KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 674/11

JUDGMENT DATED: 30.03.2013

(Against the order in CC. 190/10 on the file of CDRF, Kasaragod dtd:10.03.2011)

PRESENT:

JUSTICE SHRI. P.Q.BARKATH ALI                :  PRESIDENT

SHRI.M.K. ABDULLA SONA                            : MEMBER

Abdul Haris.P.M,

S/o late Mohammed Haji,

Razeela Manzil, P.O. Eriyal Kudlu,                    : APPELLANT

Kasaragod.

(By Adv: Sri.S.Reghukumar)

          Vs.

1.      The Manager,

          Customer Service ICICI Lombard,

          General Insurance Company Ltd.,

          City Plaza, YMCA, Cross Road,

          Calicut.

2.      Authorised Signatory,

          ICICI Lombard Motor Insurance,

          Zenith House, Corporate Office,

          Kashorao Khader Marg,

          Mahalaxmi, Mumbai – 400 034.

3.      PVS Automotive C. Pvt. Ltd.,

          KTC Nagar, Meenchantha,

          Calicut – 673 018.                                    : RESPONDENTS

4.      Abdul Shameer,

          S.S.Com, 1^st floor,

          City Centre, Bank Road,

          Kasaragode.

5.      Anoop,

          ICICI Lombard Executive,

          City Centre, Bank Road,

          Kasaragod.

          (By Adv: Sri.Prasannakumaran Nair)

JUDGMENT

JUSTICE SHRI. P.Q.BARKATH ALI:  PRESIDENT

                    This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 by the complainant in CC.190/10 on the file of CDRF, Kasaragod challenging the order of the Forum dated, March 10, 2011 dismissing the complaint.

          2.      The case of the complainant as testified by him as PW1 and as detailed in the complaint before the Forum in brief is this.  PW1 is the RC owner of the vehicle bearing registration No.KL-14/H-333.  He purchased the said Ford Endevour car from 3^rd respondent who is the dealer.  The said vehicle was insured with the respondents 1 and 2.  The vehicle met with an accident in the night of October 20, 2008 near Payyannur.  On the instruction of police the vehicle taken to nearby petrol bunk at Payyannur.  On the next day morning the vehicle was then taken to the garage of 3^rd respondent/3^rd opposite party, PVS  Automotive Company, Calicut from whom the vehicle was purchased.  The total repair charge incurred was Rs.4,16,900/- but respondents 1 and 2 the Insurance Company honoured the bills worth only Rs.70,327/- alleging that the damage occurred as there was leakage of coolant the vehicle was driven without the coolant.  There was no noticeable leakage of the coolant.  Therefore the complainant claimed the balance amount of Rs.3,45,673/- and compensation.

          3.      First respondent/1^st opposite party is Manager, Customer Service, ICICI Lombard General Insurance Company, 2^nd respondent/2^nd opposite party is its authorized signatory at Bombay.  Third respondent/3^rd opposite party is PVS Automotive Company, Calicut from whom the complainant purchased the vehicle.  The 4^th respondent, 4^th opposite party is earlier franchisee of 2^nd opposite party.  The 5^th respondent is one Anoop who is the executive in the Company.

          4.      Only respondents 1 and 2 contested before the Forum.  They in their version contended thus:-  The investigator/Surveyor reported that in the accident the radiator got damaged and coolant leaked off and consequently engine got stuck up.  The driver instead of towing the vehicle to a nearby workshop continued his journey towards Kozhikkode and when he reached at Vadakara the engine of the vehicle got stuck up.  The damage was caused due to the negligence of the driver.  Therefore these respondents are not bound to indemnify the complainant regarding the damage caused to the vehicle.  The surveyor assessed the damage of Rs.70,327/- which the Insurance Company has already paid.   Therefore the complaint is to be dismissed.

          5.      Complainant was examined as PW1 and Exts.A1 to A4 were marked on the side of the complainant.  DW1 was examined and Exts.B1 to B3(a) were marked on the side of the contesting respondents before the Forum. 

          6.      On an appreciation of the evidence the Forum found that the damage caused to the engine of the vehicle in question occurred as the driver drove the vehicle without coolant and that therefore respondents 1 and 2 the insurance company is not bound to indemnify the complainant with respect to the damage caused to the engine and dismissed the complaint.  Complainant has come in appeal challenging the said order of the Forum.

          7.      Before this Commission only respondents 1, 2 and 5 appeared. Respondents 3 and 4 remained absent.  Heard the counsel for the appellant/complainant and respondents 1, 2 and 5.

          8.      The counsel for the appellant/complainant Adv. S.Reghukumar argued that without the coolant vehicle could not be run, that there was no visible leakage of coolant and that therefore the case of the contesting respondents that the vehicle was run without the coolant cannot be accepted.  On the other hand Sri. Prasannakumaran Nair, the counsel for the respondents 1, 2 and 5 supported the order of the Forum.

          The following points arise for consideration are:-

1.      Whether it is proved that the damage caused to the engine of the       vehicle in question was due to the negligence of the driver in driving      the vehicle without the coolant?

2.      Whether the impugned order of the Forum can be sustained?

          9.      The contesting respondents, the insurance company mainly relied on the evidence of the surveyor, DW1. He testified before the Forum that radiator of the car was damaged and the coolant was leaking and the damage to the engine was caused due to driving the vehicle without coolant.  But for several reasons I am unable to accept the above version of DW1.   The accident occurred on October 10, 2008 at Payyannur.  The Driver drove the vehicle up to Vadakara ie about 100 Kms.  DW1 admitted that without the coolant vehicle could not be run.  Therefore it is difficult to believe that the said vehicle has run without the coolant for more than 100 Kms. It is also not sure when the coolant started leaking.  DW1 examined the vehicle only on the next day.  He was unable to say whether immediately after the accident coolant started leaking.  DW1 admitted when cross-examined, the driver told him that there was no visible sign of coolant leak after the accident.

          10.    For all these reasons I am unable to accept the contention of the contesting respondents driver who drove the vehicle without coolant and caused damage to the vehicle.  That being so I set aside the finding of the Forum on this aspect.  Consequently it has to be held that claimant is entitled to the entire repair charges of Rs.4,16,900/- reimbursed from the insurance company.

          Appeal is allowed.  The order of the lower Forum dismissing the complaint is set aside.  Complaint is allowed.  The respondent/opposite party is directed to pay Rs.3,45,673/- to the complainant with a compensation of Rs.5000/- and costs of Rs.1000/-.  In this appeal the appellant is entitled to a cost of Rs.3000/-.

JUSTICE P.Q.BARKATH ALI:  PRESIDENT

M.K. ABDULLA SONA: MEMBER

VL.