By Jayasree Kallat, Member.

            The case was filed on 22.09.2006. The complainant had purchased an L&T case manufactured by M/s.L&T Case Equipment  Pvt Ltd., Complainant had purchased the vehicle for his lively hood as he was the sole breadwinner for his family.  The complainant had availed a sum of Rs.18,26,000/- availing financial assistance from Indusind  Bank for the purchase of the vehicles.  Complainant has also paid Rs.24,948/- to the opposite party for taking insurance .  The insurance policy issued by the opposite party was valid from the period 18.10.2005 to 17.10.2006.  On 18.2.2006 the vehicle was leveling land belonging to Mar Basselious English Medium School for constructing a playground by carrying mud from one side to another. During carrying mud the vehicle had toppled.  As a result of this accident in the course of its operation the vehicle sustained damages of entire outer body of the vehicle.  Opposite party was immediately intimated. Complainant had filed a claim for repairing the vehicle.  The surveyor of the opposite party company had inspected the vehicle.  On inspection, the workshop technician had informed that the entire outer body of the vehicle can not be repaired, but it has to be replaced.    Since the vehicle could not be driven out to the garage the entire repair work was done by authorized dealer at the place of the accident in the school compound itself.   Since the entire outer body was damaged, it was replaced. 2 separate bills. 1) for spare part bill for an amount of Rs.1,83,962/- and 2) The  labour bill for Rs.14,200/- were  to be paid. The complainant had paid Rs.72,000/- personally.  The complainant raised a claim for an amount of Rs.1,98,162/-.  Original bills and documents were presented before the opposite party.  The opposite party did not sanction the claim amount. The accident had occurred when there was a valid policy. Not sanctioning the claim amount during the policy period is akin to deficiency in service on the part of the opposite parties.  The complainant has filed the petition before the Forum alleging deficiency in service , negligence and unfair trade practice on the part of the opposite parties.

            Opposite party filed a version denying  the allegations in the complaint except those which are expressly admitted .  Opposite party admitted the fact that the complainant had insured the vehicle with the Opposite party. There was an insurance policy for the period from 18.11.2005 to 17.10.2006. Opposite party denies that when the vehicle was leveling the land belonging to school for constructing a playground mud from one side started flowing over  the L&T case and due to impact the vehicle  had toppled, and thus accident took place. Opposite party admits that the accident was reported  to the branch office of the opposite party. A surveyor of the opposite party had inspected the vehicle. From the claim made by the complainant, it was found that the accident occurred when the vehicle overturned.  The Opposite party can not entertain a claim of own damage in case were damage caused due to overturning of the vehicles.  On the basis of the policies issued to the complainant he is not entitled to get any claim of compensation.  The complainant is not entitled to get any amount from the opposite party.  There was no deficiency in service, negligence or unfair trade practice from the side of the opposite party.  The Opposite party is not liable to pay any amount to the complainant under the policy conditions and this was informed to the complainant.  The opposite party prays to dismiss the petition with cost to the opposite party

  The only point for consideration is whether the complainant is entitled  for the relief sought in the petition?

The complainant was examined as PW 1 and Ext. A1 to A5 were marked on complainant’s side.  The opposite party was examined as RW 1 and Ext B1 & B2 were marked on opposite party’s side.

     The case of the complainant is that he had purchased a vehicle after paying a sum of Rs.18,26,000/-. The complainant had purchased this vehicle for his livelihood. He had taken financial assistance from Indusind Bank.  The complainant had taken an insurance policy by paying Rs.24,948/- from the opposite party. On 18.02.2006 the vehicle was leveling the land for constructing a playground for a school.  Meanwhile mud flowed over the outer case of the vehicle and due to this impact part of the vehicle was covered with mud, resulting in toppling of the vehicle.  In this accident the vehicle sustained damages of entire outer body.  The complainant had intimated to the insurance company, because the vehicle was insured with the Opposite party.  Opposite party did not sanction the claim of the complainant. Opposite party has taken the contention that a claim of own damage in case were damage is caused due to overturning of the vehicle could not be entertained by the opposite party as per policy condition.  Opposite party produced Ext.B1 & B2. B2 is the policy condition. Opposite party has taken the contention that the claim of the complainant can not be entertained as per the policy condition. Ext.B1 is the surveyor’s report produced by the opposite party. The surveyor has inspected the vehicle and prepared the report.  The report mentioned all the parts that have been replaced. It also mentioned the nature of the accident and extent of the damage.

Ext B1 shows that the surveyor has assessed an amount of Rs.1,76,822.56 after surveying  the  repair done to the vehicle of the complainant.  The salvage value noted by the surveyor is  Rs.10,000/-  The complainant’s definite case is that even though he has paid Rs.24,948 /-to the opposite party to insure his vehicle, when an accident  occurred opposite party did not sanction his claim for repairing charges.  The opposite party has taken the contention that they are not liable to pay if damage occurred to the vehicle on its own. I.e., complainant is not entitled to get any amount since the damage is caused to the vehicle due to overturning.  Here it is very relevant to note that the complainant’s vehicle is one which is used to remove mud and earth.  This accident has occurred during removal of mud. The complainant has insured his vehicle against such accident which will happen while removing mud and such other work, which is the purpose for which the vehicle was bought.  When the vehicle met with an accident the opposite party has conveniently cited policy conditions to evade paying the claim amount to the complainant.  In our opinion the complainant is entitled to get claim amount for the repair works of the vehicle.  Complainant has claimed for an amount of Rs.1,98000/- towards repair works. The surveyor has assessed 1,76,822.56 towards repair works.  After taking into account the evidences of both sides and documents we are of the opinion that the complainant is entitled for Rs.1,76,822+2500 towards lifting and towing charges, after deducting a salvage value of Rs.10,000/- that will come to Rs.1,69,322/-. The complainant has sought for an amount which he had lost on account of  delay in getting the vehicle repaired and thus losing the income. He has also sought for compensation. Complainant has not given any concrete proof to show the loss and also we are of the opinion that opposite party is not liable to compensate for such losses.  The forum has found negligence and deficiency on the part of the opposite party for not sanctioning the claim of the complainant who has insured his vehicle with the opposite party and was paying the premium correctly.  The accident occurred during the period when there was valid policy.  The vehicle was insured to get claim when accident of such sought happens.  In our opinion the complainant is entitled to get the repair charges from opposite party.

In the result the petition is allowed and opposite party is directed to pay an amount of Rs.1,69,322 to the complainant with 9% interest from 22.09.2006 ,ie. date of  filing of petition till realization.  The complainant is also entitled for a compensation of Rs.2500/- and cost of Rs..500/-.  The opposite party is to comply the order within 30 days of receiving the copy of the order.

Pronounced in the Open  Court this the 29^th day of June 2010.

SD/-PRESIDENT                        SD/- MEMBER               SD/- MEMBER

APPENDIX

Documents exhibited for the complainants:

A1. Photocopy of  Registration certificate.

A2. Photo copy of Policy schedule.

A3. Photocopy of Invoice / credit bill)

A4. Photocopy of credit bill  of vehicle dtd 08.03.2006

A5. Colour photos.

Documents exhibited for the opposite parties.

B1. Photocopy of Survey report dtd. 17.03.06

B2. Policy schedule

Witness exhibited for the complainant:

PW1.  Raju.A.U.(Complainant)

Witness exhibited for the opposite party:

RW1 Jimy Mathew, Mevada,Arakinar.PO

SD/- PRESIDENT

Date of filing                             :22.09.2006

Date of order                            :29.06.2010

//True copy//

(Forwarded/By order)

SENIOR SUPERINTENDENT.