This complaint coming up before us for final hearing on                      29-09-11 in the presence of Sri N.V.Swamy, Advocate for complainant and of Sri D.Koteswara Rao, advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                   This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant praying to direct the opposite party to pay a sum of Rs.1,75,767/- (comprising of Rs.30,000/- for mental agony, Rs.10,000/- for legal expenses, Rs.83,267/- towards the expenses incurred for the repairs of the vehicle, Rs.2500/- towards transport charges and Rs.50,000/- towards compensation) and for subsequent interest at 12% p.a. from the date of complaint till realization.

The averments of complaint in brief are as follows:

                Complainant got insured his vehicle Tata Indica Car bearing No.AP26N 8199 met with an accident on 29-06-08 in the limits of Durgi Police Station and a case was also registered under FIR No.78/08 under section 337 and 304A IPC.  In the accident the car got collided with one motor cycle bearing No.AP7R 6866.  Due to the accident, the motor cyclist fell on the car and the mirror before the driver was broken into pieces and car sustained heavy damages.  The motor cycle also sustained damages.  The motor cyclist and pillion rider also sustained severe injuries and pillion rider died later.  As the car sustained heavy damages, it was inspected by Lakshmi Motors, Guntur and estimated the damages to a tune of Rs.1,01,989/-.  Later the car was repaired and bills raised to a tune of Rs.83,267/- by Lakshmi Motors, who are authorized service center in Guntur.  The expenses for brining the vehicle to Guntur are also around Rs.2,500/-.  The total expenses incurred for repairing the car is Rs.85,767/- and the same was informed to opposite party and requested them to compensate for the damages sustained to the vehicle as it was insured with the opposite party and is having a valid policy to that effect.  Later opposite party verified driving license particulars, insurance policy particulars which are valid upto 21-07-08, police reports i.e., FIR and charge sheet and agreed to pay the cost of damages to the complainant.  The complainant submitted all particulars of damages and bills given by Lakshmi Motors and requested opposite party to compensate damages incurred for the repair of car.  But the opposite party has not taken any interest to pay the damages and postponing the same on one pretext or the other.  Due to the attitude of opposite party, complainant suffered a lot mentally and financially and there is deficiency of service on the part of opposite party.  Hence, opposite party is liable to compensate the damages and mental agony.  Hence, the complaint.

Opposite party filed its version, which is in brief as follows:

                Most of the allegations made in complaint are false and untenable at law. Complainant is guilty of suppresio vari and suggestio falsi.  Complainant suppressed the real facts by substituting the real driver Srinivasa Rao by a driver by name Shaik Jani Basha with the connivance of SHO, Durgi Police Station and approached this Forum with a view to have a wrongful gain for himself.  After the accident, the driver of the motor cycle fallen on the front wind screen glass, as a result the glass was broken and he fell on the driver of the car.  As a result, he sustained fracture of left leg and the pillion rider died on the spot.  The inmates of the car ran away from the scene of offence without caring for the injured. Then on intimation given by the passersby, 108 vehicle came to the spot and the defacto complainant Poguluri Pullaiah, son of Lakshmaiah and Indica driver Srinivasa Rao were shifted to Macherla Government Hospital for treatment, where the statement of complainant was recorded in Government Hospital, Macherla by Sub-Inspector of Police, Durgi Police and it was registered as a in crime No.78/08 under sections 337 and 304A IPC.  As per the contents of FIR, the driver of Tata India Car Srinivasa Rao and the defacto complainant Ponguluri Pullaiah was shifted to Government Hospital, Macherla where they were admitted and treated.   According to the earlier version found in the FIR, the driver in the Tata Indica Car in one Srnivasa Rao who sustained injuries in the accident and treated in Government Hospital, Macherla along with defacto complainant.  When such is the case it is surprising to note that one Shaik Jani Basha alias Srinu, son of Baji Sameed were shown as driver of the vehicle and charge sheet was laid against him.  The driver Srinivasa Rao, who drove the car at the time of accident was not having driving license as such he was substituted by Shaik Jani Bhasha by adding alias Srinu, who was having driving license with the connivance of the police.  In the entire investigation nor in the charge sheet no explanation was given as to why Shaik Jani Basha was shown as driver of the vehicle.  It is the duty of complainant to produce the case sheet of Srinivasa Rao, wherein the details would be available and the controversy can be set in but no such effort was made by complainant, would speak volumes.  As per the condition of the policy, the driver who is having a valid driving license suitable to the vehicle is entitled to drive.  Any violation thereto i.e., in case the driver is not having valid and subsisting valid driving license at the time of accident, it will be treated as violation of condition pertaining to the driving license.  In the absence of driver being possessed a valid and subsisting driving license; no liability can be fastened against the insurance company.  Therefore, the burden lies on the complainant to prove that Srinivasa Rao is not the driver who drove the vehicle at the time of accident and that Shaik Jani Basha alias Srinu is the driver of the car at the time of accident. The suppression of case sheet of Srinivasa Rao from Government Hospital, Macherla dt.29-06-08 speaks volumes against the case of complainant.  Therefore there are no merits in the complaint.  On intimation from the complainant, opposite party appointed insurance surveyor, who investigated and submitted his report on 30-07-08.  On perusal of the report of surveyor, the opposite party came to the conclusion that the driver of the car Srinivasa Rao, who was driving the car at the time of accident, was substituted by Shaik Jani Basha, who was having driving license.  Hence, opposite party sought clarification from the complainant on this aspect and requested to produce a copy of case sheet from Government Hospital, Macherla pertaining to Srinivasa Rao.  Thereafter the complainant failed to turnup and submit clarification and failed to produce the case sheet and approached this Forum with this complaint.  Hence, complaint may be dismissed with costs.

