IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 12th day of November, 2021
Filed on 18.01.2020
Present
1. Sri.S.Santhosh kumar.Bsc.LLB(President)
2. Smt. Sholly.P.R ,LLB (Member)
In
CC/No.18/2020
Between
Complainant:- Opposite parties:-
Sri. Geevarghese Thankachan 1. The Manager, SS Hundai
Madathil Vadakkethil Opposite to CSI Church
Valiyakulangara.P.O Mitchel Jn. , Mavelikkara
Karazhma East, (party in person)
Mavelikara,Alappuzha 2. The Manager
(Adv. P.O.Jose) HDFC ERGO General Insurance
Company Ltd, 2nd Floor,
Safa Trading Centre, Railway
Station Road, Kottayam-686001
(Adv. P.S.Ramu for 2nd OP)
O R D E R
SMT. SHOLLY.P.R (MEMBER)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
Complainant’s case in brief is as follows:-
Complainant is the registered owner of the vehicle manufactured by Hundai motors India Pvt. Ltd bearing Reg. No. KL.31-L-2122 purchased through the dealer 1st opposite party.
2. Under assurance from 1st opposite party through their “Hundai Assurance Program” , the complainant had paid an amount of Rs. 26,784/- as insurance premium to the 1st opposite party on 22/7/2019 for the said vehicle. The 2nd opposite party had issued policy No 2311202324382601000 (Bumper to Bumper) valid from 22/7/2019 to 21/7/2020. Both the parties have played active role in issuing the above said insurance policy under Hundai assurance program – collection of insurance premium by 1st opposite party and issuance of insurance policy by 2nd opposite party. Hence both opposite parties jointly and severally settled the claim arising out of the said policy.
3. On 29/7/2019 at about 3 PM under the instruction of the complainant the driver Mr. Reji Thankachan holder of MDL No. 31/1056/1996 drove the vehicle from the porch. Since the road lies in North –South direction and 4 feet lower than the courtyard, the driver while turning towards to south was not able to control the vehicle and it hit on the compound wall of Mr. Thomas madathil, Vadakkethil which stands in front of the complainant’s house. Due to the hit the front bumper of the vehicle broke and the air bags came out. The vehicle sustained heavy damage to the internal machineries of the vehicle. There were scratches all over the front side of the vehicle as well. The said incident was informed to the 1st opposite party and shifted the vehicle to their workshop on the same day itself having a distance of hardly 5 Kms. Accordingly insurance claim was submitted to the 2nd opposite party through the 1st opposite party and the same was registered on 2/8/2019 vide motor claim No. C230019198826.
4. Subsequently as demanded by 2nd opposite party the complainant furnished all the details, gist of the incident, Driving Licence of the driver who was driving the vehicle at the time of the accident. After completing all the formalities, surprisingly the 2nd opposite party demanded the Driving Licence of the insured complainant on 19/9/2019 for processing the claim. The complainant replied that as per the policy conditions there is no condition that the insured should be the holder of Driving licence and also requested for an earlier settlement of the claim, opposite parties not turned up.
5. Mean while the 1st opposite party expressed their inebility to house the vehicle in their workshop for long and compelled the complainant to repair the vehicle at his cost. Since the vehicle was kept an abundant condition at the courtyard of 1st opposite party, the complainant consented for the repair on11/10/2019 reserving his right over the insurance claim. The 1st opposite party had demanded the complainant to pay amount for repairs instead of settle the claim. Due to this adamant stand of 1st opposite party the complainant paid Rs.2,36,010/- as repair charge on 27/1/2019 and got the vehicle repaired and returned. Even after repeated demand for settlement of the insurance claim both opposite parties held irresponsible attitude and has no heed to the same. Thereafter the complainant issued lawyers notice to both opposite parties on 5/12/2019. In response the notice the 2nd opposite party replied raising untenable contentions on 18/12/2019. In the said reply notice it was noted “claim has been rightly assessed and paid”.
6. The opposite parties are legally liable to honour the contractual obligation within a short span of time. The accident took place on 29/7/2019 and so far opposite party have not communicated the destiny of the claim to the complainant. Infact the information that the surveyor was assessed the claim was paid was passed on to the advocate the reply letter, the complainant has not yet received the said assessed claim amount. The conduct and nature of opposite parties in handling the claim is against the principles of consumer loss. 2nd opposite party has admitted the payment of claim at the same time the 1st opposite party has collected repair charges of Rs.2,36,010/- from the complainant by company took to pay during the pendency of the claim. It is against the law. Both the parties are collided in collecting the repair charges insist of settle the claim and purposely delaying the repair charges under the insurance policy. The above said contest of the opposite parties is tantamount to deficiency of service hence this complaint directing opposite parties to payback Rs.2,36,010/- collected by 1st opposite party being repair charges of his insured vehicle and Rs.50,000/- as being compensation for deficiency of service and cost.
7. Version of 1st opposite party is as follows:-
1st opposite party was issued the policy to registered owner of the vehicle no. KL-31-L-2122 Hundai Creta 1.6 VTVTE+ and received payment of Rs. 26,784/- as gross premium on behalf of HDFC Ergo General Insurance Company Ltd. 1st opposite party is an authorized motor insurance provider (MISP) with code AB-MHY000346. As MISP the 1st opposite party is not liable to settle the claim arising out of a policy issued by them on behalf of the insurance company for whom they are MISP. It is the liability of the insurance company to settle claims arising against the policy after scrutiny of the claim as per terms of the policy.
8. On 29/7/2019 evening the complainant came to 1st opposite parties workshop and service centre at Mavelikara with the above car and informed that the car met with an accident and severe damages caused to the car. Opposite party’s technician inspected the car thoroughly and identified the visible damages caused to it. Next day the complainant was notified of the extend of damages caused to the car and given him an approximate estimate of cost of repairs and spares to make up the car in good condition. He was also advised to lodge the claim with the insurance company based on the estimate given by the 1st opposite party. As MISP 1st opposite party helped and guided the complainant to lodge the claim with the insurance company. The claim was registered by the insurance company on 2/8/2019.
9. Complainant contacted to 1st opposite party to start the work of the damaged car. 1st opposite party contacted the insurance company for getting their consent to start the work as also requested them to process the claim as quickly as possible. 1st opposite party was informed by the insurance company that while scrutinizing the documents, they have noticed some misrepresentation of facts on the claim application. They also informed that their representatives are conducting and investigating into that matter. Mean time the complainant has intimated on 11/10/2019 that the insurance claim processes is being delayed by the insurance company and that he wants the car back duly repaired urgently and agreed to bear the cost by himself. 1st opposite party started the repair and replacement of damaged spares as per estimate given to the complainant. He paid the bill amount Rs. 2,36,010/- on 27/11/2019 and took delivery of the car in good condition.
10. 1st opposite party was surprised to receive lawyers notice dtd. 5/12/2019 sent to them under instructions from the complainant asking them to reimburse Rs.2,36,010/- paid by him for repairing the damaged car. 1st opposite party replied through their lawyer stating that they are not liable to reimburse the amount received by them or repairing the car also advised to the complainant not to initiate unnecessary litigation against them.
11. As MISP of the insurance company, HDFC Ergo General Insurance Company Ltd, 1st opposite party had fulfilled all the obligations governing the issue and servicing of the policy. As a matter of fact 1st opposite party has no authority to decide on the merit of the claim and no control over the insurer to make them accept or reject claims filed by an insured. As an authorized service centre and workshop of Hundai Motors India Pvt.Ltd 1st opposite party under took accident repair of the car as per estimate given after receiving written request from the complainant. Hence there is no deficiency of service on the part of 1st opposite party thus the complaint may be dismissed.
12. Version of the 2nd opposite party is as follows:-
The complaint is not maintainable either in law or on facts. The complainant himself as violated all legal principles and statutory obligations by using the vehicle in question in the case without having a valid effective motor driving licence which is exclusion as per the private car package policy. Opposite party has issued a private vehicle package policy vide No. 2311202324382601000 for the period from 22/7/2019 to 21/7/2020 in respect of the vehicle bearing Reg. No. KL-31-L-2122 infavour of the complainant.
13. Complainant was duty bound to give immediate notice about the alleged accident to this opposite party and has there by curtailed the valuable right to the 2nd opposite party to conduct the spot investigation and survey. The vehicle was altered and tampered by the complainant before intimating 2nd opposite party. The condition no.1 of the policy issued in respect of the vehicle clearly stipulates as follows:-
Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage and in the event of the claim and thereafter. The insured shall give all such information and assistance on the company shall required.
14. The complainant has removed the vehicle from the alleged place of accident as well without intimating 2nd opposite party. The complaint is filed an experimental venture and deserves to be dismissed with cost.
15. The complainant had submitted a claim form stating that on 29/7/2020 when his driver Mr. Reji.T hit the insured vehicle against compound wall and thereby the vehicle sustained damages. 2nd opposite party immediately on receipt of the claim intimation had deputed a qualified licenced, independent Insurance Claim Investigation Firm –Scouts, investigators, Sri. Sadan , Janatha Road, Vitila, Cochin road -19 to inspect and conduct investigation into the alleged accident and file authentic report for the same. The above investigator after conducting detailed investigation in to the same, had submitted his report dtd. 27/8/2019. That the insured vehicle was driven by the complainant himself at the time of the alleged accident. As the complainant was not having a valid effective motor driving license to drive the insured vehicle Mr. Reji.T was swapped on his place as driver and the above claim was made falsely.
On receipt of the claim intimation regarding the alleged accident this opposite party also deputed loss assessor to conduct survey and assess the loss in respect of the damages caused to the insured vehicle. The said surveyor conducted detailed survey and assessed the damages caused to the above mentioned vehicle and submitted his final survey report to this opposite party. The acts of the complainant as mentioned resulted in the gross violation of condition and terms of policy and suppression/non disclosure of material facts and misrepresentation which renders the contract of insurance void. No GD entry or policy complaint has been registered regarding the alleged accident. This opposite party also send a registered letter dtd. 16/9/2019 requesting the driving licence of the complainant, but not complied.
The complainant had used the insured vehicle violating Sec.3 of Motor Vehicles Act and Rules framed there under and also the terms and conditions of the policy. The insurance contracts are contracts of Uberima fides ie, contracts made in good faith. The complainant is not entitled to claim any amount towards insurance from this opposite party. This opposite party repudiated the claim submitted by the complainant on legal valid, cogent, reasonable and justifiable grounds based on the policy conditions after considering the investigation report, survey report and other connected documents vide repudiation letter dtd. 26/9/2019. The amount claimed under various heads in the complainant and in the affidavit filed by the complainant is false, baseless and hence denied. The complainant is not entitled to get Rs.2,36,010/- towards alleged amount paid to the 1st opposite party Rs.50,000/- towards damages, compensation, interest or costs. The complainants have filed a frivolous and vexatious complaint and has no cause for deficiency in service or unfair trade practice against this opposite party. The present complaint is therefore liable to be dismissed with costs.
16. On the above pleadings following points were raised for consideration:-
1. Whether there is deficiency in service as alleged by the complainant?
2. Whether the complainant is entitled to realize an amount of Rs.2,36,000/- from the opposite party as claimed.?
3. Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation?
4. Reliefs and costs?
17. Evidence in this case consists of the oral evidence of PW1 and PW2 and Ext.A1 to A13 from the side of the complainant and oral evidence of RW1 to RW3 and Ext.B1 to B5 and Ext.X1 series from the side of opposite parties. Counsels appearing for complainant and 2nd opposite party filed notes of argument.
