DOF.16.3.2009

DOO.18. 2.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy              : Member

Dated this, the 18^th    day of  February   2011

CC.74/2009

P.P.Muhammed,

Keethadath House,

Irikkur P.O.                                            Complainant

(Rep. by Adv.V.A.Satheesh )

Branch Manager,

Oriental Insurance Company Ltd.

Kasaragod Branch office, IInd  floor,

City Point Building,

M.G.Road, Kasaragod.

(Rep. by Adv.P.P.Venu)                             Opposite parties                                                         

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay an amount of  `1,07,854 with compensation and  cost.

          The facts of the case of the complainant in brief are as follows:- The  vehicle No.KL.14E.7444 Mahindra Scorpio Car originally belonged to one Mr.Viswambaran.A.K purchased by the complainant. On 10.1.07 the insurance policy was transferred in the name of complainant. At the time of transferring the policy the damages seen on the vehicle noted was recorded by the Manager at the time of inspection. The only damage seen on the vehicle was that the left hand side mirror was broken due to the falling of a damaged branch of a tree which the vehicle was parked at Irikkur on 9.1.07. The complainant also put his name and signature in the inspection report prepared by the Branch Manger. It was agreed that the said damage is to be excluded insurance coverage; there was no other damage to the above vehicle on 10.1.07. Complainant while going from Irikkur to Kannur (via) Mayyil on 25.1.07 when the vehicle was reached at Mayyil it went out of control and run over a road divider causing damages. The complainant informed the opposite party regarding the accident on the same day. The vehicle was taken to the authorized service centre of Mahindra Company at Kozhikode on 25.1.07 night itself and the vehicle reached the said service centre on 26.1.07 early morning. The vehicle was released only on 13.2.07. The opposite party came to the service centre at Kozhikode on 29.1.07. At that time complainant had given filled up motor claim to the opposite party.  The opposite party inspected the vehicle on  29.1.07 from the service centre. The claim of the complainant was repudiated stating untrue facts. It was repudiated on the ground that the accident was before the date of transfer the policy. This was against the real facts. The opposite party has the liability to indemnify the loss suffered by he complainant. Hence this complaint.

          Pursuant to the notice opposite party entered appearance and filed version denying the main allegation of the complainant. The case of the opposite party in brief is as follows: the complainant is not entitled  for the claim on the ground that the complainant’s claim for reimbursement for repair of damages was rightly repudiated for just and  reasonable cause and according to the terms and conditions of the policy. It is a fact that the insurance policy  stood in the name of the original owner of the vehicle M.A.K.Viswambaran was got  transferred in the name of the complainant on  10.1.07. As per this policy the pre-existing damage to the vehicle  as on this date  as noted in the  inspection report furnished by the agent of the opposite party attached  with Taliparamba branch by name M.Santhosh were specifically excluded from  coverage under own damage. The complainant approached the opposite party at its Kasaragod branch on 8.1.07 requesting to transfer the policy in his name. Since the complainant is at Irikkur the Manager contacted the Taliparamba branch Manger to arrange inspection of the vehicle. Accordingly the agent at Irikkur Mr.M.Santhosh contacted the complainant; complainant told him that the vehicle was then stationed in the garage at Kozhikode to attend some minor work. As such the agent Mr.Sanothosh went to the garage at Kozhikode M/s. T.V.Sundaram Iyangar & Sons Ltd. And inspected the vehicle and noted the damages then existing on the vehicle.  His report was submitted to the Development officer at Taliparamba on 10.1.07. Development officer has made a report of his own as to the damages and submitted to Kasaragod office. On the application of the complainant the policy was got transferred in to his name by specifically mentioning in the policy that the damages noted in the inspection report are excluded from coverage.  The damages noted by him were:-

a) Crack on the wind screen glass

b) Pushed in front Bumper

c) Front portion of the chassis and connected parts were dent.

