KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:584/2005 JUDGMENT DATED:12..12..2008. PRESENT SRI.M.V. VISWANATHAN : JUDICIAL MEMBER SRI.M.K. ABDULLA SONA : MEMBER Divisional Manager, National Insurance Co. Ltd., : APPELLANT Kollam. (By Adv: Sri.Saji Isaac.K.J) V. Isaque, 214, Basari Buildings, 25, Thumbadu Ward, :RESPONDENT Valacoda I(P.O), Punalur. (By Adv:Sri.K.P.Jabbar) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated:16th May 2005 passed by CDRF, Kollam in OP:333/03. The complaint in the said OP was filed by the respondent/complainant for getting the insurance claim with respect to his insured vehicle bearing Registration No:KL-02-M-8595 which was insured with the opposite party/National Insurance Company, Kollam Branch. It was alleged that the insured vehicle met with a road accident on 26..3..2003 and the vehicle was damaged. The matter was informed to the opposite party. The opposite party deputed a licensed surveyor to assess the loss to the vehicle. The Surveyor submitted the report stating that there was violation of the permit conditions. He assessed the loss/damage to the vehicle at Rs.65,656/-. The opposite party/Insurance Company repudiated the claim put forward by the complainant on the ground that there was suppression of material facts regarding the incident and there was violation of the permit conditions. Hence the complaint was preferred by the complainant before the Forum below. 2. Before the Forum below the complainant was examined as PW1 and the driver of the insured vehicle at the time of the accident was examined as PW2. Ext.P1 copy of the GD extract of the Kottarakkara Police Station was marked as P1 and receipt for Rs.82,203/- was marked as P2. From the side of the opposite party/Insurance Company, DW1 the surveyor who submitted the survey report has been examined. The Assistant Administrative Officer of the insurance company was also examined as DW2. Ext.D1 to D6 documents were marked on the side of the opposite party/insurance company. On an appreciation of the evidence on record, the Forum below found deficiency of service on the part of the opposite party/insurance company in repudiating the insurance claim. Thereby the Forum below passed the impugned order directing the opposite party to pay a sum of Rs.65,656/- as compensation to the complainant with interest at 9% per annum from the date of the complaint and cost of Rs.1000/-. Aggrieved by the said order the present appeal is preferred. 3. When this appeal was taken up for final hearing, there was no representation from the side of the appellant/opposite party and respondent/complainant. So, this commission was pleased to dispose of the matter based on the materials available on record. 4. The points that arise for consideration are:- 1.Whether there was deficiency of service on the part of the appellant/opposite party in repudiating the insurance claim put forward by the respondent/complainant? 2.Is there any sustainable ground to interfere with the impugned order passed by the Forum below in OP:333/03? 5. Point Nos:1 and 2:- There is no dispute that the complainant’s vehicle bearing Registration No:KL-02M-8595, Ford Icon car was insured with the opposite party/insurance company and that the said vehicle sustained damage in an accident. According to the complainant the accident occurred on 26..3..2003 on the public road at Kottarakkara, Pulamon junction and in the said accident the vehicle hit against the traffic island at the Pulamon junction. The fact that the vehicle was having the valid and effective policy of insurance is not in dispute. Admittedly the said vehicle had the permit to ply the same as a commercial passenger vehicle. According to the opposite party that the vehicle has been used by the complainant/insured as a private vehicle and thereby there occurred violation of the permit conditions. But the aforesaid case of violation of permit condition is totally denied by the complainant/insured. It is to be noted that the opposite party repudiated the insurance claim based on the survey report. The surveyor first found the vehicle at the workshop on 31..3..2003. According to the surveyor the vehicle was not having the number plate with yellow background and the number written in black colour. The definite case of the complainant is that the vehicle was having the necessary number plates and the same was removed after the accident in order to conceal the fact that the said vehicle met with an accident. There is no acceptable evidence forthcoming from the side of the opposite party/insurance company that at the time of the accident the vehicle was not having the required number plates. On the other hand, the P1 GD entry prepared by the Kottarakkara, Police Station would show that the vehicle met with an accident on the public road at Kottarakkara, Pulamon junction. PW1, the complainant and PW2, the Driver of the vehicle at the time of the accident have categorically deposed about the number plates provided for the insured vehicle. Thus the evidence of PWs 1 and 2 and P1 General diary extract would make it clear that the vehicle was having required number plates. So, the case of the opposite party that there was violation of the permit condition cannot be believed or accepted. There is nothing on record to infer that the said vehicle had been used at the time of the accident as a private car. Moreover, using a commercial vehicle as a private vehicle cannot be treated as an offence or the same cannot be treated as violation of the permit conditions. If the vehicle was used in vice versa ie, a private vehicle has been used as a commercial vehicle then it can be seen said that the insured used the vehicle against the provisions of the Motor Vehicles Act and the rules there under. The accident occurred on the public road by hitting the vehicle against the traffic island. Thus, there was no nexus between the cause of the accident and the alleged violation of the permit conditions. In all respects, the opposite party/insurance company cannot be justified in repudiating the insurance claim on a lame excuse that there was violation of permit conditions. The aforesaid action on the part of the opposite party/insurance company in repudiating the insurance claim would amount to deficiency of service. 6. The surveyor has got a case that the accident might have occurred at some other place. The surveyor as DW1 has deposed that he made local enquiry/investigation regarding the accident said to have been occurred on 26..3..2003 at Kottarakkara, Pulamon junction. But there is nothing on record to show that the surveyor made any such investigation or local enquiry. There is no whisper in Ext.D3 survey report about the enquiry he made with respect to the accident. The names of the witness as with whom the surveyor made enquiries have not been disclosed in the survey report. In fact there is nothing on record to infer that the surveyor made any such enquiry regarding the accident which occurred on 26..3..2003. The evidence of DW1, the surveyor and D3 survey report regarding the accident which occurred on 26..3..2003 cannot be believed or accepted. Ext.P1 GD entry made by the local police would belie the testimony of DW1. There is sufficient ground to discard the finding of the surveyor that there was no such road accident occurred on 26..3..2003 at Kottarakkara, Pulamon junction. But, one thing is sure and certain that the insured vehicle was damaged in an accident. The ground or reason stated by the opposite party/insurance company for repudiating the insurance claim cannot be upheld. The case of suppression of material fact regarding the accident cannot be believed for a moment. The Forum below is perfectly justified in holding that there was deficiency of service on the part of the opposite party/insurance company in repudiating the insurance claim. 7. The surveyor who inspected the damaged vehicle and submitted D3 report has categorically admitted the fact that he assessed the damage to the vehicle at Rs.65,656/-. In fact the total damage was assessed at Rs.66,656 and 10 paise and a sum of Rs.1000/- has been deducted by way of policy excess. Thereby the loss has been assessed at Rs.65,656/-. On the other hand, the complainant/insured claimed a sum of Rs.1,24,203/- as compensation. He also produced Ext.P2 receipt for Rs.82,203/-. It would show that the complainant paid a sum of Rs.82,203/- for repairing the damaged vehicle. But the complainant has not adduced any acceptable evidence to prove that he actually incurred the aforesaid amount for repairing the damaged vehicle. So, the Forum below is justified in directing the opposite party/insurance company to pay the loss assessed by the surveyor. Thus, we are of the strong view that the Forum below is perfectly justified in awarding compensation of Rs.65,656/- with interest at 9% per annum from the date of complaint in OP:333/03 with cost of Rs.1000/-. We do not find any sustainable ground to interfere with the impugned order passed by the Forum below. So, the impugned order is confirmed. In the result the appeal is dismissed. The impugned order dated:16..5..2005 passed by the CDRF, Kollam in OP:333/03 is confirmed. As far as the present appeal is concerned the parties are directed to suffer their respective costs. M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER VL. | 
