SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed by the complainant against opposite party for getting an order directing opposite party to pay Rs. 4,00,000/- towards claim amount together with Rs.5,00,000/- towards compensation and cost of the proceedings of the complaint.

            Facts of the case in brief are as follows:-  Complaint is the owner of KL 13 AF 2030 Ford Ecosport 1.5 Diesel Titanium vehicle purchased from PVS Automotive Co. Pvt. Ltd. Calicut with year of manufacture 2015.  It was insured with the OP, chola General Insurance vide policy No.3362/01232988/00/01 with period of insurance from 25/08/2017 to midnight, 24/08/2018.  On 27/05/2018 the complainant went to Pallam near Nileswar with the vehicle.  The road towards the said place dips through a small stream of running water and all vehicles pass through this stream for traffic.  At about 4.30 pm when he was returning to his house driving the vehicle through the said road it was raining heavily.  When the vehicle reached the running water stream there was heavy flow of water and the vehicle skid away into the water.  Complainant tried to regain balance of the vehicle but in vain.  The vehicle moved some distance in the water and it was stuck in the stones.  The engine was working all the time.  The water rose above the bonnet and into the seat.  Complainant was all the time inside the vehicle.  Since it was raining heavily and the place was remote there was no one to help the complainant as soon as the vehicle skidded.  Late after the rain, with the help of local people and friends the vehicle was taken out of the stream and on 28/05/2018 intimating the Ford Service Centre at Kannur, the vehicle was carried to the service centre of Ford cars at Kannur, in the morning itself by Chovva Crain services.  This was intimated to the insurers Chola General Insurance also through phone.  There was no much damage to the body and after the initial valuation by the surveyor of the Chola General Insurance, the complainant made a claim of Rs.4,00,000/- since the whole engine/engine, seats and upholstery parts were damaged.  The vehicle was kept in the premises of the Ford Service Centre at Kannur waiting for the claim to be honoured by the OP and to start the work.  But to the utter dismay of the complainant he got a letter dated 16/07/2018 from the OP denying the claim stating the repudiation of the claim on the ground of misrepresentation of the facts.  It is further stated in the said letter that “we wish to state on careful perusal of the documents it is evident that there has been a deliberate and willful misrepresentation on your part regarding the date of loss at the material time of accident”.  There is no misrepresentation of facts from the side of complainant as alleged.  He has narrated the true accident and the date.  The OP is making false and frivols contentions.  The vehicle is still kept at the Ford Service Centre Kannur and the parts are being damaged.  The complainant contacted the OP office many a times to reconsider his claim but they were not amenable.  A premium amount of Rs.26,412 is collected by the OP from the complainant to  make good the loss of the vehicle in  any eventualities.  There is a huge deficiency of service on the part of the OP.  Hence this complaint.

            After receiving notice OP entered appearance through counsel and filed version.  It is stated that on 11/06/2018 the complainant intimated an accident claim of vehicle KL-13 AF 2030 with this OP mentioning the date of alleged accident as 05/06/2018.  It is submitted that in order to investigate the matter of accident M/s. Sojil K, Ascom associates, C.17 Jaslu Centre, Calicut, west Hill was appointed as an investigator by this OP.  Investigation report was submitted by the investigator on 27/06/2018 and it was established based on the investigation that the vehicle had engine trouble and it was not functioning and on 28/05/2018 it was entrusted for repair to the PVS ford workshop Kannur.  It is submitted that upon intimating of claim a surveyor was appointed on 11/06/2018 to inspect the vehicle in order to assess the damages and liability of this OP.  Survey report was submitted by surveyor on 27/06/2018 that without admitting its liability states that surveyor has assessed net liability of this OP to the tune of Rs.3,46,763.48/-.  It is further stated that with respect to payable liability of the insurer, amount as per survey report has to be considered as surveyor is qualified and expert in making assessment considering depreciation, salvage and excess as per terms and conditions.  It is further stated that surveyor is a person who asses the liability and does not have right to admit the claim the right of admissibility of claim always rest with this OP.  This OP admits policy is issued to complainant as owner of KL 13-AF-2030 Ford Ecosport 1.5 Diesel vehicle for the period 25/08/2017 to 24/08/2018 and the liability if any is subject to the terms, conditions, exclusions of the policy.  OP denied the incident explained in the complaint.

            During pendency of the of the case complainant filed application for appointing an expert commissioner which was allowed and Mr. M T Prakashan, Insurance surveyor and loss assessor was appointed, who inspected the vehicle in dispute at M/s PVs Ford, Thankekunnu, Kannur on 17/10/2018 after serving due notice to both parties, and inspection report was prepared in the presence of both parties, and submitted.

