SRI.K. VIJAYAKUMARAN, PRESIDENT.
This is a complaint seeking compensation of relief Rs.37,639/- with interest and costs.
The averments in the complaint can be briefly summarized as follows:
The complainant is the registered owner of Mahendra Pick Up Van bearing Reg.No.KL2 Q 4309. On 19.9.2004 at about 10 p.m. while this vehicle was being driven by one to Salim along Vettikavala Chackuvarakal Public road from east west and when the same reached west of Thazhathu Junction in an attempt to give side to the vehicle coming in the opposite direction it capsized sustaining various damages. The pick van costs about Rs.4,00,000/- Due to the incident the pick van sustained various damages. The complainant reported the incident to Kunnikode Police Station who made a GD entry. Thereafter the vehicle was shifted to the authorized workshop of the company at M/s. T.V. Sundar Iyngar Ltd. at Chavara. The vehicle was having a valid insurance at the time of accident. The opp.party when the incident was reported issued a claim form which was presented by the complaint before the opp.parties on 20.9.2004. The TVS has prepared an estimate. The above vehicle was insured with the opp.party as per policy No.441400/MV/2005/5663. M/s. T.V. Sundran Iyngar Sons Ltd. prepared an estimate of Rs.19639/-being the repairing charge of the vehicle. As per the direction of opp.parties the work has been completed and the complainant applied to the opp.party to settle the claim . But the opp.parties did not settle the claim. Hence the complaint
Opp.party filed a joint version contending, interalia ,that the complaint is not maintainable either in law or on facts. The complainant has approached this Forum without affording a reasonable time to the opp.party to settle the claim. The definition complaint, complainant consumer dispute service as defined in section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint. The complainant has no right to raise a grievance in respect of any deficiency in service or inadequacy or the manner of performance which has to be undertaken to be performed by this opp.party in pursuance of the contract of insurance with this opp.party. Hence the complainant has no cause of action under section 2[1] [g] of the Consumer Protection Act. It is admitted that the opp.party had issued a comprehensive insurance policy to the complaint in respect of his vehicle Reg. No.KL-2Q/4309 for a period 31.7.2004 to 30.7.2005. It is a commercial vehicle. The complainant reported the claim before the opp.party on 20.9.2004 stating that his vehicle met with an accident on 19.9.2004 at Chakkuvarakkal, Thazham Junction in the written claim intimation letter submitted by the complainant has stated that one Mr. Arun was driving the insured vehicle at the time of the accident. On receipt of the claim intimation the opp.party deputed one Mr. Manoj.V an insurance surveyor and loss assessor. As per the investigation conducted by the above surveyor it was understood that the vehicle at the time of the accident was driven by One Abdul Manaf and not by the Arun. The complainant retracted from his earlier version regarding the name of the driver and put forward a new version stating that one Mr. Salim was driving the vehicle at the time of the accident contrary to the earlier version given in the claim form. The complainant in support of the same had produced a GD entry obtained from Kunnikode Police Station on 21.9.2004. The complainant and Sri. Abdul Manaf the actual driver were present at the time of the spot survey conducted by the surveyor Mr. Manoj. Since the surveyor got reliable information that the actual driver at the time of accident has no valid driving license, the complainant deliberately implicated a duly licensed driver instead of the actual driver in the GD entry prepared by the police . The complainant with an ultimate aim to fabricate documents by substituting a duly licensed driver instead of the real driver had managed to get a false GD entry on 21.9.2004 that is after the spot survey conducted by the surveyor. It is very specifically mentioned in the GD entry itself that the complainant requested the police for the GD entry for the sole purpose of producing the same before the insurance company for availing own damage claim from the insurer. The GD entry was prepared by the policy without conducting any enquiry but it was prepared solely trusting the statement alone given by the complainant. The complainant gave the name of Salim who had a proper license to drive the insured vehicle by substituting a licensed driver instead of the actual driver at the time of preparing the GD entry. The opp.party made a complaint with the higher authorities . Tt was informed by