D.O.F. 01.07.2009

                                                                                                                            D.O.O. 26.03.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K. Gopalan                :       President

                                      Smt. K.P. Preethakumari :       Member

Smt. M.D. Jessy               :       Member

Dated this the 26^th day of March, 2011.

C.C.No.174/2009

Vigesh M.M.,

S/o. Kannan Nair,

Kizhakke Parambu House,

P.O. Varam, Kannur                                             :         Complainant

United India Insurance Co. Ltd.,

Branch Office, Shenoy’s Building,

Temple Road                                                        :         Opposite Party

Payyannur, Kannur – 670 307

(Rep. by Adv. V.V. Gopinathan)

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 8,600 with compensation of an amount of ` 10,000 with 8% interest and cost of this proceedings. 

The brief facts of the case of the complainant is as follows :  Complainant is the RC owner of the vehicle KL 13/R/4448.  The opposite party is the insurer. On 14.01.2008 at about 9.30 pm when the complainant return back to his home by the motor bike as a pillion rider,  another motor cycle hit against the motor cycle of complainant and thereby sustained grievous injury and vehicle was damaged seriously. The vehicle was taken to workshop and survey was conducted by the opposite party.  Complainant repaired the vehicle thereafter.  The complainant submitted the claim before the opposite party.  The opposite party rejected the claim on the ground that there was no required documents and the vehicle was driven by Vigesh who was not having a valid driving license.  Complainant actually supplied all the documents necessary for considering the claim.  Complainant had produced all the relevant documents including bills showing the actual amount spent by the complainant to repair the vehicle.   The complainant had spent a total amount of ` 8,600 to repair the vehicle.  The complainant is entitled to get that amount as compensation.  Hence this complaint.

          Pursuant to the notice opposite party entered appearance and filed version.  The averments of the opposite party in brief are as follows :  The complainant was returning home by a motor cycle as a pillion rider is not correct but he was riding the motor cycle at the relevant time of the alleged accident.  The complainant who was the registered owner of the insured of the motor cycle was not having a proper valid and effective driving license to drive the class of vehicle involved in the accident.  The Chakkarakkal Police has charge sheeted the complainant for driving the vehicle without holding a proper and valid license.

The driving of the vehicle without valid license is gross violation of the terms and conditions of the policy as well as the provisions of Motor Vehicles Act.  Hence he is not entitled to seek any claim for compensation.  There is no deficiency in service on the part of opposite party.  Hence to dismiss the complaint.  On the above pleadings the following issues have been taken for consideration.

(1)   whether there is any deficiency on the part of opposite party?

(2)   Whether the complainant is entitled for the relief as prayed in the complaint?

(3)   Relief and cost?

The evidence consists of PW1, DW1, Ext.A1 to A3, Ext.X1 to X12 and Ext.B1.  Opposite party has no oral evidence.

Issues 1 to 3:

          Admittedly the complainant was the registered owner and insured of the motor cycle KL/13/R/4448.  Complainant’s case is that he was a pillion driver when the alleged accident was taken place.  Opposite party on the other hand contended that the complainant himself was driving the vehicle at the time of accident.  He was not having a proper and valid license to drive the class of vehicle involved in the accident.  Hence they are not liable for payment of any compensation.

          It can be seen that police has taken case against complainant under section 279, 338 of IPC and Section 3(1) r/w 181 of Motor Vehicle Act.  Complainant produced copy of final report in Crime No.128/08.  Copy of order in CC 275/08 and Order in CC 339/08.

          First question to be answered is who was driving vehicle at the time of accident and whether driver has been holding valid driving license.  Opposite party contended that complainant is the driver whereas complainant contended that he was only a pillion rider.  The evidence of CW1 shows that Vijesh was driving the vehicle KL/13R/444 motor bike and the case was registered under Section 279,338 of IPC and Section 3(1) r/w 181 of Motor Vehicles Act.  The FIR Ext.X6 shows only that while the complainant was driving from the side of Valiyannur to the side of Varam, a vehicle coming from opposite side, negligently dashed with his vehicle.  Ext.A1 final report shown that the complainant driving the motor vehicle bearing No.KL13/12/4448.  The prosecution case is that on 14.01.2008 at 9.30 pm and accused has driven the motor cycle bearing registered No. KL13/R/4448 without valid license on the public road in a rush and negligent manner and when it reached near Varam UP school it dashed against another motor cycle KL13H5531 and the rider of the motor cycle sustained injury.  The judgment in CC 339/08 clearly stated the matter was settled and he was declared hostile.  PW1, 2 and 3 are seen declared hostile.  The accused acquitted under the above situation.  That does not means the prosecution case is false.  The evidence of ASI of Police, Chakkarakkal is very material piece of evidence.  He has stated that “KL 13-R/4448 motor bike HmSn¨p h¶Xv ]cm-Xn-¡m-c-\mb hntKjv BWv.”  He has also stated that “B NmÀPnse {]Xn-bmb hntKjn\v A]-I-S-k-T-`-h-k-a-b¯v ssek³kv D­m-bn-cp-s¶¶v ]d-ªm icn-b-Ã. Moreover he has stated in re-examination that “driving license lmP-cm-¡m³ notice sImSp-¯n-«pT lmP-cm-¡n-bn-Ã.” Anyway complainant admitted he has no license at the time of alleged incident.

          Complainant in his cross examination deposed that “Renshil-sâ t]cn tIkp-­m-bn-cp-¶n-Ã.  {]Xn-bpT B¡n-bn-cp-¶n-Ã.  At\-z-j-W-k-a-bt¯m Trial stage-tem Renshil-s\ {]Xn-bm-¡n-bn-cp-¶n-Ã. Private complaintþ Renshil BWv h­n HmSn-¨Xv F¶p ]d-ªn-cp-¶p.  Renshilþsâ t]cn t]meotkm tImS-Xntbm charge frame sNbvXn-«n-Ã.”

          In the light of the above evidence it cannot be said Renshil was driving the vehicle.  In criminal case the complainant herein is the accused and he has no burden to say who was the driver. But that is not the position herein.  He has the burden to say who was the driver at the relevant time of the alleged accident. He has the burden to prove who was the driver, but he failed to do so.  In the proof affidavit complainant stated that it was his friend who had driven the vehicle at the time of accident.  That person is not examined before the Forum, and the reason is known to the complainant only.   There is no reasonable excuse for not taking steps to examine him before the Forum in order to prove that the complainant was not the person who had actually driven the vehicle.  Since he was the friend of complainant he could have brought him before the Forum to get him examined.  In the complaint he has not mentioned who was the driver though he is the best person to say who was the driver.  In evidence affidavit it is stated one of his friends has driven the vehicle.  But he has not given even his name.  It has to be taken into account that this is a case in which the claim of the complainant rejected on the ground that at the time of accident the vehicle was driven by the complainant.  Under such circumstances complainant should have definite answer and he has the liability to explain who was actually the driver of the vehicle.  There is not enough materials to prove the matter.  He was the only person admitted in the hospital in connection with the vehicle KL13/R/4448 is concerned.  Police also charged crime against complainant.  Ext.A1 final report also shows that complainant was driven the vehicle hence nothing can be found wrong rejecting the claim of the complainant. 

          Unless and until complainant succeed in bringing out the truth who was driving the vehicle the Forum cannot jump into the conclusion that the denial was wrong.  There was no genuine attempt on the part of the complainant to bring the actual proof before the Forum regarding the person who was driving the vehicle.  Hence we are of the opinion that complainant is not deserving for the claim.

          Issue No.1 to 3 are found against the complainant.  In the result complaint is dismissed.  No order as to costs.

          In the result the complaint is dismissed.

                     Sd/-                         Sd/-                         Sd/-

       President                  Member                   Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of Final Report of Kerala Police.

A2.  Order from CJM Court, Thalassery.

A3.  Judgment of CJM Court, Thalassery dated 14.08.09.

Exhibits for the opposite party

B1.  Policy Schedule

Exhibits for the Court

X1.  Case Diary.

X2.  Certificate of Insurance.

X3.  Motor (final) Survey Report.

X4.  Letter of claim dated 19.03.2008.

X5.  Motor claim form.

X6.  Copy of FIR.

X7.  Copy of letter dated 08.08.2008.

X8.  Returned letter.

X9.  Quotation.

X10.Cash bill.

X11. Labour/consumable bill.

X12. Cash bill.

Witness examined for the complainant

PW1.  Complainant.

Witness examined for the opposite party

Nil

Witness examined for the Court

CW1.  Manoharan M.K.

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT