KERALA STATE CONSUMER DISPUTE REDRESSAL COMIISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No 691/2009

JUDGMENT DATED : 31.08.2010

PRESENT:-

SMT. VALSALA SARANGADHARAN       :      MEMBER

SHRI. M.V. VISWANATHAN                      :      JUDICIAL MEMBER

SHRI.M.K.ABDULLA SONA                      :     MEMBER

APPELLANTS

M/s. Oriental Insurance Company Ltd.,

Branch Office, Neduveli building,

Pazhavangadi, Ranny,

Pathanamthitta.

{Rep. by its Divisional Manager,

Divisional Office – 1, Thakaraparampu,

Thiruvananthapuram.)

                                ( Rep. by  Adv. Sri. Varkala  B. Ravikumar)

2.        M/s. Oriental Insurance Company Ltd.,

Divisional Office,

Thiruvalla{  Rep. by its Divisional Manager, Divisional Office-I

      Thakaraparampu,

      Thiruvananthapuram.)

                                          ( Rep. by  Adv. Sri. Varkala  B.  Ravikumar)

 RESPONDENT

,

          Thomas Pappachan

          Thekkeveetil House,

          Thuvayoor South P.O

           Kadampanadu

JUDGMENT

SHRI. M.K. ABDULLA SONA             :  MEMBER

This appeal prefers from the order passed by the CDRF, Pathanamthitta, in the file No.  O.P. 62/05 order dated. 11.08.2009.

               The appellants are the opposite parties in the above O.P and the respondent is the complainant.  In short the complainant is assumed to be opposite parties underwent wide policy number 4137-2004.  This is an insurance policy taken by the complainant from the opposite parties for his bus during the period of 12.2.2003 to 11.12.2004 due to an accident the body of the bus was completely damaged.  The bus was repaired at the ABS automobile, Kollam is a private workshop by the opposite parties insurance company. The complainant alleged that he spent an amount Rs. 98,627/- as the repairing charges.  He filed a claim before the opposite parties along with the repairing bills for getting This appeal prefers from the order passed by the CDRF, Kannur in the file of O.P. No. 7/03 dated. 25.10.05. The appellant is the complainant who prepares this appeal from the order of dismissal e repairing charges from the opposite parties.  But the opposite parties have given only an amount of Rs. 38,000/- without considering all the bills.  Due to the financial crisis of the complainant he accepted the amount under protest.  The complainant was claiming the entire amount spend by him for the repairing of the bus.  But the non payments of the full repairing charges by the opposite party is alleged as a deficiency in service.  Hence the complaint.

              The opposite party contented in  their version that their surveyor was inspected the vehicle and assessed a loss as per the service rate.  The assessed labour charge was at Rs. 15,000/- including spot expenses and aloud replacement of 13 spare parts out of which 8 items at 25% depreciation and other items have 50% depreciation. According to the opposite parties the assumed amount by the surveyor is as per the terms and conditions of the policy and the complainant and the repair is aware of it.  After the completion of the repairing works, inspection of the vehicle was also conducted by the opposite parties.  The complainant claim was processed with due application of mind and consistent with the terms of policy.  The opposite parties contented that there is no deficiency in service from their part and prayed for the dismissal of the complaint.

     The evidence consist of proof affidavit of the complaint and the Exts. A1 to A6.   The complainant examined as Pw1.  A proof affidavit was also filed by second opposite party and examined him as  Dw1 and marked Ext. B1.  The surveyor was taken    from the part of the opposite parties.  The Forum below considered all the evidence and hearings of the counsels of both parties.  The Forum below taken a view that the complainant is entitled to get a further amount of Rs. 24,675/- as an amount of Rs. 16,500/- The difference of the amount between the labour charges and  charge assessed by the surveyor and the charges paid by the complainant Rs. 3,000/-  The difference between the amount between the spot expenses paid by the complainant and assessed by the surveyor as Rs. 5,075/- the difference of the amount between the price of parts which have nil depreciation paid by the complainant and assessed by the surveyor.  In the result the complaint was allowed and directed the complainant to release an amount of Rs. 24,675/- as the balance of repairing charges with interest @8% per annum from the date of filing of this complaint in this state and therefore @ 6% interest per annum during the old realization of the amount from the opposite parties.  The complainant  is also allowed to realize an amount of Rs. 2,000/- as cost from the opposite parties

     This appeal prefers from the above impugned order passed by the Forum below.  On this day this appeal came before this Commission for final hearing both counsels for the appellant and respondent are present and the counsel for the appellants is vehemently argued on the amounts of appeal memorandum filed by him.  His main contention is as per the policy conditions, the assessment done by the surveyor is final and binding to the respondent/complainant.  But the counsel for the respondent submitted that they adduced the evidence Ext. A1 to A6 is more sufficient to show that they already spent Rs. 98,627/- as the repairing charges for his bus.  Very same time the counsel for the appellant argued that the appellant is not legally intitled to pay this amount and it is barred by the condition of policy issued by them to the complainant.  This commission heard both sides and perused the entire evidence adduced by both sides and considered  that the appellant Insurance Company did not put the surveyor as a witness in their side to prove the survey report.  But the very same time the appellant admitted the evidence of the complainant Ext. A1 to A6 .  Both sides are not seeing to produce the policy or the copy of the policy. And it is an admitted fact that  as per the policy conditions there is no limit of  amount prescribed by the  insurer through the third surveyor.  In the absence of the oral evidence of the surveyor, it is not in a position to say that how he calculated and assessed the amount of 38,000/- as a total loss.  The counsel for the appellant submitted that he went to examine the surveyor and to produce some other documents to support this case and then prayed for remand the case to the Forum below for the fresh trial.  But we are not seeing anywhere in the case records that the appellant/opposite parties did not take any steps to examine the surveyor as a witness or to produce any office documents before the Forum below.   Suppose the Forum below denied  such an opportunity to the opposite parties  then only he can raised such trial before this commission  otherwise it is nothing but an abused  process of justice.  This Forum and Commission established for the speedy and cost free disposal of cases. Remaining back again this case is nothing but  a causing of delay of justice.  Hence we are not accepting such prayer of the appellant.

     The learned counsel produced two citations before this Commission to support this argument,   They are, United India Insurance  Company Vs. Ajmir Singh Cotton and General Mills and others(1995 KHC) 1292. 1999(6) SCC 400 a year 1999 SC(3027) and National Insurance Company Vs. Sehtiashes (2008)KHC 4326. 208(5)SCC400.  In both cases the fact of that cases  are entirely different from the fact of this case.  In this case, only question is that the amount arised by the surveyor of the opposite parties did not proved through the witness.  At the same time the appellant/opposite parties did not challenge the documentary evidence adduced by the respondent/complainant in this case.  In these circumstances, the Forum correctly and rightly answered all the questions arised in the dispute for consideration.  In these circumstances, we are not seeing any irregularity or illegality in the order passed by the Forum below.  The order passed by the Forum below is legally sustainable and strictly accordance  with the provisions of Law and Evidence.

     In the result, this appeal is allowed in part and modified the result portion.  The complainant is also allowed to realize an amount of Rs. 2,000/- as cost from the parties is hereby  set aside.    In these circumstances,  the cost is not necessary.  Other relief ordered by the Forum below is confirmed.   Both parties are directed to suffer their respective costs.  The appeal disposed accordance with the above modifications answered all the points of the appeal.

                  M.K. ABDULLA SONA               :  MEMBER

                VALSALA SARANGADHARAN   :  MEMBER

                S. CHANDRA MOHAN NAIR       :   MEMBER