DOF.17.6.2004

DOO.4.8.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 4^th  day of August    2010

C.C.No.137/2004

K.Sujatha,

“Veena Nivas,”

Talap, Yogasala Road,

Kannur 2.

(Rep. by Adv.K.Anil Kumar)                                           Complainant

1. Senior Divisional Manager,

   National Insurance Co.,

   Kannur Divisional Office,

   P.B.No.40, Bank Road, Kannur 1.

2. Regional Manger,

   National Insurance Company,

   4^th floor,

   Muthoot Towers,

   M.G.Road, Kochi.

3. Genral Manger,

   National Insurance Company,

   Middle-ten Street, Calcutta.

 (Rep. by Adv.V.K.Rajeev)                                          Opposite parties

        O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section12 of the consumer protection Act for getting an order directing the opposite parties to pay an amount of Rs.3, 50, 000/- as compensation together with the cost of these proceedings.

The brief facts of the case of the complainant are as follows: the complainant is the owner of Tata Stage carrier having permit from Vellerikundu in Kasaragod District. The vehicle holds the certificate of Insurance for passengers carrying commercial vehicle bearing policy No.571100/31/01/6308085 having valid insurance policy. Her vehicle met with an accident on 3.1.03 at Thalappara in Malappuram District and sustained a heavy damage to vehicle. Complainant submitted claims before 1^st opposite party. She has incurred a huge expenditure of more than Rs. 2 ½ lakh for the repair of the vehicle. Opposite party sent a letter dt.7.1.0-4 repudiating the claim on the ground of misrepresentation of facts. The complainant never misrepresented any facts. 1^st opposite party repudiated the claim purposefully to escape from the liability though petitioner has produced all the relevant documents. The repair work of the bus was conducted at Niveditha Industries Thottada, Kannur. Complainant sent registered letters DT. 22.3.04 calling upon them to pay a sum of Rs.2 lakh. The letter was acknowledged by the 1^st opposite party on 23.3.04 and second opposite party on 21.3.04 and by the 3^rd opposite party on31.3.04. But opposite parties did not send even a reply. Hence this complaint.

            Pursuant to the notice opposite parties entered appearance and filed version jointly. The main contentions of opposite parties in brief are as follows: The stage carriage KL.13E.3679 was insured with the opposite party. The complainant has suppressed material facts and misrepresented regarding the documents relating to the claim which amounts to breach of “utmost faith” and the policy condition. Therefore the policy itself has become void. The claim was repudiated only because the complainant had committed breach of policy condition by suppression of material facts. The averment in the complaint that on 3.1.03 at the midnight the vehicle kL.13E.3679 stage carriage which was driven by Premarajan met with an accident and heavy damage was caused to the vehicle was not true. As per the investigation conducted by this opposite party the vehicle was driven by Sreejith Babu who succumbed to the injuries in the accident. The first information statement by Biju in crime No.2/03 of the Thirurangadi Police and the statement of most of the injured in the accident will also show that it was the deceased Sreejith, who was driving the bus at the time of the accident. The report of all the leading news papers of 4.1.03 will also reveal that it was Sreejith Babu who was driving the vehicle. The averment that one Premarajn was driving the vehicle was not true. As per the police records it is seen that all the 50 passengers in the bus has sustained injuries. The major damage noted on the vehicle were also located near the drivers seat. If that being so definitely the driver should have sustained injuries. But Premarajan who according to complainant the driver at this time of accident, had not even sustained an abrasion and he had not taken any treatment. The circumstances is very apparent that complainant has misrepresented that the driver was not deceased Sreejith at the time of accident. Complainant had caused to manipulate the investigation of the police. Though the first information statement of Biju shows that Sreejith Babu was the driver of the vehicle at the time of accident, the police charge sheeted Premarajan under section 279,337,338 and 304(A) IPC. The inquest report in the said crime is signed by 5 people who are all relatives of employees of the complainant. The police have deliberately charge sheeted Premarajan as driver to support the complainant. This opposite party is not liable to pay any amount as compensation. Hence to dismiss the complaint.

On the above pleadings the following issues were raised for consideration.

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

2. Whether the complainant is entitled for remedy as prayed in the complaint?

3. Relief and cost.

            The evidence consists of oral testimony of PW1, DW1, DW2 and documentary evidence Exts.A1 to A10and B1 to B9.

 Issue No. 1 to 3

Admittedly the complainant is the owner of Tata Stage Carrier. The vehicle met with an accident on 3.1.03 at Thalappara in Malappuram District and sustained a heavy damage to vehicle. Complaint submitted claim before 1^st opposite party. But 1^st opposite party repudiated the claim on the ground that compliant suppressed material fact and misrepresented regarding the documents relating to the claim which amounts to breach of “Utmost faith”.

