IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 22nd day of April, 2024
Present: Sri. Manulal V.S, President
Smt. Bindhu R. Member
C C No. 102/2018 (Filed on 02-06-2018)
Petitioner : Vishnu V. Nair,
S/o. Vijayakumar,
Kalloochalil, Poonjar P.O.
Pulikkappalam, Kottayam
Now residing at Gowrisankaram,
Chemmanampadi,
Gandhinagar P.O. Kottayam
(Adv. Jayakrishnan R. )
Vs.
Opposite parties : (1) National Insurance Co. Ltd.
1st Floor, Bathel Building,
Door No.XXI/352/20 and 21,
Ring Road, Aban Junction,
Pathanamthitta, Kerala
Pin – 689645
Rep. by its General Manager
(2) National Insurance Co. Ltd.
CSI Complex, Sastri Road,
Kottayam – 686001
Rep. by its General Manager.
(For Op1 and 2, Adv. C.J. Jomi)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 35 of Consumer Protection Act, 2019.
Case of the complainant is as follows.
The complainant is the owner of Kawasaki Ninja Motor bike bearing registration number KL-35-G-1141. He had purchased the same from Geo Automobiles, Pathanamthitta. The delivery of the said vehicle was on 10-12- 2015 and before delivery, the dealer of the vehicle had taken insurance for the same from the first opposite party. It was a comprehensive policy and the policy number was 57140231156260002289 and the same was valid from 10-12-2015 to 09-12- 2016. The IDV of the vehicle was Rs. 3,54,404/.
On 20-08-2016, by about 11.30 PM, the above said vehicle met with an accident at Manarcadu - Thiruvanchoor Road. The complainant was riding the motor bike at that time. The complainant had sustained severe injuries all over his body and the pillion rider died due to the injury caused to his head. Manarcadu police had registered a crime against the complainant under Sec 279 and 304 (A) of the Indian Penal Code as 892/2016. In the accident, the motor bike almost got fully damaged. The complainant had undergone several surgeries and was bed ridden for about six months. Within one month from the date of the accident, the
mother of the complainant had gone to the office of the 1st opposite party and intimated them about the accident. They informed the mother of the complainant
that as the accident was caused within the limits of Kottayam region and as the parties are residing in Kottayam District, the claim has to be processed from the office of the 2nd opposite party and they said that they will inform the same to them. They had also collected mobile number, address...etc from the mother of the complainant. By that time, the legal heirs of the pillion rider of the motor bike at the time of accident had filed a petition for compensation before the Hon’ble Motor Accidents Claims Tribunal Pala for compensation as O.P (M.V.) No.675/2016.
In the month of October 2016, the complainant got a letter from the Pala Branch of the opposite party dated 17-10-2016 requesting him to submit certain documents. On the basis of the same, the mother of the complainant had submitted all the documents available with her. She had enquired about the processing of the
claim and they informed that the same would be processed from the office of 2nd opposite party. Within few days, an officer of the opposite party came to the residence of the complainant and had made an enquiry. He said that he had came to know about the details of the accident...etc. The complainant enquired to him about the processing of the claim and he said that some other officers were in charge of the same and they would come to inspect the vehicle.
Even after one year of the same, nobody had contacted the complainant and hence he had gone to the office of the 2nd opposite party in the first quarter of the year 2018. One of the officials said that an estimate of repairing cost of the vehicle has to be obtained from the authorized service centre and the total estimate of the parts and labour for Rs.7,68,751/- was handed over by the complainant to the office of the 2nd opposite party in the month of March 2018. The official of the 2nd opposite party said that the claim could not be processed as no file in connection with the accident is found out in their office. As the estimate of repair comes above 70% of the IDV of the vehicle, it is one that has to be categorized as total loss. The vehicle was having a comprehensive policy at the time of the accident. The complainant had already intimated the opposite parties about the accident on time and they had filled up and handed over a form as per the instruction of the opposite parties. More over one of the official of the opposite party had come to the residence of the complainant and had made an enquiry. If any file is missing or document is not found out, it is solely due to the latches from the part of the opposite parties and the complainant is in no way liable for the same.
If the claim of the complainant was processed on time, he would get the IDV of the vehicle i.e., Rs.3,54,404/- within two or three months from the date of accident. The acts of the opposite parties’ amount to deficiency in service and unfair trade practice. They are trying to repudiate the claim somehow.
Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay to the complainant an amount of Rs. 3,54,404/- together with interest @ 15% from 20-08-2016 till realization after taking back the scrap of the vehicle bearing no: KL-35-G-1141and to direct the opposite parties to pay Rs.25,000 for the mental agony and the difficulties caused to the complainants and to direct the opposite parties to pay Rs.50,000 as compensation for deficiency of service and unfair trade practice from their part.
Opposite parties appeared before the commission and filed version contenting as follows:
The complaint is not maintainable either in law or on facts.
The averments in the first paragraph of the petition are admitted, but the opposite parties have no direct knowledge about the averments made in the 2nd and 3rd paragraphs of the petition. The averments in those paragraphs ‘that after the accident, the mother of the petitioner had gone to the office of the 1st opposite party and intimated about the accident and the first opposite party made her believe that the claim was under process at the office of second opposite party and they would inform about the claim progress etc’ are utter false and hence denied. It is true that opposite parties had received notice of case no. O.P (M.V) 675/2016 Of M.A.C.T, Pala which is in respect of third-party claim. Any claim for loss or for damage to the insured vehicle is subject to conditions of the policy- Condition no. 1 of the policy requires that upon occurrence of any accidental loss on damage, notice in writing shall be given immediately to the company. The complainant has failed to give any written information to the company. The insured is required to furnish a detailed estimate showing the cost of repairs. Based on the estimate the insurer has to appoint an independent surveyor approved by the I.R.D A to survey the vehicle insured to assess the damages. Neither the complainant nor representative has not filed any claim regarding the own damages of the alleged vehicle.
As per the terms and conditions of policy insured shall give every assistance to the company to see that the repair is necessary and the damages are reasonable. The complainant has neither given a written intimation nor submitted any estimate for verification of the damages of any by a surveyor.
Since the insured has not filed a claim form till date, the question of processing of a claim and payment of insurance amount etc are not arising at all. As no claim form is submitted till date, the complaint is liable to be dismissed for want of cause of action.
Third party claim was filed before M.A.C.T, Pala. Documents were called for from Pala branch Office of the company in connection with the third party only. No officer of the company has gone to the residence of the complainant.
The opposite party cannot process an own damage claim without claim form submitted by the insured as stated above. The averment that the complainant had
approached the office of the second opposite party with estimate from authorized service centre is not true. Moreover the total cost shown in the estimate is two times higher than the value of a brand-new vehicle of such type.
The opposite party has not repudiated or about to repudiate the claim of the petitioner since no claim has been lodged for damages to the vehicle insured yet. If a claim form would be filed later in respect of the alleged damage, the opposite party will consider the claim form in accordance with the insurance rules and regulations. Since the petitioner has not filed any claim so far, the petitioner is not entitled to get any amount of compensation from the opposite parties or entitled to
get any of the relief claimed.
Complainant is examined as PW1 and exhibits A1 to A 11 were marked from the side of the complainant. Ajith Shastri who is the Assistant Manager of the second opposite party filed a proof affidavit in lieu of chief examination and marked Exhibit B1 from the side of the opposite party. Report of the expert commission is marked as Exhibit C1.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether the complainant had succeeded to prove deficiency in service on the part of the opposite parties?
- If so what are the reliefs and cost?
Point Nos.1 and 2 together
There is no dispute Kawasaki Ninja Motor Bike bearing registration number KL-35-G-1141 of the complainant is insured with first opposite party vide policy No. 57140231156260002289 for the period from 10-12- 2015 to 09-12- 2016. On perusal of Exhibit A2 policy schedule we can see that the IDV of the vehicle was Rs.3,54,404/. It is proved by Exhibit A5 first information report and exhibit A6 final report filed by the authorities of Manarcadu police station before the Grama Nyayaalaya Pampady and Pallikathodu that the vehicle of the complainant while the same was ridden by the complainant met with an accident at 11:30 pm on
20-8- 2016 at Manarkadu- Thiruvanchur Road. It is further proved by Exhibit A6 that one Mr. Binu who is the pillion rider of the injury caused to his head. Exhibit A6 proves that the police authorities had registered a case against the complainant under section 279 and 304(A) of the Indian Penal Code.
The complainant alleges that despite his mother notified the opposite parties of the accident and providing them with the necessary documents, and the complainant following the second opposite party’s instructions submitted an estimate in 2018, the opposite parties have yet to process the claim as of the present date.
The complaint was resisted by the opposite parties contending that complainant has not filed a claim form till the date to process the damage caused to the vehicle of the complainant in the alleged accident. According to the opposite parties a third-party claim was filed before the Motor Accident Claims Tribunal, Pala as case number OP( MV )675 / 2016. On receipt of the notice from MACT Pala the opposite parties called for the documents from the complainant vide exhibits A10 notice. On going through the exhibit A10 notice we can see that the same was issued by the branch office of the Pala branch office of the opposite parties calling upon the complainant to produce the necessary documents and other relevant records of the vehicle and to inform the name and full address of the division office or branch office with which the vehicle of the complainant was insured on the date of the accident. It is evident from the exhibit A10 that the said notice was not in connection with any claim application lodged by the complainant for the damage for indemnification of the damage caused to the vehicle in the accident.
In order to adjudicate the dispute in this case, it is necessary to extract Condition No. 1 of the policy, which reads as follows:
“l. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage and in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall
have knowledge of any impending prosecution inquest or Fatal Inquiry in respect of any occurrence which may give rise to a claim under this policy, in case of theft or criminal act which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and cooperate with the Company, in securing the conviction of the offender.
A careful perusal of Condition No.1 shows that notice is to be given in writing to the Insurance Company immediately upon occurrence of any accidental loss or damage. The later part of the clause says that in case of theft or criminal act, which may be subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the Insurance Company in securing the conviction of the offender. Though the complainant argued that the claim intimation was given by his mother immediately after the accident and the complainant had submitted detailed estimate with the opposite parties in the year 2018, he did not adduce any evidence to prove the same. He even not deposed before this Commission the date on which the intimation has been given by his mother to the opposite parties or the date on which the detailed estimate has been given by him to the opposite parties.
In the absence of evidence to prove the same we cannot accept the contention of the complainant that the opposite parties did not process his claim as per the law. It is pertinent to note that the claim for third party property damaged or injury is different from the claim for a damage caused to the vehicle in the accident. In the absence of any claim intimation or claim form with respect to the accident and damages the insurer could not process the claim for the damage caused to the insured vehicle in the accident.
Without filing a claim application the question of deficiency in service in processing the claim and payment of insured amount would not arise at all.
In SGS India Ltd v. Dolphin International Ltd. Has held that “The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant”.
Based on the above discussions we are of the opinion that the complainant is failed to prove any unfair trade practice or deficiency on the part of the opposite parties . In the result the complaint is dismissed.
Pronounced in the Open Commission on this the 22nd day of April, 2024
Sri. Manulal V.S, President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Swrons statement from the side of complainant
Pw1 – Vishnu V. Nair
Exhibits marked From the side of complainant
A1 – Copy of registration certificate (KL-35-G-1141)
A2 – Copy of motor insurance E-Motorcycle/scooter package policy schedule
A3 – Photograph of motor bike
A4 – Malayala manorama dtd.22-08-2016
A5- Copy of FIR 0892/16
A6 -Copy of final report dtd.21-08-16
A7- Copy of mahazar dtd.25-08-16 prepared by C.M. Manikuttan, Addl. Sub.
Inspector
A8 – Copy of report of inspection of motor vehicle involved in an accident crime No.892/16
A9- Discharge summary in the name of Vishnu V. Nair by Matha Hospital
A10-Copy of letter dtd.17-10-2010 National Insurance Co. Ltd., Pala branch to complainant
A11- Estimate details dtd.17-03-18 by Kawasaki
Exhibits marked from the side of opposite party
B1 – Certificate of insurance cum policy schedule by opposite party
Commission Report
C1 – Commission report prepared by S. Girish Babu DME
By Order
Sd/-
Assistant Registrar
