DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad 678001, Kerala

Dated this the 25^th day of February, 2010

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.153/2006

K.H.Seshadri,

S/o.Hariharan,

Harisree,

Robinson Road,

Palakkad. - Complainant

(By Adv.C.Mohanram & M.P.Ravi)

Vs

The Divisional Manager,

Oriental Insurance Company Ltd.,

Shoba T.S.M.Complex,

Opp. Railway Station,

R.S.Road,

Palakkad. - Opposite party

(By Adv.P.Ramachandran)

O R D E R

By Smt.Seena.H, President

Complainant is a registered owner of the vehicle bearing No.KL-9 K3726 Mini tempo (goods vehicle) and the said vehicle insured with the opposite party vide Policy No.13487/2004 for the period from 24.03.2004 to 23.03.05. As per the policy the vehicle is covered for own damages also. The said vehicle met with an accident on 06.03.05 near Salem in Tamil Nadu. In the accident extensive damages were caused to the vehicle. Complainant repaired the vehicle at M/s.Bhava Motor Works, Nurani, Palakkad and he incurred a sum of Rs.46,900/- being the labour charges and Rs.54,760/- being the price of spare parts. Opposite party deputed a Surveyor to assess the damages and who inturn submitted report. The complainant preferred own damage claim with the opposite party. But opposite party failed to settle the claim. Hence the complainant sent a lawyer notice dt.28.08.06 to opposite party calling upon to settle the claim. But the opposite party

neither replied nor settled the claim. Complainant alleges that the above acts of opposite party amounts to deficiency in service on their part. Hence he prays for an order directing opposite party to pay Rs.1,01,660/- being the claim amount with 12% interest from the date of claim till realisation and Rs.10,000/- being the compensation for mental agony.

Opposite party filed version contending the following. Opposite party contented that the complaint is not maintainable in law or on facts and the complainant is not entitled to get the reliefs claimed in the complaint. Opposite party disputed the alleged accident as well as the the damages caused to the vehicle. According to opposite party the replacements of parts were not for the actual damages caused to the vehicle. The opposite party does not admit the submission of complainant that they deputed a surveyor to assess the damages of the vehicle and hence denied. The complainant does not reveal the details of damages. The claim of the complainant is not genuine or bonafide. Complainant has not produced any documents to prove the alleged accident and damages caused to his vehicle. The complainant has not furnished the particulars of the driver involved in the alleged accident and his license. The driver of the vehicle has no valid license. Complainant has not produced the original policy and the registration certificate of the vehicle to prove the ownership of the vehicle and its insurance coverage. There is no deficiency in service on the part of this opposite party and they are not liable to pay the damages claimed. Opposite party prays to accept the contention and dismiss the complaint.

Evidence adduced consists of the Affidavit of both parties and Exts.A1 to A6 series marked on the side of complainant. No documents marked on the side of opposite party.

The definite case of the complainant is that opposite party has not settled the own damages claim of the complainant even though all the required documents were handed

over to the opposite party. Opposite party on the other hand has denied the accident itself. Further contented that the driver does not hold valid and effective license to drive the vehicle.

Heard both parties and have gone through the entire evidence on record. It is evident from Ext.A1 that the period of the policy is from 24/03/2004 to 23/03/2005. Ext.A5 series which is the Motor Accident Claim petition together with the summons issued by the MACT reveals the fact that accident took place on 06/03/2005. So as against the contention of the opposite party it is proved by the complainant that the accident took place on 06/03/2005 near Salem. The main contention raised by the opposite party is that the driver does not hold valid driving license and hence there is a violation of the policy conditions. Opposite party has filed an interim application for production of driving license of the driver. The application was allowed. Complainant has not produced the same nor filed any affidavit stating the reasons for non-production. Moreover in Ext.A6 (series) vehicle inspection records it is specifically stated that the original/duplicate driving license of the driver not produced. Definitely onus of proof regarding the violation of the policy condition is upon the insurer. Here we can see that opposite party has taken steps for the production of driving license from the complainant, but the complainant has not produced the same nor any affidavit stating reason of non-production filed even though counsel for the complainant in the argument notes has stated that since the driver has already left the employment, he is not in a position to produce the same.

In view of the above stated facts and circumstances of the case, we are of the view the complainant has miserably failed to prove a case in his favour. Hence complaint dismissed.

Pronounced in the open court on this the 25^th day of February, 2010

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Appendix

Witnesses examined on the side of complainant

Nil

Witnesses examined on the side of opposite party

Nil

Exhibits marked on the side of complainant

Ext.A1 – Photo copy of insurance policy

Ext.A2 – Photo copy of lawyer notice dt.28.08.06 sent by complainant to opposite party

Ext.A3 (Series) – Bills (16 Nos)

Ext.A4 (Series) – Copies of FIR

Ext.A5 (Series) - Copy of notice from MACT, Palakkad along with petition

Ext.A6 (Series) – Vehicle inspection reports

Exhibits marked on the side of opposite party

Nil

Costs (Not allowed)