DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678001, Kerala

Dated this the 25^th day of September, 2010

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

CC.No.145/2008

P.S.Suresh Kumar,

S/o.P.V.Sugadha,

Pallikkal House,

Padilikkad,

Kottekkad.P.O,

Palakkad Taluk. - Complainant

(By Adv.M.R.Manikandan)

Vs

1. M/s.The Oriental Insurance Company Ltd.

Divisional Office,

Sobha T.S.M.Complex,

V.H.Road, Palakkad – 1.

Rep by Senior Divisional Manager.

(By Adv.P.Ramachandran)

2. M/s.Radhia Motors,

Ponnkunnam,

Guruvayoor Road,

Trichur – 2

Represented by the Manager (works) - Opposite parties

(Party in person)

O R D E R

By Smt.Preetha.G.Nair, Member

Case of the complainant is as follows:

The complainant is a registered owner of Tempo Trax bearing Regn. No.KL9- T3921. The aforesaid vehicle is insured with the 1^st opposite party herein. The complainant had been using the vehicle exclusively for his personal purpose. The complainant is a broker by profession and used to visit in many places in Kerala and Tamil Nadu. On 28.10.07, when proceeding to Aluva along with parties the vehicle driven by the complainant went of control and capsized. As a result of the accident all passengers sustained injuries and two

of them succumbed to injuries. Moreover the aforesaid vehicle driven by the complainant was severely damaged. Complainant submits that this case is pending before the Hon'ble Tribunal, Ernakulam. Complainant further submits that the vehicle took to the 2^nd opposite party for repairs on 7.11.07. 2^nd opposite party effected the repairs to the vehicle for Rs.2,90,907.40. Complainant stated that during the middle of repairs the complainant advanced Rs.80,000/- to 2^nd opposite party and balance of Rs.2,10,907.40 has not yet been paid by the complainant.

Immediately after the accident the complainant approached the 1^st opposite party and claimed compensation for the damages. But the 1^st opposite party was not properly attended the claim and dragged the matter unnecessarily. On 15.07.08 the 1^st opposite party informed the complainant that the vehicle was used for hire or reward for M/s.Indian Express group of publications at the time of accident and hence the claim was repudiated in toto. Complainant denied the allegation set forth by the 1^st opposite party. Complainant stated that the attempt of 1^st opposite party is only to escape from the liability.

Complainant submits that he had contract with M/s.Indian Express group of publications as their transport operator for distributing their paper parcels on the route of Kaloor to Palakkad and for the said purpose the complainant used to arrange public carriage. On 28.10.07 also the complainant had arranged a public carriage to bring paper parcels from Kaloor to Palakkad. The Tempo Trax vehicle owned by the complainant is a private carrier and had never been used as a public carriage nor the same went for hire or reward. The allegation made by the 1^st opposite party in their letter dt.15.07.08 that the said vehicle was used for hire or reward and the passengers at the time of accident were picked up from various places from Plakkad to their destinations at Ernakulam and the vehicle was used in violation of the policy conditions etc are baseless, incorrect and wrong

and the same is alleged only to get rid from the liability to pay compensation to this complainant. Even after receipt of the said letter the complainant approached them several times in person and requested for an early settlement of the claim. But the same was not attended by the 1^st opposite party. Moreover the complainant again approached the 1^st opposite party, after the receipt of the letter dt.11.12.08 sent by 2^nd opposite party, and informed that unless they settled the claim of the complainant the vehicle would be put in auction by the 2^nd opposite party. Even then the 1^st opposite party did not pay any interest to settle the claim. Complainant alleges deficiency in service on the part of 1^st opposite party. Hence the complaint seeking an order directing 1^st opposite party to pay Rs.3,40,907.40 under different heads and cost.

1^st opposite party filed version contending the following. 1^st opposite party contended that the complainant is not a consumer as defined under the Consumer Protection Act. Complainant is not entitled to get the damages claimed. Opposite party admits the insurance coverage to the vehicle. But this opposite party denies the alleged accident. Complainant has not produced any documents to prove that the tempo trax involved in any accident and caused damages to the vehicle. Besides the complainant has not produced documents or photographs to show the actual damages caused to the vehicle. The complainant has not considered the depreciative value of the parts replaced while computing damages. The complainant does not disclosed the year of manufacturing of the vehicle. At the time of the alleged accident the complainant was driving the vehicle with travelers as a taxi or contract carriage. Hence the complainant violated the condition of the policy. Hence he is not entitled to get damages. Besides complainant was not qualified to drive a passenger vehicle taxi or contract carriage. The 1^st opposite party is not liable to pay compensation or damages to the complainant under Consumer Protection Act. 1^st opposite party stated that the complainant submitted that the matter is pending before the

Hon'ble Tribunal at Ernakulam but has not produced any documents to prove this aspect. Further the opposite party denied the contention of the complainant that the vehicle is a private carrier and had never been used as a public carriage. This opposite party prayed to accept their contention and dismiss the complaint.

