KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO.351/12

JUDGMENT DATED:07.02.2013

(Against the order in CC.160/08 on the file of CDRF, Alappuzha dtd:30.03.09.)

PRESENT:

JUSTICE SHRI. P.Q.BARKATH ALI               :  PRESIDENT

SHRI.M.K. ABDULLA SONA                            : MEMBER

The Oriental Insurance Company Ltd.,

Divisional Office, Thodupuzha,

R/by its Divl Manager,                                        : APPELLANT

Thakaraparamp, Trivandrum.

(ByAdv:Sri.V.Manikantan Nair)

          Vs.

The Managing Partner,

Vishnu Furniture Mart,                                        :RESPONDENT

Poochakkal.P.O, Cherthala-688 526.

JUDGMENT

JUSTICE SHRI.P.Q. BARKATH ALI : PRESIDENT

          This is an appeal filed by the opposite party/Oriental Insurance Company in CC.160/08 on the file of CDRF, Alappuzha challenging the order of the Forum dated, March 30, 2009 directing the appellant/opposite party to pay Rs.55,116/- being the amount spent by the complainant for repairing his vehicle which met with an accident.

          2.      The case of the respondent/complainant as testified by PW1 before the Forum and as detailed in the complaint in brief is this:

          Complainant is the registered owner of the Pick-up van bearing registration No.KL-4-P-3506.  On October 16, 2007 it met with an accident.   At the time of the accident the complainant was holding a valid insurance policy.  Complainant has spent Rs.55,116/- to repair the vehicle.  When the complainant claimed the policy amount the appellant/opposite party repudiated the same on that ground that  there was violation of policy conditions.  Therefore the complainant filed the complaint before the Forum.

           3.     The appellant/opposite party is the Oriental Insurance Company, Thodupuzha branch represented by its Manager.  The case of the appellant/opposite party as detailed in the version is that at the time of the accident there were 5 persons in the vehicle and wooden items over loaded beyond the limits and therefore as there is violation of policy conditions claimants are not entitled to the policy claim.

          4.      Complainant was examined as PW1.  Exts.A1 to A12 were marked on their side before the Forum.  On the side of the opposite parties Assistant Manager was examined as RW1 and Exts.B1 to B8 were marked.

          5.      On an appreciation of evidence the Forum found that complainant had allowed persons to travel in the mini pick-up van beyond the prescribed limits which is in violation of the conditions of the policy and dismissed the complaint.  Complainant has come up in appeal challenging the said order of the Forum.

The following points arise for consideration:

1. Whether the appellant/Insurance Company is justified in        repudiating the claim of the complainant on the ground of   violation of the conditions of the policy?

2.      Whether the impugned order of the Forum can be sustained?

          6.      The accident is not denied by the opposite party.  According to the opposite party, at the time of the accident it was over loaded with wooden logs and there were 5 persons in the vehicle.  The prescribed limit is only 3 persons.  But we are of the view that the insurance company is not justified in repudiating the claim under the policy as the opposite parties have failed to prove that the vehicle was over loaded at the time of the accident.

          7.      The counsel for the appellant would argue that in the claim form submitted by the complainant Ext.B2 it is stated that there were 5 passengers in the Pick-up van but the carriage capacity was only 3.  But merely on that ground alone we are unable to come to a conclusion that the opposite party has proved the above fact.  RW1 the Manager examined on the side of the opposite party has no direct knowledge regarding the accident.  In these circumstances we are of the view that appellant/opposite party has failed to prove that vehicle was over loaded at the time of the accident.  That being so; the complainant is entitled to the repair charges of the vehicle reimbursed from the insurance company.

          8.      Next question for consideration is what is the amount the claimant is entitled to?  Claimant has claimed Rs.55,116/-.  He produced Ext.A3 statement of labour charges, Ext.A4 job estimate report and Ext.A6 bill for Rs.15,000/- Ext.A7 is the additional estimate but the complainant has not chosen to examine the workshop owner to prove the above documents.  Therefore the entire claim of the complainant cannot be allowed.  On the other hand, the opposite party produced the Survey report, Ext.A4 in which surveyor has assessed the repair charges as Rs.22,702.50.  The counsel for the respondent/complainant was unable to point out any defect in the said report.  Further, the surveyor is a licensed surveyor.  That being so we are of the view that the survey report Ext.A4 can be safely accepted and we feel the actual damage caused to the vehicle is Rs.22,702.50.   Claimant is entitled for that amount with interest at 12% per annum from the date of complaint till realisation.

          In the result appeal is allowed in part.  The finding of the Forum that complainant is entitled to get repair charges of vehicle reimbursed from the appellant/insurance company is confirmed but the amount due to the complainant is reduced to Rs.22,700/-.  The appellant/insurance company shall pay the said amount within one month from this date with interest at the rate of 12% per annum from the date of complaint till realisation.

JUSTICE P.Q.BARKATH ALI:  PRESIDENT

M.K. ABDULLA SONA : MEMBER

VL.