By SRI. K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> The complaint is filed by complainant for seeking insurance amo9unt with compensation and costs.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the owner of the vehicle bearing Reg.No.KL 02/L 2383 [Mahindra Bolero]. The opp.parties are the insurer of the vehicle. On 1.9.2004 at about 10.30 am the vehicle was being driven by the driver along the Benglamkunnam junction Nilamel road and when the same reached in front of the KSEB Overseer office the driver applied brake for slowing the vehicle the vehicle slipped and hit on the northern cutting wall of the road sustaining damages to the front glass, body of the vehicle land other parts . The complainant informed the said accident to the 2nd opp.party immediately and also to the Chadayamangalam Police Station. The 2nd opp.party issued a claim form to the complainant and the complainant filed the claim . As there is high cutting walls on both sides of the road the accident was not visible to the neighboring residents. There are no shops there and the KSEB Overseers office remained closed. As there were no personal injuries the accident might not have been noticed by the public. The opp.party deputed a surveyor to conduct spot surveyor who filed a report to the 2nd opp.party. The Chadayamangalam Police has also recorded a G.D. entry. The vehicle was having insurance coverage at the relevant time. The opp.parties assured the complainant that the claim for damages will be paid within a short time. As per the assurance and direction of the opp.parties the damaged vehicle was taken at the TVS workshop at Thiruvananthapuram The service engineer calculated the damages and labour charges of the damaged vehicle as Rs.62996/- The bills towards the repair charges were produced before the opp.parties but the claim has not so far been settled. Hence the complaint.<br /> <br /> <br /> The opp.parties filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. The complainant approached this Forum with unclean hands by suppressing the material facts . The definition complaint, complainant, Consumer dispute service as defined in section 2 [1] of the Consumer Protection Act do not cover the claim made out in the complaint. It is admitted that the opp.parties had issued a comprehensive Insurance policy in the name of the complainant in respect of passenger carrying commercial vehicle bearing Reg.No.KL-2L/2383 for a period of one year commencing from 27.6.2004 to 26.6.2005. The complainant as per the letter dated 2.9.2004 reported a claim before the 2nd opp.party. It was specifically mentioned in the claim submitted by the complainant that one Mr.S. Shereef was the driver of the vehicle at the relevant time of accident and the vehicle was capsized while applying brake of the vehicle. The opp.party issued a claim form to the complainant and the complainant submitted the claim form duly filled in and signed along with the estimate of repairs from M/s. TVS, Thiruvananthapurm on 7.9.2004 As per the claim form submitted by the complainant, one Mr. Jayakumar was driving the vehicle at the time of accident and the vehicle capsized while applying the brake of the vehicle causing extensive damages to the vehicle. The claim form on scrutiny was found containing corrections and over writings in the particulars written regarding the name and address of the driver and the driving license number etc. in column No.4 of the claim form. Though the accident was occurred on 1.9.2004 at 9.30 am the complainant failed to inform the matter either to the 2nd opp.party or to any of the office of the opp.party nearest to the place of occurrence for arranging spot survey of the incident inspite of the necessity of the same has been specifically endorsed in the insurance policy. The complainant shifted the vehicle from the alleged place of occurrence without giving an opportunity to the opp.parties to arrange a spot survey in order to ascertain the genuiness of the claim. The opp.party deputed a licensed insurance surveyor who visited the workshop of M/s. TVS & Sons, Neeramonkara where the damaged vehicle was kept for repairs on 9.9.2004 and on subsequent dates. <br /> <br /> The surveyor issued letter dated 10.9.2004 to the complainant seeking explanation from the complainant for the failure on his part for arranging spot survey before shifting the vehicle for which the complainant did not give any reply for the clarification sought by the surveyor. The complainant after getting the letter from the surveyor has managed to procure a GD extract dated 14.9.2004 from the Chadayamangalam Police Station, wherein it has been stated that the alleged incident was occurred at 10.30 am . on 19.12.2004 at a place called Benglam Kunnu. It is also stated in the GD entry that one Mr. Jayakumar was driving the vehicle at the time of accident. One Head constable attached to Chadayamangalam Police Station after two weeks from the date of occurrence especially when the vehicle was kept in the TVS & Sons at Thiruvananthapuram in a dismantled condition and kept for repairing. It is not stated anywhere in the GD entry the place where the vehicle was examined by the Head Constable for noting the damages mentioned in the GD entry. There is no authenticity or genuiness regarding the contents in the GD entry and