Date of Filing: 24/08/2011

        Date of Order:18/10/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  18^th DAY OF OCTOBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1572 OF 2011

M/s. Leeway Logistics Limited,

No.644, 6^th Main, 8^th Cross, HAL Road,

Opp to BSNL office,

BANGALORE-560 075.

Rep. by its GPA Holder

Mr. Subramanya,

S/o. Manjegowda,

Aged About 27 years,

R/at: Hosaloppalu,

H.N. Pura Road, Hassan.

(Rep. by Advocate Sri.M.V.Balaraj)                                          ….  Complainant.

V/s

Bajaj Alienz General Insurance Company,

Office at: No.31, Ground Floor,

TBR Towers, 1^st Cross, Near Mission Road,

Next to Bangalore Stock Exchange,

Bangalore-560 027.

Rep. by its Manager.

(Rep. by Advocate Sri.Manoj Kumar M.R.)                            …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.10,82,464=91 paise, are necessary:-

          The complainant is the owner of the vehicle bearing No.KA-03-D-7597 a MAHINDRA XYLO Motor Cab which was insured with the opposite parties in policy bearing No.OG-11-1701-1803-00006122 and the policy was valid between 27.12.2010 and 15.12.2011.  On 20.03.2011 the said vehicle met with an accident near Hirehalli gate, Channarayuapattana Taluk and the vehicle sustained serious damages.  In this regard a complaint was registered in crime No.34/2011 in the jurisdictional police who later filed the charge-sheet for the offence punishable Under Section 279, 337, 304(A) of IPC.  The vehicle was given to the repairer who estimated the repair charges at Rs.4,47,464=91 paise.  A claim was made with the oppsiote party who has repudiated the claim on the ground that the driver was under the influence of alcohol which is false.  Several correspondences were made to rectify the mistake committed by the opposite party.  The complainant has suffered loss in this regard hence the complaint.

2.       In brief the version of the opposite party are:-

The ownership of the vehicle, its insurance, its meeting with an accident, damages to the vehicle are all admitted.  The complaint filed by the complainant through the power of attorney holder is not maintainable.  As per the normal practice the surveyor was appointed who found the damages of Rs.2,45,122/- only and as the driver was under the influence of alcohol the claim was rightly repudiated.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the complainant has stated that their documents and complaint be read as their evidence and the opposite party has filed affidavit.  Both the parties have filed their respective documents.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is deficiency in service/unfair trade practice?

2. What Order?

5.       Our findings are:-

Point (A) & (B)         :           As per the final Order

                                       for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant is the owner of the vehicle in question which was insured with the opposite party and the insurance was valid on 20.03.2011 on which date the vehicle met with an accident and the power of attorney holder of the complainant has lodged a complaint before the police who registered a case in Crime No.34/2011 issued FIR, conducted investigation and filed a charge-sheet against the driver of the vehicle for the offence punishable Under Section 279, 337, 304(A) of IPC only.  In this regard the complainant made a claim before the opposite party and the opposite party has repudiated the claim on the ground that the driver of the vehicle had consumed alcohol and he was under the influence of alcohol.  This has been challenged before this Forum.

7.       In this case to show that the driver was under the influence of alcohol and he was driving the vehicle under the influence of alcohol there is no material.  No doctor has been examined to show that the driver Barath Kumar was under the influence of alcohol while driving the vehicle.  No doctor has examined the driver of the vehicle nor his blood samples were taken to show that the driver had consumer alcohol which was more than the limit and because of his consumption of alcohol the accident occurred and because of that reason the opposite party has repudiated the claim.

8.       The accident register extract that has been obtained by the opposite party and produced before this Forum reads thus:-

Here it does not say the doctor has tested the driver of the vehicle for alcohol. It is only some smelling of the alcohol is there.  Even no treatment for alcoholism is given by the doctor.  This does not say that under the influence of the alcohol the driver was driving the vehicle.  By taking any cough syrup or any medicines may smell like alcohol that possibility and probability is not overruled.  Here the doctor has not taken the blood sample of the driver of the vehicle not tested, verified and found that the driver has alcohol in his body which is more than the limit at the time of accident.  Hence it cannot be said that the repudiation was justified.

9.       If the driver had consumed the alcohol and driven the vehicle naturally the police who had investigated the case would have filed the charge-sheet against the driver for consuming alcohol and driving the vehicle.  That has not been done.  This clearly goes to show that the driver of the vehicle was not under the influence of the alcohol while driving the vehicle.  Hence the repudiation is not justified. 

10.     In this case it was contended that the power of attorney holder cannot file the complaint.  It is an untenable contention.  The power of attorney is executed on 23.03.2011 in this all powers has been given to the power of attorney holder to present, prosecute the complaint or other proceedings with respect to the accident.  Hence this contention is an untenable contention. 

11.     Now we have to see what is the compensation that has to be awarded here.  The complainant has claimed the repair charges of Rs.4,47,474=91 paise, but the surveyor of the opposite party who has verified the bills and estimated repair charges of the vehicle has given a report stating that the damages to the vehicle is Rs.2,45,122/-.  How the report of the surveyor is wrong is not explained.  The estimation given by the work shop will include many consumables many depreciation that has to be given.  Considering all these things and the surveyor who has assessed the value of the damage as Rs.2,45,122/- and if this has to be paid by the opposite parties we think that will meet the ends of justice.

12.     The other contention was that the complainant was not a consumer.  Here the complainant has not done the business of insurance, the complainant has not taken the insurance for doing any business activities.  The vehicle had to be insured as per law and for the benefit of the vehicle the complainant has taken insurance and also for the other benefits.  It is not the commercial transaction.  Hence the said contention in the version is an untenable one.  Hence we hold the above points accordingly and proceed to pass the following:-

ORDER

1.        The complaint is Allowed-in-part.

2.        The opposite parties are directed to pay to the complainant the sum of Rs.2,45,122/- together with interest thereon at the rate of 12% per annum from 20.03.2011 until payment within 30 days from the date of this order.

3.        The opposite parties are also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.

4.        The opposite parties are directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.

5.       Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.

6.       Send a copy of this order to both the parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 18^th  Day of October 2011)

MEMBER                                               MEMBER                                         PRESIDENT