IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 20th day of March, 2020.
Filed on 15-09-2017
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
- Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.249/2017
between
Complainant:- Opposite party:-
Smt.Ramani.P 1. Divisional Manager
W/o Prabhakaran United India Insurance Co.Ltd.
Veliparambil House, Divisional Office, Sarada
Avalookkunnu P.O. Shopping complex, Mullakkal,
(By Adv.Shalon Salus) Alappuzha-688011
(By Adv.Jayabal Menon)
2. The Chief Executive Officer
United India Insurance Co.Ltd.
4th Floor, 2216, Hardhyan Singh
Road, Karol bagh,
New Delhi- 110005
(By Adv.T.S.Suresh)
3. Maruthi Insurance broking Pvt.Ltd
Nelson Mandela road, Vasantkunj,
New Delhi- 110070
4. Hercules Auto mobiles, INT’L (P)
(Authorised Maruthi dealer)
Represented by its chief executive
Officer, Registered and Head office,
C.C.S.B. road, Palace Ward,
Chungum 688011
(By Adv.C.Parameswaran)
5. Chief Executive officer
Kotak Mahindra Pvt.Ltd.
Represented by its Manager 4th floor
Thadikkaran, Palarivattam, Cochin
(By Adv.Aparna C Menon)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986. Complainant’s case briefly stated are as follows:-
Complainant is the registered owner of Maruthi Ertiga Diesel vehicle bearing registration number KL-04-AF-2331. The vehicle is having a taxi permit valid from 06.01.2014 to 05.01.2019. The vehicle was insured with the United India Insurance Co. Ltd. and the policy is valid from 16.12.2016 to 15.12.2017. The first opposite party is the Senior Divisional Manager of United India Insurance company and second opposite party is the registered office of the company from which the complainant availed insurance policy. The third opposite party is the policy sourcer provider of Maruthi vehicle and the fourth opposite party is the authorized dealer and service provider of Maruthi vehicle. Fifth opposite party is a leading vehicle finance company from which the complainant availed loan for purchasing the vehicle.
2. The vehicle met with an accident near Pabbadumpara within the jurisdiction of Vandanmedu Police station in Idukki district. The vehicle was seriously damaged and the complainant had entrusted the vehicle with drivers named Nelson and Issac. After the accident the vehicle was taken to the garage of fourth opposite party and repairing charges were estimated as Rs.3,59,000.89/-. The surveyor attached to the third opposite party surveyed the damage, approved the estimate and gave the instruction to start repairing. As per the demand of third opposite party an amount of Rs.40,000/- was given as advance.
3. Now the fourth opposite party issued a letter to the complainant denying the claim and stating that the driver at the time of accident as entered in the claim application and in the General Diary are different. According to the 4th opposite party the driver who had driven the vehicle at the time of accident is one Issac who have no valid driving license to drive transport vehicle and he had only license to drive light motor vehicle.
4. The claim application and entries in it are prepared by the executives of 3rd and 4th opposite party and the complainant put only her signature. The person who had driven the vehicle at the time of accident is without badge to drive transport vehicle is immaterial to deny the claim for the own damages caused to the vehicle.
5. Fourth opposite party had completed the repairs of the vehicle and issued a bill insisting to pay the balance amount even though the vehicle was insured with the 2nd opposite party. First and second opposite parties are liable to indemnify the loss caused to the complainant since they are the insurers of the vehicle. The non- payment of bill amount for repairing is a serious deficiency in service on the part of the 2nd opposite party. Second and fourth opposite parties have a business tie up for providing insurance. Third opposite party is the authorized service provider and policy sourcer of first and second opposite party. So opposite parties 1 to 4 committed serious deficiency in service by refusing the claim application and refusing the return of the vehicle after repairing. Hence the complaint is filed to direct the second opposite party to make payment of the bill amount of 4th opposite party, for a direction to the 4th opposite party to return the vehicle to the complainant, and for a direction of fifth opposite party to freeze monthly installment of the complainant. It is prayed that the complaint may be allowed with cost.
6. Opposite party 1 and 2 jointly filed a version mainly contenting as follows:-
The case is not maintainable. The averments that the person who was driving the vehicle at the time of accident was without badge and having no license to drive transport vehicle is immaterial is not correct. In order to avail OD claim it is mandatory that the driver at the time of accident have valid and effective license. This opposite party repudiated the claim as per letter dated 4.7.2017.
7. The non disbursement of the own damage claim of the vehicle owned by the complainant is only for the reason that at the time of alleged accident the driver had no valid driving license. In the claim form name of the driver is stated as Nelson Thomas where as in the GD entry name of driver is stated as Issac. So it is clear that there is suppression of material facts. The said Issac had no valid and effective driving license to drive light motor transport vehicle. Hence the complainant purposefully inserted Nelson Thomas instead of Issac as driver in the claim form. Since there is contradictions in the statement in the claim form and in the GD entry extract company requested the complainant to submit a statement from the actual driver. Issac submitted a statement in which it is clearly stated that he was driving the vehicle at the time of accident. On verification of driving license it is noticed that he is holding a license to drive only non transport vehicle with effect from 14.11.2016 to 13.11.2036. Since the insured vehicle owned by the complainant is a taxi car driving license and badge are mandatory. Since the actual driver Issac was having only driving license the company repudiated the claim and the same was communicated as per the letter dated 4.7.2017.
8. The complainant has approached this Forum with utmost unclean hands by suppressing material facts. There is no deficiency of service as alleged in the complaint. The opposite party is not bound to honor the bill of the workshop as such. The payment of work shop bill is on the basis of policy condition and survey report in accordance with the guidelines of IRDA. The eligible amount as per survey report is Rs.2,36,495/-. The complainant is not entitled for any relief and hence complaint may be dismissed with cost.
9. Third opposite party filed a version mainly contenting as follows:-
Since the vehicle was being used for commercial purpose this Forum has no jurisdiction and it is not a consumer dispute. Complainant is not a consumer as defined under Sec.2(1)(d)(ii) of the Act. The role of this opposite party being a facilitator is to apprise customers about the features and benefits of motor insurance products offered by various insurance companies. This opposite party has no role to play in the present matter. No relief is claimed against this opposite party and therefore this opposite party is not a necessary party. The complaint is based on erroneous submissions and conjectures against this opposite party. The allegation of the complainant that surveyor attached to the office of the opposite party surveyed the damage and approved the estimate and gave instructions to start repairing the alleged vehicle is denied. The averments in the complaint that an amount of Rs.40,000/- was paid to this opposite party is false. This opposite party has not received such amount. This opposite party is a mere facilitator of insurance and there is no role for this opposite party. The complainant is not a consumer and there is no consumer dispute with this opposite party. Hence the complaint may be dismissed with costs.
10. Fourth opposite party filed a version mainly contenting as follows:-
There is no negligence or deficiency of service on the part of this opposite party. The vehicle in question was entrusted with the opposite party for work on 03.02.2017. This opposite party had completed the works and the vehicle is kept ready on 30.04.2017 for delivery. The complainant or the insurer had not settled the bill amount so far. The complainant is liable to pay the amount due under the bill with interest. The 4th opposite party will deliver the vehicle to the complainant on remitting the entire amount due under the bill. There is no deficiency of service from this opposite party and hence the complaint may be dismissed with cost.
11. Fifth opposite party filed a version mainly contenting as follows:-
The complaint is filed on an experimental basis. The complainant is not a consumer. It is admitted that the complainant entered into the hypothecation agreement with this opposite party for the purchase of the vehicle. It is the bounden responsibility of the complainant to ensure that adequate amounts are payable by him to the opposite party as monthly EMIs. The complainant cannot approach a Consumer Disputes Redressal Forum and seeking for direction to freeze the monthly installments. Complainant is not entitled to get any reliefs from this opposite party and hence the complaint may be dismissed with costs.
12. On the above pleadings following points arise for consideration:-
- Whether the complainant is entitled for payment of the bill amount of repairing and maintenance issued by the 4th opposite party?
- Whether the complainant is entitled to get an order to freeze monthly installments of the 5th opposite party?
- Reliefs and costs?
13. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to Ext.A9 from the side of the complainant. No oral evidence was adduced on the side of the opposite party. Ext.B1 to B5 were marked.
14. Point No.1
The case of PW1, the complainant is that she is the registered owner vehicle bearing registration number KL-04-AF-2331 which is having a valid insurance policy with the first opposite party M/s United India Insurance Company Ltd. The vehicle met with an accident on 28.01.2017 and sustained damages and O.D claim petition was filed before the first opposite party claiming an amount of Rs.3,59,000.89/-. The vehicle was entrusted with the 4th opposite party for repairs and an amount of Rs.40,000/- was given as advance. However the claim was repudiated by the insurance company on 04.07.2017 on a contention that at the time of accident the driver was not having badge to drive a vehicle which is having taxi permit. It was also contented that at the time of accident one Issac was driving the vehicle which is revealed from Ext.A4 G.D extract of Vandanmedu Police Station. According to the complainant the vehicle was driven by one Nelson who was having a valid driving license including to drive taxi vehicles. So it can be seen that the claim was repudiated by the insurance company on a contention that at the time of accident the driver was not having badge to drive a taxi cab.
15. The learned counsel appearing for the complainant relied upon a ruling of the Hon’ble Supreme Court reported in 2017 (4) KHC 648 (Mukund Dewangan Vs. Oriental Insurance Company Ltd) and pointed out that a driver who is having a license to drive light motor vehicle and is driving transport vehicle of that class is not required additionally to obtain an endorsement to drive a transport vehicle. Hence it can be seen that the contention of the learned counsel appearing for the insurance company that the driver was not having badge to drive a taxi permit vehicle is immaterial.
16. On the basis of Ext.A7 job card retail invoice PW1 is claiming an amount of Rs.3,59,898/-. However from Ext.B5 survey report produced by the insurance company it can be seen that the net claim payable is Rs.2,36,495/-. Since Ext.B5 report is prepared by an insurance surveyor / loss assessor appointed by the insurance company according to me complainant is entitled to receive the amount shown in Ext.B5. It was pointed out by the learned counsel appearing for the opposite party 1 and 2 that the claim was repudiated on 04.7.2017 and the decision of Hon’ble Supreme Court was rendered on 03.07.2017. Without noticing the decision of Hon’ble Supreme Court the claim was repudiated on a contention that the driver was not having a badge to drive a taxi permit vehicle. It was pointed out that compensation may not be granted in such circumstances. However according to me complainant is entitled to receive the amount covered by Ext.B5 survey report along with interest from the date of complaint. This point is found accordingly.
17. Point No.2
Complainant is seeking a relief to freeze the monthly instalment of the 5th opposite party. However at the time of argument the learned counsel appearing for the complainant pointed out that he is not pressing such a relief. Moreover the complainant is seen filed on 15.09.2017 and now we are in March 2020. So such a relief cannot be granted now. This point is found accordingly.
18. Point No.3
In the result complaint is allowed in part.
- Complainant is allowed to realize an amount of Rs.2,36,495/- (Two lakhs thirty-six thousand four hundred and ninety-five only) along with interest at the rate of 9% per annum from the date of complaint till realization from opposite parties 1 & 2.
- Complainant is allowed to realize an amount of Rs.3000/- (Three thousand only) as cost from opposite parties 1 & 2.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 20th day of March, 2020.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt. Sholy P.R (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Remani (Witness)
Ext.A1 - Copy certificate of registration
Ext.A2 - Copy of contract carriage permit
Ext.A3 - Copy of Insurance certificate cum policy schedule
Ext.A4 - GD Extract of Vandanmedu PS on 28.01.2017
Ext.A5 - Driving license of Mr.Nelson
Ext.A6 - Driving license of Mr.Isac
Ext.A7 - Copy of job card retail invoice
Ext.A8 - Provisional receipt
Ext.A9 - Copy of Job card Retail invoice
Evidence of the opposite parties:-
Ext.B1 - Copy of policy produced by 2nd opposite party
Ext.B2 - Copy of letter
Ext.B3 - GD Extract of Vandanmedu PS on 28.01.2017
Ext.B4 - Copy of Driving License
Ext.B5 - Copy of survey report
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
