IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of January 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 161/2019 (Filed on 04/10/2019)
Complainant : Mathew K.Job, aged 50 years
Karottupara House
Cheruvally, Manimala
Kanjirappally, Kottayam-686543
(By Adv.Princy Mary Thalappilly)
Vs
Opposite party : The Oriental Insurance Co.Ltd
Pottamkulam Tourist Complex
Koottickal Road, Mundakkayam
Kottayam District.
(By Adv.P.C.Chacko)
O R D E R
Sri.Manulal.V.S, President
The complainant filed this complaint u/s.12 of the Consumer Protection Act.
Case of the complainant is as follows: The complainant is the owner of the car bearing registration number KL-34 A-6544 manufactured by Ford India Limited. The said car is insured with opposite party for an insured sum of Rs.2,35,000/-. The said car got damaged due to lightening at Cheruvally on 25-05-2017 when parked in the house of the complainant. The vehicle was towed to the authorized work shop of the manufacturer named Kairali Ford, 26th mile, Kanjirappally on the very next day. The authorized workshop attended the damaged vehicle on 29-05-2017 and concluded that the vehicle was damaged due to lightning. The claim was lodged to the opposite party and the surveyor inspected the vehicle on 01-06-2017. The surveyor instructed the complainant to produce document to how that there was lightning in surrounding area. After that the complainant received a letter dated 03-10-2017 again directing to produce the evidence of lightning in that area because he has not seen any external impact on the vehicle. In the said letter surveyor instructed to obtain weather report from the India Metrological Department. The complainant tried to procure the letter but the department informed that there is no surface observatory situated at Cheruvally, Manimala for getting weather report. The complainant procured certificate from Assistant Engineer, K S E B certifying that there was heavy lightning on 25-05-2017 at Cheruvally, Eruthupady area and the electrical meter and wiring of the complainant’s house got damaged due to lightning. However the opposite party repudiated the claim alleging that the damage caused to the vehicle was not due to lightning and alleged that the same has caused due to electrical or mechanical breakdown. In fact the incident occurred on 25-05-2017 and the entire electrical fitting in the house of the complainant was also affected on 25-05-2017. His car was parked in the porch of his residence. The damages caused to the vehicle was only noticed on 26-05-2017 and then the vehicle was towed and taken to the garage of the second opposite party. Since the damage caused was due to the lightning the claim lodged to the first opposite party through the second opposite party. The complainant never stated that the incident has occurred on 29-05-2017, infact the claim was lodged when the vehicle was subjected to the inspection of works to have been carried on 29-05-2017 and work memo/ estimate was prepared by the second opposite party on the said day. It is alleged in the complaint that the surveyor either totally mistaken or intentionally to deny the legitimate claim of the complainant has prepared a false report stating the damage caused on 29-05-2017. The claim of the complainant was repudiated without any valid grounds. The first opposite party is liable to pay the entire amount spent for the repairing of the vehicle by the second opposite party. The act of the first opposite party amounts to violation of the terms and conditions which has been undertaken by them in pursuance of the insurance contract and amounts to deficiency in service. Hence this complaint is filed by the complainant praying for an order to direct the first opposite party to pay Rs.1,00,000/- for the expenses incurred for the repairs carried over the damaged vehicle with interest and to pay Rs.50,000/- as cost of this litigation.
Upon notice first opposite party appeared before the commission and filed version. Second opposite party is deleted from the party array vide order in I A.107 of 2022.
Version of the first opposite party is as follows:
The car bearing registration no. KL-34-A-6544 was insured with the first opposite party for the period from 2-1-2017 to 1-1-2018 subject to the all its conditions and limitations. The allegation that on 25-5-2017 at about 4.30 p.m. due to the occurrence of lightning at Cheruvally, the electrical meter in and the wiring of the complainant's house and the car got danged is not correct. The said vehicle was not damaged due to lightning on 25-05-2017as alleged. The said vehicle was never entrusted with the second opposite party on 26-05-2017 and the second opposite party never concluded that the damage to the said vehicle was caused due to lightning.
The complainant lodged a claim with the first opposite party on 01-06-2017 stating that his vehicle lying in his car porch got damaged due to lightning on 29-05-2017. Prior to 01-06-017 no intimation of any alleged occurrence to the first opposite party. On receipt of the claim form, the first opposite party immediately arranged a survey through a qualified and experienced insurance surveyor and loss assessor and valuer. The /surveyor reported that the damage was caused to the vehicle not due to lightning, but was caused due to electrical or mechanical breakdown only. The surveyor could not find any external impact or means for the alleged damage. Electrical or mechanical breakdown of the said vehicle are not covered under the policy and opposite party has no liability under the said policy. Moreover the complainant intimated first opposite party through claim form that the alleged incident occurred on 29-05-2017, however when this complaint was filed he changed alleged date of occurrence as 25-5-2017. The complainant could not produce any documents to prove that the damage caused to the vehicle was as alleged. The claim was repudiated on legal grounds. There was no deficiency in service or unfair trade practice on the part of the first opposite party.
Evidence part of this case consists of deposition of Pw1, Pw2 and Dw1. Nina George who is the Assistant Manager in charge of the first opposite party filed proof affidavit in lieu of chief examination. Exhibits A1 to 16 were marked from the side of the complainant and Exhibit B1 to B3 were marked from the side of the opposite party.
On evaluation of complaint version and evidence on record we would like to consider the following points.
- Whether there is any deficiency on the part of the opposite party?
- If so what are the reliefs and costs?
Point number 1 and 2.
There is no dispute on the fact that the car of the complainant bearing registration no. KL-34-A-6544 was insured with the first opposite party for the period from 02-01-2017 to 01-01-2018 subject to all its conditions and limitations. The specific case of the complainant is that the said car got damaged due to lightening at Cheruvally on 25-05-2017 when parked in the house of the complainant. The said vehicle was entrusted to the authorized work shop of the manufacturer named Kairali Ford, 26th mile, Kanjirappally and got repaired. It is proved by exhibit A15 that the complainant had spent Rs.1,00,000/- to repair the said vehicle. The claim of the complainant was rejected by the opposite party vide exhibit A 12 stating that cause of damage was not lightning and the damage was caused due to electrical or mechanical breakdown .
The first contention of the opposite party is that complaint was resisted by the opposite party that cause of damage is not lightning and the damage was caused due to electrical or mechanical breakdown. Pw2 who is the then work shop manager of the Kairali Ford, 26th mile, Kanjirappally deposed that on perusal of Exhibit A3 which is prepared on 29-05-2017 it can be seen that the PCM, cluster assembly, FRP sensor, alternator etc of the said vehicle was damaged. He further deposed that the said damage was caused due to the high voltage electrical current passed due to lightning. Dw1 who is the surveyor of the opposite party deposed that he did not see any external or internal damage which could have caused due to the lightning. However, PW2 would depose during the cross examination that the complainant told to them that the vehicle was not starting after occurrence of lightning on his house and surrounding area. He further deposed that they prepared Exhibit A3 after the inspection of vehicle and recorded therein that the vehicle was got damaged due to lightning. He further deposed that only one part of the vehicle would be damaged if the short circuit occurred.
Dw1 during the cross examination deposed that PCM, cluster assembly and front sensor may be affected by lightning. though the specific version of the Dw1 that he did not see any external damages which could have been caused due to lightning he did not depose before this commission the nature of such damages which would have caused to a vehicle when the vehicle was struck by lightning. In the absence of the evidence regarding the nature of external damage which would cause to the vehicle due to lightning we cannot accept the contention of the opposite party that the alleged damage was due to electrical or mechanical break down.
