IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 219-2010 DATED 13.07.2010<br /> ORDER<br /> <br /> Complainant N.Nagaraj, <br /> S/o M.N.Narahari Rao,<br /> No.1498/5, Ramaiah Street,<br /> Krishnamurthy Puram, Mysore.<br /> <br /> (By Sri. T.Purnakumar, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Divisional Manager,<br /> United India Insurance Company Ltd., Shivarampet, Mysore.<br /> <br /> (By Sri. B.N.Shashidhara, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 27.05.2010<br /> Date of appearance of O.P. : 11.06.2010<br /> Date of order : 13.07.2010<br /> Duration of Proceeding : 1 MONTH 2 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under section 12 of the C.P.Act against the opposite party, alleging deficiency in service that is, repudiating the claim in respect of the damage caused to the lorry in the accident.<br /> <br /> 2. The opposite party in the version has contended that, in violation of the condition of the permit, in the goods vehicle, passengers were traveling and hence, the complainant is not entitled for any reliefs.<br /> <br /> 3. To prove the claim, the complainant has filed his affidavit and produced certain documents. On the other hand, Assistant Manager of the opposite party has filed his affidavit and produced certain documents. For the complainant, written arguments are filed. Further, we have heard the arguments of the learned advocate for the complainant as well as opposite party and perused the records.<br /> <br /> 4. Now, we have to consider, whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs?<br /> <br /> 5. Our finding on the point is partly in affirmative, for the following reasons.<br /> <br /> REASONS<br /> <br /> 6. The fact that, the complainant is a owner of the vehicle bearing No.KA-09-A-6490 and that it was covered by the insurance policy issued by the opposite party and that on 05.04.2009, it met with accident and was damaged, there is no dispute. Also, it is fact that, the complainant had submitted claim to the opposite party along with the bills and the documents and that has been repudiated by the opposite party on the ground of violation of the permit.<br /> 7. Hence, material point to be decided is that, the complainant has violated the permit condition and repudiation of the claim by the opposite party is justified? Copy of the repudiation letter sent by the opposite party to the complainant is at page 27 of the records. It is stated therein that, “due to violation of the permit that, your vehicle was carrying passengers against the permit, we are unable to settle the claim”. As could be seen from the copy of the RC of the vehicle, copy of which is at page 25 of the records, it is goods carrying vehicle. Xerox copy of the FIR is at page 41 and copy of the complaint at page 44 of the records. Considering the facts stated therein, prima-facie, it is clear that, against the permit, more than the permissible limit the passengers were traveling in the vehicle at the time when it met with an accident. Learned advocate for the complainant argued that, there is no evidence to substantiate the fact that, the vehicle was carrying passengers at the time of the accident. But, as noted above, copy of the FIR as well as complaint, prima-facie establish that, the passengers more than permissible limit were traveling. There is no material on record that, false complaint or FIR has been registered. Hence, the contention of the opposite party so far concerned that more than permissible limit persons were traveling in the vehicle, has to be accepted.<br /> <br /> 8. For the complainant, a ruling of our Hon’ble State Commission reported in I (1999) CPJ 709 is relied upon. The Hon’ble State Commission in this ruling has referred the decisions of the Hon’ble National Commission as well as of the Hon’ble Apex Court and held that, “It is now well-settled that, mere carrying of a passengers in a goods vehicle itself would not enable the insurance company to repudiate the claim of the insured unless the insurance company establishes by acceptable evidence that that said event has contributed to the accident in question.” Hence, in the case on hand, for the opposite party, there is no evidence much less acceptable, to hold that, the fact of carrying passengers in the goods vehicle contributed for the accident. No contrary law or authority is brought to the notice to the Forum for the opposite party. Hence, we have no reasons to take different view. In the result, repudiation of the claim by the opposite party on the said ground is not justified. <br /> <br /> 9. Now, coming to consider the quantum, complainant has claimed that, he has paid in all Rs.1,82,182/-. Though, the complainant in this regard has produced copy of the letter addressed to the opposite party sending the original bills to the said extent, which fact is not denied by the opposite party, as on record, bills or copies there of, are not available. However, on the other hand, in 6th paragraph of the version, it is stated by the opposite party that, the surveyor has assessed the loss at Rs.96,949/-. Hence, even according to the opposite party, loss was assessed to the said extent. Hence, in the absence of any other material on record to substantiate the claim of the complainant atleast admitted loss assessed is Rs.96,946/- and it is rounded to Rs.97,000/-. <br /> <br /> 10. The complainant has claimed interest at the rate of 12% p.a. Further, he has claimed a sum of Rs.1,20,000/- compensation towards mental agony for non-settlement of claim. Considering this, interest as well as compensation, both cannot be awarded. Since, repudiation of the claim is not justified, considering the facts and the circumstances, claim of interest at the rate of 12% p.a. is just and reasonable. <br /> <br /> 11. Accordingly, we answer the point partly in affirmative.<br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.97,000/- to the complainant with interest at the rate of 12% p.a. from the date of claim till realization. This amount shall be paid within a month from the date of this order.<br /> 3. Further, opposite party is directed to pay a sum of Rs.5,000/- to the complainant towards cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 13th July 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />