DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad - 678001, Kerala

Dated this the 25^th day of May, 2010

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC.No.53/2006

Muhammed Hakeem,

S/o.Muhammed Usman,

Pullaniyil House,

Vadakkumuri,

Pattambi,

Palakkad - Complainant

(By Adv.N.Anoopkumar)

Vs

1. New India Assurance Company Ltd

Perincheri Building,

Round North,

Thrissur.

(By Adv.A.R.V.Sankar)

2. New India Assurance Company Ltd.,

Branch Office,

Near Stadium Stand,

Palakkad. - Opposite parties

(By Adv.A.R.V.Sankar)

O R D E R

By Smt.Seena.H, President

Case of the complainant in brief is as follows:

Complainant has purchased a Swaraj Mazda goods carrier bearing No.KL9 Q9559 on 10/05/2005 for his livelihood. He used the vehicle by engaging a driver. Complainant has insured the vehicle on the same day of its purchase vide policy No.760301/31/05/01001. On 30/05/2005, while the vehicle was taken to Pattambi for service the vehicle met with an accident at Kulapully. Estimate cost for repairs was about Rs.2,24,078/-. On 20/6/2005 the complainant has submitted claim form along with the estimate to the opposite parties. The surveyor deputed by the opposite parties inspected the vehicle and submitted report. Complainant received a letter dt.24/08/05

from the opposite party stating there is a mismatching between the claim form and surveyor’s

photograph. As per the claim form carrier was empty, but the photographs taken shows that it was loaded with bricks. Complainant submits that the vehicle was empty at the time of accident. He has no knowledge of the photograph and photograph submitted by the opposite party is a fabricated one. On 06/04/05 complainant caused a lawyer notice. Even then the opposite party did not settle the claim. Complainant alleges that the acts of opposite parties amounts to deficiency in service on their part. Complainant’s vehicle was idle in the workshop for about 4 months. He struggled to find out for a living and means for repayment of loan. Hence the complaint.

Complainant claims an amount of Rs.2,24,078/- being the insurance claim amount, Rs.60,000/- as compensation for the deficiency in service and Rs.1,00,000/- as compensation for the mental agony suffered by the complainant.

Both opposite parties filed version. Opposite parties admit that the complainant availed policy No.760301/31/05/01001 for a period from 10/05/2005 to 09/05/2006 subject to compliance of Motor Vehicles Act. The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub section 3 of section 66 of the Motor Vehicles Act, 1988.

Opposite parties submit that the complainant used the vehicle for transportation of bricks, which is evident from the photographs taken by the spot surveyor, and the claim form confirms that the vehicle was used for hire. According to opposite parties the complainant was not supposed to use the vehicle for hire or reward unless complied with Motor Vehicles Act. There is no valid permit or fitness certificate to use the vehicle for hire. It is a clear violation of policy conditions and the Motor Vehicles Act.

The fitness certificate is usually issued after conducting the test by the RTO as per Motor Vehicle Act. In this case the authorities have not given permit and fitness certificate and these facts shows the vehicle was not in worthy condition to ply on the road with load. This was the main reasons for the accident. The policy conditions specifically says the vehicle should not be plied without valid permit and fitness certificate.

In the lawyer notice of the complainant he claimed only for own damages and for claiming own damages the RC owner should comply the terms and conditions of policy since it is issued as per Motor Vehicles Act. Hence the petitioner alone is responsible for the losses if any. Opposite parties denied the damages caused to the complainant and he is not entitled to get any relief as claimed. Opposite parties contented that there is no deficiency in service on the part of the opposite parties and hence the complaint may be dismissed with cost to the opposite parties.

Complainant and opposite parties filed affidavit and Exts.A1 to A5 marked on the side of complainant and Exts.B1 to B10 marked on the side of opposite parties. Commissioner’s report marked as Ext.C1(series). Shri.A.Narayanan, spot surveyor was examined as DW1.

Issues to be considered are;

1. Whether there is any deficiency in service on the part of opposite parties?

2. If so, what is the relief the complainant is entitled to?

Issue No.1:

The undisputed facts of the complaint is that the vehicle was validly insured with the opposite parties and accident happened during the period of coverage of the policy. According to the complainant, vehicle met with an accident when it was taken up for service. The claim of the complainant was repudiated by opposite parties on the ground that there is violation of policy

condition. According to opposite parties, complainant used the vehicle for transportation of bricks. Complainant has no valid permit or fitness certificate to use the vehicle for hire at the relevant period. Since it is a clear violation of policy conditions claim is not payable.

