KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:139/2005 JUDGMENT DATED. 20/04/2010 PRESENT SHRI. S. CHANDRAMOHAN NAIR : MEMBER P.E.Ousepachan, S/oEsthapanu, Pynadathu House, Parappuram Kara, Parappuram.P.O, : APPELLANT Puthiadam Village, Aluva Taluk, Ernakulam District. (By Adv:Shri.Shanly Sebastian.K) Vs. The New India Assurance Company Ltd., Branch Office, S.M.Shopping Centre, : RESPONDENT Alwaye Road, Angamaly-683 572. (By Adv:Sri.N.S.Mohammed Usman) JUDGMENT SHRI.S. CHANDRAMOHAN NAIR : MEMBER By the order dated:27/10/2004 in OP:714/2003, the CDRF, Ernakulam has dismissed the complaint and it is aggrieved by the said dismissal that the present appeal is filed by the complainant calling for the interference of this commission as to the sustainability of the order passed by the Forum below. 2. The complainants case, beruft of unnecessary details is that the vehicle belonging to the complainant which was insured with the opposite party met with an accident on 9/6/2002 and though the complainant had spent Rs.98,675.77 for the repairs of the vehicle the opposite party had settled the claim for a meager sum of Rs.3125/- only. The complainant alleged deficiency of service on the part of the opposite party in disallowing many of the claims and claiming that he is entitled to Rs.1,10,249/- including the amount spent for repairs, the complaint was filed praying for directions to the opposite party to pay the above said amount. 3. The opposite party filed version wherein it was contended that only the amount of Rs.3,125/- was eligible to be given to the complainant and that the opposite party was never deficient or negligent in carrying out their duties. It is also their case that the majority of the damage happened due to the reckless act of the driver in driving the vehicle to a distance of half a kilometer after the accident. It was also submitted that it was based on the surveyors report that the amount was paid which was in full and final settlement and the complainant is barred from raising further claim on the basis of the repairs made by him. 4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A5 on the complainant’s side. On the side of the opposite party, the surveyor was examined as DW1 and Exts.B1 to B4 were marked. 5. The learned counsel for the appellant/complainant vehemently argued before us that the dismissal of the complaint by the Forum is without proper appreciation of the facts and evidence adduced by the complainant and that the order is liable to be set aside. It is his very case that the Forum below did not consider the case of the complainant in its correct perspective and that though he had spent a sum of Rs.98,675.77 and the bills were produced before the insurance company/opposite party, they allowed the claim only for a sum of Rs.3,125/-. It is also his case that it was not a full and final settlement and he had immediately sent the lawyer notice calling for the opposite party to pay the balance amount also. Inviting our attention to Ext.A4, he submitted before us immediately on getting the meager amount of Rs.3,125/- a letter was caused to the opposite party/respondent for the sanction of the whole amount spent by him in connection with the repairs of the vehicle. The learned counsel further advanced the contention that the driver of the vehicle did not purposefully drive the vehicle half a kilometer after the accident as alleged by the opposite party and that such contention of the opposite party is against the facts of the case. The argument of the opposite party that the damage was “consequential loss” is attacked by the learned counsel and submitted before us that there is no evidence for such conclusion of the opposite party. Even if the vehicle had run some distance after the accident it could have been only because of the speed of the vehicle and the time taken for stopping the same. The learned counsel argued for setting aside the order and he submitted before us that the appeal is to be allowed and the opposite party be directed to pay the entire amount claimed by him. 6. On hearing the learned counsel for the appellant and on perusing the documents produced by him which were marked before the Forum, we find that there is some force in the argument of the learned counsel that the amount awarded by the Forum below is much on the lower side. Though the Forum had found that the vehicle had run about half a kilometer after the accident and that was the reason for the heavy damage to the vehicle, we are not inclined to accept the said finding of the Forum below. Nobody will purposely drive the vehicle about half a kilometer after the accident to create damage to the vehicle. It can only be a natural phenomenon after the accident and there are no witnesses who will vouch safe that the vehicle had run half a kilometer after the accident. The complainant had admitted that the vehicle had run some distance and it was because of the speed of the vehicle and the time taken to stop the vehicle. Anyhow we feel that a fresh approach to the whole facts of the case is necessary and we find that this is a fit case to be remanded to the Forum below for fresh consideration+. In the result the appeal is allowed. The order of the Forum below is set aside. The case is remanded to the Forum below for disposal denovo. The parties are directed to appear before the Forum on 289/06/2010. S. CHANDRAMOHAN NAIR : MEMBER VL. | 
