IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.

Dated this the 29^th day of July, 2010.

Present:- Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C.No.56/07 (Filed on 26.04.2007)

Between:

C. Jayaraj,

S/o. Chandrasekhara Panicker,

Chempakasseril,

Maroor.P.O., Adoor,

Pathanamthitta.

(By Adv. Ajith Prabhav)                                                  .....     Complainant

And:

1.     The New India Assurance Co. Ltd.,

Changayil Buildings,

College Road, Pathanamthitta,

Rep. by its Branch Manager.

2.     The Divisional Manager,

New India Assurance Co. Ltd.,

Kollam

(By Adv. Sam Koshy)

3.     ICICI Bank Ltd.,

1^st Floor, Sky Line Citadel,

K.K. Road, Kanjikuzhi,

Kottayam.

(By Adv. Roy Thomas)                                                   .....     Opposite parties.

O R D E R

Sri. N. Premkumar (Member):

                   Complainant filed this complaint for getting a relief from the Forum.

                   2. Fact of the case in brief is as follows:-  The complainant is the owner of the vehicle KL-3-M/6003 Mitsubishi Lancer Car.  The 1^st opposite party is the insurer of the vehicle who had issued a comprehensive policy No.760903/31/01/00002460.  The said policy was in force from 14.7.05 to 13.7.06.  The 2^nd opposite party is the Divisional Manager of the 1^st opposite party.  The 3^rd opposite party is the financier of the vehicle.

                   3. The said vehicle met with an accident on 6.4.06 at about 9.45 p.m. near Koprapura Junction, on Kayamkulam-Punalur Road.  In the accident a motorcyclist by name Rajesh died and the passengers of the car including the complainant also sustained injuries.  The said car also sustained extensive damages resulting in the total loss of the vehicle.  The vehicle at the relevant time was driven by one Vipin.  At the time of the accident apart from the said Vipin the complainant, his wife Sushama and their son Rishi, were in the car.  All of them in the car sustained injuries due to the accident. 

                   4. As a result of the accident, complainant’s car sustained extensive damages to the extent of total loss and the car was taken to Marikar Motors an approved Automobile Workshop cum dealer of Lancer Car.  The surveyor of the insurer conducted the survey and the vehicle was delivered to the financer, the 3^rd opposite party after fixing the salvage value.

                   5. On 12.4.06 the complainant filed claim form before the 1^st opposite party.  But the claim was rejected by stating that complainant himself was driving the vehicle at the relevant time and he was under the influence of alcohol at the relevant time.  Therefore 1^st opposite party is not liable to indemnify the loss sustained to the complainant as per the terms of the policy.  The 1^st opposite party also states that driver mentioned in the claim form and the criminal case are different and it is a deliberate substitution for the purpose of claiming the insurance coverage under the policy.  The aforesaid finding of the 1^st opposite party is absolutely false and not supported by any evidence.  On the other hand, there was neither any substitution of driver nor any drunken driving by anybody.  When contacted the 1^st opposite party, he advised the complainant to file an appeal before the grievances cell of the 1^st opposite party.  Accordingly the complainant filed an appeal before the grievances cell on 15.2.07.  But by the letter dated 21.3.07, the grievances cell of the 1^st opposite party also rejected the appeal finding that the repudiation of the claim was in order.

                   6. According to the complainant the vehicle at the time of accident was driven by one Vipin, S/o. Vijayan, who is none other than the son of the complainant’s elder brother Vijayan.  The said Vipin is a computer professional holding M.Sc. I.T. Degree.  After investigation, the police has charge sheeted the aforesaid Vipin for the offence under Sections 304 A, 279 and 337 of the Indian Penal Code.

