SMT. BANDANA ROY, PRESIDENT,

            The synopsis of the complaint case is that the complainant has a pick up van being Registration No. 29B/0713 and said vehicle is insured with Bazaz Allianz General Insurance Co. Ltd being Policy No. OG-16-2410-1803-00001625, valid from 31.01.2016 to 30.01.2017.  The vehicle was manufactured in the year 2016 and its sitting capacity is 3 including driver. On  21.03.2016 the said vehicle met with an accident at about 1.30 PM near Kamarda bus stoppage on NH 41 at an attempt to save a cow on the road when the vehicle was proceeding from Nandakumar to Mechada side. As a result of the accident the vehicle had been badly damaged. A complaint was lodged at Nandakumar Police station to that effect and PS case No. 3/16 dated 28.03.2016 started.  On the same date the owner lodged a complaint before the Insurance Co. narrating the facts but the Insurance Co. did not appoint any surveyor to assess the loss. Subsequently in the case No. 330/16 filed by the complainant before this Forum, the insurance Co. appointed a surveyor and assessed the loss to the tune of Rs. 2,85,650.18 vide claim No. OC-16-2401-1803-00003411 dated 18.04.2016. Nandakumar; police also appointed a mechanical expert to assess the damage of the vehicle and the expert submitted the report before the Nandakumar PS on 29.03.2016. The complainant claimed before the OP Insurance Co. for Rs. 4,00,000/-towards damage of the vehicle but the Insurance Co. refused to pay  the said amount on the plea that there were seven persons in the cabin of the driver at the time of the accident.

            On the aforesaid grounds the complainant has filed this complaint case before this Ld. Forum for a direction upon the OPs to pay Rs. 4,90,000/- towards compensation , damage and harassment and other reliefs.

            All the Opposite parties appeared and contested the complaint case by filing written versions.

            The OP Nos. 1 to 4 filed a joint written version and denied all the material allegations of the complaint and contended inter alia that they issued the policy in question for the pick -up van of the complainant meant for carrying goods, but at the time of the accident the said vehicle was carrying unauthorized passengers in the insured vehicle which is in gross violation of the MV Act as well as the terms and conditions of the insurance policy. On the said grounds the Insurance Co. did not sanction any claimed amount in favour of the complainant.

            The OP no. 5 Cholamandalam Investment and Finance Co. Ltd. filed separate written version and contended that the complainant got financial assistance from their Co. for purchasing the vehicle in question.  The relation between the complainant and this OP is a debtor and creditor and this Ld. Forum does not and cannot have any jurisdiction to try this proceeding.  Also the complainant has not sought for any relief against this OP.

            On the grounds stated above, this OP prays for dismissal of the complaint.

            On the pleadings of the parties as above, the following issues need be considered are (1) whether the case is maintainable and (2) whether the complainant is entitled to get the reliefs as prayed for.

DECISION WITH REASONS.

Both the points are taken up together for discussion for the sake of convenience and brevity.

Perused the complaint, the written version of the OPs,  the affidavit in- chief of the complainant and questionnaires by the OPs and  reply of the complainant. Perused the documents filed by the parties. Heard the argument as advanced by the Ld. Advocate for all sides. Considered.

On scrutinizing the materials on record it appears that previously this complaint was filed before this ld. Forum being CC No. 330/16 and the same was returned to the filing Lawyer  for presentation of the same before the proper forum vide Order dated 28.06.2017 of this Ld. Forum.  Subsequently the complainant has filed this present case again after making the OP no.1  a party in this case and the complainant has stated that due to mistake  they could not mention the address of the OP no.1 which is under jurisdiction of this Forum.

The complainant has stated that his vehicle is insured with Bazaz Allianz General Insurance Co. Ltd being Policy No. OG-16-2410-1803-00001625, valid from 31.01.2016 to 30.01.2017.  The vehicle was manufactured in the year 2016 and its sitting capacity is 3 including driver. On 21.03.2016 the said vehicle met with an accident at about 1.30 PM near Kamarda bus stoppage on NH 41 at an attempt to save a cow on the road when the vehicle was proceeding from Nandakumar to Mechada side. As a result of the accident the vehicle had been badly damaged. A complaint was lodged at Nandakumar Police station to that effect and PS case No. 3/16 dated 28.03.2016 started. He also placed claim before the OP nos. 1 to 4, Bajaj Allianz General Insurance Co. for Rs. 4,00,000/- for damage of the said vehicle insured with the Co. But the Insurance Co. has refused to pay the same on the ground that the vehicle had been carrying seven persons inside the cabin at the time of the accident. The vehicle was insured for only carrying goods, so, there is gross violation of the terms and conditions of the policy of insurance.