the higher authorities of the police that the drivers name mentioned in the GD entry is only on the basis of the statement given by the complainant.. The name of the driver Salim is shown in the GD entry by manipulation . At the time of spot survey conducted by Manoj V the actual driver Abdul Manaf was present at the spot of the incident along with the complainant . He has given a photocopy of his driving license to the surveyor . The opp.party again deputed the very same surveyor for a detailed enquiry and local residents close to the place of accident have told him that the vehicle at the time was driven by Mr. Abdul Manaf . The surveyor has filed report on 30.12.2004 Abdul Manaf was the actual driver of the insured vehicle at the time of accident. The said Abdul Manaf was not having an effective and valid license to drive the insured vehicle. The accident was occurred infact due to the negligence on the part of the said driver. The police has not registered crime as nobody was injured . The company deputed another insurance surveyor to verify the the extent of damage vehicle sustained and inspected the vehicle on 22.9.2004 and 25.9.2004 at the repairers workshop M/s. TV Sundram and Sons where the vehicle have been kept for repairs and he assessed the damages at Rs.11,423/- and salvage value to a sum of Rs.150/-. The opp.party on the basis of the survey report ha s issued a letter to the complainant calling upon him for explanation for the inconsistency in the name of the drivers submitted by him and also requiring the production of the original driving license of Abdul Manaf and Arun before this opp.party for verification. But the complainant without producing the above original licenses had produced a photocopy of the driving license of Abdul Manaf alone with his paper badge bearing No.QN/10/2004 which authorize him to drive an Auto rickshaw only. On verification of the above license it is clear that Abdul Manaf is not having a valid and proper license to drive the insured vehicle at the time of accident Since the complainant had committed willful violation of the policy condition in the drivers clause mentioned in the policy the opp.party has no liability to indemnity the loss sustained to the complainant. The accident was occurred due to the improper and inexperienced driving of the insured vehicle by the actual driver Abdul Manaf and the complainant has deliberately suppressed the above real facts from the opp.party for availing the insurance claim. The complainant has given a false declaration in the claim form submitted. The fraudulent statement and concealment of the real facts in the claim form amounts to forfeiture of all the rights of the complainant to a recover claim amount. The complainant has no cause of action against the opp.party and there is no deficiency in service on the part of the opp.party. Hence the opp.party prays to dismiss the complaint.
Points that would arise for consideration are:
1. Whether there is any deficiency in service on the side of the opp.party
2. Relief and costs.
For the complainant PW.1 and 2 are examined. Ext. P1 to P9 are marked
For the opp.party DW.1 to 3 are examined. Ext. D1 to D9 are marked
Points:
The case of the complaint is that the vehicle bearing Reg.No.KL.2 Q 4309 met with an accident on 19.9.2004 at about 10 P.M. near Chakkuvarakkal Thazhathu Jn. and sustained damages and a claim preferred by the complainant was not allowed by the opp.parties despite the fact that the vehicle at the time of accident was being driven by a driver having a valid driving license.. It is admitted that the vehicle is a commercial vehicle and that at the time of accident it had a valid insurance policy. The case of opp.party is that there is violation of policy condition and that the person who was driving the vehicle at the time of occurrence had no valid driving license to drive a commercial vehicle and therefore another person having valid driving license to drive commercial vehicle was substituted.
Ext. D1 is the claim intimation letter given by the complainant
to the opp.party on the next day of accident. In Ext. D1 it is clearly stated that Driver Arun was driving the pick up van at the time of accident PW.1 the complaint had not denied having issued Ext. D1. Ext.P1 is the extract of GD entry of Kunnicode Police Station. In Ext.P1 it is stated that the driver at the time of accident is one Salim . GD entry was made on 21.9.2004 Ext. D8 is a letter issued by the Superintendent of Police, Kollam shows that Ext.P1 was prepared on the basis of the information furnished by PW.1. It is further stated in Ext. D8 that the police could not confirm on investigation as to whether Salim was driving the same or not.