2^nd opposite party filed version contending the following. 2^nd opposite party admitted that the complainant is the registered owner of the Tempo Trax registration No.KL-9 T3921. The vehicle was damaged due to the accident happened on 28.10.07. The 2^nd opposite party has repaired the vehicle cost of Rs.2,90,907.40. The complainant had paid Rs.80,000/- as advance amount to 2^nd opposite party. The 2^nd opposite party stated that the balance amount of Rs.2,10,907.40 is not paid by the complainant. And notice was sent to the complainant. But the complainant has failed to pay the balance amount. The 2^nd opposite party stated that on 11.12.08 notice was issued to the complainant and informed that the vehicle would be put in auction by 26.12.08. The 2^nd opposite party stated that the balance amount of repairing charge and the rent of the vehicle keeping in the workshop was not paid by the complainant. Further 2^nd opposite party submitted that the bills of the repairing charges sent to the complainant and 1^st opposite party. Thereafter 1^st opposite party sent letter to 2^nd opposite party stated that the claim was rejected. So the 2^nd opposite party prays an order directing the complainant to pay the balance amount of repairing charges and rent.

Complainant and opposite parties filed affidavit and documents. Exts.A1 to A11 marked on the side of complainant. Ext.B1 to B9 marked on the side of opposite parties. Complainant and one witness was examined. Matter was heard.

Issues to be considered are;

1. Whether the complainant is a consumer or not?

2. Whether there is any deficiency in service on the part of opposite parties?

3. If so, what is the relief and cost?

Issue No.1:

The complainant is a registered owner of the vehicle bearing registration No.KL-9 T3921. The aforesaid vehicle is insured with 1^st opposite party. The complainant had been using the vehicle exclusively for his personal purpose. Further more, there is nothing on record to show that he wanted to use the vehicle for any commercial purpose. So the complainant is a consumer as defined in the Consumer Protection Act.

Issues 2 & 3:

We perused relevant documents on record. The complainant stated that he had a contract with M/s.Indian Express Group of publications as their transport operator for distributing paper parcels on the route of Kaloor to Palakkad. And the complainant used to arrange public carriage vehicle for them and the same is being continued even now. At the time of cross examination of complainant stated that private vehicle is not used for distributing newspapers. But badge is necessary for using private vehicle to distributing newspapers. Further complainant admitted that he had badge before the accident. As per Ext.B9 Sri.Ramadas, witness, admitted the signature in FIS. The complainant stated that in FIS he and Ramadas were going to the distribution of newspapers stated was wrong. The 1^st opposite party admitted that the vehicle was insured with the complainant as a private vehicle and the accident was happened during that period. In cross examination of complainant stated that there are 6 members in the vehicle at the time of accident and all of them were very well known to him. 1^st opposite party stated that at the time of the alleged accident the vehicle was using for carrying passengers and also the distribution of India Express publications. No evidence was produced by the 1^st opposite party to show the vehicle was using for carrying passengers and the distribution of Indian Express publications.

At the time of examination Mr.Ramadas, the employee in the Indian Express publications stated that the statements in FIS are not known to him and admitted the signature. No contradictory evidence was produced by 1^st opposite party. The Indian Express publications are one of the leading newspapers. But in FIR, scene mahazar, and charge no where stated that the vehicle was used for distribution of Indian Express publications. In FIS Mr.Ramadas stated that at the time of the accident the vehicle was used for collecting Indian Express newspapers. But at the time of examination he denied the statement in FIS. Thus two views regarding the vehicle was used for distribution of newspapers. Hence we considered the statement of Mr.Ramadas in favour of the complainant. The 2^nd opposite party has repaired the vehicle worth Rs.2,90,907.40 and the bills were produced and marked as Ext.B3 to B8. As per Ext.A4 and Ext.A11 the complainant has holding valid driving licence at the time of accident. The complainant stated that using the vehicle exclusively for his personal purpose. The complainant stated that the accident was happened on 28.10.07 at Angamaly near Morning Star College. Further the complainant submitted that he had contract with Indian Express group for distributing paper parcels on the route of Kaloor to Palakkad. The complainant stated that on 28.10.07 he had arranged a public carriage vehicle to bring paper parcels from Kaloor to Palakkad. No contradictory evidence was produced by the 1^st opposite party to show the complainant was used the alleged vehicle for distributing the paper on 28.10.07. The complainant stated that he does not want any relief as prayed for in the complaint as against the 2^nd opposite party. According to Ext.A3 and A4 the vehicle was insured with the valid policy of insurance at the time of alleged accident and the complainant has valid driving licence at the time of accident. Finally the 1^st opposite party stated that the vehicle was used as a public carriage by the complainant. But the 1^st opposite party has failed to prove the vehicle was used as a public carriage. According to Ext.A7 the report of inspection of motor vehicle involved in the accident stated the damages of the vehicle and the details of accident. No objection

