IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 14th day of September 2009 CC.139/2005 P.Saseendran, Pottakulath House, P.O.Kandoth, Complainant Payyannur. The Branch Manger National Insurance Co. Ltd., opposite party Perumba, P.O.Pauyyannur. (Rep. by Adv.S.Mammu) O R D E R Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay Rs.1,00,.000/- as claim amount along with interest @21% and cost of these proceedings. The brief facts of the case are as follows: - Complainant’s mini lorry KL.11E.7890 met with an accident on 18.4.2004 and thereby sustained damage. Matter reported to opposite party to whom with the vehicle was insured and the same was surveyed by the surveyor. Policy covered the date of accident. On receipt of the claim opposite party sent a notice dt.15.10.2004 declining the claim on the ground that the vehicle was driven by the complainant himself instead of Mr.V. Narayanan. It is alleged that the complainant is having no valid licence. The vehicle was driven by Mr.Narayanan himself at the time of accident. Complainant sent lawyer notice dt.2.11.04. Opposite party received it on 4.1.04. Opposite party sent letter dt.9.11.04 repudiating again the claim. The reason stated for repudiating the claim is baseless and false. It appears that opposite party was under the impression that the complainant is not having the licence to drive the vehicle. Complainant is having valid licence. If the vehicle was driven by the complainant there is no need to give different name. Mr.Narayanan himself admitted that the vehicle was driven by him at the time of accident. Opposite party raises unnecessary technicalities to refuse the claim. The repudiation is unsustainable and amounts to deficiency in service. Complainant spent Rs.1, 00,000/- for repairing. Complainant is entitled for the claim amount. In pursuance of notice the opposite party entered appearance and filed version. Opposite party contended as follows: - The vehicle No.KL.E.7890 was not insured with opposite party. The vehicle insured is KL.13.E.7890 as per policy No.571103/31/08/6304731. The complainant himself was the driver of the above vehicle at the time of accident. The petitioner with the connivance of the Sub Inspector of police, Payyannur made an unsuccessful attempt to get Mr.Nrayanan arrayed as an accused in crime No.248/04 with an ulterior intention to escape from the liability knowing that he is having no effective and valid driving licence and badge. But on complaint from the local people the circle inspector of police, Payyannur conducted a detailed investigation and it was realized that Mr.Narayanan was not the driver but the complainant himself, was the driver of the mini lorry at the time of alleged accident. The investigation conducted by this opposite party also revealed that the complainant was not having valid driving licence and badge to drive the mini lorry at the time of alleged accident. The Payyannur Police after a detailed investigation submitted charge sheet before the Judicial first class Magistrate court, Payyannur under section 279,337,338 and 304(A) and section 46(1)A r/w 177 of M.V.Act against the petitioner. Complainant violating the policy condition knowing well that he is having no valid driving license and badge, made fraudulent statement in the claim petition. Complainant is not entitled to get any claim. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complaint is entitled to get any relief? 3. Relief and cost. The evidence consists of the oral testimony of PW1, Exts.A1 to A4 and B1 to B3. Issue Nos. 1 to 3 Admittedly the vehicle Mini lorry owned by the complainant bearing the No.KL.13.E.7890 met with an accident on 18.4.04. The claim submitted by the insured was repudiated by the opposite party on the ground that the vehicle was driven by the complaint who was not having effective driving licence. Ext.A1 repudiating letter informed the complainant two reasons as follows:- “1.On enquiry and investigation it is revealed that you have driven the vehicle at the time of accident, whereas, you have made fraudulent statement regarding the driver at the time of accident.” 2. You have no valid licence to drive the above vehicle at the time of accident.” The above given two reasons are the grounds upon which the claim of the complaint had been rejected. After receiving Ext.A1 complainant sent Ext.A2 notice stating that the refusal of claim was illegal and against contractual obligation. His request to reconsider the claim is also rejected and confirmed the repudiation by issuing Ext.A3.Ext.A3 repeated that “As per all claim records the vehicle was driven by Mr.P.Saseendran as on the date of accident”. Whether the above raised two grounds are true and correct in the light of the evidence placed before the Forum has been remained as the relevant question to be answered so as to decide the subject mater of the complaint. Ext. B1 is the charge sheet. Ext. B2 is a portion of the paper of Rashtradeepika in which news of change of driver of the vehicle involved in the accident was published. Ext.B3 is the extract of driving licence register that shows the complaint was having licence to drive light Motor vehicle. Any how or other the driving licence of the complaint is not the determining factor if it is not proved that he was driving the vehicle at the time of the accident. Hence the prime question to be answered is nothing but who was driving the vehicle at the time of incident. Ext.B1 shows that the case is charged under section 279, 337,338,304(A) IPC and section 46(1) (a) R/W.177 MV act. Ext.A4 is the judgment in CC.687/05 before the court of Judicial First class Magistrate, Payyannur. The judgment shows that prosecution examined two witness in the above said case Mr.M.V.Sukumaran who was an injured was examined. It is pointed out that he could not identify the driver of the lorry and could not say about the cause of accident. Mr.Manikandan was examined therein as PW4 and the judgment reveals that he also was not aware about the driver of the Mini lorry and also the cause of accident. The judgment also reveals that there is nothing in the evidence of PW3 SI of Payyannur, who registered the case and partly investigated thereafter and in the evidence of C.I of Payyannur who has also partly conducted investigation also to independently connect the accused with the incident. It can be seen that it has been concluded considering the entire evidence placed that there was no material evidence to legally connect the accused with the offence and to find him liable for the incident. In the light of the above discussion it is not possible to accept the result and of the enquiry and investigation of the opposite party so as to find that the complaint has driven the vehicle at the time of accident and thereby made fraudulent statement regarding the driver at the time of accident. The second ground the question of relevancy of licence arises only when it is proved that the complaint was the driver at the time of the accident. The repudiation of claim upon these grounds under the above circumstances cannot be accepted and we are of opinion that the repudiation is amount to deficiency in service for which the opposite party is liable. The complaint has not produced any bill before the Forum. Actual damage is not proved. Complainant’s case is that all the original bills are submitted before the opposite party together with the claim. But no evidence produced before the Forum to prove the actual damage. Complaint has not even taken steps to cause production of those bills by the opposite party. Complainant failed to prove the actual damage. Hence we are of opinion that an amount of Rs.5000/- as claim amount will meet the end of justice. Complainant is also entailed for Rs.1000/- as cost of these proceedings. Hence issues 1 to 3 found partly in favour of the complainant. In the result, the complaint is allowed partly directing the opposite party to pay an amount of Rs.5000/-(Rupees Five Thousand only) towards the claim amount along with Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complaint within one month from the date of receipt of this order failing which the complaint is allowed to execute the order against the opposite party under the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the letter dt.15.10.04 sent to OP A2 & A3.Copy of the lawyer notice sent to OP and reply notice A4.Judgment in CC.687/05 of CJM, Copy of the Payyannur Exhibits for the opposite party B1. Attested photo copy of charge sheet B2.Portion of Rashtradeepika daily B3.Extract of the driving licence Register Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
