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 /> <br /> O.P.No. 142/2002 Filed on 01.04.2002<br /> Dated : 30.09.2008<br /> Complainant:<br /> Kanichai Hotels Pvt. Ltd., Hotel Lucia, East Fort, Thiruvananthapuram represented by its Manager. <br /> <br /> (By adv. P.A. Ahamed)<br /> Opposite party:<br /> Divisional Manager, United India Insurance Company, Palayam, Thiruvananthapuram. <br /> <br /> (By adv. C. Jagadeesan)<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 20.10.2004, 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 28.08.2008, the Forum on 30.09.2008 delivered the following:<br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that complainant is the owner of the Eicher Mini Bus having Reg. No. KL-01 3777. The said vehicle was insured with the opposite party with insurance No. 101400/31/01/57/91. On 27.10.2001 the said vehicle, on its way back to Hotel Lucia, East Fort, from Airport fell into a gutter and met with an accident, consequently the engine got damaged. The incident was intimated to the opposite party and the vehicle was lifted to Grand Motors Sales Corporation in a lift van. The claim was submitted to opposite party on 07.11.2001 with necessary bills. Complainant had incurred an expense of Rs. 40,090/- towards repair. Complainant paid the said amount by cheque. Opposite party on 05.02.2002 sent a letter to the complainant stating that the claim of the complainant is not sustainable as the vehicle is not met with an accident. Falling of the vehicle in a gutter and thereby causing serious damage to the engine is nothing, but an accident. There is deficiency in service on the part of opposite party in repudiating the claim. Hence this complaint claiming an amount of Rs. 40,090/- with future interest, a compensation of Rs. 10,000/- and costs. <br /> Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. The complaint is filed with an intention to extract money from the opposite party. Complainant has no cause of action to sue against the opposite party. Complainant has no specific case as to the alleged incident. There are no gutters or humps on Airport road as alleged in the complaint. There is no chance for getting damage to the engine of a motor vehicle like Eicher Passenger Bus as alleged in the complaint. No internal parts of the engine of a motor vehicle may get damage without causing severe damage to the external body of the engine. In the complaint nothing is mentioned about the alleged hump. A mere reading of the bill produced by the complainant will convince that the alleged repair work done on the engine was not due to the falling of the vehicle into a gutter or run over on a hump. It may be due to the running of the vehicle without oil and grease or it may be the usual overhauling of the engine executed in the ordinary course. The complainant has no specific case that at which place the alleged incident occurred. If it met with an accident, there would be a motor occurrence case, an FIR, a scene mahazar etc. The owner had sent the vehicle for repair without intimating the insurance company. The vehicle has not fallen into a gutter and not met with an accident. There is no deficiency in service on the part of the opposite party. Hence opposite party prayed for dismissal of the complaint with compensatory cost. <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in service on the part of opposite party?<br /> (ii)Reliefs and costs.<br /> To support the contention in the complaint, C. Sasikumar, Manager of Kanichai Hotels Pvt. Ltd has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P5. To support the contention in the version, B. Baiju, Divisional Manager has filed a counter affidavit and witness was examined as DW1 and marked Exts. D1 to D5. <br /> Points (i) & (ii):- It has been the case of the complainant that complainant insured his vehicle bearing Reg.No. KL-01 3777 with opposite party and Insurance Policy No. is 101400/31/01/57/91. On 27.10.2001, the said vehicle, on its way back to Hotel Lucia, East Fort, from the airport, fell into a gutter and met with an accident. Consequently the engine got damaged and the same was intimated to the opposite party and claim form was submitted on 07.11.2001 with necessary bills issued by Grand Motors Sales Corporation where the said vehicle was repaired and that the said claim was repudiated by the opposite party. Ext. P5 is the claim repudiation letter dated 05.02.2002. As per Exts. P5 letter, the investigator of the opposite party has made elaborate enquiries and came to the conclusion that the damage has occurred not due to any accident, and that the investigator has also visited the alleged accident spot but could not see any hump or ditch as stated in the claim form. Ext. P1 is the authorization letter issued by the Director, Kanichai Hotels (P) Ltd authorizing Mr. C. Sasikumar, Manager of the said hotel to appear and depose on behalf o Director. Ext. P2 is the copy of the letter dated 07.11.2001 requesting the opposite party to issue the claim form. Ext. P3 is the copy of the credit bill issued by Grand Motors Sales Corporation to Lucia Hotel. Ext. P4 is the copy of the cheque receipt for Rs. 40090/- issued by Grand Motors Sales Corporation. In his deposition PW1 deposed that at the time of the alleged incident, he was in his office and did not see the incident and on information by