DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 12^th day of February 2019

Present   : Smt.Shiny.P.R. President

              : Sri.V.P.Anantha Narayanan, Member             Date of filing:  13/06/2017

CC/94/2017

Moideenkutty,

S/o.Veerankutty,

Thalakkassery,                                                                 -           Complainant

Kanchirakkal House,

Thalakkassery P.O,

Palakkad, Kerala.

(By Advs.K.P.Mohammed Shafi & V.R.Sivadasan)

Vs

1. The Manager,

    HDFC Ergo, General Insurance Co. Ltd,

    2^nd Floor, Chicago Plaza,

    Near KSRTC Bus Stand, Rajaji Road,

    Cochin - 682 035.

2. The Manager,                                                              -        Opposite Parties

    HDFC  Ergo, General Insurance Co. Ltd,

    2^nd Floor, Kanakath Tower,

    West Fort Road, Palat Junction,

    Palakkad -678 001.

    (Opp.parties 1 & 2 By Adv.Ullas Sudhakaran)

3. Manager,

    BRD Car World Pvt. Ltd.,

    BRD Complex, Chelakkara Road,

    Mullurkkara P.O, Wadakkanchery,

    Thrissur - 680 583.

                                                          O R D E R

By Smt.Shiny.P.R. President

          Complainant is the owner of Hatchback, Maruti Swift VDI.BSIV model car bearing registration number KL-52-J-3936 and the 1^st opposite party issued policy for the said vehicle for the period from 08.11.2015 to 07.11.2016.  Complainant submitted that on 21.10.2016 at about 21.30 hours while he was travelling in the afore said vehicle driven by his son, K.Muhammed Ali, he lost control over the vehicle and dashed against a bridge near Thalakkassery Vishnu Temple and over turned and caused damage to the vehicle and minor injuries to the complainant.  Immediately he was taken to the Edappal Hospital Pvt. Ltd, and was treated as an out patient.  Complainant on the next morning itself contacted one Joju Francis the agent of the opposite parties 1 & 2 through whom he had availed policy from the opposite parties 1 & 2 and informed him about the accident and he told the complainant that after taking spot photographs the vehicle can be shifted to the 3^rd opposite party’s authorized dealership service centre and that it is not necessary to report the fact to the police and based on the said instructions after taking spot photographs of the vehicle the same was towed to the authorized service centre of the 3^rd opposite party, BRD car world Wadakkanchery, Thrissur.  3^rd opposite party after inspection estimated repair and replacement charges as approximately Rs.4,80,000/-.  On 21.11.2016 one person named Murali came to the complainant’s house and introduced himself as the investigator of the opposite parties 1 & 2 enquired about the incidents and made the complainant and his son give statements in writing as directed by him and the wordings in the said statement were as stated by the said investigator. Complainant had sustained injuries in the said accident and the complainant wanted to state about the same in the statement given to the investigator but the investigator told the complainant not to reveal about the injuries sustained by him in the accident for the reason that if such a statement is given the insurance company would demand report of the police for processing the claim and that report of the police is not necessary if the claim is pertaining to the damages caused to the vehicle only. Believing the words of the investigator complainant and son gave statements as directed by the investigator and the investigator informed that after processing the claim of the complainant the same would be settled without delay.  Immediately after the accident complainant had intimated about the said accident to the opposite parties 1 & 2 through the agent of the opposite parties 1 & 2 and handed over all documents required for processing the claim to the 3^rd opposite party.  Complainant on bonafide belief that the opposite parties 1 & 2 would reimburse the expenditure incurred by the complainant for repairing the vehicle he had paid all the bills amounting to Rs.2,18,787/- and took delivery of the vehicle and had submitted all original bills before the 2^nd opposite party for processing his claim. On 09.12.2016 the complainant received a letter dated. 08.12.2016 from the 1^st opposite party intimating that the claim of the complainant stands closed by the opposite parties as “no claim” in their reports due to misrepresentation of material facts.  Complainant was shocked to know that his genuine claim is repudiated by the opposite parties 1 & 2 without any rhyme or reason which resulted in monetary loss and lot of mental agony to the complainant.  The above acts of opposite parties amount to unfair trade practice as well as deficiency of service and the complainant is legally entitled to get compensated for the same.  Hence the complaint. 3^rd opposite party is arrayed in the party array the claim form was submitted through the 3^rd opposite party and the 3^rd opposite party had undertaken to get the vehicle inspected by the surveyor of opposite parties 1 & 2 before and after repairs and to submit original bills to the 3^rd opposite party towards.  Though no relief is claimed against the 3^rd opposite party for the time being, if during the course of proceeding if it is alleged by the opposite parties 1 & 2 that necessary documents required for processing the complainant’s claim was not provided by the 3^rd opposite party, complainant reserves his right to claim appropriate reliefs against the 3^rd opposite party. Complainant prays for an order directing opposite parties 1 & 2 to pay the complainant an amount of Rs.2,14,989/- (Rupees two lakhs fourteen thousand nine hundred and Eighty Nine only) towards the amount paid by the complainant to the 3^rd opposite party for repairing his vehicle insured by the opposite parties, Rs.50,000/-(Rupees Fifty Thousand only) as compensation towards his mental agony and hardships and  Rs.25,000/-(Rupees twenty five Thousand only) towards cost of the proceedings.   

Complaint was admitted and notices were issued to the opposite parties.  Opposite parties 1&2 entered appearance and filed their version. Notice to 3^rd opposite party served, but he did not appear. Hence name called, absent, set exparte.  

          Opposite parties 1&2 filed version admitting that complainant is the registered owner of a Hatch back car model name swift and they had issued policy to the same for the period from 08/11/2015 to 07/11/2016. The averment of the complainant that on 21.10.2016 at about 21.30 hours while he was travelling in the afore said vehicle driven by his son, K.Mohammed Ali, he lost control over the vehicle and dashed against a bridge near Thalakkassery Vishnu Temple and over turned and caused damage to the vehicle and caused minor injuries to the complainant is not fully correct. These opposite parties contended that on investigation conducted on behalf of the insurer it was revealed that it was the complainant who was driving the vehicle at the time of the accident and that as the complainant was not having a valid driving license, his son, who was holding a valid driving license, was planted as driver and that the attempt of the complainant was to conceal the material fact that it was the complainant who was driving the vehicle at the time of alleged accident and to misrepresent to the insurer that it was complainant’s son who was driving the vehicle and thereby to make illegal enrichment. The facts pleaded by the complainant that he had sustained minor injuries in the accident and that the complainant was taken to Edapal Hospitals Pvt. Ltd. and was found to be suffering from Multiple Small Abrasions on the scalp and was treated as an out-patient are all revealed by the complainant for the 1^st time in the complaint.  As per the statement given by the complainant and his son it was stated that the car was being driven by complainant’s son and there was nobody else in the said car at the time of alleged accident.  No person named Murali is working as an investigator for the Insurer as alleged by the complainant. The above said allegations with regard to the voluntary statements made by the complainant and his son are made by the complainant from getting over the misrepresentations, which would amount to concealment of material fact.  Complainant is put to the strict proof of the fact that the estimated repair and replacement charges was approximately Rs.4,80,000/- and that the complainant had paid an amount of Rs.2,18,787/- and took delivery of the vehicle. The opposite parties admit the fact that the complainant had submitted the original bills for processing the claim and in fact the opposite party had made arrangements for survey and the vehicle was surveyed by a Licensed Surveyor and a survey report was also obtained and the claim preferred by the complainant was processed without any delay and thus opposite party had preformed all their duties cast upon the insurer and there is no deficiency of service on the part of these opposite parties.  Insurer had appointed an investigator for investigating into the genuiness of the claim and during investigation it was revealed that the vehicle was being driven by the insured himself at the time of the accident and that as only the insured was there in the vehicle, he alone had sustained injuries and was taken to Edappal Hospital Malappuram and had undergone treatment there.  As the insured had no driving license to drive the vehicle involved in the accident, his son was planted as the driver of the said vehicle at the time of the accident.  In fact the insured with an object of suppressing the material fact that it was the insured, who had no driving license, who was driving the car at the time of accident, had made false representation for preventing the insurer from repudiating the claim on the ground of suppression or misrepresentation of material aspect.  Contract of insurance is a Contract of uberimmaefidei and the parties to the contract are bound to observe utmost good faith and concealing material facts and making misrepresentation are grounds that authorizes the insurer to repudiate the claim as per the terms and conditions in the Contract of Insurance.  Insurer is legally entitled to repudiate the claim if the insured do not disclose true, complete and all correct facts in relation to the policy or if the insured acts in a dishonest or fraudulent manner while making the claim.  Complainant is not legally and factually entitled to any of the claims made by him against these opposite parties.  Hence the complaint has to be dismissed with the cost of these opposite parties.

Complainant filed chief affidavit and documents which were marked as    Ext.A1 to A8. Opposite parties filed IA/341/17 for the cause production of driving license of complainant.  Complainant filed affidavit stating that he was not holding driving license.  Opposite parties filed proof affidavit and documents which were marked as Ext.B1 to B6. Evidence was closed and the matter was heard. 

The following issues that arise for consideration are

1) Whether there is any deficiency of service from the part of opposite

    parties?

2) If so, what are the relief and cost?

Issues 1 & 2

           Opposite parties 1&2 admitted the policy. Opposite parties 1&2 contended that on investigation conducted on behalf of the insurer it was revealed that it was the complainant who was driving the vehicle at the time of the accident and that as the complainant was not having a valid driving license, his son, who was holding a valid driving license, was planted as driver and that the attempt of the complainant was to conceal the material fact that it was the complainant who was driving the vehicle at the time of alleged accident and to misrepresent to the insurer that it was complainant’s son who was driving the vehicle and thereby to make illegal enrichment.  In Ext.B3/Ext.A4 claim rejection letter it is stated that on verification of the documents submitted and as per the investigation report it was revealed that there was misrepresentation of the material facts in connection with the claim, which is a violation of the policy terms and conditions.  In order to prove the misrepresentation or concealment of material facts from the part of complainant, opposite parties should have to produce the investigation report or documents before the Forum.  In Ext.B4 motor final survey report it is clearly mentioned the name of driver and driving license number etc. Nowhere it is mentioned that the complainant was driving the vehicle at the time of accident and there is a violation of policy terms and conditions.   He calculated net loss of the complainant as Rs.2,05,943/-.  He has no observation about suppression of material facts in that report.

It is well settled law that the burden to prove the breach of policy condition lies on insurer. With a view to avoid its liabilities it is not sufficient for the insurer to show that the person driving at the time of accident was not duly licensed but it must further be established that there was a breach on the part of the insured. Reliance, in this connection, has been placed on Narcinva V.Kamath and Another vs. Alfredo Antonio Doe Martins and Others [(1985) 2 SCC 574], Skandia Insurance Company Ltd. vs. Kokilaben Chandevadan and Others [(1987) 2 SCC 654], Sohan Lal Passi vs. P.Sesh Reddy and Others [(1996) 5 SCC 21] and United India Insurance Company Ltd. vs. Lehru & Others [(2003) 3 SCC 338].

In the present case 1^st and 2^nd opposite parties did not discharge the burden by way of evidence as required under law. In the above circumstances complainant’s plea cannot be discarded. Ext.A8 proves that the complainant’s son has valid and effective driving license at the time of accident. Under the above discussions we are of the view that rejection of genuine claim amounts to deficiency in service.

In Ext.B4 survey report surveyor reported that the complainant has a net loss of Rs.2,05,943/-due to the accident. Hence 1^st and 2^nd opposite parties are liable to pay the said amount to the complainant.

In the result complaint is partly allowed and 1^st and 2^nd opposite parties are jointly and severally directed to pay Rs.2,05,943/-(Rupees Two lakhs Five thousand Nine hundred and Forty three only) towards the loss caused due to the accident, Rs.3,000/-(Rupees Three thousand only) as compensation for mental agony and Rs.3,000/-(Rupees Three thousand only) as cost of proceedings.  As there is no relief sought against 3^rd opposite party, they are exonerated from liability.  

The aforesaid amount shall be paid within one month from the date of receipt of this order; failing which the complainant is entitled to realize 9% interest p.a from the opposite party on the total amount due to him from the date of this order till realization.    

          Pronounced in the open court on this the 12^th day of February 2019.

                                                                                                     Sd/-

 Shiny.P.R

           President

                                                                                                      Sd/-

   V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          - Copy of certificate of Registration dated 10.02.2015 issued by Regional

            Transport Officer, Pattambi to the complainant.

Ext.A2          - Copy of certificate of Insurance cum Policy Schedule dated 17.11.2015

             given by 1^st opposite party to the complainant.

Ext.A3          - Accident Register-cum-Wound Certificate dated 21.10.2016 issued by

            Edappal Hospitals Private Ltd. to the complainant.(original)

Ext.A4 –Claim rejection letter dated 08.12.2016 issued by 1^st opposite party to the

             complainant(original)

Ext.A5 –Invoice Bill amounting Rs.2,08,486.00 dated 02.01.2017 issued 3rd opposite

            party to the complainant.

Ext.A6 – Invoice Bill amounting Rs.2,590.00 dated 06.01.2017 issued 3rd opposite

             party to the complainant.

Ext.A7 – Invoice Bill amounting Rs.2,913.00 dated 10.01.2017 issued 3rd opposite

              party to the complainant.

Ext.A8- Photo copy of driving license of Mohammed Ali.T bearing 52/3320/1994,

            dated 20/01/2015.

Exhibits marked on the side of Opposite parties

Ext.B1 - Attested copy of Policy and conditions

Ext.B2 - Copy of Claim Form dated 21/10/2016

Ext.B3 - Claim Rejection letter dated 08.12.2016.

Ext.B4- Survey report dated 12.12.2016.

Ext.B5- Statement given by complainant to the 1^st opposite party.

Ext.B6- Statement given by complainant’s son to the 1^st opposite party.

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost   - Rs.3,000/-