                   7. The complainant’s wife and son also were in the car at the relevant time and all the passengers including the said Vipin sustained injuries in the accident.  All the passengers were taken to P.K. Kunju Memorial Govt. Hospital, Kayamkulam and their injuries were noted in the wound certificates, ands later the   complainant and his wife and his son were referred to Alleppey Medical College.  The wound certificate shows that the doctors who attended the injured had not noticed even smell of alcohol.  So there are medical records to disprove the claim of the company that the complainant was under the influence of alcohol.  The complainant is a person holding a valid and effective driving licence as on the date of accident.  There is no need for the complainant to cause to implicate his brother’s son, who is highly qualified and planning to go abroad, as an accused, in a case under section 304 A IPC.  So the finding of the private investigator of the 1^st opposite party is absolutely false, and unwarranted.

                   8. The 3^rd opposite party issued a legal notice informing the complainant that the said vehicle was disposed of for Rs. 1,40,000/- which was the best quoted prize of the vehicle.  It is also informed by the 3^rd opposite party that the said sum of Rs.1,40,000/- was credited into the loan account of the complainant.  The complainant estimates Rs.9,00,000/- as the value of the vehicle out of which there was a policy cover Rs.8,71,500/-.  Since the vehicle was sold for Rs.1,40,000/-, the complainant is entitled to get the balance amount of Rs.7,31,500/-.  The complainant is also entitled to get interest at the rate of 12% per annum on the said amount from the date of submitting the claim form till date and the said amount is estimated as Rs.87,780/-.  Apart from that the complainant is also entitled to get Rs.1,00,000/- as compensation from the 1^st opposite party on account of the mental agony, inconvenience, hardship etc. sustained to the complainant.  Therefore complainant is entitled to get a total sum of Rs.9,19,280/- with 12% interest from the date of this complaint till the realisation of the amount as per the statement given in the complaint.  Hence this complaint.

                   9. Opposite parties 1 and 2 entered appearance and filed a common version stating that the complaint is not maintainable either in law or on facts.  They admitted the policy and the occurrence of accident on 6.4.06.  They appointed a surveyor to assess the damages without prejudice to the admissibility of the claim.  They also appointed a private investigator to enquire into the genuineness of the claim.  As per the said investigator’s report the vehicle at the time of accident was driven by non other than the insured himself who was fully intoxicated.  But the insured in his claim form has stated that one Vipin. C. Vijayan had driven the vehicle at the time of accident.  The complainant won over the police and succeeded in planting the said Vipin. C. Vijayan in his place as the driver of the vehicle and managed to get a charge sheet laid against the said Vipin. C. Vijayan.  The investigator had gathered relevant materials from all sources and gave his report.

                   10. As per investigation report complainant and others were coming back from Ernakulam in the insured car.  The complainant was driving the vehicle in an intoxicated condition.  He was not even capable of taking care of himself.  The expression driving means, driving in a same state of mind and does not include drunken driving.  The opposite parties 1 and 2 meticulously processed the claim with due application of mind and observed that the claim is not payable.  Opposite parties 1 and 2 have gathered evidence to the effect that the complainant was under the influence of alcohol at the time of the alleged accident and he himself was driving the car.  Therefore the exclusion 2 C, stated as “The company shall not be liable to make any payment in respect of any accidental loss or damage whilst the insured or any person driving with the knowledge or consent of the insured is under the influence of intoxicating liquor or drugs”.  With the above contentions they canvassed for the dismissal of the complaint, as they have not committed any deficiency of service. 

                   11. 3^rd Opposite party also entered appearance and filed a separate version stating that the complainant had availed a loan of Rs. 7,40,000/- on 23.7.05 from them agreeing to repay it by 60 equal monthly instalments of Rs.14,750/- for purchasing a Lancer Car.  This 3^rd opposite party took back the possession of the vehicle on 31.1.2007 for continuous defaults in repayment and the loan was thereby terminated.  Since the complainant failed to settle the loan fully, the vehicle was sold for Rs.1,40,000/-.  The said amount has been credited in the loan account of the complainant.  At present a balance of Rs.4,28,263/- is due from the complainant to the 3^rd opposite party.  All other contentions in the complaint are not relating to the 3^rd opposite party and hence not known to them.  The 3^rd opposite party is unnecessarily dragged into this case.  Therefore they also canvassed for the dismissal of the complaint with cost.

                   12. From the above pleadings, followings points are raised for consideration:

(1)   Whether the complaint is maintainable before this Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs? 

         13. Evidence of the complainant consists of the proof affidavit filed by the complainant along with 13 documents.  He was examined as PW1 and the documents produced were marked as Exts.A1 to A13.

          14. Evidence of opposite parties consists of the proof affidavit filed by the 1^st opposite party along with three documents.  He was examined as DW1 and the documents produced were marked as Ext.B1 to B3.  Apart from DW1, DW2 and DW3 were also examined for the opposite parties.  After the closure of evidence, both parties were heard.

          15. Point No. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit and he was examined as PW1.  Documents produced by him were marked as Exts.A1 to A13.  Ext.A1 is the copy of policy certificate issued by 1^st opposite party.  Ext.A2 is the repudiation letter issued by 1^st opposite party.  Ext.A3 is the letter dismissing the appeal of complainant by Grievance Cell, of the 1^st and 2^nd opposite party.  Ext.A4 is the copy of Appeal Memorandum of the complainant filed before the Grievance Cell, of the 2^nd opposite party.  Ext.A5 is the copy of FIR in Crime No.75/06 of Vallikunnam Police Station.  Ext.A6 is the copy of charge sheet in C.C.No.56/07 obtained from Judicial Magistrate Court, Kayamkulam.  Ext.A7 is the copy of wound certificate of complainant issued from Govt. Hospital, Kayamkulam.  Ext.A8 is the copy of wound certificate of Vipin issued from Govt. Hospital, Kayamkulam.  Ext.A9 is the copy of wound certificate of complainant’s wife Sushama issued from Govt. Hospital, Kayamkulam.  Ext.A10 is the copy of wound certificate of complainant’s son Rishi, issued from Govt. Hospital, Kayamkulam.  Ext.A11 is the copy of AMVI’s report of complainant’s vehicle.  Ext.A12 is the copy of scene mahazar prepared by the Vallikunnam Police Sub Inspector.  Ext.A13 is the attested copy of judgment in C.C.No.668/06 of Judicial Magistrate Court, Kayamkulam.

          16. In order to prove the opposite parties’ contention, 1^st opposite party filed proof affidavit along with certain documents.  He was examined as DW1 and the documents produced were marked as Ext.B1 to B3.  Ext.B1 is the survey report prepared by the insurance surveyor.  Ext.B2 is the investigation report of the insurance investigator Justin Thomas.  Ext.B3 is the statement of one Zachariah. K. George dated 31.7.06.

          17. On the basis of the contentions and averments of the parties, we have perused the entire materials on record.  There is no dispute regarding the issuance of the policy and its validity and the occurrence of accident.  The only dispute of the insurance company is that the complainant himself was driving the vehicle in an intoxicated condition at the time of accident.  But he planted one Vipin. C. Vijayan as the driver in the claim form and the police records.  Therefore complainant violated the policy condition.  As per policy exclusion Clause 2 C he is not entitled to get the claim.

          18. Complainant denied that he had driven the vehicle at the time of accident in an intoxicated condition.  At the time of accident, his relative Vipin. C. Vijayan was driving the vehicle.  The Vallikunnam Police conducted investigation  in connection with the accident and a case is registered and charge sheeted against Vipin. C. Vijayan.  In the accident complainant and his wife, his son and the driver Vipin. C. Vijayan were injured.  This fact is clearly evident from Ext.A5 to A13 documents.  Ext.A13 shows that Vipin. C. Vijayan was driver and he was  acquitted by Judicial First Class Magistrate Court, Kayamkulam.

