DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of April 2011
Present : Smt.Seena H, President
: Smt. Preetha.G. Nair, Member
: Smt. Bhanumathi.A.K, Member Date of filing: 13/01/2009
(C.C.No.5/2009)
Pradeepkumar
S/o.Sreedevi Amma
Ratna Vihar
Puthussery
Cheruthuruthy
Thrissur - Complainant
(By Adv.K.Sasidharan)
V/s
Senior Divisional Officer
The Oriental Insurance Co.Ltd.
Divisional Office
Shoba, TSM Complex
Palakkad
(By Adv.P.Ramachandran) - Opposite party
O R D E R
By Smt.PREETHA G NAIR, MEMBER
Brief facts of the complaint:
The complainant insured his transport vehicle Qualis Car bearing registration No.KL-8-AD-1062 from the opposite party. The vehicle met with an accident on 1/7/2007 and caused damages to the vehicle. The complainant informed the accident to the opposite party and the surveyor assessed the damage of Rs.1,74,000/- Thereafter the complainant preferred a claim for the damages to the opposite party. But the opposite party repudiated the claim of the complainant on the ground that the driver was not holding valid badge at the time of accident dated 12/2/2008. Thereafter the complainant sent a lawyer notice to the opposite party on 24/9/2008. The opposite party replied that the driver has no badge at the time of accident and the claim could not be settled. There is no condition in the insurance policy that badge is mandatory to drive the vehicle. The driver of the vehicle has only valid driving license as per the conditions of policy. The acts of opposite party amounts to deficiency in service to the complainant. Hence the complainant prays an order directing the opposite party to pay
damage amount of Rs.174000/- with 12% interest on 1/7/07.
Rs.25,000/- as compensation for delay of claim amount
Rs.5000/- as legal expenses
Rs.25000/- as compensation for mental agony
Rs.7000/- as cost of proceedings.
Opposite party filed version stating the following contentions.
The opposite party strongly disputed the contention of the complainant that the vehicle involved in the alleged accident KL-8-AD-1062 Qualis car belonging to him. The complainant has not produced driving license of the driver of the vehicle to prove that the driver having valid and effective license to drive the vehicle at the time of accident. There is nothing on record to show the driver was authorized by a competent authority to drive the vehicle. The driver has not obtained badge from the Regional Transport Office. The opposite party denied the damage amount of Rs.1,74,000/- Further the opposite party stated that the vehicle involved in the alleged accident is a commercial vehicle and used for making profit. The claim will not come under the purview of the Consumer Protection Act. Hence the opposite party prayed to dismiss the complaint.
Both parties filed chief affidavits and documents. Ext.A1 to A9 marked on the side of the complainant. Ext.B1 to B4 marked on the side of the opposite party. Complainant was cross examined as PW1. Matter was heard.
Issues to be considered are
Whether complainant is a consumer under the Consumer Protection Act ?
Whether there is any deficiency in service on the part of opposite party ?
If so, what is the relief and cost entitled to the complainant ?
Issue No.I
The opposite party stated that the vehicle involved in the accident is a commercial vehicle for making profit. So the complainant is not a consumer as defined under the Consumer Protection Act. No evidence was produced by the opposite party to show the complainant has used the vehicle for commercial purpose. Hence the complainant is a consumer under the definition of Consumer Protection Act.
Issue II & III
On hearing both sides and on perusal of the records, we find that the parties have produced documents and filed proof affidavit. According to Ext.A3 the claim was repudiated due to the badge is not valid as on the date of accident. In Ext.A6 the name of the accused is Sureshkumar and the offence is under Sections 279, 338 of I.P.C. The driver of the vehicle has no badge at the time of accident is nowhere stated in the FIR, FIS and Charge. Ext.A9 is the copy of driving license of the driver Sureshkumar is produced. The copy is not legible and the document was marked with objection. At the time of hearing the counsel of the complainant stated that the driver has got badge after accident. The complainant has filed I.A.37/2010 for cross examination of opposite party. I.A. was allowed. But the opposite party was not present for cross examination. The counsel of the complainant argued that the clarification of terms and conditions of Policy is necessary for the present case. So the opposite party has present for cross examination is necessary in evidence. In Ext.A1 the copy of policy stated that “Any person including insured : Provided that a person driving holds and effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license”. No where in the policy stated that the driver holds valid badge at the time of driving the vehicle. Insurance company cannot repudiate the claim when there is no breach of policy conditions. The complainant produced charge sheet of the case registered against the driver of the car wherein the driver is Sureshkumar but mistakenly in FIR driver’s name is known as Sivasankaran. No contradictory evidence was produced by the opposite party. At the time of examination the complainant stated that the vehicle is sold for lesser price after the accident as per the directions of the opposite party promising that claim amount will be granted. No contradictory evidence was produced by the opposite party. The complainant filed I.A.No.247/09 for producing the claim form. On 17/11/2009 the opposite party filed affidavit stated that the claim form could not be traced out. Later the opposite party has produced the copy of claim form. Also the opposite party has not come for cross examination. The complainant stated that the cross examination of opposite party is necessary to ask about some documents. The counsel of the opposite party argued that mere production of the RC of the vehicle and the driving license with endorsement of the badge are necessary to consider the claim amount. It is admitted that badge of the driver has got after the accident. On perusal of the records also we find that the vehicle is registered in the name of the complainant and the insurance is also in the name of the complainant. Badge is necessary for driving the tourist vehicle is a mandatory provision. No evidence was produced by the opposite party to show directions was given to the complainant for badge is necessary for driving the tourist vehicle. We find that it would be appropriate to direct the opposite party to settle the claim on non standard basis. Hence we direct the opposite party to pay 75% of the amount of repair charges assessed by the Surveyor. The same would work out Rs.1,30,500/-
In the above discussions, we hold the view that there is deficiency in service on the part of opposite party. Hence the complaint allowed. We direct the opposite party to pay the complainant as the claim amount of Rs.1,30,500/- (Rupees One lakh thirty thousand and five hundred only) with 12% interest from the date of repudiation i.e. on 12/2/2008 to date of receipt of order and Rs.2,000/-(Rupees Two thousand only) as cost of the proceedings. The order shall be complied within one month from the date of receipt of order, failing which the whole amount shall carry 9% interest from the date of order till realization.
Pronounced in the open court on this the 30th day of April 2011
Sd/-
Seena H
President
Sd/-
Preetha G Nair
Member
Sd/-
Bhanumathi.A.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of policy certificate dated dt.28/12/2006
Ext.A2 – Copy of Permit issued by RTO, Thrissur dt.14/1/2005
Ext.A3 – Copy of letter issued by the opposite party to the complainant dt.12/2/08
Ext.A4 – Copy of lawyer notice dtd.24/9/08 issued to opposite party with acknowledgment card and postal receipt
Ext.A5 – Reply letter sent by the opposite party to the complainant dt.15/10/08
Ext.A6 – Copy of FIR in Crime No.236/07
Ext.A7 – Copy of Claim form dated 3/7/07 given to opposite party
Ext.A8 – Copy of consent letter signed by the complainant dt.4/12/07
Ext.A9 – Copy of Driving License of Sureshkumar
Witness examined the side of the complainant
PW1 – K.Pradeepkumar, complainant
Exhibits marked on the side of the opposite parties
Ext.B1 – Photo Copy of FIR and FIS in Crime No.236/07 dtd.3/7/07
Ext.B2 – Photocopy of Claim Form dated 11/10/07
Ext.B3 - Photocopy of Policy dated 28/12/10
Ext.B4 – Photocopy of reply letter issued to complainant dtd.15/10/08 by opposite party.
Cost
Rs.2,000/- allowed as cost of the proceedings.
