KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.151/07 JUDGMENT DATED : 30/6/09 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER Prakash, S/o.Rajan, Prakash Mandiram Karamcode, : APPELLANT Chathannoor, Kollam. (By Adv.S.John) Vs 1. The Divisional Manger New India Insurance Co.Ltd., Divisional Office, Chinnakkada, Kollam –1 (By Adv. Jyothi Sarma. V) : RESPONDENTS 2. Dileep Khan Moonuthundil, Vilakkuddy, Punalur, Kollam (By Adv.Ligi Alphonse) JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Kollam in the file of OP No.286/04 dated 25/1/07. The appellant is the complainant who prefers this appeal from the above impugned order. 2. The brief of the case is that the complaint filed to get Rs.1,00,000/- with interest as damages from the opposite parties. He was the owner of the Mahindra Omni Bus bearing No.KL 2 H 489 which was insured with the 1st opposite party for a period from 31/3/2003 to 30/3/2004. The vehicle was a passenger carrying vehicle driven by the 2nd opposite party from South to North, Kannanalloor Kundara public road. On 8/12/2003 at 11 am and it fell down sue motou, by the passengers became injured. Serious damages were caused to the vehicle due to the accident which was reported to the Kundara police who registered a crime No.959/03. The police prepared a mahazar. The vehicle was completely damaged and the injured were treated in the Attonement Hospital, Perumpuzha. The accident was duly reported to the 1st opposite party since the policy was alive and valid. The company repaired a vehicle for the directions of the company. The complainant produced the vouchers and bills from the workshop to the 1st opposite party who returned by them without payment. The complainant sent an advocate notice to the 1st opposite party, hence the complainant claims Rs.1,00,000/- from the opposite party. 3. The opposite party appeared and filed their version. They contended that the complaint is not maintainable. Their another contention is that the complainant reported the claim is the 1st opposite party on 9/12/03 stating that the vehicle KL-2H-489 with a valid policy met with an accident at a place called Perumpuzha and the vehicle sustained damaged as a result of the accident. The 1st opposite party acted duly. It appointed a licensed surveyor and loss assessor to enquire into the accident and to assess the damages. The surveyor after a comprehensive inspection submitted survey report. In due course the complainant submitted the claim, stating that only 9 persons in the bus at the material time of the accident and out of them only six were insured. They were discharged from the hospital after giving first aid. The surveyor stated in the report that as per information collected there were 26 persons inside the vehicle at the time of the accident as against the maximum permitted seating capacity is 10 persons only. Overloading was the cause of the accident that the steering knuckle arm was broken due to the strain caused as a result of over loading. The net amount assessed as loss was Rs.38,844.20. A private investigator appointed dby the company to enquire into the matter in detail also reported that there were more than 25 persons for the vehicle at the time of accident. He collected the details from the Assisi Atonement Hospital, Perumpuzha, OP cards of 27 persons were collected. The Assistant Motor Vehicle Inspectors report stated the damage was due to the breaking of the axle. As per the charge sheet 20 persons injured and treated in consequence of the accident. Hence the complaint made a fundamental breach of the condition of the 20 persons were inside the vehicle at the material time of the accident. And the accident was caused due to over loading of passengers morethan 20 against the permitted capacity of persons 10+1. This is a fundamental breach of the policy condition. 4. On the part of the complainant PWs 1 and 2 were examined and document receipt P1 to P12 were marked. From the part of the opposite parties DWs 1 to 3 were examined and documents D1 to D12 were marked. 5. The Forum below claimed two issues whether there is deficiency in service on the part of the opposite parties and relief and costs. The Forum below found that the complainant is entitled no relief and there is no deficiency in service on the part of the opposite parties. The Forum below dismissed the complaint. The appellant preferred this appeal from the above impugned order passed by the Forum below. This case came before the Commission for final hearing, both the appellant and respondent represented through their counsels. The counsel for the appellant argued on the grounds of appeal memorandum and submitted that the order passed by the Forum below is not according to the provision of law and evidence. He submitted that the appellant/complainant is entitled to get compensation of Rs.1,00,000/- with interest from the respondent/opposite parties. The counsel for the respondent/opposite parties submitted that the appellant/complainant is not entitled to get any claim as per the conditions of policy issued by them. The damage of the vehicle was caused due to the careless and negligent use of vehicle. The axle of the vehicle was broken due to the over speed. The FI Statement and the final report are contradictory to one another. This Commission heard both parties and perused the entire evidence adduced by both the parties before the Forum below. It is seeing that the accident was created the great extent as acted against the policy condition (Ext.D6 and Ext.D7). In the price of the 10 persons 20, 25 persons inside the vehicle at the time of occurrence. The final report of the police was marked as Ext.D3 corroborating this evidence. From the every piece of evidence it is seeing that there were more than 20 persons inside the vehicle at the time of the accident. It is against the conditions of both the insurance policy and permit of the vehicle. In this circumstance this Commission seeing that there is no any reason to interfere in the order passed by the Forum below and the above said order is legally sustainable. In the result this appeal is dismissed and confirmed the order passed by the Forum below. Both parties are directed to suffer their respective costs. These points are answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT VALSALA SARANGADHARAN : MEMBER PK.
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.K.ABDULLA SONA | | 
