By Sri. A.S.  Subhagan,  Member:

          This is a complaint preferred under section 12 of the Consumer Protection Act 1986.

          2. Fact of the case in brief:-  The Complainant had insured a vehicle with   registration No.TN 43 Y 0618  with the  1^st  Opposite Party,  which had met with an accident on 29.07.2017,  well  within the policy period.  In the accident, the vehicle was damaged and repaired  for Rs.1,15,000/-  which was claimed  properly by submitting claim application to the  1^st  Opposite Party by the Complainant.  Even after a long period  of submitting the claim application,  as the claim was not settled,  the Complainant approached  the 1^st  Opposite Party who told that the claim application had been forwarded to the 2^nd  Opposite Party for settlement.  Then, the Complainant when  approached the  2^nd  Opposite Party who told that the concerned  file was dealt  with by  the  4^th  Opposite party.  The  4^th  Opposite Party  willfully  without settling the claim and after making a long delay,  on 31.01.2018,  forwarded a letter promising the Complainant that speedy disposal should be done without further delay.  Things  being  so,  on 13.03.2018,  the 4^th  Opposite Party forwarded a registered notice to the Complainant stating that the Complainant had made an unauthorized material alteration to the vehicle and as such the claim of the Complaint was not to be considered and therefore, not able to give full claim but only Rs.42,001/-  could be given on a compromised  basis etc.  The contents of the registered notice are denied by the Complainant.  According to the Complainant,  he had not  made any  unauthorized alteration to the vehicle,  the contention of the Opposite Parties that  the Complainant had used oversized tyres  to the vehicle is false etc.  Without settling the claim of the Complainant, even after a long period and arbitrarily fixing and offering a partial claim to the Complainant is deficiency in service/ unfair trade practice from the part of the Opposite Parties and  hence this complaint with the following prayers.

1.  To direct  the Opposite Parties to pay Rs.1,15,000/-  being the insurance claim  amount due to the Complainant.
2. To direct the Opposite Parties to  pay Rs.1,00,000/-  towards  compensation for deficiency in service/unfair trade practice,  loss of time,  unnecessary expenses,  mental agony etc and
3. To direct the Opposite parties to pay cost of this Complainant.

3. On getting notice  from the Commission,  the Opposite Parties appeared and

filed  version.