According to the ld advocate for the complainant there was no capacity in the cabin to accommodate seven persons as alleged by the insurance Co.  The OP no. 1 the financer of the vehicle demanded Rs. 32,146/- on 17.05.2016 but the complainant could not pay the same because the vehicle was sitting idle.

The complainant files affidavit in-chief. The Ops 1 to 5 cross-examined the complainant by putting questions. The complainant reiterated the fact of the case in his affidavit in- chief. The complainant also stated that on the date of accident he made the claim but the Insurance Co. did not appoint any surveyor  for ascertaining the loss of the vehicle and subsequently in case No 330/16  the Insurance Co. appointed surveyor for assessing the loss  of the vehicle. Surveyor ascertained the loss to the tune of Rs.2,85,650.08 Ps. Vide claim No. claim No. OC-16-2401-1803-00003411 dated 18.04.2016. Nandakumar police also appointed a mechanical expert to assess the damage of the vehicle and the expert submitted the report before the Nandakumar PS on 29.03.2016.  Then the complainant lodged claim before the Bazaz Allianz for Rs. 4,00,000/- as the cost of damage.

The OP nos. 1 to 4 and OP no. 5 cross-examined the complainant by way of separate questionnaires. Seen the entire questionnaires and answers thereof which has  nothing new but replica of the complaint case  as well as from the cross-examination nothing inconsistency found which can create an adverse presumption against the case of the complaint.

Much argument has been placed by the Ld. Advocate for the OP No. 1 to 4 alleging that  as the vehicle of the complainant had been carrying seven persons  in the cabin of the driver at the time of the accident, the complainant has violated the terms and conditions of the insurance policy and so he is not entitled to get the claim and the same be rejected. The complainant has denied such allegation and from the materials on record there is no cogent evidence found   from the side of the OPs no. 1 to 4  to prove that the vehicle in question had been carrying seven persons in the cabin of the driver at the  time of the accident which can violate the terms of the policy agreement.  The copy of the FIR and copy of seizure list have been produced by the complainant. From the copy of the seizure list it can only be said that police started   investigation of the case and seized some documents of the vehicle from the possession of the complainant. There is no other document produced by the complainant to show whether there was any accident at the given place and time and whether driver was responsible for the accident. Admittedly the OP no 1 to 4 appointed surveyor for assessing the loss caused due to the accident.

           We have perused the copy of the survey report and it is seen that the surveyor assessed the loss to the tune of Rs. 2,85,650.18 Ps. The complainant has claimed Rs. 4,90,000/-towards  damages, compensation, harassment caused by the OPs.  1 to 4. The complainant has not prayed for any relief against the OP no. 5 who is admittedly the financer of the vehicle in question.

            It may be mentioned  that one recent order of the Hon’ble Supreme Court  in Civil Appeal No 9931-32 of 2017 ( Topsel Toyato and Another Vs. Pasang Tshering Sherpa and others,) wherein we find that the District Forum awarded  compensation  to the complainant made the liability joint and several. Against that order the Insurance Co. went up to the Supreme Court.    In the case, the  Hon’ble State Commission and the National Commission upheld the order of the District Forum but the Hon’ble Supreme Court  modified  the order of the District Forum ,the State Commission and the National Commission  and directed that the entire amount awarded by the District Forum will be the sole liability of the Insurance Company and that the complainant would be entitled to recover the amount from the insurance Co.

            In view of the aforesaid decision and considering the materials on record of this case we are of the view that the complainant is entitled to recover only Rs. 2,85,650.18 Ps, as assessed by the Surveyor appointed by the Insurance Co.  It may be mentioned that the complainant did not challenge the genuineness or validity of the Surveyor’s report.

Considering the materials on record we do not think that the complainant is entitled to get any compensation but he is entitled to get litigation cost of Rs. 5,000/- from the OP No.s 1  to 4 the Insurance Co.

Both the points are answered accordingly.   

           Hence, it is

O R D E R E D

That CC/431 of 2017 be and the same is allowed in part on contest against the OP no 1  to 4 and dismissed on contest against the OP no. 5.

The OP No. 1 to 4 are hereby directed to pay the complainant a sum of Rs. 2,85,650.18 Ps. as assessed by the Surveyor, along with litigation cost of Rs. 5000/-within one month from the date of this order failing which the OP no 1 to 4 will be liable to pay 9% interest per annum on the awarded amount till its full realization.

Let copy of the judgment be supplied to the parties free of cost.