          19. On a perusal of Ext.B2, it is stated that complainant himself driven the vehicle at the time of accident.  Ext.B3 further strengthened the contents of Ext.B2.  But opposite parties 1 and 2 had not challenged Ext.A5 to A13 documents.  Evidence does not show that they had not made any complaint against Ext.A6 charge sheet or even made any representation before the higher police officials regarding the improper investigation.  Therefore it is presumed that they have accepted the police records.  This fact is also clear from DW1’s deposition which is as follows:-  “Police investigation Xr]vXnIcasöv ImWn¨v ]cmXnsbm¶pw \ÂInbn«nÃ.  Hcp re-investigation-\pw F§pw Bhiys¸«n«nÔ.

          20. Moreover opposite parties 1 and 2 are relying on Ext.B2 and B3 for substantiating their contentions.  But DW2, the investigator who prepared B2 report was not in a position to deny the police report, which is more authoritative and reliable than Ext.B2.  This is also evident from DW2’s deposition which is as follows:- “Investigation-sâ `mKambn police records verify sNbvXncp¶p.  AXnsem¶pw hml\w HmSn¨ncp¶Xv complainant BsW¶v ]dªn«nÃ.  Police record- tem wound certificate- tem aZy]n¨Xmbn ImWp¶nÃtÃm (Q) CÃ (A)”.

          21. Ext.B3 is the statement given by DW3 to the insurance investigator.  But DW3 denied his own statement, which shakes the contentions of opposite parties 1 and 2.  It is evident from DW3’s deposition which is as follows:-  “Insurance Company-bn \n¶v hcnIbmsW¶v ]dªv blank paper- H¸nSo¡pIbmbncp¶p.  Cu tIkns\ kw_¨v Rm³ Kayamkulam Magistrate tImSXnbn samgn \ÂInbn«p­v.  A¶v h­n HmSn¨ncp¶Xv Jayaraj BsW¶v ]dªn«nÔ.

          22. From the overall facts and circumstances of the case it is seen that opposite parties 1 and 2 had failed in their attempt to prove that the complainant had neither driven the vehicle nor violated the policy condition.  Moreover Ext.A13 shows that the person who had driven the vehicle was Vipin. C. Vijayan and he was acquitted by a competent court.  In this juncture we are inclined to find any illegality or irrationality in complainant’s case and his claim.  Therefore the non-payment of the insurance claim by the 1^st and 2^nd opposite party is a clear deficiency of service and this complaint is maintainable and allowable.  As no relief sought against 3^rd opposite party, we find no deficiency against 3^rd opposite party.  The 1^st and 2^nd opposite parties are the insurer in this case and they are liable to the complainant.

          23. There is no dispute regarding the sale of the vehicle by the 3^rd opposite party.  It is pertinent to note that the parties have no dispute regarding the sale price of Rs.1,40,000/- received by the 3^rd opposite party is less than the actual price or the 3^rd opposite party had purposely sold the vehicle for a lower price for making a loss to the complainant and the insurance company.  So this Forum find that the actual salvage value of the damaged vehicle is Rs.1,40,000/- and the vehicle was in a state of total loss.  In the circumstances and in the absence of any cogent evidence, showing that the complainant had violated the terms and conditions of the policy, we find that the complainant is entitled to get the insured amount subject to the statutory deductions.  As per the materials on record the IDV of the vehicle is Rs.8,27,925/- as on 14.7.05, the date of commencement of the policy.  But the accident occurred on 6.4.06 i.e. after 9 months from the commencement of the policy.  So 9 months depreciation can be deducted from the IDV.  Therefore the complainant is entitled to get the balance amount of the IDV after deducting policy excess, 9 months depreciation and Rs.1,40,000/- the amount received by 3^rd opposite party and the interest from the date of filing of this complainant from 1^st and 2^nd opposite parties.  Complainant is also entitled to get compensation and cost.  In the absence of any allegation of negligence or deficiency in service or any relief is sought against 3^rd opposite party, we find no deficiency against 3^rd opposite party.

