By Smt. E. Ayishakutty, Member,
Brief facts of the case:-
1. Complainant who is the registered owner of the vehicle KL10 W-7027 Tata 407, had insured under a package policy with opposite party as per policy No.101001/31/08/01/00007691. During the period of policy the vehicle met with an accident at Kalikavu, Mukkundu on 18-02-09. A car with Registration No.KL13 J 7794 which was coming from the opposite direction hit the vehicle KL10 W 7027 and due to the shock of hit the vehicle Tata 407 was move forward and fell into a field and the vehicle was totally damaged. The accident was registered by the Kalikavu police station as crime No.39/09. The accident was intimated to opposite party and claim form with necessary documents was submitted by the complainant. After complying all the procedures complainant entrusted the vehicle to “Achanu and Brothers Lorry Body Builders” for repair. Opposite party appointed a surveyor for inspecting and assessing the damage. Surveyor submitted a detailed report with entire cash bills of the spare parts. But opposite party repudiated the claim of complainant stating that the vehicle was overloaded at the time of accident. Complainant spent a huge amount for the repair of the vehicle and it is the only source of income for his livelihood. He suffered much financial loss and mental agony due to the act of opposite party. Hence the complainant filed this petition before the Forum alleging deficiency of service on the part of opposite party.
2. Complainant prays for directing opposite party to give him Rs.2,58,770/-(Rupees Two lakh, fifty eight thousand, seven hundred and seventy only) as claim amount, Rs.25,000/- as compensation for mental agony and hardships and cost of Rs.5,000/-.
3. Opposite party filed version. He admitted the policy of the vehicle during the period and the accident and damage of the vehicle also admitted. Opposite party deputed the insurance Surveyor Mr.Ashraf to assess the extent of loss and damages and cost of repairs and replacement. Then opposite party made an enquiry about the accident. It reveals that at the time of accident the vehicle was overloaded. In the cabin of the alleged vehicle there is 5 persons including driver were travelling at the time of accident. It is clear violation of insurance policy conditions and so opposite party is not liable to indemnify the claim of the complainant. Complainant's claim for Rs.2,58,770/-(Rupees Two lakh, fifty eight thousand, seven hundred and seventy only) is totally baseless and without evidence. The expense incurred by the complainant for repairing the vehicle as per the survey report is Rs.55,942.50(Rupees Fifty five thousand, nine hundred and forty two and fifty paise only) and the extent of liability of opposite party is only this amount if he is to be found liable. Opposite party repudiated the claim with sufficient reasons and hence the complaint is to be dismissed with cost of opposite party.
4. Evidence consists of affidavit and documents filed by the complainant. Ext.A1 to A4 marked on the side of him. Opposite party filed counter affidavit. Ext.B1 to B3 marked on behalf of opposite party.
5. The points for considerations are:-
(i) Whether opposite party is deficient in his service
(ii) If so what is the reliefs and costs.
6. Point (i):-
Opposite party admits the existence of the package policy of the alleged vehicle at the time of accident. The damages in the accident also admitted by him. Opposite party repudiated the claim of the complainant stating that at the time of accident the alleged vehicle was overloaded. As per Ext.A3 the Registration Certificate of the vehicle, the maximum seating capacity in the cabin is 3 persons including driver. Opposite party alleged that five persons were travelled in the vehicle at the time of accident and the accident occurred due to overload. But in the First information Report prepared by Kalikavu Police it is stated that a car with registration No.KL13 J 7794 which was coming from opposite side with over speed hit the vehicle KL10 W 7027 Tata 407 and the vehicle was move forward and overturned. The vehicle was damaged and the driver and other persons in the vehicle were wounded. The police charged the offense against the car driver. At the time of hearing the counsel for opposite party also admitted it. So the contention taken by opposite party for repudiation of the claim by alleging the overload is baseless and unjustifiable. In the circumstances we hold that the repudiation of the claim by opposite party amounts deficiency of service.
7. Point (ii):-
Complainant claims Rs.2,58,770/-(Rupees Two lakh, fifty eight thousand, seven hundred and seventy only)for the damages sustained to him for the repair of the vehicle along with cost and compensation of Rs.30,000/-(Rupees Thirty thousand only). But Ext.B2 the survey report produced by the insurance surveyor shows that the total assessment made by him for the damages is Rs.55,942.50. In our view the complainant is entitled the amount of Rs.55,942.50 as assessed by the surveyor. Complainant is also liable to get 12% interest per annum for this amount as compensation for the repudiation of the claim without sufficient grounds.
In the result the complaint is allowed and opposite party is directed to give a sum of Rs.55,942.50(Rupees Fifty five thousand, nine hundred and forty two and fifty paise only) to the complainant with 12% interest per annum from the date of complaint till realisation of the order along with costs of Rs.2,000/- (Rupees two thousand only) within one month from the date of receipt of copy of this order.
Dated this 22nd day of March, 2011.
Sd/-
C.S. SULEKHA BEEVI, PRESIDENT
Sd/-
MOHAMMED MUSTAFA KOOTHRADAN, Sd/-
MEMBER E. AYISHAKUTTY, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A4
Ext.A1 : Photo copy of the First Information Report dated, 23-2-2009 prepared
by P. Krishnakumar, ASI of Kalikavu Police Station.
Ext.A2 : Photo copy of the repudiation letter dated, 30-11-2009 from opposite
party to complainant.
Ext.A3 : Photo copy of the Registration Certificate of vehicle No.KL10 W-7027
Ext.A4 : Photo copy of the First Information Report dated, 23-2-2009 prepared
by P. Krishnakumar, ASI of Kalikavu Police Station.
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Ext.B1 to B3
Ext.B1 : Motor claim form submitted by complainant to opposite party.
Ext.B2 : Survey Report dated, 16-7-2009 produced by M.Ashraf, Insurance
Surveyor to opposite party.
Ext.B3(series) : Cash Bills (7 Nos.)
Sd/-
C.S. SULEKHA BEEVI, PRESIDENT
Sd/-
MOHAMMED MUSTAFA KOOTHRADAN, Sd/-
MEMBER E. AYISHAKUTTY, MEMBER
