IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 4th day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 175/2011 (Filed on 06.08.2011)
Between:
S. Purushothaman Potty,
Vadukathil Madom,
Neduvaramcodu P.O.,
Cheriyanad Village,
Chengannur. … Complainant.
And:
1. The Manager, Reliance-
General Insurance Company,
Kannaneth Estate, Ring Road,
Pathanamthitta – 689645.
(By Adv. K. Sailesh Kumar)
2. The Manager,
Muthoot Motors,
Pathanamthitta – 689645.
(By Adv. R. Gopikrishnan) … Opposite parties.
ORDER
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The facts of the case in brief are as follows: The complainant has purchased one Honda motorcycle through the second opposite party on 16.09.2010. The said vehicle was insured with the first opposite party through the second opposite party who is working as an agent of first opposite party. At the time of purchase of the vehicle, the complainant informed the second opposite party that his option is to insure the vehicle with the N.I. Assurance. But they insisted to insure it with first opposite party promising him better service and quicker settlement of claim. The said insurance was taken by second opposite party against the will and behind the back of the complainant.
3. On 15.11.2010, the said vehicle met with an accident. The matter was reported to opposite parties and the vehicle was given to the custody of second opposite party at their garage at Pathanamthitta. Within 10 days, all necessary documents were handed over to second opposite party whereupon first and second opposite parties promised the complainant that the claim would be processed and the vehicle would be completely renewed and the cost will be adjusted with the insurance claim. But the vehicle kept in the open compound of first opposite party for a long time unattended and exposed to sun and rain. On enquiry, the complainant was told that if he is ready to pay the cost, the vehicle would be renewed and given to him immediately. As agreed for the same and after a long lapse of time, the vehicle was renewed (in part) and an amount of ` 23,678 was collected from him on 02.02.2011.
4. The second opposite party assured that in case of any accident, claim would be settled after reducing 50% of the cost of fiber and plastic parts. But complainant came to know that no amount will be paid for such parts and that 30% will be reduced from the cost of other items for the reason that necessary documents are received by first opposite party after 2 months of the date of accident. This reasoning is against all the principles. Since the insurance is arranged by second opposite party as agent of first opposite party, all the documents were collected from the complainant by second opposite party within a short time after the accident.
5. According to the complainant, the damaged view mirror and brake liver were not replaced by second opposite party. The seat and painting were damaged due to mishandling of the vehicle at the garage of second opposite party. The complainant had to spend extra money for re-painting the vehicle, repairing the seat and for purchasing brake liver and mirror. Even though after sales service is expected to be done of free, second opposite party has collected charges for the same. They were very vigilant in not giving any receipt of acknowledgment to the customers when they take vehicle into their custody. Even after the completion of the service, there was starting problem for the vehicle and riding was totally unpleasant due to want of expert service done to the vehicle. On enquiry, it is revealed that workers are ill paid by second opposite party and only raw hands are working under them. Since the complainant was totally dissatisfied with the service of second opposite party, he has taken the vehicle to another dealer. They completely checked and re-conditioned and now the vehicle is running in a smooth condition. Since the opposite parties not settled the complainant’s claim, he sent legal notice. But no response. Hence this complaint for getting the paid amount of ` 23,678, refunding ` 1,500 for renewing the seat, painting and cost of brake liver and view mirror etc. with a compensation of ` 10,000 and cost.
6. The first opposite party entered appearance and filed separate version stating that the complaint is not maintainable either in law or on facts. According to the first opposite party, the second opposite party is neither an agent of first opposite party nor the second opposite party insisted the complainant to insure the vehicle with the first opposite party. But the complainant has not reported occurrence of the alleged accident in time and thereby violated the policy condition. So far the insured has not produced any documents to prove that the damage was to the vehicle bearing the engine and chassis of the insured vehicle.
7. The policy condition stipulates that the insured shall register the claim at the earliest by making a telephone call to the toll free number given in the insurance policy. In this case, the insured registered the claim with first opposite party after 50 days from the date of alleged damage. Hence the first opposite party could not get an opportunity to appoint a surveyor to assess the correct damages immediately after the incident. So the damage of the components shown in the estimate prepared by the second opposite party on 23.12.2010 is not actual and correct. There is absolutely no evidence to prove that the vehicle damaged was kept in the safe custody fro the date of alleged damage till the date the complainant registered the claim with the first opposite party. Moreover, the loss stated in the complaint is an exaggerated loss with a malicious intention to claim an exorbitant amount. From the above reason, first opposite party canvassed for the dismissal of the complaint with their cost.
