By Sri. A.S. Subhagan, Member:
This is a complaint preferred under section 12 of the Consumer Protection Act 1986.
2. Facts of the case:- The Complainant is an owner of vehicle bearing No.KL-73-A-2203 Nissan Datsun Go Plus T and the Complainant has insured the said vehicle with opposite party No.2 office vide private car package Policy No. 1016023117P117858441 covering the period from 13.03.2018 to 12.03.2019. Being the insured, the Complainant is a consumer under Opposite Parties. On 19.03.2018 at about 20.30 hrs, the vehicle was parked in front of St.Martin's Hospital Ambalavayal for taking a patient in causality. When the driver moved along with the patient and was inside the hospital, the vehicle accidentally rolled backwards and hit against a coconut tree in the hospital compound. Due to the accident, the vehicle was extensively damaged. The Complainant had later taken the vehicle to the authorized service centre E.V.M Nisan Automobiles at Calicut. The vehicle was promptly surveyed and estimate for repairs also was sent. The Complainant had promptly preferred the claim of insurance through vehicle service company with the Opposite Parties for the repairing cost of Rs.2,17,207/- along with all documents. But the Complainant has not received the amount so far. Instead the Complainant is astonished to receive the Opposite Parties’ letter dated 06.03.2019 repudiating his claim on untenable and flimsy grounds. The Complainant further asserted that the actual date of accident was 19.03.2018. There was no need for him to state a fraudulent date as alleged since the accident occurred well within the period of insurance coverage and Opposite Parties are contractually liable to pay the amount of claim. Moreover, the Complainant preferred a complaint before the Ambalavayal police about the accident and police enquired and report was recorded in the police station records. . The Opposite Parties’ action in denying the claim as mentioned above is a clear case of deficiency in service and breach of contractual obligations. Opposite Parties intention appears to be an attempt to evade payment of the insurance amount on some lame excuses. Due to the said situations, the Complainant was put to untold miseries to arrange the huge amount in lump sum which has finally billed and settled the amount. The Complainant was waiting for the sanctioning of claim as per the terms of the insurance policy. The Complainant is entitled for entire claim as offered and assured while issuing the policy. The said acts from Opposite Parties’ part are to escape from the real liability where opposite party is liable to reimburse the same as per the insurance contractual terms. The Complainant has not misrepresented anything as alleged in rejection letter. Due to the said acts from Opposite Parties, the Complainant suffered financial loss, mental agony and suffering. The said acts from Opposite Parties are nothing but unfair trade practice and deficiency in service, which are actionable and liable to be compensated to the Complainant. The Complainant sent a lawyer notice through his advocate on 20.03.2019 and the same was received by the office of Opposite Parties but not acted as demanded or replied so far. Now the vehicle is in the E.V.M. Automobiles work shop at Kozhikode after completion of works. Since the Opposite Parties denied the claim of insurance, the Complainant was put to trouble to clear the bill amount with workshop. Due to the said acts, the Complainant suffered mental agony and also suffered much financial loss and damages. The said acts from the Opposite Parties are arbitrary, illegal and deficiency in service from their part and for which the Opposite Parties have to compensate the Complainant for the financial loss and mental agony.
3. Hence this complaint with the following prayers:-
- To pass an order directing the Opposite Parties to reimburse the repair and service cost of Rs.2,17,207/- to the Complainant as per the terms of the policy with 15% interest from the date of default till realization thereof,
- To pass an order to pay an amount of Rs.1,00,000/- towards the damages and compensation to the Complainant and
- To pass an order to pay the cost of this complaint to the Complainant and any other relief which is deemed fit and proper to grant
4. Notices were served on the Opposite Parties for appearance. The Opposite Parties appeared before the Commission and joint version was filed on behalf of the Opposite Parties.
5. Contents of version filed by the Opposite Parties:-
The Opposite Parties submitted that the car No.KL 73 A 2203 belonged to the Complainant was insured with this opposite party for the period starting from 13.03.2018 to 19.03.2018. But the car was involved in an accident on 10.03.2018 not on 19.03.2018 as alleged in the complaint. The Complainant had fraudulently obtained the insurance policy from the Ambalavayal Portal office of these Opposite Parties headed by Mr. Pradheesh Babu. K.P. by misrepresentation, suppression and non-disclosure of material facts regarding the actual date of accident and provided the photo prior to the date of accident without producing the vehicle for physical verification. The claim of the Complainant was repudiated by these Opposite Parties as "it is the case of misrepresentation and fraudulent one". There was no insurance coverage to the car No.KL.73.A 2203 on 10.03.2018. The Claim submitted by the Complainant was fraudulent one. It is a planned attempt to extract money from this opposite party by an illegal means. The Complainant filed this complaint in an experimental nature without any bonafides. Since there was no contract of insurance exist between these Opposite Parties and Complainant in connection with insurance of the Car No.KL.73 A 2203 as on 10.03.2018, the Opposite Parties are not liable to pay any compensation for the damage caused to the car belonged to the Complainant. Therefore, there is no deficiency in service on the part of the Opposite Parties as alleged in the complaint. Without prejudice to the above contention the Opposite Parties submitted that as per the policy condition No.1, notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as company shall require. Here, the Complainant had reported the claim only on 03.04.2018 after 15 days after the alleged accident dated 19.03.2018.There was no accident or damage caused to the car belonged to the Complainant as alleged in the complaint. The Opposite Parties denied the allegations of the complaint. There was no accident or damage caused to the car belonged to the Complainant on 19.03.2018 as alleged in the complaint. The Opposite Parties submitted that the claim of the Complainant was fraudulent one, not prompt and genuine. The Opposite Parties are not liable for any damage or mental agony suffered by the Complainant, if any. The Opposite Parties submitted that there was no cause of action arose on 19.03.2018 as alleged in the complaint. The Opposite Parties submitted that the surveyor had assessed the damage as Rs.2,08,697/- based on the claim submitted by the Complainant. The Complainant is not entitled to get sum of Rs.2,17,207/- towards repair and service cost with 15 % interest and Rs.1,00,000/- towards compensation as prayed for.
6. On the basis of the above contentions, the Opposite Parties prayed to dismiss the complaint with compensatory cost of the Opposite Parties.
7. Chief affidavit was filed by the Complainant, Exts.A1 to A8 were marked from his side and he was examined as PW1. Ext.X1 to X10 were also marked. Pradheesh Babu, the portal agent of United India Insurance Company was examined as PW2; Albin.N. Joy, Body shop Manager of EVM Nissan Automobiles Private Limited was examined as PW3; One Muhammed Shafeeque was examined as PW4; Abdul Gafoor, ASI of Ambalavayal Police Station was examined as PW5 and Thomas Issac, Accounts and Administration Head of EVM Automobiles Private Limited was examined as PW6 from the side of the Complainant. Proof affidavit was filed by the Branch Manager for the Opposite Parties, Ext.B1 to B4 were makred from the side of the Opposite Parties and Prasanth Sebastian, HR Manager of St Martin Hospital was examined as OPW1 from the side of the Opposite Parties. Rema. K. S, Branch Manager of United India Insurance Company Limited was examined as OPW2.
8. On going through the complaint, version, documents marked, affidavits filed, the oral evidences adduced by PW1 to PW6 and OPW1 and OPW2 and considering the arguments of Counsels, we raised the following points for consideration
- Whether there has been any deficiency in service/unfair trade practice from the side of the Opposite Parties..?
- If so, whether the Complainant is entitled to get compensation and cost as prayed for?
9. Point No.1:- The Complainant had an insurance policy in respect of his vehicle No.KL 73 A 2203 with the Opposite Parties covering the period from 13.03.2018 to 12.03.2019. On 19.03.2018, when the driver moved along with the patient and was inside the hospital, the vehicle accidentally rolled backwards and hit against a coconut tree in the hospital compound and caused damage. The Complainant then preferred insurance claim through vehicle service company with the Opposite Parties for the repair cost of Rs.2,17,207/- along with all documents. But the Opposite Parties repudiated the insurance claim on untenable and flimsy grounds which is deficiency in service and breach of contractual obligations. This is the case of the Complainant. On the other hand the contentions of the Opposite Parties are that (1) Though the Complainant had the valid insurance policy as stated by the Complainant, the accident was actually happened not on 19.03.2018 as narrated by the Complainant but on 10.03.2018, (2) The Complainant had fraudulently obtained the insurance policy by misrepresentation, suppression and non-disclosure of material facts regarding the actual date of accident and prescribed the photo prior to the date of accident without producing the vehicle for physical verification (3) There was no insurance coverage to the Car No. KL 73 A 2203 on 10.03.2018. (4) It was a planned attempt to extract money from the Opposite Parties by illegal means. (5) Since there was no contract of insurance between the Opposite Parties and the Complainant in connection with the insurance of the vehicle as on 10.03.2018, there was no deficiency in service from the part of the Opposite Parties, the Opposite Parties repudiated the claim. All other allegations of the Complainant are denied by the Opposite Parties. (6) But without prejudice, the Opposite Parties contented that the Surveyor had assessed the damage of Rs.2,08,699/- based on the claim submitted by the Complainant and so the Complainant is not entitled to get a sum of Rs.2,17,207/- towards repair charge with 15% interest and Rs.1,00,000/- towards compensation as prayed for.
10. From Ext.A1 document it is evident that the vehicle of the Complainant had a valid insurance policy from 13.03.2018 to 12.03.2019. As per Ext.A3, the Complainant had submitted insurance claim application to the Opposite Parties on 03.04.2018. But as per Ext.A4, the claim of the Complainant was repudiated by the Opposite Parties stating that the actual date of the accident was misrepresented and non-disclosed in the claim form and the Opposite Parties added that 19.03.2018, the date of accident was a fraudulent one. Ext.A6 which is a Certificate issued from the Ambalavayal Police reveals that the accident was occurred on 19.03.2018. The Opposite Parties have failed to contradict this date with the support of any documentary evidence or other reliable evidences. So the contention of the Opposite Parties that the accident was taken place on 10.03.2018, a date having no insurance policy on the vehicle is seen false and cannot be accepted. Ext.A7, the Survey report shows that the final assessment of expenditure required for the repairs of the vehicle came to Rs.2,08,697/-. But Ext.A8 which is the Tax Invoice issued by EVM Automobiles Private Limited reveals that the total actual expenditure for repairs of the vehicle came to Rs.2,17,207/-. The expenditure calculated by the Insurance Surveyor is only an estimate but the amount paid by the Complainant as per the tax invoice is the actual repair charges for making the vehicle in proper running condition which is Rs.2,17,207/-.
11. From the above, it is evident that the accident of the vehicle was taken place on 19.03.2018 a date on which the vehicle had a valid insurance policy with the Opposite Parties. But it is seen that the Opposite Parties repudiated the claim of the Complainant without any evidence or valid genuine reasons, which is deficiency in service/unfair trade practice. Therefore, here, there has been deficiency in service/unfair trade practice from the part of the Opposite Parties. Other contentions and the oral evidences adduced are immaterial and irrelevant as to the facts of the case and hence discarded. So, Point No.1 is proved against the Opposite Parties.
12. Point No.2:- As Point No.1 is proved against the Opposite Parties they are liable to compensate the Complainant.
In the result, the complaint is partly allowed and the Opposite Parties, are ordered to
- Pay Rs.2,17,207/- (Rupees Two Lakh Seventeen Thousand Two Hundred and Seven Only), the actual expenditure on repairs to the vehicle met by the Complainant together with interest @ 8% per annum from the date of repudiation of the claim.
- Pay an amount of Rs.60,000/- (Rupees Sixty Thousand Only) as compensation for deficiency in service, mental agony etc to the Complainant and
- Pay an amount of Rs.12,000/- (Rupees Twelve Thousand Only) as cost of this complaint to the Complainant.
The above amounts shall be paid jointly and severally by the first and second Opposite Parties to the Complainant within one month from the date of this order, failing which the amounts will carry interest @ 8% per annum from the date of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 23rd day of February 2023.
Date of Filing:-14.06.2019.
PRESIDENT(I/C) :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the Complainant:-
PW1. Muhammadali. Agriculture.
PW2. Pradheesh Babu. Business.
PW3. Albin. N. Joy. Body shop Manager.
PW4. Muhammed Shafeeque. Business.
PW5. Abdul Gafoor. P. V. ASI.
PW6. Thomas Isac. Accounts and Admin Head.
Witness for the Opposite Parties:-
OPW1. Prasanth Sebastian. HR Manager,
St Martin Hospital, Ambalavayal.
OPW2. Rema. K. S. Branch Manager, United India
Insurance Co. Ltd.
Exhibits for the Complainant:
A1. Motor Insurance Private Car Package Policy Schedule for the
period from 13.03.2018 to 12.03.2019.
A2. Copy of Body and Paint Vehicle Receiving Sheet. Dt:19.03.2018.
A3. Copy of Claim Application. Dt:03.04.2018.
A4. Repudiation Letter. Dt:06.03.2019.
A5(a). Lawyer Notice. Dt:20.03.2019.
A5(b). Postal Receipt.
A5(c). Acknowledgment Card.
A5(d). Acknowledgment Card.
A6. Copy of Certificate. Dt:15.10.2018.
A7. Copy of Motor Survey Report. Dt:29.09.2018.
A8. Tax Invoice.
A9. Tax Invoice.
A9(a). Receipt Voucher. Dt:01.09.2021.
A9(b). Receipt Voucher. Dt:16.09.2021.
X1. Copy of Claim Application. Dt:03.04.2018.
X1(a). Details of Ayishakutty produced by St Martin’s Hospital.
X1(b). Document produced from St Martin Hospital.
X1(c ). Copy of Letter. Dt:23.01.2019
X1(d). Document produced from St Martin Hospital.
X2. Certificate. Dt:15.10.2018.
X3. Tax Invoice.
X4. Estimate.
X5. Repair Order-Customer Copy.
X6. Photograph.
X7. Motor Survey Report. Dt:29.09.2018.
X8. Letter.
X9. Copy of Registration Certificate.
X10. Copy of Driving License.
X11. Copy of Private Car Package Policy.
X12. Copy of Motor Insurance Proposal Form Page 1.
X12(a). Copy of Motor Insurance Proposal Form Page 2.
Exhibits for the Opposite Parties:-
B1. Private Car Package Policy for the period from13.03.2018 to
12.03.2019.
B2. Claim Application. Dt:03.04.2018.
B3. Copy of Motor Claim Form. Dt:03.04.2018.
B4. Vehicle Inspection Report. Dt:29.09.2018.
PRESIDENT(I/C) :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
ASSISTANT REGISTRAR
CDRC, WAYANAD.