According to the Agent these damages were caused to the vehicle on 6.1.07 when the vehicle accidentally ran over a road divider at Mayyyil on 6.1.07 as reported by the complainant. The allegation in the complaint that the complainant singed this report is absolutely false. On 29.1.07 the complainant had reported to the Calicut Divisional Office No.2 that the vehicle met with an accident on 25.1.07 and he had obtained a claim form and he had submitted the claim form to the Calicut Office on the same day. They deputed a surveyor and the surveyor submitted his report and the claim came up before the Kasaragod Branch office. Since the Kasaragod branch office had knowledge about the damages on the vehicle existing as on 10.1.07. The company conducted an investigation in the matter to find out the genuiness of the claim.  On investigation it was found that the damages repaired from the above garage which according to the insured were damages caused on 25.1.07, were actually damages caused on 6.1.07 as noted by the Agent and the complainant is trying for an unlawful gain by claiming compensation for the damages caused prior to the issuance of policy in his name. By investigation opposite party collected the materials and found that the damages existing on the vehicle as on the date of transfer of insurance of the vehicle on 25.1.07 which were excluded from coverage. There was no accident on 25.1.07 as alleged by the complainant. The vehicle was garaged on that day in M/s.T.V.Sundaram Iyengar & Sons Ltd. at Calicut was to carry out repairs of damages caused on 6.1.07 from Mayyil. Since this damages repaired and  claimed for reimbursement were not  damages caused after the issuance of policy the opposite party is not  liable to indemnify the insured  under the policy. From 8.1.08 onwards the vehicle was stationed in the above garage till 13.2.07 the date on which it was delivered to the insured. The vehicle was garaged on 8.1.07 as per the job card No.J.80659. On 6.1.07 the vehicle was driven by Mr.V.S.Manojkumar while met with accident at Mayyyil. He has submitted a statement in writing stating the incident in brief. The alleged accident on 25.1.08 was reported to the opposite party on 29.1.08 that too at their Kozhikode office. A complainant is bound to intimate the accident immediately after occurrence of accident. Absence of reporting the alleged accident on 25.1.07 till 29.1.07 would probably the fraud. The complainant’s story  running the vehicle  on 25.1.07 from Chalode to Kannur via. Mayyyil is an improbable one. Shortest route from Chalode to Kannur is Via. Eachur with a distance of 16 km, where as the distance from Chalode to Kannur Via. Mayyil  is 34 kms. The story of accident on25.1.07 is false. Since the damages caused to the vehicle prior to the issuance of policy in favour of complainant the opposite party has no liability to indemnify the insured since there was no contractual liability prior to the date of issue. The repudiation of claim is in accordance with the terms and conditions of the policy. Hence there is no deficiency of service on the part of opposite party. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.Whether the damage repaired and claimed for  reimbursement

  caused  by the accident before or after  the issuance of policy in

   the name of the complainant?

2. Whether there is any deficiency on the part of opposite party?

3. Whether the complainant is entitled for the relief as prayed in

     the complaint?

         4. Relief and cost.

          The evidence consists of oral evidence of PW1, DWs 1 to 5 Exts. A1 to A9, B1 to B10

Issue Nos.1 to 4

          The complainant purchased the motor car KL.14/E-7444 Mahindra Scorpio Car from Mr.Viswambaran.A.K and got it transferred in his name w.e.f 2.12.2006. On 10.1.07 he applied for transfer of the insurance policy and got it transferred in his name w.e.f 10.1.07.

The case of the complainant is that on 25.1.07 while going from Irikkur to Kannur via. Mayyil in the above vehicle, the vehicle went out of control and run over a road divider causing damage.  The claim lodged before the opposite party  was repudiated stating untrue facts.

Opposite party on the other hand contended that there was no such accident in Mayyyil on 25.1.07. The alleged accident was taken place in Mayyil on 6.1.07, prior to the transfer of insurance policy in the name of the complainant. Since damage repaired and claimed for reimbursement were not damges caused after issuance of insurance policy there is no contractual obligation to indemnify the insured under the policy.

Herein the prime question to be decided is whether there was any accident at Mayyyil on 25.1.07 or not.

Complainant filed chief affidavit in tune with the pleadings. He has pleaded that the vehicle went out of control and run over a road divider causing damages to chassis frame, to both lower arms, to both upper arms, to both knuckles, to power steering box and to wind shield glass. He has no claim with respect to the damages caused to side mirror left hand side since it was a pre-existing damage.  Complainant has the case that the vehicle was taken to authorized service centre early next morning, 26.1.07. Complainant produced documents Exts.A1 to A10. None of these documents speak of the place and date of accident so as to prove that the alleged accident had been taken place at Mayyil on 25.1.07 that caused damage to the above vehicle. Ext.A5 to A9 are receipts, but they are not useful to determine the date and place of accident. The complainant    adduced evidence by way of chief affidavit that the branch Manger inspected the vehicle at the time of policy transfer and made a report of the minor damage  that is the left hand side mirror was broken due to the falling of branch of a tree at Irikkur on 9.1.07. Complainant also claimed that he has put his name and signature in the said inspection report, but it was denied by the opposite party.  According to opposite party the agent of Taliparamba Branch, Mr.Santhosh was instructed to have an inspection of the vehicle.  When he contacted the complainant for that purpose the complainant told that the vehicle was then stationed in the garage at Kozhikode, he went there and noted the damages then existing on the vehicle. He has submitted his report. The version detailed the damages noted by him are

a) Crack on the wind screen glass

b) Pushed in front Bumper

c) Front portion of the chassis and connected parts were dent.

It is contended that these damages were caused on 6.1.07 when the vehicle accidentally run over a road divider at Mayyil as reported by complainant. The allegation that the complainant signed and put his name in the inspection report is said to be false. What is deposed by complainant is that the vehicle was presented before the Taliparamba Branch on 10.1.08. He did not remember whether this accident has not been reported to police. He did not also remember whether  or not the incident was informed to insurance company in writing. According to him he was informed over the phone.PW1 deposed further that no written permission has been given by the insurance company to take the vehicle to Kozhikode. DW4 by way of affidavit evidence stated that dn¸-b-dn\v B[m-c-amb DS-hp-IÄ kT-`-hn-¨Xv hml-\T 6þ1-þ2007\v kÔ-y¡v  Dt±-iT 7.30\v a¿n SuWn h¨v tdmUv Unssh-U-dn Ib-dn-b-Xn-s\-¯p-SÀ¶v-D-­mb A]-I-S-¯n-emWv F¶p-amWv At\-z-j-W-¯n shfn-hm-b-Xv. At\-z-j-W-¯nsâ `mK-ambn Rm³ kT-`h ka-bT hml-\-¯nsâ ss{Uh-dm-bn-cp¶ at\m-PvIp-amÀ,-sIm-bnen Bip-]{Xn A[n-Ir-XÀ,-Sn.-hn.-Fkv Bâv k¬kv enan-ä-UvtIm-gn-¡mSv F¶ Øm]-\-¯n-ep-T-a-äpT BWv At\-z-j-WT \S-¯n-b-Xv. He has also stated that he has gathered abstract of register of treatment of Mamu Hajee and  Manoj following the accident of 6.1.07. He continued to state that TVS & Sons Ltd.  where from the vehicle was repaired has given him in writing the information including  with respect to the period during which the vehicle was in garage kept for repair. Hence he was convinced that the vehicle  was kept in garage from 8.1.07 to 13.2.07. No question was put to DW4 during his cross examination with respect to the delay of keeping the vehicle in the garage. DW4 deposed in cross examination that “ 8.1.07 \v  dn¸-b-dn\p sIm­p-h-¶-Xm-bpT

13-þ2-þ07\v dn¸bdn\p tijT  sUen-hdn \ÂIn-b-Xm-bpT Ahn-Sps¯ tcJ-{]-Im-c-T-a-\-Ên-em-¡n.  Ext.B8 is the report of Sri.Ramakrishnan the  Investigator, who conduct the investigation, he has confirmed in his report that the accident has occurred on 6.1.07 itself and not of 25.1.07. Ext.B8 further stated that as per the statement of T.V.S & Sons Ltd. shows that the date of job card is 8.1.07 and date of delivery is on 13.2.07.

DW2 Mohanachandran stated that Ext.B6 dt.10.1.07 is the letter given by him. The letter shows that he had instructed Sri.Santhosh, his agent, DW3 to inspect the vehicle. He has also stated that Ext.B5 is the letter given by the driver of the vehicle and Ext.B7 is the inspection report submitted by Sri.Santhosh. Ext.B4 goes to show that the letter is issued by one Mr.Mohamed.P.P. Ext.B7 is the inspection report of the vehicle KL/14/4/7444 by Santhosh.M., DW3 Santhosh stated  in his report that the relative of the insured Sri.Mamu Hajee stated to him that the vehicle run over the road divider at  Mayyil Town on 6^th January 2007 evening while going  from  Irikkur to Mayyil  with driver Manojkumar and another friend. It is also reported that the relatives stated him that the insured is not intending to make a claim for damages. DW4 in his affidavit evidence stated that “kT-`-h-s¯-¡p-dn¨v hni-Z-ambn At\-z-jn-¨-Xn ]n.-]n.-ap-l-½-Zv-F-¶-hcv Ah-Im-i-s¸-«-Xp-t]mse 25-þ1-þ2007 \v ta hml-\T bmsXmcp A]-I-S-¯n-ep-T-s]-«n-«n-sÃ-¶pT dn¸-b-dn\v B[m-c-amb DS-hp-IÄ kT-`-hn-¨Xv hml-\T 6þ1-þ2007\v kÔ-y¡v  Dt±-iT 7.30\v a¿n SuWn h¨v tdmUv Unssh-U-dn Ib-dn-b-Xn-s\-¯p-SÀ¶v-D-­mb A]-I-S-¯n-emWv F¶p-amWv At\-z-j-W-¯n shfn-hm-b-Xv. At\-z-j-W-¯nsâ `mK-ambn Rm³ kT-`h ka-bT hml-\-¯nsâ ss{Uh-dm-bn-cp¶ at\m-PvIp-amÀ,-sIm-bnen Bip-]{Xn A[n-Ir-XÀ,-Sn.-hn.-Fkv Bâv k¬kv enan-ä-UvtIm-gn-¡mSv F¶ Øm]-\-¯n-ep-T-a-äpT BWv At\-z-j-WT \S-¯n-b-Xv”.

In cross examination he has stated that “9.1.07 \mWv  tImgn-t¡m-Svt]mbn Ahn-sS-sh¨v hml-\-T-]-cn-tim-[n-¨Xv. He has also stated that he himself prepared Ext.B7 report. Ext.B7 letter given by the driver also states that the accident was taken place on 6.1.07. He has also stated that Mamu Hajee and himself has taken treatment  from Koyili Hospital.Ext.A9 list shows the  names of Mamu Hajee and Manoj, which proves that they have taken treatment from Koyili Hospital.

There are   enough documents to prove that the alleged accident was taken place on 6.1.07 where as the documents  or the oral evidence of complainant  do not establish that the  accident was taken place on 25.1.07 . Complainant produced Exts.A1 to A9.Exts.A1 and A2, insurance certificate, A3 is the photocopy of the bill, Ext.A4 is the claim form. Ext.A6 to A9 are the receipts. There is no single document to show that accident was taken place on 25.1.07.

The complainant has not taken care of the importance of proving the date of incident, the burden of the proof with respect to the date of incident is of the complainant. But complainant miserably failed to prove it. The entire analysis of the evidence does not show any attempt on the part of the complainant to convince the Forum that the accident was taken place on 25.1.07. Complainant’s case is that the accident was taken place on 25.1.07 at Mayyil. At least some local people could have been examined to prove the accident. More over because of the reason that there was no claim with respect to accident and damage on 6.1.07 that cannot be utilized to raise a ground for this claim.  If the incident has not been proved with cogent and convincing evidence that it was taken place on 25.1.07 the repudiation of claim on the ground since damage repaired and claimed for reimbursement were not  damage caused after issuance of insurance policy, there is no contractual obligation to indemnify the insured under the policy, cannot be found unjustifiable.

Evaluating the   available evidence taking into accounts the facts and circumstances we are of the view that the complainant miserably failed to prove that the alleged accident has been taken place on 25.1.07. Hence the issue Nos. 1 to 4 is found against complainant.

          In the result, the complaint is dismissed no order as to cost.

                             Sd/-                     Sd/-                   Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1 & A2.Copy of the certificate cum policy schedule issued by OP

A3.Copty of the service bill issued by Mythree Crane service

A4.Copy f the motor claim form submitted to the OP

A5 to A7. Copy of the receipt issued by T.V.Sundaram Iyengr & Sons.

A8. Copy of the receipts issued by OPdt.101.07.

A9.Copy of the letter issued by OP

Exhibits for the opposite party

B1.Invoice abstract issued by T.V.Sundaram Iyengr & Sons Ltd.

B2.Accident intimation submitted by complainant

B3.Claim form submitted by complainant

B4.Letter submitted by complainant dt.5.2.07

B5.Statement submitted by Manojkumar.V.S.

B6.Inspectin report dt.10.1.07 submitted by P.Mohanachandrn

B7.Inspectin report submitted by M.Santhosh KL.14.E.7444

B8.Investigatin report prepared by A.Ramakrishnan dt.6.5.07

B9.Copy of the abstract of the OP register maintained by Koyili Hospital

B10. Copy of the Repudiation letter sent to complainant

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1.Manoj Kumar

DW2.P.Mohanachandran

DW3.M.Santhosh

DW4.A.Ramakrishnan

DW5.S.Sandeep                                        

/forwarded by order/

             Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.