This complaint  having come up for final hearing before us on  09.10.2014  on perusal of the material records  and on hearing the  arguments of  Thiru. K.Suresh Kannan, the counsel  for the complainant and Thiru.B.Ram Anand, the counsel for the opposite party  and having stood  before us for consideration, till this day the Forum  passed the following

By President, Thiru..K.Anbazhagan, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection

Act 1986.               

2) The brief facts of the case of the complainant: -

The complainant is owner of Maruthi Omni Van bearingregistration No. TN.49.AH.9597 and the said vehicle was usedby the complainantfor travels.The complainant’s husband driventhecarfor the family necessity.The complainant’s familyearned Rs.20,000/- per month and spent for the livelihood.On 06.09.2011 the said Maruthi Omni vandriven by the husband of the complainant, returned to Thanjavurfrom Trichy while so near Pudukudi Village the vehicles’s right side tyre was burst and the vehiclewas scatting and setupset on the road side. Dueto thesaid accidentthe said car was completely damaged.In the said Omni Van was duly insured with the opposite party. A claim waslodged with opposite party.But it was rejected on the basis of the said van alteredfromfive seater to eight seaterand policy was taken only for 5 seater Omni van and not for 8 seater purpose. Hencethe insurance company pleaded violation ofpolicy condition andrefused the claim.Hence thecomplainant hasfiled this complaint for the relief loss of earningis Rs.1,00,000/- for compensation towards mental agony Rs.2,00,000/- estimated damage of the vanat Rs.1,75,557/- and costs.

3) The brief written version filed by the opposite partyis as follows:

It is admitted that the complainant’s vehicle bearing number TN49AH9597 was insuredwith the opposite party for the periodbetween 30.04.2011 to29.04.2012 and thatthe complainant’s vehicle was damaged in an accident on 06.09.2011 and that the complainant wanted to avail the benefits of thepolicy issued by this opposite party.The policy was issued for 5 seaters Maruthi Omni van belongs to the complainant.The registrationcertificate provides seating capacityonly for five persons. Subsequently the complainanthad alteredthe Maruthi Van from5 seater to 8 seater van. The complainant has paid premium for 5 seater Maruthi Omni Van but not for8 seater.As per theIndiaMotor Tariff of the Tariff Advisory Committee (IRDA) different premiums are to be paid for 5 seater and 8 seaters.The premium payable for an 8 seater is Rs.16,418/-. The opposite party received only Rs.13,767/- which is the premium payable for a 5seater. After the claimwas lodged by the complainant, the opposite party appointed a surveyor for inspection and report about the damage sustained to the Maruthi Van.The said surveyor hasfiled a detailed report about theconversion of 5 seater of accommodation into 8 seater.Since there had been a material alteration in the vehicle without the knowledge of the opposite party, the opposite party cannot be compelled to honour the terms of thecontract between the parties.The surveyor’sreport and the photographs taken by the surveyor will clearlyreveal that the complainant’s vehicle was converted into a8 seater. When the vehicle was inspected by the opposite party before the Insurance policy was issued, it was found to be a 5 seater as stated in the R.C.book.Hence prayed for dismissal of complaint.

4) The pointsfor determination in this case are:

                        1) Whether  there is  any deficiency in service on the  part of the  opposite     

                             party?

                       2)  Whether there is any breach of policy condition as  claimed by the opposite

                            party?

                       3) To what relief the complainant is entitled to?

                   5)  The complainant has filed his proof affidavit reiterating  the same averments made in the complaint and has filed 7 documents   which are marked as Exhibits A.1 to A7.  The    opposite party  has  filed his proof affidavit  in support  of  his defence and has  filed 6 documents which are marked as Exhibits B.1 to B.6.

                  6) POINTS 1 & 2:  Both  parties  have filed  written arguments.  The  learned counsel appearing  for the complainant  submitted that  the complainant’s Maruthi Van had not been altered as alleged by the opposite party.  At  the time  of  accident  the right front tier of the Maruthi Van  burst and hence the van was dragged and capsized   on the road   and the vehicle  was fully damaged.  The said accident  was reported to the police and issued a certificate under Ex.A.4 about the alleged accident.  On perusal of the Ex.A.4 reveals that  accident was taken place on 06.09.2011 at about 1.30 a.m. when the vehicle was went out of  control and dashed into center median and  car was upset on the road and the vehicle was fully damaged.  Ex.A.3 is  Police complaint receipt  issued by the Senkipatti Police for the alleged accident.  There is no  mention in Ex.A.3 and  Ex.A.4 about injuries sustained by the passenger or  death suffered by any passenger.  The learned counsel further submitted that the opposite party has not  given booklet containing terms and conditions of the policy  but they have issued only certificate of insurance  in one single paper  printed on both side.  On perusal of Ex.A.2 certificate of insurance reveals no such condition mentioned in the policy as claimed by the opposite party for the  breach of  conditions which as  conversion of 5 seater into 8 seater.  The learned counsel further submitted  and there is no conversion of  seat by the complainant and hence prayed for the relief.

                    7) On the other hand  the learned counsel appearing  for the opposite party  would submit that the complainant  has converted the 5 seater capacity into 8 seater without mentioning  about the  modification or conversion of seats in the  Registration certificate and to the   insurance company.  The complainant took  insurance policy only for 5 seater Maruthi Omni van.  The learned counsel  appearing for the opposite party further relied upon the judgement  in the written argument,  a case decided  by the Hon’ble  National Commission in the subject matter of   “ Mrs.Usha Devi /vs/ National Insurance Company Limited” .  I have gone  through  said reported judgement in which tht the Hon’ble National Commission has decided on the different position arising in that case.  The fact mentioned  in the  case law is a Mini bus was met with an accident  which was  carrying 26 persons as  against  authorized seat of 13 persons and also 7 persons death and 19 persons  were injured.   The owner of the vehicle claimed

compensation for the damages sustained to the mini bus.  The Hon’ble National Commission has decided that there is breach of policy condition and hence dismissed the claim.  But  in this case,  the only defence raised by the insurance company is conversion of 5 seater capacity into 8 seater that too based on their own  surveyor report Ex.B.2. 

Under Ex.B.2  the cause of accident was mentioned  as:-

                     “ From the claim form  it is observed that due to bursting of front left side

                       Wheel, the vehicle had gone out of control and capsized. “  and

Opinion is as  follows:

                         “Damage stated in this report are relevant to the  stated cause”       

                     8) Though both parties have filed their proof affidavit  but they have not chosen  to cross examine  by the opposite parties.  Now the claim is for the own damage of the vehicle and the cause of  accident is  the front tier of the vehicle bursted and went out of control on their right capsized   and sustained damaged vehicle.  There is no proof for  passengers were travelled at the time of accident.  The insurance company is liable to pay the compensation  or reimbursement  to the complainant for the own damage sustained to the insured vehicle.  The claim  can be settled on non basis to an extent of 75 Pencentage.  The complainant has claimed  reimbursement of bill at Rs. 1,75,557/- for which they have not filed  any documents to show the expenditure incurred to make good of the vehicles damage.  On the other hand that the opposite party has filed  surveyor report in which the surveyor assessed net loss is at Rs. 1,37,624/- .The copy of terms and conditions of policy have not been given and explained to the complainant and hence opposite party is liable to pay damage towards own damages.

                 9) POINT No.3:  In the  result, the complaint is  allowed in part.   The  opposite party  is  directed   to pay a sum of Rs. 1,37,624/-   with interest at 12 Percentage  for filing of  complaint  till the date of realization and  to  pay a sum of Rs. 25,000/-(Rupees twenty five  thousand only) towards compensation for the mental agony suffered by  him  owing to the deficiency of service on the part of the opposite party, and Rs.5000/- (Rupees five thousand  only)  towards cost of his litigation within  30 days from the date of this order.  

         This order was dictated by me to the Steno-Typist, transcribed by her and corrected and pronounced by me on this  06th   day of  November     2014.

MEMBER                                                                                                    PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the Opposite party :