Tamil Nadu

StateCommission

CC/16/2010

Murugesan,S/o.Manickam - Complainant(s)

Versus

The General Manager,National Insurance Co.Ltd., - Opp.Party(s)

M/s.Vedavallikumar

21 Apr 2015

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:  THIRU.J.JAYARAM,                  PRESIDING JUDICIAL MEMBER.

                  TMT.P.BAKIAVATHY,                 MEMBER.

 

 

C.C.No.16/2010

 

DATED THIS THE 21^st DAY OF APRIL 2015.

 

Murugesan,

S/o. Manickam,

No.1/33 Narayanapalayam,

Morur Post,

TiruchengodeTaluk,

Nammakkal District – 637 304.                                 Complainant

 

Vs

 

1.  The General Manager,

     National Insurance Company Limited,

     No.3, Middletan Street,

     Post Box No.9229,

     Kolkatta – 700 071.

 

2.  The Division Manager,

     National Insurance Company Limited,

     Divisional Office,

     Salem.

 

3.  The Branch Manager,

     National Insurance Company Limited,

     Branch Office,

     81-D, Chetty Street,

     Opp.Old Bus Stand,

     Tiruchengode – 637 211.                                     Opposite Parties

 

 

Counsel for Complainant                  :    M/s. Vedavalli Kumar, Advocate.

Counsel for Opposite Parties             :  M/s. M.B. Gopalan, Advocate.

                   This complaint coming before us for final hearing on 03-03-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:

ORDER

 

THIRU. J. JAYARAM, PRESIDING JUDICIAL MEMBER.

 

1.                The case of the complainant as per the amended complaint is as follows:- 

                   The complainant had insured his lorry with rig mounting compressor unit bearing Registration No.KA-01-MG-3888 with the 2^nd opposite party for the period from 03.01.2008 to 02.01.2009. The policy was issued as per the proposal form given on 02.01.2008 and the policy No.is 650401/31/07/6300005123  and this policy is followed with the renewal and not a fresh policy every time and every renewal policy will be issued as per the proposal given by the insured.  The complainant had submitted the proposal form as per the opposite parties’ requisition on 02.01.2008 and the compressor’s name was mentioned as Kirloskar Air Compressor.  The opposite party received the proposal form on 02.01.2008 and issued a Xerox copy to the complainant and issued the policy as per the proposal given by the complainant.

2.                The vehicle met with fire accident on 20.03.2008 at about 2.30 PM, after doing service work in the Rig Units, Work shop, Sankari Road, in Tiruchengode, at the time of starting the compressor for check-up, when suddenly a spark came out due to short circuit in the compressor and the compressor and then the lorry also caught fire along with 2 other vehicles and a complaint was lodged with Tiruchengode Town Police Station and the police registered a case on 21.03.2008. The accident was duly intimated to the opposite party and sport survey was also done. The complainant submitted claim form to the 3^rd opposite party with all necessary particulars claiming compensation of Rs.41,58,694/- and a final  survey was done and claim was total loss claim.

3.                The opposite party had sent a letter dated 22.07.2008 in which the 3^rd opposite party returned the claim stating that fire occurred due to faulty repair works of the repairer at repairer’s premises after repairs and the fire damaged compressor unit is not covered under the policy. It is to be noted that when the previous policy was issued with the air compressor coverage and the renewal policy also was issued with the coverage of air compressor and so the 3^rd opposite party’s letter that the compressor unit was not covered under the policy is untenable. The policy was issued as per the proposal given by the complainant and without proposal no insurance company will issue any policy. In the policy issued by the 3^rd opposite party it is clearly mentioned that a sum of Rs.23,50,002/- for non-electrical accessory which clearly indicates the policy covers the compressor also. The value of the lorry was also mentioned as Rs.4,99,998/- and in total IDV of the vehicle was given as Rs.28,50,000/-.

4.                Per contra, the 2^nd opposite party in this letter dated 22.07.2008it is stated that the policy did not cover the compressor for which the complainant sent a reply letter dated 06.08.2008 and the 3^rd opposite party sent a reply dated 18.08.2008 stating that they had forwarded the complainant’s reply dated 06.08.2008 to the 2^nd opposite party for further proceedings with the claim of the complainant and the complainant submitted that  a registered Sangam namely “Tiruchengodu Lorry Urimaiyalargal Sangam”, Nammakkal District sent a letter dated 06.08.2008 to the 3^rd opposite party requesting them to settle the claim of the complainant, in response to which the 3^rd opposite party had sent a reply dated 10.12.2008 stating that Kirloskar compressor unit which was initially mounted in the lorry had been replaced with new compressor Atlas make which was endorsed in the policy dated 07.02.2007 and thereafter without any intimation, the complainant had replaced the compressor with a 2^nd hand reconditioned compressor which was not duly endorsed in the contract of insurance and so they are not liable for the claim and hence the claim was repudiated.

5.                When the policy was renewed the fitting of the 2^nd hand reconditioned compressor was intimated and only after that the renewed policy was issued and in the policy no where it is stated that the policy did not cover the compressor. Therefore the repudiation of the claim amounts to deficiency in service and unfair trade practice. Hence the complaint praying for direction to the opposite parties to grant the insurance claim amount of Rs.28,50,000/- and to pay compensation of Rs.10,00,000/- for mental agony and sufferings and to pay costs.

6.                The opposite parties filed version stating as follows:-

          The validity of the insurance policy is admitted; however in respect of policy amount for the period from 03.01.2008 to 02.01.2009 there was no intimation, of change in the compressor unit mounted on the  rig/vehicle and only after the claim it was found that the complainant had replaced the earlier compressor unit with a 2^nd hand reconditioned compressor unit and the change of compressor was not endorsed in the contract of insurance and so the complainant is not entitled to claim benefits under the policy.   

7.                The fire accident appears to have occurred due to faulty repair works of the repairer at the repairer’s premises after repairs and as such the claim was found to have occurred not due to any insured peril and on this score also the complainant is not entitled to claim compensation and there is no deficiency in service or unfair trade practice.

8.                The complainant filed proof affidavit reiterating the averments and the allegations in the complaint along with Ex.A1 to A20 and the opposite parties filed proof affidavit along with 13 documents marked as Ex.B1 to B13.

9.                The points for consideration are:-

                   (1)  Whether there is deficiency in service or unfair trade

                          practice on the part of the opposite parties?

                   (2)  Whether the complainant is entitled to claim compensation

from the opposite parties?

 (3)   To what relief the complainant is entitled?

 

POINT No.1 &2 :

10.               The contention of the complaint is that he had insured his lorry with rig mounting compressor unit bearing Registration No.KA-01-MG-3888 with the 3^rdopposite party from 2006 and thereafter renewed every year and on 20.03.2008 at about 2.30 PM after repair work of over, at the time of starting the compressor for check-up, suddenly a spark came out due to short circuit in the compressor and the compressor caught fire and then the lorry also caught fire along with 2 other vehicles and that the claim was repudiated by the opposite parties which amounts to deficiency in service on the part of the opposite parties.                  

11.               Per contra the opposite parties contended, that the replacement of the compressor by a 2^nd hand reconditioned compressor was not intimated to them and hence the complainant is not entitled to claim under the policy and also that the incident took place only due to faulty repair works of the repairer at repairer’s premises after repair and the damaged compressor unit is not covered under the policy.

12.               It is pertinent to note that the proposal form dated 02.01.2008 is marked as Ex.A19 complainant side and as Ex.B3 on the side of the opposite party and in the proposal form, the non-electrical access fitted to the vehicle is shown as  Rs.23,50,000/- and also it is clearly stated that there is coverage  for Kirloskar air compressor and rig mounting and it follows that the coverage of the compressor stated in the proposal goes to show that there is coverage for the compressor in the policy and from these it is patently evident that this policy covers the compressor also and so the contention of the opposite parties that there is no policy coverage for the compressor is untenable.

13.               Admittedly, the original rig/vehicle was fitted with Kirloskar make compressor unit and subsequently it was replaced with a new compressor of Atlas make which was endorsed to the policy on 07.02.2007, however in respect of the impugned policy No.650401/31/07/6300005123 for the period from 03.01.2008 to 02.01.2009 the replacement of the compressor unit mounted on the rig/vehicle was not intimated to the opposite party and so the claim relating to the compressor unit is unsustainable.

14.               It is argued by the complainant that the opposite party is bound by its own conditions stipulated by them in the policy and there is no exclusion clause regarding the failure to intimate the replacement of the compressor and as per Section 1 (i) Loss of damage of the vehicle insured categorically stipulates that the insurance company will indemnity the insured against the loss of damage of the vehicle insured and or its accessories whilst there on (a) by fire explosion, self-ignition or lightning.

15.               Therefore the contention of the complainant in this regard holds good and the claim cannot be repudiated on this ground by the opposite parties.

16.               Further we find no merit in the contention of the opposite parties that the fire occurred due to faulty repair works of the repairer at the repairer’s premises after repair and so, the complainant cannot claim any compensation under this policy.

17.               For the aforesaid reasons, we hold that repudiation of the claim of the complainant amounts to deficiency in service and unfair trade practice on the part of the opposite parties and the complainant is entitled to claim compensation from the opposite parties and the points are answered accordingly.

POINT No.3         

18.               The complainant has claimed the insurance claim amount of Rs.28,50,000/- and a sum of Rs.10,00,000/- for mental agony and sufferings and costs. The incident has taken place on 20.03.2008 and the claim has been repudiated on 10.12.2008. Having regard to the facts and circumstances of the case we feel that it would be just and proper to accept the insurer’s net liability on repair basis as in the surveyor’s report Ex.B11 and accordingly we assess the net liability at Rs.18,92,770/- and we are inclined to award interest at the rate of 9% per annum from the date of filing of the complaint viz.,18.12.2009. The complainant has claimed Rs.10,00,000/- for mental agony and sufferings and towards costs. We feel that the claim for mental agony is very much on the higher side and we feel that a sum of Rs.1,00,000/- would be the reasonable compensation for mental agony and costs of Rs.25,000/- and the point is answered accordingly.

19.              In the result, the complaint is partly allowed directing the opposite parties to pay jointly and severally a sum of Rs.18,92,770/-(Rupees Eighteen lakhs ninety two thousand seven hundred and seventy only)  with interest at the rate of 9% per annum from the date of filing the complaint  viz., 18.12.2009 till realization and a sum of Rs.1,00,000/- (Rupees one lakh only) for mental agony and sufferings and the opposite parties shall pay costs of Rs.25,000/-(Rupees Twenty five thousand only).

                   Time for compliance - Two months from the date of receipt of copy of this order.

                  

P.BAKIAVATHY,                                                    J.JAYARAM,

    MEMBER                                        PRESIDING JUDICIAL MEMBER

 

ANNEXURE

 

List of Complainant Documents

 

 

Ex.A1    23.01.2003          Copy of vehicle Registration  Certificate

                                       Bearing No.KA 01 MG 3888.

 

Ex.A2       02.01.2006        Copy of Insurance Policy taken for the year

                                       2006-2007 the vehicle No.KA 01 MG 3888.

 

Ex.A3       03.01.2007        Copy of Insurance Policy taken for the year

                                       2007-2008 the vehicle No.KA 01 MG 3888.

 

Ex.A4       03.01.2008        Copy of Insurance Policy taken for the year

                                       2008-2009 the vehicle No.KA 01 MG 3888.

 

Ex.A5       21.03.2008        Copy of the FIR lodged in Tiruchengode Town

 Police Station.

 

Ex.A6       25.03.2008          Copy of the Inspection Letter given by Kirloskar

                                         Pneumatic Company Limited.

 

Ex.A7       25.03.2008          Copy of the Inspection Letter for Drilling

                                         Rig Unit given by ParanthamanHydraulies

                                         and equipments.

 

Ex.A8       27.03.2008          Copy of the Motor Claim Form along with Owner

                                         Statement.

 

Ex.A9       27.03.2008          Copy of the repair estimates for the vehicle

                                          No.KA 01 MG 3888.

 

Ex.A10     22.07.2008          Copy of the letter sent to the complainant by the    

                                         3^rd opposite party.

 

Ex.A11     06.08.2008          Copy of the reply sent to the 3^rd opposite party

                                         by the  complainant.

 

Ex.A12     06.08.2008          Copy of the representation sent by Tiruchengodu

                                         Lorry Urimaiyalargal Sangam to the 3^rd Opposite

                                         party.

 

Ex.A13     18.08.2008          Copy of the letter sent to complainant by the

                                         3^rd opposite party.

 

Ex.A14     10.12.2008          Copy of the letter sent to complainant by the

                                         3^rd opposite party.

 

Ex.A15      22.12.2008         Copy of the legal notice sent by the complainant.

 

Ex.A16      05.01.2009         Copy of the letter sent to the complainant’s

                                         Advocate.

 

Ex.A17      12.01.2009         Copy of the reply notice sent by the 2^nd opposite

                                         party.

 

Ex.A18      13.01.2009         Copy of the letter sent by 2^nd opposite party.

 

Ex.A19      04.06.2009         Copy of the legal notice sent by the complainant

                                         along with proposal form.

 

Ex.A20          -                Copy of the photo of the damaged vehicle.  

 

 

List of Opposite Party Documents

 

Ex.B1        03.01.2007        Motor Policy No.6300004530

 

Ex.B2        07.02.2007        Endorsement No.83000339 (with Invoice).

 

Ex.B3        02.01.2008        Proposal Form.

Ex.B4        03.01.2008        Motor Policy No.6300005123.

 

Ex.B5        27.03.2008        Claim Form.

 

Ex.B6        27.03.2008         Statement of Driver.

 

Ex.B7        28.03.2008         Motor Spot Survey Report.

 

Ex.B8        12.06.2008         Letter from Final Surveyor.

 

Ex.B9        22.07.2008         Letter from Insurer to Complainant.

 

Ex.B10      06.08.2008         Complainant to insurer.

 

Ex.B11      22.08.2008         Motor Survey Report.

 

Ex.B12      10.12.2008         Repudiation letter.

 

Ex.B13      12.01.2009         Advocate Reply Notice from insurer to

                                         Advocate of Complainant.

 

 

 

 

P.BAKIAVATHY,                                                    J.JAYARAM,

     MEMBER                                         PRESIDING JUDICIAL MEMBER