SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the OPs to pay compensation for damages of the vehicle for an amount of Rs.50,000/- to the complainant with 9% interest per annum from 6/12/2020 till the date of payment and Rs.2,00,000/- as compensation for mental agony, and cost of Rs.10,000/- to the complainant for the deficiency of service on their part.
The brief of the complaint:
The complainant is the owner of the motor bike bearing No.KL-13 AL 6104. The complainant has taken insurance policy from OP’s as per policy No.3361/01832853/000/00 to his motor bike for getting compensation for the damages sustained in the motor vehicle in case of accident and for the injuries caused to the victim of the accident. The complainant was working as Lab technician in Manjeri Govt.Hospital and on 6/12/2020 at 10.P.M he was travelling in his motor bike go to his house at Taliparamba in a slow speed and great caution through national highway. A car bearing No.KL-10-BB5746 came from opposite direction in a rash and negligent manner and hit complainant’s vehicle and the complainant sustained serious injuries and heavy damages was caused to the vehicle. Immediately the complainant has taken to Aster Mims hospital Calicut and treated and admitted there as IP for 3 days. The complainant informed the OP through phone about the accident from the hospital. At the time of discharge the doctor advised the complainant that he has taken rest in house for a period of one month. After discharge from the hospital the complainant given a written intimation to the OPs. Then the OP deputed Mr.Anoop ,Surveyor to calculate the damages caused to the vehicle due to the accident. After inspection surveyor to assess damage, the vehicle was taken to the service centre with the help of crane and for the repair work. The complainant was sustained serious injuries in the accident and he was under treatment from the hospital which prevented him to go to the office of OP and file written statement. The accident was reported through phone from the hospital to OP. On 27/1/2021 the complainant visited to OP’s office and given a written intimation regarding the damages sustained to his vehicle. The vehicle is kept in the workshop and the complainant has constrained to travel in another vehicle. But the OP’s not compensate the loss to the complainant. On 10/5/2021, the complainant sent a lawyer notice to OP’s . But the OP’s not sent a reply or settle the claim . The act of OP’s the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP’s. Hence the complaint.
After receiving notice OP’s entered before the commission and filed their written version contending that the complainant has violated the conditions 1&9 of the insurance policy. The alleged accident was occurred on 6/12/2020 the matter was intimated to the OP only on 7/1/2021 ie, after the inordinate delay of 52 days. If the complainant had intimated the claim in time this OP would have got chance to verify the matter and the assess the damages in time. So the OP has not received any intimation of the accident and damage to the vehicle also. Since the complainant had not intimated the claim in time, there is violation of policy terms and conditions. So the OP had repudiated the claim letter dtd.2/4/2021. The receipt of the delayed intimation of the claim this OP had deputed the surveyor to assess the alleged damage caused to the vehicle. The surveyor after due inspection and verification of the damage of the vehicle and assessed the net liability. So the OP’s not committed any deficiency in service and unfair trade practice. Hence the complaint is liable to be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW1 and Exts. A1 to 12 were marked . On OP’s side DW1 was examined and Exs.B1to B5 marked.
Issue No.1:
The Complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as PW1 by the OP. The documents Exts.A1 to A12 were marked on his part to substantiate his evidence. In Ext.A1 is the copy of insurance policy, Ext.A2 is the lawyer noticedtd.10/5/2021, Ext.A3 is the postal receipt , Ext.A4 is the acknowledgment card, Ext.A5 is the copy of F.I.R issued by Quilandy police station, Ext.A6 is the Accident Register cum wound certificate, Ext.A7 is the insurance invoice, Ext.A8 is the repair bill, Exts.A9 to A12 are the discharge summary and prescription of the complainant issued by Aster Mims Hospital Calicut. According to the complainant, he is the policy holder of 1st OP . As per the policy No. 3361/01832853/000/00 to his motor bike for getting compensation for the damage sustained in the motor vehicle in case of accident. On 6/12/2020 at 10.p.m the complainant was met with an accident at Quilandy when he was travelling in his vehicle and he sustained serious injuries and heavy damages caused to the vehicle. Immediately the complainant has taken to Aster Mims Hospital, Calicut and admitted there as inpatient for 3 days. It is clearly stated in Exts.A6,A9 to A12 also. In the evidence of PW1 who stated that 7/12/2020 ന് phone വിളിച്ചാണ് company യെ അറിയിച്ചത്. വലതുകൈയ്ക്ക് പരിക്ക് ആയതിനാൽ എഴുതി കൊടുക്കാൻ പറ്റിയില്ല. 27/1/2021 നാണ് രേഖാമൂലം insurance company യെ അറിയിച്ചത്. As per Ext.A5 on 7/12/2020 itself the Quilandy police has registered the crime No.1258/20 under Section 279,338, IPC. Moreover, in the evidence of DW1 also stated that claim intimation re-direct ചെയ്തു വരാറില്ല. call centre നിങ്ങൾ direct insurance company തന്നെ നടത്തുന്നതാണോ? അതെ. പരാതിക്കാരൻ വിളിച്ചിട്ടില്ല എന്നതിന് നിങ്ങൾ വല്ല രേഖയും ഹാജരാക്കിയോ? ഇല്ല call centre ൽ വന്ന കാര്യം നിങ്ങളെ call centre ൽ നിന്നും അറിയിച്ചിട്ടില്ല എങ്കിൽ നിങ്ങൾ പരിശോധിച്ച രേഖയിൽ കാണില്ലല്ലോ? കാണണം എന്നില്ല. So it is clear that no violation of policy condition from the side of complainant. Since the OP is denied the claim. So there is deficiency of service on their part . On OP’s side 2nd OP vehemently stated that there is no deficiency of service on their part. They relied upon Exts.B1 to B5 documents to substantiate their defence.
On perusal of the pleadings, documents and evidence , we the commission hold that the complainant is the policy holder of the OP’s and the policy is in existing. Immediately the accident complainant was admitted in the hospital and he informed the OP through phone. On 27/1/2021 the complainant visited the OP’s office and given a written intimation regarding the damages sustained to his vehicle. Due to the accident the complainant is not in a position to appear before the OP’s office, in order to prove the period of bed rest prescribed by the doctor, he produced Exts.A6 and Exts.A9 to A12 documents before the commission. Moreover, the complainant produced Hon’ble Supreme Court decision “Om Prakash vs. Reliance General Insurance” in Civil Appeal No.15611/2017 “ delay in intimating insurance company would not disentitle the sanction of insurance claim” . The complainant also produced Exts.A5 document to prove the occurrence of accident to the vehicle, the FIR registered as 1258/2020 of Quilandy police station. So we are of the considered view that the Ops1&2 are jointly and severally liable to pay the actual loss to the vehicle assessed by DW1 as Rs.34,785.85/- to the complainant. But the OP’s failed to do so. So we hold that there is deficiency of service and unfair trade practice on the part of both OP’s. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue Nos.2&3:
As discussed above the complainant is the policy holder of 1st OP. On 6/12/2020 at 10.p.m he was travelling in his motor bike and met with an accident at Quilandy and the complainant sustained serious injuries and heavy damages was caused to the vehicle. The OP’s surveyor assess the actual loss of Rs.34,785.85/- to the vehicle. So we hold that the opposite parties are directly bound to redressal the grievance caused to the complainant. So the complainant is entitled to get the actual loss of the vehicle as per Ext.B5. So the complainant is entitled to get Rs.34,785.85/- from opposite parties 1&2 along with Rs.8000/- as compensation for mental agony of the complainant and Rs.3000/- as litigation cost. Thus the issue No.2&3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties 1&2 jointly and severally liable to pay the actual loss of vehicle Rs.34,785.85/- to the complainant along with Rs.8000/- as compensation for mental agony of the complainant and Rs.3000/-as litigation cost within 30 days of receipt of this order. In default the amount of Rs. 34,785.85/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- copy of insurance policy
A2-lawyer notice
A3-postal receipt
A4-Acknowledgment card
A5-FIR
A6-Accident register cum wound certificate
A7-insurance invoice
A8-Repair bill
A9- discharge summary
A10 to A12- Prescription.
B1- copy of insurance Policy
B2- Claim intimation dtd.27/1/21
B3- claim form
B4- Repudiation letter
B5- Survey report
PW1-Jamsheer.K- Complainant
DW1-Anish Varghese- OP-2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
