KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL No. 694/04

JUDGMENT DATED: 11-12-2009

PRESENT:

SHRI. M.V. VISWANATHAN                             :JUDICIAL MEMBER

SHRI. M.K. ABDULLA SONA                  :  MEMBER

New India Assurance Company Ltd.,  :  APPELLANT

MGT Building, Kalpetta North.

          (By Adv. Sri. Rajan P Kaliyath)

                    Vs

J. Augustin, S/o. Oseph,                           :  RESPONDENT

Kizhakkel House, Post Sreemadura,

Mannuvayal, Gudallur, Nilgiris.

          (By Adv. Sri. George Varghese Kizhakkambalam)

JUDGMENT

SHRI. M.K. ABDULLA SONA          :  MEMBER

                    This appeal prefers from the order passed by the CDRF, Wayanad in the file of OP No. 153/2000 dated 30-06-2004.  The appellant is the first opposite party in the above OP who prefers this appeal from the above impugned order. 

          2.          In short, the complainant is the registered owner of the Jeep No. T.N. 43 Z/225.  The vehicle was insured with the opposite party with effect from 29-09-1999 to 28-09-2000.  On 09-01-2000 while the Jeep was going with passengers, it met with an accident by the hit of the lorry bearing Registration No. T.N. 36/898 which came an excessive speed.  Due to the impact of the hit, the jeep was thrown out from the road and it was extensively damaged.  The accident was reported to the opposite party and a survey report was prepared by its officials.  As per the instruction of the opposite party the jeep was repaired at Friends Auto Workshop at Edakkara in Malappuram District.  The opposite party collected all the original bills and vouchers from the complainant on the assurance that the amount will be paid seen after the repair.   The complainant incurred an expense of Rs. 97,000/- towards spare parts and repair charges.  He has spent Rs. 1500/- towards towing charges.  He has also incurred an expense of Rs. 10,000/- as traveling expenses to visit the offices of the opposite party at Malappuram, Kalpetta at Manjeri and Rs. 7500/- towards J.C.B charge.  The complainant incurred a total expenses of Rs. 1,16,000/- to repair the vehicle.  He paid the repairing charges on borrowing money from others. The opposite party vide their letter dated 09-04-2000 informed the complainant that they were not in a position to settle the claim, since the vehicle was overloaded at the time of accident.  The said contention is not sustainable.  The act of the opposite party is deficiency in service on the complainant is entitled to get the repair charges and other expenses.  So the complainant prays for a direction to the opposite party to pay Rs. 1,16,000/- as repair charges, Rs. 25,000/- as interest and Rs. 10,000/- towards loss sustained to the complainant due to the non-payment of repairing charges with costs.

3.          The opposite party entered appearance and filed their version and contended that the accident was informed only after removing the jeep from the accident spot thereby depriving their right to have a spot survey.  The allegation that the complainant spent Rs. 1,16,000/- towards the repairing charges is not correct.  The opposite party never assured the complainant that the said charge will be reimbursed as soon as the vehicle is made road worthy.  The accident was informed to the Manjeri Branch on 21-01-2000 ie, after 12 days of the accident.  On 21-01-2000 the required claim form was issued and it was duly filled and returned on 28-01-2000.  On receipt of the claim form on the same day itself the survey was arranged and so there was no deficiency in service on the part of the opposite party.  After the survey and investigation it was revealed that the jeep was plying in violation of policy and permit conditions. The driver of the jeep was charge sheeted by the police for offences punishable u/s 279, 337, 338, 304(a) of IPC and u/s 66 r/w 192 of Motor Vehicle Act.  As the jeep was overloaded with 15 persons against the capacity of 6 in all, there is violation of policy and permit conditions and the opposite party is not liable to pay any compensation to the complainant and the same was informed to him vide letter dated 10-04-2000.There was no deficiency in service on the part of the opposite party, and  the complainant is not entitled to get any relief in this case and prayed for dismissal of the O.P with costs to it.

          4.          As evidence pw1 is a witness and proved Exts. A1 to A4.  On the other side OPW1 was examined.

          5.          The Forum below examined both the oral and documentary evidence and found that the question whether on the sole ground overloading alone the opposite party is not liable to pay compensation to the complainant.  There is no evidence to prove that overloading was the cause of accident in this case or that with the knowledge of the owner overloading done so as to deny indemnification of the damage sustained to the vehicle.  The opposite party who denied the claim of complainant to get indemnification of the repairing charges of the damage sustained to the vehicle did not produce the policy before the Forum to prove the exclusion clause in it.  The permit was given to the jeep for plying the same as a taxi and at the time of incident also the vehicle was plying as a taxi and there was no permit violation.  The persons are traveling in the jeep were not in any way concerned in the cause of accident nor have they contributed to the risk in respect of the loss caused to the vehicle.  The complainant is not claiming any compensation in respect of liability to the persons traveling in the vehicle.  So the repudiation of the claim of the complainant cannot be sustained and it is clearly a deficiency in service on the part of opposite party.  The Forum below directed the opposite party to process the claim of the complainant on the basis of the survey report and other evidence and records produced by the complainant, within a period of one month from the date of receipt of copy of the order.  Both parties are directed to suffer their own respective costs. 

6.          This appeal prefers from the above impugned order passed by the Forum below.  On this day the appeal came before this Commission, both appellant and respondents are present.  The Counsel for the appellant argued on the grounds of appeal memorandum that the order passed by the Forum below is not accordance with the provisions of law and evidence.  It is subject to be dismissed with costs.  The Counsel for the appellant submitted that the alleged accident was due to the overloading.  As against the capacity of 6 passengers, the jeep was overloaded with 15 passengers.  There is clear breach of the policy conditions and also that the jeep was being used in total violation of all the norms.  The police case is also against the jeep driver.  He contended that the Forum below is not having any legal strength to direct the opposite party to process the claim of the complainant on the basis of the survey report and other evidence and record produced by the complainant.  The Counsel for the respondent vehemently argued that the criminal case charged against the complainant u/s 279, 337, 338, 304(a) of IPC and u/s 66 r/w 192 of Motor Vehicle Act, is numbered as CC 503/00, disposed on merit and acquitted the accused.  This is a piece of evidence enough and more to show that there was no overloading in the vehicle at the time of the accident.  The appellant/opposite party are also not having any evidence to corroborate their argument that there are overloading in the vehicle and the accident was incident due to the reason for the overloading of the vehicle.  There was no policy condition produced by the opposite party before the Forum below.  What is the harm the appellant/opposite party to produce the copy of the policy conditions before the Forum below?  In the absence of such a document also the argument that the overloading in the vehicle at the time of the accident is not a substantive reason to interfere in the order passed by the Forum below.  The Forum below ordered only to process the claim of the complainant on the basis of the survey report and other records produced by the complainant within a period of one month from the date of receipt of the order.  What was the difficult from the part of the appellant to process and dispose it as per the direction of the Forum below.  This Commission is not seeing any reason to interfere in the order passed by the Forum below.

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.  The points of the appeal answered accordingly.

                                                M.K. ABDULLA SONA          :          MEMBER

                                       M.V. VISWANATHAN          :JUDICIAL MEMBER