At the time of evidence complainant has filed his chief-affidavit and submitted documents.  He was examined as Pw1 and marked Ext.A1 to A3 expert report as Ext.C1, On the side of OP, Senior manager of OP Insurance company Mr. Anish Varghese has filed his chief-affidavit and was examined as Dw1.  Marked documents Ext.B1 to B7 on the side of OP.  Further investigator appointed by OP after getting claim form of complainant, was examined as a witness from the side of OP as Dw2 and the Investigation report prepared by him has been marked as Ext.B5.  After that the learned counsel of OP filed written argument note of OP.

            It is stated by the complainant that at the time of accident on 27/05/208 at about 4.30 PM the complainant himself was the driver and when the vehicle reached the running water stream, there was heavy flow of water due to heavy raining, the vehicle skid away into the water.  Vehicle moved some distance in the water and it was stuck in the stones.  In Ext.B4 the letter given by the complainant to the claim manager of OP Company on 18/06/2018 stated that at the time of incident there was 3 workmen present inside the car along with him.  During evidence time he has stated that his friend were present inside the car at the accident time.

            OP resisted the date of incident and description of incident as stated by the complainant.  OP submitted that on 11/06/2018, the complainant intimated an accident claim of the vehicle in dispute to OP mentioning the date of alleged accident as 05/06/2018.  Then in order to investigate the matter of accident M/s. Sojil K, Ascom associates, was appointed as an investigator by the OP.  Investigation report was submitted by the investigator on 27/06/2018 and it was established based on the investigation that the vehicle had engine trouble and it was not functioning and on 28/05/2018 it was entrusted for repair to the PVS for work shop, Kannur. OP submitted that though the policy of the vehicle is admitted, the liability if any is subject to the terms, conditions and exclusions of the policy.  According to OP, there were some complaint with regard to the working of the car and the complainant purposefully, created an accident to cover that compliant, OP contended that Ext.B2 and B3 the repair order of PVs ford dated 29/05/2018 and vehicle registration copy (Inward register) dated 28/05/2018 shows that the vehicle was entrusted on the work shop on 18/08/2018 for service due to ‘machine not working’

            According to OP in claim form, surveyor’s report, investigation report, in the letter given by the complainant to Insurance company Except in B2, the alleged accident happened on 05/06/2018.  In the complaint submitted by the complainant before this commission it is stated that the incident happened on 27/05/2018.  Further the description of alleged accident by the complainant is also in different manner.  Ext.B7 the Repudiation letter shows that OP Insurance company repudiated the claim of the complainant with the reason that it is evident that there has been deliberate and willful misrepresentation on the part of insured regarding the date of loss at the material time of accident.  According to OP insurance company, payment of any claim has to be in accordance with the terms and conditions of the policy issued and since complainant has violated the terms and conditions of the policy, they are not liable to pay the claim amount to complainant.  It is further state that though the surveyor in his report had assessed the loss to the tune of Rs.3,46,763.48, since there was violation of the terms and conditions of the policy and since there is discrepancy in the date of accident and description of alleged accident, the claim was not payable. According to OP the alleged incident was not happened accidently instead of that Insured purposefully created an accident to cover the complaint of the engine side of the vehicle.  Further complainant informed the OP on 11/06/2018 that accident occurred on 05/06/2018 but he entrusted the vehicle to garage on 28/05/2018.

            On considering the entire facts of this case and from the material documents we are also of doubt about the date of accident and the manner of alleged accident ie whether accidently or intentionally.  Since OP objected these two points, burden of duty lies upon the complainant to substantiate through evidence.  It is seen that the surveyor who prepared the survey report, stated that the parts of engine was damaged by entering water into the parts, the manner of accident happened and date of loss were not mentioned it his Ext.C1 report.  Complainant did not try to examine the surveyor.  Complainant could have examine the witnesses ie co-passengers or news paper cuttings about the heavy rain flood on the alleged date.

            From the facts and circumstances of this case, the Insurance company was justified is not settling the claim of the complainant.

            In the result complaint fails and hence it is dismissed.  No order as to cost.

Exts.

A1-Certificate of registration

A2- Insurance policy

A3-Letter issued from OP – repudiate the claim

B1-Claim form

B2-Job card(marked with objection)

B3-Inward register (marked with objection)

B4-Letter issued by complainant

B5-Investigation report (subject to proof)

B6-Insurance policy with conditions

B7-Repudiation letter

Pw1-Complainant

Dw1- Aneesh Varghese-Witness of OP

Dw2-Sojil K-Witness of OP

C1-Expert report

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar