By Sri. A.S. Subhagan,  Member:-

          This is a complaint preferred   under Section 35 of the Consume Protection Act 2019.

          2. Facts of the case in brief:-  The Complainant,  being the owner of  a 2012 model KL 59F/369  number tourist bus, had insured  it with the Opposite Party for the period from 19.03.2021 to 18.03.2022.  Facts being  so, on 21.03.2021 the vehicle  while travelling  with a marriage party to Mananthavady,  a rock fell  on the glass of the bus from the side of the tyre of a  tipper lorry which was going in front of the  bus and the glass was  cracked  and broken.   This matter was informed to the Opposite Party and signed claim form was submitted.  The  Surveyor of the Opposite Party had inspected the vehicle and report was submitted for a loss /expenses of  Rs.44,300/-.  But the Opposite Party repudiated the claim saying that the accident was occurred before 19.3.2021.  Due  to Covid- 19  Pandemic  the vehicle was stopped running and the insurance policy was not renewed on time.  After that, on 18.03.2021,  the vehicle  was inspected by the  Inspector of the Opposite Party and took photos of the vehicle before renewing the insurance policy on 19.12.2021.  If the vehicle had  any damage,  the Opposite Party should not  renew the policy.  The vehicle was parked for years,  adjacent to the Opposite Party Company.  On occurring  damage to the glass of the vehicle,  though the Complainant had submitted claim form and though the insurance  Surveyor  had given report,  the Opposite Party repudiated the claim of the Complainant saying  false allegations.  This act of the Opposite Party is deficiency in service which  caused mental agony and financial  loss to the Complainant, for which the Opposite Party is responsible and liable to compensate the Complainant.  Hence,  this complaint with prayers.

1. To direct the Opposite Party to pay the claim amount of Rs.44,300/-  together with interest at the rate of 10% with  effect from 21.03.2021.
2. To direct the Opposite Party to pay Rs.50,000/-  as compensation  and
3. To direct the Opposite Party to pay cost of this complaint.

3. The  complaint was registered and notice was served upon the Opposite

Party for appearance.  The Opposite Party appeared  and filed version.

          4. Contents of version filed by the Opposite Party:-   The Opposite Party submitted that the Bus No.KL59 F 0369 was insured with the opposite party for the period starting from 19.03.2021 to 18.03.2022. The complainant had taken insurance policy suppressing the fact regarding the damage caused to the vehicle. The policy was issued by the opposite party in utmost good faith. The damage of the vehicle was pre-existing. The opposite party denied the allegation that the vehicle sustained damage on 21.03.2021 at Dwaraka near Mananthavady.  The complainant had not submitted the spot photo and GD entry from the concerned police station. The damage caused to the vehicle was before 19.03.2021. The claim of the Complainant submitted to the Opposite Party was fraudulent one. Therefore, the claim submitted by the Complainant was repudiated by this Opposite Party. The Complainant approached this Commission with unclean hands. Without prejudice to the foregoing contentions the Opposite Party submits that the damage assessed for the Bus No.KL 59 F 0369 by the surveyor as Rs.37,398/-. Since the damage caused to the vehicle before the policy period, the Opposite Party is not liable to pay compensation to the Complainant as claimed in this case. The Opposite Party submitted that the Complainant is not entitled to get sum of Rs.44,300/- towards claim amount and with 10% interest from 21.03.2021, Rs.50,000/­ towards compensation and cost of this complaint.  Therefore,  the Opposite Party submitted to dismiss the complaint with compensatory cost of the Opposite Party.

          5. Proof affidavit was filed by the Complainant, Exts.A1 to A3 were marked from his side and he was examined as PW1.  Proof affidavit was also filed by the Opposite Party,  Exts.B1 to B6 were marked from their side and the Manager of Opposite Party  Company,  Pulpally Branch,  Babu. K.M was examined as OPW1.  One  Leo Mathew was examined as OPW2 from the side of the Opposite Party as witness and the Complainant was finally heard on 14.12.2022.

          6. On  the basis of the complaint, version, affidavit, documents marked,  the oral depositions of the parties and the arguments of the counsels,  Commission raised the following points for consideration.

1.  Whether there has been deficiency in service on the part of the Opposite Party?
2. If so  whether the Complainant is entitled to get insurance claim?
3. If so whether  the  Complainant  is entitled to get compensation? and
4. If so whether the Complainant has the right to get cost of this complaint?

7. For convenience  and brevity, point No.1 to 4 are considered  together.  It is

the admitted fact that  bus No. KL 59F/0369 was insured with the Opposite Party by the Complainant for the period  from 19.03.2021  to 18.03.2022.  The allegation of the Complainant is that  on 21.03.2021  the  glass of the bus was cracked and broken, while the bus was travelling with  a marriage party to Mananthavady,  falling  a rock from the side of the tyre of a tipper lorry which was going in front of the bus, but the Opposite Party repudiated the claim even though the matter was informed to the Opposite Party and the claim application was submitted on time,  which is deficiency in service from the part of the Opposite Party.  On the other hand,  the contention of  the Opposite Party is that the accident was occurred before 19.03.2021, that is before the renewal of the insurance policy of the Complainant’s  bus on  19.03.2021  and hence the claim was repudiated.  The Complainant has stated  in oral examination of PW1 that the glass of the  vehicle  was broken while the  vehicle  was travelling  for a marriage party.  He also has deposed that the vehicle was booked by one Leo but the Complainant was not aware  that  for  whose marriage  the vehicle was booked.  But OPW2 in chief examination stated  that he had not booked  the vehicle for marriage  on 21.03.2021.  So,  the averment of the Complainant that the crack in the  glass of the vehicle  was occurred while travelling the bus  to Mananthavady for Marriage  party on 21.03.2021 is not seen true.  The Complainant has also stated that the insurance surveyor had  inspected  the vehicle and report was submitted  calculating the loss/ expenses caused due to the crack of the glass of the vehicle.

          8.  In oral  examination, OPW1 has deposed that “tIkn s]«  hml-\-¯nsâ  policy break Bbn-cp-¶p.   break Bbn-cn¡p¶ policy renew   sN¿p-¶-Xn\v vehicle  ]cn-tim-[n¡pw.  Photo hml-\-¯nsâ \mep sides   FSp-¡pw.  Photos    tImSXn ap¼msI lmP-cm-¡n-bn-«n-Ã.  18.03.2022 \v  ap³]v   damage D­m-bn-cp-¶p F¶v sXfn-bn-¡p-hm³ R§Ä tcJ-IÄ lmP-cm-¡n-bn-«n-Ã.  A]-ISw ]än-b-Xn\v tijw R§-fpsS  Inspector  hml\w  ]cn-tim-[n-¨n-cp-¶p.  hml-\-¯nsâ NnÃv s]m«n-bn-cp-¶-Xmbn  Inspector  km£-y-s¸-Sp-¯n-bn-«p-­v.  Insurance  ]cn-c£ DÅ ka-b-¯p-­mb damage \ÂIp-hm³ R§Ä _m²-y-Ø-cm-bn-cp¶p F¶v ]d-ªm icn-bmWv”.  In  Re-examination, OPW1 has stated that “]cn-tim-[-\bv¡v tijw damage tcJ-s¸-Sp-¯n-bn-«p­v”.  Glass  \v  crack D­m-bn-cp-¶p.  In further cross examination with permission of the commission, OPW1 has also stated that “ap³]v   damage D­m-bn-cp¶p F¶v ImWn-¡m³ bmsXmcp tcJbpw CÔ.

       9. In version, the Opposite Party had contented that the claim of the Complainant was repudiated as the damage was occurred before renewal of the insurance policy by the Complainant  but the Complainant alleges that the damage  was occurred during the existence  of the valid insurance policy.  It is the true fact that  the Opposite Party should  not renew the policy  if there was damage  to glass of the vehicle  before  renewal of the  insurance policy.  Moreover,  on  going through the oral evidence adduced by OPW1,  it is seen very clear that the Opposite Party has failed to prove that the damage was occurred  before the renewal of the insurance policy.  Therefore it is seen evident that the claim of the Complainant is repudiated by the  Opposite Party without any valid and sustaining ground and hence the act of the Opposite Party is not in  good faith, is  against  natural justice and is deficiency in service for  which they are liable to compensate the Complainant.  Other  allegations and contentions are  immaterial to  the fact and circumstances of this case.  So all the points are proved in favour of the Complainant.

          In the result,  the  complaint is partly allowed and the Opposite Party is directed :-

1. To pay Rs.44,300/-  (Rupees Forty Four thousand Three hundred only) being the claim amount as per the claim application submitted by the Complainant together with interest at the rate of 8% per annum from 21.03.2021.
2. To pay Rs.15,000/-  (Rupees Fifteen thousand only)  as compensation and
3. To pay Rs.8,000/-  (Rupees Eight thousand only)  as cost of this complaint.

The  above amounts shall  be  paid  to the Complainant within one month from

the date of this order, failing which the amount  will carry interest at the rate of  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 Commission on this the 28^th  day of December 2022.    

Dated of filing:- 11.03.2022.                                                   

PRESIDENT (I/C)         :    Sd/-

MEMBER           :    Sd/-

APPENDIX.

Witness for the complainant:

PW1.           Raju. C.V.                                Complainant.       

Witness for the Opposite Party:

OPW1.        Babu. K. M                              Administrative Office, United India

                                                                        Insurance Co. Ltd., Pulpally.

OPW2.        Leo Mathew.                            Driver.

Exhibits for the complainant:

A1.          Copy of Certificate of Registration.

A2.          Copy of Certificate of Insurance.

A3.          Letter.                                             dt:13.08.2021.  

Exhibits for the Opposite Party:

B1.         Motor Insurance Proposal Form.     dt:18.3.2021.

B2.         Insurance Policy.

B3.         Motor Claim Form.                        dt:22.03.2021.

B4.        Survey Report.                              dt:03.04.2021.

B5.        Letter.                                            dt:02.07.2021.

B6.        Letter.                                            dt:13.08.2021.

                                                                                                                PRESIDENT (I/C):  Sd/-

                                                                   MEMBER            :   Sd/-