IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 09thday of May, 2023.
Filed on 16.12.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A., LLB (Member)
CC/No.315/2022
between
Complainant:- Opposite party:-
Sri.Shaji Rasheed Oriental Insurance Co.Ltd.
Kottolil, Valiyakuzhi Muriyil Branch Office, Nangyarkulangara
Cheppad Village Harippad,
Karthikappally Taluk Alappuzha
(Adv.M.Rajendra Gopinath) (Adv.C.Muraleedharan)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Material averments briefly stated are as follows:-
Complainant is the registered owner of Renault Duster diesel car bearing registration No.KL 29 R 5401. It was insured with the opposite party M/s Oriental Insurance Co.Ltd. for a period of one year from 17.01.22 to 16.01.23. The policy was issued after inspecting the vehicle by the agent of the opposite party and the policy came into force on 17.01.2022. On 12.02.2022 when the vehicle was taking out from the car porch the driver lost control and hit on a concrete mixer and thereafter hit on a vegetable shop near the road side. Complainant who was driving the vehicle is a diabetic patient and he could not control the vehicle. Due to the accident the front portion of the vehicle got damaged and it was duly informed to the opposite party. Surveyor appointed by the opposite party inspected the vehicle and assessed the damage. With the permission of the opposite party the vehicle was entrusted for repair at the authorised workshop at Alappuzha. The works were completed with the approval of the opposite party. However opposite party is not paying the bill amount on lame excuses.
2. Complainant was admitted at Sree Chitra medical centre, Thiruvananthapuram and a pacemaker was installed. Complainant received intimation from the workshop and an amount of Rs.3,04,000/- is to be paid for the works done. Though complainant approached the opposite party they are not ready to pay the amount. Hence the complaint is filed for realizing an amount of Rs.3,04,000/- along with Rs.1 lakh as compensation.
3. Opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable either in law or on facts. There is absolutely no deficiency in service on the part of opposite party. The claim of the complainant was duly entertained, surveyor was appointed for assessing the damage and investigator was appointed for ascertaining the genuineness of the claim. It was found that the claim is frivolous and no such accident occurred on 12.02.2022 but it was on 13.01.2022 prior to the policy period. Hence the claim was repudiated and so the complaint is to be dismissed in limine.
4. Opposite party issued a stand alone own damage policy to vehicle No.KL 29 R 5401 in the name of complainant for the period from 17.01.2022 to 16.01.2023. Complainant submitted a claim form on 17.02.2022 that the above car was damaged by an accident on 12.02.2022 by hitting on a concrete mixer machine which was placed in the courtyard. Surveyor was appointed for assessing the damage. Since there was no police report, investigator was appointed for investigating the matter. After investigation and collecting records and statement of witnesses it was found that it was a bogues claim suppressing material facts.
5. The accident to the vehicle occurred on 13.01.2022 while the complainant was trying to park the vehicle on reverse motion in the car porch. He took forward the vehicle and then lost control and hit on a temporary vegetable pan shop and damaged the shop. The shop was run by Aravindan and his wife Anupama. The insured kept the vehicle idle in the courtyard and took policy from the opposite party on 17.01.2022 suppressing all the facts and made a claim on 17.02.2022. Complainant made an application for GD on 27.05.2022 that the vehicle hit on vegetable shop on 12.02.2022. The GD entry stated that it was on 27.05.2022. After investigation it is intimated to police and they corrected the GD as 13.01.2022. Complainant also paid an amount of Rs.25,000/- to the shop owners for their loss. It is very pertinent to note that complainant purposefully avoided 3rd party loss in the claim form. Since there was no policy on 13.01.2022 the claim is not maintainable and it was repudiated. The complaint is filed with ulterior motives to get unjustifiable claim for unlawful enrichment.
6. Opposite party has filed a police case before the Kareelakulangara police station against the complainant and the insurance agent who managed to issue the policy. Complainant is not entitled to get any reliefs and hence the complaint may be dismissed with compensatory cost.
7. On the above pleadings following points were raised for consideration:-
- Whether the date of accident is on 12.02.2022 as claimed by the complainant or on 13.01.2022 as claimed by the opposite party?
- Whether at the time of accident the vehicle had a valid insurance policy ?
- Whether the policy was obtained suppressing material facts as alleged in the version ?
- Whether there is any deficiency of service from the part of opposite party as alleged?
- Whether the complainant is entitled to realise an amount of Rs.3,04,000/- being the amount spent for repairing the vehicle as claimed ?
- Whether the complainant is entitled to realise an amount of Rs.1,00,000/- as compensation from the opposite party as prayed for ?
- Reliefs and costs?
8. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A4 from the side of the complainant and the oral evidence of RW1 and RW2 and Ext.B1 to B16 from the side of the opposite party.
9. Point No.1 to 6
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4. During cross examination Ext.B1 to B4 were marked.
10. RW1 is the Senior Manager of the opposite party. He filed an affidavit in tune with the version and marked Ext.B5 to B16 (B12 and B13 subject to proof).
11. RW2 was appointed as investigator by the opposite party. Accordingly he conducted investigation and prepared Ext.B11 report. The accident occurred on 13.01.2022 at 2.45 PM and 3rd party damage also occurred in the accident. He obtained Ext.B12 affidavit from the 3rd party regarding the damage. He took Ext.B13 statement from the 3rd party. Ext.B11 report was prepared correctly after conducting investigation.
PW1, the complainant is the registered owner of Renault Dustur car bearing Reg. No. KL.29-R-5401. He had insured the vehicle with the opposite party M/s Oriental Insurance Co. Ltd for a period of one year from 17/1/2022 to 16/1/2023 by paying an amount of Rs. 16,662/- as premia with an IDV of Rs. 7,50,000/-. Ext.A3( Ext.B5) is the copy of policy issued by the opposite party. While so on 12/2/2022 while PW1 was trying to take out the vehicle from the car porch he lost control and hit on a concrete mixer and thereafter rammed over a vegetable shop on the opposite side of the road. The vehicle was produced before the authorized workshop at Alappuzha and the matter was intimated to the opposite party and a claim petition was filed. Surveyor appointed by the opposite party inspected the vehicle and gave consent for repairs. According to PW1 the authorized work shop issued a bill for Rs. 3,04,000/-. When the complainant demanded the bill amount opposite party refused to honour the same on lame excuses and hence the complaint is filed for realizing the bill amount of Rs.3,04,000/- along with compensation of Rs. 1 lakh. Opposite party filed a version admitting the policy. However according to them the accident occurred on 13/1/2022 ie, prior to the issuance of the policy. Suppressing the accident complainant managed to avail the policy through their agent. When they received the claim petition they appointed an investigator and from his enquiry it was revealed that the policy was availed suppressing the accident which occurred on a prior date. According to them the policy was obtained fraudulently and so they have no liability to honor the claim and hence it was repudiated. Complainant got examined as PW1 and marked Ext.A1 to A4. During his cross examination Ext.B1 to B4 were marked. The Senior Branch Manager of the opposite party was examined as RW1 and marked Ext.B5 to B16. The investigator appointed by the opposite party was examined as RW2. Relying upon the oral evidence of PW1 coupled with Ext.A1 to A4 documents the learned counsel appearing for the complainant contented that the date of accident ie, on 13/1/2022 there was a valid policy issued by the opposite party ie, from 17/1/2022 to 16/1/2023. Since there was no casualty PW1 obtained a GD entry which was produced to prove the date of accident. A surveyor was duly appointed by the opposite party and with his consent the vehicle was produced before the authorized workshop for repairs. The bill amounts to Rs. 3,04,000/- and opposite party is liable to pay the amount since the damage occurred during the pendency of the policy. Due to the act of repudiation of a genuine claim complainant sustained mental agony and he is entitled for an amount of Rs. 1 lakh as compensation. Per contra the learned counsel appearing for opposite party contended that the previous policy was only upto 12/11/2020 and there was a breakage of policy. The current policy from the opposite party was availed on 17/1/2022 with the connivance of an agent suppressing the date of an accident. RW2 who was appointed as investigator conducted an investigation and filed Ext.B11 report which shows that the accident occurred on 13/1/2022 ie, prior to the issuance of the policy. It was also pointed out that except the interested testimony of PW1 no evidence is available to prove the date. Even Ext.A1 GD entry produced by PW1 shows that the date of accident is on 27/5/2022. Hence it was contended that the policy was obtained fraudulently suppressing the accident and so it was rightly disallowed by the opposite party. Hence the complaint is only to be dismissed.
12. The fact that PW1 insured the vehicle for a period of one year from 17/1/2022 to 16/1/2023 with the opposite party is not in dispute. Ext.A3 (Ext.B5) is the copy of policy issued by the opposite party. From Ext.A3 it is revealed that the previous policy was availed from M/s Reliance insurance and it is from 13/11/2019 to 12/11/2022. Insurance companies used to issue bundled policy for a period of 3 years for covering 3rd party damage. However for covering OD every year the insurance is to be renewed. From Ext.A3 it is gathered that PW1 had availed a bundled policy for 3 years ie, upto 12/11/2022. However the OD policy was only for a period of one year ie, from 13/11/2019 to 12/11/2020. The present policy is renewed only on 17/01/2022 So it can be seen that there is a break for the policy. From Ext.A3 it is revealed that the policy was availed through an agent by name Sri. Abdul Salam of the opposite party. PW1 alleges that the date of accident is on 12/2/2022 whereas according to opposite party it was on 13/1/2022. If the accident occurred on 13/1/2022 since the policy was availed on 17/1/2022 PW1 is not entitled for compensation. So the moot question to be considered is whether the accident occurred on 12/2/2022 as alleged by the complainant or on 13/1/2022 as alleged by the opposite party. As rightly pointed out by the learned counsel appearing for the opposite party except the interested testimony of PW1 no evidence is available to prove that the accident occurred on 12/2/2022. PW1 has produced Ext.A1 copy of GD to prove the date of accident. However on a perusal of Ext.A1 it is seen that the accident occurred on 27/5/2022 at 4.00 PM. Ext.A1 was marked subject to proof and no attempt was made by the learned counsel appearing for the complainant to prove the same by examining the person who issued Ext.A1. Ext.B7 is the application form filed by Pw1 for getting General Dairy copy. It was submitted on 27/5/2022. Though in Ext.B7 it is mentioned that the accident occurred on 12/2/2022, Ext.A1 (Ext.B8) was issued stating that on enquiry it was revealed that the accident occurred on 27/5/022. As stated earlier opposite party appointed RW2 investigator to investigate the case and Ext.B11 is the investigation report. RW2 filed an application under the RT Act to get copy of General Dairy. Ext.B16 is the copy of reply furnished by the SHO, Kareelakulangara Police station on 21/10/2022. Ext.B16 reveals that the date of accident is on 13/1/2022 and by mistake it is shown in the GD as 12/2/2022. Besides that during the time of investigation RW2 had recorded the statement of one Smt. Anupama and her husband Sri. Aravindan whose shop was damaged during the accident. Ext.B13 statement of Smt. Anupama and Sri. Aravindan shows that the date of accident is on 13/1/2022. Ext. B12 is an affidavit filed by Sri. Aravindan and Smt. Anupama before the opposite party which also shows that the date of accident is on 13/1/2022 and they received an amount of Rs. 25,000/- as compensation, since their shop and vegetables were damaged. It is true that Ext.B12 and B13 were marked subject to proof since Sri. Aravindan and Smt. Anupama were not examined as a witness. However Ext.B12 is an affidavit filed before the opposite party and so it can be considered for corroboration. Similarly Ext.B13 is a statement given by Sri. Aravindan and Smt. Anupama before RW2 and it can also be considered to corroborate the other evidence.
13. The case advanced by the opposite party is that the vehicle was produced before M/s TV Sundaram Iyengar and Ors Pvt. Ltd Punnapra who is the authorized service centre of M/s Renault. Ext.B2 is the bill dtd. 13/1/2022 issue after service.. Ext.B2 is seen generated on 13/1/2022 at 14:00 :19. The odometer reading on 13/1/2022 is 3803. Ext.B3 is another tax invoice dtd. 13/1/2022 in which also the odometer reading is 3803 kms. Ext.B6 is the motor claim form submitted by PW1 on 17/2/2022 before the opposite party. As pointed out by the learned counsel appearing for the opposite party the accident is narrated by “hit on a concrete mixer”. Hitting on the vegetable shop and causing damage is suppressed in the claim form. In Ext.B6, (5) is the colum to show the details of accident. The question mentioned in 5.C is “speed of your vehicle at the time of accident” The answer given by PW1 is 3839 which is obviously the odometer reading. Ext.B6 claim form is seen signed by PW1 and it is submitted before the opposite party. In Ext.B11 report the odometer reading noted when the vehicle entered the workshop after accident is as 3839. As stated earlier from Ext.B2 and B3 tax invoice issued by the authorized workshop on 13/1/2022 at the time of releasing the vehicle the odometer reading was 3803 kms. From Ext.B6 claim form it can be seen that the odometer reading on the date of accident is 3839 kms. According to PW1 the accident occurred on 12/2/2022. Since the odometer reading on the date of accident is 3839 it can be seen that the vehicle had only run 36 kms from 13/1/2022.(Ext.B2 and B3) to 12/2/2022 (date of accident.). The authorized workshop is at Punnapra, Alappuzha and Pw1 is residing at Cheppad in Karthikapally Taluk. The distance from the authorized workshop to the residence of the complainant is approximately 36 kms. So it can be seen that the vehicle met with the accident on 13/1/2022 when PW1 was taking the same to his residence after the service. From Ext.B11 investigation report it is seen that RW2 had attached crane bill dtd. 14/2/2022 along with his report. So it can be seen that after the accident the vehicle was produced before the authorized workshop using the crane since the vehicle was not in a running condition. It is very difficult to believe that the vehicle had run only 36 kms from 13/1/2022 (Ext.B2 and B3) till the date of accident ie, on 12/2/2022. The contention that the vehicle was lying idle for a period of one month ie, from 13/1/2022 to 12/2/2022 cannot be swallowed without a pinch of salt. On the other hand the contention of opposite party that after the accident on 13.01.2022, the vehicle was kept idle is more Probable.
14. Though PW1 is claiming an amount of Rs. 3,04,000/- on account of repairs he has not produced even a scrap of paper to prove the amount. It appears that the bill was suppressed because if it is produced the odometer reading will be revealed from the same. However fortunately in Ext. B6 claim form submitted by PW1 before the opposite party the odometer reading is shown as 3839. In Ext.B11 report also the odometer reading is shown as 3839 when the damaged vehicle entered the workshop. So on assessing the evidence as a whole and in the light of the above discussion it can be safely concluded that the date of accident is on 13/1/2022 as contended by opposite party and not on 12/2/2022 as claimed by the complainant. It is gathered that after the accident on 13/1/2022 complainant managed to obtain a policy on 17/1/2022 thought the agent of the opposite party by suppressing the accident. Ext.B14 is a copy of complaint filed before the SHO, Kareelakulangara police station against PW1 and Sri. Abdul Salam who is the agent of opposite party who issued the policy alleging offences punishable u/s 120.B, 168, 471 of the IPC and it is pending. As held by the Hon’ble Supreme Court in The Chairman & Managing Director, City Union Bank Ltd & Anr. Vs. R. Chandramohan ( Civil Appeal No. 7289 of 2009 dtd. 27/3/2023)
“The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminally like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts of tortious acts. There could not be any presumption with regard to the willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1) (g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.”
15. Hence assessing the evidence as a whole and applying the principles laid down by the Hon’ble Supreme Court in the dictum referred above it can be safely concluded that complainant has failed to prove the case as alleged and on the other hand opposite party has proved by convincing evidence that the policy was obtained after the date of accident and suppressing it. In said circumstances complainant is not entitled for a favourable order and so these points are found against him.
16. Point No. 7
In the result, complaint is dismissed with cost of Rs. 5000/- to the opposite party.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 8th day of May, 2023.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt. C. K. Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Shaji Rasheed (Complainant)
Ext.A1 - General diary abstract
Ext.A2 - Copy of RC book
Ext.A3 - Copy of motor insurance certificate cum policy schedule
Ext.A4 - Copy of driving license
Evidence of the opposite parties:
RW1 - Sri.Vimal R (Witness)
RW2 - Sri.P.M Bhaskaran Pillai (Witness)
Ext.B1 - Vehicle gate pass of TVS
Ext.B2 - Invoice of TVS
Ext.B3 - Invoice of TVS dtd.13.01.2022
Ext.B4 - Letter dtd.07.11.2022
Ext.B5 - Copy of policy
Ext.B6 - Claim form
Ext.B7 - Application for GD entry
Ext.B8 - Copy of GD entry
Ext.B9 - Letter of investigator to DM dtd.25.10.2022
Ext.B10 - Letter dtd.30.09.2022
Ext.B11 - Investigation report
Ext.B12 - Affidavit of Aravindan and Anupama
Ext.B13 - Statement of Smt.Anupama
Ext.B14 - Copy of complaint filed before Police station, Kareelakulangara
Ext.B15 - Receipt dtd.16.02.2023
Ext.B16 - Reply of RTI
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
