IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 31st day of November, 2015
Filed on 19.07.2013
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D. (Member)
in
C.C.No.230/2013
between
Complainant:- Opposite Party:-
Sri.Aneesh Jose The Oriental Insurance Co. Ltd.
Yogia Veedu, Muhamma P.O. represented by its Branch Manager
Alappuzha District Branch Office, Oppo. Seematti Theatre
(By Adv. James Chacko) Near Y.M.C.A. Bridge
Alappuzha – 688 001
(By Adv. C. Muraleedharan)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
Complainant is the registered owner of the vehicle bearing Reg. No. KL-32/B-27333, which was duly insured with the opposite party for all risks and losses. The said car was registered for taxi purpose. On 21.5.2010 at about 6 p.m. when the owner himself was driving the vehicle for personal use, at slow speed and complying with all traffic rules and reached the place of occurrence at M.G. Road, meanwhile a stray dog jumped in front of the car and the car hit against that dog. In that accident front bumper, radiator, radiator fan assembly, A/C condenser etc. completely damaged. The accident was duly intimated to the opposite party on 24.5.2010 and as per instructions from the opposite party, the complainant put his car to M/s. Concord Motors (P) Ltd. garage for repair. Next working day itself, opposite party send a Surveyor to inspect the damaged vehicle. All relevant documents need for the claim was also handed over to the Surveyor including vehicle particulars with Estimate from service centre. After verifying all documents and damages of vehicle, opposite party’s Surveyor sanction the full amount. Car repair works completed and Rs.32,805/- was duly paid by the complainant on 5.6.2010 to Concord Motors (P) Ltd. and said final bill was also submitted to the opposite party – Insurance company for getting refund of amount already sanction from the opposite party. But unfortunately, on 15.5.2011 the Insurance company send a letter to the complainant stating that they are repudiating the claim which was already sanction due to non-production of permit. At the material time of the accident, the complainant himself was driving the vehicle for personal use and no other passenger in that car. The complainant duly paid premium towards on damage. The repudiation of the claim by the opposite party amounts to deficiency in service, hence the complaint is filed.
2. The version of the opposite party is as follows:-
There is no deficiency in service on the part of the opposite party. The claim of the complainant was duly entertained and a Surveyor was appointed and he submitted the report and on verification of the vehicle records, the vehicle had no permit, hence the claim was repudiated. Even though Surveyor assessed the amount of Rs.23,179/- after applying the depreciation, policy excess and salvage value. The complainant is not entitled to get that amount, since there is policy violation.
3. The complainant was examined as PW1. The documents produced were marked as Exts.A1 to A7. The opposite party was examined as RW1. Documents produced were marked as Exts.B1 to B7.
3. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite party?
2) If so the compensation and costs?
It is an admitted fact that the vehicle No.KL-32/B-2733 was insured with the opposite party against risks and losses under package policy and the policy is valid till 10.12.2010.According to the complainant on 21.5.2010 when owner himself was driving the vehicle for personal use, a stray dog jumped in front of the car, and the car hit against the dog and that resulted damage to the vehicle.When the complainant filed the claim before the opposite party with all documents, the opposite party repudiated the claim stating that the vehicle had no permit on the date of accident.According to the opposite party, the permit was issued only on 2.6.2010, but the accident was on 21.5.2010.The accident was duly intimated to the opposite party and as per the instruction from the opposite party, the complaint put the car to M/s. Concord Motors Ltd. in their garage for repair.According to the complainant, he paid Rs.32,805/- to M/s. Concord Motors and he submitted the final bill to the opposite party.Ext.A7 is the tax invoice issued by the Tata Motors.The opposite party opposed in marking this document.It is admitted by the opposite party that on getting information from the complainant, they appointed Surveyor and he inspected the vehicle and submitted the assessment.The Surveyor assessed an amount of Rs.23,179/- after applying depreciation, policy excess and salvage value.But since the vehicle had no permit on the date of accident, they repudiated the claim.The survey report produced by the opposite party is marked as Ext.B5.From the evidence on record, it is clear that the vehicle had valid insurance coverage until 13.12.2010.The accident was on 21.5.2010.Hence the opposite party could not go away from the liability on the ground of absence of permit and they are not entitled to reject the claim to the complainant.In a decision reported in 2010 CPJ Volume (2) Amalendu Sahu Vs. Oriental Insurance Co. Ltd., Hon’ble Supreme Court stated that in a case of violation of conditions of the policy including limitations as to use the claim ought to be settled on non standard basis.In the instant case even though there was valid policy coverage at the time of accident, opposite party repudiated the claim stating that the vehicle has no valid permit at the time of accident.Following the above decision, we are of opinion that the insurance company cannot repudiate the claim in totto.In a decision reported in 2014(3) CPJ page No.184 National Commission produced by the learned counsel of the complainant stated that, “No doubt, complainant committed offence under the Motor Vehicles Act while driving vehicle on road without obtaining registration certificate but at the same time, he also committed breach of the terms and conditions of the policy and in such circumstances, we agree with the view taken by the Coordinate Bench of this Commission in The Manager, Bharti AXA General Insurance Co. Ltd. (supra), and held that learned State Commission committed error in allowing full claim, whereas complainant should have accepted 75% of the loss on non-standard basis offered by OP.”As per the Ext.B5, the Surveyor assessed an amount of Rs.23,179/- towards net liability.Hon’ble National Commission in the case of Suryachem Industries Vs. Oriental Insurance Co. Ltd. as held that survey report being a important document as to be given due importance until it is rebutted by some cogent evidence.In view of the above settled principle, we are of opinion that complainant is entitled to claim 75% of the Rs.23,179/- from the opposite party.
In the result, complaint is allowed in partly. The opposite party is directed to pay Rs.17,384/- (Rupees seventeen thousand three hundred and eighty four only) [ie. 75% depreciation of Rs.23,179] to the complainant. The opposite party is also directed to pay Rs.1,000/- (Rupees one thousand only) towards costs of this proceedings. Since the primary relief is allowed no order as to compensation. The order shall be complied within one month from the date of receipt of this order, failing which the opposite party is directed to pay 12% per annum for the amount of Rs.17,384/- from the date of filing the complaint till realization.
Dictated to the Confidential Assistant transcribed by me and pronounced in open Forum on this the 29th day of November, 2015.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Aneesh Jose (Witness)
Ext.A1 - Advocate notice dated 22.4.2013
Ext.A2 - Registered letter dated 15.5.2011
Ext.A3 - Discharge voucher
Ext.A4 - True copy of the certificate of registration
Ext.A5 - True copy of the Motor insurance certificate cum policy schedule
Ext.A6 - True copy of the driving license
Ext.A7 - Tax invoice (Subject to objection)
Evidence of the opposite party:-
RW1 - Punnoose K.K. (Witness)
Ext.B1 - Copy of the contract carriage permit
Ext.B2 - Motor claim form
Ext.B3 - Motor insurance certificate cum policy schedule
Ext.B4 - Registered letter dated 15.5.2011
Ext.B5 - Motor survey report
Ext.B6 - Re-inspection report dated 20.7.2010
Ext.B7 - Copy of the letter dated 29.4.2013
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