                Complainant and opposite party filed their respective affidavits in support of their versions reiterating the same.

                On behalf of complainant Exs.A1 to A9 were marked.  No documents were marked on behalf of opposite party.          

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite party in settling the claim of the complainant?
2. To what relief the complainant is entitled to?

POINTS 1 & 2

                The case of complainant is that his Tata Indica Car, which was insured with opposite party met with an accident on 29-06-08 in Durgi Police Station Limits and a case was registered to that effect, that his car sustained heavy damages, that he got repaired his car in the authorized service center Lakashmi Motors, Guntur, that he incurred total expenses of Rs.85,767/- for repairing the car including the incidental expenses, that he made a claim before the opposite party and submitted all the particulars with bills etc. but the opposite party failed to settle the claim despite of repeated requests.

                The case of opposite party is that at the time of accident as seen from the FIR one Srinivasa Rao was driving the vehicle but in the charge sheet one Shaik Jani Basha alias Srinu was shown as driver of the vehicle by substituting the actual driver since the actual driver Srinivasa Rao was not having a valid driving license and that the said Shaik Jani Basha was having a valid driving license, on that opposite party sought clarification from the complainant and requested the complainant to submit the case sheet of Srinivasa Rao, the actual driver of the vehicle who sustained injuries and treated in the Government Hospital, but complainant failed to submit the copy of case sheet required by the opposite party and approached this Forum and that there is no deficiency of service on the part of opposite party.

                It is not in dispute that an accident took place on 29-06-08 wherein the car of the complainant was involved and sustained damages.  It is also not in dispute that the accident was occurred during the subsistence of the insurance policy of the car with the opposite party.

                The point in dispute is only regarding the driver of the vehicle at the time of accident.  As seen from Ex.A1 FIR one Srinivasa Rao is shown as the driver of the car and he was admitted in the Government Hospital, Macherla for treatment.  As seen from Ex.A2 copy of charge sheet one Shaik Jani Basha alias Srinu is shown as accused. The allegation of opposite party is that as the actual driver of the vehicle at the time of accident viz. Srinivasa Rao is not having valid driving license and as such one Shaik Jani Basha who is having a valid driving license was shown as driver of the vehicle in the charge sheet Ex.A2 with the connivance of the police.  Therefore, the opposite party is not liable to pay any damages or any compensation since the driver of the vehicle at the time of accident was not having a valid driving license.  As seen from Ex.A4 copy of driving license it is in the name of Jani Basha Shaik but no alias name is shown in the driving license as mentioned in the charge sheet Ex.A2 as alias Srinu.  As seen from Ex.A1 FIR, the driver of vehicle sustained injuries and he was admitted in Government Hospital, Macherla for treatment.  The complainant failed to produce the copy of case sheet relating to the driver as required by the opposite party in order to settle the claim.  A perusal of Ex.A1 FIR, Ex.A2 charge sheet and Ex.A4 copy of driving license of Jani Basha Shaik shows that the actual driver of the vehicle Srinivasa Rao as alleged by opposite party is not shown as accused in Ex.A2 and one Shaik Jani Basha was substituted in place of the actual driver Srinivasa Rao since Shaik Jani Basha was having valid driving license. Therefore, it can be safely concluded that the actual driver of the vehicle at the time of accident Srinivasa Rao was not having a valid driving license and as such he was substituted by one Shaik Jani Basha and that therefore the complainant failed to produce the case sheet of the driver who got admission in the Government Hospital, Macherla and treated.  The claim of the complainant was neither settled nor repudiated by the opposite party, for which opposite party pleaded that they have requested the complainant to produce the copy of case sheet of the driver of the vehicle and for want of the same the claim of the complainant was pending.  Therefore, in view of the foregoing discussion, we are of the opinion that there is no deficiency of service on the part of opposite party and that the opposite party is not liable to pay any damages or compensation to the complainant.  Accordingly this issue is answered against the complainant.

                In the result, the complaint is dismissed. In the circumstances of case, each party shall bear their own costs.

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 10^th day of October, 2011.    

       MEMBER                            MEMBER                            PRESIDENT

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:        

For opposite party :   NIL            

                                                                             PRESIDENT