Sri. P. Satheesh Chandran Nair (President):
The complainant filed this complaint u/s.12 of the C.P. Act 1986.
2. The case of the complainant is as follows. The complainant is the registered owner of the vehicle bearing No.KL 26E 3494 a Force Traveler Brand new Mini Bus. On 1st September 2015 between 7.30 – 7.35 hours, the vehicle had fallen in a paddy field of the complainant’s neighborhood so that the vehicle caused heavy damages. According to the complainant the incident happened when the vehicle had come back from the parking position on 3rd September 2015. The complainant informed the incident to the 2nd opposite party by phone and directed the complainant to remove the vehicle to the Josh Workshop, Thodupuzha for its necessary maintenance. The surveyor of the opposite parties surveyed the vehicle at Josh Workshop, Thodupuzha on 05/09/2015, the police concerned conducted a spot survey, and G.D entry was also made by the police. As per the direction of one M/s. Divya, an officer concerned of the opposite parties, direct the complainant to pay Rs.60,000/- to Josh Workshop, Thodupuzha and the complainant taken the vehicle from there. It is further contented that though a claim was preferred by the complainant to the opposite parties they repudiated the claim on 07/11/2015. On 08/01/2016 the complainant send a legal notice to the opposite parties for the Redressal of her grievances. The act of the opposite parties are clearly comes under deficiency of service and unfair trade practice defined in Consumer Protection Act 1986. Hence, the complaint for realizing the repair charge of Rs. 60,000/- with interest from opposite parties, compensation cost, etc.etc.
3. This Forum entertained the complaint and issued notice to opposite parties for their appearance. The opposite parties entered appearance and filed a joined version as follows: According to the opposite parties this complaint is not maintainable either in law or on facts. It is admitted that the complainant has taken a package policy Vide No. 760903311400100010232 for the vehicle bearing registration No. KL-28-E-3499. The validity of said insurance is from 13/01/2015 to 12/01/2016. The opposite parties on receiving the claim form and estimate for repair deputed an IRDA approved Surveyor to assess the damages caused to the vehicle. It is contented that as per the report filed by the approved surveyor an amount of Rs. 9,350/- was only assessed as the loss of the vehicle. It is further contended that the claim form and G.D entry one Mr. Premraj was in charge of the vehicle and he parked the vehicle at the place of the incident. Further it is contented that the claim intimation and claim form duly submitted by the complainant shows that one Mr. Prem Prasad was the driver of the vehicle at the relevant time. It is also contended that the said Mr. Prem Prasad does not possess a valid driving license and badge to drive this class of vehicle. According to the opposite parties as per the terms and conditions of the policy issued to the complainant it is mandatory that the driver of the vehicle which the claim made must have a valid driving license and badge. It is also contended that the insured has to keep the vehicle free from any accident or other damage as per conditions No.5 of the policy. The opposite parties pleaded that only on valid ground they repudiated the claim of the complainant and there in no deficiency in service or unfair trade practice on their part. Therefore, the opposite parties prayed to dismiss this case with cost to them.
4. We perused the complaint, version and records before us and framed the following issues.
- Whether the case is maintainable?
- Whether the opposite parties committed in deficiency in service against the complainant?
- Regarding the relief and cost?
5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of her chief examination and she is examined as PW1 in this case. Ext.A1 to A8 and Ext. B1 to B2 were marked through PW1. Ext. A1 is the renewal form for the New India Assurance Co. Ltd dated 13/12/2015. Ext.A2 is the Workshop bill for Rs.64,460/-. Ext.A3 is the copy of GD Extract of the Koodal Police Station dated 05.09.2015. Ext.A4 series (3 Nos.) are Fitness Certificate of the vehicle along with tax token. Ext.A5 series are the copy of Registration Certificate dated 17/01/2014 and Pollution certificate dated: 01/04/2015. Ext.A6 is the repudiation letter dated 17/11/2015 sent by the 1st opposite party to the complainant. Ext. A7 is the legal notice dated 08/01/2016 sent by the complainant’s counsel to 2nd opposite party. Ext. A8 series are Postal Receipt and Acknowledgement card. Ext. A9 is marked through the PW3. On the other side for the opposite party 1 & 2 the Administrator Officer of the New India Assurance Company Ltd., Pathanamthitta filed a proof affidavit in lieu of chief examination and he is examined as DW1 in this case. Through the DW1 Ext.B3 to B11 and Ext.A9 were also marked, apart from Ext.B1 and Ext.B2 which was already marked. When DW2 was examined the original documents of Ext.B4 and Ext.B11 are shown to him, he accepted Ext.B4 and B11, hence deleted the ‘subject to proof’ endorsement in Ext.B4 and B11. Ext.B1 series (2 in Nos.) are the Policy schedule certificate dated: 10/01/2015 and Ext.B1(a) is the portion of Ext.B1. Ext. B2 is the motor accident claim intimation form dated: 07/09/2015. Ext. B3 is the original claim form dated: 07/09/2015 submitted by the complainant. Ext. B4 is the survey report dated: 29/10/2015 prepared by I.R.D.A surveyor. Ext. B5 series (3 in Nos.) are copy of driving license of one Mr. Prem Prasad dated 20/02/2004 and Contract Carriage Permit dated: 24/01/2014. Ext. B6 is the repudiation letter dated 17.11.2015sent by the 2nd opposite party to the complainant. Ext.B7 is the legal notice dated: 08/01/2016 issued by the complainant to the 2nd opposite party. Ext.B8 is the reply notice dated: 25/01/2016 issued by opposite party to the complainant’s counsel. Ext. B9 is the copy of the estimate dated: 07/09/2015 prepared by Suneesh Auto Garage. Ext. B10 is the copy of bill dated: 10/10/2015 issued by Suneesh Auto Garage. Ext. B11 is the details of damage and assessment report dated: 29/10/2015. After the closure of evidence, we heard both sides.
6. Point No.1: In this case the opposite parties main contention is that the case is not maintainable either in law or on facts. When we appreciate the evidence adduced by the parties in this case it can be seen that the complainant is an insured of the opposite parties/insurer. The opposite parties admitted that the complainant has availed a package policy vide No. 760903311400100010232 from the opposite parties and the policy was valid at the time of incident. Therefore, we can easily come to a conclusion to the effect that the complainant is a consumer and opposite parties are service providers of the complainant. Hence, Point No.1 found in favour of the complainant.
7. Point Nos. 2 & 3: For the sake of convenience, we would like to consider Point No.2 and 3 together. As discussed earlier, it is clear that the complainant who is examined as PW1 in this case deposed that she is the registered owner of the vehicle bearing registration No. KL 26 E-3494 and on 1st September 2015 between 7.30 and 7.35 due to the intervention of some anti-social element, the vehicle had gone back from the parking position and lastly it had been fallen to the neighbor lands of the complainant’s property. As per the direction of the official connected to the opposite parties the vehicle entrusted for its repair at Josh Workshop, Thodupuzha and paid Rs. 60,000/- as it maintenance charge. It is further deposed that though the complainant filed a claim for re-imbursement of the said amount the opposite parties repudiated the claim on 07/11/2015. As per the testimony of PW1 there is no ground for repudiating her claim and the opposite parties committed deficiency in service by repudiating the