D.O.F. 11.11.2010
D.O.O. 01.06.2012
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 1st day of June, 2012.
C.C.No.273/2010
Valsan M.,
S/o. Krishnan,
Mottammel House, : Complainant
Kuttiyeri P.O., Taliparamba,
Kannur.
(Rep. by Adv. Saji Zacharias)
1. United India Insurance Company Ltd.
P.B.No.26, Shenayis building,
Temple road, South Bazar,
Payyannur.
(Rep. by Adv. V.V. Gopinathan)
2. Branch Manager, : Opposite parties
Syndicate Bank, Taliparamba.
(Rep. by Adv. T. Ramakrishnan)
O R D E R
Sri. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party a sum of ` 31,000 with interest.
The case of the complainant in brief is as follows : Complainant had insured his vehicle autoriskshaw with 1st opposite party. The relevant period was 07.03.08 to 06.03.09. The insured declared value was 32,500. The said vehicle was set fire by miscreants on 09.01.09. Matter was informed to Station House Officer, Taliparamba and police registered a crime as crime No.17/2009. On informing 1st opposite party a surveyor was appointed for assessment of damage and he submit a report with an assessment of `31,000. The bank was also informed the opposite party regarding the total loss. But opposite party informed complainant that complaint was not eligible for the claim stating that there was no valid fitness certificate and permit at the time of incident. 1st opposite party has the liability to compensate the complainant but it is denied by 1st opposite party. Hence this complaint.
Pursuant to the notice 1st and 2nd opposite party appeared and filed version separately. The brief facts of the version filed by the 1st opposite party / United India Insurance Company are as follows : The vehicle / autorikshaw was insured with the 1st opposite party for the period 07.03.2008 to 06.03.2009. The alleged incident occurred on 09.01.09 at about 4.30 am near the compound of the complainant’s residence where the vehicle was parked by complainant. But the incident was intimated to opposite party only after 4 ½ months. As per the terms of the policy, notice shall be given in writing to the company immediately after the incident. In this case the insured nor the financier Bank
informed the incident to opposite party as per the conditions. So opposite party could not investigate and found out the truth in time. Non information is a violation of terms. The insured vehicle was not having valid fitness certificate nor permit at the time of alleged incident. Since violation existing opposite party is liable to give any relief. Hence to dismiss the case.
2nd opposite party filed version separately contending as follows. The alleged autorikshaw was hypothecated to 2nd opposite party as per agreement dated 23.11.2001 and availed a loan for `64,500. A sum of `1,21,758 is outstanding as on 23.05.2009. On the same day of getting intimation of the incident, a letter dated 23.05.2009 was sent to 1st opposite party and requested to pay to 2nd opposite party the insurance amount payable to complainant / M. Valsan. This opposite party is entitled to get the amount payable by 1st opposite party to complainant. Hence prayed for an order directing 1st opposite party to pay this 2nd opposite party the insurance amount payable to complainant on account of incident of fire.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite parties?
- Whether the complainant is entitled to any relief as prayed?
- Relief and cost.
The evidence in the above case consists of the oral testimony of PW1, DW1 and documentary evidence Exts. A1 to A5 and B1 to B8.
Issues No.1 to 3 :
Admittedly the subject matter autorikshaw was insured with the 1st opposite party. The vehicle was set fire by some unwanted elements on 09.01.09. Taliparamba police registered a case. The case of the complainant is that the surveyor of Insurance Company made an assessment of `31,000 as damages. But the claim was rejected on the ground that there was no valid fitness certificate and permit at the time incidents. 1st opposite party contended that the incident was reported only after 4 ½ months. Because of this delay opposite party could not find out the truth in time. Apart from this delay, the vehicle was not having valid fitness certificate and permit at the time of taking place the alleged incident. 2nd opposite party on the other hand contended that on getting information the same was reported to 1st opposite party requesting to pay the amount to them.
Ext.A3 certified copy of FIR 17/2009 reveals that the incident was taken place on 09.01.09. The valid insurance of destroyed vehicle during the time of incident was admitted by the opposite party. The main contention of the opposite party is that as per terms and conditions of policy notice shall be given in writing to company immediately after the occurrence of any accidental loss or damage in the event of any claim. In the present case incident took place on 09.01.2009 and the same was reported to 1st opposite party by 2nd opposite party after elapsing a period of 4 ½ months through the letter dated 23.05.2009. This inordinate delay leads to suspicion about the alleged incident. However, what is being suspected is not explained by 1st opposite party. It is also contended by 1st opposite party that the complainant was neither having a valid fitness certificate nor permit at the time of incident.