18. Point No. 1 to 3:-
For the sake of brevity these points are considered together. PW1 is the complainant. He filed an affidavit in tune with the complaint and got marked Ext.A1 to A11 series in which marking of Ext.A3 and A7 were objected by counsel for 2nd opposite party. Ext.A12 and A13 were marked during cross examination of RW1
19. PW2 is the driver of the vehicle alleged to be the driver at the time of accident. He filed chief affidavit in consensus with the complaint.
20. Rw1 is the manager of 1st opposite party. He filed an affidavit in tune with the version of 1st opposite party and marked Ext.B1 and B2. During cross examination Ext.A12 and A13 were marked.
21. Rw2 is the Surveyor deputed by 2nd opposite party assessing the damage of the vehicle. The report prepared by Rw2 got marked as Ext.X1 series.
22. RW3 is the Legal manager of 2nd opposite party. He filed an affidavit in tune with the version of 2nd opposite party and marked Ext.B3 to B5. Marking of Ext.B4 objected by counsel appearing for the complainant.
23. PW1, complainant is the registered owner of a vehicle manufactured by Hyundai Motors Pvt. Ltd, bearing Reg. No. Kl-31-L-2122, purchased from 1st opposite party. PW1 purchased an insurance policy of 2nd opposite party valid from 22/7/2019 to 21/7/2020 through the Hyundai Assurance Programme of 1st opposite party. On 29/7/2019 at about 3 PM while the driver, PW2 holder of Motor Driving Licence No. 31/1056/1996, under the PW1’s instruction was driving the vehicle from the car porch of the PW1’s house to the road out in front, the vehicle hit on the compound wall of the opposite house. The vehicle sustained heavy damage. The incident was informed to the 1st opposite party and they shifted the vehicle to their workshop on the same day itself. Accordingly insurance claim was submitted on 2/8/2019 to 2nd opposite party through 1st opposite party vide Motor Claim No. C230019198824. As no information regarding the outcome of the claim was informed to PW1 either by RW1 or RW3 for 2 months and the vehicle being abandoned in the courtyard of Rw1, the PW1 was constrained to meet the expenses for repair reserving his right over the insurance claim. Accordingly PW1 paid Rs.2,36,010/- as repair charges to RW1. Both RW1 and RW3 evaded from informing the PW1 about the outcome of the claim. RW3 in reply to the lawyer’s notice issued under the instruction of PW1 stated that ‘ the claim has been rightly assessed and paid’. The 1st and 2nd opposite party have jointly withheld the claim from the PW1 and hence this complaint.
24. RW1 stated in their version that the complainant had brought the vehicle to its service station on 29/7/ 2019 and also submitted that they had fulfilled all the obligations with respect to the issue and servicing of policy because of which there was no deficiency of service from their part and also not liable to reimburse the amount received for repairing the car.
25. In the version of 2nd opposite party admitted insurance policy in respect of the disputed vehicle infavour of the complainant issued by them. It was mainly contented that there was a long delay in initiating the claim which violated condition No.1 of the policy, the vehicle was altered and tampered with by the complainant and that private investigation deputed by them revealed that the vehicle in question was driven by the insured/complainant and not the seperate driver. The 2nd opposite party further stated that as per the report of the surveyor they had demanded the driving licence of PW1, but not complied with. It also alleges in the version that it had duly intimated the repudiation letter to the complainant through a letter dated 29/6/2019. The main allegation of 2nd opposite party as the reason for alleged repudiation of insurance claim was that the insured/complainant having no driving licence. In this circumstance it is pertinent to note that the only source the 2nd opposite party entered in to such a conclusion was the report of the private investigation agency- Scouts, it was marked as Ext.B4 with the objection of complainant. Thereafter the said document ie,, Ext.B4 was not proved according to the procedure of law
At this point we held the view of the Hon’ble High Court of Kerala in M/s PRS Hospital Vs. P.Anilkumar reported in 2020 Supreme(Kerala) 883 regarding the marking of a document and its admissibility where the Hon’ble Court abserved that mere marking of a document does not become admissible in evidence. When a document, admissible in evidence, is marked, still to be relief upon by the courts, its contents will have to be proved. For the contents of a document to have approbative value, the person who wrote the contents or is aware of the contents and its verasity must be invited to give evidence about it. Accordingly, here in this case we could not relied Ext.B3 and its veracity until otherwise proved by the executant of the said document.
26. Regarding the intimation with respect to the incident to the insurer, as provided in the insurance policy Ext.A2 itself reveals the same, Ext.A2 is the letter issued by 1st opposite party to the complainant at the time of subscribing the insurance policy in which stamped the seal of 2nd opposite party and the same was admitted by RW3 during cross examination of the counsel appearing for the complainant by saying ,
“ lypmbn Ajzd³kv F¶ t]cn ImWp¶ duv ko R§fptSXmWv.”
27. In paragraph 3 of Ext.A2 it mentioned,
“We would like you to leave all worries on us and relax during such occurrences. You just need to inform the nearest Hyundai Dealership and the dealer will take care of everything from picking up the car, claim intimation with insurance company, survey arrangements, vehicle repair, salvage management and hassle free nearly, cashless claim settlement”
28. RW1 also admitted the Ext.A2 and deposed that it was given to the complainant by 1st opposite party and seal shown in that document is 2nd opposite party. Hence there was a bounden duty towards the 1st opposite party to intimate immediately the incident regarding the vehicle insured to the insurer for conducting subsequent formalities. Accordingly the contention that the complainant has violated condition No.1 of policy cannot be legally sustained.
29. Other allegations of alteration and tampering to the vehicle by the complainant before intimating the accident also having no credibility because it was deposed by RW1 that the vehicle was kept in service centre from 29/7/2019 to 27/11/2019. Further it was deposed by RW2 that it was not mentioned in Ext.X1 the alteration and tampering happened on the vehicle in question.
30. Regarding Driving Licence it was not seen at anywhere in any of the insurance documents to have a driving licence to the insured/owner of the vehicle. It is to be noted the drivers clause in Ext.A6, policy document, reproduce as,
“Any person including the insured: Provided that the person driving holds any effective driving licence at the time of the accident and is not disqualified from holding or obtaining such licence”
31. In which it seems that the person who is driving the vehicle must hold a valid driving licenece. More clarification, if the insured of the vehicle is being driving the vehicle, he must hold a valid driving licence. Here the insured/owner of the vehicle ie, PW1, admittedly having no driving licence. The above condition of the policy would not attract in this case since it was not proved PW1 has driven the car at the time of accident. PW2, Mr. Reji.T drove the car at the time of accident. Nothing to the contrary was brought in the cross examination. Ext.A10 is the Motor Driving Licence of PW2. Opposite party No1 has no dispute as to who was driving the vehicle at the time of accident. 2nd opposite party’s contention regarding the same was not able to put forward any evidence to show the same as stated earlier. Eventhough the Scouts Agency was arranged as witness in 2nd opposite party’s witness schedule, they were not produced or examined as witness to corroborate the objected report of Ext.B4. Hence the burden is cast upon 2nd opposite party to prove their contention and as such, the complainant’s version remains unchallenged. Therefore PW1’s claim cannot be repudiated on the grounds of violation of policy conditions that the PW1 was driving the vehicle without holding a valid Motor Driving Licence.
32. There was no intimation regarding the outcome of the claim has been informed to PW1 either by RW1 or RW3. The PW1 has every right to be informed with the settlement or its rejection after performing its legal formalities within a stipulated period. But the same was not communicated to the PW1. During cross examination RW3 deposed that the repudiation of claim was intimated to the complainant vide repudiation letter dtd. 26/9/2019. If the said statement is true, the same would create prior to the final report of the surveyor dtd. 29/9/2019. But the PW1 has clearly denied the receipt of such a repudiation letter and 2nd opposite party has failed to provide evidence to show the contrary.