raised by the 1^st opposite party to marking of this document. The 1^st opposite party has stated that the accident was not happened on 28.10.07 and also contended that the complainant was not holding valid driving licence at the time of accident. According to Ext.A7 to A11 shows the accident was happened on 28.10.07 and the complainant has valid driving license. In the above discussions we hold the view that there is deficiency in service on the part of 1^st opposite party. According to Ext.A4 the year of manufacture of vehicle is 2005. In the present case, the quantum of damages not assessed by any Surveyor. The age of the vehicle involved in the accident is not exceeding 2 years. Since both parties are silent in clause of depreciation, we assess 10% of depreciation on the amount incurred for repair. The amount incurred for repair is Rs. 2,90,907.40. Depreciation of 10% on Rs.2,90,907.40 is Rs.29,091/-. The Balance amount is Rs.2,61,816/-. Hence the complaint allowed.

We direct the 1^st opposite party to pay the claim amount of Rs.2,61,816/- (Rupees Two lakhs sixty one thousand eight hundred and sixteen only) with 12% interest from the date of repudiation till the date of order and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Order to be complied within one month from the date of receipt of order failing which the whole amount shall carry further interest at the rate of 9% from the date of order till realisation.

Pronounced in the open court on this the 25^th day of September, 2010

Sd/-

Seena.H,

President

Sd/-

Preetha.G.Nair,

Member

Sd/-

Bhanumathi.A.K,

Member

Date of filing: 23/12/2008

Appendix

Witnesses examined on the side of complainant

PW1 – Shri.Suresh Kumar.P.S

Witness examined on the side of opposite parties

DW1 – Sri.Ramadas

Exhibits marked on the side of complainant

Ext.A1 – Photocopy of letter dt.15/07/08 sent by 1^st opposite party to complainant

Ext.A2 – Photocopy of letter No.RM:ADMN:564:08 dt.11/12/08/ sent by opposite party to

complainant

Ext.A3 – Insurance policy No.21954 issued by 1^st opposite party

Ext.A4 – Original RC book

Ext.A5 – Receipt No.071907 dt.07/02/2008 for Rs.80000/-

Ext.A6(Series) – Copy of reply letter, postal receipt etc. sent by complainant to 2^nd opposite

party

Ext.A7 – Photocopy of report of inspection of motor vehicle involved in the accident

Ext.A8 – Photocopy of seen mahazar

Ext.A9 – Photocopy of Charge sheet

Ext.A10 - Photocopy of FIR

Ext.A11 – Photocopy of driving licence

Exhibits marked on the side of opposite parties

Ext.B1 - Reply letter sent by complainant to 2^nd opposite party

Ext.B2 - Letter dt.15/07/08 sent by 1^st opposite party to complainant

Ext.B3 - Photocopy of Bill No.2451 dt.31/03/08 for Rs.39,284

Ext.B4 - Photocopy of Bill No.2075000 dt.31/03/08 for Rs.2,28,493.42

Ext.B5 – Photocopy of Bill No.2080796 dt.13/06/08 for Rs.17,806.63

Ext.B6 - Photocopy of Bill No.2080797 dt.13/06/08 for Rs.2,149.41

Ext.B7 - Photocopy of Bill No.2446 dt.31/03/08 for Rs.471.41

Ext.B8 - Photocopy of Bill No.2074995 dt.31/03/08 for Rs.2,702.53

Ext.B9 – Photocopy of First Information Report

Cost (Allowed)

Rs.2,000/- (Rupees Two thousand only) allowed as cost of the proceedings