          24. In the result, this complaint is allowed, thereby the 1^st and 2^nd opposite parties are directed to pay the actual IDV less policy excess, less 9 months depreciation not exceeding 12% depreciation for one year and less Rs.1,40,000/- (Rupees One Lakh Forty Thousand only) the amount received by the 3^rd opposite party, with 9% interest per annum from the date of filing of this complaint till this date along with compensation of Rs.15,000/- (Rupees Fifteen Thousand only) and cost of Rs.3,000/- (Rupees Three Thousand only) within 30 days from the date of receipt of this order to the complainant, failing which  interest at the rate of 10% will follow for the whole amount from today till the whole realisation.

          25. Complainant is also directed to produce before the 1^st and 2^nd opposite party, a non liability certificate obtained from the 3^rd opposite party showing that he had no dues to the 3^rd opposite party in connection with their loan transaction.

          Declared in the Open Forum on this the 29^th day of July, 2010.

                                                                                              (Sd/-)

                                                                                      N. Premkumar,

                                                                                           (Member)

Sri. Jacob Stephen (President)            :         (Sd/-)

Smt. C. Lathika Bhai (Member)           :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  : Jayarajan

Exhibits marked on the side of the complainant:

A1     : Photocopy of policy certificate issued by 1^st opposite party to the  

            complainant.

A2     :  Repudiation letter issued by 1^st opposite party to the complainant. 

A3     :  Letter dated 21.3.07 issued by the Manager, Ernakulam Regional Office,  

             New India Assurance Company Ltd. 

A4     :  Copy of Appeal Memorandum submitted by the complainant before the

             Grievance Cell, The New India Assurance Company Ltd., Kochi.

 A5    :  Photocopy of FIR in Crime No.75/06  dated 07.04.2006 of Vallikunnam

             Police Station. 

A6     :  Photocopy of Final Report dated 7.4.06 in C.C.No.75/06 from the Judicial 

             Magistrate Court, Kayamkulam.

A7     : Photocopy of Accident Register-cum-wound certificate of the complainant 

             issued by Govt. Hospital, Kayamkulam. 

A8     :  Photocopy of Accident Register-cum-wound certificate of Vipin issued 

             by Govt. Hospital, Kayamkulam. 

A9     :  Photocopy of Accident Register-cum-wound certificate of Sushama issued 

              by Govt. Hospital, Kayamkulam.

A10   :  Photocopy of Accident Register-cum-wound certificate of the 

             complainant’s son Rishi issued by Govt. Hospital, Kayamkulam. 

A11   :  Photocopy of AMVI report of complainant’s vehicle. 

A12   :  Photocopy of scene mahazar prepared by the Vallikunnam Police Sub 

             Inspector. 

A13   :  Photocopy of judgment in C.C.No.668/06 issued by Judicial Magistrate 

             Court, Kayamkulam.

Witness examined on the side of the opposite parties:

DW1  :         Mathew M. Mathew

DW2  :         Justin Thomas

DW3  :         Zacharia. K. George

Exhibits marked on the side of the opposite parties:

B1     :  Photocopy of the Motor Survey Report dated 30.11.2006

B2     :  Photocopy of the Investigation Report dated 9.8.2006

B3     :  Statement dated 31.7.2006 sent by Zacharia K. George, Koprapurayil 

             House, Kayamkulam to the 2^nd opposite party.

                                                                                        (By Order)

                                                                            Senior Superintendent

Copy to:- (1) C. Jayaraj, Chempakasseril, Maroor.P.O., Adoor, Pathanamthitta.

(2)  The Branch Manager, New India Assurance Co. Ltd., Changayil Buildings, College Road, Pathanamthitta.

(3)  The Divisional Manager, New India Assurance Co. Ltd., Kollam.

(4)   ICICI Bank Ltd., 1^st Floor, Sky Line Citadel, K.K. Road, Kanjikuzhi,

            Kottayam.

      (5) The Stock File.