ORDER

ORDER Speaking through Smt.Meenakshi Kulkarni, Lady Member.


1. This complaint is filed on 03.11.2008 as per Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to the “Act”) against the Opposite Party (in short the OP) for awarding compensation of Rs.3,50,000=00 towards damage to the vehicle along with 18% interest.


2. The facts of the case in nutshell as is narrated by the complainant are as follows: The complainant is the owner of Cruiser Jeep bearing No. KA.28/M.5523. This was insured with Cholamandalam MS General Insurance Company Ltd. (OP) under Policy No. PVM. 00012841-000-00, Cover Note No.6027959 and the same was valid from 07.02.2008 to 06.02.2009. Unfortunately on 28.03.2008 the said vehicle met with an accident at about 0.30 AM when it was plying on NH-13, Near Agasanal village. Due to the said accident, the vehicle sustained heavy damages as mentioned below; i) Its front show-case was completely crushed and damaged. ii) Radiator was completed compressed and damaged. iii) All doors of the vehicle damages and crushed. iv) Front fiber bumper. v) Both head lights and indicators. This fact of the accident was informed to Horti Police Authorities and the case was registered under P.S. Cr. No.40/2008. The spot panchanama was done and I.M.V. Report and Charge Sheet was made against the driver. The complainant approached the OP for payment of the damages to the said vehicle. But, the OP has failed to do settle the matter till this date. The complainant was using the vehicle to earn his livelihood and his family totally depends upon the earning made by the complainant by the said vehicle. Inspite of repeated requests and demands, OP has failed to pay compensation to the said insured vehicle.



3. The complainant has purchased spare-parts worth Rs.1,50,000=00 and has paid Rs.25,000=00 towards Service Charges. Other miscellaneous expenses incurred by the complainant are Rs.25,000=00. The complainant has in all spent Rs.2,50,000=00 towards repairs and other expenditure of the vehicle. This is because the complainant has availed a loan from the Bank for purchasing the said vehicle. Non settlement of valid claim of the complainant has given great mental agony to the complainant. So, the complainant prays for Rs.50,000=00 towards compensatory cost and Rs.25,000=00 for mental agony. Thus complainant prays to award Rs.3,50,000=00 along with 18% interest from the OP.


4. After receipt of notice, the OP did not appear till the case was posted for the arguments. It was only on the date of arguments OP filed an Application to set aside the exparte Order and filed his objections through the Counsel. In the objections filed by the OP, the OP totally denies the averment made by the complainant as false, frivolous and contrary to the Law and facts of the case. The OP totally denies that the vehicle in question i.e. Tempo Trax bearing Registration No.KA/28/M.5523 was insured as on the date of the accident i.e. 28.03.2008. Further, OP contents that at the time of the accident, the vehicle in question was used for the family function of Rafik Ibrahimsab Tahashildar the person who launched F.I.R. The vehicle was hired for the said family function and was on its way to Solapur. As per the Policy conditions, the policy was valid for the private use. Hence, using the vehicle for the hire purpose is violation of the policy conditions. Hence, the complaint be dismissed with cost. Secondly, OP also contents that the driver of the Tempo Trax was not having valid and effective driving licence as on the date of accident. This also amounts to clear violation of Policy conditions of the vehicle. In addition, the complainant has not furnished necessary documents and the particulars of the accident due to which the claim of the complainant is repudiated.
The OP also denies the purchase of spare-parts worth Rs.1,50,000=00 and payment of Rs.25,000=00 towards its repair charges. No cause of action is arisen to the complainant to file the said complaint. The claim of Rs.3,50,000=00 as a compensation by the complainant is totally false and all these facts were well known to the complainant. Hence, the complaint needs to be dismissed. OP prays to dismiss the complaint with compensatory cost.


5. Both the parties have filed affidavit in lieu of evidence. In the circumstances, the following points do arise for our consideration in deciding the case. They are: (i) Whether OP has rendered deficiency in service to the complainant thereby entitling him to the relief as is sought for? (ii) What Order?

6. Our Findings to these points are as hereunder: i) Affirmative, ii) As per the operative portion of the Order here below.

7. We shall substantiate our findings on the following:

R E A S O N S

POINT NO.1: The complainant Counsel has submitted 8 documents in support of his case. They are marked as Exhibit C1 to C8. The advocate for OP has filed 3 documents in support of his case. They are marked as Exhibit OP1 to OP3. Exhibit C1 is the F.I.R. Exhibit C4 is the spot panchanama and Exhibit C5 is the Motor Vehicle M.V.I. Report. Exhibit C6 is the Charge Sheet. As Exhibit C7 is the xerox copy of the Insurance Policy. Exhibit C8 is D.L. of the driver of the vehicle in question. Exhibit OP1 is the original Receipt of the spare-parts purchased by the complainant. Exhibit OP2 is the detail particulars of the Spare-parts purchased by the complainant. Exhibit OP3 is the Survey Report.
We perused all these documents.


8. The main contention of the OP is the complainant does not have a valid Insurance Policy at the time of the accident (Para 2, Page No.1 of the objections). For this, we peruse the documents. Exhibit C7 is the Insurance Policy of the vehicle in question which is valid from 7th February 2008 to 6th February 2009. In this, the vehicle number of the vehicle as is quoted in the complainant is same as in the Policy. The year of the manufacturing of the said vehicle is 2007 and the total value of the vehicle is quoted as Rs.3,84,750=00. The licenced carrying capacity is 13 + 1 driver making grant total of 14 people. The said Policy is issued in the complainant’s name i.e. Abdul-saleem Husansab Giragaon. The complainant has filed an affidavit stating that he has filed all the documents with the OP and made repeated request to settle his claim. He had also filed an I.A. calling for the documents submitted with the OP on 02.01.2009 which is also supported by an affidavit. The said I.A. was heard and allowed and the said documents were called for from the OP. It is only at the later stage when the case was posted for arguments OP filed his objections along with the Application to set aside the exparte order and filed the documents. But, in these documents, OP has not produced the original copy of the Insurance. Hence, we goby the xerox copy of the Insurance Policy produced by the complainant which is Exhibit C7 and it is clearly seen that at the time of the accident, it was a valid and effective licence for the Insurance Policy of the vehicle in question.


9. The second contention taken by the OP-Counsel is that the Tempo Trax was use for the commercial purpose. Because it was given on higher basis for some function and it was on the way to Solapur whereas the vehicle was registered as a Private Car. In addition, the driver of the vehicle was not having valid licence at the time of the accident. For this, we peruse Exhibit C5 is the M.V.I. Report. In this, in column No.7 wherein the mechanical Condition No.I and II of the vehicle is written that; I KA-28-M-5523: 1.Mind screen glass damaged (2) drivers door damaged (3) Bornet, radiator and engine damaged (4) front bumber, head light & air fitter damaged (5) front chassis cross member damaged (6) staring system and dash board damaged. II. MPO9-KC – 7669:- (1) Right side head lilght, indicator, body portion damaged (2) front right side bumper portion damaged (3) front right side corner body damaged (4) The rod damaged (5) Front right side spring leaves holding chassis damaged(6) diesel filter damaged (7) front Axel dismantled from its fitments (8) dash beard and steering system damaged. In the same Report in column No.9, it is opined that the accident is not due to any of the mechanical defects of the both side the vehicles. With this, we confirm the say of the complainant about the heavy damages sustained to his vehicle bearing No. KA-28-M-5523 and the said damages are not at all attributed to the driving of the vehicle on hire basis. Hence, the contention of the OP counsel that the claim is repudiated for violation of policy condition of using private car for hire purchase does not sustain.



10. Exhibit OP3 is a Survey Report produced by the OP-Counsel. In this, in Para No.5 with the heading of the driver’s particulars it is observed that “driving licence is noted” and the name of the driver is written as “Abdulrazak Abdulsalim Girganvi”. When it is admitted by the Surveyor of the OP that driving licence is produced before the OP the question of raising the objection seems to be an after thought. Again, complainant’s Counsel has produced the xerox copy of the driving licence of the said driver (Exhibit C8). In this, it is seen the driving licence is valid from 04.10.2007 to 03.10.2027. The accident has taken place on 28.03.2008. So, the objection of the OP-Counsel that the driver was not having valid driving licence is ruled-out. It is also seen on Page No.6 of the same Exhibit that the licence is valid for light motor vehicle and in the Survey Report in column 4 pertaining to vehicles particulars, the clause of the vehicle is noted as L.M.V. which means light motor vehicle. So, the third contention of the OP-Counsel that the driver of the complainant’s vehicle was not holding valid driving licence at the time of the accident is also proved negatived.



11. Hence, all the objections raised by the OP-Counsel are not proved with cogent and acceptable documentary evidence. Whereas, it is admitted fact that accident has taken place on 28.03.2008 and there is no doubt by the documents produced before this Forum that the complainant’s vehicle has sustained severe damages. The non-settlement of the valid claim of the complainant by OP inspite of valid policy is a deficiency in service rendered by the OP to the complainant. This is also because it can be seen from the stamp on the Survey Report that the Survey Report was ready on 30th May 2008 and the accident has taken place on 28.03.2008. Such being the position, the complainant’s say that he has repeatedly requested to the OP for the settlement of his claim has to be believed because the complainant has filed this complaint before this Forum on 03rd November 2008. The complainant has not produced any documentary evidence to prove that he has forwarded the documents to the OP within the stipulated period. But, it is with the help of the documents produced by the OP-Counsel, Forum comes to the inferred evidence about the submission of the documents to the OP within the specified time limits.



12. As already noted above, it can be seen from the Survey Report that the loss of the damaged vehicle is Rs.54,772.50. The complainant has not produced the total bills of Rs.2,50,000=00 which he claims that he has spent in repairing the said vehicle. The complainant has also not produced any receipt for payment of labour charges or repair charges. The total of cash receipts produced before this Forum towards purchase of the spare-parts needed in repairing the vehicles comes to Rs.81,468=00 and not Rs.1,50,000=00 as is quoted by the complainant at Para No.7 on Page No.3 of his complaint. To decide as to how much compensation complainant is entitled for we goby the Ruling 2009 CTJ 170 (CP) (NCDRC) (Pradeep Kumar Sharma V/s National Insurance Company Ltd.) it is read as hereunder: “The Report of the insurance surveyor is an important document and it cannot be wished aside without any compelling evidence to the contrary.” Hence, complainant is entitled to Rs.54,772.50 towards damages to his vehicle and Rs.10,000=00 for mental agony and Rs.2,000=00 for cost of litigation. Hence, we answer to Point No.1 in partly affirmative. 13. POINT NO.2: In view of the above observations to Point No.1 supra, we proceed to pass the following: O R D E R 1) The complaint of the complainant is partly allowed. 2) The OP is hereby ordered to pay Rs.54,772=50 (Rupees fifty four thousand seven hundred and seventy two rupees fifty paise) towards the repair charges of the damaged vehicle of complainant within 2 months of passing of this Order, failing which complainant is entitled to interest at the rate of 12% per annum from the date of filing of this complaint i.e.03.11.2008 till its entire realization. 3) The OP is also ordered to pay Rs.10,000-00 (Rupees ten thousand) towards mental agony and Rs.2,000=00 (Rupees two thousand) towards cost of litigation to the complainant. OP is also ordered to pay the adjournment cost of Rs.1,000=00 (Rupees one thousand) as per the Order of this Forum dated : 11.02.2009 to the Consumer Welfare Fund Account within 2 months of passing of this Order. There is no order as to interest on mental agony and cost of litigation in each one of the complaint. 4) The free copy of this order shall be sent to both the parties. (This order is dictated to the Stenographer, transcripted corrected and then pronounced in the open Forum on this 05th day of March -2009) (Sri.Viswanatha Reddy, B.K.) President. ( Smt.Minakshi.R.Kulkarni ) Lady Member ( Shri. S.G.Kulkarni ) Member.