::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.65/2017.

                                                            Date of filing: 07.10.2017.

                                                                   Date of disposal: 31.08.2018.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                                                                                          B.A., LL.B.,

                                                                                                President

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:    1.   M.Gouspasha Moujan S/o Dastageer Moujan,                                                           
                                            Age:27 years,  Occ: Business,

                                            R/o No.2/8, village Udbal-585330

                                            Tq: Humnabad Dist: Bidar.                                                                                        

                                       ( By Sri.S.M.Shetkar.,Adv.)                                                   

                                                                 VERSUS

OPPONENT/S:        1)         Cholamandalam Ms General Insurance

                                             Company Ltd. 1^st floor Kalburgi Square,

                                             Desai Cross, Deshpande Nagar, Hubli-58029.                                            

                                    2)        Cholamandalam Investment and Finance     
                                             Company Ltd, 1^st Floor Door No.30/510 M A Bag
                                             Complex, Basawakalyan-585327, Dist: Bidar.                                           

                                            (By. R1 V.M.Prakash., Adv.

                                               And R2. Exparte.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

This is a complaint filed u/s 12 of the consumer Protection Act, 1986, alleging deficiency of service against the opponents.  The gist of the complaint is as hereunder.

2.           That, the complainant herein is the Registered owner of Light Goods vehicle-Ahok Layland Dost bearing Regarding No.KA-39-9751 and had obtained package policy from the opponent bearing No.3379/01450920/000/00 valid from 15.00 hrs of 16.06.2016 to 15.06.2017 and he was using the vehicle for transportation of goods.

3.          On 27.04.2017, one Nagirikri Srinivas Reddy S/o Jharna Reddy and Mahitab S/o Mastan Sab of village-Udbal had loaded cauliflowers to deliver at Secunderabad, Telengana market and after unloading were returning to their village Udbal along NH 65.  During the journey, within the limits of Rudram village at about 11.30hours, the driver of the vehicle, driving in a rash and negligent manner, the vehicle turned turtle and in the process, the vehicle was damaged and the occupiers were injured.  A case was registered consequentially in jurisdictional Patancheru Police Station.

 4.        The complainant informed about the accident to the vehicle through the toll free number of the opponents which was registered as complaint No.176824 and assigned claim No.3379202361. The opponent deputed a surveyor after two days of the incident and after such survey, the complainant getting the vehicle released from the custody of the Police by executing indemnity bond, entrusted the same for repair to Rahim Denting and painting works for repairs and brought required spare parts from M/s Renuka Automotive, Gulbarga.  The total repair cost worked out to Rs.77,937/- and the original bills were handed over to the surveyor of the Insurance company.

5.         That, the opponent Insurance company, repudiated the claim on 10.08.2017, claiming that, there had been a violation, of conditions at the material point of time, since 3 persons were occupiers of the vehicle against the prescribed number of 2 persons in the Registration certificate, thereby transgressing the stipulations of “Limitations to use” and thereby, there had been a willful mis-representation.

6.         It is the say of the complainant that, he has claimed damages to his own vehicle, the vehicle was empty at the time of accident and the gross weight of the vehicle is 2500 k.g..  There is no circumstances that, there were extra laborers in the vehicle and the observations of the opponent company regarding non mention of number of occupiers in the claim form is of no significance.  He has not concealed any fact from the opponents and provided all police documents while raising the clam and the repudiation being illegal, the complainant has filed the present complaint, claiming a compensation of Rs.87,937/-. 

7.         The opponent Insurance company putting appearance through counsel has filed written versions justifying its’ repudiation.

8.         The opponent claims the entire claim to be false and baseless and its’ repudiation dated: 10.08.2017 was proper since there were three occupiers in the vehicle at the time of accident thus violating the policy conditions and further, there was a misrepresentation of the facts.

9.         It is further claimed that, the vehicle under reference had no valid permit conditions and Fitness certificate as enumerated in Section 149(2) of the M.V. Act and therefore the opponent company is not liable to pay any compensation or claim.  On these grounds, the opponent company seeks dismissal of the complaint.

10.       The parties have filed evidence affidavits and documents listed at the end of this order.  The complainant has filed written arguments, while the O.P.s have filed a memo to accept versions at their arguments.

11.       Considering the rival contentions of the feuding parties, the following points arise for our considerations.

1. Does the complainant prove that, his vehicle being damaged in accident, he has an action able claim?
2. Do the opponents prove that, they were justified in refuting the claim?
3. What orders?

12.       Our answers to the points raised are as following:-

1. In the affirmative.
2. In the negative.
3. As per final orders owing to the follows:-

:: REASONS ::

13.       Point (1): The complainant in support of his case has filed copy (s) of Insurance Certificate, F.I.R., R.C., permit issued by Telengana State Government, repair receipts, and four numbers of colour photographs depiction damages to his vehicle the documents prove the factum of accident beyond doubt and the opponents have admitted about the same.  Even in the versions they have not challenged that aspect but on certain technical grounds to be discussed hereinafter, the claim has been refuted.  Prima facie therefore, the complainant has established his actionable claim and it’s refusal and hence we answer this point in the affirmative.

