DOF.5.2.2009 DOO.2.9.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 2nd day of September 2010 CC.35/2009 N.P.Arun Kumar, Deviprabha, P.O.Chalad, Kannur 14. Complainant (Rep. by Adv.R.P. Remesan) M/s. Reliance General Insurance Co. Ltd., 1st floor, Vishnu Building, K.P.Vallon Road, Kadavanthara, Cochin 682 020 (Rep. by Adv.S.Mammu) Opposite party O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay a sum of Rs.44, 831/- towards the repair charges of the vehicle with compensation of Rs.10, 000/- together with cost of these proceedings. The brief facts of the case of the complainant is that his vehicle KL.13/S/1331 Tata Indica car which was insured with the opposite party for the period 14.1.2008 to 13.1.2008 met with an accident on 11.6.2008 while allowing the vehicle coming from ahead to pass on the complainant’s vehicle hit on the laterite stone kept on the side of the road and there by caused damage to the vehicle. The date of purchase of the vehicle was 14.1.08. The complainant submitted claims with all documents before the opposite party immediately after the incident. Opposite party’s surveyor inspected the vehicle and prepared a report. As per the direction of the opposite party the complainant obtained work estimate and handed over to opposite party. After those process complainant repaired the vehicle spending an amount of Rs.44, 831/- as directed by the opposite party and on the assurance that the amount will be paid to the complainant. But opposite party declined to pay the amount saying that the vehicle was not having permit at the time of accident. It is a false contention. Denial of the claim is an act of deficiency in service on the part of opposite party. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version contending as follows: The above said vehicle was insured with the opposit party at the time of accident. Opposite party disputes the damages and other expenses alleged to have been sustained to the vehicle, labour charges, towing charges, cost of spare parts etc. as alleged in the complaint. Opposite party is not liable to pay any compensation since the investigator conducted by the opposite party revealed that the vehicle was not having permit at the time of alleged accident. The complainant is not entitled to travel beyond the scope of terms and conditions sti9pulated in the policy. The value to be assessed is not the market value through out the policy without any further depreciation. Calculation is subjected to depreciation and deduction of certain components specifically excluded by the terms and conditions. The denial is basing on the policy conditions and stipulations of the motor vehicle Act. Complainant is not entitled to any of the relief. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A6, B1 to B3. Issue Nos.1 to 3 Admittedly the vehicle of the complainant insured with the opposite party at the time of the accident. Complainant submitted claims but opposite party declined to pay the amount saying that the vehicle was not having permit at the time of accident. Complainant adduced evidence by way of affidavit in lieu of chief examination. Ext.A1 is the copy of the package policy. Ext.A5 is the repudiation letter by Reliance General Insurance informing that the competent authority has repudiated the claim on the basis that the vehicle was plying without permit at the material time of loss. Complainant has given evidence stating that he has placed claim before the opposite party immediately after the incident. He has also stated that surveyor of the opposite party inspected the vehicle and prepared report. So also complainant obtained a work estimate as instructed by the opposite party and given to opposite party. Complainant sates further that since the initial process completed he has repaired the vehicle giving Rs.44, 831/- as charge of the bill. The repair was done as instructed by opposite party. All the documents were placed before the opposite party. Ext.A5 makes it clear that the vehicle was plying without permit at the material tune of loss. Complainant stated in his evidence affidavit that “ Hcp hml-\T tdmUn HmSn-¡p-¶-Xn\v s]Àanäv Bh-i-y-an-Ã.-s]Àanäv Bh-i-y-ambn hcp-¶Xv Hcp hml-\T ]_vfn-¡v {Sm³kvt]mcv«v v hml\ambn D]-tbm-Kn-¡p-T-t]mÄ am{X-am-Wv. Fsâ hml-\T A]-I-S-k-a-b¯v Hcp ]_vfn¡v {Sm³kvt]mÀ«v Bbn-cp-¶n-Ó. This aspect was not challenged by the opposite party. No contra evidence placed by the opposite party to challenge this aspect. Opposite party has the burden to establish that permit is necessary at all time for plying the vehicle. Complainant has the case that permit is necessary only when the vehicle is used as public transport and the vehicle of the complainant was not a public transport at the time of accident. Further case of the complainant is thus “ \jvS-]-cn-lm-cT IW-¡vIq-t«-Xv amÀ¡äv hme-yq-hnsâ ASn-Øm-\-¯n-e-sÃ-¶pT tXbvam-\T IW-¡n-se-Sp-t¡--Xm-X-sW-¶p-T-a-äpT ]d-bp-¶Xp ASn-Øm-\-c-ln-X-am-Wv. Fsâ hml-\-¯n\v tXbvam-\T IW-¡n-seSpt¡tp¶ A{X ]g-¡-an-Ãm-¯-Xn-\m FXnÀI-£n-bpsS hmZT kzo-I-cn-¡-¯-¡-XÓ. Opposite party has taken the contention that the calculation of loss is subject to depreciation and deduction of certain components specifically excluded by the terms and conditions. But these contentions are not substantiated with placing neither by documentary nor by oral evidence. It can be seen that the accident was taken place on 11.6.2008. The date of purchase of the vehicle was 14.1.2008. That means accident has taken place before completion six month of purchase of the vehicle. It is really before 5 months of the purchase. Hence there is substance in the contention of complainant that the vehicle is not old enough to make it subject to depreciation and deduction. Section 66 of MV Act makes it clear that permit is required only for public transport. Section 66 does not allow using a vehicle as a public transport without permit. It is true that opposite party has no case that the complainant has used the vehicle as a public transport. The complainant obtained permit for the vehicle after the accident. Ext.B1 tourist permit reveals that period of validity of the authorization is from 8/7/08 to 7/7/09. Thus the question of permit has no role to decide the case unless opposite party has any such case that vehicle has been used as a public transport. There is no evidence to show that the vehicle was used as a public transport. Hence the repudiation of claim on the ground that the vehicle has no permit at the time of accident is not sustainable. It can only be taken as a ground if opposite party is able to adduce evidence to show that the vehicle was used as a public transport at the time of accident. Ext.B2 is the permit in respect of All India tourist vehicle that shows the period from 8.7.08 to 7.7.2013. Both Ext.B1 and B2 obtained by the complainant after the incident. But that cannot be taken as a ground to say that before getting the permit the vehicle had been used as a public transport vehicle. If the contention raised by the opposite party is genuine the burden of proof follows him. Without cogent and convincing evidence to prove that the vehicle was used a public transport vehicle the claim of the complainant cannot be rejected and the repudiation of claims by the opposite party is unjustifiable that leads to unfair trade practice. It is also pertinent to note that the report of the investigator conducted by the opposite party has not been produced before the Forum. Hence we hold that opposite party is liable to pay the claim amount. Complainant adduced evidence by way of affidavit that his vehicle was not old enough for depreciation and deduction. In the pleading itself it has stated by the complainant purchased the vehicle on11.6.2008. The period of insurance also starts from 11.6.2008. If that be so the vehicle is new one and accident has taken place before 6 months. Thus there is substance in the contention of the complainant that as far as his vehicle is concerned it is not correct to calculate the loss subject to depreciation and deduction. The opposite party has not worked out the conditions and stipulation that compelling to do so. Hence we hold that complainant is eligible to get the claim without deprecation and deduction and opposite party is held liable to pay the insurance amount on the basis of actual amount of expenses. The complainant shall get cost of litigation of Rs.1000/-. Thus issues 1 to3 are found infavour of the complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite party to pay the claim amount calculating the loss on the basis of the actual loss without deduction and depreciation and an amount of Rs.1000/- (Rupees One thousand only) as cost of these proceedings. The entire amount shall be paid to complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of policy issued by OP A2.Copy of registration certificate of the vehicle A3. Copy of tax invoice A4.Copy of document request letter A5.Copy of the letter issued by OP Exhibits for the opposite party B1.Coipy of authorization tourist permits of KL.13.S.1331 B2.Copy of tourist permit of the vehicle B3. Copy of Policy certificate Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: Nil /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
