UNITED INDIA INSURANCE COMPANY Vs. P S GANESH

JUDGEMENT

(1.) Opposite party in O. P.233/1996 on the file of the Consumer Disputes Redressal Forum, Alappuzha is the appellant. Complainant approached the District Forum alleging that his Tata Estate Car which was insured with the opposite party for a period from 17.10.1994 to 16.10.1995 met with an accident on 16.4.1995 at Palakkad. The accident occurred when the driver of the car tried to save a man who negligently attempted to cross the road and in that endeavour by the driver the car hit against a tree by the side of the road by which the car got damaged. Soon the approved workshop M/s. M. G. F. India Ltd. , Ernakulam was informed, the car was removed to the said workshop; he also informed the opposite party, Surveyor was appointed by the opposite parties who examined the car on 21.4.1995, 3.5.1995 and 10.5.1995 and submitted Exbt. R3 report, later the complainant was informed by the opposite party that the complainant is eligible for an amount of Rs.17,385/- whereas according to the complainant he had to spend Rs.61,689.85 towards the repair charges and cost of spare parts. Consequently, he sent a notice to the opposite party; then he filed this complaint for a direction to the opposite parties to pay the aforesaid amount incurred by him towards the repair of the vehicle. In the version by the opposite parties they supported the settlement of the amount due to the complainant that is Rs.17,385/- relying on the Surveyor's report Exbt. R3. They sought to maintain that the damage to the engine was due to the negligent driving of the vehicle from the scene of occurrence to the workshop which caused overheating thereby damage was caused to the engine. Therefore, that cannot be treated as an insured peril. Consequently, the complainant is not entitled to anything towards the said damage. Before the District Forum complainant gave evidence as P. W.1 and produced Exbts. P1 to P7, on behalf of the opposite party R. W.1 was examined and they produced Exbts. R1 to R8. On a consideration of the said material the District Forum made a direction to the opposite parties to pay an amount of Rs.61,689.85 with interest; cost was also allowed. It is the said direction that is under challenge in this appeal.

(2.) Learned Counsel for the appellant focussed his attack on the direction made by the District Forum urging that the District Forum did not enter a specific finding with respect to what the Surveyor stated as to the cause for the damage to the engine. It is urged by the learned Counsel that the car was driven from the scene of occurrence to the workshop at Ernakulam when the radiator was not functioning. Therefore, according to the learned Counsel what the Surveyor opined as to the cause of the damage to the engine should have been accepted; and had the District Forum accepted the same it would have the conclusion that the complainant is not entitled to be reimbursed for the expenses incurred towards the repair of the engine, and it is urged that in Exbt. R3, total amount assessed is only Rs.40,162/- at any rate the complainant could not have been awarded anything more than that. It is urged that they have deducted only amount which as per the conditions in the policy, the opposite parties are entitled to deduct from the total amount assessed by the Surveyor. Then it could be seen that what was offered by the opposite party was the genuine amount to which the complainant is eligible. On the other hand the learned Counsel for the respondent supported the direction made by the District Forum urging, the case that the car was driven from the scene of occurrence to the workshop is not true or correct. According to him P. W.1 has sworn to the effect the car was towed to the workshop. He also pointed out that even R. W.1 admitted the estimates Exbts. R6 and R7 and having regard to the fact that the actual bill was for a lesser amount, complainant produced Exbt. P7 receipt for the payment of Rs.61,689.85 and since Exbt. P7 itself shows that the said payment was made by cheque the genuineness of the payment cannot be doubted. Having regard to the aforesaid features appearing in the evidence, the conclusion reached by the District Forum that the complainant is eligible for the amount so paid cannot be challenged.

(3.) The fact that the car met with an accident on 16.4.1995 and that the car was repaired at the authorised workshop, MGF India Limited at Ernakulam are not in dispute. The fact that at the time of accident the car had a valid insurance cover also is not in dispute. The complainant has given evidence to the effect that the car had to be removed to the workshop where Exbts. R6 and R7 estimates were prepared and in accordance with the same repairs were attended and the charges were paid by Exbt. P7. Focus in the context is, whereas the appellant would maintain that the damage to the engine was not as a result of the accident but was due to the negligence of the insured inasmuch as the damaged car was driven from Palakkad to Ernakulam when the radiator of the car was damaged. This particular aspect is disputed by the respondent/complainant. The complainant in his evidence as P. W.1 would swear that as a matter of fact the car was towed to the MGF workshop. In fact according to the complainant the car was not driven to the workshop. The Surveyor is not examined so as to find out the basis of his opinion. It is pointed out that R. W.1 does not swear the Surveyor is not available at the time when the matter came up for evidence. Of course, the Surveyor in Exbt. R3 survey report would state, the possibility of the damage to the engine due to driving the vehicle from the accident spot to the workshop without noticing the damage to the radiator and the reading of the panel meters. This is his conclusion on looking at the engine, but the complainant who is interested in getting the vehicle repaired cannot be said to have no knowledge as to how the vehicle was removed to the workshop, he has sworn to the said fact in his evidence. Against the estimate not only there is no challenge, R. W.1 in his cross-examination admitted the said estimate. Against the said backdrop when Exbt. P7 is examined as the appellant made the payment by a cheque and the payment is for an amount less than what is quoted in the estimate, and there being no other circumstances or evidence to doubt the payment, it has to be assumed that as a matter of fact towards the repair charges the complainant had to make Exbt. P7 payment. When the opposite party seeks to rely on the survey report to hold that the damage to the engine was caused on account of driving the vehicle from Palakkad to Ernakulam when the radiator was in a damaged condition and the same is denied by the complainant, the burden is on the opposite party to prove the same as it is the opposite party who affirms that the car was driven from the scene of occurrence to the workshop. As has noted, except the observation by the complainant in Exbt. R3 survey report there is no material to show as a matter of fact, the car was driven in the damaged condition. One cannot ordinarily be ready to assume that after the accident the car was fit to be driven such a long distance from Palakkad to Ernakulam. These are matters capable of proof, evidence should have been tendered in that regard. That having been not done, the evidence of P. W.1 as to this aspect has to be accepted in view of Exbts. R6, R7 and P7.