KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 550/10

JUDGMENT DATED: 28.9.11

PRESENT:

SHRI. M.V. VISWANATHAN                    : JUDICIAL  MEMBER

SHRI. M.K. ABDULLA SONA                 :  MEMBER

Bhuvanendran Nair

Gokulam, Mundukottackal P.O.,               : APPELLANT

Vettipuram, Pathanamthitta.

( By Adv. Sri. Narayan R.)

Vs

1.      Branch Manager

National Insurance Co. Ltd.,

Pathanamthitta Branch.

                                                                   : RESPONDENTS

2.      Divisional Manager,

          National Insurance Co.,

          Nelson Tower, Kayamkulam.

(By Adv. Sri. S. Rajeev)

JUDGMENT

SHRI.M.K.ABDULLA SONA: MEMBER

This appeal prefers from the order passed by the CDRF, Pathanamthitta in CC No. 67/08 order dated : 15.6.10.

2.      The complainant is the appellant who prefers under the dismissal order of the complaint by the Forum below, respondents are the opposite parties.

3.      The complainant insured his car with the opposite parties during the period between 20.3.08 to 19.3.09. On 25.3.08, the car met with an accident at Omalloor at around 5 am, and the same sustained huge damages. The matter was informed to the opposite party and to the Pathanamthitta police. The car was taken to Focuz Motors, Kozhencherry and the insurance surveyor came and assessed the damages. The GD entry and all other relevant records were handed over to the surveyor and he gave instruction to workshop authorities to repair the vehicle. After two days the opposite party intimated the workshop to stop the entire repair work for reasons unknown to the complainant. The complainant issued a letter on 26.4.08 asking the opposite party to fulfill their legal obligations under the policy. There was no reply, do to this reasons the vehicle was kept idle for two months, the complainant was constrained to start repair of the vehicle in his personal capacity. He spend Rs.1,38,309.62/- for the repair. The opposite party bound to pay the expenses incurred by the complainant for the repairing works of the car as per the policy, the non payment of the same amounts to the complainant. Hence the complaint.

4.      The opposite parties contended that the complaint is not maintainable. They admitted the policy it is valid between 20.3.08 and 19.309. They contended that the accident was occurred on 18.3.08 near Venjarammoodu not at Omalloor. The complainant has taken a policy by deceitful means by misrepresenting facts before the insurance company. After getting the policy, he filed a claim stating that the accident happened on 25.3.08 at different place. The complainant also managed to obtain a GD entry by misrepresentation. The Opposite parties have evidence to show that the vehicle was entrusted with the repairs in the afternoon of 18.3.08 and hence the claim of the complainant is not genuine and the repudiation is legal. Hence the opposite parties prayed for dismissal of the complaint.

5.      The evidence consists of Exts. A1 to A8 marked on the side of the complainant and Exts. B1 to B3 on the side of the opposite parties. The complainant was examined as PW1; the opposite parties were examined as DW1 and DW2.

6.      The Forum below heard both sides and examined the entire evidence adduced by both sides carefully and taken a view that there is a foul play had occurred in the issuance of Ext. A2 policy and Ext. A7 GD entry from the part of the officials concerned. It shows that there was a suspicion about the accident. In this circumstance, the Forum below dismissed the complaint.

7.      This appeal prefers from the above impugned order passed by the Forum below. On this day, this appeal came before the commission for final hearing; both counsels represented on behalf of the appellant and respondents respectively. The Counsel for the appellant vehemently argued on the grounds of appeal memorandum that the Forum below did not appreciate the evidence adduced by the complainant before the Forum below. The Forum below totally discard the evidentional value of GD which written by the competent police officer in the Pathanamthitta police station. In the very same circumstance, the opposite parties didn’t adduce any evidence to disprove the authenticity of the GD. If they are having a case that this GD entry is manipulated both by police officer and the appellant, they can examine the author of the GD before the Forum below. They merely put their contention only in their version. Another contention is that the opposite party issued insurance policy even after the expiry of the earlier policy and they accepted the period of delay. In this circumstance, the opposite party is bound to settle the claim as per the provisions of law and evidence. His main prayer is that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is liable to be set aside by allowing this appeal.

8.      The counsel for the opposite parties strongly argued that the place of the accident is different if the vehicle involved in an accident mentioned in the complaint. The complainant approached to the Forum below with sufficient evidence. He managed to get a GD entry and he produced before the Forum below that to prove that to the vehicle was involved in an accident as he maintained in the complaint. The opposite party argued that the policy issued to the insurer through suppression of material fact which submitted by the complainant before the opposite parties. The counsels submitted that as per the directions of the CDRF, in this case the enquiries going on against officials. He submitted that the order passed by the Forum below is strongly in accordance with the provisions of law and evidence, it is legally sustainable. He prays to dismiss the appeal with cost.

9.      We heard in detail both sides and perused the entire evidence. We are seeing that the complainant approached to the opposite parties and thereafter the Forum below for an experimental purpose. He have only evidenced to prove his case ie. Ext. A7 GD entry. The GD entry unless with proved by the author it cannot be taken as an evidence. It can be use as an evidence only either to corroborate or to contradict any other evidence or evidences. The complainant didn’t take any steps to examine the author of the GD from the Pathanamthitta police station. At the very same time, the opposite parties issued the policy after accepted premium from the complainant. There is no law or principles prohibit the Insurance authorities for the inspection of the vehicle before issue of a fresh policy. The same principle is applicable for the renewal of the policy. After issue a policy by an insurance company they can’t raise such contentions, is not legally sustainable. But in the case, the complainant approached to the Forum with the complaint without sufficient evidence that to prove the accident of a vehicle; thereafter occurred huge damages to the vehicle. Due to the accident this losses are very serious to any owner of any vehicle. What was his harm to examine any eye witnesses to prove the accident? In the absence of the evidence we are not seeing any reasons to interfere to the impugned order passed by the Forum below. In the circumstance, we have uphold the order passed by the Forum below, it is legally sustainable.

In the result, the appeal is dismissed and confirmed the order passed by the Forum below. Both parties are direct to suffer their own respective costs. The points of the appeal discussed one by one and disposed of accordingly.

M.K.ABDULLA SONA: MEMBER

M.V. VISWANATHAN  : JUDICIAL MEMBER

DA