8. 2nd opposite party also filed separate version stating that complainant purchased a Honda Motorcycle from their dealer outlet on 16.09.2010 and the said vehicle was insured with 1st opposite party. This opposite party has not insisted the complainant to insure his vehicle with the 1st opposite party. The statement of the complainant that this opposite party persuaded to insure vehicle with 1st opposite party against their will is absolutely false.
9. According to them, the vehicle received from complainant to their service centre on 22.12.2010 for accident repair. The vehicle brought to the 2nd opposite party’s service centre by a friend of complainant. Complainant was admitted to hospital at that time. It is absolutely false that within ten days all necessary documents were handed over to 2nd opposite party and opposite parties 1 and 2 promised that the claim would be completely renewed and the cost will be adjusted against the insurance claim. The actual fact is that since the complainant was hospitalized and the rest of the following months, no one came to the 2nd opposite party with necessary papers. Repeated reminders from the part of the 2nd opposite party turned without response and this opposite party believed that the documents were given to the 1st opposite party by the complainant directly. As far as no duty is cast upon the 2nd opposite party to collect and give documents from customer to the insurance company, this 2nd opposite party committed no deficiency in service. On 02.01.2011 complainant entrusted the documents to the 2nd opposite party and the same was produced before the 1st opposite party on 07.01.2011. On receipt of the documents, insurance surveyor surveyed the vehicle on 07.01.2011 and prepared the chart of repair work. Since the vehicle needs more repair and because of delay in availing parts from the manufacture, the vehicle was delivered after completed repair on 02.02.2011. The complainant in person came for taking delivery and after test drive and on satisfaction of repair work.
10. The allegation that the vehicle kept in the open compound of 2nd opposite party for a long time unattended and exposed to sun and rain is not a fact within their knowledge. The further allegation that the complainant is ready to pay the cost, the vehicle would be renewed and given to him immediately is also not known to them. The actual fact is that this opposite party after surveyor’s inspection started the work on the basis of his repair chart and towards the expected repair collected `23,678 and issued receipt to the complainant.
11. The allegation that in case of any accident, the claim will be settled after reducing 50% of the fiber and plastic parts is absolutely false. 2nd opposite party has not given such promise. The actual fact is that due to hospitalization, the complainant did not give the necessary documents in time and on 02.01.2011 he entrusted the necessary documents to the 2nd opposite party. Due to the mishandling of the vehicle at garage, seat and painting were damaged is absolutely false. The 2nd opposite party always admitting every vehicle only after entering the job card. It is false allegations that even after completion of service, there is starting problem and riding was totally unpleasant due to want of expert service done to the vehicle. Further allegation that on enquiry complainant understood that all the workers under 2nd opposite party are ill paid and therefore only raw hands are working under them is absolutely false. 2nd opposite party firm commanding such a good reputation and hitherto no such complaint is received from the existing employees or past employees. The complainant has not specifically stated what deficiency in service committed by the 2nd opposite party and what they ought to have done. Hence they canvassed for the dismissal of the complaint with their cost.
12. From the above pleadings, the following points were raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Relief and Cost?
13. The evidence of the complaint consists of the oral deposition of PW1, DWs.1 and 2 and Exts. A1 to A3 series and B1 to B5 and the interrogatories filed by the complainant and the answer of opposite parties. After the closure of evidence, both parties were heard.
14. Point Ns. 1 to 3: In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts. A1 to A3. Ext. A1 is the photocopy of the invoice issued by the second opposite party on 02.02.2011 to the complainant. Ext. A2 is the copy of registered notice issued by the complainant to opposite parties. Ext. A3 and A3(a) are the acknowledgment cards of Ext. A2.
15. In order to prove the opposite parties’ contention, opposite parties filed proof affidavits along with certain documents. Opposite parties 1 and 2 were examined as DWs.1 and 2 and the documents produced were marked as Exts. B1 to B5. Ext. B1 is the copy of policy certificate and terms and condition of policy issued by the first opposite party. Ext. B2 is the claim form submitted by the complainant. Ext. B3 is the job card issued from the second opposite party to the complainant. Ext. B4 is the gate pass issued by the second opposite party to the complainant. Ext. B5 is the copy of repudiation letter issued by the first opposite party to the complainant.
16. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. The complainant’s case is that his insured vehicle met with an accident when the policy was in force and the claim for repairing charges was also repudiated. The first opposite party is the insurer and the second opposite party is the agent of first opposite party who repaired the vehicle negligently. Both of them are liable for their deficiencies.
17. Opposite parties’ contention is that complainant neither reported the occurrence immediately after the accident nor produced any documents to prove the damage, thereby violated the policy condition. According to them, complainant reported the incident only after 50 days and second opposite party is not an agent of first opposite party.
18. On a perusal of Ext. A1, it is revealed that the complainant paid ` 23,678 as repairing charge to second opposite party. Ext. A2 shows that the complainant issued notice to opposite parties alleging their deficiencies. Exts. A3 and A4 reveals that opposite parties accepted Ext. A2. Evidence on record shows that opposite parties had not yet responded on Ext. A2 so far. Ext. B1 shows that complainant’s vehicle has valid insurance policy at the time of accident. Exts. B3 and B4 show that the vehicle has been repaired in the second opposite party’s work shop. Exts. B2 and B5 revealed that complainant’s claim had repudiated due to the belated intimation i.e. after 50 days of accident.
19. The complainant’s contention is that the second opposite party is the agent of first opposite party. They insisted to insure the vehicle with first opposite party by promising better service and quicker settlement of claim. But the damaged vehicle entrusted to them was kept in the open compound for a long time unattended and exposed to sun and rain until complainant pay the cost of repairing. Opposite parties denied that they have no relationship as agent with first opposite party. But it is seen that the work shop of second opposite party is recognized by first opposite party with regard to the repairing of insured vehicle. In that way, they have some relationship. Moreover, in the proof affidavit, second opposite party admitted that on 02.01.2011 complainant entrusted them with documents relating to the insurance claim. But they further states that no record is keeping related with. This is evident in DW1’s deposition is as follows: “lÀPn-I£n insurance e`n-¡m³ Bh-iy-amb tcJ-IÄ Gev]n-¨n-cp-¶p-sh¶pw BbXv opposite party 1þ\v ssIam-dn-sb¶pw ]d-bp-¶Xv icn-bm-Wv. insurance documents hm§n-b-Xn\v tcJ H¶pw CÔ.
20. It is pertinent to note that in Ext. B2 claim form, date is not recorded in it. According to second opposite party, the date of transfer of insurance documents was on 02.01.2011. But they failed to challenge the reason of not recording date in Ext. B2.
21. According to first opposite party, the date of receipt of insurance record is not known to them. This is evident in the deposition of DW2 which is as follows: “lÀPn-I£n insurance þ\v Bh-iy-amb tcJ-IÄ opposite party 2þs\ Gev]n-¨Xv Fs¶ Gev]n-¨Xv F¶m-sW¶v Adn-bnÔ.
22. The complainant’s specific contention is that on 5th day after the accident, he informed it to opposite parties. Ongoing through the deposition of PW1, there is no reason to disbelieve the same and opposite parties would not disprove it by better evidence. PW1’s deposition is as follows: “Rm³ A]-ISw Dmbn 5þmw Znhkw hnhcw I¼-\nsb And-bn-¨n-«p-v. 5 Znh-k-¯n-\Iw hnhcw And-bn-¨n-«p-s¶v ImWn-¡m³ sXfn-hp-IÄ Dtm? AhÀ tcJ-IÄ H¶pw X¶n-«n-Ã. 50 Znhkw Ign-ªmWv intimate sNbvXXv F¶p ]d-bp-¶Xv If-hm-Wv. 5þmw Znhkw Adnbn-¨p F¶v If-hmbn ]d-bp-I-bnÔ.
23. Above facts and circumstances shows that the second opposite party is authorized by first opposite party to accept documents relating to the insurance claim. But they failed to disclose with cogent evidence that on what capacity they accepted the claim application from complainant, though alleged the same was belated. There is no direct evidence that second opposite party is the agent of first opposite party. On considering the conduct and sequence of events it cannot be ruled out that the relationship of second opposite party reached up to a stage of agent or representative of the first opposite party. First opposite party admitted that they appointed a surveyor to assess the damage at the premises of second opposite party. But no intimation would not give to complainant regarding the survey. The same was seen in deposition of DW2 which is as follows “opposite party 2þsâ Kmtc-Pn sh¨mWv hml\w surveyor inspect sNbvXXv. R§-fpsS \nÀt±i {]Im-c-amWv. hml\w ]cn-tim-[n-¡p¶ kabw lÀPn-I-£nsb Adn-bn-¨n-«nÔ.
24. But DW1’s contention is that they informed the inspection of surveyor to complainant. DW1’s deposition is as follows: “survey \S-¯p¶ hnhcw lÀPn-I-£nsb Adn-bn-¨n«pv. t^mWn BWv hnhcw ]d-ªn-cp-¶-Xv. {]tXyI tcJ H¶pw CÔ.
The first opposite party who appointed the surveyor has not a case that they informed the surveyor’s inspection of vehicle to the complainant. Therefore, second opposite party’s deposition is totally a contradiction and contrary to the stand taken by first opposite party and cannot be believable. This shows that second opposite party is not came with a clean hand. Hence the allegations raised against them may have become true and cannot be absolved from the liability.
25. Opposite parties have not a specific contention that the complainant’s claim is bogus. Ext. A4 shows that repudiation is based on the violation of policy condition No.1 i.e. “Notice shall be given to the company immediately upon the occurrence of any accident loss or damage in the event of any claim”. According to them, the claim was intimated after 50 days of accident. On a perusal of entire available evidence on record, it is revealed that the complainant intimated the incident and submitted requisite documents within reasonable time to second opposite party, who acts as a representative of first opposite party. There is willful negligence on the part of second opposite party to intimate the incident to first opposite party. Since second opposite party is the representative of first opposite party, the omission, if any, liability, if any, definitely goes to first opposite party.
26. Moreover, if for argument sake admitted the delay in intimation, clause 1 of Ext. B1 does not clearly interpreted the period of intimation. “Immediately after the accident” does not disclose the exact duration of intimation period. Unless and until there is no bogus allegation, the claim of complainant is within time and presumed to be genuine and allowable.
27. It is a universal rule of interpretation that wherever more than 2 interpretations are possible any contract or terms of the contract or of the statute, the interpretation which goes in favour of and protects the interest of the consumer is the only interpretation which has to be acted and relied upon. Otherwise the very object of the statute enacted for the benefit and welfare of the consumers at large would be defeated and frustrated. The effort of the insurance company should not be to find out a ground to reject the claim. The effort should be that how the consumer can be benefited by interpreting the terms of a contract or provision of a statue in a beneficial manner.
28. From the above discussion based on the observation and finding, we are of the view that denying claim to complainant without valid reason is not only a breach of contract but also a clear deficiency of service. Therefore, complainant’s claim is allowable and maintainable before this Forum. Hence first opposite party is liable to pay Ext. A1 amount and second opposite party is liable for compensation and cost for their delay in repairing the vehicle, inaction in processing the documents in their personal capacity.
29. In the result, this complaint is allowed, thereby the first opposite party is directed to pay ` 23,678 (Rupees Twenty three thousand six hundred and seventy eight only) and the second opposite party is directed to pay ` 2,000 (Rupees Two thousand only) as compensation and a cost of ` 1,000 (Rupees One thousand only). The amount so awarded is to be paid within 15 days from the date of receipt of this order, failing which the whole amount will follow 9% interest per annum from this date, till the realization of the whole amount.
Declared in the Open Forum on this the 4th day of May, 2012.
(Sd/-)
N. Premkumar
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : S. Purushothaman Potty.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the invoice dated 02.02.2011 issued by the
second opposite party to the complainant.
A2 : Copy of registered notice issued by the complainant to first
and second opposite parties. Ext. A3 .and A3(a) are the
acknowledgment cards of Ext. A2.
Witness examined on the side of the opposite parties:
DW1 : Hareesh Kumar.
DW2 : Linu George.
Exhibits marked on the side of the opposite parties:
B1 : Photocopy of policy certificate and terms and condition of
policy issued by the first opposite party.
B2 : Personal details of proposer (owner) issued by the first
opposite party.
B3 : is the job card dated 22.12.2010 issued from the second
opposite party to the complainant.
B4 : Receipt/gate pass issued by the second opposite party to the
complainant.
B5 : Photocopy of repudiation letter issued by the first opposite
party to the complainant.
(By Order)
(Sd/)
Senior Superintendent.
Copy to:- (1) S. Purushothaman Potty, Vadukathil Madom,
Neduvaramcodu P.O., Cheriyanad Village,
Chengannur.
(2) The Manager, Reliance General Insurance Company,
Kannaneth Estate, Ring Road, Pathanamthitta – 689645.
(3) The Manager, Muthoot Motors, Pathanamthitta – 689645.
(4) The Stock File.