            Complainant filed proof affidavit in tune with her pleadings in complaint. The main allegation of the complainant is that the opposite parties repudiated the claim purposefully to escape form the liability. Complainant has produced Ext.A1 the final report of police which shows police has charge sheeted against the accused Premarajan under section 279, 337,338, 304(A) IPC. The report says as follows: “3.1.03 XobXn 10 aWn¡v {]Xn  Kl.13.E.3679  \T-]À _Ên-sâ-ss{U-h-dmbn Npa-X-e-h-ln-¨vXr-iqÀ tImgn-t¡mSv F³.-F-Nv.-tdm-UnÂIqsS tImgn-t¡mS `mK-¯p-\n-¶p-T-Xr-iqÀ `mK-t¯¡v bm{X-¡m-cmb km£n-I-sf-bpT Ibän HmSn-¨p-t]m-Ith F³.-FNv tdmUn Xe-¸m-d-F¶ Øe¯v F¯nb ka-bT  A{i-²-bpT AXn-th-K-X-bpT a\p-jy Poh\p A]-I-Sa hc-¯¡ \ne-bn-epT HmSn-¨p-h-¶-Xn-\m hml-\T \nb-{´-WT hn«v tdmUnsâ ]Sn-ªmd `mK-t¯¡v adn-ªp. . . . . .“ . The final report shows that Mr.Premarajn was driving the vehicle at the time of accident. The case of the opposite party is that it was Mr.Sreejith Babu who succumbed to the injuries in the accident was the driver at the time of accident. It was not Premarajan. Ext.B7 FIR contents revels “  ta¸-Sn-_-Êva-dn-bp-¶-Xn-\p0 Bb-Xn-Âbm-{X-sN-bvXn-cp¶ Bh-em-Xn-¡m-c-\pT aäp bm{X-¡mÀ¡pT ]cn-t¡Â¡m-\pT Bb-Xnse ss{UhÀ ac-W-s¸-Sm-\pT CS-bmb Imc-yT ]d-ªndnªp. The statement of Biju says                       “kT-`-h-¯n\p Imc-WT _tÊm-Sn¨ ss{Uh-dpsS {i²-¡p-d-hpT thK-X-Iq-Sp-X-ep-am-Wv. ss{Uh-dpsS t]c-dn-bn-Ã. ac-W-s¸« ss{Uh-dpsS ihT  ChnsS Bip-]-{Xn-bn-ep-s­¶p ]d-ªp.

This statement is very important and its evidentary value is much high since it is the earliest available evidence with least possibility of undue influence. It can be seen that all the persons in the bus sustained injury minor or serious and taken treatment. FIR shows that the driver of the bus who was driving the bus succumbed to injuries sustained in the accident. The person who died is Sreejhith Babu. Ext.B2 claim intimation admitted that the person who died is Sreejith Babu. His name but shown as second driver and the driver shown as driving the bus was Premarajan. Application submitted before the Commissioner for Workmen’s compensation (W.C.45/2004) proves that Sreejith Babu sustained fatal injuries and succumbed to death. Complainant produced certified photo coy of final report in crime No.2/03 of Tirurangadi police station on his side to prove his case. It is marked as Ext.A1. In the final report Mr.Premarajan is the accused and he was charged under section 279,337,338, 304(A) IPC. Opposite party has strongly contended that it was not Premarajan who was the driver at the time of accident. It is strongly contended that all the 50 passengers in the bus sustained injuries in the accident. The major damage noted on the vehicle was also located near the driver’s seat. The driver should have sustained grevious heart. Mr.Premarajan who according to the complainant was the driver did not even sustained abrasion. Ext.B6 shows that 50 persons were injured in the accident. The photos produced by opposite party though not proved by examining the person who has taken the photographs shows the damage on the vehicle locate near the drivers seat  heavily damaged.

