DATE OF FILING : 19.9.2016
IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 28th day of February, 2017
Present :
SRI. S. GOPAKUMAR PRESIDENT
SRI. BENNY. K. MEMBER
CC NO.258/2016
Between
Complainant : Andrews T. Paikada,
Paikada House,
Moolamattam P.O.,
Idukki.
(By Adv: K.S. Cyriac)
And
Opposite Parties : 1. Shoni John,
Mudithottathil House,
Njaralampuzha, Kanjar P.O.,
Idukki.
2. Mithu Philip,
Mudithottathil House,
Njaralampuzha, Kanjar P.O.,
Idukki.
(Both by Adv: V.A. Biju)
3. The Branch Manager,
Oriental Insurance Company,
Jyothi Super Bazar,
Thodupuzha, Idukki – 685 584.
O R D E R
SRI. S. GOPAKUMAR (PRESIDENT)
Case of the complainant is that,
On 14.4.2016, at about 2 pm, the complainant was driving his car bearing Reg. No. KL38B-6180, coming from Thodupuzha to Moolamattam, through Thodupuzha-Moolamattam public road with due care and caution. When he reached about 500 metres east of Kanjar bridge, a motor bike bearing Reg. No.KL-38D-9371, coming from opposite direction, in a rash and negligent manner and in very high speed, driven by the 2nd opposite party, hit at the front side of the car, eventhough the complainant parked his car to the southern extreme end of the road, while seeing the vehicle coming in wrong side from opposite direction in a reckless manner. Due to the hit, the front portion of the
(cont.....2)
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car was totally damaged. Immediately the complainant informed the matter to the Kanjar Policy Station and the police recorded the complaint in the General Diary. Thereafter the complainant approached the opposite parties 1 and 2 being the registered owner and rider of the offending motor bike for repairing the car and opposite parties evaded from his demand on the ground that the vehicle is properly insured with the 3rd opposite party, Oriental Insurance Company and the 3rd opposite party is duty bound to compensate the 3rd party damages. On enquiry, the complainant came to know that this motor bike is insured with 3rd opposite party vide policy No.440205/31/2016/12190 and having validity at the date and time of accident. The complainant further stated that by getting this information, he approached the opposite parties and intimated the matter and requested to appoint a surveyor to assess the damages. But 3rd opposite party not turned up. Hence the complainant issued a legal notice stating all the above said facts to 3rd opposite party. Eventhough the 3rd opposite party received the notice, they were not cared to sent a reply. Hence the complainant assessed the loss of vehicle with the help of a private registered General Insurance Surveyor and Loss Assessor and Valuator. After getting the motor survey report, he entrusted the vehicle to one authorised service centre, Autocare Centre, Thodupuzha and repaired the vehicle by spending an amount of ₹65000. The complainant further submitted that opposite parties are bound to compensate the complainant and especially 3rd opposite party is liable to indemnify opposite parties 1 and 2. Hence the complainant approached this Forum alleging unfair trade practice from the part of opposite parties being the beneficiary of the 3rd opposite party and filed this complaint for getting an order directing the opposite parties to pay an amount of ₹97000 to the complainant towards repairing charges and other allied expenses.
On notice, opposite parties 1, 2 and 3 entered appearance. 3rd opposite party filed written version. Eventhough sufficient time was given to 1st and 2nd opposite parties, for filing written version and contest the matter, they are not turned up. Hence 1st and 2nd opposite parties are set exparte.