claim. When we evaluate the documentary evidence adduced by the PW1 in this case it is proved that the complainant availed an insurance policy from the opposite parties ant it was inforce at the time of the incident. As per Ext. A3, it is proved that the said incident was reported to the Koodal Police Station and they endorsed this incident in G.D. As per Ext. A3 it is evident to see that the vehicle KL 26 E- 3494 Force Traveler Brand new Mini Bus was parked on the side of road which is proceeded to the complainant’s house and the vehicle fall down to nearby paddy land of a neighbor and caused damage to left side bonnet, front bumper, left side body etc.etc. When we peruse the G.D nothing can be seen with regard to the cause of this incident. As discussed above, we can see that there is no dispute exists with regard to the ownership of the vehicle and insurance or its validity. The opposite parties raise a serious contention to the effect that the person who parked the vehicle at the place of incident was not a qualified driver. Another contention raised by the opposite parties is that the name of the driver mentioned in the first claim application and second application are also different. The opposite parties contented that as per the 2nd claim the driver who was in charge of the vehicle was one Prem Prasad. When we evaluate the evidence of this case and the main issue involved in this case it is so clear that the incident happened when the vehicle has parked near to complainant’s residence. The question who has driven the vehicle at the time of incident or who has parked the vehicle at the place of incident is not so material considering the relief sought by the complainant. It is so material to see that whether the driver who parked the vehicle with due diligence or proper care at the parking place. When we examine the complaint and chief examination of complainant, it can be inferred that the person who parked the vehicle with proper care and precaution. PW1 deposed that the hand break and gear of the vehicle was ‘on’ at the time of incident and the front and back wheel were also blocked with wooden materials. When the opposite parties learned counsel cross-examined PW1, “നിങ്ങളുടെ വാഹനത്തിന് block (അട) വച്ചിരുന്നുവോ? Hand ഇട്ടിരുന്നുവോ? (A) ഉവ്വ്”. In the light of the answer given by PW1, it can be inferred that the vehicle was parked at the parking place with due care. If the opposite parties had a genuine or positive contention with regard to the negligence of parking on the side of complainant it would have been narrated or suggested through PW1. When we examine the cross-examination of PW1, it can be seen that the opposite parties seriously contended the absence of driving license of the driver who parked the vehicle at the place of incident. Though the opposite parties seriously contended this matter they did not succeeded to adduce any positive evidence to substantiate their contention. It is to be noted that nowhere in the version or the proof affidavit of DW1 the opposite parties has no case to the effect that the insurance policy of the complainant does not cover these types of events. If so, the next issue to be considered is whether the loss or maintenance expenses calculated by the complainant is true or not? When we look into deposition of PW1 it is clear that the PW1 relying Ext.A2 bill with regard to the expense he incurred for the maintenance of the vehicle. The PW1 answered in cross, “Ext. A2 ഏത് workshop ൻറെ bill ആണ്. Seal ഉം signature ഉം ഉണ്ടോ? (A) signature ഉണ്ട്.. cash വാങ്ങിയ ആളാണ് ഒപ്പിട്ടത്. Ext. A2 ആധികാരിക രേഖ അല്ല എന്നും OP യുടെ bill അല്ല എന്നും പറയുന്നു. (A) ശരിയല്ല. Balance amount ഞാൻ bank ലഴി ആണ് കൊടുത്തത്. രേഖ ഹാഡരാക്കാം”. When we examine the above said testimony it can be inferred that Ext.A2 document was duly signed by the person who received the cash from the complainant and the balance amount had given by the complainant through the bank. The question to be considered is whether the complainant is eligible to get the whole amount referred in Ext.A2 estimate as reimbursement of the claim. The complainant did not produce any convincing evidence with regard to this question.
8. In order to prove Ext.A2 the complainant examined PW2 one Mr. Rajeev who is the Manager of Customer Care, Thodupuzha. He deposed that, “Ext.A2 estimate ഞങ്ങള് തയ്യാറാക്കിയതാണ്. ആയതിൻറെ original O.P I & II ന് ഞങ്ങള് അയച്ചുകൊടുത്തു. Ext. A2 Customer ആവശ്യപ്പെട്ട പ്രകാരം എടുത്ത copy ആണ്. ആയതുകൊണ്ട് seal- ഉം date- ഉം ഇല്ലാത്തത് . Estimate ൽ പറയുന്ന തുക ലഭിച്ചു”. In cross-examination PW2 deposed that he issued original of Ext.A2 to the complainant for producing before the opposite parties for re-imbursement of the claim and the Ext. A2 is the copy of the original document which was issued to the complainant by PW2. In cross he answered, “Ext. A2 വിൽ എൻറെ sign ഉണ്ട്. Ext. A2 bill അല്ല ആദ്യം നൽകിയ bill customer Insurance Co. ക്ക് കൊടുത്തു. രണ്ടാമത് ആവശ്യപ്പെട്ടപ്പോഴ് നൽകിയ bill ആണിത്. Therefore, it is pertinent to see that the Ext.A2 bill for an amount of Rs. 64,460/- was signed and issued by PW2 and the relevancy of Ext. A2 can be seen subject to the finding noted in the previous page. When we examine the deposition of PW2, it reveals that he is the driver of the vehicle and he is having valid driving license to drive this class of vehicle. He categorically deposed that he was the driver who parked the vehicle at the place of the incident. Ext. A4 series and A5 series proved the ownership, details of the tax payment and payment of pollution tax etc.etc. Ext.A6, A7 and A8 series are record to shows that the opposite parties have repudiated the claim on 17/11/2015 and the legal notice issued by the complainant against the repudiation etc. The Ext.A9 is the driving license of PW2. On the other side opposite parties examined DW1 and DW2 and marked Ext.B1 to Ext. B11. As per Ext. B9 there is an estimate of Rs.4,200/- can be seen for front bumper on 07/09/2015 and on the same day another estimate for an amount of Rs. 39,050/- also can be seen again as estimate for the repairing of the vehicle. But when we refer Ext. B10, it is to see that the complainant paid Rs. 38,500/- as maintenance cost on 10.10.2015 for all works. When we compare Ext.A2 with Ext.B9 and B10 an amount of Rs.22,500/- is seen as metallic colour design and an amount of Rs.13,500/- is seen as painting as per Ext.A2. In Ext.B9 estimate of Suneesh Auto Garage for painting Rs.15,000/- is seen charged. No description with regard to metallic painting can be seen from Ext.B9. When relying the genuineness of Ext.A2 this material contradiction has also to be considered. When we go through the deposition of DW2 it can be seen, “IMT 21 പ്രകാരം bumper, mudguard, headlight, painting, tire ഇത്രയും ഭാഗങ്ങള്ക്ക് insurance coverage ഇല്ലാത്തതാണ് This portion is marked as Ext. B1(a) report ൽ പറഞ്ഞകാര്യങ്ങള് ശരിയും സത്യവുമാണ്”. According to the testimony of DW2 the complainant is not eligible to get the expense for mudguard, leveling and painting. When we refer Ext. B9 it can be seen that Suneesh Auto Garage prepared an estimate of Rs. 1,500/- for mudguard leveling and Rs. 15,000/- for painting work. So when we rely the deposition of DW2 an amount of Rs. 16,500/- has to be deducted from Ext.B10 cash bill Rs. 38,500/- dated: 10/10/2015. It is pertinent to see that at the time of cross-examination the learned counsel for the complainant did not ask any question with regard to the estimate as per Ext. B9 and cash bill as per Ext.B10 except a general denial of this Ext. B9 and B10. As we discussed earlier, the Ext. B11 (subject to proof) is a document show that the complainant is only eligible for Rs. 9,350/- deducting compulsory excess etc. As discussed earlier, we are a view in favour of the complainant with regard to the question of his claim of insurance. The next issue to be considered is the quantum of the claim. In order to answer this issue we would like to rely the deposition of DW2. In cross-examination he answered “എനിക്ക് auto mobile engineer ൽ diploma ഉണ്ട് (Q) Ext. B11 പ്രകാരം നിങ്ങള് ഒരു IRDA category ലെ ഒരു license holder ആണ് എന്ന് നിങ്ങളുടെ seal കൊണ്ട് കാണുന്നത് (A) അതെ”. When we examine the chief examination and the above portion of the cross-examination it is pertinent to see that DW2 is a qualified mechanic and a holder of IRDA license. The DW2’s deposition in chief with regard to IMT 21, exemption to bumper, mudguard, headlight, painting, tyre have to be accepted for answering this issue. Though the complainant relied and produced Ext. A2 document to show that they have spend an amount of Rs.64,460/- for the maintenance/repairment of this vehicle, as discussed above the complainant failed to prove the relevancy of Ext. A2 when considering the evidence adduced by the opposite parties in this case. On the basis of the above finding we decided to allow the complaint partly. Therefore, the Point No. 2 and 3 are also found accordingly.
9. In the result, we pass the following orders:
- The opposite parties are directed to pay an amount of Rs. 22,000/-
(Rupees Twenty Two Thousand only) (Ext.B10 bill Rs.38,500/-
Rs.16,500 = Rs.22,000/-) as the insurance claim to the
complainant with 10% interest from the date of this order onwards.
- The opposite party 1 and 2 are also directed to pay a compensation
of Rs. 10,000/- (Rupees Ten Thousand only) and a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of this order onwards.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28th day of February, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : T.N. Radhamany
PW2 : Rajeev
PW3 : Presobh
Exhibits marked on the side of the complainant:
A1 : Renewal form for the New India Assurance Co. Ltd dated 13/12/2015.
A2 : Workshop bill for Rs.64,460/-.
A3 : Copy of GD Extract of the Koodal Police Station dated 05.09.2015.
A4 series: Fitness Certificate of the vehicle along with tax token.
A5 : Registration Certificate dated 17/01/2014 and Pollution certificate
dated: 01/04/2015.
A6 : Repudiation letter dated 17/11/2015 sent by the 1st opposite party to the
complainant.
A7: Legal notice dated 08/01/2016 sent by the complainant’s counsel to 2nd
opposite party.
A8 : Postal receipt dated 19.06.2014.
A8 series : Postal Receipt and Acknowledgement card.
A9 : Marked through the PW3.
Witness examined on the side of the opposite parties:
DW1 : Dhanya Gopinath
DW2 : Bijuraj
Exhibits marked on the side of the opposite parties: Nil.
B1 series : Policy schedule certificate dated: 10/01/2015 and
Ext.B1(a) : Portion of Ext.B1.
B2 : Motor accident claim intimation form dated: 07/09/2015.
B3 : Original claim form dated: 07/09/2015 submitted by the complainant.
B4 : Survey report dated: 29/10/2015 prepared by I.R.D.A.
B5 series : Copy of driving license of one Mr. Prem Prasad date of issue:
20/02/2004 and Contract Carriage Permit dated: 24/01/2014.
B6 : Repudiation letter dated 17.11.2015 sent by the 2nd opposite party to the
complainant.
B7 : Legal notice dated: 08/01/2016 issued by the complainant to the 2nd
opposite party.
B8 : Reply notice dated: 25/01/2016 issued by opposite party to the
complainant’s counsel.
B9 : Copy of the estimate dated: 07/09/2015 prepared by Suneesh Auto Garage. B10 : Copy of bill dated: 10/10/2015 issued by Suneesh Auto Garage.
B11 : Details of damage and assessment report dated: 29/10/2015.
(By Order)
Copy to:- (1) Radhamani, W/o. Late Rajendra Prasad,
Gopi Sadanam, Maurinjakal.P.O, Koodal Village, Konni Taluk,
Pathanamthitta.
(2) The Manager in charge, Grievance Cell, New India Assurance
Co – Ltd, Regional Office, 2nd Floor, Kandamkulathi Towers,
M.G. Road, Ernakulam, Cochin – 682 011.
(3) The Divisional Manager, New India Assurance Co – Ltd,
Pathanamthitta.
(4) The Stock File.
