BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 62/2004 Filed on 06.02.2004

Dated : 30.06.2010

Complainant:

Susy Russel, J.S. Nivas, Chathiyodu, Nalanchira, Thiruvananthapuram.

(By adv. P. Salim Khan)

Opposite party:

The Divisional Manager, New India Assurance Co. Ltd., Divisional Office, Kottarathil Buildings, Palayam, Thiruvananthapuram.

(By adv. Sreevaraham G. Satheesh)

This O.P having been heard on 21.05.2010, the Forum on 30.06.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant is the registered owner of vehicle bearing No. KL-01 AA 585 Swaraj Mazda Medium Goods vehicle. Complainant and her husband have been running a hollow bricks industry and the said vehicle is purchased for their said business. Complainant has duly insured the said vehicle with the opposite party vide policy No. 760500/31/02/11426 which is valid from 17.01.2003 to 16.01.2004. Whereas the said vehicle was stationed on the road side near Panthalacode Junction on 20.09.2003 at about 9.30 A.M, the said vehicle slipped out of the blockage piece and dashed against a tree. Due to the impact of the hit heavy damages caused to the front side of the vehicle. Complainant immediately informed the matter to the opposite party about the incident from where a surveyor was sent to take on the spot inspection of the vehicle. After recording the damages caused to the vehicle by the surveyor of the opposite party the vehicle was removed to one Nirmala Automobiles, Station Road, Mannanthala, as per the instruction and direction of the said officer. Photographs in different direction of the vehicle has also been taken by the instruction of the said officer. The said vehicle was repaired by the mechanics of the said automobile for which an amount of Rs. 32,885/- has been charged in addition to the said bill the complainant had to spend more than Rs. 10,000/- from her pocket. After getting repaired the said vehicle the bill was sent to the opposite party claiming the actual expenses met by the petitioner for the said vehicle. But the opposite party has not cared to release the claim amount till date. Complainant has approached the opposite party several times for settling the claim amount, but in one pretext or other the opposite party prolonged and delayed the release of the claim amount. Thereafter complainant sent an advocate notice on 29.12.2003 calling upon the opposite party to release the claim amount which the complainant had to meet to get repair the said vehicle which was duly insured with the opposite party. The aforesaid legal notice was received by the opposite party and a reply notice was also sent to the complainant stating that the complainant is not entitled to claim any amount from the opposite party since the driver is not having valid license for driving medium goods vehicle. The false and feeble allegations levelled in the reply notice is not sustainable either in facts or law. The accident took place while the vehicle was in stationery and nobody was driving the vehicle at the time of accident and therefore the question does not arise whether the driver possess valid license or not since there was no driver at the material time of accident. Opposite party ought to have released and is legally bound to release an amount of Rs. 32,885/- as claimed by the petitioner and Rs. 10,000/- which the complainant had to spend from her pocket and for her mental agony and sufferings. Evading from releasing the said amount to the complainant clearly amounts to gross dereliction and irresponsible duty on the part of the opposite party. Hence this complaint.

In this case the opposite party New India Assurance Co. Ltd. filed their version. In the version they admitted that the vehicle KL-01 AA 585 was insured with the opposite party and a claim was submitted by the complainant for the damages caused to the vehicle in an accident. A surveyor was appointed and the loss was assessed as Rs. 27,946/-. In the claim form submitted by the complainant, it is stated that the accident was due to the skidding of the vehicle. From the documents produced, it was revealed that the driver of the vehicle was not possessing valid driving licence. The insured vehicle is a medium goods vehicle and the driver was having only a licence to drive LMV. In the absence of valid driving licence for the driver, the claim was not payable and hence the opposite party repudiated the claim and intimated the complainant by letter dated 05.12.2003. Now the complainant is deviating from the truth and alleges a false incident of slipping while stationed. The same is falsely alleged with the malafide intention. The vehicle was taken to a workshop of the complainant's choice and repair was done. The amount of expenses for repair stated by the complainant is not correct. The allegation that the opposite party was prolonging the release of the amount is not correct. The complainant is not entitled for any amount as the driver of the vehicle was not having valid driving licence. This fact was duly informed to the complainant. There is no deficiency of service on the part of the opposite party. The claim of the complainant was not at all legally payable and the opposite party has correctly repudiated the same and informed the complainant. Hence they prayed for the dismissal of the complaint.

In this case both parties filed proof affidavit and produced documents. Complainant has been examined as PW1 and the opposite party cross examined him. From the side of complainant 6 documents were marked as Exts. P1 to P6. Opposite party's documents were marked as Exts. D1 to D6.

Points that would arise for consideration are:-

1. Whether the vehicle has been driven by the driver at the time of accident?

2. Even if the vehicle was in a running condition whether the driver has been possessing a valid licence?

3. Whether the repudiation of the claim is justifiable or not?

4. Whether the complainant is entitled to get the reliefs and cost sought for?

Points (i) to (iv):- In this case there is no dispute regarding the existence of valid insurance at the time of accident. Complainant's case is that her Swaraj Mazda vehicle was stationed on the road side near Panthalacode Junction. The said vehicle slipped out of the blockage piece and dashed against a tree. Due to the impact of the hit heavy damage was caused on the front side of the vehicle. At the time of accident the vehicle was stationed and was not in a running condition by the driver. The main contention of the opposite party is that at the time of accident the vehicle was driven by the driver and accident occurred due to the skidding of the vehicle and the driver of the vehicle was not possessing valid driving licence. The insured vehicle is a medium goods vehicle and the driver was having only a licence to drive LMV. And moreover in the claim form submitted by the complainant it is stated that the accident was due to the skidding of the vehicle. To prove their contentions both parties filed proof affidavits and documents. The documents produced by the complainant were marked as Exts. P1 to P6. Ext. P1 is the photocopy of legal notice dated 29.12.2003 issued by the complainant to the opposite party. Through this letter the complainant was demanding Rs. 42,885/- from the opposite party as the repairing charge of the vehicle. Ext. P2 is the reply notice issued by the opposite party to the complainant dated 13.01.2004. Through this letter opposite party was informing the complainant that in the absence of valid driving licence for the driver of the vehicle the claim is not at all payable. Ext. P3 is the bills worth of Rs. 32,885/- issued from Nirmala Automobiles. Ext. P4 is the certified copy of R.C Book of vehicle KL-01 AA 585. As per this document class of vehicle is MGV(Medium goods vehicle). Ext. P5 is the original insurance certificate of insurance. The period of insurance is from 17.01.2004 to 16.01.2005. The accident was on 20.09.2003. There is no dispute regarding this matter. Ext. P6 is the policy schedule along with its conditions. The complainant did not produce the driving licence of the driver. Opposite party has produced 6 documents and that documents were marked as Exts. D1 to D6. Ext. D1 is the copy of claim form submitted by the complainant before the opposite party dated 22.09.2003. In Ext. D1 document the complainant has given the short description of accident as vehicle skidded and hitted on a tree and also wrote the speed of the vehicle at the time of accident is 40 km. On the basis of this description the opposite party repudiated the claim of the complainant. Ext. D2 is the Insurance Surveyor's report. In this report the surveyor assessed the loss of damage as Rs. 29,946.42 less salvage value Rs. 1,500/-. Ext. D3 is the copy of final working sheet. As per this document the net amount is Rs. 26,761/-. Ext. D4 is the copy of claim repudiation letter dated 05.12.2003. Ext. D5 is the copy of reply notice dated 13.01.2004. Ext. D6 is the copy of certificate of insurance. The main contention of the opposite party is that the alleged incident was due to the skid of vehicle and not slip. In the claim form submitted by the complainant, it was clearly mentioned. On that point the opposite party rejected the claim of the complainant. In the survey report (Ext. D2) surveyor reported that Mr. Harikumar parked the insured vehicle Swaraj Mazda mini lorry in a down hill narrow road, for unloading the hollow bricks from the vehicle. During the time of unloading, due to jerk, the vehicle moved forward without control, the speed of the vehicle increased and the vehicle went out the road and finally stopped by hitting on nearby tree and got damages to the insured vehicle. At the time of this accident the unloading worker in vehicle jumped from the vehicle and escaped without injuries. From this report we can assume that at the time of accident the vehicle was parked for unloading the hollow bricks. At the time of cross examination of PW1, he has stated that “ വാഹനത്തിന് damage പറ്റിയത് slip ചെയ്തിട്ടാണ്. Load ഇറക്കിക്കൊണ്ടിരിക്കെ വാഹനം താഴേക്ക് ഞരങ്ങി ഇറങ്ങുകയായിരുന്നു”. So in this case there is no need to examine the validity of driving licence. Opposite party raised the main contention in their version that in the claim form the complainant stated that the accident was due to the skidding of the vehicle and in the complaint before this Forum the accident was caused due to slipping. In the argument note the complainant explained the dictionary meaning of skid and slip. The skid is explained as in the dictionary is the “slipping/movement of the wheels of a car on a wet road”. It is also explained the meaning as slip sideways. For the word slip the dictionary meaning is “the act of slipping, a false slip”. We have also observed the meaning of skid and slip in dictionary, skid and slip are having the same meaning as per the dictionary. In this case there is no evidence that at the time of accident the driver was in the vehicle. So the driver is not responsible for the incident. So there is no need to scrutinize the validity of the driving licence of the driver. The complainant has produced a ruling reported in 2003(3) KLT Page No. 213-the ruling of the Hon'ble Supreme Court of India in Jitendra Kumar Vs. Oriental Insurance Co. Ltd., held that “Motor Vehicles Act 1988 Sec. 149(2)(a)(ii): The fire having been caused by a mechanical failure and driver not being responsible in any way for the damage, the insurer cannot repudiate the claim on the ground that vehicle was driven by an unlicensed driver”. Hence in this case we also find that the driver of the vehicle has no role in the incident. At the time of accident the vehicle was parked and the opposite party has not adduced any evidence to substantiate their contention that at the time of incident the vehicle was driven by a driver. Consumer Protection Act is a beneficent piece of legislation and in the interest of natural justice we allow the complaint. It is reasonable to allow the amount as per the estimate of the surveyor.

In the result, opposite party is directed to pay Rs. 27,946/- along with 9% annual interest from 05.12.2003 till the date of realization. Opposite party shall also pay Rs. 2,000/- as costs. Time for compliance one month from the date of receipt of the order. Otherwise 12% interest shall be paid for the entire amount.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 62/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Russel

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of legal notice dated 29.12.2003 issued by the

complainant to the opposite party.

P2 - Photocopy of reply notice issued by opposite party to the

complainant dated 13.01.2004.

P3 - Photocopy of bills worth of Rs. 32,885/-.

P4 - Photocopy of R.C Book of vehicle KL-01 AA 585.

P5 - Original insurance certificate

P6 - Policy schedule along with its conditions

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of motor claim form submitted by the complainant before the opposite party dated 22.09.2003

D2 - Copy of insurance surveyor's report.

D3 - Copy of final working sheet.

D4 - Copy of claim repudiation letter dated 05.12.2003.

D5 - Copy of reply notice dated 13.01.2004.

D6 - Copy of certificate of insurance.

PRESIDENT

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