the appellant/complainant prayed for setting aside the impugned order passed by the Forum below in OP.166/98 and also for allowing the complaint in OP.166/98 on the file of CDRF, Kottayam. On the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the Forum below and argued for the position that the comprehensive policy of insurance was cancelled as per the letter dated 8.8.97 given by the complainant /insured requesting for cancellation of the said policy. He also challenged the genuineness and correctness of A5 and A6 letters said to have been issued on 11.8.97 and 1/9/97 respectively. It is also pointed out that A6 letter was issued with a pre date as 1/9/97 and the same was received by the opposite party only on 16.9.97; and that there is no reliable evidence to show that A5 letter dated 11.8.97 was issued by the complainant and that A6 letter was issued on 1.9.97. He much relied on the documentary evidence adduced from the side of the opposite party evidencing cancellation of the comprehensive insurance policy and issuance of refund endorsement copy with covering letters and also issuance of cheque evidencing refund of the premium which was collected from the complainant on the renewed comprehensive insurance policy which was cancelled with effect from 8.8.97. He also argued for the position that the comprehensive insurance policy was cancelled before its commencement and that there was no comprehensive insurance coverage for the vehicle bearing Registration No.KL 5/C-7755 on the date of the road traffic accident which occurred on 8.9.97. Thus, the respondent/opposite party justified their action in repudiating the insurance claim.
4. The points that arise for consideration are:-
1. Whether there was subsisting comprehensive insurance policy with respect to the motor car bearing Registration No.KL 5/C-7755 owned by the appellant/complainant?
2. Whether the respondent/opposite party has succeeded in establishing the case of M/s New India Assurance Company Ltd; that the comprehensive insurance policy issued to the appellant/complainant insuring the vehicle with effect from 9.8.97 to 8.8.98 was cancelled prior to the date on which the vehicle bearing Registration No.KL 5/C-7755 met with an accident?
3. Is there occurred any deficiency in service on the part of the respondent/opposite party in repudiating the insurance claim with respect to the motor car bearing Registration No.KL 5/C -7755 owned by the appellant/complainant?
4. Whether the Forum below can be justified in dismissing the complaint in OP.166/98 by finding that the complainant therein has failed to prove deficiency in service on the part of the opposite party?
5. POINTS 1 TO 4:-
There is no dispute that the appellant/complainant Professor K.G.Mariamma purchased a motor car bearing Registration No.KL 5 C-7755 from its registered owner vide sale letter dated 27.7.97 with the current comprehensive insurance policy and renewed comprehensive insurance policy valid from 9.8.97 to 8.8.98. The appellant/complainant got the said vehicle transferred into her name with effect from 27.7.97 by moving the Regional Transport Authority. She had also got the insurance policy transferred in her name. The respondent/opposite party was the insurer of the said vehicle with respect to the comprehensive insurance policies. There is also no dispute that the appellant/complainant remitted Rs.1,256/- towards recovery of 30% no claim bonus and Rs.15,000/- towards transfer fee and thereby the respondent/opposite party transferred the aforesaid comprehensive insurance policies in the name of the appellant/complainant as insured of the vehicle. Thereby, the aforesaid vehicle was having a current comprehensive insurance policy from 1.8.97 to 8.8.97and the renewed comprehensive insurance policy with effect from 9.8.97 to 8.8.97.
6. Admittedly, appellant/complainant submitted B1 letter dated 8.8.97 for getting the renewed comprehensive insurance policy valid from 9.8.97 to 8.8.98 cancelled. Ext.B1 letter dated 8.8.97 is admitted by the appellant/complainant. As per B1 letter, the appellant/complainant as insured of the vehicle bearing Registration No.KL 5/C-7755 requested the respondent/opposite party Divisional Manager, M/s. New India Assurance Company Ltd; Divisional Office, Kottayam to cancel the comprehensive policy, valid for the period from 9.8.97 to 8.8.98, because of the fact that the insured (appellant/complainant) decided to sell the insured car. As per Ext.B1 letter, the insured requested to cancel the comprehensive policy before the inception of the policy. Along with B1 letter, the insured had also surrendered the original policy. Acceptance of the aforesaid original policy is also admitted by the respondent/opposite party.
