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 Piaggio/Ape make autorickshow bearing Reg.No. KL-26-A-8647.  The said vehicle is having an insurance policy with opposite parties vide policy No.76210531150100000021 with effect from 21/05/2015 to 20/05/2016.
3. On 03/11/2015 at about 5.30AM the vehicle met with an accident at Aramanapadi near Adoor town and police case was also registered as crime No. 2893/2016 of Adoor police station.  The vehicle was almost fully damaged as a result of this accident and the complainant who was the driver of the vehicle at the time of the incident also caused severe injuries on that incident.  According to the complainant the accident was reported to the 2^nd opposite party who deputed a surveyor to assess the damages and an amount of Rs. 1,04,313/- was assessed by the surveyor for its repairing which only includes the cost of this spare parts and labour charges.  Though the complainant filed a claim application before the opposite parties they failed to settle the claim. Hence, the complainant for realizing a sum of Rs. 1,04,313/- with interest cost and compensation etc.etc.
4. This Forum entertained the complaint and issued notice to the opposite parties for their appearance. The opposite parties entered appearance before the Forum and filed their version as follows.  Though the 1^st opposite party received the notice he failed to appear before the Forum hence this Forum declared exparte against 1^st opposite party.  The version of 2^nd opposite party is as follows.  According to 2^nd opposite party this complaint is not maintainable either in law or on facts.  It is contended that the 1^st opposite party herein is an unnecessary party for the proceedings so that the complaint is bad for              mis-jointer of party.  It is submitted that the policy in question is having validity at the time of incident and the policy is comes within the jurisdiction of Pathanamthitta Divisional Office of the insurance company.  It is admitted that the complainant is the registered owner of the vehicle bearing Reg. No. KL-26-A-8647 and the policy is having validity at the time of incident.  It is further contended that when this opposite party has got information with regard to the incident one Mr. Johnson Mathew who is a Licensed Surveyor had been deputed to inspect the said vehicle to assess the damage and he reported that the vehicle is capable for repair.  At the time of the visit of the said surveyor the vehicle was kept at Adoor Police Station.  The complainant was not ready to shift the vehicle from Adoor Police Station to the authorized service centre.  It is further contended that the complainant is liable to shift the vehicle to M/s East Venice Autos, the authorized service centre, and from there the vehicle has to be got repaired.  The complainant is only eligible for getting the benefit of repairable loss subject to depreciation as per the terms and condition of the said policy.  This contesting opposite party also raised serious objection with regard to the genuineness of the bills produced by the complainant.  It is further stated that this opposite parties  are ready and willing to settle the claim to the complainant on production of genuine or accurate bill subject to the depreciation clause specified in the policy.  Therefore this opposite parties prayed to dismiss the complaint with cost to them. 
5. This Forum peruse the complaint, version and records and we framed the following issues for consideration.  

