BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31st day of January, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.127/2008

Between

Complainant : Benny Varghese S/o Varghese,

Thottappillil House,

Moolamattom P.O,

Arakkulam Village,

Idukki District.

(By Adv: C.S.Georgekutty)

And

Opposite Party : The Manager,

Oriental Insurance Company Limited, Thodupuzha.

(By Adv: K.Pradeepkumar)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant is the owner of a Maruthi car bearing Reg.No.KL-06-B 1495 has duly insured with the opposite party as No.441701/2006. On 6.07.2006 night at about 11.45 p.m, the vehicle met with an accident at Vazhakkulam and the vehicle was totally damaged. The complainant was having his wife and 2 children were also accompanied with him. He availed a learners driving licence at the time of accident and a qualified licensed driver was sitting near to the complainant at the time of accident. "L"Board was also affixed in the vehicle. The claim was submitted before the opposite party for compensation for the damages sustained to the vehicle, but it was repudiated by the opposite party. The vehicle was caused damages to the tune of more than Rs.1,10,000 and the vehicle was insured for Rs.1,10,000/-. The complainant is entitled to get Rs.1,10,000/- with 12% from the date of repudiation of the insurance claim that is from 30.08.2006. So the complaint is filed for getting the insurance policy of the damaged vehicle.

2. In the written version filed by the opposite party, it is admitted that the vehicle was insured with the opposite party for the period from 18.09.2005 to 17.09.2006 in the name of the complainant, vide Policy No.44170/2006/7330. The passengers in the vehicle were not covered by the contract of insurance. As per the contract of insurance, it is specifically provided that, if the vehicle is driven by a holder of a Learners licence, that person shall satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules 1989. In this case complainant who was driving the vehicle had only a Learners licence and he had violated the Central Motor Vehicles Rules, that violation was the cause of accident also. As per the Central Motor Vehicles Rules while a learners licence holder is driving the vehicle, he shall be accompanied by a person holding an effective driving licence and such person shall be sitting in such a position to control the vehicle. In this case F.I statement given by the wife of the complainant shows that the driver was sitting on the back seat. The "L" board shall be displayed in red letter on a white background, this rule also was violated by the petitioner. An independent surveyor was appointed by the opposite party to assess the damages caused to the vehicle. The surveyor has reported that"L" board was not displayed on the vehicle. As the complainant willfully violated the policy conditions and provisions of law, the opposite party is not liable pay any compensation. The amount alleged by the complainant is very high than the actual loss that is, Rs.60,406.57 as per the survey report of the opposite party. So the claim may be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to ?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P3(series) marked on the side of the complainant and the oral testimony of DWs 1 and 2 and Exts.R1 to R3 marked on the side of the opposite party.

5. The POINT :- The complainant is a holder of an effective learners licence, was driving a Maruthi car, met with an accident and was fully damaged. The vehicle was duly insured to the opposite party. The opposite party rejected the claim because the complainant violated Rule 3 of the Central Motor Vehicles Rules. The complainant was examined as PW1. PW1 deposed that the complainant was having Learners driving licence at the time of accident. But an expert driver with license holder was sitting with him at the time of accident to control the vehicle. "L" Board was also fixed on the vehicle. The vehicle caused a loss of Rs.1,10,000/-. The copy of the insurance certificate is Ext.P1. The repudiation letter is marked as Ext.P2. The estimate from the workshop is Ext.P3(series). Opposite party was examined as DW1. DW1 deposed that at the time of accident, the wife of the complainant was also with him. She gave an FI statement to the Vazhakkulam police. In that FI statement, it is written that, the complainant and his wife were sitting in front of the vehicle, husband was driving the vehicle, which is marked as Ext.R1. The effective licence holder was not sitting in front of the vehicle adjacent to the seat of the driver. The survey report submitted by the surveyor of the opposite party, the assured amount is only Rs.80,542/-. Net loss is only Rs.60,486/-. The surveyor was examined as DW2. The survey report was marked as Ext.R3. In the report in page '6' it is written that on repairs basis, the value assessed for damaged caused is for Rs.80,542/- and in total loss basis Rs.80,000/-. The wreck value of the vehicle in its condition fetch Rs.35,000/- along with valid RC Book and on cash basis the amount of loss is Rs.60406.57 only. But DW2 never visited the place of occurrence. The front glass was not in the vehicle. As per the opposite party, the complainant violated the Rule 3 of the Motor Vehicles Laws. The person accompanied by him was not sitting adjacent to him, in front seat as per Ext.R1. FI Statement and 'L' Board was not fitted, provided some other persons were also in the vehicle.

6. The wife of the complainant who gave the FI statement. But the husband denied the same. The opposite party never cited the person who recored the FI statement as a witness to prove the bonafide intension of the same. The only investigator of the opposite party in the accident is the DW2 surveyor. The surveyor inspected the vehicle only after 8 days and at that time the front glass was not in the vehicle. The occurrence place was also not inspected by the surveyor. So it is not possible to believe the correctness of the deposition of the surveyor. Usually 'L' boards are fitting on the front glass of the vehicle. Considering the assessment value of the vehicle, by the surveyor for 2000 Model Maruthi 800, the total loss assessment is Rs.80,542/-, it may be correct. It is admitted by the complainant that there were another passengers were also travelling in the vehicle at the time of accident. But the claim is only for property damage. No claim is arised for the injury caused to the co-passengers. So it is not proper to reject a property damage claim only because there were other passengers, who were the wife and children of the petitioner. Moreover the petitioner was going to see his mother-in-law who was admitted in the hospital. So we think it is fit to order the total loss claim assessed by the surveyor of the opposite party to the complainant.

Hence the petition allowed. The opposite party is directed to pay an amount of Rs.80,542/- to the complainant as the insurance claim of the vehicle as per Ext.R3 survey report with 12% interest from the date of this petition and Rs.2,000/- for the cost of this petition, within one month of receipt of a copy of this order, failing which the amount shall carry further interest at 12% per annum from the date of default.

Pronounced in the Open Forum on this the 31st day of January, 2009

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT.SHEELA JACOB(MEMBER)

Sd/-

SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Benny Varghese

On the side of Opposite Party :

DW1 - Raju Joseph

DW2 - Binoy Mathew

Exhibits:

On the side of Complainant:

Ext.P1 - True copy of Certificate cum Policy Schedule

Ext.P2 - True copy of Repudiation letter dated 30.08.2006 issued

by the opposite party

Ext.P3(series) - True copy of Job Estimate dated 13.07.2006 issued by

M/s.Indus Motor Company Private Limited, Muvattupuzha

(3 Pages)

On the side of Opposite Party :

Ext.R1 - Photocopy of F.I Statement dated 7.07.2006 given by the

wife of the complainant

Ext.R2 - Original Certificate cum Policy Schedule with Policy Conditions

Ext.R3 - Motor Survey Report dated 24.07.2006 prepared by DW2,

Insurance Surveyor