33. Further it was also considered the Ext.A12. The accident occurred on 29/7/2019 and it was informed to 1st opposite party on the same day itself. Estimate was prepared on 10/8/2019. But no final decision has been communicated to the complainant by 1st opposite party as well as 2nd opposite party. Accordingly PW1, after waiting a period of 2 months on 11/10/219 requested the 1st opposite party to repair the damage of the car occurred in the accident. Accordingly the vehicle was repaired the 1st opposite party and issued Ext.A3 invoice. Though the said document was marked subject to objection of the counsel appearing for the 2nd opposite party it was deposed by RW1 during cross examination that no parts unnecessary was repaired in connection with the accident. Of course, it is to be noted that the said request was made in the circumstance of not yet communicated the settlement or repudiation of the claim by the opposite parties.
34. Hence in the circumstances stated above there was deficiency in service from the part of opposite party 1 and 2 and both of them are jointly and severally liable to redress the grievance of the complainant. As stated earlier the 1st opposite party has a bounden duty to inform the accident with regard to the vehicle insured with 2nd opposite party. Besides that the 2nd opposite party also responsible to settle the claim, otherwise repudiate the same if any valid reason exists within the stipulated period. It was admitted by Rw1 the vehicle was laying idle at the courtyard of 1st opposite party from 29/7/2019 to 27/11/2019. This also amounts to negligence and deficiency from their part. Again RW1 reiterated during cross examination that they were conducting business transaction with Rw3 till date and 1st opposite party was also accepting remuneration from 2nd opposite party in respect of the transactions.
35. In this circumstances 2nd opposite party cannot turn back to allege that the complainant colluded with 1st opposite party in connection with the repair of the damaged vehicle. Both 1st opposite party and 2nd opposite party has not denied the business relationship between both of the opposite parties in their versions also. Accordingly we hold the view that the complainant is entitled to realize the amount he had paid as repairing charge for the damaged vehicle from 1st and 2nd opposite parties jointly and severally. Regarding the facts and circumstances of the case we limit the compensation for Rs. 10,000/- for mental agony of the complainant.
36. Point No4:-
In the result the complaint is allowed in part.
A) Opposite parties 1 and 2 directed to return the amount of Rs.2,36,010/- covered by Ext.A3 to the complainant.
B) Opposite parties 1 and 2 also directed to pay Rs. 10,000/- as compensation to the complainant.
C) Opposite parties 1 and 2 also directed to pay Rs. 2000/- as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 12th day of November, 2021.
Smt. Sholy.P.R(Member)
Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Geevarghese Thankachan(Complainant)
PW2 - Reji.T(witness)
Ext.A1 - Receipt(Insurance) Voucher dtd. 22/7/219
Ext.A2 - Original letter
Ext.A3 - Invoice dtd. 27/11/2019
Ext.A4 - Lawyer Notice dtd. 5/12/2019
Ext.A5 - Reply Letter dtd.18/12/2019
Ext.A6 - Insurance Policy dtd. 18/7/2019
Ext.A7 - Estimate dtd. 18/8/2019(Sub to Proof)
Ext.A8 - Letter dtd. 19/9/2019
Ext.A9 - Reply letter dtd. 21/9/2019
Ext.A10 - True copy of Driving Licence
Ext.A11 - Legal Notice dtd.17/9/2019
Ext.A12 - Copy of Letter
Ext.A13 - Reply Notice dtd.1/1/2020
Evidence of the opposite parties:-
RW1 - Radhakrishnan.V(witness)
RW2 - Krishnachandran.K(Surveyor)
RW3 - Aneesh Bhaskaran(witness)
Ext.B1 - Copy of repair order dtd. 30/7/2019
Ext.B2 - Copy of estimate dtd.10/8/2019
Ext.B3 - Motor Insurance Policy
Ext.B4 - Investigation Report
Ext.B5 - Letter dtd. 16/9/2019
Ext.X1 series- Final Survey Report
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
