D.O.F. 09.06.2009

                                                                                   D.O.O. 13.05.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :               President

                   Smt. K.P.Preethakumari    :              Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 13^th day of May, 2011

C.C.No.151/2009

Kunhikkanan K.P.,

Kandathil House,                                                           :  Complainant

P.O. Maloor, Via Mattannur,

Kannur District.

(Rep. by Adv. Anil D. Kaithakkal)

Divisional Manager,                                                      

National Insurance Co. Ltd.,

Divisional Office, Bank Road,                                         :  Opposite party

Kannur.

(Rep. by Adv. V.K. Rajeev)

O R D E R

Sr. K. Gopalan,  President.

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite party to pay ` 1,35,000 as insurance amount of double accident benefit.

          The case of the complainant in brief are as follows :  Complainant insured his vehicle KL-13/F 6136 that the respondent with a policy No. 571100/31/06/6300013472.  While complainant was plying the vehicle on 08.06.2007 it caught fire near Thillenkeri.  The police and the Fire Force and rescue team managed to stop the fire.  The insurer was informed about the incident on the very same day.  The complainant sustained a loss of ` 1,35,000 due to the incident.  The complainant made a claim for insurance but the opposite party took an indifferent attitude towards the claim.  Complainant apprehends that the attempt of opposite party is to wriggle out of his contractual obligations.  On 01.07.2008 complainant received the notice calling upon him to produce original permit, original permit authorization and original fitness certificate as at the time of accident.  So the complainant issued a reply notice dated 14.07.2008 stating that an application dated 01.02.2007 was submitted before the Secretary, State Transport Authority, Trivandrum for canceling the tourist taxi permit and hence it was impossible to attain permit or evidence certificate during the pendency of application to cancel the tourist taxi permit complainant also send the communication sent by the office of the Secretary, State Transport authority, Trivandrum.  But there was no action.  Notice was sent to opposite party.  Opposite party sent no reply.  But on 12.11.2008 opposite party sent a reply reiterating the demand to comply with his untenable demands.  It is alleged in the reply dated 12.11.2008 that on the date of accident the vehicle was used for commercial purpose and directed him to produce the permit for the same.  The application for canceling the tourist taxi permit was filed before the State Transport Authority as early as 01.02.2007.Hence during pendency of the application permit will not be issued.  The complainant received a letter dated 31.07.2007 from the State Transport Authority demanding ` 2000 for pending the CF less permit less operation and the same was paid on 10.08.2007.   Complainant has served the order No.H2/2040/STA/2007 dated 22.11.2007 accepting the surrender of permit and canceling the same with effect from 23.11.2007.  Hence there is no justification for the demand to produce permit.  The complainant was only carrying paper bundles to office and that was not for distribution in the course of the journey as alleged.  The use of car at that time of accident cannot be treated as commercial purpose.  Even if it was used for commercial purpose the opposite party cannot abdicate from the responsibility of indemnifying the complainant since the premium that was being paid by the complainant was the premium ie paid in the case of vehicles used for commercial purpose.  Complainant is entitled to get the insurance amount with compensation.  The denial of compensation is deficiency in service.  Hence this complaint.

          Pursuant to the notice the opposite party entered appearance and filed version denying the main allegations of the complainant.  The contention of opposite party in brief are as follows :  This complaint is not maintainable since the same is barred by Res-Judicata since the application for the same issue before the Insurance Ombudsman by the complainant has already been disposed off.  The vehicle was insured as a passenger carrying commercial vehicle.  It had no permit to ply the same as a passenger carrying commercial vehicle at the time of accident.  It was plied as a commercial vehicle at the time of incident.  The vehicle had permit to ply the same as a commercial vehicle from 15.09.2000 to 14.09.2005, but the permit was not renewed or revived after the said period but the colour of the number plate changed to use the car as a private vehicle prior to the accident, without even obtaining the permission or sanction from the Regional Transport Authority and by not getting endorsement in the registration certificate of the vehicle to convert the same as private vehicle by canceling the permit.  On receiving the claim form dated 10.01.2008 it was understood that the vehicle was plied at the time of accident for commercial purpose by carrying Manorama newspaper and other publications for distribution.  Hence it is evident that the car was used for commercial purpose at the time of the accident without a permit for the same.  The permit was surrendered with effect from 23.11.2007 as per the application dated 18.06.2007 that is subsequent to the date of accident.  The vehicle was plied for commercial purpose without permit.  Opposite party after getting the claim deputed a surveyor and loss assessor but assess the damage caused to the insured vehicle.  He has assessed the net liability on salvage loss basis as 84,500.  Since the vehicle was plied without permit he was asked to furnish documents including the permit.  But complainant did not furnish the documents.  Opposite party is not liable to pay the insurance amount since the vehicle was operated by the complainant without permit.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether complaint barred by Res Judicator?

2.     Whether there is any deficiency on the part of the opposite party?

3.     Whether the complainant is entitled for the relief as prayed in the complaint?

4.     Relief and cost?

Evidence consists of oral testimony of PW1, DW1, DW2 and documentary evidence Ext.A1 to A10 on the side of complainant and Ext.B1 to B14 on the side of opposite party.

Issue No.1

          The opposite party raised issue on Res Judicata from the very outset.  Forum heard this as the preliminary issue and found the complaint maintainable.  Forum in its decision pointed out that the complainant is entitled to approach the Forum to settle the dispute with the some set of facts if he has not satisfied with the verdict of Ombudsman.  The Forum has ample power to settle this dispute under Section 3 of Consumer Protection Act which made it clear that the provisions of the Act shall be in addition to and not in derogation and that the provisions of any other law for the time being in force.   Hence accepting earlier findings this issue is answered in favour of the complainant.

Issue No.2

          Admittedly the vehicle was insured as a passenger carrying commercial vehicle.   The case of the complainant is that his vehicle caught fire and get destroyed on 08.06.2007 whereby sustained a loss of ` 1,35,000.  Incident was informed on the same day to opposite party.  Subsequently complainant made claim for insurance amount.  But claim was not allowed on the ground that the complainant plied the vehicle for commercial purpose at the time of incident eventhough the permit to the some commercial purpose expired on 14.09.2005. 

          Ext.A1 policy reveals that the accident took place within period of insurance the period from 16.01.2007 to 15.01.2008 and the date of accident is 08.06.2007.  Ext.A2 report issued by Fire Force Authority shows the paper loss of vehicle as ` 1,75,000 and the loss of articles within the car as ` 25,000.  Ext.A3 receipt issued by Iritty  Police  has giving  the  gist  of the complaint lodged  before   the Police thus               “ 08.06.2007 XobXn ]peÀs¨ 4.45 aWn¡v KL-13F/ 6136 number Imdn\v F§-s\tbm Xo ]nSn-¨-Xn  ImdpT AXn D­m-bn-cp¶ ae-bmf at\m-ca Zn\-¸{X sI«p-I-fpT _me-ca ssUPÌv F¶nh ]qÀW-ambn I¯n \in-¨-Xmbn ]cm-Xn.”  Ext.A3 is the document that reveals the complainant has used vehicle for the commercial purpose at the time.  The main contention of the opposite party is that the complainant used the vehicle for commercial purpose without permit, which is policy violation.

          The learned counsel for the complainant argued that the vehicle was having permit for the period from 15.09.2005 to 14.09.2005.  The said permit was not renewed as the complainant was not having intention of use the vehicle for commercial purpose after the said period.  But it can be seen that Ext.A4 only proves that application dated 18.06.2007 for cancellation was submitted by Sri. K.P. Kunhikannan before the State Transport Authority.   The surrender of permit accepted and cancelled with effect from 23.11.2007.  It is also seen recorded ` 2,000 remitted as pending fee valid receipt No.51594/2007 as per Ext.A4 application dated 16.06.2007.  The complainant contended that he had submitted application of the cancellation of permit on 01.02.2007.  The Chairman and members, State Transport Authority, Kerala in their order No.H2/2040/SF/HTA/2007 dated 22.11.2007 has specifically written in the application from K.P. Kunhikannan dated 18.06.2007.  There is no reason to disbelieve this document.  The letter dated 03.02.2010, Ext.A1 which is marked subject to proof sent by the Secretary, in response to notice send by the Forum summoning of the application dated 01.02.2007 submitted by K.P. Kunhikannan for cancellation of the permit No.GCB -6136 before the transport authority, Trivandrum.  On perusal of the record it is seen informed that the application for cancellation of permit KL-13F/6136 was received on 01.02.2007.  It is also written the intimation regarding the proceedings has been intimated the applicant by forwarded copy of the proceedings on 26.11.2007.  The last sentence of the letter is that the file renewing the matter was disposed and which could not be produced before the Forum suggested in the notice.  Copy of the proceedings of 26.11.2007 is produced and marked as Ext.A4 which reveals that the date of application is 18.07.2006.  The date of application has been written in Ext.A4 separately for the specific purpose of reading the date of application.  The letter written on 2 _1/2 years ie on 03.02.2007 has not seen referred to any record on file. He did not make any explanation while 18.06.2007 recorded as the date of application in Ext.A4 and A5 and he recollect the date of application is 01.02.2007.  The Joint Regional Transport Officer, Tellicherry sent the Forum the order of the  State Transport Authorities ie H2/2040/STA/2007 dated 22.11.2007 the date of application therein also is on 18.06.2007 as that of Ext.A4 JRTO, Tellicherry sent the document, order of State Transport Authority dated 22.11.2007 which he received on 05.12.2007 in his office.   Ext.A4 is the copy of this order.  Ext.A4 is a fully proved document, the genuinity of contents can not be doubted at all upon a letter of an officer which is gathered information without basing any reliable record.  It is difficult to accept the arguments of the learned Counsel of the complainant that the contents in Ext.A4 issued by other Transport Authority is a mistake and the content of Ext.X1 letter which is prepared without referring to any reliable document is genuine and proved.  Under such circumstances there is no need to depend upon Ext.X1 and X2 a document left subjected to proof which does not help to understand the truth.  Ext.A4 proved that the complainant made application to cancel the permit on 18.06.2007.  If that be so there was no permit on the date of accident.

          The certificate issued by the Fire Force Authority,  Ext.A2, shows that the incident happened destroying articles worth of Rs.25,000 from inside the vehicle.  Ext.A3 receipt shows that the article lost inside were bundles of Malayala Manorama Daily and Balarama Digest etc.  Hence in the usual course of dealing there is nothing wrong if it is believed the  vehicle has been used for commercial purpose.  In cross examination PW1 deposed that Ext.B1 says the date of application for canceling the permit is 18.06.2007.  Ext.B1 is the copy of the order No.H2/2040/STA/2007 dated 22.11.2007.  Copy of the same has been marked as Ext.A4 on the side of the complainant.  Complainant admitted in the cross examination that Ext.A4 is the order sent by opposite party to him.  Complainant deposed that “tFXp tcJ {]Im-c-amWv 01-.02.2007 \v Fsâ cancellation\v th­n-bp-ff At]£ STAbn lmP-cm-¡n-bXv F¶v F\n-¡p-ff letter In«n-b-Xnsâ ASn-Øm-\-¯n ]d-bm³ Ign-bp-T.{]kvXpX letter lmP-cm-¡n-bn-Ã.”   Since the related document of evidence to show that date of application for cancellation is with the complainant, there is no justification for suppressing these documents.  Complainant must produce this document in order to establish his case that the application for cancellation of permit was given before the date of incident as he stated on 01.02.2007.  The document convincingly proved that the complainant had delegated the application for cancellation of permit on 01.03.2007.  Except the letter Ext.X1 there is nothing on record to show that the complainant had submitted application for cancellation of permit before the alleged accident on 08.06.2007.  Complainant referring upon Ext.A8 marked subject to proof.  He failed to prove the document either producing the original or examining the witness.  It is not safe to depend upon a mere Photostat copy.  This a letter sent to complainant himself.  The original should have been produced by the complainant.  Non-production of the original letter creates suspicion that hit the basic set up of complainant’s case.  Until and unless complainant in proving the date of application was prior to the occurence of accident, it can only be presumed that the complainant was using the vehicle without any permit on the day of accident.

          In the light of the above discussion we are of opinion that complainant is not entitled for the insurance amount since there was violation of policy condition by using the vehicle without valid permit.   On the date of accident. Hence issues 2 to 4 are found against complainant.

          In the result complaint is dismissed.  No order as to costs.

                              Sd/-                     Sd/              Sd/-

President              Member      Member

APPENDIX

Exhibits for the Complainant

A1.  Insurance Policy schedule of the vehicle.

A2.  Kerala Fire Force-Fire Report.

A3.  Copy of certificate of receipt of petition.

A4.  Cancellation order of Tourist Permit.

A5.  Copy of letter sent to OP.

A6.  Letter dated 12.11.08 sent by OP.

A7.  Power of Attorney

A8.  Letter dated 31.07.2007.

A9.  Acknowledgment

A10.Postal Receipt dated 15.07.2008.

Exhibits for the opposite party

B1.  Cancellation order dated 22.11.2007 of STA, Kerala.

B2.  Copy of complaint.

B3.  Copy of order of Insurance Ombudsman, Kochi.

B4.  Notice dated 03.11.2008.

B5.  Letter dated 12.11.2008.

B6.  Motor claim intimation form.

B7.  Motor claim form.

B8.  Copy of Registration Certificate.

B9.  Copy of the page of RC showing renewal of registration.

B10.Insurance Certificate of the Vehicle.

B11. Letter dated 01.07.2008.

B12. Letter dated 16.09.2008.

B13.  Motor Survey Report.

B14.  Letter dated 14.07.2008

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

DW1.  T.A. Sankarankutty.

DW2.  M. Ravindran

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT