PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 29th day of September 2012
Filed on : 26/04/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 215/2011
Between
Yogesan C.K. : Complainant
S/o. C.K. Kesavan, (By Adv. George Cherian
Varaparambil house, Vidakuzha, Karippaparambil , Karippapa-
Thaikkattukara P.O, rambil Associates, HB-48,
Pin-683 106. Panampilly Nagar,
Kochi-682036)
And
M/s. ICICI Lombard General : Opposite party
Insurance Company Ltd., (By Adv. R. Ajit Kumar Varma,
3rd Floor, Kannankeri Estate, 39/1747, Chittoor road,
Shanmugam road, Ernakulam South,
Marine Drive, Kochi-31, Cochin-682 016)
Rep. by its branch Manager.
O R D E R
A Rajesh, President.
The facts of the case leading to this complaint are as follows:
The complainant is the registered owner of the car bearing Regn. No. KL-07 BQ 503. The opposite party was the insurer of the vehicle for the period from 17-12-2010 to 16-12-2011 with an insured declared value of Rs.3,05,382/-. The vehicle met with an accident on 19-02-2011 at Mulavukadu while the vehicle was driven by one Mr. Eddy K.J. and the complainant was the co-passenger. The authorized service centre M/s. Popular Vehicles and Services Ltd. had given an estimate of repair amount to Rs. 3,64,916.23 to the opposite party. At that juncture the complainant requested the opposite party to settle the claim under total loss basis. In spite ;of the request of the complainant to settle the insurance claim the opposite party did not take any steps to settle the claim for their own reasons. The complainant is entitled to get the IDV of the vehicle under total loss basis together with compensation and costs of the proceedings. This complaint hence.
2. The version of the opposite party is as follows:
The complainant has insured the car with the opposite party. The liability of the opposite party is strictly limited to the terms and conditions of the policy. The complainant himself had driven the vehicle at the time of accident on 19-02-2011. He had no driving license to drive the insured vehicle. So the insurance claim is not payable. The surveyor deputed by the opposite party assessed the damages of the vehicle to the tune of Rs. 2,29,882/- on salvage loss basis. The complainant is not entitled to get any of the reliefs as claimed for. There is no deficiency in service on the part of the opposite party. So the complaint is liable to be dismissed.
3. The complainant was examined as PW 1 and Exts. A1 to A7 were marked. The witnesses for the opposite party were examined as DWs 1 and 2 and Exts. B1 and B2 were marked. Heard the counsel for the parties.
4. The points that arose for consideration are
i. Whether the complainant is entitled to get insurance claim
from the opposite party?
ii. Whether the opposite party is liable to pay a compensation of
Rs. 50,000/- and Rs. 10,000/- towards costs of the
proceedings.?
5. Point No. i. The following issues are undisputed by the parties?
a. The complainant ;is the registered owner of the car bearing
Registration No. KL.07 BQ 503
b. The vehicle was insured with the opposite party for the
period from 17-12-2010 to 16-12-2011
c. The vehicle met with an accident on 19-02-2011 at
Mulavukad
d. The vehicle was entrusted with the service centre Popular
Vehicles and Services Ltd. for repairs.
6. According to the complainant the vehicle met with the accident while Mr. Eddey was driving the vehicle. On the contrary the opposite party contends that the complainant himself was driving the vehicle at the time of accident and since he has no valid driving license as per the terms and conditions of insurance policy they are not liable to pay insurance claim to the complainant.
7. The doctor who treated the complainant at the General Hospital, Ernakulam immediately after the accident was examined as DW1 and the Accident Register – Cum Wound certificate of the complainant was marked as Ext. B2. In column No.10 in Ext. B2 against the endorsement “details of injury / clinical features” It is stated that “while driving a car self” DW1 categorically stated before the Forum that the above statement is based as on the information collected from the parties himself.
8. Ext. A3 is the certificate issued by the SHO, City Trafic West, Kochi City. Ext. A3 reads as follows:
“No.81/GDE/11/CTPS (W)
Extract of General Diary Diary dated 25-02-2011 of Kochi City Traffic Police station West.
Certified that the vehicle bearing Registration No. KL-07-BQ-503 Maruti Alto Car was involved in a self accident in Mulalvukadu CT road, Ernakulam, on 19-02-2011 at night, and caused damages to the vehicle bearing Registration No. KL-07-BO-503 Maruti Alto Car.
The incident is reported to the Kochi City Traffic Police Station West and the matter is noted in GD page No. 18 as Entry No. 39 on 25-02-2011 at 13.00 Hrs.”
9.The nomenclature in Ext. A3 that “self accident” coupled with the endorsement in column No. 10 in Ext.B3 that “ while driving a car self” go to show that the complainant was driving the car at the time of accident. We are not to rely on the deposition of DW1 who daimed to have been driving the vehicle at the time of accident especially since he had not sustained any injuries in spite of the extensive damages of the right side of the car which would naturally have caused at least a scratch to the driver for which not a scratch of evidence is available to prove the contentions of the complainant. Moreover the behavior of the driver immediately after the accident can not be appreciated as accountable for reasons thereof.
10. Indisputably the opposite party repudiated the claim of the complainant stating that it was the complainant who was driving the car without valid license. We do not find any deficiency in service on the part of the opposite party in repudiating the insurance claim of the complainant.
11.By relying on the decision rendered by the Hon’ble National Consumer Disputes Redressal Commission in New India Insurance Co. Ltd. Vs. Kishan Bhai 2005 (1) CPR 40 (NC) the learned counsel for the complainant contended that the onus is on the insurer to prove the plea that the insured did not possess valid effective driving license. The above decision is not applicable in the instant case since during the processing of the insurance claim the opposite party specifically demanded the complainant to submit his driving license in which he failed without demur and squarely. We are at a loss to understand or to admit why such a contention should be conceded to.
12. In view of the above we are only to dismiss the complaint. Ordered accordingly.
Pronounced in the open Forum on this the 29th day of September 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Certificate of registration
A2 : Copy of certificate
cum-policy schedule
A3 Copy of package policy
A4 : Copy of Driving license
A5 : Copy of estimate
A6 : Copy of letter dt. 31-03-2011
A7 : Copy of letter dt. 06/04/2011
Opposite party’s Exhibits : :
Ext. B1 : Copies of photos
B2 Copy of accident register
cum wound certificate
B3 : Copy of certificate
Depositions:
PW1 : Yogesan
DW1 : Eddy K.J.
DW2 : Dr. K. Cleetus