DW.2 the Surveyor who conducted spot survey on the next day of accident has stated that when he went to the spot one Adbdul Manaf was there, who said that he was driving the vehicle at the time of accident. Ext.D2 series shows that Abdul Manaf was present at the place of accident. It is to be noted that PW.2 who is alleged to have been driving the vehicle at the time of accident did not turn up at the time of spot survey which is a strange conducts. Infact PW.2 admitted in cross examination that when the surveyor conducted spot survey he was not present. He has further admitted that he did not accompany PW.1 to given claim form. He has further stated that it was he who has taken the damaged vehicle to Chavara workshop but Ext P6 shown that the damaged vehicle was taken to Chavara by the driver of Matador KL.2A 2930. When survey is conducted normally the driver who has driven the vehicle would be present and pW.2 has no explanation as to why he remained about. The damages of the vehicle stated by PW.2 also does not correspond to the damages sustained to the vehicle.
Ext.P1 which gives the earliest version regarding the name of the driver at the time of accident shows that one Arun was driving the vehicle at the time of accident. According to :PW.1 he happened to state the name of Arun because of the tension at the time of giving Ext.D1. Ext.D1 was given on the next day [20.9.04] of the incident. Had it been given immediately after the accident or on the date of accident some credibility could lhave been given to his statement. It could have been believed if he has stated the name orally to some one Ext.D1 is n the handwriting of PW.1 himself and when a written statement is given on the next day there is no chance of committing such an error.
Another material aspect to be considered is the non production of trip sheet. PW.1 admitted that the vehicle had trip sheet. No believable explanation is forthcoming for the non production of trip sheet. The trip sheet if produced would have proved the name of driver at the time accident. The non production of the same loeads to an adverse inference . The statement Ext.P1 that PW.2 was driving the vehicle at the time of accident cannot be safely believed as the GD entry was recorded on the basis of the statement given by PW.1. Ext. D8 also makes the point clear. On a perusal of the evidence adduced by both sides, we are of the view that the case advanced by the opp.parties that Sri.Salim was not driving the vehicle at the time of accident but he was substituted as the person who was driving the vehicle had no valid driving license to drive commercial vehicle is true. This aspect is fortified by the absence of PW.2 at the time of Survey and giving Ext. D1 As argued by the opp.parties there is suppression of material facts and violation of policy conditions and therefore the repudiation cannot be interfered with
In the result the complaint fails and the same is hereby dismissed. No. costs.
Dated this the 27th Day of February, 2009.
I N D E X
List of witnesses for the complainant
PW.1. – Abdul Majid
PW.2. – Salim
List of documents for the complainant
P1. –GD entry for extract
P2. – Quotations
P3. – Bill from Benz Automobiles dated 20.9.2004
P4. – Bill from TV Sundar Iyengar and Sons
P5. – Bill from TVS dated 11.10.2004
P6. - Expense receipt
P7. – Claim form application to the opp.party
P8. – Cash bill from MRF dated 11.10.2004.
P9. –Insurance policy certificate
List of witnesses for the opp.parties
DW.1. – V. Manoj
DW.2. – Muhammed Asharaf
DW.3. – N. Raju
List of documents for the opp.parties
D1. – Letter sent by M. Abdul Majeed to the Branch Manager Oriental Insurance Co.
D2.. series - – Motor spot survey report and photos
D3. – Investigation report
D4. –Letter sent by Abdul Majid to the Oriental Insu. Co. dt. 20.9.2004
D5. – Motor [Final] survey report [confidential]
D6. - Driving License
D7. – Letter sent by the Oriental Insurance Co. Ltd. to the Dist. Superintendent of Police
D8. - Letter sent by Supdt. of Police to the Divisional Manager Oriental Insurance Co.
D9. – Letter sent by Oriental Insurance Co. Ltd. to the complainant dt. 7.2.05
