Sri. N. Premkumar (Member): 

                        The complainant filed this complaint against the opposite parties for getting a relief from this Forum.

                        2. The facts of the complaint is as follows:  The complainant is the owner and possessor of a Mahindra Jeep bearing Reg.No.KL-3E/3085.  The opposite parties are the insurer of the said vehicle.

                        3. The said vehicle was involved in an accident on 27.7.02 at Kallupalam, Puramuttam village while the son of the complainant Mr. Ajay Mathew was driving the jeep.  As a result of the accident a fellow traveler injured and died.  The vehicle was also completely damaged.  As the vehicle was fully insured at the time of accident, the opposite parties are liable to compensate for the loss sustained to the vehicle.

                        4. The vehicle was effectively repaired in a workshop as advised by the opposite parties.  The complainant incurred heavy expenses for the repair of the vehicle.  He intimated opposite parties for compensating the expenses incurred for the repair of the vehicle.  But the opposite parties turned down the requests.  That has caused the complainant severe mental agony, inconvenience and sufferings.  Opposite parties are liable for it.  Therefore, he prays for allowing Rs.75,000/- as compensation for purchase of spare parts and expenses incurred for repair of the vehicle, Rs.50,000/- as compensation for mental agony and sufferings, Rs.5,000/- for various other expenses and Rs.5,000/- as cost from the opposite parties.  Hence this complaint.

                        5. The opposite parties entered appearance and filed version stating that complaint is not maintainable either in law or on facts and it is liable to be dismissed in limine.  But they admit that complainant is the registered owner of the said jeep and they issued an insurance policy, which was valid from 8.7.02 to 7.7.03.  They also admitted the accident on 27.7.02 to the insured jeep.  But they denied that the person who driven the jeep at the time of accident was not Ajay Mathew but a mechanic who do not have a valid licence.  They had made a private investigation regarding the incident.  It revealed that on the date of accident, the jeep was being driven by a mechanic, by name Thankachan who had no driving licence.  For claiming insurance benefits, a story was manipulated by the complainant, stating that, his son Ajay Mathew who had a valid driving licence, had driven the vehicle at the time of the accident.

                        6. The statement furnished by the said Ajay Mathew, dated 20.8.02 is that he had sustained injuries on the chest due to hit on steering wheel, and due to severe chest pain, he had undergone treatment at Poyyanil Hospital, Kozhencherry.  On investigation it was revealed that he had not undergone any treatment at that hospital.  Subsequently, he furnished another statement that his earlier version of treatment at Poyyanil Hospital is not correct and that he had not undergone any treatment.  The accident being a serious one, if Ajay Mathew, was actually driving the vehicle at the time of the accident he would have sustained some injury.  This would show that an unlicensed driver was driving the vehicle, and he was replaced by a person who holds a valid license.  Therefore, the complainant is not entitled to claim any amount as he had committed fraud and concocted a story to cheat for driving illegal gain.  The Koipuram police had filed a charge sheet in accordance with the false story put forward by the complainant.  Moreover, the newspaper reports dated 28.7.02, in Malayala Manorama and Kerala Kaumudi would reveal the real incident, that the mechanic was driving the vehicle at the time of accident.

                        7. They also stated that without admitting the liability to pay any damages, they deputed a surveyor for assessing the damages to the jeep and he had submitted a survey report stating that the complainant is entitled to a very meagre amount.  In the circumstances, the complainant is not entitled to any amount as damages and therefore they prays for the dismissal of the complaint.

                        8. On the above pleadings, the following points are raised for consideration:

(1)   Whether the complaint is maintainable?

(2)   Whether the relief sought for in the complaint are allowable?

(3)   Compensation & Cost?

           9. The evidence of this case consists of the oral evidence of the complainant who has been examined as PW1 and documents produced by him, which are marked as Exts.A1 to A11(b) on the basis of the proof affidavit.  Ext.A1 is the attested copy of R.C. Book relating to KL-3E/3085, Ext.A2 is the copy of permit of the said vehicle.  Ext.A3 is the copy of insurance policy certificate No.441900/2003/2558 dated 8.7.02 to 7.7.03.  Exts.A4 to A4(f) are the bills for repairing the  vehicle on different dates.  Ext.A5 is the copy of FIR from Koipuram Police station in respect of the accident.  Ext.A6 is the copy of seen mahazar prepared by police.  Ext.A7 is the copy of mahazar.  Ext.A8 is the AMVI report.  Ext.A9 is the final report.  Ext.A10 is the copy of notice sent to the 1^st opposite party.  Ext.A10(a) is the postal receipt of Ext.A10 notice.  Ext.A10(b) is the acknowledgement card of Ext.A10.  Ext.A11 is the office copy of notice issued to 1^st opposite party.  Ext.A11 (a) is the postal receipt and Ext.A11(b) is the acknowledgment card of Ext.A11

            10. For the opposite parties, two witnesses were examined as DW1 and DW2 and Exts.B1 to B3(a) were marked.  Ext.B1 is the spot survey report.  Ext.B2 is the final survey report.  Ext.B2(a) is the re-inspection report.  Ext.B3 is the policy and Ext.B3(a) is the terms and conditions of the policy.  After the closure of evidence, both parties heard.

            11. Point No.1:-  The complainant is the consumer of the opposite parties and the dispute herein is a consumer dispute.  Therefore, the 1^st point is answered against the opposite parties.

            12. Points 2 & 3:-  The complainant’s case is that he insured his vehicle with opposite parties.  While the policy was in force the vehicle involved in an accident and thereby completely damaged.  He incurred a huge amount for repair works.  The opposite parties denied the claim.  Therefore, the complainant filed this complaint for getting an order for the realization of the expenses of repairing of vehicle along with compensation and cost.  To prove the case, complainant produced Exts.A1 to A11(b) documents.  The opposite parties denied the claim stating that the person who driven the vehicle at the time of accident has no valid driving licence, which is in violation of Ext.B3(a) policy conditions.

            13. On going through the evidence, it is seen that there is no dispute regarding the Ext.A3 policy and the accident occurred on 27.7.02 to the insured jeep.  The only dispute is with regard to the person who had driven the vehicle at the time of accident.  The opposite parties contention is that a mechanic named Thankachan has driven the vehicle who had no valid licence at that time.  For claiming the insurance benefit, complainant’s son Ajay Mathew who had a valid driving licence is falsely inserted in his claim.  They also claim that they deputed a private investigator and revealed that Ajay Mathew was not the driver at the time of accident and it was driven by a mechanic, by name Thankachan.  They also stated that the report in Malayala Manorama daily and Kerala Kaumudi daily would also reveal the real incident.  But the opposite parties have not adduced any evidence to substantiate their contention.

            14. The opposite parties also alleged that the statement furnished by Ajay Mathew, dated 20.8.02 reveals that he has also sustained injuries and had undergone treatment at Poyyanil Hospital, Kozhencherry.  They also state that by a subsequent statement Ajay Mathew changed his earlier version that he has not undergone any treatment.  Even though, there would have a possibility of injury in the said incident, his false story is unbelievable.  Even though, the opposite parties claim to have investigated the incident, they failed to produce any investigation report none other than Ext.B1 survey report.

            15. As per Ext.A9 charge sheet of Crime No.178/02, it is seen that Ajay Mathew has driven the vehicle at the time of accident.  Even though the opposite parties have a different view with regarding to the person who had driven the vehicle, they have not cared to make any objection to the final report in Crime No.178/02.  Since the final report was accepted by the concerned Magistrate. Its veracity cannot be questioned by this Forum.  Moreover by verifying Ext.B1 survey report and Ext.A9 final report, we are of the view that Ext.A9 final report is more reliable and admissible as it was prepared by a competent authority.  There is no reason to disbelieve Ext.A9 final report filed by police.  Therefore, we found that the vehicle was driven by Ajay Mathew who had a valid driving license and hence this complaint is allowable. 

            16. On considering the expenses incurred for the repairing of the vehicle, complainant has produced Exts.A4, A4(a), A4(b), A4(c), A4(d), A4(e), A4(f)bills.  As per the said bills total amount is only Rs.33,664.42.  As per Ext.B2 final survey report it is seen that the assessed amount is calculated as Rs.25,308/-.  We go through Ext.B2 and find that the amount calculated is based on the terms and conditions of Ext.A3 policy.  Therefore, the complainant is entitled only to get the amount as per Ext.B2.  The non-payment of the said amount is a deficiency on their part in discharging their contractual obligation.  Hence this complaint can allowed with interest, compensation and cost.

            17. In the result, this O.P is allowed and thereby the complainant is allowed to realise Rs.25,308/- with interest at the rate of 9% per annum from the date of this O.P till this date and thereafter at 6% interest per annum till the realisation of the whole amount from the opposite parties with a compensation of Rs.1,500/- (Rupees One thousand and five hundred only) and cost of Rs.500/- (Rupees five hundred only).  The opposite party is also directed to pay the amount so awarded in favour of the complainant within two months from the date of receipt of this order, failing which interest for the whole amount will follow at 9% per annum till the whole payment.

            Declared in the Open Forum on this the     28^th day of November, 2008.

                                                                                                                        N. Premkumar,

                                                                                                                             (Member)

Sri. Jacob Stephen (President)                   :

Smt. C. Lathika Bhai (Member)                  :

Appendix:

Witness examined on the side of the complainant:

PW1   :  K.V. Mathew

Exhibits marked on the side of the complainant:

A1       : Attested copy of R.C. Book relating to KL-3E/3085

A2       : Photocopy  of permit in respect of a contract carriage.

A3       : Photocopy of insurance policy certificate No.441900/2003/2558 dated 8.7.02 to   

             7.7.03 issued by the Oriental Insurance Co. Ltd. to the complainant.

A4 to A4(f):  Bills for repairing of vehicle on different dates.

A5       : Photocopy of FIR

A6       : Photocopy of scene mahazar

A7       : Photocopy of mahazar. 

A8       : Photocopy of AMVI report. 

A9       : Photocopy of final report.

A10     : Photocopy of notice sent to the 1^st opposite party.

A10(a):  Postal receipt of Ext.A10 notice.

A10(b): Acknowledgement card.

A11     :  Photocopy of notice issued to 1^st opposite party. 

A11(a): Postal receipt

A11(b) : Acknowledgment card.

Witness examined on the side of the opposite parties:

DW1   : Abhilash. K.S.

DW2   : Ansath Hussain. K.P.

Exhibits marked on the side of the opposite parties:

B1       : Spot survey report.

B2       :  Final survey report. 

B2(a) : Re-inspection report. 

B3       : Policy Schedule

B3(a)  : Terms and conditions of the policy.