IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA
Dated this the 1st day of July, 2014
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member-I)
Smt. Sheela Jacob (Member-II)
C.C. No.133/2013 (Filed on 30.10.2013)
Between:
Vijayakumari Amma, aged 55
Years, Kulangara Veedu,
Kurampala Muri, Kurampala Village,
Adoor Taluk, Pathanamthitta Dist. … Complainant.
And:
- The New India Assurance Co. Ltd.,
Represented by its Branch-
Manager, Pathanamthitta.
- The Divisional Manager,
The New India Assurance Co. Ltd.,
Kottayam. … Opposite parties.
ORDER
Smt. Sheela Jacob (Member-II):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that she is the registered owner of a 2011 model Ford Figo car bearing registration No. KL-26B/8797. The said vehicle is insured with the opposite parties from 20.08.2012 to 19.08.2013. The policy No. is 760101311201004413. While so, the said vehicle met with an accident on 26.11.2012 and the vehicle sustained extensive damages. The vehicle dashed on the compound wall of Mr. Daniel Kutty, Thyparambil. At the time of accident, complainant was driving the said vehicle. The accident was reported at Mavelikkara Police Station. The accident was reported to the opposite parties also. The car was taken to the authorized workshop-Kairali Ford, Kottayam. The surveyor of the insurer conducted the survey of the said vehicle and the approximate cost of repair for the vehicle is calculated. The repairs of the vehicle was done by them and they issued a bill for Rs. 3,55,522/- and on negotiation, the bill was reduced to Rs. 3,39,274/- which was paid by the complainant. Thus the complainant incurred an expense of Rs. 3,39,274/-. On 30.11.2012, claim form was submitted by the complainant with all the relevant documents including the bills, estimate and FIR from the police station to the opposite party. But the claim was repudiated on 08.03.2013 stating that as per the report of the investigator & surveyor, the complainant was not the driver of the vehicle at the time of accident. The report is false and the above said act of repudiation of the claim by the opposite parties is a clear deficiency in service which caused mental agony and financial loss to the complainant and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of the complainant’s claim for Rs. 3,39,274/- with 12% interest from the opposite parties along with compensation of Rs. 1 lakh for mental agony, financial loss etc.
3. Opposite parties filed their version with the following main contentions: Opposite parties admitted the validity of the policy in question, the accident and the complainant’s claim form. According to them, on getting the claim form from the complainant, they deputed 2 persons-Insurance Investigator and Insurance Surveyor & Loss Assessor. The insurance surveyor deputed to assess the loss who inspected the vehicle and prepared and submitted Motor Spot Survey Report dated 30.11.2012 and the insurance investigator submitted his investigation report dated 14.02.2013 stating that at the time of the accident, 2 male persons were in the vehicle and the vehicle heavily hit on a compound wall and sustained damages. The complainant stated that, she and her brother was in the car at the time of accident and the vehicle was driven by the complainant. If that be so, definitely there would have been injuries to them. At the same time, the letter dated 25.03.2013 sent by the complainant, it can be seen that her son and his friend had sustained injuries due to the skidding of their bike on the same day, while they are coming to the accident spot knowing about the accident in question. In fact, the circumstances shows that these 2 persons are driving the vehicle at the time of the accident. So it can be inferred that the insured had suppressed the material facts regarding the person who drove the vehicle at the time of accident. Surveyor also submitted final survey report dated 13.01.2013 assessing Rs.1,81,226.42 as the net damages. But opposite party is not liable to pay the said amount for the reasons stated above. So the claim of the complainant ought to have been rejected for the violation of the policy condition. So the complainant is not entitled to claim any amount and she is not entitled to get any compensation as there is no deficiency in service from the part of the opposite party. With the above contentions opposite parties prays for the dismissal of the complaint with their cost.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral depositions of PW1, DW1 to DW3 and Exts.A1 to A6 and B1 to B5. After closure of evidence, both sides were heard.
6. The Point:- The complainant’s case is that she is the owner of a Ford Figo Car bearing Reg.No.KL-26B/8797. The said vehicle is insured with the opposite party vide policy No.760101311201004413 for the period from 20.08.2012 to 19.08.2013. While so on 26.11.2012 the said vehicle met with an accident while she was driving and the car sustained heavy damages. Thereafter the vehicle was taken to Kairali Ford, Kottayam, which is an authorized workshop of the Ford Company after complying all legal formalities. The vehicle was repaired by them and issued the final bill for Rs.3,39,270/- and the complainant paid the amount. Thereafter the complainant claimed the said amount from the opposite parties as the policy is valid. But opposite parties repudiated the claim by saying that Vijayakumariamma was not the driver of the vehicle at the time of accident and she had suppressed the said material true facts. But the said stand of the opposite parties is false. So the non-payment of the amount by the opposite party is a clear deficiency in service from their part and hence opposite party is liable to the complainant for the same.
7. In order to prove the case of the complaint, complainant filed proof affidavit and the complainant was examined as PW1 and the documents produced are marked as Ext.A1 to A7. Ext.A1 is the photocopy of the policy certificate No.76010131120100004413 for the period from 20.08.2012 to 19.08.2013 in the name of the complainant. Ext.A2 is the approximate estimate cost of for repair calculated as Rs.4,74,900/- by the authorized workshop. Ext.A3 is the copy of the G.D entry in respect of the accident. Ext.A4 is the final bill for Rs.3,55,222/- issued by Kairaly Ford, Kottayam. Ext.A5 and A5(a) are the receipts for Rs.2,39,270/- dated 27.05.2013 and Rs.1,00,000/- dated 06.05.2013 issued from the Kerala Cars Pvt. Ltd. Ext.A6 is the repudiation letter dated 08.03.2013 of the insurance company. Ext.A7 is the copy of the driving licence of the complainant.
8. On the other hand, the contention of the opposite party is that after the accident complainant lodged a motor claim before the opposite party and on receipt of the claim, opposite party deputed two persons, Insurance Investigator and Insurance Surveryor and Loss assessor. They inspected the vehicle and filed their reports. In that report, it is stated that at the time of the accident the vehicle was driven by the complainant’s son who had no driving licence. So the claim of the complainant ought to have been rejected for the violation of policy conditions. So the complainant is not entitled to claim any amount. So there is no deficiency in service from the part of the opposite party.
9. In order to prove the case of the opposite party, 2 surveyors and one investigator were examined as DW1 to DW3. The documents produced by them are marked as Ext.B1 to B5. Ext.B1 is the report prepared by Girish Kumar. T.N who is the insurance investigator. Ext.B2 is the final survey report dated 13.01.2013 prepared by T.S.Biju, Insurance Surveyor & Loss Assessor. Ext.B3 is the policy certificate. Ext.B3(a) is the Clause No.8 of the policy condition. Ext.B4 series are 21 photos of the vehicle after the accident taken by the surveyor. Ext.B5 is the survey report dated 30.11.2012 prepared by Chandrasenan Nair.
10. On the basis of the available materials on record, it is found that the parties have no dispute regarding the validity of the policy, the accident, damages of the vehicle and its repairs. The only dispute of the opposite party is that at the time of accident the vehicle was driven by the complainant’s son who had no driving licence and the complainant purposely suppressed this fact and claimed that she was driving the vehicle. Suppression of fact and driving by an unlicenced driver are clear violation of the policy condition which itself is a bar in allowing the complainant’s claim. So they argued that their repudiation is legal and hence this complaint is not allowable.