phone PW1 reached the place of incident. PW1 would depose that at the time of the accident, the said vehicle's odometer reading was around 30000 km and the said vehicle was brought to the service centre in the vehicle brought by the company. DW1, the approved valuer and surveyor had filed Ext. D3 survey report dated 17.11.2001. As per Ext. D3, the surveyor could not notice any external damage or any internal accidental damage, but on dismantling, only crank shaft assy found sheared which was occurred due to lack of oil or might be due to over running without oil/grease. In his cross examination DW1 deposed that he visited the spot and inspected the said vehicle after reading the terms and conditions of the insurance policy (Ext. D1). DW1 would depose that he has been residing in Thiruvananthapuram for more than 15 years and he would know the said road position and there was no hump as alleged in the complaint. He would further depose that if there is a ditch just after the hump as alleged in the complaint, the total depth would increase if the hump is big and decrease if hump is small. To a question that whether the vehicle would restart after engine damage, DW1 would reply that the question is not clear, but DW1 would add that if the impact of damage of the engine is heavier, the vehicle will not restart. In chief examination DW1 would depose that if vehicle falls into gutter just after the hump ordinarily the engine would not collapse. If the gutter is of 5 to 6 feet depth, the fall of the vehicle would definitely endanger the engine in addition to the damages to frontage suspension, radiator, cross membrane, steering, bracket of the chasis etc. DW1 would further depose in his chief examination that in the said vehicle the internal parts of the engine like crank shaft and piston, its connected nuts, bolt etc. were found sheared. DW1 would depose that most of the items mentioned in Ext. P3 were internal to the engine and that on examination of the internal parts, the entire portion was in black colour, which was due to the sparking caused by overheating while the vehicle was running without engine oil, which would, at some condition make cease the vehicle. DW1 further deposed that at the time of inspection the said vehicle had crossed 133641 k.m and that opposite party started repairing without his consent. Main thrust of argument advanced by the opposite party was to the effect that the engine of the said vehicle had got damaged due to lack of engine oil and lubricants and that the vehicle was allowed to run without engine oil and lubricants which caused over strain to the engine and that at a speed of 10 k.m, there will be no chance for damage as alleged in the complaint and that there is no provision in Ext. P1 policy for paying damage to the owner if the damage was due to over strain. Though DW1 has been vehemently cross examined by the complainant, nothing was made out from him to shake the Ext. D3 surveyor report, which is a crucial document to be considered. Complainant did not examine the Grand Motors Sales Corporation authorities to prove the position of the alleged vehicle at repair and the veracity of Ext. P3 and Ext. P4 in the light of Ext. D3 report, to prove otherwise. PW1 did not see the said accident nor did mention the place of the alleged incident in the complaint. The onus of proving the alleged accident and the condition of the vehicle at repair would lay on the complainant. On going through the pleadings in the complaint and version and Exts. P1 to P5 and D1 to D5 and deposition of PW1 and DW1 and hearing the arguments of the counsels, we have come to the conclusion that complainant failed to establish the complaint. Opposite party had acted in observance of the terms of policy and no deficiency in service could be attributed on the part of opposite party in repudiating the claim of the complainant. Deficiency in service is not proved. Complaint has no merit at all which deserves to be dismissed. <br /> In the result, complaint is dismissed. There will be no order as to costs in facts and circumstances of the case. <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 /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th September 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER <br /> <br /> <br /> <br /> <br /> O.P.No. 142/2002<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Sasikumar<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Original abstract from the minutes of the meeting of the <br /> Board of Directors of the Company Kanichai Hotels (P) Ltd.<br /> P2 - Original letter dated 07.11.2001 for requesting the issue of <br /> claim form. <br /> P3 - Photocopy of credit bill dated 19.12.2001.<br /> P4 - Photocopy of cheque/DD receipt dated 30.12.2001 for <br /> Rs. 40090<br /> P5 - Original letter dated 05.02.2002 issued by the opposite party <br /> to the complainant. <br /> III OPPOSITE PARTY'S WITNESS :<br /> DW1 - Safi. V.M<br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> <br /> D1 - Original policy dated 01.11.2000 with policy No. 88437. D2 - Original motor claim Form of Claim No. 4472.<br /> D3 - Original Motor Survey Report (Final) dated 17.11.2001. D4 - Original letter dated 04.01.2002.<br /> D5 - Original letter dated 07.11.2001 issued by the complainant to the opposite party. <br /> <br /> <br /> <br /> <br /> PRESIDENT<br />