DATE OF FILING : 13.11.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 28th day of April, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.215/2009

Between

Complainant : Kanaka Vijay,

26, Room Lanes,

Mattuppatty P.O,

Munnar,

Idukki District.

(By Adv: Shiji Joseph)

And

Opposite Parties : The Manager,

Reliance General Insurance Company Limited,

Elizabath Alexander Mam Building,

4^th Floor, Shanmugham Road,

Marine Drive, Cochin.

(By Adv: K.Pradeepkumar)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

The complainant is the registered owner of a Tata Indigo car bearing Registration No.KL 06 D 6575. The vehicle was duly insured with the opposite party vide policy No.2201782338004593 from 20.01.2009 to 20.01.2010. On 8.02.2009, the complainant along with her family went to Pooppara to met one of the relatives of the complainant. The vehicle was parked by the side of the road. When the complainant came back, she found that the vehicle was hit by some unknown vehicle and due to the accident, the front side of the vehicle and the bumper was damaged. The matter was reported to the opposite party and the husband of the complainant entrusted the vehicle at Balasanka Cars, Theni for repair. The opposite party inspected the vehicle and sanctioned for repairing the same. The complainant spent Rs.1,28,461/- as expenses for the repair. After the repair, the complainant claimed for the amount. On 8.04.2009 the opposite party issued a repudiation letter stating that the damage was not during the parking of the vehicle and there is no fitness certificate for the vehicle. The vehicle was parked by the side of the Pooppara – Theni road and since the vehicle was parking, the question of fitness certificate is not relevant at all. On 16.04.2009 the complainant sent a reply letter stating all these facts. But the opposite party never disburse the policy amount to the complainant and hence the petition is filed.
 

2. The opposite party denied the accident as alleged in the complaint. Averment of the complainant that while parked on the side of the road some unknown vehicle hit on the insured car is not correct. Immediately on receipt of the claim, the opposite party deputed an independent surveyor to assess the loss and an investigator to enquire into the genuineness of the claim. The accident occurred while the vehicle was used as taxi, violating policy and permit conditions and provisions of law. The vehicle had no valid fitness certificate. The vehicle was not in a road worthy conditions. So the opposite party is not liable to indemnify the insured for any damages caused to the vehicle. Averment in the complaint that complainant spent Rs.1,28,461/- for repairing the car is not correct. Actual loss caused to the vehicle is Rs.93,177/- only.
 

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to?
 

4. No oral evidence adduced by the complainant and Exts.P1 to P4 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R4 marked on the side of the opposite party.
 

5. The POINT :- The complaint is filed for getting the insurance amount of the vehicle for the damages caused to the vehicle while the vehicle was parked by the side of the road. Ext.P1 is the policy certificate cum policy schedule of the vehicle. Ext.P2(series) is the bills for the repair of the vehicle which amounts to Rs.1,28,461/- from M/s.Balasanka Cars, Theni which is the authorised service station of the Tata Motors. The opposite party was examined as DW1, who is the Claims Assessor of Reliance General Insurance Company Limited, Kochi. Immediately on receipt of the intimation regarding the accident, the opposite party deputed an experienced surveyor to assess the loss. The Survey Report is marked as Ext.R1. As per the survey report, the actual loss comes to Rs.93,177/-. The copy of the policy is produced and marked as Ext.R2. While processing the claim, it was found that the vehicle which was insured as taxi was used without fitness certificate violating policy and permit conditions. Hence the opposite party deputed an independent investigating agency, Vasu Associates, 12, VGN Street, Dasarathapuram, Saligramam, Chennai to investigate into the genuineness of the claim. The investigation report is marked as Ext.R3. The version of the accident given by the complainant is not correct. The fitness certificate of the vehicle was expired

on 2.11.2008 and the copy of the same is marked as Ext.R4. The date of the accident was on 8.02.2009. So even after the expiry of the fitness certificate, the vehicle was regularly used as taxi violating the policy conditions and provisions of law. As per the cross examination of the learned counsel for the complainant, DW1 deposed that the fitness certificate is only for running the vehicle through the road. The cause of the accident was given by the investigator. DW1 never investigated the matter and never contacted with the investigator.
 