7. The case of the appellant/complainant is that the respondent/opposite party (M/s.New India Assurance Company Ltd.) did not cancel the comprehensive insurance policy and that the policy was subsisting on 8.9.97, the date on which the insured vehicle met with an accident. On the other hand, the respondent/opposite party categorically contended that the comprehensive insurance policy was cancelled with effect from 8.8.97 and that the said policy was cancelled on 8.8.97 itself at the request of the insured vide letter dated 8.8.97. The opposite party has also denied the case of the complainant that she sent the original of A5 letter dated 11.8.97 requesting the opposite party not to cancel the policy and to dismiss her application dated 8.8.97 as the same is not pressed.
8. The appellant/complainant could not adduce any acceptable evidence regarding issuance of A5 letter dated 11.8.97. It is the case of the appellant/complainant that the original of A5 letter dated 11.8.97 was sent by ordinary post. There is no case for the appellant/complainant or her husband (PW1) that the said letter was given to the opposite party by hand. It is to be noted that B1 letter requesting cancellation of the comprehensive insurance policy was handed over by the complainant to the opposite party through her husband (PW1). It is also come out in evidence that PW1, the husband of the appellant/complainant was very well known to the respondent/opposite party and the office of PW1 was also located in the very same vicinity where the office of the opposite party is situated. So, the case of the appellant/complainant regarding issuance of A5 letter dated 11.8.97 cannot be believed or accepted.
9. The appellant/complainant has also got a case that she sent a reminder by sending the original of A6 letter dated 1.9.97. It is the case of the appellant/complainant that the said letter dated 1.9.97 was also sent by ordinary post. It is to be noted that the husband of the appellant is an Advocate by profession. He was examined before the Forum below as PW1. He was having acquaintance with the respondent/opposite party, the Divisional Manager of the Insurance Company. But, even then the reminder letter dated 1.9.97 was sent by ordinary post. It is true, that the respondent/opposite party has admitted acceptance of the original of A6 letter. The said letter is produced from the side of the opposite party and marked as Ext.B14. It is the definite case of the opposite party that he received B14 letter (A6) only on 16.9.97. It is also the case of the opposite party that B14 letter was sent with a pre date as 1.9.97 and that B14 was issued only after 8.9.97, the date on which the vehicle met with an accident. The available circumstance would support the said case of the opposite party that B14 letter was issued subsequent to 8.9.97, with a pre date as 1/9/97.
10. It is also to be noted that the respondent/opposite party failed to produce the cover in which B14 letter was forwarded by ordinary post. An important aspect to be noted at this juncture is that the respondent/opposite party was fully aware of the fact that the vehicle met with an accident on 8.9.97, as he had received an intimation vide letter dated 10.9.97 issued by the appellant/complainant. B13 letter dated 12.9.97 would make it clear that the respondent/opposite party was aware of the fact that the said vehicle met with an accident on 8.9.97 and the complainant has also preferred an insurance claim to get herself indemnified for the damages sustained by her. If that be so, on getting B14 letter on 16.9.97, the opposite party would be more vigilant and diligent in keeping the cover in which B14 letter was sent by ordinary post. The postal seals affixed on the said cover would reveal the date on which it was posted by the complainant and the date on which it was received by the opposite party. The aforesaid failure on the part of the opposite party in producing the said cover would give an indication that the opposite party had received B14 letter prior to 16.9.97. It would in turn give an indication that B14 letter had received by the opposite party even prior to the accident which occurred on 8.9.97.
11. Another important aspect to be noted at this juncture is the failure on the part of the respondent/opposite party to maintain inward register evidencing acceptance of correspondence and other communications in the office of the Divisional Manager of the Insurance Company. Even if there was no practice of maintaining such register there will be some other register or document to show the correspondence or letters received in the office of the opposite party. It can be inferred that the respondent/opposite party deliberately suppressed the said document evidencing acceptance of letters and other correspondence including B14 letter dated 1.9.97. The testimony of DW1 that there is no practice of maintaining inward register in his office namely, Divisional Office, New India Insurance Company Ltd; Kottayam is highly improbable to believe. The aforesaid evidence of DW1 that there is no document evidencing acceptance of letters and other correspondence from their customers and other parties cannot be believed. The aforesaid deposition made by DW1 can be treated as an utter falsehood. All the public offices are expected to maintain inward register or some other document to show the letters or other correspondence received in that public office. The failure to maintain any such document would show the irresponsibility amounting to deficiency in service.
12. It may be correct to say that B14 letter was issued by the appellant/complainant to make it appear that she had sent an earlier letter dated 11.8.97. But the available circumstance would give an indication that the appellant/complainant was not interested to cancel the comprehensive insurance policy though she issued B1 letter and that she opted to have the comprehensive insurance policy for the vehicle because of the fact that she had given up her idea to sell the vehicle.
13. Issuance of the renewed comprehensive policy for the period from 9.8.97 up to 8.8.98 is admitted. Then it is for the respondent/opposite party/insurer to substantiate his case regarding cancellation of the said policy which had been issued in favour of the appellant/complainant by receiving the insurance premium. The definite case of the respondent/opposite party is that the policy was cancelled on 8.8.97 itself, and that the cancellation was effected on the strength of B1 letter dated 8.8.97.
14. Issuance of B1 letter is admitted by the appellant/complainant. B1 letter can only be treated as an offer on the part of the appellant/complainant to get the insurance policy cancelled. Then it was for the respondent/opposite party/insurer to accept the aforesaid offer. But the respondent/opposite party has not produced any convincing evidence to substantiate his case that the said offer was accepted and by accepting the said offer, the comprehensive policy was cancelled on 8.8.97 itself. Ext.B2 is the comprehensive policy issued in the name of the appellant/complainant with respect to the vehicle No.KL 5/C-7755 for the period from 9.8.97 to 8.8.98. There is an endorsement on B2 policy that it is cancelled. But, the said endorsement is not signed by any authority of the insurer. There is also no date indicating cancellation of the said comprehensive policy. B3 is motor extra endorsement. There is nothing in B3 document indicative of the fact that B2 comprehensive policy was cancelled with effect from 8.8.97.
15. The respondent/opposite party was examined as DW1. He could not give any convincing explanation for non-production of the dispatch register. Ext.B20 is only a portion of the dispatch register. The genuineness and correctness of B 20 photocopy of portion of the dispatch register is disputed by the appellant/complainant. DW1 was also cross examined about the genuineness and correctness of B 20 copy of dispatch register. It was also suggested that the name of the complainant written in B 20 is on a different handwriting. To the said suggestion, DW1 could not give any explanation; but he gave an evasive answer that he wants verification. DW1 was also cross examined with respect to B4 and B5 documents. The answers given by DW1 with respect to the entries in B4 and B5 documents would show that it is not safe to rely on the entries in B4 and B5 documents. So, the case of the respondent/opposite party that the policy was cancelled on 8.8.87 cannot be accepted on the basis of the entries in B4 and B5 documents.
16. It is also to be noted that the original policy issue register and premium refund register have not been produced from the side of the respondent/opposite party Insurance Company. No explanation is forthcoming for non production of the original registers. Thus, in effect, there is no acceptable evidence to show that the comprehensive policy was cancelled on 8.8.87 or with effect from 8.8..97. There is also nothing on record to show that the comprehensive policy which was issued in the name of the appellant/complainant was cancelled prior to 8.9.97, the date on which the insured vehicle met with an accident.
17. Respondent/opposite party Insurance Company much relied on B6 Act only policy dated 8.8.97 issued in the name of the appellant/complainant with respect to the vehicle No.KL 5/C 7755. B6 document would show that the aforesaid Act only policy was issued on 8.8.97 for the period from 9.8.97 to 8.8.98. The appellant/complainant has also admitted payment of Rs.210 by way of premium for the aforesaid Act only policy. The appellant/complainant has got a case that the original of B6 policy was not issued on 8.8.97, the date on which the premium was paid. But, the aforesaid case of the complainant cannot be believed or accepted. B6 document would show that the said act only policy was issued on 8.8.97 itself. The issuance of Act only policy over and above the comprehensive policy cannot be taken as a ground to hold that the comprehensive policy was cancelled on issuance of the original of B6 Act only policy.
18. Issuance of Act only policy would support the case of the complainant that on 8.8.97 she had an idea to sell the vehicle and so she submitted B1 letter dated 8.8.97 to get the comprehensive policy cancelled and that for getting the said policy cancelled the complainant remitted Rs.210/- towards the premium for Act only policy and that the said act only policy was taken at the instance of the respondent/opposite party. B6 act only policy would not strengthen the case of the opposite party that the comprehensive policy was cancelled on 8.8.97 itself.
19. Ext.B7 is photocopy of motor refund endorsement copy. B7 is only a photocopy. The original of B7 has not been produced by the opposite party. The entries in B7 motor refund endorsement copy would show that the said document was issued on 26th August 1997 and thereby a sum of Rs.4,369/- is found as net payable refund amount. The entries in B7 would show that the comprehensive policy is cancelled from the inception of the policy and it was cancelled on the basis of policy cancellation letter dated 8.8.97 received from the insured. It is further stated that in consequence whereof sum of Rs.4,370/- is allowed to the insured towards refund of the premium. It is to be noted that in B7 Rs.4370 is found as the refundable amount and thereby sum of Rs.4370/- is allowed to the insured towards the refund of the premium. The details of the refund are also shown in B7 document. The aforesaid calculation or computation in B7 document would show Rs.4369/- is the net payable refund amount. Thus, there is slight difference in the actual amount due to the insured by way of refund amount. At one place, it is held in B7 that Rs.4,370/- is the amount allowed towards refund of the premium. But, at the bottom the refund amount is shown as 4,369/-. The definite case of the opposite party is that they ordered refund of Rs.4,369/-. Ext.A18 (a) premium refund voucher and Ext.A 18 (b) copy of the cheque drawn on Central Bank of India, Kottayam for Rs.4,369/- would give an indication that the opposite party ordered refund of Rs.4,369/- only. So, the minor difference in the said amount would also create doubt about the genuineness of B7 document.
20. Ext.A18 (a) premium refund voucher is dated 26.8.97 with refund endorsement No..31/40030. The amount covered by the said voucher is Rs.4,369/-. But, at the same time the date of issue of that voucher is shown as 4.9.97. No reasonable explanation is forthcoming from the side of the opposite party for the failure to prepare the premium refund voucher on 8.8.97 itself. It is the case of the opposite party that B1 letter dated 8.8.97 was received on that day itself and based on B1 letter requesting cancellation of the policy, the said policy was cancelled with effect from 8.8.97 itself. But there is no reliable and acceptable evidence to support the case of the opposite party that the aforesaid renewed comprehensive policy was cancelled on 8.8.87 itself. In fact, if the said policy was cancelled based on B1 letter dated 8.8.87, then there would not be any delay in preparing the original of A18 (a) refund voucher dated 26.8.97. No reasonable explanation is forthcoming for preparing the premium voucher on 26.8.97. It is further to be noted that there occurred further delay in issuing the very same voucher dated 26.8.97. Admittedly, A18 (a) was issued only on 4.9.97. There occurred delay of 9 days for issuing the said premium refund voucher. This circumstance would create genuine doubt about the correctness and genuineness of the preparation of Ext.A18 (a) premium refund voucher.
21. It is also to be noted that the person who prepared the premium refund voucher and the original of A18 (b) cheque is not examined in this case. DW1 has no idea about the person who prepared Ext.A18 (a) and (b) documents and also B7 motor refund endorsement copy. B7 is also dated 26.8.97. No explanation is forthcoming for the delay in preparing B7 motor refund endorsement copy. A perusal of B7 document would also make it appear that the comprehensive policy was cancelled by the opposite party/Insurance Company on 26.8.97. In B7 motor refund endorsement copy, the endorsement is as follows:-
Full wordings of endorsement
22. It is hereby declared and noted that the within mentioned policy stands cancelled from inception of the policy on the basis of policy cancellation letter dated 8.8.97 received from the insured.
23. In consequence whereof sum of Rs.4370/- (Rupees four thousand three hundred and seventy only) is allowed to the insured towards refund of the premium as under:
Calculation premium under policy No.31/50930 - 3017 + 151
Premium collected under Endt.No.31/30093 (NCB) - 1195 + 61
4212 + 212
Less minimum premium 50 + 3
4162 + 209
Less policy stamp 1 + 000
Net payable refund amount : Rs.4161+ 208 ie; Rs.4369/-
======
Issued at Kottayam ie; 26th day of August 1997.
24. The aforesaid recitals in B7 would give an indication that the cancellation was ordered only on 26.8.97. It would in turn make it appear that the opposite party accepted the B1 (offer) letter only on 26.8.97. It is pertinent to note that the offer or request made by the complainant/insured for getting the renewed comprehensive policy cancelled was accepted by the opposite party/Insurance Company only on 26.8.97. If that be so, there cannot be any cancellation of the policy with retrospective effect. It is pertinent to note that there is no provision in the policy of insurance to make the cancellation of the policy with retrospective effect. It is also to be noted at this juncture that the aforesaid comprehensive insurance policy was for the period from 9.8.97 to 8.8.98. Thus, on the date of acceptance of B1 letter, the policy has already commenced. There is nothing on record to show that the opposite party/Insurance Company stopped the commencement of the policy from 9.8.97. It is only on 26.8.97 they accepted B1letter and based on B1 letter, the comprehensive policy was cancelled. So, the cancellation was effected only on 26.8.97 by virtue of B7 letter. B7 letter has not been proved or established by the opposite party. These circumstances would negative the case of the opposite party regarding cancellation of the comprehensive policy from the very inception of the policy. There cannot be any cancellation of the said policy from the inception by giving retrospective effect. The opposite party could not point out any provision to cancel the policy with retrospective effect or operation. So, the case of the opposite party that the said policy was cancelled on 8.8.87 cannot be believed or accepted.
25. Ext.B 32 is the refund voucher book maintained by the opposite party, the New India Assurance Company Ltd. B 32 voucher book was produced by the opposite party and marked as Ext.B 32 (B 28). The entries in carbon copies of the said voucher book would show that the data for the period ranging from October 94 up to 3.3.99. Other carbon copies of the vouchers would make it very clear that those vouchers were issued on the very same date on which the vouchers were prepared. In other words, the dates of the said vouchers and dates of issue are noted as one and the same. No instance is available other than the disputed voucher regarding the date of the vouchers and the issue date of the vouchers. With respect to all the vouchers, the date of preparation of the voucher and date of issuance of the voucher are one and the same. But, only in the case of the voucher said to have been forwarded to the complainant, the date of preparation of the voucher is shown as 26.8.97 and date of issue is shown as 4.9.97. Why the aforesaid difference between the date of preparation of the voucher and date of issuance of the said voucher? More over, a perusal of the said voucher would show that a number of vouchers are prepared for refund of Rs.4,369/- to the complainant/insured. A close scrutiny of the carbon copies of these vouchers would make it crystal clear that there were corrections regarding the date of issue and also regarding the date of preparation of the said vouchers. In some vouchers, the date 26.8.97 has been corrected. In some other vouchers, the date of issue as 4.9.97 has been corrected. These corrections would give a clear indication that there was manipulation regarding the date of issue and date of preparation.
26. DW1 was cross examined on these aspects regarding the preparation of a number of vouchers for refund of Rs.4,369/- and also regarding the corrections with respect to dates made in these vouchers. But, DW1 could not give any reasonable and acceptable explanation for those corrections. It is to be noted that there was no need to prepare so many vouchers and also to make corrections with respect to the dates of those vouchers and date of issuance of those vouchers. These circumstances would make the case of the respondent/opposite party unacceptable. But, the Forum below failed to give due weight to these glaring discrepancies and in-consistencies. In effect, the Forum below failed to appreciate the documentary evidence available on record in its correct perspective.
