Date of Filling     :  02.03.2016.

                                                                                           Date of Disposal :  29.07.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.10/2016

(Dated this Friday the 29^th day of July 2016)

Mr. P. Nageswara Rao,

S/o. Mr. P. Lakshman,

No.19/4, Kasi Vishvanathar Street,

Red Hills,

Chennai - 600 052.                                                                    … Complainant.

                                                          / Versus /

The Branch Manager,

IFFCO TOKIYO General Insurance Company Ltd.,

No.128, 4^th Floor, IFFCO Bhavan,

Habibullah Road,

T. Nagar,

Chennai - 600 077.                                              … Opposite party.

This complaint is coming upon before us finally on 20.07.2016 in the presence of Mr. A.R. Poovannan, Counsel for the Complainant and the  opposite party is Set - Exparte for non appearance and upon hearing arguments, having perused the documents and evidences of the Complainant,  this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking relief to pay a sum of Rs.1,50,000/- towards damages and to pay a sum of Rs.1,00,000/- towards compensation for mental agony, hardship, strain, inconvenience, monetary loss caused to the complainant with cost Rs.5,000/-.

1.      The brief averments of the complaint as follows:-

The complainant is the absolute owner of the lorry bearing registration number TN 20 BH 5679.  The complainant insured the said vehicle with the opposite party for a period from 02.02.2015 to 01.02.2015 under policy no.90916158.  The policy then taken by the complainant is a comprehensive policy which includes own damage also.  The said vehicle met with an accident on 08.07.2015 and got extensively damaged and the damage costs around Rs.1,50,000/-.  The complainant then made his claim with the opposite party for the damage and his application was repudiated by the opposite party on 31.07.2015.

2.       The opposite party repudiated the complainant’s claim stating that 5 persons travelled in the vehicle and as per the registration certificate the seating capacity only 3 persons and thus the complainant violates the terms and conditions of the policy and as such complainant is not entitled for the damage amount.   It is very clear that though the seating capacity found in the registration certificate is only three.  The policy issed bythe opposite party is for 4 in number.  Further, only 3 persons including the driver were inside the cabin and the other 2 are load ment who are in the tailor.  Further, it is not the report from the Motor vehicle inspector or the Inspector of Police, Aarani that the accident was due to over loading of the passengers or other.

3.       Infact, the accident was solely due to negligence.  The complainant’s claim is only on the damage caused to the vehicle and the repudiation by the opposite party is not correct.  Since, the insurance with the opposite party is comprehensive and it includes the own damage also.  For the reason best know to them, the opposite party wantonly repudiated the claim.  The act of the opposite party amounts to gross deficiency in their service and the complainant is put to loss and great mental agony, hardship and strain.  Therefore, the complainant issued a legal notice to the opposite party on 18.09.2015 to reconsider their claim and though it was duly acknowledged by them has not made any response.  Hence, this complaint.

4.       In order to prove the case of the complainant, the complainant has filed the proof affidavit as his evidence and Ex.A1 to Ex.A9 are marked.

5.    At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

6.       Written arguments filed and also oral arguments adduced on the side of the complainant.  Though the opposite party is set Ex-parte, this Forum wants to dispose the complaint fully on merits.

7.       Point no.1:-

According to the case of the complainant is that the opposite party has repudiated the complainant’s claim without any valid reason and such repudiation is a deliberate one and thereby, the act of the opposite party amounts to gross deficiency in service.   In such circumstances, it goes without saying that the complainant is having bounden duty to prove his complaint with relevant and acceptable evidence.  At the outset, on careful perusal of the averments made in the complaint as well as the evidence put forth in his proof affidavit, it is learnt that the complainant is the absolute owner of the lorry bearing registration no.TN 20 BH 5679 and the same was insured with the opposite party for the period from 02.02.2015 to 01.02.2016 under policy no.90916158, being a comprehensive policy which includes own damage also.  The Registration Certificate, Commercial Vehicle certificate of Insurance certificate and Goods Carriage Permit of the said vehicle are marked as Ex.A2 to Ex.A4 respectively. 

8.       Furthermore, it is stated by the complainant that the said vehicle met with an accident on 08.07.2015 and got damage and it costs around for Rs.1,50,000/- and for which the claim made by the complainant and the opposite party repudiated the complainant’s claim which is marked as Ex.A6.  The F.I.R. copy for the alleged accident is marked as Ex.A1 and the driving license who has driven the vehicle is marked as Ex.A5.  On  receipt of the Ex.A6, repudiation letter of the opposite party, the complainant sent the grievance letter to the opposite party which is marked as Ex.A7.  Then the complainant sent Ex.A8, legal notice and the acknowledgement of the opposite party for the receipt of the same is marked as Ex.A9.

9.       At this point of time, on careful perusal of the documents from Ex.A1 to Ex.A9, no documents filed by the complainant before this Forum to show the particulars of the damages and similarly, the estimation cost of the damage which might have been  either by an authorized service station or by a workshop where the said vehicle was repaired.  Infact, no such bills or estimation amount  have been filed before this Forum either at the time of filing the complaint or at the time of filing proof affidavit.  Therefore, the alleged amount of Rs.1,50,000/- is not at all proved on the side of the complainant.   At the outset, it is pertinent to note that the authorized service station or the authorized workshop is not at all added as a party to establish the repair and the damage caused in the accident to the vehicle. 

10.     The next thing to be noted is that on carefully seeing the Ex.A3 through naked eyes, it is clearly seen that the alleged vehicle bearing registration no. TN 20 BH 5679 is a commercial vehicle.   In Ex.A3, the Commercial Vehicle Insurance Certificate, it is clearly mentioned that the said vehicle is a commercial vehicle and moreover Ex.A1, F.I.R. was registered against the driver of the complainant, who has driven the mini lorry bearing registration no. TN 20 BH 5679 at the time of accident.   Therefore, it is crystal clear that the complainant is engaging a separate driver to drive the complainant’s vehicle for commercial purpose.  Not only that, there is not even a single word found either in the complaint or in the proof affidavit that the said vehicle bearing registration no. TN 20 BH 5679 was purchased only for his livelihood of the complainant.   

11.     So, it is crystal clear that the vehicle involved in this complaint is purely used for the commercial purpose by engaging driver.  Therefore, the complainant is not a consumer as defined under section 2 (d) (ii) of the  Consumer Protection Act, 1986.  Not only that, the complainant knowingly suppressing the above all facts in the complaint which clearly shown that the complainant has moved this Forum without clean hands. 

In this regard, the decision held in I (2015) CPJ 760 (NC) United India Insurance Co. Ltd. VS Kishore Sharma is squarly applicable to the fact of this case.

          “Held that the respondent had purchased the vehicle for his transport business and driver has been employed for driving the said vehicle.  Hence, the purpose of purchasing of vehicle was to use the vehicle for commercial purpose hence the respondent do not fall under the category of consumer.  Hence, complaint of the respondent deserves to be dismissed”.

12.     In the light of the above facts and circumstances of the case and observation made above, it is needless to say that the deficiency of service of the opposite party has not been proved by means of relevant and acceptable evidence.  Thus, point no.1 is answered accordingly.

13.     Point no.2:-

As per the decision arrived in point no.1, the complainant is not at all entitled for any relief as prayed in the complaint.  Thus, point no.2 is answered accordingly.

14.     In the result, this complaint is dismissed.  No cost.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 29^th July 2016.

,

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MEMBER - I                                                                            PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                            PRESIDENT