In their version, 3rd opposite party admitted the inssuance of the insurance policy to the alleged motor bike and confirmed its validity at the date and time of accident and denied all other averments in the complaint. 3rd opposite party further contended that as per the contract of insurance, they are not liable to compensate the loss of 3rd party, which are legally liable to be paid by the insured subject to terms and conditions of the contract of insurance. For availing benefit under this policy, either the insured should file claim form with documents to prove the liability and those documents which are necessary to
(cont.....3)
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prove the fulfilment of the condition of the policy, or competent court should fine liability based on the contract of insurance. Mere occurrence of a loss to a 3rd party, 3rd party will not became a beneficiary of contract as the liability is not unconditional. Opposite party further contended that, it is reliably understood that accident occurred solely due to negligence of the petitioner. So he had no complaint against the insured at the time of accident. If he had any complaint, police would have register a case against the insured and moreover the issues relating to cause of accident and liability to 3rd parties under Motor Vehicle Act are to be determined by the Motor Accident Claim Tribunal. Hence the Forum has no jurisdiction to enquire into these issues.
Evidence adduced by the complainant through Exts.P1 to P5. Ext.P1 is an estimate prepared by Indus Motors. Ext.P2 is the copy of legal notice and acknowledgement. Ext.P3 is the copy of GD Entry dated 15.4.2016 of Kanjar Police Station. Ext.P4 is the private motor survey report and photograph. Ext.P5 cash bill details and receipt of repair issued by Autocare Centre, Thodupuzha. No oral or documentary evidence adduced from the side of opposite parties. Heard in detail.
The point for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?
The POINT :- We have carefully considered the rival contentions and gone through the records. It is not disputed that the vehicle met with an accident on 14.4.2016 and offending vehicle is a motor bike as alleged in the complaint. In the complaint, the complainant alleged that 1st opposite party is the registered owner of the motor bike bearing Reg. No.KL38D-9371 and 2nd opposite party is its rider at the time of accident. Eventhough the opposite parties 1 and 2 entered appearance and filed vakalath, in this matter they are not turned up to defend the case at least to deny the plaint averments. Hence the Forum is in a considered view that this is why because the opposite parties 1 and 2 are in firm belief and in good faith that, since the vehicle is duly insured, the insurance company is liable to compensate the damages of 3rd party. Neither the opposite parties 1 to 3, denied the accident, nor challenged the Ext.P3 GD Entry and Ext.P4 private surveyor report. No effort is taken by any of the opposite parties to adduce sufficient evidence to rebut the plain averments and substantiate their version. It is surprising that evenafter getting information about the accident, 3rd opposite party not took any steps to enquire the matter and find out what happened actually. Without having sufficient
(cont.....4)
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evidence to prove their version, the Forum is not in a position to swallow all the rival contentions.
No evidence adduced by the opposite parties to substantiate the version that the Motor Vehicle Tribunal is the sole authority to decide the matters relating the vehicle damages or no precedents are produced by opposite party to fortify such contentions. Based on the above discussion, the Forum is of a considered view that the evidence produced by the complainant is sufficient to prove the damages caused to his vehicle and it is due to the rash and negligent act of the opposite parties 1 and 2 being the registered owner and driver of Yamaha Motor Bike having Reg. No.KL-38D-9371. Since the policy of the vehicle and its validity is admitted by 3rd opposite party, they are bound to indemnify 1st and 2nd opposite parties without raising lame excuses.
Hence the Forum directs the 3rd opposite party to pay an amount of ₹33014 towards damages as per Ext.P4 private surveyor report and also directs to pay an amount of ₹2100 being the fees of the surveyor and ₹3000 as litigation cost to the complainant within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of complaint, till its realisation.
Pronounced in the Open Forum on this the 28th day of February, 2017
Sd/-
SRI. S. GOPAKUMAR (PRESIDENT)
Sd/-
SRI. BENNY. K. (MEMBER)
(cont.....5)
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APPENDIX
Depositions :
Nil.
Exhibits :
On the side of the Complainant :
Ext.P1 - an estimate prepared by Indus Motors.
Ext.P2 - copy of legal notice and acknowledgement.
Ext.P3 - copy of GD Entry dated 15.4.2016 of Kanjar Police Station.
Ext.P4 - private motor survey report and photograph.
Ext.P5 - cash bill details and receipt of repair issued by
Autocare Centre, Thodupuzha.
On the side of the Opposite Party :
Nil.
Forwarded by Order,
SENIOR SUPERINTENDENT
