BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 73/2003 Filed on 19.02.2003

Dated : 15.01.2009

Complainant:

P. Satheesh Kumar, Thevpazhanjivila Puthen Veedu, Mariyapuram P.O, Chenkel, Neyyattinkara, Thiruvananthapuram.

(By adv. V.Murukan)

Opposite party:

The New India Assurance Co. Ltd, Divisional Office II, K.N. Mathew Building, G.A. Coil Road, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This O.P having been heard on 29.11.2008, the Forum on 15.01.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: The complainant is the owner of a Yamaha Crux Motor Cycle bearing Reg. No. KL-01 V3713 having insurance policy No. 3176140057424 with New India Assurance Co. Ltd. The policy is comprehensive including own damage premium, third party property damage risk, liability to public risk, excluding of earth quake and flood. While using the vehicle on 06.04.2002 at about 8.30 p.m near Kattakada, it hit on the electric post causing damage to the vehicle. The damage occurred due to the skidding of the back tyre on the oil spread on the road. Due to the heavy impact the motor cycle was totally damaged and it was repaired in the authorized work shop-Muthoot Motors Ltd, Thiruvananthapuram. The bill issued by the service centre was produced before the office of the New India Assurance Co. Ltd. But the company rejected the claim without any reasonable cause. The complainant states that the opposite party should have compensated the damage, sustained to the vehicle, as per the policy. The company rejected the claim application and thereby causing a loss of an amount of Rs. 10,857/- as stated in the bill from the authorized Muthoot Motors Ltd, Thiruvananthapuram. The complainant mentally and physically suffered a lot because of the irresponsible act of the opposite party. Hence this complaint.

The opposite party filed version contending the allegations against them. The opposite party stated that no accident has taken place as alleged in the complaint. The main contentions of their version are as follows: The allegation that the opposite party rejected the claim without any reason is not correct. Immediately on receipt of the claim submitted by the complainant, the opposite party appointed independent licensed surveyor and loss assessor, Sri.Nizar Mohammed, to conduct survey and assess the loss caused to the vehicle. He conducted the survey and assessed the loss caused the vehicle without prejudice in respect of cause, nature and extent of loss, damage and subject to the terms and conditions of the policy and filed his report dated 20.04.2002. In the survey report it is stated that the statement given in the claim form about the cause and nature of accident is not consistent with the damages found on the vehicle. The alleged cause of accident in the claim form is that the vehicle slipped and fell down due to the oil in the road. The damages noted by the surveyor were front fork assembly bent, wheel axle bent, wheel disaligned, headlight stay at the front side, meter assu (broken) fitted at the top centre of the vehicle damaged. Therefore the opposite party was constrained to repudiate the claim submitted by the complainant vide letter dated 27.04.2002 sent to the complainant. The complainant has claimed Rs. 10,857/- fraudulently only to get undue gain from the opposite party. The averment that the complainant mentally and physically suffered is false and hence denied. The opposite party is liable to indemnify the complainant only as per the terms and conditions of the policy. The claim submitted by the complainant is fraudulent. The averment that the opposite party was legally bound to compensate the complainant is absolutely false and hence denied. The averments that the opposite party/company cannot reject the claim for a minor reason and that the company can reject claim only for earthquake flood and for no other reasons are absolutely false and denied. It is submitted that the reason for rejection is not minor and that any false claim can be rejected. The complainant has no cause of action to file the complaint and this Hon'ble Forum has no jurisdiction to entertain the complaint and it is only an abuse of this Forum. The averments in para (5) of the complaint are absolutely false and hence denied. The complainant is not entitled to get any of the reliefs prayed for in the complaint and the complaint is liable to be dismissed with costs.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service on the part of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs.

Points (i) & (ii):- In this case complainant filed proof affidavit and produced 7 documents which were marked as Exts. P1 to P7. The opposite party also filed proof affidavit and produced 3 documents which were marked as Exts. D1 to D3. From the side of opposite party, the surveyor was examined as DW1, through him the surveyor's report was marked as Ext. D1. Ext. P2 is the policy certificate and Ext. P3 is the policy schedule. The only dispute is that as per the surveyor's report the statement given in the claim form about cause and nature of the accident is not consistent with the damages found on the vehicle in the course or survey. On that ground the opposite party repudiated the claim.

There is no dispute on the point that the vehicle in question bearing Reg. No. KL-01 V 3713 was insured by the complainant with the opposite party through policy No. 3176140057424 for the period from 05.07.2001 to 04.07.2002. And there is no dispute regarding the nature of liability. As per Ext. P3 the policy is covering own damage premium, third party property damage risk, liability to public risk excluding of earthquake and flood. The argument of the complainant is that the accident is an unexpected event and unable to narrate it as such. Due to the accident how far the vehicle happened to be damaged and what type of damage occurred depends on different facts such as speed, position of road etc. So nobody can easily explain how much and how far damages occur in an accident without proper examination of witness. We also admit the argument of the complainant.

Insurance is a contract between the insurer and insured and both parties are legally bound to obey the terms and conditions of the insurance policy. In this case the accident had happened while the complainant was using the vehicle. But in the claim form he stated that due to oil spread on the road the vehicle skid and the vehicle got damaged. In the complaint he stated that while he was travelling, the vehicle hit on the electric post and due to that impact the vehicle skid and damaged. Anyway the vehicle got damaged. As per the policy taken by the complainant, the opposite party can reject the claim only on two grounds, due to flood and earthquake. In this case the damage was not sustained due to earthquake or flood. So the repudiation made by the opposite party is not reasonable and justifiable. The complainant argued that the opposite party admitted the accident and damage of the vehicle. But on unsustainable reason the opposite party rejected the claim of the complainant. Hence the opposite party cannot repudiate the claim filed by the complainant on the ground that the narration of the accident in the claim form not tallying the damages seen on the vehicle. Thus for the reasons stated above it is held that the opposite party insurance company is not justified in repudiating the claim of the complainant and it amounts to deficiency in service on the part of the opposite party.

In this case the opposite party appointed a surveyor for assessing the loss occurred in the vehicle. The surveyor assessed the damage sustained to the vehicle and submitted report before the opposite party. The surveyor's report produced before this Forum is marked as Ext. D1. As per the Ext. D1 document total liability is Rs. 5,855.02. The damaged vehicle was repaired by the authorized dealer cum servicing centre, the Muthoot Motors Workshop. The complainant claims Rs. 10,857.25 for the repairing charge which he paid to the Muthoot Motors. Ext. P4 is the bill issued by the Muthoot Motors to the complainant for Rs. 6,062/-. The complainant stated that another bill of Rs. 3,795/- is with the opposite party. For the aforesaid reasons we find that the loss and liability assessed by the surveyor is admissible. Hence this Forum allowed the complaint.

In the result, the opposite party is directed to pay Rs. 5,855/- to the complainant for the damages of the vehicle with interest at 9% per annum from the date of repudiation letter i.e, 27.04.2002 till realization. Since interest has been ordered, there is no separate order towards compensation. And also shall pay Rs. 1,000/- as costs. Time for compliance one month.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th January 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 73/2003

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Receipt of collection No. 6580 dated 05.07.2001.

P1(a) - Motor vehicle cover note original No. 313974 dtd.05.07.2001.

P2 - Certificate of insurance of motor cycles of Policy No.

3176140057424 from 05.07.2001 to 04.07.2002.

P3 - Policy schedule of Policy No. 3176140057424.

P4 - Workshop Bill(cash)dated 30.12.1996.

P5 - Photocopy of Certificate of Registration.

P6 - Photocopy of driving licence.

P7 - Letter dated 27.04.2002 issued by opposite party.

III OPPOSITE PARTY'S WITNESS :

DW1 - M. Nizar Mohammed

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Motor Survey Report dated 20.04.2002.

D1(a) - 6 photos of motor bike.

D2 - Motor Claim Form of policy No. 3176140057424.

D3 - Carbon copy of letter dated 27.04.2002.

PRESIDENT