THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 244/2009

Dated this the 15^th day of June  2016

(Smt. Rose Jose, B.Sc, LLB.                      :  President)

                                                                    Smt.Beena Joseph, M.A                            : Member

                                                                   Sri. Joseph Mathew, MA, LLB                  : Member

ORDER

Present:  Rose Jose, President:

            This petition is filed under Section 12 of Consumer Protection Act, 1986.

            Petitioner is the registered owner of a Maruti Swift Dzire car bearing Reg. No. KL59/A-5332 which was purchased from 1^st opposite party. At the time of purchase, as per the advice of the 1^st opposite party, the vehicle was insured with the 4^th opposite party and a Certificate cum Policy Schedule with policy summary was issued to him signed by the 1^st opposite party on behalf of the 4^th opposite party, having  Policy No. 4734089 dated 21/10/2008.

            Petitioner’s case is that, the said car met with a road accident on 06/01/2009 at Kasaragod District. The car hit against a compound wall and sustained extensive damages. As nobody sustained any injury, the matter was settled between him and the owner of the compound wall and an agreement was executed to that effect. Since nobody sustained any injuries, no crime was registered by the Police and the vehicle was taken to the 2^nd opposite party’s service station and the incident was reported to the office of the Insurance Company over telephone and claim form was submitted to the 2^nd opposite party. But they didn’t repair the vehicle. Thereupon on 16/02/2009 the petitioner send a registered notice to all the opposite parties to settle the claim and to get the vehicle repaired. On 19/02/2009 he got a reply from the 2^nd opposite party stating that they have not received work approval from the 4^th opposite party. He got another letter from the Kannur Divisional Office of the 4^th opposite party dated 19/02/2009 stating that they are in receipt of an undated claim and stating that the said claim is not tenable. The reason stated in that letter for repudiation is that the said vehicle has been given on rent to a 3^rd party by the petitioner.

            The petitioner alleged that the claim form was submitted to the 2^nd opposite party as the agent of the 4^th opposite party. But they have not taken any steps to appoint a Loss Assessor in this regard. He is using the vehicle for his personal use. As the vehicle was not repaired by the 2^nd opposite party even after two months, he was compelled to take it from there after paying a nominal repair charges of Rs.4,963/-. As the policy was valid at the time of accident and he has not violated the policy conditions, the 4^th opposite party is liable to indemnify the insured and to make good the loss sustained by the petitioner. But the reluctance of the 4^th opposite party to settle the claim is deficiency in service on their side. The 1^st opposite party had issued the policy on behalf of the 3^rd and 4^th opposite parties and 2^nd opposite party, the authorized dealer and service centre of the 3^rd opposite party are also liable for the delay if any occurred in reporting the incident as well as in submitting the claim form to the 4^th opposite party.

            Due to the irresponsible attitude and deficiency of service from the part of the opposite parties, he had faced much difficulties, mental pain and financial loss. Hence opposite parties are jointly and severally liable to compensate and he filed this petition to direct the 4^th opposite party to settle the expenses incurred by him in the accident and to pay him Rs.2,00,000/- as compensation for his sufferings and also cost of the proceedings.

            On receiving notice from the Forum, all opposite parties entered appearance and filed their version. The 1^st opposite party denied the statement of the petitioner that they have insisted him to insure the vehicle with the 4^th opposite party and they are unaware of the accident or the entrustment of the vehicle to the 2^nd opposite party for repair. More over they have no control over the 4^th opposite party and it is absolutely in the discretion of the 4^th opposite party whether to allow or repudiate the claim and there is no deficiency in service on their side and they are unnecessary party to this petition and prayed to dismiss the same against them with cost.

            The 2^nd opposite party admitted the entrustment of the vehicle to them but they denied the allegation that the petitioner had reported the incident to the office of the Insurance Company over telephone and the allegation that the claim form was submitted to the dealer of 3^rd opposite party who is the agent of the 4^th opposite party as false. They have not received any work approval from the 4^th opposite party and so the petitioner has to pay the charges for the repair works if it done by them and it was told the petitioner and he requested to return the vehicle unrepaired due to his inability to pay the estimated amount. They carried out some minor repairs and collected only Rs.4,963/- towards that and other allegations of the petitioner was denied and there is no deficiency in service on their side and prayed to dismiss the petition with cost to them.

            The 3^rd opposite party admitted that they are the corporate agent of the 4^th opposite party, stated that the insurance premiums goes to the Insurance Company and not to them. The only benefit to the insured who avails insurance through them is the facility of nationwide cashless claims, post accidental repairs  at authorized dealer workshops using Maruti genuine parts, dealer towing facility of accidental vehicle etc. The relationship between them and the 1^st and 2^nd opposite parties is that of  the Principal to Principal basis governed by dealership agreement. They have no privity of contact between the customers of the 1^st and 2^nd opposite party. It is contended that the accident is due to the negligence of the petitioner and hence he lost his warranty entitlement and as per Clause 4(c) of the warranty policy “warranty is not applicable to any defects caused by misuse, negligence, abnormal use or insufficient care”. Since the repairs or replacement are not covered under warranty, the petitioner has to get the vehicle repaired under insurance or on paid basis. All other allegations of the petitioner were denied by them and there is no deficiency in service hence prayed to dismiss the petition with cost.

            The 4^th opposite party filed version contending that this petition is not maintainable before this Forum as the petitioner is residing at Kannur District and the alleged cause of action was arised at Kasaragod District and the Forum has no territorial jurisdiction to entertain or decide this petition on merits. It is stated that if any vehicle met with an accident, definitely concerned Police will register a crime and prepare FIR, FI Statement, scene mahazar and body mahazar and entered in the G.D. and also the MVI will inspect the vehicle and submit report regarding the damages. In the absence of any such documents the averments of the petitioner with regard to the accident and its amicable settlement is not believable or acceptable. The petitioner has not intimated the accident immediately to their office. As per the terms and conditions of the policy “when any accident had been taken place the vehicle shall not be removed from the spot of incident without intimating the incident to the insurer and an opportunity must have been given to the insurer to conduct spot survey and investigation with respect to the accident as well as damages caused to the vehicle”. Here the accident happened on 06/01/2009 at 10.30 p.m. but it was reported only on 13/01/2009 at their Kannur office and after getting claim form, a Surveyor was appointed and the report of Surveyor revealed that the vehicle was used by another one Mr. Mujeeb on rental basis. It is clear violation of the policy conditions.

            They further submitted that they have not received any information regarding the repair works and also have not get any chance to appoint a Loss Assessor to inspect the vehicle and its damages and to calculate estimated cost for its repair works. The petitioner had willfully violated the policy conditions and so they are not liable to indemnify the petitioner and rightly repudiated the claim. The notice issued by the petitioner dated 16/02/2009 was duly replied and they are not liable to pay any additional expenses or any amount towards compensation to the petitioner. There is no deficiency in service and prayed to dismiss the petition with cost.

The matters to be decided are:

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Reliefs and cost?

Evidence consists of the affidavit filed by the petitioner. Ext. A1 to A17, B1 to B3 and deposition of PW1 and PW2.

Point No. 1:  The opposite parties have a specific case that this petition is not maintainable before this Forum. In this regard the 4^th opposite party filed I.A.87/2011 challenging the maintainability. After hearing all the parties this Forum dismissed the I.A. finding that this petition is maintainable due to the reasons stated vide its order dated 27/09/2011.

The 4^th opposite party, the Insurer of the vehicle who has to indemnify the loss of the petitioner in the alleged accident has a specific contention that the petitioner has not informed about the incident immediately to their office so that they lost their chance to conduct spot survey and investigation with regard to the accident and thus lost their chance to assess the exact damages, the correct amount needed for the repair works etc. According to them the estimate prepared by the 2^nd opposite party for Rs.3,80,125/- was not acceptable to them. Moreover it is contended that as per their investigation report at the time of accident the vehicle was given for rent and the same was with one Mr. Mujeeb. Though the petitioner had denied the said contention and stated that his brother P.P. Faisal was driving the car at that time, no evidence such as FI statement, FIR or GD entry is there to prove the same. No MVI report to prove the exact damages sustained or independent survey report regarding the exact loss.

            The petitioner has stated that he had taken the vehicle to the 2^nd opposite party and gave claim form to them and informed the accident to the 4^th opposite party’s Delhi office. But this was denied by the 2^nd opposite party. No evidence was adduced by the petitioner to prove his said statement. So also in his petition it is stated that as there was no injury to anybody the matter has been amicably settled between him and the owner of the compound wall as per an agreement. But this agreement was also not produced by him before this Forum to prove that his statement regarding accident was true and correct.

            In his deposition it is stated by the petitioner that the accident was occurred at 10.30 p.m. and he had removed the vehicle to the 2^nd opposite party’s service station at morning 5 a.m. It supports the arguments of the 4^th opposite party that they have not get chance to conduct spot investigation as per the terms and conditions of the policy. Hence by his own act the petitioner himself had denied the chance of the 4^th opposite party to get a clear picture of the accident which is very essential for taking a decision whether to allow or dismiss the claim. So even if a delay is on the part of the 2^nd opposite party in forwarding the claim form to the insurance company allegedly given to them by the petitioner, as the real cause for denial of the claim is not because of the alleged that negligence of them, it is excusable.

            Considering all the facts stated, it is found that the fault is with the petitioner in not giving chance to the insurer to investigate and assess by spot survey. We cannot blame them or find any deficiency in service on their side in their decision not to indemnify the loss of the petitioner as per the policy conditions. So there is no need to consider the other matters. Point No. 2 found against the petitioner.

Point No. 2: In view of the finding in Point No. 1, this petition is liable to be dismissed and the petitioner is not entitled for the reliefs prayed for in the petition.

            In the result, the petition is dismissed without cost.   

Dated this the 15^th day of June, 2016

Date of filing: 10/06/2009

SD/-MEMBER                             SD/-  PRESIDENT                      SD/- MEMBER

   APPENDIX

Documents exhibited for the complainant:

A1. Copy of  invoice dated 21/10/2008

A2. Copy of R.C. Book, Reg. No. KL59-A5332

A3. Copy of Certificate cum Policy schedule

A4. Copy of Policy summary

A5. Copy of letter received from opposite party No. 4

A6. Copy of letter sent to the opposite party No. 4

A7. Copy of lawyer notice sent to 2^nd opposite party

A8. Copy of reply received from 2^nd opposite party

A9. Copy of lawyer notice sent to 1^st opposite party

A10. Copy of lawyer notice sent to 3^rd opposite party

A11. Copy of lawyer notice sent to 4^th  opposite party

A12. Copy of e-mail sent to opposite party and reply

A13. Copy of lawyer notice sent to 2^nd  opposite party

A14. Copy of reply received from 2^nd opposite party

A15. Copy of estimate of repairs 2^nd opposite party

A16. Copy of bill issued 2^nd opposite party

A17. Sale agreement of vehicle

Documents exhibited for the opposite party:

B1. Copy of motor claim intimation form received from the complainant

B2. Copy of letter of indemnity

B3. Registration details of the vehicle

Witness examined for the complainant:

PW1. Sameer P.P. (Complainant)

PW2. Abdul Saheer V.T., Vadakkethadathil House, Rahiman Bazar, Kuthukallungal,

          P.O. Kolathara

Witness examined for the opposite party:

None                                                                                                             

Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT