BY C.S. SULEKHA BEEVI, PRESIDENT

 

1. Complainant is aggrieved that opposite party failed to indemnify the loss sustained by him due to the damage caused to his vehicle KL-10-U-5698, in an accident which occurred on 30.07.2006. It is his case that during the currency of the insurance policy, his vehicle a Scorpio Car, met with an accident , at perintalmanna, by hitting against a wall. At the relevant time the vehicle was driven by his friend Sri. N. Ali. That only the driver and his two sons were travelling in the vehicle and that none of them were injured. Opposite party dishonoured the claim alleging that the vehicle was driven by one Sivaraman and that the said Sivaraman did not have a valid driving license. That opposite party alleged that there were five passengers in the vehicle including the driver. It is his case that the claim was repudiated on false and unsustainable grounds. That complainant spent Rs. 72,711/-towards repair of the vehicle. Complainant alleges that the act of opposite party in repudiating the claim without valid reasons is defificiency. Hence this complaint

   1. Opposite party filed version admitting that a package policy was issued to the vehicle KL 10-U-5698belonging to the complainant . That the claim was dishonoured due to breach of conditions, wilful suppression and gross distortion of facts on the side of the complaint. That the complainant intimated the accident vide his claim form submitted on 4.8.2006. A surveyor was deputed to assess the loss. Opposite party also arranged for an investigation to ascertain the veracity of the claim. Sri Haridasan Nair was appointed as investigator. The investigator reported that Sri. N.Ali is a close friend of the complainant and that Sri. N. Ali was not driving the vehicle at the relevant time. It was also reported that complainant had given custody,possession and control of the vehicle to Sri. N.Ali and Sri Ali was conducting as owner of the vehicle. On the relevant day, Sri. Ali had given the vehicle to

       

       

   (3)

   Sri. Usman S/O Kunni moideen for a marriage trip to Nattukal. He along with four others travelled in the vehicle .While returning from the trip the vehicle was driven by Sri. Sivaraman who belonged to this group. That the vehicle met with the accident while it was driven by Sri. Sivaraman. But Sri. Sivaraman was not holding a valid driving license. Sivaraman suffered injuries and was treated at E.M.S hospital, Perintalmanna, for which the hospital raised a bill of Rs.250/-. That in the complaint filed before the police, Sri.Ali was shown as the driver. The reasons for repudiation were intimated to the complainant by a registered letter issued to him on 27..11.2006. But complainant did not raise any objection. The complainant was silent for more than 2 years . That there is a delay of 2 years and five months to file this complaint. The amount of Rs. 72,711 claimed by the complainant is baseless. That there is no deficiency in service.

    

   1. Evidence consists of the proof affidavit filed by complainant and Exts A1 to A6 marked for him. Opposite party filed counter affidavit and Ext B1 marked for opposite party. Either side has not adduced any oral evidence.

       

   2. Points for consideration

   (i)whether the complaint is barred by limitation

   (ii)whether opposite party is deficient in service.

   (iii) If so, reliefs and costs.

    

    

   (4)

   5. Point(1)

   
    

   Opposite Party has raised a contention that the claim is time-barred and that it is filed after two years from the letter of repudiation send by opposite party. On perusal of Ext A6 repudiation letter it is dated 27.11.2006. The complaint is filed on 6.2.2009 which is beyond two years. But along with the complaint a petition 1 A 108/ 2009

   was filed by the complainant seeking condonation of the delay. It is seen stated in this petition that after receiving the repudiation letter the complainant had approached the Hon'ble High court vide W.P(c)No.32148/2007 challenging the repudiation of the claim. This writ petition was disposed on 30.10.2007closing the writ petition without prejudice to the right of the petitioner to invoke appropriate remedy. It is also stated that he was not in station during the time when the writ was disposed. In our view, the time consumed for litigating before the Hon'ble High Court has to be excused. The petition to condone delay was allowed by this forum on 2.3.2009 and the complaint was admitted on file. We hold that the complaint is not time barred and hence maintainable.