Thus the opposite party insurance company declined to indemnity the complainant on the grounds, (i) intimation given with violation of condition that notice shall be given to the company in writing immediately after occurrence of theft (ii) the vehicle was not having valid fitness certificate and permit at the time of incident. Anyhow it is clear that the reasons stated for repudiation of claim no way influenced the occurrence of alleged incident. Opposite party contended that delay created suspicion. What is the suspicion? It is he who has to explain what is suspected? If there is a genuine suspicion it is understandable that there is difficulty in allowing the claim. Ofcourse, there is delay in informing the incident to opposite party. But at the same time one cannot discard the fact that this is a matter in which FIR was lodged by SHO, Taliparamba immediately after the incident as is evident from Ext.A3. Under such circumstances there is no justification to hold suspicion with respect to the incident. So also the delay doesn’t become a material fact that deserves to be considered so as to determine the claim. It should also be taken into account that the insurance company had appointed surveyor in the present case and assessed the damages in his report. It is not justifiable to argue that the 1st opposite party / insurance company deprived of opportunity to investigate incident. Even the police investigation, is a way, sufficient enough to understand the actual state of affairs in connection with the incident. Any negative observation because of the reason of delay shall be, as far as the present case is concerned a denial of natural justice. There is no evidence that the delay caused deprival of opportunity to investigate the incident. The circumstances existing reveals that the delay is not at all material in any respect as far as the present case is concerned.
In United India Insurance Co. Ltd Vs. Ghanshyam Singh (2009(1) CPC 126). Complainant/ father of the deceased was shocked as a result of the premature death of his son that he did not prefer his claim in time and the claim was made on 25.02.2005 whereas, he was murdered by unknown miscreants on 23.03.2004. Insurance company repudiated the claim on two grounds.
1) Assured had not affixed his signature on the insurance certificate and
2) complainant had intimated the insurance company almost one year after the death of the assured.
The Hon’ble National Commission observed that ‘complainant being illiterate did not know the factum of death to be intimated within one month of the incident’. The revision petition was dismissed commending that hyper technical grounds cannot be made a ground for defeating the claim.
Anyhow the facts and circumstances reveals that it is mainly depending upon the technicalities of violation of terms the claim was rejected. It is very clear that mere delay in reporting the incident in no way prevented the opposite party to realize the true facts. Surveyor after investigation assessed the damage. His report did not show anywhere that he was unable to do any of the work in connection with the subject matter because of the delayed reporting of incident. So it is very clear that the incident was reported late it was not a relevant aspect to find the truth as well as in assessing the damages.
So also the question of fitness certificate and permit do not play relevant role to determine the claim. In fact the incident of setting fire was not due to lack of certificate or permit. It is immaterial as far as the incident is concerned. There is no justification in denying the claim on those technical aspect which has no role in the actual incident. The Hon’ble Kerala High Court in New India Assurance Co. Ltd Vs. Balakrishnan gives leading guide lines to deal with the question of violation and breach of condition. It has categorically pointed out that the law declared by Swaran Singh case 2004 (1) KLT 781(SC) that it is not enough if the violation and contumacious breach are proved. An insurer will not be allowed to avoid its liability towards insured merely on proof of the violation and breach. It is up to the insurer to show that the breach is so fundamental that is found to have contributed to the cause of the accident. The rule of main purpose and fundamental breach is to be important to ascertain whether the breach was such that it could be said to have contributed to the cause of accident. It has to be established that the breach of the condition of the policy was responsible or had contributed to the cause of accident. In the light of the very spirit of the above principle the breach that had been taken into account by the opposite party to repudiate the claim can only be considered as mere technical, which purely deserves to be discarded since it had no way contributed to the course of accident.
In the light of the above discussion and taking into account the facts and circumstances of the case we hold that there is deficiency in service on the part of 1st opposite party/insurance company in repudiating the claim. It can be seen that the surveyor has assured the damage caused to the vehicle in his report Ext.A5 as `20,500 on the basis of salvage loss which is in his opinion more economical for settlement. There is no need to ignore the report of the surveyor. Hence we are of the view that 1st opposite party is liable to pay an amount `20,500. Issues No.1 to 3 are found in favour of complainant. Order passed accordingly.
In the result, the complaint is allowed directing 1st opposite party / insurance company to pay an amount of `20,500 (Rupees Twenty thousand five hundred only) as insurance amount together with `1500 (Rupees One thousand five hundred only) as cost of this litigation within one month from the date of receipt of this order failing which the complainant shall be entitled for 12% interest per annum from the date of filing of this complaint till realization. Complainant is at liberty to execute the order after the expiry of 30 days in accordance with the provisions of Consumer Protection Act.
Dated this the 1st day of June, 2012.
Sd/- Sd/- sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Certified copy of the RC.
A2. Insurance policy with condition.
A3. F.I.R.
A4. Letter issued by 1st OP dated 27.08.09.
A5. survey report.
Exhibits for the opposite party
B1. Accident Insurance claim application.
B2. Letter dated 23.05.2009.
B3. Copy of permit.
B4. Letter dated 25.08.2009.
B5. Letter dated 30.05.2009.
B6. Loan documents.
B7. Copy of ledger account.
B8. Identity card of the Manager.
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1. Mukundan N.B.
/forwarded by order/
SENIOR SUPERINTENDENT