We heard the learned counsels for both parties and perused minutely all the relevant documents on record. It is settled principle of law that the onus of proving violation of policy conditions is upon the insurance company. It is clear by Ext.A5 that the vehicle was not holding valid permit during the relevant period. The case of the complainant is that vehicle was taken up for service when the mishap occurred. Opposite parties on the other hand contented that vehicle was loaded with bricks at the time of accident. In order to substantiate the said contention opposite parties produced photographs taken by the spot surveyor together with negatives, which shows the said vehicle loaded with bricks. Complainant has objected in taking the photographs in evidence stating that the negatives produced are taken from the photographs and the photographs are not genuine one. As per order in I.A an Advocate Commissioner was appointed for receiving the negatives from the forum, take it to studio and develop the same. Developed photographs are marked as Ext.C1(series). When examined, the developed photographs contained the seal of the company engraved on it. From this it is understood that the negatives produced are not the one of the photographs produced. Hence the said evidence is discarded. Photographs whether it is artificially made as avered by the complainant or is a genuine one cannot be ascertained from the available evidence. The surveyor who has taken the said photographs was examined. He has no case that the photograph are taken with a digital camera. DW1 has deposed that negatives were developed from studio. Opposite parties ought to have produced the original negatives.

Another important aspect to be noted is that even though opposite parties has produced the photographs taken from the spot by the spot surveyor, it is seen that no spot survey report was

produced. Had it been produced, it would have been an important piece of evidence to throw light on the issue. Moreover the surveyor who subsequently examined the vehicle has filed report and is marked as Ext.B10. In the said report nothing is mentioned about the load in the vehicle. In Ext.B10 surveyor has stated that earlier report of the spot surveyor was examined and found correct. The fact that the vehicle was driven carrying load would have find a place in Ext.B10, if it was there in the spot survey report. In the absence of cogent and convincing evidence to substantiate the said contentions, we are not in a position to accept opposite parties stand.

In view of the above discussions we hold the view that the act of opposite parties in not disbursing the claim amount of complainant amounts to deficiency in service.

Issue No.2:

Complainant has claimed damages to the tune of Rs.2,24,078 along with compensation and cost of the proceedings. Surveyor has assessed damages to the tune of Rs.1,46,925/- (Rupees One lakh forty six thousand nine hundred and twenty five only) less depreciation. Opposite parties has not submitted any objection in this regard. Hence opposite parties are liable to pay the said amount together with compensation and cost.

In the result complaint allowed. Opposite parties 1 and 2 are jointly and severally directed to pay complainant an amount of Rs.1,46,925/- (Rupees One lakh forty six thousand nine hundred and twenty five only) being the claim amount along with 12% interest from the date of filing of the complaint till the date of order and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry further interest of 9% from the date of order till realisation.

Pronounced in the open court on this the 25^th day of May, 2010

Seena.H,

President

Preetha.G.Nair,

Member

Bhanumathi.A.K,

Member

Appendix

Date of filing: 22/04/2006

Witnesses examined on the side of complainant

Nil

Witnesses examined on the side of opposite parties

DW1 – Shri.A.Narayanan

Exhibits marked on the side of complainant

Ext.A1 – Policy No.760301/31/05/01001 for the period from 10/05/2005 to 09/05/2006

Ext.A2 - Photocopy of letter dt.14/6/05 sent by complainant to 1^st opposite party

Ext.A3 – Photocopy of letter dt.24/8/05 sent by 1^st opposite party to complainant

Ext.A4 – Photocopy of lawyer notice sent by complainant to 1^st opposite party

Ext.A5 – Photocopy of certificate of registration

Exhibits marked on the side of opposite parties

Ext.B1 – Motor claim form

Ext.B2 – Letter dt.24/8/05 sent by 1^st opposite party to complainant

Ext.B3 – Copy of letter dt.05/08/05 sent by 1^st opposite party to complainant

Ext.B4 – Letter dt.04/10/05 sent by Divisional office to Branch office

Ext.B5 – Photocopy of driving license of the complainant

Ext.B6 – Photocopy of registration certificate

Ext.B7 – Photocopy of goods carriage permit

Ext.B8 – Letter dt.06/10/05 repudiation letter sent by 1^st opposite party to complainant

Ext.B9 – Photographs (4 in Nos)

Ext.B10 – Copy of motor survey report submitted by Shri.K.Loganathan

Commissioner’s report marked as Ext.C1 (Series)

Cost (Allowed)

Rs.2,000/- (Rupees Two thousand only) allowed as cost to the complainant