By Smt. C.S. Sulekha Beevi, President,

1. The complainant who is the registered owner of autorickshaw No.KL-10/AB 8484 had insured the vehicle with opposite party. During the currency of policy, the vehicle met with an accident of collision with a car and sustained damage. On intimation of the accident, a surveyor was deputed by opposite party. Complainant preferred a claim along with documents. Opposite party repudiated the claim raising the ground that at the relevant time, the vehicle was carrying passengers more than the carrying capacity of the vehicle. Complainant states that the accident did not occur due to over load and that opposite party has denied the policy on flimsy grounds. It is also stated that complainant has spend Rs.28,675/- towards repair charges. Hence this complaint claiming Rs.28,675/- with interest and also for compensation.

2. Opposite party filed version admitting the issuance of policy. It is submitted that at the time of accident the vehicle was overloaded. The investigation by company and First Information report revealed that there were six persons including the driver, at the time of accident. That the permitted carrying capacity of autorickshaw is 3 + 1 only. The accident occurred due to overloading of the vehicle only. Opposite party denies that complainant had repaired the vehicle from friends Auto garage, Manjeri and had incurred expenses of Rs.28,250/-. It is submitted that as per surveyor's assessment the total damage comes only to Rs.11,840/-. That there is no deficiency in service and that complainant is not entitled to any reliefs.

3. Evidence consists of the proof affidavit filed by complainant and Exts.A1 to A5 marked for complainant. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

 

5. Point (i):-

The only point that arises for analysation is whether opposite party was justified in denying the claim of the complainant on the ground that the vehicle was over loaded at the relevant time of accident.

6. Opposite party relied upon Ext.A1 which is the First Information Report in Crime No.593/08 registered by the Manjeri Police in regard to the accident. Though opposite party contends that the vehicle carried six persons including the driver, opposite party has not stated that all the five persons were adult passengers. Definitely the permit contemplates the carrying of 3 adult passengers. On perusal of Ext.A1 it is seen that the first informant who was a passenger in the autorickshaw is aged only 14 years. She has stated that she was travelling along with her mother, brother, her younger sister and niece. No evidence is adduced by opposite party to show the age of each passenger. Opposite party has failed to establish their contention that the vehicle carried passengers exceeding the permit limit. Further it is settled position of law that Insurance Company cannot deny the claim for the only reason that one or two extra passengers were taken in the vehicle. Moreover, though opposite party contends that the cause of accident was the over load of autorickshaw, the First Information Report is against the driver of the car which hit against the autorickshaw. The cause of accident narrated in the First Information Report is the rash and negligent driving of the driver of the car No.KL11/A 4683, which came and hit the autorickshaw. It is crystal clear that the number of passengers in the autorickshaw had not attributed in any manner to the occurrence of the accident. Opposite party has repudiated the claim on flimsy grounds. Such act of denying the claim is deficiency in service. We find opposite party deficient in service.

7. Point (ii):-

Complainant has stated that he spend Rs.28,675/- towards repair charges. As per Ext.A3 survey report the net liability assessed after deduction is Rs.12,039.73. Complainant relied upon Ext.A5 series which he submitted are the bills issued by Friends Auto Garage for the repair of the vehicle. This witness who issued the documents was not examined. Further a surveyor's report cannot be disregarded unless there is cogent evidence adduced to controvert the assessment made by the surveyor. The surveyor has the role of an independent qualified person appointed under the provisions of Insurance Act. For these reasons we hold that complainant is entitled to Rs.12,039.73 as assessed in Ext.A3 survey report. Complainant is definitely entitled to interest upon this amount. The legitimate amount has been retained by the company illegaly holding on to absolutely flimsy grounds. Such acts of service providers has to be put to halt. The act of insurance Company denying claim for wrong reasons, litigating endlessly and causing delay is nothing but apathy and gross deficiency in service. We therefore are of the view that opposite party is liable to pay interest @ 12% per annum from the date of repudiation (Ext.A2 – 14-01-2009) till payment, together with cost of Rs.1,500/- which would meet the ends of justice.

8. In the result we allow the complaint and order that opposite party shall pay to the complainant Rs.12,039.73 (Rupees Twelve thousand and thirty nine and paise Seventy three only) with interest @ 12% per annum from 14-01--2009 till payment together with cost of Rs.1,500/-(Rupees one thousand five hundred only) within one month from the date of receiving copy of this order.

Dated this 8th day of October, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A5

Ext.A1 : Photo copy of the First Information Report dated, 09-8-2008 prepared by

L. Krishnankutty, S.I. of Police, Manjeri.

Ext.A2 : Repudiation letter dated, 14-01-2009 from opposite party to complainant.

Ext.A3 : Survey Report dated, 24-10-2008 by M. Ashraf, Surveyor.

Ext.A4 : Motor Claim Form dated, 13-8-2008 submitted by complainant to opposite party.

Ext.A5 : Receipt for Rs.5,250/- dated, 06-10-2008 from complainant to N.K. Radhakrishnan.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER