BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of January, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.215/2008

Between

Complainant : Santy Mathew,

Madappattu House,

Muthalakkodam P.O,

Thodupuzha,

Idukki District.

(By Advs: Joseph Pathalil, Babichen.V.George & Jose Mathew)

And

Opposite Party : The Branch Manager,

United India Insurance Company Limited,

Branch Office, P.B No.5,

Prakash Building, T.B Junction,

Thodupuzha – 685 584.

(By Adv: T.J.Lakshmanan)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant is a real estate business man by profession, who is the registered owner of an Innova car bearing Reg.No.KL7-BB-4126 and the vehicle was duly insured with the opposite party as Policy No.101102/31/05/04757. The said policy was valid from 9.01.2006 to 8.01.2007. On 3.04.2006, the complainant entrusted his vehicle to his business partners Mr.Binu,Thekkevattakkunnel, Nagapuzha and Mr.Bobby Thazhathuveettil, Nagapuzha to enquire about a landed property situated at Nenmara in Palakkadu district belonging to one K.K.Abraham, Nenmara which he had proposed to sell out. On 3.04.2006 the vehicle got capsized at Churanelli near Nenmara and the vehicle was fully damaged. The driver of the vehicle was Mr.Binu at that time, who holds a valid licence to drive the vehicle. On 4.04.2006 an entry was made in the general diary maintained in the Padarigi Police Station. Thereafter the complainant had made claim before the opposite party to make good the loss sustained in the accident. One Mr.Lokanathan, an authorised Senior Surveyor was appointed by the opposite party to assess the damages caused to the vehicle in the above accident. He conducted a detailed survey and assessed the damages on salvage loss basis to the tune of Rs.3,59,000/- in full and final settlement of the claim. Thereafter the opposite party demanded the complainant to give discharge voucher for Rs.3,59,000/- and the same was given. But instead of making good the loss sustained to the complainant, the opposite party issued a letter dated 6.03.2007 stating that the claim has been repudiated and the same was received by the complainant on 9.04.2007. The reason for repudiation of the claim is that the vehicle was used on hire at the time of accident and the monetary loss was made good by the hirer named one Mr.Rince John. The said Rince John is a total stranger to the complainant. The allegation of the opposite party that the vehicle was used on 'rent-a-car' is absolutely false and the opposite party is having contractual liability with the complainant. Eventhough the vehicle was fully damaged, the complainant agreed to settle the claim for Rs.3,59,000/- because a wreck dealer was ready to purchase the damaged vehicle for a scrap value of Rs.4,25,000/-. The complainant agreed for the deal with the wreck dealer hoping that the opposite party would make the payment of Rs.3,59,000/- and the same can be used for clearing the hypothecation of the vehicle. Since the opposite party repudiated the claim, the complainant could not clear the hypothecation of the vehicle nor could he sell out the damaged vehicle to the wreck dealer as decided. The wreck dealer has already withdrawn from the deal. The damaged vehicle is still left in the garage and the scrap value of the vehicle has been reduced by more than 50% from the date of repudiation of the claim. Since he could not substitute the damaged car as decided, the complainant had to depend on taxi for the last 2 years. The opposite parties are liable to compensate the complainant for the same. The complainant invested Rs.7,89,000/- for a luxury Innova car but within a few months the vehicle happened to be dumped in the garage as it was fully damaged. Due to the denial of the claim by the opposite party, the complainant has suffered much mental pain and agony and the opposite party is liable to pay compensation of Rs.50,000/- for the same. So this petition is filed for getting the insurance claim of the vehicle and also for the damages which amounts to Rs.3,59,000/- for insurance and Rs.2,00,000/- towards depreciation of scrap value and Rs.1,00,000/- for deficiency in service.

2. As per the written version of the opposite party, the opposite party granted insurance coverage to the vehicle No.KL-07 BB 4126 subject to the terms and conditions of the policy issued and it is a settled law that the parties to the insurance contract are bound by the terms and conditions of the policy issued. As per the policy of the vehicle, it is a private car package policy(B Policy) and the terms and conditions of the said policy clearly specify that the insured vehicle cannot be used for hire or rent. As per Condition No.7 Sub Clause 4 of the policy clearly specify that if the company shall disclaim liability to the insured for any claim hereunder and such claim shall not

within 12 calendar months from the date of such disclaimer having made the subject matter of a suit in a Court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder. Here the repudiation letter was issued on 6.03.2007 and the same was acknowledged by the complainant on 9.04.2007. Hence the complainant has not filed the case within 12 months from the date of receipt. The present complaint is filed after the said specific period, is clearly barred by limitation. After receiving the claim intimation from the insured the opposite party had engaged an investigator to investigate about the same. As per the investigation it reveals that the insured vehicle was used for hire by one Mr.Rince John at the time of accident and the damage sustained to the said vehicle was compensated by the said Rince John and Mr.K.O.John, father of Mr.Rince John had given a statement to the said effect. Thus from the above, it is clearly proved that the insured vehicle was used for hire at the time of accident using the insured vehicle for hire amounts to violation of the policy conditions namely “limitation as to use” and so the insurance company is not liable to indemnify the insured. There is no evidence to prove that the complainant is a real estate business man. The company never demanded the complainant to give any discharge voucher for Rs.3,59,000/- as stated in the complaint. The complainant is using his various vehicles for a rent a car business. This vehicle was also given to the said Rince John on a rent-a-car basis and the vehicle was used by the said Rince John at the time of accident. The vehicle was hired by Mr.Rince John for a trip to Nelliyampathy and on the return journey the said vehicle met with an accident. The complainant is very well known to the Rince John and the complainant was also very well aware about the facts. He himself had stated in the claim form in column No.9 that the said Rince John was a witness to the accident. Thus the complainant himself admitted that the Rince John was there at the time of accident and the said person is not a stranger to him. The opposite party had never caused any loss or inconvenience to the complainant as alleged. The opposite party is not aware about the taxi used by the complainant for the last 2 years and the complainant is put to strict proof of those averments. The complainant claimed Rs.2 lakhs   towards depreciation of scrap value but he never adduced any evidence to show that same. Mr.Rince John who used the insured vehicle for hire at the time of accident had compensated the loss suffered by the complainant so the complainant wilfully suppressed the facts. Even if the Forum finds any liability upon this to the opposite party, their liability is limited by the assessment made by the surveyor. Hence the petition may be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P7 marked on the side of the complainant and the oral testimony of DWs 1 to 4 and Exts.R1 to R4(series)marked on the side of the opposite parties.

5. The POINT :- The petition is filed for getting the insurance amount of the damaged vehicle which met with an accident. The vehicle was duly insured with the opposite party. The opposite party repudiated the claim due to the reason that the complainant violated the policy conditions that the vehicle was given for rent at the time of accident and the person who availed the vehicle for rent has compensated the damages sustained to the vehicle. Complainant was examined as PW1. Ext.P1 is the copy of the policy issued by the opposite party and Ext.P2 is the repudiation letter from the opposite party. Ext.P3 is the certificate dated 4.04.2006 issued by the S.I of Police, Padagiri regarding the accident. PW1 admitted that the policy of the vehicle was a private car policy. But the policy conditions were not given to the complainant. The complainant is having 3 other vehicles at the time of accident. PW1 is having real estate business, is an authorised dealer of

LML-Two wheeler vehicles. But he was not conducting rent a car business. He is having real estate business in various parts of Kerala. In the claim form, Column No.9 was not filled up by the PW1. Ext.P5 is the discharge voucher given to the opposite party as per the request of the Surveyor of the opposite party named Lokanathan for settling the claim of the complainant. But no written document was given by the opposite party for settling the claim. No document produced to show the depreciation scrap value. When the learned counsel for the opposite party cross examined PW1, replied that the vehicle was fully damaged. So he was not able to repair the vehicle. He was not having enough money to do the same. Hence the vehicle was kept in the open space and damaged. The claim form was filled up by the staff of the insurance company and not the complainant. Complainant only put his signature on the claim form. PW2 is the partner of the complainant in real estate business. Except PW1, he and his friend one Mr.Bobby Joseph went to Nelliyampathy for a real estate business at Nelliyampathy with the complainant's vehicle and it met with an accident while PW2 was driving the vehicle. One Mr.Rince John and Jimmy are the friends of PW2 were also accompanied with PW2 on the way to Nelliyampathy. PW1 was not aware of that matter. PW2 is having valid driving licence to drive the vehicle. One of the friends of PW1, Mr.Bobby was with him at the time of accident. PW2 and Mr.Bobby were also injured in the accident. They were treated there at a clinic in Nelliyampathy and a complaint was given to the nearest police station on the next day. The accident was occurred at Churanelli in the return journey from Nelliyampathy. One Jimmy was also with them on the journey to Nelliyampathy. Ext.P7 is the copy of the driving licence of PW2. DW1 is the opposite party Manager and the policy copy is marked as Ext.R1. DW1 deposed that the complainant himself filled up the claim form given by the opposite party. The claim is repudiated because he violated the policy conditions. The vehicle was used as a taxi which was revealed during investigation. The investigation report is marked as Ext.R3. On cross examination for the learned counsel for the complainant, DW1 deposed that there is no document to show that the policy condition was issued to the policy holder. The investigator is a person appointed by DW1. No independent agent has investigated the matter. DW1 knows only the matters stated by the investigator. There is no document showing that the vehicle was given as taxi at the time of accident. There is no document showing that the complainant received compensation from the said Rince John. The claim was repudiated not only for the reason that the vehicle was given as rent but also the complainant has got compensation from the person who hired the vehicle. DW1 is not aware who was the driver of the vehicle at the time of accident of the vehicle. Ext.R3 is the copy of the investigation report. Statement of 2 persons were recorded by the investigator. DW2 was conducting a provision store. The payment for the investigator is giving by the company. In the report in the second page, it is written that the vehicle was driven by Rince John. DW2 deposed that in the report in the Ist page, it is written that the vehicle was driven by Binu Joy at the time of accident. DW2 investigated the matters in the police station also. But they never stated the name of the driver of the vehicle at the time of accident. No statement recorded from any witnesses of the accident. DW3 is a retired teacher who is the father of Mr.Rince John. DW3 deposed that the opposite party approached him for investigation. A letter written signed by DW3 was given to the surveyor. But it was not written as per the interest of DW3 but as per the request of the opposite party. What is written in the letter are not correct. DW4 is an independent surveyor of General Insurance. DW4 has conducted survey for the disputed vehicle and the survey report with photographs are marked as Ext.R4(series). He never assessed the damages of the vehicle. DW4 inspected the spot of damage. Remuneration for DW4 is disbursing by the opposite party company.

6. As per the opposite party, the compensation for damage sustained to the vehicle was disbursed by the father of the alleged Rince John, who hired the vehicle. The statement of the father of the said Rince John was given to the investigator which is marked as Ext.R3(series). But when the witness appeared before the Forum, he delivered that the letter was issued only as per the request of the insurance company and the matter stated in the statement are not correct. The quantum of damages is not at all mentioned in the letter. The vehicle is having a value nearly 8 lakhs and if any compensation received by PW1 from that DW3, the amount would be a huge one and there might be a written document for the same. We do not think that the said Mr.John has disbursed such a huge amount to the complainant without any document. The opposite party disputed the claim because of the major reason that the vehicle was hired to one Mr.Rince John by PW1. What prevented the opposite party to make the said Rince John as a witness before the Forum and produce evidence for the same. The investigator of the opposite party has conducted investigation and statement was taken from DW3. But what prevented the opposite party to get the statement from any of the persons who travelled the disputed vehicle at the time of accident. So it means that a purposeful investigation was not conducted by the opposite party to detect the name of the driver of the vehicle at the time of accident. The opposite party never conducted any investigation or any statement was received from any of the the witnesses of these accident. There is no evidence produced by the opposite party to show that the vehicle has given as rent-a-car business or the vehicle was using as taxi by the complainant. The police has registered a GD entry in the police station where the accident was occurred. A certificate from the S.I of Police, Padagiri, Palakkadu district is also produced by the complainant as Ext.P3. It is only a report of the GD entry and it is stated in the certificate that an investigation was conducted by the police. But the opposite party never tried to find out the driver of the vehicle. The opposite party repudiated the claim for another reason that the complainant ought to have filed this petition within 12 months of the repudiation of the claim, which is clearly mentioned as per condition No.7 sub clause 4 of the policy. But as per Ext.P1 policy, there is no such condition is attached and the opposite party never produced any document to show that the conditions of the policy were also supplied to the complainant at the time of availing the policy. Ext.R2(series) is the copy of the policy produced by the opposite party in which a condition of private car package policy is annexed by the opposite party. But we think that these conditions are not the part of the policy, which is a separate booklet filed by the opposite party. So the repudiation of the claim of the complainant by the opposite party is not proper and is a gross deficiency from the part of the opposite party.

7. So we think that the opposite party is liable to compensate for the damages caused to the vehicle because the accident is admitted by the opposite party and the damage of the vehicle is also admitted by the opposite party as per Ext.R4(series). As per DW1 the damage is assessed by the opposite party. But as per Ext.R4 survey report or as per Ext.R3 investigation report, there is

nowhere mentioned about the quantum of damages. The complainant produced a document, which is Ext.P5, in which it is stated that as per the request of the surveyor one Mr.Lokanathan, the opposite party is ready to settle the claim and the complainant is ready to give the consent for settling the claim as Rs.3,59,000/- as full and final settlement. Ext.P5 letter is not admitted by the opposite party. The report of the surveyor Lokanathan is also not produced by the opposite party. So we are not able to assess the quantum of damages caused to the vehicle because the opposite party or the complainant never produced any survey report stating the quantum of damages of the vehicle. So we think that it is proper to settle the claim by the opposite party as per the assessment of the survey report of the opposite party.

Hence the petition allowed. The opposite parties are directed to consider the insurance claim of the complainant's vehicle No.KL 7-BB-4126 Toyotta Innova car and settle the claim by fixing the amount as per the survey report prepared by the opposite party within one month and Rs.2,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30th day of January , 2010

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

I agree SMT.SHEELA JACOB(MEMBER)

I agree SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Santy Mathew

PW2 - Binu Joy

On the side of Opposite Parties :

DW1 - K.N.Suresan

DW2 - Justin Thomas

DW3 - K.O.John

DW4 - Anandakrishnan

Exhibits:

On the side of Complainant:

Ext.P1 - Policy Schedule

Ext.P2 - Repudiation letter dated 6.03.2007 issued by the

opposite party to the complainant

Ext.P3 - Certificate dated 4.04.2006 issued by the S.I of Police,

Padagiri, Palakkadu District

Ext.P4 - Photocopy of Certificate of Registration

Ext.P5 - Photocopy of Complainant's letter dated 11.08.2006 addressed

to the Regional Manager, United Insurance Company Limited,

Cochin

Ext.P6 - Photocopy of Driving Licence of PW2

Ext.P7 - Photocopy of Driving Licence of PW2

On the side of Opposite Parties :

Ext.R1 - Photocopy of Motor Claim Form

Ext.R2(series) - Copy of Policy Schedule and conditions

Ext.R3 - Investigation Report

Ext.R4(series) - Motor Survey Report with Photographs(5 Nos)