BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 384/2004 Filed on 06.10.2004<br /> Dated : 30.05.2008<br /> Complainant:<br /> S. Anitha, Santhosh Nivas, Kulamvettivila, Nedumon, Kallayam P.O, Nedumangadu, Thiruvananthapuram.<br /> (By adv. M. Tripten)<br /> Opposite parties:<br /> 1.District Insurance Officer, Kerala State Insurance Department, Thiruvananthapuram. <br /> 2.Regional Manager, Kerala State Insurance Department, Thiruvananthapuram. <br /> (By adv. Paraniyam Devakumar, Addl.Govt.Pleader)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02.08.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 03.05.2008, the Forum on 30.05.2008 delivered the following:<br /> ORDER<br /> SRI.G. SIVAPRASAD: PRESIDENT<br /> <br /> This complaint is filed for getting compensation of Rs. 103065/- with 12% interest from the opposite parties together with Rs. 10000/- as compensation for mental agony. The case of the complainant is that complainant is the registered owner of the vehicle bearing KL-01 U/2407 Tata 407 mini bus. The vehicle is having valid contract carriage permit issued from the office of the Joint Regional Transport Officer, Nedumangadu. Complainant is used to remit the insurance premium regularly. On 04.03.2003 the said vehicle was running toward Maruthur Junction at about 8.30 p.m the vehicle reached near a bridge at Maruthur and a goods lorry was coming from the opposite side in a rash and negligent manner, suddenly the driver of the said vehicle applied the brake. The said mini bus was skidded and hit the pillar of the bridge and damaged. The front side of the vehicle fully and the back portion of the body was partly damaged. On the same day the accident was reported to the Vattappara Police Station and reported the 1st respondent company on the next day. After recording the mahazar complainant put the vehicle to Sivasakthi Automobiles, Nedumangadu. The survey officer of the State Insurance Department had inspected the vehicle and collected the estimate from the office of the Sivasakthi Automobiles, Nedumangadu. The authority of the Sivasakthi Automobiles informed the complainant that they had no proper equipments to repair the vehicle properly. Complainant informed the same to the State Insurance Department and shifted the said vehicle to Dolphin Body Builders, Madurai. The information letter was sent by registered post. On 14.03.2003 after shifting the vehicle the petitioner had sent the new estimate to the 1st opposite party. No reply notice was issued by the authority or inspection was conducted till today. The contention of the letter is that if the authority is not inspecting the vehicle within a short period, the complainant will start the maintenance work. The accident was happened in the valid period of the policy of insurance. Hence this complaint claiming compensation of Rs. 103065/- with 12% interest and Rs. 10000/- for mental agony from the opposite parties. <br /> The opposite party entered appearance and filed version contending that complaint is not maintainable either by law or on facts. The complaint is bad for non-joinder of necessary parties because 1st opposite party is a government servant. The vehicle Tata 407 mini bus owned by Smt. Anitha with Reg. No. KL-01-U 2407 was insured with this department for a period of one year from 14.01.2003 to 13.01.2004. The vehicle was reported to have involved in an accident on 04.03.2004 and accordingly survey was arranged entrusting Sri. Sunilkumar to assess cause, nature and extent or loss or damage. The surveyor on conduct of survey recommended an amount of Rs. 4500/-in consideration to the estimate for Rs. 27150/- submitted by the complainant, which was obtained by her from M/s Sivasakthi Automobiles, Nedumangadu where the said vehicle was kept for repair or maintenance. The surveyor had reported that the possible damage that could happen as per GD were at front side and hence damages seen at front side were assessed in furtherance to report that the damage seen on the insured vehicle in the right and left sides were not consistent with the nature of accident reported in the GD. The owner of the vehicle was addressed by the surveyor on 11.04.2003 and there was no response from the side of the complainant. On the second visit of the surveyor on 17.03.2003 it was found that the vehicle was shifted from the said workshop. The department has no knowledge in the matters relating to the shifting of the vehicle and its maintenance with M/s Dolphin Coach Body Builders, Madurai. The vehicle was completely damaged is false and disputed. The compensation claimed is excessive. The same is to be proved with documentary evidence. The compensation claimed has no proportion with the alleged minor accident. The respondent is only liable to compensate the loss on the basis of the report submitted by the surveyors. Complainant filed this complaint as a test case to recover illegally all the maintenance and alterations of the said vehicle on account of the alleged accident. It is due to the negligence on the part of the complainant. There is no deficiency in service on the part of the opposite party. Hence prayed for dismissal of the complaint with compensatory costs. <br /> The points that would arise for consideration are:<br /> (i)Whether there has been deficiency in service on the part of opposite parties?<br /> (ii)Reliefs and costs. <br /> To support the contentions in the complaint, complainant has filed proof affidavit of herself as PW1 and one witness as PW2 and Exts. P1 to P11 were marked. PW1 and PW2 were cross-examined by opposite parties. <br /> Points (i) & (ii): - Submission by the complainant is that on 04.03.2003 at about 8.30-p.m complainant’s vehicle bearing Reg. No. KL-01 U 2407 Tata 407 minibus was skidded and hit the pillar of the bridge, when the driver of the said vehicle applied the brake seeing a lorry coming from the opposite side in rash and negligent manner and damaged the front side of the vehicle fully and the back portion of the body was also damaged. The said accident was reported to the Vattappara Police station on the same day and the GD extract from the said police station is marked as Ext. P1. Ext. P1 would reveal the nature of damage. Submission by the complainant is that the above accident was reported to the 1st opposite party and opposite party’s surveyor had inspected the said vehicle. Opposite parties produced the survey report at the time of hearing, but it is not marked by opposite parties. A perusal of survey report on the record would show that the date of allotment of survey is 09.03.2003, the date of survey is 10.03.2003 and place of survey is M/s Sivasakthi Automobiles and Engineering, Pazhakutty, Nedumangadu. Complainant never produced copy of the claim form. Opposite parties also produced claim form, which is on the record, but not marked. The claim form produced by opposite parties would reveal that the date of lodging claim was on 07.03.2003, and the estimated cost of repairs is Rs. 27150/-. Opposite party filed version on 2nd day of December 2004. In the version it is stated that a survey was arranged entrusting Sri. Sunil Kumar as to assess cause, nature and extent of loss/damage. The said surveyor on conduct of survey recommended an amount of Rs. 4500/- in consideration of the estimate for Rs. 27150/- submitted by the complainant, which was obtained by the complainant from M/s Sivasakthi Automobiles and Engineering, Pazhakutty, Nedumangadu where the said vehicle was kept for repair/maintenance. Complainant, in her cross-examination, deposed that after the said accident the alleged vehicle was brought to a workshop in Nedumangadu for repair works. Initially, PW1 deposed that she could not remember the name of the workshop. But in the complaint it is stated that complainant collected the estimate from the office of Sivasakthi Automobiles, Nedumangadu. Nowhere in the complaint is it mentioned by the complainant about the estimate amount. In the later stage of cross examination, PW1 admitted that repair works were carried out by the Sivasakthi workshop, Nedumangadu, but she did not know the amount of estimate made by Sivasakthi Automobiles. Learned counsel appearing for opposite parties submitted that complainant lodged a false claim and the signature of the complainant seen in the complaint and in the proof affidavit and in deposition of the complainant is different. It is pertinent to note that complainant was vehemently cross-examined by the opposite parties and opposite parties got sufficient time to seek clarification of the complainant on difference in signature. Opposite party raised such an issue at the argument stage only. We compared the signature in the complaint with those seen in proof affidavit and in deposition. We are of the view that signature of the complainant seen in the complaint is different from those seen in proof affidavit and in deposition. In her cross-examination, complainant deposed that complainant is bound to follow the policy conditions of the opposite parties. Complainant also deposed that opposite parties agreed to pay Rs. 4500/- towards the damage as assessed, but the same is not mentioned anywhere in the complaint. Submission by the complainant is that the internal part of the body of the said vehicle was completely damaged and the authority of Sivasakthi Automobiles informed the complainant that they had no proper equipment to repair the vehicle properly. It is pertinent to note that in cross-examination complainant admitted that the repair works of the vehicle was carried out by Sivasakthi Automobiles, Nedumangadu. Complainant’s submission that the said vehicle was shifted to Dolphin coach Body Builders, Madurai, but the damage stated in Ext. P1 is of minor nature. Opposite party also stated in the version that they had no knowledge in the matters relating to the shifting of the vehicle and its maintenance with M/s Dolphin Coach Body Builders, Madurai. Complainant submitted that information letter was sent to opposite party by registered post. The postmaster Thycaud P.O was examined as PW2. PW2 took charge as Postmaster of Thycaud post office during April 2003. PW2 deposed that one Francis was the Postmaster during March 2003 who is still working in the same post office. In cross-examination, PW2 said he did not know whether any steps were taken to examine the postman concerned. He did not know the postal items delivered on 23.03.2003 from