By G. Yadunadhan, President:

 

            The case of the complainant in brief, the complainant is having insurance policy No. MV/6888/05 with the opposite party for his Daewoo car bearing registration No.KL-11/J/6543 which was valid for the period from 8-9-04 to 7-9-05. On 19-10-04 while complainant was driving the car along with his wife and when it reached near Arayadathpalam it suddenly lost control and fell into the canal. Due to the fall the car was completely damaged. Subsequently complainant approached the opposite party for getting compensation and filed a claim form with No. MV-890/05. But the opposite party accepted the claim form and repudiated the same vide letter dated 16-11-04 stating unsustainable reason. Complainant again sent a letter to the opposite party stating the real facts and it was the complainant who was driving the car at the time of accident and so the production of the learner’s license of the wife of the complainant has no relevancy. Opposite party sent a reply dated 16-2-05 refusing the claim, the said vehicle was fitted with LPG gas. Hence the file is closed “ No claim”. It is a gross deficiency of service on the opposite party’s side. Therefore complainant is seeking the relief against opposite party to direct them to pay claim amount with compensation.

 

            Opposite party after serving notice entered in appearance and filed version. Opposite party admits that the vehicle bearing registration No.KL-11-J-6543 was insured with this opposite party vide comprehensive policy No. 6888/05 with effect from 8-9-04 to 7-9-05. It is further true and admitted that on 19-10-04 itself the complainant had intimated the fact of accident before this opposite party over telephone. Thereafter on 25-10-04 the complainant preferred a claim before this opposite party claiming compensation for the damages and alleged repairs of the insured vehicle. Immediately on receipt of the intimation of the accident this opposite party on 19-10-04 itself had deputed Mr. K. Jaganath, Surveyor and Loss Assessor duly licensed by the Insurance Regulatory Development Authority, to conduct a spot survey for ensuring the genuineness of the claim of accident. Thereafter on receipt of the claim form from the complainant this opposite party had deputed another surveyor namely Mr. T.K.A. Kutty who is also duly licensed by the I.R.D.A. to conduct a final survey and to assess the loss incurred. The Surveyor Mr. Jaganath after conducting a survey at the spot of accident, on 19-10-04 itself, in the presence of the complainant had filed a report before this opposite party.   On 1-11-04 as per survey report the insured vehicle was driven by the wife of the complainant at the time of accident. Complainant was in fact giving training to his wife at the exhibition ground near Canoli Canal, Eranhipalam, Calicut and that while giving training to his wife instead of applying brake had applied accelerator which resulted in loosing control over the vehicle and ultimately the insured vehicle fell into the canal. It is further reported that people gathered there jumped into the canal and took out the complainant and his wife from the vehicle with some minor injuries. Mr. T.K.A. Kutty, Insurance surveyor assessed the damages and he observed that the said vehicle was fitted with LPG gas conversion equipments. In order to verify whether Mr. Jsessy George was holding any learner’s license, a letter dated 16-11-04 made a request to the complainant to produce the learner’s license or driving license if any of  Jessy, the wife of the complainant. In response to the said letter the complainant had sent a reply dated 22-11-04 to this opposite party affirming the stand that he himself was driving the vehicle at the time of accident and further intimating that Mrs. Jessy is not having any learner’s license or driving license for light motor vehicle. Since insured vehicle was driven by the wife of the complainant in violation of Rule-3 of Central Motor Vehicles Rules 1989, opposite party is not liable to pay any amount to the complainant. Hence complaint is liable to be dismissed.

 

            The points for consideration are whether the complainant is a consumer? (2) Whether the complainant is entitled to get insurance claim, if so what is the relief and cost?

 

            The complainant was examined as PW1 and Ext.A1 to A4 were marked. Witness examined as PW2. Opposite party has no oral evidence but they produced Ext.B1 document. Survey report produced and marked as X1 document.

 

 

Point No.1:

            It is admitted by the opposite party that the complainant has insured the vehicle bearing registration No. KL11-J-6543 with the opposite party. Therefore undoubtedly complainant availed the service of the opposite party. Hence complainant is a consumer under Consumer Protection Act.

 

Point No.2:

            It is admitted by the opposite party that they have issued Ext.A1 in favour of the complainant. The witness examined as PW2 is none other than the friend of the complainant and also he is working 6 K.M. away from this spot. He has not seen the accident. So his testimony cannot be believable. Ext.X1 document, survey report, the cause of accident clearly shows that the accident occurred due to the negligent driving of wife of the complainant. For that no contra evidence is adduced by the complainant. Opposite party had requested to produce the driving license or learner’s license belonging to the wife of the complainant, who drove the vehicle at the time of accident as per Ext.B1 document. For that the complainant replied that wife is not having learner’s or driving license. Ext.A4 is issued by the opposite party regarding the violation of the insurance policy. For that no steps were taken by the complainant. Except oral testimony of the complainant no other relevant document produced by the complainant regarding the nature of the accident. Therefore Forum accepted the Ext.B1 document and X1 document. Thus it clearly shows the nature of accident due to the act of complainant. It is very clear that there is a violation of policy condition. Since there is the violation of policy condition there is no contractual liability between the opposite party and the complainant. Therefore the complainant is not entitled to get any insurance amount. Hence complaint is liable to be dismissed.

 

Pronounced in the open court this the 31st day of May 2010.

Date of filing:22.03.2005

 

            SD/- PRESIDENT                   SD/- MEMBER                       SD/-MEMBER

 

APPENDIX

 

Documents exhibited for the complainant:

A1. Policy Certificate.

A2. Reply letter dt. 16-11-2004 from O.P. to the complainant.

A3. Copy of letter sent by complainant to the opposite party.

A4. Letter dt. 16-2-05 sent by O.P. to the complainant.

 

Documents exhibited for the opposite party.

B1 series: Malayala Manorama Newspaper and The New India Express.

 

X1. Investigation Report dt. 5-11-04 and Motor Survey Report dt. 26-10-04

 

Witness examined for the complainant:

PW1.George Kutty (Complainant)

PW2. Samikutty, Pandaraparambath House, P.O. Kottooli.

 

Witness examined for the opposite party.

            None

 

                                                Sd/- President

                        // True copy //

 

Petition filed on : 22-3-2005

Date of Order      : 31-5-2010.

 

(Forwarded/By order)

 

 

SENIOR SUPERINTENDENT.