11. Opposite party repudiated the claim only for the above reasons. But in cross examination of PW1 she had stated that she and her brother were in the vehicle and she was driving the car at the time of accident. Ext.A3 G.D entry and Exts.B2 and B5 the survey reports also shows that the complainant Vijayakumariamma was the driver of the vehicle at the time of accident. But opposite parties specific contention is that the complainant was not the driver at the time of accident. In order to substantiate the said contention, they are relying on the observations of their surveyor and investigator. But they have not adduced any cogent and independent evidence for proving their contention. Observation made by the persons attached to the opposite party without the support of any independent evidence is not acceptable. Therefore the rejection of the claim based on the said observation cannot be justified and it amounts to deficiency in service. Therefore, this complaint is allowable.
12. Then comes the question what is the actual amount entitled to the complainant in connection with the repairs of the vehicle. According to the complainant, she had paid an amount of Rs.3,39,270/- for the repairs vide Ext.A4. But opposite parties assessed the loss for Rs.1,81,266-42 vide Ext.B2. But DW2 who prepared Ext.B2 deposed before this Forum that damages of the engine was not taken into account during the preparation of Ext.B2. So it is clear that Ext.B2 is not a correct assessment. At the same the amount shown in Ext.A4 is the actual expenses for the repairs. But as per policy condition, depreciation based on the age of the vehicle is allowable. So the complainant is not entitled to get the actual expenses as the amount shown in Ext.A4 is including depreciation. So the opposite party is entitled to deduct allowable depreciation as per the terms and conditions of the policy.
13. In the result, this complaint is allowed as follows: Opposite party is directed to reassess the repairing expenses shown in Ext. A4 by deducting allowable depreciation as per Ext.B3 policy conditions and pay the said reassessed amount with 7% interest from the date of filing of this complaint to the complainant within 30 days from the date of receipt of this order along with compensation of Rs.10,000/- (Rupees Ten Thousand only) and cost of Rs.2,500/- (Rupees Two Thousand Five hundred only), failing which the complainant is allowed to realize a total amount of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand only) and the compensation and cost ordered herein above with 9% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 1st day of July, 2014.
(Sd/-)
Sheela Jacob,
(Member-II)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member I) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Vijayakumari Amma.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the policy certificate
No.76010131120100004413 for the period from 20.08.2012 to
19.08.2013.
A2 : Approximate estimate cost of for repair calculated as
Rs.4,74,900/- issued by Kairali Ford. Kottayam.
A3 : Copy of the G.D entry in respect of the accident.
A4 : Final bill for Rs.3,55,222/- issued by Kairaly Ford, Kottayam.
A5 & A5(a) : Receipts for Rs.2,39,270/- dated 27.05.2013 and
Rs.1,00,000/- dated 06.05.2013 issued from the Kerala Cars
Pvt. Ltd.
A6 : Repudiation letter dated 08.03.2013 issued by the opposite
parties to the complainant.
A7 : Copy of the driving licence of the complainant.
Witness examined on the side of the opposite parties:
DW1 : T.N. Girishkumar.
DW2 : T.S. Biju.
DW3 : Chandrasenan Nair.
Exhibits marked on the side of the opposite parties:
B1 : Report prepared by Girish Kumar.T.N, insurance investigator
of the opposite parties.
B2 : Motor (final) survey report dated 13.01.2013 prepared by
T.S.Biju, Insurance Surveyor & Loss Assessor.
B3 : Policy certificate issued by the opposite parties to the
complainant.
B3(a): Clause No.8 of the policy condition.
B4 : 21 photos of the vehicle after the accident taken by the
surveyor.
B5 : survey reported dated 30.11.2012 prepared by
Chandrasenan Nair, Insurance Surveyor & Loss Assessor.
(By Order)
Copy to:- (1) Vijayakumari Amma, Kulangara Veedu,
Kurampala Muri, Kurampala Village,
Adoor Taluk, Pathanamthitta Dist.
(2) The Branch Manager, New India Assurance Co. Ltd.,
Pathanamthitta.
(3) The Divisional Manager, New India Assurance Co. Ltd.,
Kottayam.
(4) The Stock File.
