ORDER

By Smt. C. S. Sulekha Beevi, President,

This complaint is filed against opposite parties on repudiation of his claim for loss sustained in an accident due to damage caused to his vehicle which was insured with first opposite party.

Facts:

1. Complainant who is the registered owner of the goods carriage KL10/X 8964 had insured the vehicle under a package policy with first opposite party. During the currency of the policy on 22-2-2007 the vehicle met with an accident at Valancherry within the local limits of this Forum. The accident was intimated to second opposite party and claim form along with necessary documents was also submitted by the complainant. Second opposite party deputed a spot surveyor and thereafter another surveyor for conduct of final survey. Though complainant had submitted necessary verified vehicular documents to first opposite party through second opposite party, the claim of the complainant was denied stating the reason that complainant had not furnished necessary verified vehicular documents. Complainant spend huge amount for repair of the vehicle. Due to the delay in settling the claim he was put in a bad financial condition. He could not repay the instalments of the vehicle loan availed by him. Due to default in repayments, the financier seized the vehicle, and the complainant lost his means of livelihood. That all such mishaps occurred due to act of opposite parties in not settling the claim. If opposite parties had paid the claim amount within time, the complainant would not have lost his vehicle. Complainant alleges deficiency in service. Hence this complaint.

2. The Divisional Manager of United India Insurance Co. Ltd. has filed version on behalf of first and second opposite parties. The issuance of the package policy to the vehicle is admitted. It is stated that as per letter dated, 10-7-2007 the complainant was asked to produce originals of Registration certificate, Fitness certificate, Route permit, Tax book, the original claim form, driving license, bills for repair, stamp receipts for payment to garage, F.I.R. and final report. But the complainant did not produce these documents inspite of repeated letters. So opposite parties could not process the claim and chose to close the claim due to non-co-operation of the complainant. The claim was closed and this was intimated to the complainant by letter dated, 21-4-2008. That complainant has lost the vehicle due to non-payment of instalments. That opposite party is not responsible in any way for seizing the vehicle by the financier. In any case the complainant is entitled tot he assessment made by the surveyor only. That there is no deficiency in service.

3. Evidence consists of the proof affidavit filed by the complainant and Exts.A1 to A8 marked for him. Counter affidavit filed by the Divisional Manager on behalf of both opposite parties. DW1 is the witness examined on the side of opposite parties. Exts.B1 to B7 marked for opposite parties.

4. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so reliefs and costs.

5. Point (i):-

The undisputed facts are (i) the issuance of package policy for the vehicle KL10 X/8964 (ii) the validity of the policy during the relevant time of accident (iii) the vehicle was involved in an accident on 22-2-2007 by which it sustained damage.

6. The claim has been denied by opposite parties raising the contention that complainant failed to produce necessary original documents for verification making it unable to process the claim. This contention is refuted by complainant who affirms that all the original documents were produced by him before second opposite party along with photo copies. Second opposite party verified the same and send the verified photocopies to the Mumbai office. That due tot he delay in paying the claim,t he complainant was put in bad financial position after shouldering the expenses for repair of the vehicle. That he could not repay the instalments of the vehicle loan and the financier seized the vehicle. All the vehicle documents were lost along with the vehicle and that he is not in position to produce the originals again. It is also contended that the driver Zainudeen who drove the vehicle at the relevant time is not working for him any more and so the complainant is not in a position to produce the original of his driving license again.

7. To analyse which of these rival claims are true we have perused the evidence, and materials placed before us carefully.

8. On the outset it has to be stated that Ext.A3 package policy was issued to complainant from the Mumbai office of the Insurance Company who is the first opposite party herein. After the accident, Ext.A4 claim form was submitted by complainant before the Tirur Branch of the Insurance Company who is second opposite party herein. Surveyors were deputed by second opposite party. It is admitted that the claim form was forwarded to Mumbai office. According to the complainant on 10-5-2007 he received a letter from the Mumbai office directing him to produce before second opposite party originals of the documents listed in the letter, along with xerox for verification and return. A copy of this letter was send by first opposite party to second opposite party also. The relevant portion of this letter produced as Ext.B1 on the side of opposite party is as under:

“We refer to the claim papers received by us through our Tirur B.O. And would request you to let us have the following documents at an early date:

1. Claim form duly signed & completed )Pls. Produce

2. Estimate of repairs )Original along with

3. Driving License (of the driver at the time of accident) )Xerox to our

4. RC. Book ) )Tirur B.O. office

5. Fitness Certificate. ) )for verification

6. Route Permit. ) verified xerox copies )& return.

7. Load Challan. ) )

8. Tax book ) )

9. Bills of repairs and stamped receipt for the payment made to garage.

10. Cash Memos for the parts sanctioned.

11. Police F.I.R./Panchnama/Final Investigation Report.”

 

9. It is the case of the complainant that on receiving this letter as per the direction he had produced the originals along with xerox before second opposite party, who had verified the photocopies and forwarded them to Mumbai office. To substantiate this contention complainant relied on Ext.A5 letter dated, 10-7-2008. It is submitted by the complainant that even after submitting all necessary documents he received a letter dated, 21-4-2008 from Mumbai office stating that the claim is closed for the reason of non-production of verified documents. On receiving repudiation letter the complainant approached second opposite party who issued Ext.A5 letter to Mumbai office confirming that all necessary documents have been submitted. The relevant portion of Ext.A5 is as under:

“Regarding the above, the insured has approached us with your letter, dated, 21-4-2008 stating the 'Closure of the file'.

Following are the documents which we have already sent to you in respect of this Claim.

1. Claim Form, Estimate, FIR, Photostat Copies of RC, DL, Permit & Policy Copy, Spot Survey Report of Mr. Noushad Babu and Final Survey Report of Mr.P. Vasu along with Photographs on 23-8-2007.

2. Final Bills on 30-10-2007

3. Mot 14a, Photostat copies of vehicular documents on 25-2-2008.

The insured reported that, he is in a financial problem due to the occurrence of this Accident. As the loss is of a Major one he has spent a lumpsum amount for getting the Vehicle repaired and requested us to help him in this matter.

Please do the needful to the insured to help him to overcome the crisis.

We once again enclose the following documents for your perusal.

1. Photographs (Spot 4 nos.)

2. Enclosing letters and copy of Courier Receipt

3. Photostat Copy of Claim Form, RC, DL, Fitness, Permit, GCR.

4. A Copy of the Spot Survey Report and Final Survey Report.

Kindly acknowledge.”

10. It was argued on behalf of opposite parties that complainant had never produced the originals before second opposite party and that second opposite party had forwarded mere photocopies without verification and therefore the claim was closed for non production of original documents. This argument does not hold water. A copy of the letter dated, 21-4-2008 by which complainant was informed that his claim is closed for reason of non production of documents was send to second opposite party also. This letter is produced and marked as Ext.B4. In Ext.B4 it is stated as -- “Inspite of letters/reminders send to you, you have not complied with required papers/documents. We are closing your claim file, on account of the following reason: no0n-submission of necessary verified vehicular documents.”

11. After receiving Ext.B4, when complainant approached second opposite party, the letter Ext.A5 was issued by second opposite party to Mumbai office requesting them to do the needful in settling the claim stating that necessary documents have already been forwarded. If the complainant had not submitted original documents before second opposite party for verification, then on receiving Ext.B4 second opposite party would have requested the complainant to produce the original documents. Second opposite party would not have issued a letter like Ext.A5requesting first opposite party to consider the claim petition. Further in Ext.B7 which is the final survey report, the surveyor has stated, Registration Certificate particulars of the vehicle, driving license particulars, and permit particulars. It is stated by the surveyor that the original of the driving license was not produced for verification and that this may be verified. This statement of the surveyor can only mean that the complainant had produced original of all documents except the driving license before the surveyor. So the contention of opposite parties that complainant had never produced originals of any vehicular documents is not trustworthy.

12. DW1 is a witness examined on behalf of opposite party. Actually DW1 is the second opposite party herein. On 16-11-2009 the complainant filed I.A.505/09 seeking permission to examine second opposite party. The petition was posted for counter of opposite parties to 18-12-2009. But opposite parties did not file any counter. This Forum was under the impression that second opposite party who has office within this district has filed counter affidavit in the case on behalf of both opposite parties. On such mistaken impression the petition was allowed directing second opposite party to be present for cross examination. On 14-01-2010 second opposite party was present. It was then brought to the notice of this Forum by the counsel appearing for opposite parties that second opposite party is a party in the case and that complainant does not have any right to seek the examination of second opposite party who is party to the case. Second opposite party had not filed any counter affidavit. The Divisional Manager of Insurance Company who is not a party in the case had filed counter affidavit on behalf of both opposite parties. It was submitted by the counsel appearing for opposite parties that the Divisional Manager who is the deponent in counter affidavit has no direct knowledge of the facts of the case and it is second opposite party who dealt with the case as Manager of Tirur Branch. Hence second opposite party who was present was examined as a witness on behalf of opposite parties. Though there is a slight technical error as the Branch Manager who is a party happened to be examined as a witness, it happened only due to the omission to note that the version as well as counter affidavit was filed by a person who is not a party to this case.

13. DW1 has categorically deposed as to having direct knowledge about the intimation of the accident, submission of claim form and arranging the conduct of survey. DW1 testified that complainant had not produced any original documents before her and that mere photocopies were send without verification. After perusing Ext.B1, B4 and Ext.A5 we are not able to give much credence to this testimony of DW1. It is admitted that documents were send to first opposite party. The copy of the forwarding letter send by second opposite party along with the documents is not placed before us. Moreover, in Ext.B1 the complainant as well as second opposite party was specifically instructed to forward verified documents. In that case the contention of second opposite party who is the branch office of the Insurance Company, that only photocopies were send without verification is least probable and not acceptable. Second opposite party has no case that second opposite party had issued any intimation to the complainant requesting him to produce the originals. These facts and circumstances put together would establish the case of the complainant that he had produced the original documents before second opposite party for verification as believable and acceptable. Ext.A8 is the particulars of the Registration Certificate of the vehicle issued from the Regional Transport Office. Opposite parties do not have any contention that there is any discrepancy in the vehicle documents produced. The claim is denied merely stating that the photocopies are not verified. As the policy was issued from the office at Mumbai, it is not reasonable or practical to submit the original to Mumbai office as there is every chance of the documents getting lost in transit. When first opposite party had given specific instruction to second opposite party in Ext.B1 to send verified documents, the contention of second opposite party that mere photocopies were send without verification is untenable. From the above discussions we are able to conclude that complainant has produced the original documents before second opposite party and that opposite parties have denied the claim on flimsy unjustifiable grounds. We have no hesitation to hold that opposite parties are deficient in service.

14. Point (ii):-

Complainant claims Rs.80,000/- as damages towards repair of vehicle and Rs.1,00,000/- as compensation. As per Ext.B7 the assessment made by the surveyor is Rs.35,333.50. We hold that complainant is entitled to this amount assessed by the surveyor. In our view he has to be compensated for the illegal retainment of the legitimate amount. The insurance company cannot be allowed to somersault and repudiate the claim raising untenable grounds. Interest @ 9% per annum upon the above amount along with costs of Rs.2,000/- would meet the ends of justice.

15. n the result we allow the complaint and order opposite parties jointly and severally to pay to the complainant a sum of Rs.35,333.50 (Rupees Thirty five thousand, three hundred and thirty three and paise fifty only) along with interest @ 9% per annum from date of complaint till payment together with costs of Rs.2,000/- (Rupees two thousand only) within one month from the date of receipt of copy of this order.

Dated this 7th day of April, 2010.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A8

Ext.A1 : Photo copy of the Fitness Certificate in respect vehicle No.KL10/X 8964 given by Asst. Motor Vehicle Inspector, Sub R.T. Office, Tirur.

Ext.A2 : Photo copy of the Registration Certificate in respect vehicle No.KL10/X 8964 given by Taxation Officer, Sub R.T. Office, Tirur.

Ext.A3 : Photo copy of the Goods Carrying (Other than 3-WH)-Public Carriers Package Policy Insured by complainant.

Ext.A4 : Photo copy of the Motor Claim Form submitted by complainant to opposite party.

Ext.A5 : Photo copy of the letter dated, 10-7-2008 from second opposite party to first opposite party.

Ext.A6 : Photo copy of the Lawyer notice dated, 17-11-2008 issued by complainant's counsel to first opposite party.

Ext.A7 : Postal acknowledgement card from first opposite party to complainant's counsel.

Ext.A8 : Photo copy of the Registration Particulars in respect vehicle No.KL10/X 8964

Witness examined on the side of the opposite parties : DW1

DW1 : Ramani.T.P., Branch Manager, witness on behalf of opposite party.

Documents marked on the side of the opposite parties : Ext.B1 to B7

Ext.B1 : Carbon copy of the letter dated, 10-5-2007 from first opposite party to complainant.

Ext.B2 : Computer print out of letter dated, 24-10-2007 from first opposite party to complainant.

Ext.B3 : Carbon copy of the letter dated, 18-2-2008 from first opposite party to complainant.

Ext.B4 : Computer print out of letter dated, 21-4-2008 from first opposite party to complainant.

Ext.B5 : Photo copy of the letter dated, 10-7-2008 from second opposite party to first opposite party.

Ext.B6 : Spot Survey report dated, 24-2-2007 submitted by Noushad Babu.K.K.(DAE),

Insurance Surveyor & valuer of opposite party.

Ext.B7 : Photo copy of the Private and Confidential Motor (Final) Survey Report of

Sri.Vasu.P., Insurance Surveyor.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER