KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 404/04 JUDGMENT DATED: 26.9.09 Appeal filed against the order passed by CDRF, Idukki in OP.234/03 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER The Branch Manager, : APPELLANT United India Insurance Co.Ltd., Branch Office, Kannatt Shopping Complex, Kallarkutty Road, Adimali. (By Adv.Lakshmana Iyer.T.J) vs. Jijo Cherian, : RESPONDENT S/o Cherian, Puthiyakunnel House, Adimali.P.O., Idukki. (By Adv.Pradeep Sekhar.R) JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER It is aggrieved by the directions contained in the order dated 5.4.04 of CDRF, Idukki in OP.234/03 that the opposite party has come in appeal calling for the interference of this Commission as to the sustainability of the order passed by the Forum below. By the above said order the opposite party is under orders to settle the claim of the complainant on payment of Rs.6,777/- together with Rs.10000/- as compensation and cost of Rs.1000/- within 30 days from the date of order failing which the outstanding amount shall carry interest at 12% per annum from the date of default till the date of payment. 2. The complainant has approached the Forum alleging that there was an insurance policy taken by him for his vehicle and that the vehicle had met with an accident on 25.5.03 and had sustained damage and the same was repaired by spending a sum of Rs.6,777/-. The opposite party repudiated the claim on the ground that there was misrepresentation of material facts. According to the complainant the repudiation was illegal and alleging deficiency in service, the complaint was filed for directions to the opposite party to pay a sum of Rs.6,777/- with 18% interest from 18.7.03 and pay compensation of Rs.10000/- and cost of Rs.1000/- 3. Resisting the complaint the opposite party filed version contending that the claim was repudiated on valid grounds and that there was no deficiency in service. It was submitted by the opposite party that even the FIR was launched by the complainant after a delay of 5 days and on investigation by an independent investigator it was revealed that the vehicle at the time of accident was driven by the complainant’s father who did not have a driving license. It was also submitted that the amount claimed was excessive and the surveyor had assessed only the amount of Rs.3571/-. Pleading that there was no deficiency the opposite party prayed for dismissal of the complaint. 4. The evidence adduced consisted of the oral testimony of the complainant as PW1 and Ext.P1 to P6. On the side of the opposite party DW1 to DW4 were examined and Ext.R1,X1 and X2 were marked. 5. The learned counsel for the appellant vehemently argued before us that the order passed by the Forum below is illegal and unsustainable. He has submitted that there was suppression of material facts by the complainant and that even the FIR was launched only after a delay of 5 days from the date of accident, It is also argued by the learned counsel that on an investigation by an independent body, it was found that at the time of accident the driver of the vehicle was the complainant’s father and that he had no driving license at all. He much relied upon the statement made by Smt.Jalaja who was examined as DW4 and that her statement had been marked as Ext.R1. The learned counsel further argued that there was sufficient proof to show that the vehicle was run by complainant’s father who was examined as DW3. It is also the case of the learned counsel that there was discrepancy and contradictions in the deposition of DW3 and argued for the position that there was suppression of material fact and that it was the complainant’s father who was driving the vehicle at the time of accident. Thus he canvassed for the position that the Forum below has gone wrong in allowing the complaint to a great extent. 6. On hearing the learned counsel for the appellant and also on perusing the records we find that the complainant had a valid insurance policy at the time of accident and that vehicle met with an accident on 25.5.03. It is the case of the complainant that he was driving the vehicle at the time of accident and his father was sitting behind him while he was driving the vehicle and due to the accident his father sustained injuries and was admitted to the hospital. We gave our anxious consideration to the deposition of the complainant’s father who was examined as DW3. He has deposed “ 7. We find that though the opposite party has examined the witness they could not bring out anything to contradict the claim of the complainant that he was driving the vehicle and that his father who sustained the injuries was sitting behind him at the time of accident. The arguments of the learned counsel that the FIR was lodged after 5 days is not a serious lapse on the part of the complainant as FIR can be lodged within a reasonable time and it is seen that the same has been done after 5 days. 8. The Forum below has directed the opposite parties to pay to the complainant the sum of Rs.6777/- based on Ext.P3 and P4. However the same is not proved properly by examining the workshop people and that mere production of the bill cannot be a basis for allowing the claim of the complainant. Moreover all the expenses made by the complainant will not be eligible for reimbursement. In the instant case there is a Surveyor’s report, which would show that the amount of Rs.3571/- was the amount required for the repairs. We do not find any reason to disbelieve the report of the surveyor. Hence we modify the order of the Forum below that the opposite party is liable to pay only the amount of Rs.3571/- to the complainant. The Forum has also awarded Rs.10000/- as compensation. We do not find it reasonable that such a huge amount can be awarded as compensation in the wake of the fact that the complainant has not adduced any evidence to show that he has sustained loss or damage due to the non payment of the amount by the Insurance Company. However we feel that it will be just and proper to allow interest at 9% per annum from the date of complaint till the date of payment on the amount of Rs.3571/-. The cost of Rs.1000/- awarded by the Forum below is sustained. In the result appeal is allowed in part with the modifications indicated as above whereby the opposite party/appellant is liable to pay Rs.3571/- with 9% interest from the date of complaint till the date of payment with cost of Rs.1000/- to the complainant. However in the nature and circumstances of the present appeal the parties are directed to suffer their respective costs. SRI.S.CHANDRAMOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER ps
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