it is obvious that the GD entry was prepared by the concerned Head Constable at the request of the complainant on the basis of the information furnished by the complainant without seeing and verifying the damaged vehicle or without conducting any sort of enquiry about the alleged occurrence. The complainant has given different version about the occurrence of the incident in the claim intimation letter and the claim form and in the GD extract. The complainant has furnished the name of one Mr. S. Shereef as the driver at the time of accident in the claim intimation letter but in the claim form in the place of Shereef the name of one Jayakumar is stated for the reasons best known to him. It may be because the driver Shereef was not holding proper and valid driving license to drive the insured vehicle and the incident was occurred not in the manner and at the place of occurrence as alleged. The complainant deliberately suppressed the real facts from the opp.parties and misrepresented the name of the driver. The opp.party arranged a private investigating agency to find the genuiness of the accident. The investigator conducted a detailed enquiry about the alleged incident and in the enquiry it was revealed that the incident has not occurred as alleged. It has not taken place at Benglam Kunnu area or any place in between Veikal and NIlamel on 1.9.2004. The investigator met Mr. Jayakumar and obtained a signed statement from him. As per the investigation report the investigator has pointed out so many inconsistencies about the version regarding the alleged occurrence stated in the claim form and in the GD abstract and the statement of the alleged driver as well. The surveyor submitted his survey report assessing the damages at Rs.12,627.15/- including cost of spare parts, labour charges etc. In the survey report submitted the surveyor has endorsed his specific remarks and the adverse observations about various inconsistencies regarding the narration of occurrence disclosed in the claim form GD extract and the claim intimation letter. The surveyor also expressed doubt regarding the genuiness of the name of the driver furnished in the claim form. In respect of the certificate the opp.party issued a registered letter to the complainant seeking explanation about the change of name of the driver . The opp.party further requested the complainant to submit the journey trip sheet of the insured vehicle as on the date of the alleged accident for verification. The opp.party in the aforesaid letter dated 9.11.2004 has intimated the complainant the circumstances which warrant the repudiation of the claim and also seek an explanation in writing within 7 days before the closing the claim file without further notice. The complainant though received the said letter did not furnish any proper explanation for the same and accordingly the claim was closed. The complainant is not entitled to seek any relief against this opp.party and opp.parties are not liable to pay the compensation claimed by the complainant. Hence the opp.parties prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is deficiency in service on the part of the opp.parties.<br /> 2. Reliefs and costs.<br /> <br /> <br /> For the complainant PWs.1 to 3 are examined. Ext.P1. P9 are marked.<br /> <br /> For the opp.party DW.1 2 are examined. Ext. D1 to D7 are marked.<br /> <br /> Points: <br /> <br /> There is no dispute that the vehicle KL-2L/2383 is a passenger carrying commercial vehicle and at the time of accident the vehicle had a valid insurance policy issued by the opp.party. The grievance of the complainant is that despite the fact that the vehicle had a valid insurance the claim submitted by him with supporting documents was not allowed by the opp.parties. According to the opp.parties there is suppression of material facts on the side of the complainant and violation of policy conditions. One of the main contention of the opp.parties is that the owner of the vehicle has changed the driver who was driving the vehicle at the time of incident. It is argued that in Ext.D2 claim intimation letter the complainant himself has informed the opp.parties that one Shereef was driving the vehicle at the time of occurrence. But in Ext.D3 claim form it is stated that one Jayakumar was <br /> driving the vehicle at the time of incident. The definite contention of the opp.parties is that the name of driver was changed as the driver who was actually driving the vehicle had no valid license to drive a commercial vehicle and this aspect is corroborated by the eraser and overwriting in column No.4 of Ext. D3. In column No.4 of Ext. D3, the name, address and age of the driver are erased and written. The license number and badge number are also seen erased and then written. The erasers and over writing are glaring and even a layman can detect them. In no other part of Ext.D3 such erasers and over writings are seen from which the only inference that can be drawn is that the name, address, age, driving license number and badge number of the driver are corrected in Ext. D3. The case of the complainant in para 8 of the complaint is that at the time of filling the claim form Shereef another driver of his has written mistakenly his name instead of Mr. Jayakumar, the actual driver and when the company’s staff noted the mistake Shereef immediately corrected the mistake. That argument does not appeal to us. On a perusal of Ext. D3 we are of the view that it is a deliberate attempt and not an accidental one.<br /> <br /> <br /> As argued by the opp.parties the other circumstances also have to be taken into account. Ext. D2 which gives the earliest version of the incident which was furnished by the complainant himself shows that the driver of the vehicle at the time of accident is one Shereef. Another aspect is that though the complainant would claim that he reported the incident immediately to the police Ext.P2 GD extract shows that the same was prepared on 14.9.2004. On a perusal Ext.P2 it can easily be inferred that it was prepared as narrated by the complainant because the Head Constable who prepared Ext.P2 has no occasion to see the damaged vehicle which was removed from the place of occurrence immediately after the accident. It has come in evidence that the damaged vehicle was transferred to TVS workshop at Thiruvananthapuram and the Head constable who prepared Ext.P2 has no case that he had gone to Thiruvananthapuram and prepared Ext.P2. So no credibility can be attributed to Ext.P2<br /> <br /> Another contention of o9pp.parties is that the vehicle sustained damages from some incident other than the one sought to be proved. It is argued by the opp.parties that the vehicle has been shifted from the place unauthorisedly before conducting spot survey which is a violation of policy condition. The learned counsel for the opp.parties argued that the shifting of the vehicle before spot survey is with a view to suppress the real reason for sustaining damages. It is further argued that Ext. D6 investigation report would reveal that no accident as alleged has taken place to the vehicle at the alleged place. PWs.1 and 3 have admitted that there were no eye witnesses to the incident. These aspects also raises serious doubts about the credibility of the accident alleged.<br /> <br /> Another aspect to be noted is that PW.3 who claim to be driving the vehicle at the time of incident and sustained injuries in the incident and had undergone treatment at a hospital did not produce the medical certificate from the hospital where he had under gone treatment. Had he produced the medical certificate it would have given credibility to his version that he was driving the vehicle at the time of incident and that the accident occurred at Banglamkunnu as alleged.<br /> <br /> Another important aspect is that the complainant did not produce the trip sheet of the vehicle despite the fact that the same was called for by the opp.parties as per Ext.D7. No explanation is forthcoming for the non production of the same. PW.1 has admitted in cross examination that the trip sheet is a mandatory document to be kept in a commercial vehicle by the driver. There is force in the contention that the trip sheet was suppressed deliberately and had the same been produced the identity of the real driver at the time of accident would have been revealed. The erasers and over writings in Ext.D3 claim form, the difference in the name of drivers who was driving the vehicle at the time of accident in Ext. D2 and D3, the removal of the vehicle from the place of accident without conducting spot survey delay, in reporting the occurrence to police, non-production of trip sheet etc. raises suspicion and the complainant failed to explain them satisfactory.<br /> <br /> It is well settled that a contract of insurance rests on utmost good faith. The discrepancies pointed out above and Ext. D2 to Ext.D6 lent support to the contention of the opp.parties that the damages to the vehicle <br /> was sustained from an incident other than the one sought to be proved and that the driver of the vehicle at the time of incident has been changed deliberately. The non-production of trip sheet also supports the case of opp.party that there is suppression of material facts and violation of policy condition. From the available materials we are of the view that there is no ground to interfere with the rejection of the claim by the opp.parties and that there is no deficiency in service on their part. Point found accordingly.<br /> <br /> <br /> <br /> <br /> In the result the complaint fails and the same is hereby dismissed. No costs.<br /> <br /> Dated this the 8th day of September, 2008<br /> <br /> <br /> I N D E X<br /> <br /> List of witness for the complainants<br /> PW.1. – PW.1. – Nazarudeen<br /> PW.2. – Shereef<br /> PW.3. – Jayakumar.<br /> <br /> List of documents for the complainant<br /> P1. – Policy certificate<br /> P2. – GD entry<br /> P3. – R.C. Book<br /> P4. – receipt dt. 18.10.2004<br /> P5. – Debit invoice dt. 30.9.2004<br /> P6. – lewtter dated 18.10.2004<br /> P7. – Letter dated 3.12.2004<br /> P8. – Advocate notice<br /> P10. – License and Badge<br /> <br /> List of witnesses for the opp.parties<br /> DW.1. – N. Raju<br /> DW.2. – Muraleedharan Nair<br /> <br /> List of documents for the opp.parties<br /> D1. – True copy of policy<br /> D2. – Claim Intimation<br /> D3. Claim form original<br /> D4. – Letter send by Surveyor and Loss Assessor to the complainant dt. 10.9.04<br /> D5. – Survey report original<br /> D6. – Investigation report<br /> D7. – Letter sent by Oriental Insurance Co. Ltd. To the complainant dt. 9.11.2004<br /> <br />