After the receipt of the information of the accident, the opposite party deputed an independent surveyor. In the Ext.R1 survey report, it is admitted that the vehicle was met with an accident and Rs.93,177/- is calculated as the net amount payable for the repair of the vehicle. The photographs of the disputed vehicle also produced. The front portion of the vehicle has been damaged as per Ext.R3 investigation report produced by the opposite party. The vehicle was registered as a commercial vehicle and its fitness certificate expired on 30.09.2009. On investigation the circumstances leading to the accident explained by the complainant was that the vehicle was parked in the slope on the national highway, facing the slope on that night of 7.02.2009 and on the next morning, that is on 8.02.2009, the vehicle was found with damages. Some unknown vehicle which was getting down from the slope had hit her vehicle resulting in the damages. She could not answer whether the vehicle was parked in gear or with hand brake. The investigator visited the spot and it was observed that the vehicle was said to have been parked in a slope which has a gradient of about 20 to 30 degrees. It was alleged that the vehicle was parked on the left side of the road. If the vehicle had been parked at the time of the accident and any impact of this magnitude would have disengaged the hand brake or the gear lever as the case may be, would have propelled the car well down in the slope and the car would have slipped of the road it would have fallen into the gorge and if not had hit a culvert or hill side resulting in damages in the back. Since this is not the case, the theory of parked vehicle being hit does not hold valid. There exists no possibility of such damage to a parked vehicle that too on a slope. The accident had happened on a national highway and not at the residence of the insured, indicating that the vehicle was being used in public road without fitness certificate. So the contention of the opposite party is that the vehicle met with an accident collusion with another vehicle while the vehicle was running in a public road. Eventhough the averment of the complainant is that the vehicle was parked on the national highway some unknown vehicle hit her vehicle and caused damages. The fitness certificate of the vehicle was expired and vehicle was not parked at the residence of the complainant. So the claim has been repudiated. The opposite party admitted the policy of the vehicle. In Ext.R4, copy of the fitness certificate, it is duly mentioned that the description of the vehicle is MOTOR CAB(TAXI). So the vehicle was insured by the opposite party knowing that the vehicle is used as a taxi. The opposite party denied the cause of the accident delivered by the complainant.
 

As per the complainant, the vehicle was parked at the road side and an unknown vehicle hit on the complainant's vehicle in the night and so the damages caused to the vehicle. But the opposite party contended that the vehicle was plying in the road and it was hit with another vehicle and caused damages. The complainant is not entitled to drive the vehicle through the public road because the validity of the fitness certificate of the vehicle is expired, which is against the provisions of the insurance policy. But we think that the vehicle caused heavy damages to the front portion, it is repaired in the workshop and the cost of the repair is Rs.1,28,461/- as per the complainant. But it is Rs.93,177/- as per the opposite party. If the vehicle was driven through the public road with passengers and the accident was caused while driving the vehicle, the passengers of the vehicle would also have sustained injuries. If there is no passenger the driver may have sustained injuries. The photographs produced in Ext.R1 shows that the vehicle is having heavy damages in the front side. The investigator of the opposite party never produced any evidence to show that the vehicle met with an accident while running through the public road, no police report has been produced by the investigator to show that such an accident was caused while driving the vehicle, no witnesses were produced by the opposite party to substantiate his version that the vehicle hit with another vehicle while running through the road. So there is no evidence to show that the vehicle hit with another vehicle and the accident was caused. So there is no reason to disbelieve the version of the complainant that the vehicle met with an accident while parking in the road. As per the complainant the vehicle was using for her private purpose, not as taxi. The amount claimed by the complainant is Rs.1,28,461/-. But the surveyor of the opposite party admitted that the repair of the vehicle costs only Rs.93,177/-. So it is a gross deficiency in the part of the opposite party to repudiate the claim of the complainant.
 

Hence the petition allowed. The opposite party is directed to pay Rs.93,177/- to the complainant as per Ext.R1 report with 9% interest from the date of this petition and Rs.2,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 28^th day of April, 2010

Sd/-

SRI. LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT. SHEELA JACOB(MEMBER)

Sd/-

SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

Nil

On the side of Opposite Party :

Dw1 - S.Harikumar

Exhibits:

On the side of Complainant:

Ext.P1 - Policy Certificate cum Policy Schedule

Ext.P2(series) - Bills for the repair of the vehicle issued by M/s.Balasanka Cars, Theni

Ext.P3 - Repudiation letter dated 8.04.2009 issued by the opposite party

Ext.P4 - Copy of complainant's reply letter dated 16.04.2009 addressed to the opposite party

On the side of Opposite Party :

Ext.R1 - Copy of Survy Report

Ext.R2 - Copy of Policy

Ext.R3 - Investigation Report dated 29.03.2009 prepared by Vasu Associates, Saligramam, Chennai Ext.R4 - Copy of Fitness Certificate