4.  Contents of version filed by the Opposite Parties :- The bar of Jurisdiction envisaged under section 175 of the Motor vehicles Act is applicable to the facts of this case. Since the Complainant is claiming compensation on account of the damage sustained to the Motor Vehicle in accident, this Commission  does not have any Jurisdiction to proceed with the above matter. The maintainability of the complaint before this Commission may be decided as a preliminary point and the same is  prayed for.  Without prejudice to the above contentions and the right of any defence, the Opposite Parties  admitted that Lorry No.TN-43-Y-0618 was insured with the Opposite Parties for the period from 31.07.2016 to 30.07.2017. The Opposite Parties admit that a claim was made by the Complainant towards the repair works of Lorry.  The Opposite Parties denied the rest of the allegations made in the Complaint. The liability of the Opposite Parties, if any, is limited to the terms and conditions, policy provisions and exceptions of the Motor Vehicles Act.  The Opposite Parties denied the accident as alleged by the complainant. The allegation that the opposite parties have not sanctioned the claim after  lapse of a long delay is false and is made only for the purpose of the case. The allegations in the complaint regarding sending the Complainant from Opposite Party No.1 to 2 and from opposite Party No.2 to 4 etc are also false allegations made for the case and hence denied. The allegation that the 4^th  Opposite Party willfully caused delay in processing the claim made by the Complainant is also false and hence denied. The Opposite Party admitted that the Opposite Party No.4 has sent letter dated 31.01.2018 to the Complainant but the said notice was sent neither for settlement of the claim nor for admitting the liability of Rs.1,15,000/- as claimed in the Complaint. The Complainant has not produced any documents to prove the accident and loss as alleged by the Complainant.  The Opposite Parties submit that when the Complainant has submitted the claim form, the Opposite Party has immediately appointed an IRDA approved licensed Surveyor cum loss assessor to assess the loss and damage to the vehicle and to ascertain the reason for the alleged accident.  The IRDA licensed insurance Surveyor, Mr. N. G. Saseedaran, filed a detailed report with photos and CD along with his report and the report of the Surveyor stated that the reason for the damage to the vehicle by capsizing was due to the use of oversize tyres.  The Opposite Party submitted that Sri. N. G. Saseedaran, Insurance Surveyor filed report stating that the damage sustained to the Lorry is due to the fact that at the time of the accident the vehicle was fitted with tube less tyre of the size 11R 22.5 with a Rim diameter of (Radial) or 6.5 20 (ordinary) with Rim diameter of 20 inches.  The Opposite Party submitted that the oversize tyres, different from the specifications stipulated by the manufacturer of the said vehicle and as registered with RTO, which in turn has affected the stability of the insured vehicle increasing the risk factor and has caused the accident.  The above significant alteration is not permitted by the Motor Vehicle Department and the same is in violation of existing provisions of the Motor manufacturer’s specification, without the approval of RTO in the RC, is in violation of the policy provisions and the existing laws on the subject, the Opposite Parties are not liable to indemnify the Complainant.  The insurance Company also arranged an investigation through an independent insurance investigator who has also confirmed in his report that the vehicle was fitted with oversize tyres 11 R 22.5 at the time of reported accident which is against manufacturer’s specifications and the same is not endorsed in Certificate of Registration of the above vehicle. Though the claim made by the Complainant is not legally sustainable, this Opposite Party, as an accommodation, offered an amount of Rs.42,001/- being 50% of Rs.84,002/- the assessed loss, on a compromise basis (non-standard basis) without admitting the liability of the Opposite Party under the policy. Accordingly this opposite party had sent letter dated 13.03.2018 requiring the Complainant to sign the voucher if the Complainant is accepting the offer prepared on the compromise basis. The Opposite Party has specifically informed the Complainant that if the discharge voucher is not returned duly signed by the Complainant within 15 days, the offer of settlement would stand withdrawn and the claim would stand repudiated. The facts being so, the allegation that the Complainant has not used oversize tyres at the time of the accident and that such allegations are made by the Opposite Party with an intention to evade from the payment  at the belated stage etc are also false and hence denied.   The averments that the Opposite Parties have made the allegation of the use of oversize tyres at the time of the accident, only for the purpose of evading the payment at the belated stage is false and hence denied.  The allegation that the Opposite Party is playing foul play with an intention to cheat the Complainant and thus exercised unfair trade practice and the same would amount to deficiency of service on the side of the Opposite Party etc are utter false  made only for the purpose of the case.  The claim made by the Complainant that he is entitled to get full and final payment of the amounts claimed by him with interest is legally unsustainable and the same would be an unlawful  bonus to the accident. The further allegation that the Complainant is entitled to get Rs.1,00,000/-towards loss of time, travel expense to Sulthan Bathery and Kozhikode, to the mental agony etc are false and denied. The Opposite Party submitted that the Opposite Parties have not insisted for the presence of the Complainant at their office at Sulthan Bathery or Kozhikode and the allegations to the contrary are made for the case alone. The Opposite Parties admitted that a notice dated 27.03.2018 was received by the Opposite Parties and the same has been replied stating the true facts. The allegation that the Opposite Party, in violation of the terms of the policy, has not settled the claim of the complainant is false and  denied.

          5. Hence it is prayed to dismiss the  complaint with cost of the Opposite Parties.

          6. Chief affidavit was filed by the Complainant,  Exts.A1 to A6 were marked from his side and he was examined as PW1.  The driver of the vehicle was examined as PW2 from the side of the Complainant.  The Opposite Parties No.1 to 4 had no oral evidence,  but the Insurance Surveyor  was  examined as OPW1 from the side of the Opposite Parties.

          7. Considering the  complaint, version,  affidavit, oral  depositions, the documents marked as Ext.A1 to A6,  B1 to B7 and the arguments of the counsels in hearing,  we raised the following points for consideration.

1.  Whether the complaint is maintainable?
2. Whether there has been any deficiency in service/unfair trade practice  from the  part of the Opposite Parties?
3. If so,  whether the Complainant is entitled  to get  compensation as prayed for?
4. If so,  whether the Complainant  is entitled   to get cost of this complaint?

8. Point No.1:-  The Complainant has filed this complaint under section 12 of

the  Consumer Protection Act 1986.  But it is contented by the Opposite Parties that since the Complainant is claiming compensation on account of damage to the Motor Vehicle in accident,  this Commission does not have any jurisdiction to proceed with the above matter.  As per section 2(d)(ii) of the Consumer  Protection Act 1986,  “Consumer” means any person who hires or avails of any service for a consideration which has been paid  or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment,  when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for a commercial purpose”.  From the above definition it is clear that any person who avails  of any service for a consideration is a consumer.  Here, the Complainant has availed  the services of the Opposite Party for a consideration ie,  here, the Complainant has  availed  the service of insurance coverage as an  insured from the Opposite Parties as insurer for a consideration by way of payment of premium.  Moreover,  the term service as per Section 2(o) of the Consumer Protection Act  1986 is defined as follows.  “Service” means service of any description which is made available to  potential users and includes,  but not limited to, the provision of  facilities in connection with banking,  financing,  insurance,  transport,  processing,  supply of electrical or other energy,  board or lodging or both, housing construction,  entertainment,  amusement or the purveying  of news or other information,  but does not include the  rendering of any  service free of charge or under a contract of personal service”.  In the above definition of service,  insurance is also included as service and hence the contention of the Opposite Party that this Commission does not have any jurisdiction to proceed with the above matter shall not be legally sustainable.  Therefore,  it is declared that his Commission has jurisdiction to proceed with this complaint as it is legally maintainable  under Section 2 (d) (ii) read  with section 2 (o) of the Consumer  Protection Act 1986.  So point No.1 is answered accordingly.

          9. Point No.2:- The case of the Complainant is that the Opposite Parties  without accepting the insurance  claim of the Complainant,  amounting to Rs.1,15,000/- offered a partial claim of Rs.42,001/-  saying that the Complainant had made unauthorized material  alteration to the vehicle and hence full amount of claim could not  be given  which is deficiency in service/ unfair trade practice for which , the Opposite Parties are jointly and severally liable.  The Opposite  Party admitted the policy but denied all other allegations of the Complainant.  The Opposite Parties contented that though Opposite Party No.4 had sent a notice dated 31.01.2018  to the Complainant,  it was neither for settlement of the claim nor for admitting the liability of Rs.1,15,000/-.  The Opposite Parties  alleged that the reason for the damage to the vehicle by capsizing  was due to the use of oversize tyres.  The Opposite Party submitted that their Surveyor had filed  Report stating that the damage sustained to the  lorry was due to the fact that  at the time of the accident,  the vehicle was fitted with tubeless tyres of the size  II R 22.5 with a rim diameter of 22.5 inches as against  manufacturer’s  (Bharat Benz specification of 8.25 R 20 (Radial) or 6l5  20 (ordinary) with rims diameter of 20 inches.  The Opposite Parties  submitted  that the  oversize tyres, different from the specifications stipulated by the manufacturer of the said vehicle and as registered with RTO,  which in turn has affected the stability of the insured  vehicle increasing the risk factor and has caused the accident.  According to the Opposite Parties,  the act of the Complainant was in violation of the policy provisions and the existing laws and hence the Opposite Parties  are not liable to indemnify the Complainant.  The Opposite Parties also contented that though the claim made by the Complainant is not legally sustainable,   they had offered an amount of Rs.42,001/-  being  50% of Rs.84,002/-  the assessed loss, on a  compromise basis without admitting the liability of the Opposite Party under the policy.  In chief examination of the insurance  Surveyor  as OPW1,  he has stated that “  Fsâ opinion   A]-IS Imc-Ws¯ Ipdn¨v ]d-ªn-«n-Ã. Survey Report   ]d-ªn-«p-­m-hpw: thtd   report  sImSp-¯n-«p­v.  In cross examination,  he has deposed that  Ext.B1 Bbn mark sNbvXXv report AÃ.  opinion  am{X-am-Wv.  Tyre size  Iq«p-I-bm-sW¦n AXn\v Ipsd KpW-§-fp­v.  Opinion  Â KpW-§sf Ipdn¨v ]d-ªn-«p-­v.  A]-IS-Ic-amb Øe-§-fn A]-IS km²-yX IqSp-X-em-sW¶v ]d-ªn-«p-­v.  hml\w ]cn-tim-[n-¨Xv  work shop    \n¶m-Wv.  AXp-sIm-­p-Xs¶ A]-I-S-ap-­mb Øe-s¯-¡p-dn¨v      ]d-bm³ km[n-¡n-söv ]d-ªm   photo t\m¡n a\-Ên-em-¡n-bn-«p-ff Adn-hmWv F\n-¡p-f-fXv.  From the above deposition of  OPW1,  it is clear that usage of oversize tyres  have advantage as well as disadvantages .

10. The advantages (as shown in Ext.B1):- Use of oversize tyres provides longevity greater stiffness  and reduction in the braking distance due to wider contact with the road with added protection to under chassis components.

11.  The Disadvantages  (as shown in Ext.B1):-    Usage of oversize tyres reduces the mileage of the vehicle and increases the vehicle height as well,  causing changes to its centre of gravity which causes greater instability in movement leading to  increased risk of overturning  especially when  involved in tricky manoeuvres.

12.  It  has also stated in  Ext.B1 opinion of the Surveyor that “Usage of oversize tyre could  be one of the reasons for overturning of the vehicle but not enough technical  material or evidences to conclusively state that use of oversize tyres was the sole reason for causing this accident.    Therefore,  the contention of the Opposite Parties that the accident caused to the vehicle was due to the use of oversize tyres is false and hence cannot be accepted.   Besides,  the Opposite party has failed to produce the  report of the insurance Surveyor but they produced only the opinion, though the report was already with them as stated by OPW1.  The Opposite Parties have not succeeded to prove that the accident was happened to the vehicle at the time when involved in tricky manoeures.  So,  here, from the available records  produced before the Commission,  the Opposite Parties have failed to prove that the accident of the vehicle was due to the use of  oversize tyres.  In chief  examination of PW2 who was the driver of the vehicle at the time of accident has deposed that “Rm³ Dd-§n- t]m-b-Xn-\m-emWv A]-ISw D­m-bXv”.  So, offering  a meager amount of Rs.42,001/- as full settlement of the claim of  Rs.1,15,000/-   stating  unsustainable ground without any proof is the violation of the principles of natural  justice illegal  and amounts to deficiency in service/unfair trade practice.  Other contentions of the Opposite Parties are immaterial and hence discarded.  So, here,  there has been deficiency  in service/unfair trade practice from the part of the Opposite Parties.  Therefore point No.1 is proved against the Opposite Parties.

          13.  Point No.3:-  As point No.2 is proved  against the Opposite Parties,  they are liable to pay compensation to the Complainant for deficiency in service loss of time, unnecessary expenses,  mental agony etc. 

          14. Point No.4:-  As point  No.2 and 3 are against the Opposite Parties,  they are also liable to pay cost of this  proceedings to the Complainant.

          In the result,  the Complaint is partly allowed and the Opposite Parties are directed:-

1.  To pay Rs.1,15,000/-  (Rupees One Lakh Fifteen thousand only) being the insurance claim of the Complainant, as the Opposite Parties have not produced any evidence to prove  a lesser amount as the claim.
2. To pay a sum of Rs.50,000/-  (Rupees Fifty thousand only) as compensation for deficiency in service,  loss of time unnecessary expenses and mental agony etc.
3. To  pay a sum of Rs.10,000/-  (Rupees Ten thousand only) as cost of this proceedings.

  The above amounts shall be paid jointly and severally by the Opposite

Parties to the Complainant within one month from the date of this  order,  failing which the amounts will carry interest at the rate of 8% per annum from the date of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected   by   me   and  pronounced  in  the  Open  Commission on this the   13^th  day of April 2023.

          Date of filing:30.10.2018.                                                                                                                                                                                                                                                        PRESIDENT:  Sd/-

                                                                             MEMBER     :  Sd/-

                                                                  MEMBER     :  Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.          Haris. M.                                  Driver.

PW2.          Junaid.                                     Driver.

Witness for the Opposite Parties:-

OPW1.        N. G. Saseedaran.                     Insurance  Surveyor.

Exhibits for the Complainant:

A1.             Copy of Letter.                                   dt:31.01.2028.

A2.             Copy of Letter.                                   dt:13.03.2018.

A3.             Copy of Letter.                                   dt:27.03.2018.

A4(a).         Postal Receipt.                                   dt:27.03.2018.

A4(b).         Postal Receipt.                                   dt:27.03.2018.

A4(c).         Postal Receipt.                                   dt:27.03.2018.

A4(d).         Postal Receipt.                                   dt:27.03.2018.

A5(a).         Acknowledgment Card.

A5(b).         Acknowledgment Card.

A5(c).         Acknowledgment Card. 

A5(d).         Acknowledgment Card.

A6.             Reply Notice.                                     dt:05.04.2018.

Exhibits for the Opposite Parties:-

B1.              Letter.                                                dt:20.02.2018.

B2.              Letter.                                                dt:27.03.2018.

B3.              Copy of Letter.                                  dt:05.04.2018.

B4.              Letter.                                                dt:13.03.2018.

B5.              Letter.                                                dt:31.01.2018.

B6.              Letter.                                                                                     

B7.              Policy Schedule Motor Goods Carrying Vehicle Package for the

period of 31.07.2016 to 30.07.2017.

PRESIDENT:   Sd/-

MEMBER :   Sd/-

MEMBER :   Sd/-