SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is a complaint for allowing the Insurance claim, compensation and costs.

The averments in the complaint can be briefly summarized as follows:

The complainant purchased on 31.1.2005 a new Maruti 800 CC A/C car from the 2^nd opp.party for own use  with finance from M/s. City Corp Maruti Finance, Chennai.  The car was registered with registration No. KL-2U-3127.  The first opp.party provided  Insurance Coverage for the car. An apprehensive  policy certificate bearing No.G-05-1601-1801-00110241 valid for the period from 31.1.2005 to 30.1.2006.  On 18.12.2005 at about 11 a.m.  while the complainant was driving the car along the road in front the Adventure Park , Kollam its skiddes and hit against  two motor cycles parked their  and the compound wall of the adventure park the incident occurred in an attempt to save a  small child  who suddenly  cut across the road  nobody was injured in the incident.  The complainant immediately reported the matter to the Traffic Police Station as well as the 2^nd opp.party.  The opp.party removed the car  using recovery Van  and took the car to the traffic policy station it was taken to the workshop  of the 2^nd opp.party on 19,.12.2005 for carrying out the repairs.  The 2^nd opp.party assured the complainant that all the repairs will be done on cashless  basis.  The car is covered by valid insurance coverage  by the 1^st opp.party.  The first opp.party  has also informed  the incident to entrust the car to the 2^nd opp.party.   When the car  was taken to the workshop  a report of the  first opp.party   was also presence in the workshop  of the 2^nd opp.party  certain blank claim forms  were bought signed by the complainant for the purpose  of processing  the claim  apart from signing the job order card.  On 28.12.2005 the complainant  visited  the 2^nd opp.party’s service Center  for taking delivery of the car. It was told that the 1^st opp.party has not made payment of the repair charges and therefore  requested  to wait for a few days for getting  release of the vehicle  Thereafter  the complainant  approached the opp.parties 1 and 2 several times.  But the car was not release.  There after the complainant issued a  lawyer notice  on 19.1.2006.  Evenafter the car was not release him.   The complainant is  having  a valid effective driving license and that he has not committed any breach of the conditions  in the policy.  Hence the complaint

The first opp.party filed a version contending interalia, that the complaint is not maintainable either in law or on facts.     The claim lodged by the complainant is not supported by necessary documents for processing the claim.  The complainant had adopted illegal methods to earn unlawful compensation with fabricated records.  The alleged cause for the accident was stated in the claim form as ‘while taking out the vehicle to the road, one bike suddenly came from the opposite direction and in order to save the life of the riders of the bike, the vehicle was deviated and the same dashed on the gate causing damage to either side of the bike.    It was also stated that the complainant was driving the vehicle at the time of accident .  The place of occurrence shown was the Adventure Park. Immediately an investigation and survey were arranged by the opp.party.  It was revealed in the investigation conducted that the  statements in the claim form  are totally false  and the cause of accident was not as alleged.  Accordingly this opp.party had sought . clarification from the complainant.  Instead of cooperating  with the opp.party to settle the claim by providing necessary facts and details, the complainant has adopted illegal methods by threatening this opp.party.   The Adventure Park  is only a few years away  from the Traffic Police Station.  Though  the alleged accident was on 18.12.2005 .  The GD entry was made on 21.12.2005.  It was further revealed that  the investigation that the vehicle  given on hire on rent a car basis and there were more than three persons in the car at the time accident   It was further revealed that the  occupants of the car provided  to settle the claim without informing the police.   GD entry  was made for the  purpose of  raising  the claim  for own damages .  The police did not  registered any crime  or investigate the same.  The news papers  of the next day ie. 19.12.2005  had even reported the names of the persons  in the car.   They were said be Sidhique, Shameer and Nazim of  Randam Kutti.   Suppressing the above facts the complainant had lodged  a false claim  and the claim was repudiated after conducting proper investigation  and survey  and after perusing necessary documents.  The complainant was aware that he was not eligible to get any compensation.  Hence this opp.party prays to dismiss the complaint.

The 2^nd opp.party filed a separate version contending that the complaint is illegal irregular and improper.  The 2^nd opp.party was wrongly impleaded  in the party array in this complaint.   The averments in the complaint the complainant purchased a new Maruti 800 CC A/C. car  from the 2^nd opp.party with finance arrangement from M/s. City Corp Maruti Finance, Chennai on 31.1.2005 and the same was taken up from the 2^nd opp.party on 19.12.2005. Consequent to an accident occurred  and the car sustained damages   The  2^nd opp.party for repairs the said car and the  payments of the same was made by the complainant.   the 2^nd opp.party is entitled to get  the invoice amount for having  having repairing charges.  There is no previty of contract  on the part of the 2^nd opp.party  in respect of the contract  of insurance between the complainant and  the 1^st opp.party. who are governed  by the terms  and conditions in the policy.  The 2^nd opp.party is not bound to wait  till the settlement of the claim by  the first opp.party  in favour of the complainant.  The complainant has not given balance amount about the repairs made by the 2^nd opp.party.  The 2^nd opp.party is not liable to pay any amount to the complainant nor any compensation to the complainant.   The complainant is  not entitled to get any amount to the 2^nd opp.party.   The 2^nd opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.      Reliefs and costs.

3.     For the complainant PW.1 is examined.  Ext. P1 to P10 are marked.

4.     For the opp.party DW.1 and  5 are examined.   Ext. D1 to D4 are marked.

Points:

As a matter of fact the accident is admitted.   There is also no dispute that the car involved in the accident belongs to the complainant and that the car was having a subsisting comprehensive insurance policy at the time of accident.   The dispute is with regard to the person who was driving the car at the time of incident and as to whether he had a valid driving license or not

          The complainant gave evidence as PW.1.  According to him he was driving the car at the time of accident and that his son and two of his friends were also with him in the car at the time of accident.   The accident occurred when he attempted to save a child who suddenly cut across the road.  PW.1 has further stated that the incident was reported to the Traffic Police Station which situates near the place of occurrence on the same day and the police after enquiry made Ext.P5 G.D entry in the traffic police station.

          According to the opp.party the car at the time of accident was driven by one who had no valid driving licence.   According to the 1^st opp.party leading dailies reported the accident on the next day itself in which it was stated that 3 youngsters by name Siddique, Shameer and Nasim were in the car Ext.X3 is the Mathrubhumi dily dated 19.12.2005 and Ext.X4 is the Malayalamanaorama daily dated 19.12.2005 Ext. X3 was proved through DW.3 and Ext. X4 was proved through DW.4  DW.3 and 4 are not the Reporters of the news item.  Both DW.3 and 4 have stated that they have no personal knowledge about the incident or the person who was driving the car at the time of accident.  In X3 is the portion of news item there is absolutely no mention of the driver but stated  cjp\Pj]\[ ,aJG[ rlcjA tr\rjiglnk dlyjhkn\mlujgkr\rfk .  The time of accident as per Ext. X3 [a] is 12.30 p.m.  In Ext. X4 the time of occurrence is 1 p.m.   In ExtX4 also there is absolutely no mention regarding the driver of the car or the passengers.   So from Ext.X3 andX4 and the evidence of DWs. 2 and 3 it cannot be said that the opp.parties have identified the driver of the car at the time of accident.

          DW.2 and 5 are respectively the Head constable and Sub Inspector of Traffic Police Station at the relevant time who conducted investigations.   DW.2 has stated that the complainant has lodged a complaint regarding the accident seeking a GD entry for  claiming damages and on the basis of  the same  they have issued Ext.P5.  DWs 2 and 5 have  stated that at the time of accident the complaint himself was driving the car.   To a pointed question by the learned counsel for the 1^st opp.party DW.5 has stated that from the investigation conducted by DW.2 it was revealed that the complainant was driving the car at the time of accident.  DWs. 2 and 5 further stated that no crime was registered since nobody was injured in the incident and that the damage caused to the Public properly ie. Compound wall and the gate has been rebuilt by the complainant.   DW.2 has stated in cross examination that the name of the driver is not usually written in the GD entry and we find no reason to disbelieve him.

          Exts. D2 is the preliminary survey report obtained by opp.party 1 and Exts. D3 is the investigation report collected by 1^st opp.party through M/s. Santergeens Strangely either the surveyor or the person who prepared Ext. D3 are not examined for reasons best known to the opp.party 1.  In Ext. D3 the names of certain eye witnesses have been stated.  Those eye witnesses were not even cited as witnesses.   The most competent persons to speak about the incident and the driver of the car at the time of accident are those eye witnesses.  The non examination of the Surveyor, the investigator who prepared Ext. D3  and the eye witnesses mentioned in Ext. D3 raises suspicion.  The evidence of PW.1 that he was driving the car at the time of accident is corroborated by the evidence of DW.2 and 5.   As pointed out earlier the evidence of DW.3 and 4 and Ext. X3 and X4 does not lent any support to the contention of opp.party 1 that the complainant was driving the car at the time of incident.   From the available materials we hold that the complainant was driving the car at the time of accident and that the repudiation of the claim is not valid land proper.  Points found accordingly.

In the result the complaint is allowed , directing the opp.party I  to pay the claim amount of Rs.32,625/- with  interest at the rate of 12% per annum from the date of filing of claim petition to the complainant. and further directed to pay Rs.2,000/- as compensation and cost to the complainant.  The order is to be complied with within one month from the date of this order

Dated this the 20^th day of March, 2009.

I n d e x

List of witnesses for the complainant

PW.1. – Revi Kumar

List of documents for the complainant

P1. – Copy of Insurance policy

P2. – Job order card

P3. – Copy of Advocate notice dt. 19.1.2006

P3.a. – Postal receipts

P4. – Reply notice of 1^st opp.party dt. 27.1.2006

P5. – GD extract of Traffic Police Station, Kollam dt. 21.12.2005

P6. – Cash receipt paid to the 2^nd opp.party dt. 1.2.2006

P7. – Repairs bill issued by 2^nd opp.party 28.1.2006

P8. – Letter sent to the 1^st opp.party  dt. 16.3.2006

P9. -  Reply to Ext. P8

P10. – Postal receipt.

List of witnesses for the opp.parties

DW.1.Sini

DW.2.- Sundaresan

DW.3. – Vechoochira Madhu

DW.4. – Sreejith.K. Warrier

D5. – V. Sugathan

List of documents for the opp.parties

D1. – Motor Insurance claim Forum

D2. – Preliminary survey report

D3. – Investigation report with photographs

D4. – News paper cutting.

X1. – Copy of GD register

X2. – Report submitted  by R. Asok Kumar, SI of Police, Traffic PS., Kollam.

X3. -  News paper daily dated19.12.2005

X4. – Newspaper cutting Malayala Manorama daily dated 19.12.2005.