Thycaud post office. Ext. P2 is a letter dated nil seen sent by the complainant to the 1st opposite party. Ext. P3 is an acknowledgement card. Ext. P4 is the postal receipt. As per Ext. P2 opposite party was requested to set aside the estimate obtained from Sivasakthi Automobiles and insisted the opposite party to reassess the damage of the said vehicle kept at Madurai. Ext. P5 is the delivery memo issued by Metro Motors, Nedumangadu, where the vehicle No. stated is KL-01 U 2427. Ext. P6 is the cash bill issued to KL-01 U 2407 for Rs. 500/-. Ext. P7 shows labour charge for patch work, seen issued by Dolphin Coach Body Builders, Madurai. Nowhere in ext. P7 is it mentioned as a receipt. Ext. P8 shows some body parts and their prices. It never mentioned as a receipt. Ext. P9 is the certificate of insurance. As per Ext. P9, policy No. is CVR/97/2003 and Certificate No. is CUR/126/2003. Reg. Mark and No. KL-01 U 2407. Premium amount is Rs. 3718/-. Ext. P10 is the certificate of registration. Ext. P11 is the permit in respect of a contract of carriage-damages as per surveyor. The learned counsel appearing for opposite parties submitted that upon the accident having been reported to the 1st opposite party an authorized surveyor was deputed to assess the damage and compensation. The surveyor inspected the said vehicle kept at M/s Sivasakthi Automobiles and recommended an amount of Rs. 4500/- against the claim estimate of Rs. 27150/- received from the complainant. Further submission by the opposite party is that since the damage observed was not in conformity with the description recorded in the GD of the Vattappara police station, the surveyor, after informing the complainant on 11.03.2003 paid a second visit to M/s Sivasakthi Automobiles at Nedumangadu for inspection of the said vehicle on 17.03.2003. But he found that the said vehicle had already been removed from there without the knowledge and approval of the 1st opposite party. At this juncture it is pertinent to note the admission of the complainant, in cross-examination, that the repair works of the said vehicle was carried out by the Sivasakthi Automobiles, Nedumangadu. If that is so what is the necessity of shifting the said vehicle to Madurai without the knowledge and consent of opposite parties. No scrap of paper to show that the internal part of the body of the said vehicle was completely damaged. Nor any attempt was made by the complainant either to examine M/s Sivasakthi Automobiles’ authority to prove that they had no proper equipments to repair the said vehicle or to examine the official from Dolphin Coach Body Builders, Madurai to prove that they had carried out maintenance work of the said vehicle, since opposite parties submitted that they had no knowledge regarding the shifting of the said vehicle and its maintenance with M/s Dolphin Coach Body Builders. On going through the contents in the complaint and version, Exts. P1 to P11, affidavit of PW1 and PW2, deposition on cross examination of PW1, materials on record furnished by opposite parties and hearing of both parties we hold that complainant failed to establish the complaint as such. Though the surveyor of opposite parties filed private and confidential report long back (21.06.2003), no action was seen taken by the opposite parties to release the amount assessed by the surveyor, to the extent of which, we can attribute deficiency in service on the part of opposite parties. In view of the above, we find complainant is entitled to get Rs. 4500/- as assessed by the surveyor. <br /> In the result, complaint is allowed in part. Opposite parties shall pay the complainant an amount of Rs. 4500/- together with Rs. 2000/- towards compensation. The above said amounts shall carry interest at the rate of 9% per annum if not paid within two months of this order. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th May 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> BEENAKUMARI. A: MEMBER<br /> <br /> S.K. SREELA: MEMBER <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No. 384/2004<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Anitha<br /> PW2 - C. Chellappan<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Mahazar dated 05.03.2003 prepared by Sub-Inspector of Police, Vattappra Police Station, Tvpm. <br /> P2 - True copy of Information latter send by the complainant to the 1st opposite party. <br /> P3 - A/D card dated 23.03.2003.<br /> P4 - Postal receipt dated 14.03.2003.<br /> P5 - Bill No. 620 dated 05.03.2003 for an amount of Rs. 7255/- issued by Metro Motors.<br /> P6 - Bill No. 425 dated 15.03.2003 issued from G.S. Automobiles & Engineering Works, Nedumangadu for an amount of Rs. 500/-. <br /> P7 - Bill issued by Dolphin Coach Body Builders for an amount of Rs. 79700/-<br /> P8 - Bill issued by Dolphin Coach Body Builders for an amount of Rs. 15610/-<br /> P9 - True copy of certificate of insurance of policy No. CVR/97/03 date upto 13.01.2004.<br /> P10 - True copy of relevant pages of R.C. Book of Reg. No. KL-01 U 2407.<br /> P11 - True copy of permit in respect of a contract carriage of permit No. P Co-C2/67/NDD/2001, Nedumangadu. <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> NIL<br /> <br /> PRESIDENT