IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 30^thday of June,  2022.

Present:  Sri. Manulal V.S. President

Sri. K.M. Anto, Member

C C No. 270/2021  (Filed on 09-11-2021)

Petitioner                                             :         Michael Jacob,

                                                                      Murickan House,

                                                                      Elivalikkara,

                                                                      Mukkoottuthara P.O.

                                                                      Pin - 686510

                                                                                Vs.

Opposite parties                                   :         New India Insurance,

                                                                      Kottayam Branch.

                                                                      (Adv. P.G. Girija)

O  R  D  E  R

Sri. Manulal V.S. President

Case of the complainant is as follows:

On 9-2-2021 while the complainant was driving the vehiclebearing Reg no. KL-34-F-5255 which was owned by hisdaughter the vehicle was lost control and ran towards thereverse and hit on the compound wall. After that the vehicle wasrepaired at AVG motors. To compensate the damage sustained to the compound wall the complainant had paid Rs.25,000/- tothe office bearers of the S.N.D.P. Temple Irumpoonnikkarafrom his daughter’s account. However the opposite partyinsurance company did not indemnify the damages of thecomplainant which was incurred by him due to the accident.

According to the complainant he is entitled for an amount of Rs.25,000/- which was paid by him to the authorities of the templeand Rs.6380 as other expenses which was incurred by him due tothe accident. According to the complainant the denial of hisclaim by the opposite party amounts to deficiency in service.Hence this complaint.

Upon notice opposite party appeared and filed version contendingas follows:

The complainant has no locus standi to file this complaint ashe is neither the registered owner nor the insured of the vehicleno. KL-34F-5255. The averment in the complaint is that thevehicle KL-34f-5255 caused damages to the brick wall is nottrue. The own damage claim of the complainant was settledcashless through the vehicle dealer AVG Motors, Kottayam inthe name of insured Gissy Michael. The insured submitted theclaim form with estimate on 10-2-2021 through the dealer AVGMotors ad survey was done by the IRDA surveyor and assesseda amount of Rs.64,350 as damages to the vehicle and it was settled for Rs.64,350 as cashless basis to AVG Motors. Theinsured submitted a claim form in which he claimed nothingunder the head of Third Party damages even though there was aspecific column for the same. The insured submitted the GDextract of Erumely police station which clearly mentions thatnobody is injured and there is no complaint by anybody andhence no case is registered.

It is submitted in the version that if there was a propertydamage , the same can be claimed in a designated court based onthe FIR and charge A Third party property damage cannot bequantified arbitrarily by the insured and it is not reimbursable bythe insurer . If at all there is a third party property damage, itwould have been quantified by a court of law. If at all anyamount was paid by the complainant, it is not binding on theopposite party as there is no contract between the parties forpayment of the said amount. It is submitted in the version thatunder the head of lifting, photo and printing charge, the amountpayable under these heads as per policy is Rs.1,500/- which isalready included in the amount settled under the OD claim.

There is no deficiency in service on the part of the oppositeparty.

Complainant filed proof affidavit in lieu of chief examinationand exhibits A1 to A7 were marked. Divisional manger of theopposite party filed proof affidavit and exhibit B1and B2 weremarked from the side of the opposite party.

On theevaluation of complaint, version and evidence on recordwe would like to consider the following points.

1. Whether the complainant had succeeded to prove deficiency inservice on the part of the opposite party?
2. If so what are the reliefs and cost?

Point number 1 and 2

The specific case of the complainant is that while he wasdriving the vehicle bearing Reg no. KL-34-F-5255 the samewas hit on brick wall of the S.N.D.P. Temple Irumpoonnikkara.Due to the accident  damages were caused to the vehicle aswell as the brick wall. Exhibit A1 registration certificate proves

that the vehicle was owned by GissyMichaeal. Specific case ofthe complainant is that the opposite party did not pay the thirdparty property damages and other expenses. Complaint isresisted by the opposite party on the ground that the own

damage claim of the complainant was settled cashless throughthe vehicle dealer and the complainant filed the claim form inwhich he claimed nothing under the head of Third PartyProperty damage. The opposite party strongly opposed theaverment in the complaint that the complainant paid Rs.25,000/- to the temple authorities . On perusal of exhibit A4General Diary extract we can see that it is stated in exhibit A4that on 9-2-2021 vehicle bearing KL-34-F 5255 hit on the brickwall of the SNDP temple and thereby damages were caused tothe rear wind glass, left side running board, door of dickey leftcornerpanel , rear side bumper. It is further stated in exhibit A4that in the accident nobody is injured and there is no complaintby anybody and hence no case is registered. Thus on a merereading of the exhibit A4 we can see that due to the accident thedamages were caused only to the vehicle and not to others orany property of others. Exhibit B1 is the claim form filedby the complainant in connection with accident. On perusal ofexhibit B1 wecan see that the complainant did not fill thecolumns regarding the third party property damage. In order to provehis case complainant relied on exhibit A6 receipt. On perusal ofexhibit A6 we can see that it was a receipt issued by the SNDPErumely union for the donation towards the renovation of thecompound wall.

The Hon’ble Supreme Court in a recent Judgment dtd.6^thOctober2021 i.e. in “SGS India Limited v/s Dolphin InternationalLimited”, categorically held that the onus of proof that there wasdeficiency in service is on the complainant.

Here in this case as discussed above we are of the opinion thatthe complainant has failed to prove that the compound wall wasdamaged in the accident and any deficiency in service on thepart of the opposite party. Thus the complaint is dismissed.

Pronounced in the Open Commission on this the 30^th day of June, 2022

Sri. Manulal V.S. President     Sd/-

Sri. K.M. Anto, Member         Sd/-

Appendix

Exhibits marked from the side of complainant

A1 –Copy of RC book (KL-34-F-5255)

A2 – Copy of certificate cum policy schedule

A3 – Copy of driving license in the name of complainant

A4 – Copy of general diary abstract dtd.09-02-2021 from Erumeli Police station

A5 – Copy of authorization letter dtd.18-06-2021 by Jissy Michael to complainant (subject to objection)

A6 – Copy of receipt dtd.17-02-21 from SNDP, Erumeli Union

A7 – Copy of receipt dt.06-11-21 from Jose Studio and Color lab

Exhibits marked from the side of opposite party

B1 – Copy of Motor Vehicle Claim Form dtd.10-02-21

B2 - Copy of general diary abstract dtd.09-02-2021 from Erumeli Police station

                                                                                                    By Order

                                                                                         Assistant Registrar