27. DW1 has got a case that cancellation of the policy and refund endorsement etc. were prepared and issued by an officer of the Insurance Company by name Satheesh kumar. But, the aforesaid officer Satheesh kumar has not been examined before the Forum below. There is also nothing on record to show that such an officer was available in the office of the opposite party at the relevant time. There can be no doubt about the fact that the aforesaid officer Satheesh kumar was the suitable and competent witness to depose about ncancellation of the policy on 8.8.87 itself, or preparation of the endorsement on 26.8.97 and issuance of the voucher and other correspondence to the complainant on 4.9.97. He alone can be treated as the competent witness to depose about refund voucher and connected documents. The failure of the opposite party to examine the aforesaid officer Satheesh kumar would make the case of the opposite party un-believable and unacceptable. No reasonable explanation is forthcoming for failure of the opposite party in examining the aforesaid officer who cancelled the policy. The available documentary evidence and the oral evidence on record would make the case of the opposite party regarding cancellation of the policy before 8.9.97 un-believable and unacceptable. On the other hand, the available evidence and materials on record would give a reliable indication that the comprehensive policy was cancelled by the opposite party/Insurance Company only after the accident of the insured vehicle on 8.9.97. In other words, it can very safely be concluded that the comprehensive insurance policy was subsisting on 8.9.97, the date on which the said vehicle met with a road traffic accident.
28. The respondent/opposite party has got a case that the Insurance Company issued the original B8 letter dated 27.8.97 to the complainant/insured Mariamma and along with B8 covering letter they also forwarded the original of B9 voucher. The respondent/opposite party has also got a case that subsequent to B8 letter they issued B10 letter dated 5.9.97 by way of a reminder of B8 letter. But, there is nothing on record to substantiate the case of the respondent/opposite party that they issued B8 and B10 letters dated 27.8.97 and 5.9.97 respectively to the complainant. The opposite party failed to produce the original dispatch register to substantiate their case that B8 and B10 letters were issued from the office of the opposite party to the appellant/complainant. Ext.B20, copy of 2 pages of the dispatch register would not show issuance of B8 and B10 letters to the complainant. No reasonable explanation is forthcoming from the side of the opposite party for failure to produce the original dispatch register to show that B8 and B10 letters were issued to the appellant/complainant (insured). The dispatch register can be considered as the best piece of evidence to substantiate or establish the case of the respondent/opposite party that they issued B 8 and B10 letters to the complainant intimating the cancellation of the policy and forwarding of the refund voucher dated 26.8.97. This is a very strong circumstance that would go against the case of the respondent/opposite party/Insurance Company. In effect, the respondent/opposite party/Insurance Company suppressed the material evidence available with the Insurance Company.
29. A very genuine doubt would arise as to what prompted the opposite party to suppress those material and relevant piece of evidence. The answer to the said question is very simple. The production of those material, relevant and important piece of evidence would go against the opposite party/Insurance Company and that the very production of those documents would make the case of the opposite party un-acceptable. This circumstance would make it more clear that the case of the respondent/opposite party that they had cancelled the comprehensive policy prior to the date of the accident which occurred on 8.9.97 is only a cooked up story and the said case was developed to negative the genuine insurance claim preferred by the appellant/complainant as insured of the vehicle which was covered by a comprehensive insurance policy valid from 9.8.97 up to 8.8.98.
30. The forgoing discussions and findings thereon would make it clear that there was a subsisting comprehensive insurance policy with respect to the motor car bearing registration No.KL 5/C 7755 on 8.9.97, the date on which the insured vehicle met with an accident. The case of the respondent/opposite party/Insurance Company that the aforesaid comprehensive insurance policy was cancelled from the very inception based on B1 letter cannot be accepted and that the said case was developed by the respondent/opposite party/Insurance Company in order to negative the genuine insurance claim preferred by the appellant/complainant. These findings would in turn establish the deficiency in service on the part of the respondent/opposite party/Insurance Company (insurer) in repudiating the insurance claim preferred by the appellant/complainant (insured). If that be so, the Forum below cannot be justified in dismissing the complaint in OP.No.166/98.
31. The appellant/complainant as insured of the vehicle bearing registration No.KL 5/C 7755 filed the complaint in OP.166/98 claiming Rs.21,900/- towards repairing charge including tugging charges, cost of battery etc. The complainant has also claimed interest at the rate of 18% per annum on the said sum of Rs.21,900/-. It is an admitted fact that the appellant/complainant got the damages assessed by an approved insurance surveyor. Ext.A11 is the motor survey report dated 25.9.97 issued by K.J.Philip approved surveyor/valuer and loss assessor. As per A11 survey report, the approved surveyor assessed the loss at Rs.12,365/-.The appellant/ complainant has no quarrel about the loss assessed by the aforesaid approved surveyor Mr.K.J.Philip. There is no circumstance and other evidence available to discard the loss assessed by the approved surveyor vide A-11 motor survey report. The case of the complainant that he incurred amount for purchasing new battery for his vehicle cannot be taken as an expense incurred by the complainant/insured for rectifying the damage caused to the insured vehicle. There is also no acceptable evidence to substantiate the claim for Rs.21,900/- towards repairing charge. So, this Commission is of the view that the appellant/complainant being the insured of the vehicle is entitled to get only Rs.12,365/- by way of the legitimate insurance claim due to the complainant from the opposite party, the New India Assurance Company Ltd.
32. The complainant has also claimed another sum of Rs.20,000/- as compensation for mental agony, hardships and losses suffered by the complainant. But, the aforesaid claim under the head mental agony, hardship and losses cannot be upheld. The mere fact that there occurred deficiency in service on the part of the opposite party/Insurance Company in repudiating the insurance claim cannot be taken as a ground to hold that the complainant suffered mental agony or any other hardships. It is also to be noted that the reasonable insurance claim due to the complainant/insured would come to Rs.12,365/-. The mere fact that there occurred delay in getting the said amount or that the said claim was repudiated by the Insurance Company cannot be taken as a ground to hold that the complainant a Professor by profession suffered mental agony or hardships on account of the denial of a sum of Rs.12,365/-. So, the claim for compensation of Rs.20,000/- under the head mental agony, hardships etc. is disallowed.
33. The complainant has claimed Rs.2,500/- by way of cost. It is to be noted that the complainant incurred expenses to get the loss assessed by an approved surveyor. She had also taken the pain to adduce elaborate evidence including documentary as well as oral evidence to substantiate her claim for the insurance amount. Considering all those aspects, the claim by way of cost is to be allowed. So, this State Commission is pleased to award cost of Rs.2,500/- to the appellant/complainant.
34. The complainant has also prayed for getting the comprehensive insurance policy which was surrendered before the opposite party/Insurance Company. The aforesaid prayer is to be allowed. Though, no purpose will be served by getting the comprehensive insurance policy which has been lapsed by 8.8.98. So, the complaint in OP.166/98 is allowed to the extent as indicative above. These points are answered accordingly.
In the result, the appeal is allowed. The impugned order dated 18.12.03 passed by CDRF, Kottayam in OP.166/98 is set aside. The complaint in OP.166/98 is allowed partly. Thereby, the respondent/opposite party, the Divisional Manager, M/s. New India Assurance Company Ltd; Divisional Office, Kottayam is directed to pay the complainant a sum of Rs.12,365/- by way of the insurance claim due to the complainant on the strength of the comprehensive insurance policy issued by the opposite party/Insurance company with respect to the vehicle No.KL 5 C-7755 valid for the period from 9.8.97 to 8.8.98. The appellant/complainant is also entitled to get interest at the rate of 9% per annum on the said sum of Rs.12,365/- from the date of the complaint in OP.166/98 till the date of payment with cost of Rs.2,500/-. The respondent/opposite party is also directed to hand over the comprehensive insurance policy which was valid for the period from 9.8.97 to 8.8.98 with respect to the vehicle No.KL 5 C-7755. The respondent/opposite party is given one month time from the date of receipt of copy of this Judgment, for compliance of this Judgment.
M.V.VISWANATHAN -- JUDICIAL MEMBER
M.K.ABDULLA SONA -- MEMBER
