D.O.F:12/11/12
D.O.O:26/5/14
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.304/12
Dated this, the 26th day of May 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.BEENA K.G : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Abdul Gani, S/o Ibrahim Musaliyar,
Pallikkal House, Thalangara.Po, : Complainant
Kasaragod.
(Adv.M.M.Nambiar,Kasaragod)
Manager, National Insurance Co.Ltd,
3rd floor, High Lane Plaza, M.G.Road, : Opposite parties
Kasaragod.
(Adv. C,Damodaran,Kasaragod)
ORDER
SMT.SHIBA.M.SAMUEL : MEMBER
The gist of the complainants case is that he is the R.C owner of Innova car bearing Reg.No.KL-60/A-717 which was insured with opposite party for the declared value of Rs.5,00,000/-. On 1/5/2012 when the vehicle was proceeding towards Kasaragod from Ernakulam and it met with an accident near Aingoth within the jurisdiction of Hosdurg Police station. Due to the impact of the accident, the vehicle was completely damaged. The accident was informed the opposite party over phone and the claim registered. The loss was legally estimated by opposite party’s surveyor from outside and estimated an amount of Rs.5,51,380/- to repair the same. The complainant kept the vehicle at Amana Toyota for months for repairing it after getting the claim. Opposite party initially promised that amount will be paid to the complainant, but later opposite party alleged that the name of the driver at the time of accident was seen changed from official records and FIR. The complainant produced certificate from Village Officer by certifying that the driver who drove the vehicle at the time of accident and the name of driver as per FIR is one and the same person. When the Amana showroom insisted the complainant for a rent to keep the vehicle and the complainant herein was constrained to sell the vehicle for scrap value for 3,50,000/- and paid Rs.10000/- as rent to the showroom. Moreover the opposite party compelled the complainant to settle the claim for Rs.1,50,000/-. The complainant caused to send a registered lawyer notice. Eventhough the opposite party received it he never send any reply for the same. Due to the deficiency in service of the opposite party the complainant had to suffer untold miseries and hardship. Hence the complaint.
2. Notice to the opposite party was served and Adv.C.Damodaran filed vakalath for the opposite party and filed version. In the version the opposite party vehemently contended that the FIR with regard to the accident was registered only on 16/5/12 and as per the FIR the name of the driver is shown as Shahid. But when the charge sheet was filed in Crime No.425/12, the name of the driver was shown as Ahamed Sajnas. According to Police, the driver of the car sustained injury. The main contention of the opposite party was that on the date of issuance of driving licence, the driver was a minor who was not eligible to get a driving license. The complainant had violated a material condition of the policy, that is the driver was not holding valid license and the provisions of the M.V. Act as such opposite party repudiated the claim legally and there is no deficiency in service on the part of the opposite party. The opposite party further contended that there was no advance promise at all. The opposite party never compelled the complainant to settle the claim for Rs.1,50,000/-.
3. The complainant filed proof affidavit and was examined as PW1, the RTO Kasaragod was examined as PW2 and Mohanan V.V A.S.I Hosdurg Police station who was the Investigating officer of Crime No.425/12 examined as PW3 in this case and Exts.A1 to A12 were also marked. The complainant was cross examined by the counsel for the opposite party. Opposite party was examined as DW1 and Exts. B1 to B18 were marked. Both sides heard and the documents were carefully perused.
4. The points for consideration are:
1. Whether there is any valid and effective driving license for the diver at the time of accident?
2. Whether there is any deficiency in service by repudiating the claim of the complainant?
3. What order as to reliefs and costs?
5. Point.No.1: While considering this point it is absolutely necessary to evaluate the evidence tendered by PW1 to PW3. In the version filed by the opposite party shows that there is a discrepancy with regard to the name of the driver shown in Ext.A3 FIR as well as in Ext.A12 charge sheet in respect of Crime No.425/12 of Hosdurg Police station and according to opposite party Ahamed Sajnas and Shahid are not one and the same person as contended by the complainant. Opposite party raised a very strong defense case that the vehicle was driven by a person who was minor at the time of issuance of Ext.A2 driving license in this case. Since they are relying upon the Exts.B4, B4(a), Ext.B6 & B7 to strengthen their allegation that the name of the drive at the time accident was Mohammed Shahid who was born on 17/1/1989 is right, there is no chance of issuance of Ext.A2 driving license which was issued on 8/8/2006. But it is to be noted that the opposite party himself produced Ext.B3 that is the certificate issued by the Village Officer Kalanad Village by certifying that Muhammed Shahid is also known as Ahmed Sajnas and they are one and the same person. We perused the exhibits carefully and found that there is nothing to disbelieve the Ext.B3 which is the document of opposite party himself and Ext.A2 Driving license which stands in the name of Ahamed Sajnas@Shahid. In order to prove the authenticity of Ext.A2, PW1 has examined a very crucial witness, that is the RTO Kasaragod as PW2. He has categorically stated before the Forum that he had issued Ext.A2 after verifying that the holder of driving license has already attained age of majority. Moreover Ext.A2 is still valid till 7/8/2026 and effective. It is highly pertinent to note that the opposite party has no taken any steps to challenge the authenticity of Ext.A2 before appropriate authority. When the opposite party taken up a contention that there is clear case of impersonation of driver at the time of accident, then the question remains among us is that if at all that is true, what prevented the opposite party from initialing any proceedings against the driver till today. Therefore the Forum accept Ext.A2 as an important peace of evidence to form an opinion that there was a valid license at the time of accident.
6. PW3 who is the A.S.I Hosdurg Police Station deposed that while conducting the investigation , he had recorded the 161 statement of one Jalaluddin who is CW4 in Ext.A11 stated that Ahammed Sajnas has the name as Shahid. By considering all the above accepts the first issue is answered accordingly.
7. Point.No.2: When it is proved that the driver of the vehicle has valid license at the time of accident, repudiation as on that basis is unsustainable and it amounts to deficiency in service on the part of opposite party and hence the complainant is entitled for a relief.
The Hon’ble National Commission in the case of Sher Singh Shobta Vs. National Insurance Co.Ltd reported in LAWS(NCD)2013-9-51 held that the insurance Company after having accepted the value of a particular vehicle could not disown that very figure on the pretext or other when they are called upon to pay compensation. This ’ take it or leave it’ attitude was clearly unwarranted not only as being bad in law but ethically indefensible. The insurance company was bound by the value put on the vehicle while taking the insurance policy .
8. Point No.3: While going through the evidence of PW1 he had already received an amount of Rs.3,50,000/- as scrap value for the damaged vehicle and the Insurance Declared Value is for the damaged vehicle bearing No.KL 60 A/717 is for Rs.5,00,000/-. Therefore we are of the opinion that the complainant is entitled for an amount of Rs.1,50,000/- (ie. IDV Rs.500000 – 350000) .
In the result the complaint is allowed and opposite party is directed to pay an amount of Rs.1,50,000/- and Rs.10,000/- being the rent paid to Amana Toyota by the complainant. The opposite party also directed to pay 9% interest for an amount of Rs.1,50,000/- from the date of repudiation of claim ie dtd.29/10/2012 till the date of realization . The opposite party is further directed to pay an amount of Rs.30,000/- as compensation for the deficiency in service along with an amount of Rs.5000/- as cost of this proceedings to the complainant. Time for compliance is limited to 30 days from the date of receipt of copy of this order.
Exts:
A1-copy of insurance policy
A2-Copy of driving licence
A3-copy of FIR
A4-copy of RC
A5-copy of birth certificate
A6-copy of service bill
A7-26/7/12- bill of Rs.10,001/-
A8-31/10/12- lawyer notice
A9-postal acknowledgment
A10-True copy of FIR
A11- copy of memo of evidence
A12-copy of charge sheet
B1-letter issued by OP to the RTO,kasaragod
B2-copy of letter issued by PW1 to OP
B3- certificate issued by V.O.,Kalanad
B4(a)-Birth certificate
B5-Motor claim form
B6-copy of ration card
B7-copy of passport
B8-cash bill issued by A.J.Hospital bill
B9- wound certificate –do-
B10-cash bill -do-
B11-Medical Certificate in Patient –do-
B12& 13-final bill -do-
B14-letter issued by OP to PW1
B15-postal AD
B16-letter issued by OP to PW1
B17- Survey report
B18- Insurance policy
PW1-Abdul Gani .K.I-complainant
PW2- P.T.Eldho-RTO,kasaragod
PW3- Mohanan.V.V-A.S.I of Hosdurg Police
DW1- E.Damodaran- Sr. Branch Manager of Opposite party
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
/Forwarded by Order/
SENIOR SUPERINTENDENT