14.       Point No.(2): The opponents Insurance company is in agreement with the revelation of accident and damages and eve had submitted a purported surveyors’ report (unsigned) assessing the damages to the insured vehicle.  Insurer but is justifying the claim of rebuttal on the following grounds.

            i.          That, three persons were occupiers in the motor vehicle at the time of accident.

            ii.         That, there was no such disclosure in the claim;

            iii.       That, the vehicle had no fitness certificate or permit at the time and on the day of the accident.

            As far as sub point (i) is concerned, it appears both sides are taking cues from the F.I.R. and complaint in Cr.No.181/2017 u/s 337 I.P.C. registered by the jurisdictional Patancheru Police Station Telengana State.  Point to be noted here is, the accident allegedly took place at 11.30 hours (morning hours) and the complaint was filed at 6.30 p.m..  There is no mention that, the complainant was an eye witness to the incident and he is only a hear say witness, not to be relied upon.  There is not a single tangible proof produced or evidence led by the opponents that, factually there were three persons travelling in the vehicle at the time of accident.

ii.         Even the complaint was not an eye witness to the incident.  It is not expected from him to make a roving enquiry about the occupiers and report the same to the Insurer.  Hence no fault can be found with him.

iii.       We observe from the copy of the R.C. book that, the F.C. of the vehicle was valid up to 26.06.2018 and the Telengana State Government has granted permit No.530 in respect of the vehicle valid from 26.04.2017 to 25.05.2017, where fore none of the justifications raised by the opponents survive a judicial scrutiny.  The judgements of higher for a submitted by the opponents are an different aspects and are not helpful to them.  Therefore, we answer this point in the negative.

15.       Point No.(2): Delving into the exercise of assessing the real cost of damages sustained by the vehicle, we observe that, while the complainant has submitted two receipts regarding repair and purchase of spare parts, together with four colour photos, belatedly, the opponents have submitted a copy of the purported surveyors’ report, which has no signature of the surveyor on it.  It is printed on the stationery of the opponents and certified by them to be true copy.  No effort was ever made to examine the surveyor to establish the veracity of this document.  It would be fallacy to rely on such document and hence we discard it.

16.       As far as the receipt of the workshop(Raheem Denting works) we are of the opinion that, the figures under different heads are exaggerated and we feel that, a global figure of Rs.25,000/- would be an appropriate amount.  Therefore, we hold that, the complainant would be entitled for a sum of Rs.25,000/- for body building plus a sum of Rs.25,137/- towards spare parts totalling to Rs.50,137/- and therefore, we proceed to pass the following:-

ORDER.

1. The complaint is allowed in part.
2. The opponents are hereby jointly and severally directed to reimburse the complainant a sum of Rs.50,137/- together with interest @ 12% p.a. calculated from the date of complaint i.e.
   07.10.2017 till realisation;
3. The opponents further directed to pay a sum of Rs.5,000/- towards mental agony under gone together with a sum of Rs.3,000/- towards litigation expenses.
4. Four weeks time granted to comply the order.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31^st  day of August 2018).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                       

Documents produced by the complainant

1. Annexure.A- Copy ofregistration certificate of motor vehicle No.KA-
                          39/9751.
2. Annexure.B– Copy of insurance Certificate Cover Note No.59394311.
3. Annexure. C– Copy of road permit issued by State Government of
                            Telengana.
4. Annexure.D—Copy of complaint regarding accident along with
                            English Translation (at bottom) and affidavit of
                            translator.
5. Annexure. E– Copy of F.I.R. in Crime NO.181/2017 of Patancheru
                             Police Station Telangana State.
6. Annexure.F- Original of repair charge certificate of Raheem denting
                          works, Humnabad Bidar.
7. Annexure.G- Copy of cash memo of Renuka Automotive.
8. Annexure.H- Copy of Rebuttal letter date:10.08.2017.
9. Annexure.J to M– 4 colour photo graphs of the damage vehicle.

 Document produced by the Opponents.

1. Annexure.R.1- Copy of policy bearing cover note NO.59394311 and
                             complete literature.
2. Annexure.R.2- Copy rebuttal letter date:10.08.2017.
3. Annexure.R.3- Purported Motor final survey report copy without
                              signature of surveyor.
4. Annexure.R.4- Copy of F.I.R. in Crime NO.181/2017 of Patancheru Police Station Telengana State.

Witness examined.

Complainant.

1. P.W.1- Sri. M. Gouspasha Moujan S/o Dastageer Moujan 
                  (complainant).

Opponent.

1. R.W.1-  Sri. Sunil Ramesh S/o Ramesh Deputy Manager of
                     Cholamandalam Ms. G.I. Co. Ltd.

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.