Another contention of the opposite party is that there is no occurrence of the lightning on 25-5-2017 in the house of the complainant and surrounding area. Department of India Meteorology vide Exhibit.A5 certified that they have no class I or class II surface observatory of IMD situated at Cheruvally and Manimala. It is further certified vide Exhibit.A5 that since the station is a part time observatory , there is no 24 hours weather watch and the details of the weather events are not available with IMD. It is proved by Exhibit.A6 certificate issued by the Kerala State Electricity Board and Exhibit.A7 certificate issued by Secretary of Chirakkadavu Grama Panchayath that due to the lightning occurred on 25-05-2017 the electrical meter and wiring of the complainant's house was got damaged.
The next contention of the opposite party is that complainant intimated first opposite party through claim form that the alleged incident occurred on
29-05-2017, however when this complaint was filed he changed alleged date of occurrence as 25-05-2017. PW1 deposed before the commission that vehicle was towed to their workshop on 27-05-2017 after the working time and the next day ie 28-07-2017 was Sunday and therefore the A3 repair order was prepared on 29-07-2017. Moreover exhibit A13 proves that the vehicle was towed to the workshop by car plaza on 27-05-2017. PW1 deposed before the commission that the had only affixed his signature on B1 claim form at the office of the opposite party. On the basis of the above mentioned discussion and evidence we are of the opinion that the entering of the date of mishap as 29.05.2017 in claim form is only as a clerical mistake.
As per Exhibit.A2 policy the opposite party is liable to indemnify the complainant for the loss caused due to fire, explosion, self ignition or lighting. We already found that the vehicle was got damaged due to the lightning occurred in the house of the complainant on 25-05-2017 and the complainant had paid Rs.1,00,000 for the repair works of the said vehicle. The rejection of the complainant’s claim for the reimbursement of the insurance amount by the opposite party amounts to deficiency in service and caused much mental agony and heavy loss to the complainant. On the basis of the above discussions we allow the complaint and pass the following order.
We hereby direct the opposite party to pay Rs.1,00,000/- with 9% interest from 04-10-2109 ie the date on which this complaint is filed till realization.
We hereby direct the opposite party to pay Rs.3,000/- to the complainant as cost of this litigation.
Order shall be complied within 30 days from the receipt of copy this order.
Pronounced in the Open Commission on this the 28th day of January, 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant
A1- The copy of the certificate of registration
A2- The copy of the Motor Insurance Certificate cum policy dated 28.12.2016
A3- Work memo dated 29/05/2017
A4- Letter from Anshath Hussain K.P, Insurance Surveyor, dated 03.10.2017.
A5- Copy of letter from India Meteorological Department.
A6- Copy of certificate issued by KSEB Ltd
A7- Copy of the certificate issued by Chirakkadavu Grama Panchayath dated 11.12.2017
A8- Letter to the Manager, Oriental Insurance, Mundakkayam Branch dated 25.10.2017.
A9- Letter to the Manager, Oriental Insurance Company, Mundakkayam Branch dated 25.10.2017.
A10- Letter to the Manager, Oriental Insurance Co.Ltd, Mundakkayam branch
A11- Copy of the letter dated 25.10.2017
A12- Copy of letter dated 20.05.2019 issued by the Oriental Insurance Company
A13- Bill dated 27.05.2017 from Car Plazaa, Recovery Van service, Kanjirappally
A14- Copy of Motor Final Survey Report dated 30.12.2017
A15- Bill dated 18.07.2017 issued from Kairali Ford, 26th Mile, Palampra P.O.
A16- Copy of repair order from Kairali Ford.
Sworn statement from the side of complainant
PW1- Mathew K Job, S/o K.J.Job, Karottupara (H), Cheruvally P.O.
PW2- Lijo Joseph, S/o N.V.Joseph, The Manager, Kairali Ford , Kerala Cars Pvt.Ltd. 26th Mile , Parathodu P.O
Exhibits marked from the side of opposite party
B1- Motor Claim form issued by the oriental insurance company Ltd. dated 01.06.2017
B2- Copy of the Motor Insurance Certificate Cum policy dated 28.12.2016
B3- Motor Final Survey Report dated 30.12.2017.
Sworn statement of from the side of opposite party
DW1- Anshath Hussain K.P, Kanniparambil House, Kanjirappally
By order
Sd/-
Assistant Registrar
