DOF. 4.12.2008 DOO. 20.12. 2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 20th day of December 2010 C.C.No.291/2008 T.Majeed, ‘Thaira Majeed House’, Macheri, P.O.Mowanchery, Kannur 670613. (Rep. by Adv.T.P.Sabu) Complainant The Area Manger, National Insurance Company Ltd., Branch Office, Ambika Arcade, M.G. Road, Thrissur. Opposite parties (Rep. by Adv.V.K.Rajeev) O R D E R Sri.K.Gopalan,President This is a complaint filed under section 12 of the consumer protection Act for an order directing the opposite party to pay an amount of `2, 21,230 as the claim amount and an amount of `100000 as compensation together with cost of this proceedings. The case of the complainant in brief is as follows: The complainant is a RC owner of the vehicle Maruti Omni Van, which is insured with the opposite party for a period from 16.11.06 to 15.11.07. The vehicle met with an accident on 17.4.07 at Vatanappalli, Thrissur while it was on a return journey from Veegaland. The accident caused to serious damages and loss. Complainant submitted the claim with relevant documents but the opposite party did not settle the claim and repudiated on the ground that the vehicle was being used for rent at the time of accident and the vehicle had carried more number of passengers beyond the seating capacity violating the policy conditions. The reason stated in the repudiation letter was untrue. The vehicle was not used for running to rent. It was used by the complainant’s son and his friends for domestic and pleasure purpose. It was a private vehicle and can be used for self purpose. The vehicle at the time of accident was driven by the complainant’s son himself. The vehicle gets seating capacity of 8 passengers. The complainant’s son and 7 other friends had gone to Veegaland as a pleasure trip without obtaining rent from any person. It is false to state that the vehicle was over loaded at the time of accident. Complainant issued a lawyer notice but the insurance company sent reply by stating the same words in the repudiation letter. Complainant spent huge amount to repair the vehicle. The delay in settling the claim caused great financial stringency and the repayment of loan installment towards the financiers became due. The vehicle is still kept in the workshop due to nonpayment of entire repairing charges. The vehicle was being used for the day to day functioning and business trips of the complainant. The contention of the opposite party is unnecessary intend to escape from the liability. Even after repeated requests the opposite party is not ready to settle the claim. The act of the opposite party caused great mental agony and financial stringency to the complainant. The opposite party is legally bound to settle the claim and liable to pay compensation. The opposite party will settle the claim only with the interference with this Forum. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version contending as follows: The vehicle of the complainant Maruti Van was insured with opposite party at the time of alleged accident. The complainant is not entitled to get the claim since at the time of accident the private vehicle was plied in violation of the policy conditions by carrying passengers for hire and reward and also by carrying more than 8 passengers in the vehicle, which is in violation of conditions of its registration and in violation of the insurance policy. The opposite party appointed an insurance investigator after getting the claim intimation to investigate into the matter and by his report it is found that the private Maruti Van was carrying passengers for hire at the time of accident and in the accident one passenger died and 4 passengers were seriously injured and 4 passengers were having simple injuries and the driver was also injured in the accident. The accident register cum wound certificates issued from the West Fort Hospital, Thrissur will show that 9 passengers were injured in the accident and the postmortem certificate issued from the Medical College Hospital, Thrissur shows that one passenger in the vehicle died due to the injuries sustained in the accident. The investigation of Vatanapally police in Cr.No.159 also reveals that the vehicle was being used for rent at the time of accident and the vehicle was carrying 10 passengers including the driver. The repudiation of the claim was made on valid reasons since as per the policy conditions “Limitations as to use” clearly states that the policy does not cover the use of the vehicle for hire or reward and the violation of the conditions of registration certificate conditions by permitting more than 8 persons including the driver to travel in the vehicle also exonerate the insurer from the liability towards the 3rd party by indemnifying the insured as well as the liability to make good the loss of the insured for the own damage claim towards the damage caused to the vehicle. Hence there is no unfair trade practice or deficiency in service on the part of opposite party. The averment that the complainant had spent huge amount for repair and the vehicle is still kept in the workshop due to non-payment of repair charges etc. are all false. There is no base for the claim of the complainant. The complainant had not submitted any work shop bill. The claim of the complainant is not allowable since the same is not supported by any document. The report of the surveyor deputed by this opposite party assessed to note liability of opposite party as `150000. Therefore if at all the claim is to be allowed the complainant is entitled for compensation on the actual bills towards the repair of the vehicle or up to limit of the assessment made by the surveyor. The complainant is not entitled for any claim since the same was repudiated on a void ground, 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 opposite parties? 2. Whether the complainant is entitled for any remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1, PW2, DW1, DW2 and Exts.A1, A2, Exts.B1 to B17 and X1. Issue Nos. 1 to 3 Admittedly the complainant is the RC owner of the vehicle Maruti Van KL.13/R1037 which was insured with opposite party National Insurance Company at the time of incident for a period from 16.11.06 to 15.11.07. The claim submitted by the complainant was repudiated on the ground that the vehicle was being used for rent at the time of accident and the vehicle had carried more number of passengers beyond the seating capacity in violation of the policy conditions. The complainant’s case is that the vehicle was not used for rent and it was used by complainant’s son and his friends for domestic and pleasure purpose, which is evident from the fact that they had gone for trip to Veegaland. It was a private vehicle and can be used for self purpose. The vehicle was driven by complainant’s son at the time of accident. Seating capacity of the vehicle was 8 passengers. Son of the complainant and 7 other friends had gone to Veegaland as a pleasure trip without obtaining any rent from any one. The insurance company contended that the complainant is not entitled for the claim since the vehicle was plying in violation of its registration and also in violation of the insurance policy. With respect to the violation of policy the first point to be discussed is whether the vehicle was carrying more numbers of passengers beyond the seating capacity at the time of accident. Ext.X1 is the case diary. FIR (Vatanapally police station 2007 FIR No.159 dt.17.4.2007) shows that the alleged accident took place on 17.4.07 at Vatanappally, Thrissur District. First Information Report recorded by S.I of police, Vatanappally police station show that the Maruthi Omni Van by which Mr.Ramsad and his 7 friends were traveled met with the accident and Ramsad was dead in the accident when they were returning from Veegaland. It can be seen that there were 8 passengers in the vehicle. According to the statement given, one among them happened to die and all others sustained injury and there by admitted to hospital. The inquest report shows that the alleged accident took place while the deceased and 9 others traveling on their return journey from Veegaland. The brief facts given in the final report Para 16 states that Ramsad expired in the incident, witness 2,3,4 & 5 sustained grevious injury and witnesses 6,7,8 and 9 sustained simple injury. The case diary consist of the list of 25 witnesses among them 1 to10 are as follows: 1.Ashraff (who has given statement) 2. Rohit, 18years 3. Midhun, 17 years 4. Binto, 20 years 5. Vipin 20 years 6. Askar, 18 years 7. Sajith,20 years 8. Sathyan, 28 years 9. Sharafudeen 29 years 10. Lalkar, 33 years. As per inquest report witness No.2 Rohith, NO.3 Mithun, No.4.Binto, No.5.Vipin are grievously injured and witnesses No.6 Askar, NO.7 Sajith, No.8.Sathyan, No.9.Sharafudeen and 10.Lalkar are sustained simple injuries. Accident-cum-wound certificate issued by the hospital shows that the following persons are injured. Vipin, Sarath, Ramsad, Rohit, Mithun, Sajith, Askar, Binto, Shiju. Herein no certificate is seen produced that of witnesses No.8 & 9 Sathyan and Sharafudeen who were sustained injury. More over the above shown injured Sarath and Shiju whose certificates were produced seen excluded from the witness list. Hence it is not possible by mere perusal of the above documents without proving it by adducing evidence to come into the conclusion that there were more than 8 persons traveling in the alleged vehicle. Opposite party has not explained who are the Sarath and Shiju, whose accident cum wound certificate shows injured in the accident. Opposite party contended that there is correction in the claim form. Even if there is correction it is not safe to rely upon the case diary to say that there are more than 8 persons traveled in the vehicle. Opposite party could not prove their contention of carriage of 10 passengers against sanctioned capacity of 8. The contradiction that has been present in the documents Ext.X1 does not permit to come into conclusion that there are more than 8 passengers in the vehicle at the time of accident. It is an important point to look into the aspect whether the alleged vehicle was plied hiring on rent. Opposite party contended that the vehicle was plied hire on rent. But they could not have placed any evidence to prove that the alleged vehicle involved in the accident was hired for rent. The case of the complainant is that the accident occurred while his son and the other friends returning from Veegaland as a pleasure trip. It can be seen all the injured are belonging to the age group of 16 to 30. It shows all are youngsters. In the ordinary course there is nothing to disbelieve that complainant’s son and his friends went for a pleasure trip to Veegaland since the complainant is the RC owner. In the usual course there is no possibility for hiring the vehicle for rent since the passengers were son of the complainant and his friends. Opposite party did not place any evidence to prove that the vehicle was hired for rent. There is no material to reject the plea taken by the complainant since his son was in the team. The age group of those passengers were taken into consideration it can only be conclude that they were all friends including the son of complainant and the availability of vehicle for free of cost may also be a reason for such trip. In the absence of evidence we cannot say that the vehicle was hired for rent. Repudiation of vague allegation that the vehicle was plied for hire cannot be accepted. There is nothing to record to suggest that it was being plied for hire and reward. The opposite party could not prove that the vehicle was being plied for the hire and reward. As a repudiation of claim on the ground that the vehicle was carrying passengers for hire and reward and also by carrying more than 8 passengers in the vehicle cannot be considered as a valid ground for rejection of the claim. Inquest report in Ext.X1 case diary shows in its Para XVI deceased Ramsad and 9 others traveling in the vehicle. The brief facts in the final report Para 16 states that Ramsad expired in the accident and witnesses 2,3,4,5 were sustained grievous injury and witness 6, 7, 8 and 9 were sustained simple injuries. Witness 1 to 10 in the witness list of case sheet is mentioned above. The injured in the hospital record and in the police record shows some differences as explained above. Witness No.8 and 9 who sustained injury did not produce wound certificate percontra the name of Sarath and Shiju whose certificates were produced had been excluded from the witness list. Opposite party has mentioned nothing about Sarath and shiju. Thus opposite party was not able to succeed in proving the correct number of passengers in the vehicle at the time of accident. It is also necessary to consider with the documents available on record had not specifically states the correct number of passengers allowable to travel in the vehicle. If such clause is not clearly mentioned in the terms and conditions of policy, opposite party cannot escape from the liability especially when those aspect has had any role with the alleged incident. Complainant alleged that he had spent huge amount. He alleges that opposite party is bound to settle the claim for `3,21,230. But complainant produced no document to prove that contentions. There is no document on the side of the complainant to show what is the actual amount he has spent for the repair. His demand for claim amount for `2, 21,230 has not neither been supported by documents nor by oral evidence. Complainant has not even produced the workshop bill to prove how much amount he has actually spent for repair. Thus it is necessary to look into available evidence to find a way to assess the damage. It can be seen that opposite party had deputed a licensed surveyor and loss assessor to conduct survey on the damage of the vehicle. His report assessing the damage shows that the net liability of the opposite party is estimated to `150000. The final survey report submitted by the surveyor deputed by the insurance company marked as Ext.B8. The surveyor Mr.Jose N Mathew was examined as DW2. He has given evidence to the effect that he has assessed the damaged vehicle involved in the said accident on Salvage loss basis. He has stated in his report, he has enquired with the local salvage buyers and it is learnt that the maximum wreck value that could be expected for the vehicle is around `70000 only. The insurer’s liability on the salvage loss basis analyzed by the surveyor is as follows:erein no fertifica IDV of the vehicle `221230 Less expected wreck value `70000 `151230 Less policy excess ` 500 Net liability `150730 The report contains the opinion of the surveyor says that the offer may be accepted as fair and reasonable as it reduces the insurer’s liability in addition to the risk of handling and disposing the wreck. The remarks column No.3 shows that the consent for Net of Salvage loss settlement obtained from the insured in `100 stamp paper. In the absent of cogent and reliable evidence on the part of complainant to establish the correct value of the vehicle there is no other way except depending upon the report of the surveyor. In the light of the above discussion we hold that the repudiation of the claim by the opposite party is not justifiable and the opposite party is liable to settle the claim. We further hold that the complainant is entitled to get the policy amount based on the recommendation of surveyor’s report. Thus we are of the opinion that complainant is entitled for an amount of `1, 50,730. The complainant is also entitled for `1000 as cost of these proceedings. Thus issues 1 to 3 are answered in favour of the complainant. In the result, the complaint is allowed directing the opposite party to settle the claim and to pay an amount of `1,50,730 (Rupees One Lakhs Fifty Thousand Seven Hundred and Thirty only) as claim amount and an amount of `1000 (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order against opposite party as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1 & A2. Copy of the lawyer notice dt.2.11.07 and 1.12.07 sent to OP Exhibits for the opposite parties: B1. Copy of certificate cum policy schedule issued to complainant B2. Copy of RC vehicle NO.KL.13.R.1037 B3. Copy of the driving license of complainant B4 & 5.Affidavits B6. Copy of motor claim form submitted by complainant B7. Job estimate B8. Survey report submitted by Jose N Mathew B9. Investigation report dt.16.8.07submitted by Varghese P.J. B10 & 11.Copy of accident cum wound certificate issued from west fort Hospital, Thrissur & Mary Immaculate Mission Hospital, Engandiyur B12. Copy of postmortem certificate dt.17.4.07 B13. Copy of charge sheet B14. Copy of inspection report of motor Vehicle involved in an accident B15. Copy of case diary, Fir No.159 of Vatanapally Police station. B16. Copy of the kachit written by Noushad submitted before Chavakkad Judicial 1st class Magistrate B17. Copy of the repudiation letter sent to complainant Exhibits for the court X1. Case Diary No.159/07 of Vatanapally police Witness examined for the complainant PW1. Complainant PW2. K.Noushad Witness examined for the opposite arty DW1. T.A.Sankarankutty DW2. Jose N Mathew /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