   
    

   6. Point (ii)

   
    

   Opposite party has not disputed the issuance of insurance coverage to the vehicle and the fact of accident. The claim was dishonoured on two grounds(1) That Ali was conducting

   
    

   
    

   (5)

   as owner of the vehicle and that, at the material time complainant was not the owner of the vehicle (2) that one Sivaraman was driving the vehicle and that he had no valid driving license. In the repudiation letter it is also seen stated that there were five passengers in the car including the driver. But this contention is not reiterated by opposite party either in the version or in the counter affidavit which would only indicate that opposite party has given a go-bye to this contention.

   
    

   7. Eventhough opposite party contends that the complainant was not the owner of the vehicle there is no iota of evidence to support this. Apart from the vague affirmation to this effect nothing is seen stated by opposite party as to whether the vehicle was sold by complainant to Ali or the date of sale or consideration received etc. Opposite party has not produced any documents in this regard. Regarding the second contention also opposite party has not produced any evidence to substantiate it. It is averred and affirmed by complainant that Sri. N. Ali was driving the vehicle. Complainant also placed reliance on Ext A2. This is a certificate issued by the S.I of police, Trafic Unit,Perinthalmanna. It is seen stated in Ext A2 that the vehicle was driven by Sri. Ali while it met with an accident by hitting against a wall, at Perintalmanna. It is also seen stated in Ext A2 that H.C. 1863, Sri Ayyappan conducted an enquiry upon receiving the intimation of accident and reported the matter to be true. There is nothing to disbelieve Ext A2 which is issued by police who is the authority under the law of the land to enquire into such incidents. Though opposite party contends that the investigator

       

      (6)

      appointed by opposite party reported that Sri. N. Ali was not the driver, opposite party

      has neither produced the investigation report nor examined the investigator. It is candid that opposite party has dishonoured the claim on flimsy grounds and false assumptions. Rejecting the claim on unjustifiable grounds is deficiency. We find opposite party deficient in sevice.

   8. Point (3)

   Complainant claim for Rs. 72,711/- towards expenses incurred for repair of the car. He relied upon Ext A5 which is a reciept issued for Rs.70,000/- from the repairer. But complainant has not proved this document by adducing necessary oral evvidence. Hence we are unable to place much thrust upon this reciept and the bill. Ext B1 is the survey report submitted by the surveyor who was appointed under the provisions of the insurance Act. The

   amount assessed by the surveyor in Rs. 55099.00/- we consider that complainant is entitled to the payment of this amount which is rounded off to 55100/-

   
    

   9. The facts of this case reveal that opposite party has denied the claim on totally

      flimsy grounds. Such act of opposite party in denying the claim without any cogent evidence is highly deprecated. This is a fit case to allow 12% interest p.a. upon the sum from the date of repudiation till payment. The IRDA. Regulations 2002 provides for allowing higher rate of interest than the bank rate in cases of illegal retainment of legitimate claim. We therefore hold that complainant is entitled to a sum of Rs. 55100/- as damages under the policy along with interest @ 12% per annum from 27.11.2006 till payment together with cost of Rs.2000/-

   
    

   (7)

   10. In the result the complaint is allowed and opposite party is ordered to pay a sum of Rs. 55100/- to the complainant along with interest @ 12% p.a from 27.11.2006 till payment together with cost of Rs. 2000 /- within one month from the date of reciept of copy of this order.

   Dated this 05th day of August, 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 Ext A6

   Ext. A1 : True copy of petition filed before High Court of Kerala by Complainant

   Ext. A2 : Certificate from Sub- Inspector of Police Perunthalmanna.

   Ext.A3 : Photo copy of theLawyer notice, dated 5 th January,2007 by complainant Counsel to Opposite party

   
    

   Ext.A4 : Photo Copy of Retail Invoice dated 20.09.2006

   Axt.A5 : Photo copy of the cash received certificate Rs. 70000 dated 20.9.2006 by repairer TV & Sons Ltd to Opposite party .

   A6. : Photo copy of the letter by Opposite party to Complainant.

   Witness examined on the side of the opposite parties : Nil

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

   Ext. B1 :Re-Inspection Report dated 16^th October 2006

   C.S. SULEKHA BEEVI, PRESIDENT

   MOHAMMED MUSTAFA KOOTHRADAN,MEMBER

   E. AYISHAKUTTY, MEMBER