            Ext.B2 is the claim intimation Form. The accident was taken place on 3.1.03. The claim intimation form seendt.6.1.03 just after 3 days of the accident. The columns 5 i.e. ”Name the driver at the time of accident” seen filled up originally as {ioPnXv _m_p.The naked open scrutiny of the face of the claim intimating form will reveal from the flow of filling up that it is the name of Sreejith Babu written towards column number five. Corrections made thereafter. The subsequent addition in front of the name with little bit small letter as “c­m-as¯ ss{UhÀ  “ so also in the  right end of the name as:A]-I-S-¯nÂa-c-W-s¸«p    “with an addition above the line “ HmSn¨ ss{UhÀ t{]a-cm-P³”   are all corrections made as a result of  after thought. The column printed item contains two lines English and Malayalam. The filled lines can be seen readily straight line with bottom written Malayalam in all the columns including correction made 5^th column. That itself makes undoubtedly clear that the corrections were made with intended to change the name”{ioPn¯v _m_p    “and to substitute the name Premarajan”. What is necessary to fill up in the 5^th column is “Name the driver at the time of accident”. What is the need to write the name of  ”{ioPn¯v _m_p   in that column? Moreover, it is very important to note what is written at the bottom. The writing in the original flow of ink seen written as “sIm¶-¡mSv \n¶p-]q-¸-d¡v t]mIp-T-t]mÄ Xe-¸m-d-sh¨v Sâvap-dnªv h­n-a-dn-ªp. ss{UhÀ kvt]m«nÂsh¨p ac-W-a-S-ªp.-tFItZ-iT 40 HmfT BÄ¡v ]cn-¡v]-än. kT-`-hT Xncq-c-§mSn t]meokv tÌj-\n And-bn-¨p.  “ In the second line one word “ c­m-as¯ “ is added correcting in-between the words “ h­n andªp   and ss{UhÀ kvt]m«nÂsh¨v     And a sentence  added after tÌj-\n And-bn¨p as the following A]-IS ka-b¯v  HmSn¨ ss{UhÀ t{]a-cm-P\p ]cn¡v H¶pT ]än-bnÃ. All the corrections made can be recognized distinctively since the letters are small compared to the original and the colour of the ink looks fade with the origin. It is pertinent to note the last sentence added. The driver at the time of accident sustained no injury is the sentence added. What does it mean? The available evidence shows that all the passengers in the bus sustained injuries small or big. But wonderfully the only person pointed to be escaped from injuries is the person “  A]-IS ka-b¯v  HmSn¨ ss{UhÀ t{]a-cm-P³ “only. The photographs in the record if perused it is crystal clear that the heavy damage on the vehicle seen located near the drivers seat which seems to be no escape without deadly injury except only by a miracle. That being the circumstantial evidence a man of ordinary prudence cannot believe that the man he who drive the bus at the time of accident will be able to escape without injury. That is the reason why the psychological thrust that compelled the complainant to add the sentence”A]-IS ka-bT HmSn¨ ss{UhÀ t{]a-cm-P\p ]cn¡v H¶pT ]än-bnÔ`It is not written for want of information. Hence the entry of Premarajan as driver is very suspicious one. Ext.B6 investigation report cannot be considered worthless though the marking was objected. The perusal of the objected document Ext.B6 also strengthening to believe that the deceased Sreejith Babu was the driver at the time of accident. The statements of various persons consisted as part B6 also adds weight to this conclusion.

            In the light of the above discussion we are of opening that Mr.Sreejith Babu, who succumbed to the injuries, was the driver at the time of occurrence of accident There is misrepresentation on the part of the complainant with respect to the material facts of the accident. Hence deficiency of service cannot be attributed on the shoulders of opposite parties as far as this case is concerned and thus we hold that the repudiation of the claim has only been considered justifiable. The issues 1 to 3 are found against complainant

In the result, the complaint stand dismissed. No cost.

                                      Sd/-                                 Sd/-                            Sd/-             

                                  President                           Member                    Member

                          APPENDIX

Exhibits for the complainant

A1.Final report filed by the SI of police, Thirurangadi.

A2.Copy of the letter sent by OP(Repudiation letter)

A3.Copy of the notice sent  to OP

A4.AD

A5.Copy of the complaint filed , 716/04 and 717/04 before MACT

A6.summons and petitions filed before the W. Court

A7.Motor claim form ( B series)

A8.Quotation for Accident vehicles ( B series)

A9.Quotation  K.M. Motor Garage, ( B series)

A10.Bills for body building.

Exhibits for the opposite parties:

B1.Insurnace policy conditions

B2.Claim intimation form submitted by complainant

B3.Claim form submitted by Complainant

B4.Survey report

B5.Work sheet for motor O.D claim settlement

B6.Investigatin report of private Detective agency

B7.Copy of the FIR

B8.Quotatin issued by Niveditha  Industries dt.12.2.03

B9.Quotatin  issued by M.Auto Garage

Witness examined for the complainant

PW1.complainant

PW2.T.K.Sandeep

Witness examined for opposite parties

DW1.T.A.Sankarankurtty

DW2.A.K.Krishnakumar                                          /forwarded by order/

                                                                           Senior Superintendent

Consumer Disputes Redressal Forum, Kannur