KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 294/2017

JUDGEMENT DATED: 25.11.2024

(Against the order in C.C.No.226/2013 on the file of DCDRC, Kasaragod)

PRESENT:

APPELLANTS:

(by Adv. Varkala B. Ravikumar)

Vs.

RESPONDENT:

(by Adv. T. Ajithkumar)

JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

The appellants are the opposite parties in C.C.No.226/2013 on the files of the District Consumer Disputes Redressal Commission, Kasaragod (for short ‘the District Commission’).  The respondent herein is the complainant before the District Commission.

          2.  The complainant is the owner of a bus which was insured with the 2^nd opposite party for the period from 20.04.2012 to 19.04.2013.  The said bus bearing registration No. KA 20 B 7759 met with an accident on 11.07.2012 and as a consequence, the bus sustained damage.  The driver and the co-driver also sustained serious injuries in the accident.  Immediately after the accident, the matter was informed to the 2^nd opposite party and the 2^nd opposite party deputed a Surveyor to assess the damage caused to the bus. The complainant approached the opposite parties to get a reasonable claim. However, the 1^st opposite party, without any lawful reason, declined to pay the insured amount to the complainant even after getting the survey report.  Since the amount was not paid, the complainant filed the complaint alleging deficiency in service on the part of the 1^st opposite party.

3.       The 1^st opposite party filed version contending that the policy was issued after collecting the premium by way of cheque.  However, the cheque was dishonoured when presented for encashment due to insufficiency of funds in the account of the complainant to honour the cheque.  Therefore, the policy stood cancelled from the inception as per the express warranty in the policy and hence no claim was payable under the policy.  The fact was duly intimated to the complainant.  On the date of accident, the vehicle was not having a valid insurance policy.  There is no deficiency in service on the part of the 1^st opposite party and hence the complainant is not entitled to get any compensation from the 1^st opposite party.

4.       The 2^nd opposite party also filed separate version identical to the contentions taken by the 1^st opposite party.

5.       Both sides did not adduce any oral evidence.  Exhibits A1 to A5 were marked for the complainant.  Exhibits B1 and B2 were marked for the opposite parties. 

6.       The District Commission, after evaluating the evidence, directed the 2^nd opposite party to pay Rs.2,27,200/-(Rupees Two Lakhs Twenty Seven Thousand and Two Hundred only) towards the claim amount with interest @10% per annum, Rs.10,000/-(Rupees Ten Thousand only) towards compensation  and Rs.3,000/-(Rupees Three Thousand only) towards costs.  Aggrieved by the said order, this appeal has been filed.

7.       Heard both sides.  Perused the records.

8.       The learned counsel for the appellants has submitted that since the cheque issued towards the payment of premium was dishonoured, there was no valid insurance policy as on the date of accident and consequently, the opposite parties repudiated the claim as per Exhibit B1 letter and in the said circumstances, there was no deficiency in service on the part of the opposite parties in this regard.  It is stated in the complaint that cheque No.5233000245 dated 09.04.2012 drawn on the Corporation Bank for Rs.38,690/- (Rupees Thirty Eight Thousand Six Hundred and Ninety only) was issued to the 2^nd opposite party for issuing the policy for the period from 20.04.2012 to 19.04.2013.  The cheque number is not seen mentioned in the versions filed by the opposite parties.  Exhibit B1 is the letter of repudiation whereby the claim of the complainant was repudiated.  In Exhibit B1, it was stated that since the cheque issued was dishonoured for insufficiency of funds in the account of the complainant when presented for encashment, the policy stood cancelled from the inception and no claim under the policy was admissible.

9.       Exhibit A4 and Exhibit B1 are one and the same.  It appears from Exhibit B1 that cheque number referred to in Exhibit B1 was not the number of the cheque mentioned in the complaint.  The amount shown in the cheque as per the complaint is Rs.38,690/-(Rupees Thirty Eight Thousand Six Hundred and Ninety only) whereas the amount shown in Exhibit B1 is Rs.32,195/-(Rupees Thirty Two Thousand One Hundred and Ninety Five only).  There is also no contention that the cheque referred to in the complaint was not the cheque issued towards the premium for Exhibit A1 policy.  Thus, from the materials on record, it is evident that the cheque referred to in Exhibit B1 was not the cheque issued by the complainant towards the payment of the premium. 

10.     The opposite parties do not have a contention that the cheque referred to in the complaint was dishonoured when presented for encashment.  There is absolutely no material, apart from the contentions of the opposite parties, to indicate that the cheque issued by the complainant towards the payment of premium for Exhibit A1 policy was dishonoured.  If that be so, it has to be held that there was a policy for the bus in question for the period from 20.04.2012 to 19.04.2013.  In the said circumstances, there can be no doubt that the policy was valid on 11.07.2012 when the accident occurred.  Therefore, the argument in this regard cannot be accepted.  

11.  Exhibit A2 is the report of the approved Surveyor, which would show that the loss was assed at Rs.1,45,255/-(Rupees One Lakh Forty Five Thousand Two Hundred and Fifty Five only).  The workshop estimate in Exhibit A2 report of the Surveyor was of Rs.2,27,200/-(Rupees Two Lakhs Twenty Seven Thousand Two Hundred only). 

12.     As per the assessment made by the Surveyor, the total loss was assessed as Rs.1,45,255/-(Rupees One Lakh Forty Five Thousand Two Hundred and Fifty Five only).  Therefore, the District Commission was not correct in awarding the amount assessed by the workshop persons.  The opposite parties are bound to pay only the amount assessed by the Surveyor.  No objection was filed to the survey report and hence the survey report was marked without any objection.  Therefore, the survey report can be safely acted upon.  As per the survey report, the loss was assessed to the tune of Rs.1,45,255/-(Rupees One Lakh Forty Five Thousand Two Hundred and Fifty Five only).  Therefore, the complainant is entitled to get the said amount from the opposite parties instead of Rs.2,27,200/-(Rupees Two Lakhs Twenty Seven Thousand Two Hundred only) as directed by the District Commission.  We order accordingly.

13.     Having bestowed our anxious consideration on the materials on record, we are of the view that the amount awarded by the District Commission can be modified and reduced from Rs.2,27,200/-(Rupees Two Lakhs Twenty Seven Thousand Two Hundred only) to Rs.1,45,255/-(Rupees One Lakh Forty Five Thousand Two Hundred and Fifty Five only) as assessed by the Surveyor in Exhibit A2 with 9% interest per annum from the date of the complaint till the date of realisation.  The compensation and the costs awarded by the District Commission do not warrant any interference by this Commission.

In the result, this appeal stands allowed in part modifying and reducing the compensation towards the claim awarded by the District Commission to Rs.1,45,255/-(Rupees One Lakh Forty Five Thousand Two Hundred and Fifty Five only) with 9% interest per annum from the date of the complaint till the date of realisation.  The costs and compensation stand confirmed.  In the said circumstances, there is no order as to costs.

The statutory deposit made by the appellant shall be given to the respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

SL