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

6. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and examined him as PW1. Through the PW1, Ext. A1 to A8 were also marked for the complainant.  Ext. A1 is the copy of package policy No. 76210531150100000021 which is valid from 21/05/2015 to 20/05/2016 for vehicle No. KL-26-A-8647.  Ext. A2 is the photocopy of Registration Certificate of the vehicle No. KL-26-A-8647.  Ext. A3 is the copy of contract carriage permit dated: 08/06/2015.  Ext.A4 is the Photos of the damaged vehicle (3 Nos.) (marked with subject proof). Ext. A5 series are the postal receipts dated 04/04/2016 and acknowledgement cards (2 Nos.) and copy of notice.  Ext. A6 copy of FIR No. 2893/2015 dated: 06/11/2015 of Adoor Police Station.  Ext.A7 is the  original quotation/ Estimate. Ext. A8 is the copy of driving license. Ext. A9 series are the copy of Mahasar report. The complainant also examined PW2 and PW3 in their favour.  Through PW2 Ext. A9 is marked.  On the other side 2^nd opposite party examined its Administrative Officer one Mr. Dhanya Gopinath as DW1 and through him Ext. B1 to B6 are also marked.  Ext. B1 is the authorization letter.  Ext. B2 is the certified true copy of policy schedule cum certificate of insurance.  Ext. B3 is the motor survey report(preliminary).  Ext. B4 is the copy of reply notice issued to complainant’s counsel dated: 20/04/2016.  Ext. B5 is the postal receipt.  Ext. B6 is the acknowledgement card.  Apart from DW1, 2^nd opposite party examined an IRD License Insurance Surveyor and loss assessor Mr. Johnson Mathew as DW2 to substantiate their case.  After the closure of evidence we heard the complainant and 2^nd opposite party in this case.
7.  Point No.1: The main contention of the opposite parties in this case is that, the case is not maintainable either in law or on fact.  When we peruse the evidence of this case it is come out in evidence to show that the complainant herein is an insured and 1^st & 2^nd opposite parties are the insurer of the complainant PW1.  The 2^nd opposite party in their version, it is admitted that the policy in question is issued by 2^nd opposite party and it is having validity at the time of incident.  Therefore we can safely conclude that the complainant is an insured and the 1^st & 2^nd opposite parties are insurer as far as this case is concerned.  More over we can see that the complainant is a consumer and the opposite parties are service providers of the complainant.  Therefore Point No.1 found in favour of the complainant. 
8. Point Nos. 2 and 3:   For the sake of convenience, we would like to consider Point No.2 and 3 together.   As discussed earlier the remaining question to be considered is whether the opposite party committed any deficiency in service as alleged by the complainant.  In order to substantiate the case of the complainant, the complainant adduced evidence on records as well as oral evidence.  When we evaluate the deposition of PW1 the complainant we can see that the deposition is more or less as per the terms of his complaint.    The Ext. A1 is the policy in favour of the complainant it reveals that there is a cover of insurance from 21/05/2015 to 20/05/2016 as per the Ext. A1 insurance policy.  It is to see that the vehicle met with an accident on 03/11/2015 i.e, within the period of insurance cover.  Ext. A2 is the copy of the RC book and Ext. A3 is the copy of the contract carriage permit of the vehicle.  The opposite party has not been challenged these evidences.  Ext. A4 series (3 Nos.) are the photograph of the incident of the autorickshow.  This Ext.A4 series are marked as subject proof hence there is no need of any further discussion with regard to Ext.A4 series.   Ext. A5 series (3 Nos.) are advocate notice dated:02/04/2016 which was sent to 1^st & 2^nd opposite parties for the settlement of the claim.  Ext. A6 FIR of Adoor police station No. 2893/2015 which proves that the said police registered a case in connection with this accident under section 279,337,338 of IPC.  Ext. A7 is the estimate prepared by the authorized dealer of the Piaggio Vehicle Private Limited, Chenganur dated: 21/12/2015, the said estimate shows that an amount of           Rs. 1, 04,313. 71/- is necessary for its repairment. Ext. A8 is the copy of driving license of the complainant. Ext. A9 series contains the Mahasar prepared by the police, copy of the inspection report of the Motor Vehicle Inspector etc related to the case registered by the police.   When we examine the evidence of this case it is to be noted that the opposite parties in this case has not been repudiated the insurance claim of the complainant.  It is also noted that the complainant has not filed any claim form before the insurance company for insurance benefit.  It is true that as per Ext. A5 series the complainant claim an amount of Rs. 1,04,313 from the opposite party for the total repairment of the vehicle.  On the other side the 2^nd opposite party by version and by their deposition as DW1 has taken a clear stand to the effect that the complainant has got only the cost of spare parts and labour charge in respect of the damage of the vehicle since the vehicle is in a repairable condition.  It is also contended that even the damage would have to be assessed subject to the depreciation as per the terms and condition of the policy.  In order to substantiate their contention DW1 produced and marked Ext.B2.  The Ext.B2 says that “The insured vehicle will be treated as Constructive Total Loss only if the aggregate cost of retrieval and/or repair of the vehicle subject to the terms and conditions of the policy exceeds 75% of the IDV of the vehicle”.  The company will indemnify the insured against loss or damage to the vehicle and or its accessories – subject to a deduction for depreciation at the rates mentioned ……

1. For all rubber/nylon/plastic parts/tyres tubes and batteries and air bags – 50%  
2. For fibre glass components – 30 %
3. For all parts made of glass – Nil.

Rate of depreciation of all other parts including wooden parts is 40% since the vehicle is of 2010 model and accident occurred in 2015 ie the vehicle exceeds 5 years but not exceeding 10 years”. 

PW2 is the Sub Inspector of Police in Adoor Police Station.  He is cited as a witness only to prove that there is a criminal case which was registered by the Adoor Police Station in connection with this motor accident.  PW3 one Suresh Babu is the Workshop Manager of Piaggio Vehicle Private Limited and proves that he prepared and estimate of Rs. 1,04,313/- as per Ext. A7.  In cross-examination he answered “Ext.A7 നോക്കിയാൽ damage വ്യക്തമാകില്ല എന്നും damages  സംബന്ധിച്ച വിവരണം ഒന്നും priscribe ചെയ്തിട്ടില്ലല്ലോ Damage description ഇല്ല. estimate ആണ്.  However when we examine Ext. A7 though the damage has not been described in Ext. A7 a detailed estimate of the damaged spare parts and it costs are clearly explained here. 

9. In order to substantiate the case of the 2^nd opposite party he examined its Administrative Officer as DW1.  DW1 deposed that as per Ext.B3 extend of damage chances of the vehicle is ‘dent and broken’.  It is further deposed that by replacing the broken piece to a new one the maintenance work of the vehicle can be completed.  According to him the depreciation is calculated from the date of delivery to the date of accident.  All these above answers are given by DW1 at the time of cross-examination.  In a question DW1 answered “the signature of the complainant is not seen in Ext. B2 terms and condition”.  It is also deposed in-cross “As per Ext. B3 what is the total loss calculated by the Surveyor”. (Q) Rs. 39138 the said amount is calculated after deducting the depreciation.(A) The DW2 is an IRD License Insurance Surveyor and Loss Assessor who deposed that he inspected the vehicle at Adoor Police Station and prepared a loss of Rs. 39,100/- after deducting the depreciation amount.  In cross-examination DW2 answered “details of damage ൻറെ താഴെ ഒന്നാമതായി “chasis passenger black dent & broken”എന്ന് രേഖപ്പെടുത്തിയിട്ടില്ലേ. (A) ഉണ്ട്. പ്രധാനമായും ഈയൊരു damage കൊണ്ട് ടി വാഹനം നന്നാക്കി എടുക്കാൻ സാധിക്കില്ല എന്നത് ശരിയല്ലെ (A) ശരിയാണ്.  chasis replace ചെയ്യണം. ഈ estimate ൻറെ അടിസ്ഥാനത്തിൽ chasis ന് ആണ് ഏറ്റവും വില കൂടുതൽ ഉള്ളത്  (A).  When we evaluate the answer of DW1 it is evident to see that his deposition was inconsistent with regard to the repairment of the vehicle.  Therefore the deposition of DW2 cannot be treated as credible one as far as the evidence of this case is concerned.  However when we appreciate the whole evidence of this case it can be seen that though the, complainant pleaded for a total replacement of the damage parts no evidence is adduced to succeed that contention.  When we consider the evidence of the complainant we do admit that through Ext. A7 the estimate prepared by the authorized dealer of the vehicle Piaggio it is seen that an amount of Rs.1,04,313/- is necessary for the replacement of the damage parts.  But at the same time DW1 and DW2 deposed that the dent and broken part of the vehicle can be repaired instead of a replacement.  Therefore considering the nature, circumstances and evidence before us we are also agreeing for a repairment of the vehicle and the said repairment is possible as far as the evidence adduced by the opposite parties are concerned.  The 2^nd opposite party contended that a repairment is sufficient to cure the defect or damage of the vehicle but at the same time 2^nd opposite party has not taken any positive approach with regard to the repairment work of the vehicle.  If 2^nd opposite party is a responsible dealer as claimed it is there fountain duty to inform the actual situation of the work in time to the complainant.  All these acts of the 2^nd opposite party can be treated as a clear deficiency in service on their part.  Therefore we find that the complainant is partly succeeded to prove his case.  The 1^st opposite party in this case is set exparte on 07/06/16, he who is the Divisional Manager of New India Assurance Company, and the contesting 2^nd opposite party is the Authorized Officer of New India Assurance Company Ltd.  Considering the evidence of this case 1^st & 2^nd opposite parties are severely and jointly liable to the complainant. Point No.2 and 3 are also found accordingly. 

10. In the result, we pass the following order.

1. 1^st and 2^nd opposite parties are directed to pay an amount of     Rs. 39,100/- (Rupees Thirty Nine Thousand One Hundred only) to the complainant with 10% interest from the date of this case onwards ie. 19/04/2016 on receipt of proper claim application from the complainant.

2. 1^st and 2^nd opposite parties 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 receipt 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 29^th day of June, 2017.

                                                                                              (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                          (President)

Smt. Sheela Jacob (Member)    :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  : Roymon. T

PW2  : B. Vijayan

PW3  : Suresh Babu

Exhibits marked on the side of the complainant:

A1 : Copy of package policy No. 76210531150100000021 valid from 21/05/2015

       to 20/05/2016.     

A2 : Photocopy of Registration Certificate of vehicle No. KL-26-A-8647. 

A3 : Copy of contract carriage permit.

A4 : Photos of the damaged vehicle (3 Nos.)

A5 series : Postal receipts dated 04/04/2016 and acknowledgement cards

                 (2 Nos.)

A6 : FIR No. 2893/2015 dated: 06/11/2015 of Adoor Police Station.

A7 : quotation/ Estimate.

A8 : Copy of driving license.

A9 series: Copy of Mahasar report prepared by Police.              

Witness examined on the side of the opposite parties:

DW1 : Dhanya Gopinath

DW2 : Johnson Mathew

Exhibits marked on the side of the opposite parties: Nil.

B1 : Authorization letter.

B2 : Certified true copy of policy schedule cum certificate of insurance.

B3 : Motor survey report(preliminary).

B4 : Copy of reply notice issued to complainant’s counsel dated: 20/04/2016. 

B5 : Postal receipt. 

B6 : Acknowledgement card. 

                                                                                                  (By Order)

Copy to: -  (1) Roymon.T @ Roy.T,

   S/o. Thankachan, Kripa Bhavanam,

                      Vayala P.O, Ezhamkulam, Adoor Taluk,

                      Pathanamthitta District – 691 523.

            (2) The Divisional Manager, New India Assurance Co. Ltd.,

                      Divisional Office, Beach Road, Kollam – 691 001.

                 (3) The Authorized Officer,

             New India Assurance Co. Ltd, Ist Floor, Bava Sahib Square,

             Central Junction, Pathanapuram,

             Kollam District – 689 695.

4. The Stock File.