State Consumer Disputes Redressal Commission
The Authorised Signatory M/S ... vs S. Rajalakshmi, Tanjore. on 22 January, 2020
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.170/2017
(Against the order made in C.C.No.18/2011 dated 14.05.2015 on the file of the
District Forum, Thanjavur.)
WEDNESDAY, THE 22nd DAY OF JANUARY 2020
1. The Authorised Signatory,
M/s.Cholamandalam MS General
Insurance Company Limited,
Registered Office: Dare House, 2nd Floor,
2, N.S.C. Bose Road,
Chennai - 600 001. 1st Appellant/1st Opposite Party
2. The Authorised Signatory,
M/s.Cholamandalam MS General
Insurance Company Limited,
Regional Office: Rashmi Towers,
Nungambakkam, Chennai - 600 001. 2nd Appellant/2nd Opposite Party
3. The Authorised Signatory,
M/s.Cholamandalam MS General
Insurance Company Limited,
Branch Office, Nallaiya Complex,
Thanjavur. 3rd Appellant/3rd Opposite Party
-Vs-
S.Rajalakshmi,
W/o N.Srinivasan,
29, Sivaji Nagar,
Thiruvalluvar Salai,
Thanjavur. Respondent/Complainant
Counsel for the Appellants-1to3/Opposite Parties-1to3 : Mr.K. Chandrasekaran,
Advocate.
Counsel for Respondent/Complainant : Mr.P.Jeganathan, Advocate.
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This appeal coming before me for final hearing on 08.01.2020 and on
hearing the arguments of both sides and on perusing the material records, this
Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been preferred under section 15 r/w section 17 (1) (a) (ii) of the Consumer Protection Act, 1986 by the opposite parties who suffered by an order at the hands of the learned District Consumer Disputes Redressal Forum, Thanjavur at the instance of the complainant, directing the opposite parties to pay jointly or severally Rs.5,40,383/- being the cost of damage caused to the vehicle of the complainant with interest at the rate of 12% per annum and also to pay Rs.10,000/- towards compensation for mental agony and hardship caused to the complainant owing to the deficiency of service of the opposite parties and to pay Rs.5000/- towards costs to the complainant.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redresssal Forum, Thanjavur (hereinafter in short "District Forum").
3. The main averments of the complainant in the complaint is as follows;- The complainant's vehicle Hyundai bearing registration No.TN-49- AA- 2223 was insured with the opposite party-1 for a period from 30.12.2008 to 29.12.2009 and the said vehicle met with a road accident while it was driven by one Thangamari who was holding learner's licence along with her son-in-law Shri.S. Harishankar who had effective and valid driving licence and was sitting in the front left seat next to the said driver seat and when the driver one Shri. Hari Shankar 3 expired in the said accident and the vehicle got heavily damaged, the complainant claimed damages under the said package of policy issued by the opposite parties and as it was rejected on the ground that the driver of the vehicle was an employee under the complainant and as he was holder only learner's driving licence the complainant claim is not entertainable under the law. For the notice issued by the complainant to the opposite parties, no reply was sent by them. Hence, the complainant filed a complaint before the District Forum praying for an order to direct the opposite parties to pay a sum of Rs.5,40,383/-, the cost of the damage caused to the vehicle due to the accident with interest at the rate of 15% per annum from the date of her intimation of the claim till the date of payment and also to pay Rs.50,000/- as compensation for mental agony and hardship caused to her due to the arbitrary rejection of the complainant's claim by opposite parties without any legal basis.
4. In the written version filed by the opposite parties, it is contended as follows:- The driver, Thangamari was an employee under the complainant who is the owner of the vehicle and as the said Thangamani was holding only learner's driving licence, the complainant's claim was rightly rejected by the insurance company. Further, the complainant had not mentioned the manner of accident and the extent of damages in terms of physical features caused to her car and on the ground also the complaint is liable to be dismissed.
5. The opposite parties 1 & 2 have not filed their proof affidavit after filing their written version and hence the learned District Forum treated them as ex-parte and passed the award in favour of the complainant by considering the documents marked on the side of complainant. The learned District Forum has also held that 4 the insurance company is liable to honour the claim even if the vehicle was driven by a person who is holding learner's driving licence in the presence of a person who is having a valid driving licence and there is no violation as per rule 3 of the Central Motor Vehicle Rule, 1989. The learned District Forum passed the award directing the opposite parties to pay jointly or severally Rs.5,40,383/- towards the cost of damage caused to the vehicle of the complainant with interest at the rate of 12% per annum and Rs.10,000/- towards compensation for mental agony and hardship caused to the complainant owing to the deficiency of service of the opposite parties and also to pay a sum of Rs.5000/- as costs to the complainant.
6. Aggrieved against that award, the opposite parties challenged it by filing this appeal by stating that the District Forum ought not to have relied on the pleadings of the complainant and Ex.A8 and not to have come to a conclusion that there was a deficiency of service on the part of the appellants/opposite parties as there was no basis to fix the liability of the appellants. The District Forum failed to see that the claim of the complainant was not supported by any documentary evidence and such as the quotation, invoice, repair bills or surveyors report and in the absence the above documents, the District Forum ought not to have fixed the liability on the opposite parties. The Learned District Forum also failed to differentiate a person having a permanent licence to act as a paid driver, as a person having a learner's licence cannot be equated with that of a person having a permanent driving licence to act as a paid driver. The District Forum further, failed to see either in complaint or in the proof affidavit of the complainant that there was no mention that the son- in-law- of the complainant was in a position to travel as an instructor and the driver was carrying out the instructions given by the son-in-law of the complainant to drive 5 the car as per rule 3 of the Central Motor Vehicles Rules, 1989 and no material was available to show that "L" board was displayed on either side of the car of the complainant at the time of accident.
7. No additional evidence was adduced by both parties in this appeal before this Commission.
8. The points for consideration are '-
(1) Whether the award passed by the Learned District Forum, Thanjavur in C.C.No.18/2011, dated 14.05.2015 is sustainable under law or not?
(2) Whether the complaint has to be remanded back to the District Forum for fresh disposal on merits after hearing both sides?
9. Points No.1 & 2:- The vehicle, Hyundai bearing registration No.TN-49 AA- 223 belonged to one Mrs.S. Rajalakshmi, W/o N.Srinivasan, Thanjavur was insured with the opposite parties and during the period of insurance coverage, on 10.05.2009 at about 7.30 a.m. the vehicle met with an accident and suffered extensive damage subsequently the complainant, Mrs.S. Rajalakshmi claimed compensation with the opposite parties and since it was repudiated, the complainant approached the District Forum, Thanjavur claiming for direction to the opposite parties to honour the claim of the complainant and also to pay compensation under the contract of insurance. The complaint was filed in the year 2011 and it was disposed off by the District Forum on 14.05.2015. After disposal of the complaint, the opposite parties have approached this Commission with a petition to condone the delay in preferring this appeal and the same was allowed subsequently the appeal was taken on file in F.A.No.170/2017 by this Commission and while the appeal was pending enquiry, the appellants/opposite parties also filed an application 6 for granting interim stay restraining the District Forum to proceed with order impugned and the same was allowed by granting interim stay.
10. Oral arguments of the Appellants' side were heard and written arguments of both sides were also perused. The main contention of the appellants is that the learned District Forum without taking into consideration of genuineness of the claim for the damage caused to the vehicle in the absence of any documentary evidence passed the award in favour of the complainant and hence the order of the District Forum is not justifiable and reasonable. On perusal of records, it is found that after the records were called from the District Forum, the original complaint and the documents in original are not submitted by the District Forum whereas only Xerox copies of the complaint and marked documents are received from the District Forum. We have also found some endorsement on the index sheet that "material case records reconstructed as per order dated, 27.03.2019". When the Registry of this Commission contacted the staffs available in the District Forum over phone, it was informed that the documents were reconstructed as per the orders of the District Forum and the copy of the office-note and the order passed on it was sent by fax. As per office note and on perusal of the above said material case records, it is found that the entire material records were affected by termite and submitted for further orders for reconstruction of records". The learned President has also passed the order as follows:- "reconstruct and submit dated 27.03.2019". Therefore, it is evident that no original documents such as complaint filed by the complainant and Exhibits marked as A1 to A8 on the side of the complainant and the written version filed by the opposite parties are not available in the case records and only Xerox copies of the missing documents have been reconstructed in a hurried manner 7 without following the procedures for reconstruction of the documents. The main contention of the counsel for the appellants is that the District Forum passed the award in the absence of any material documents and therefore the order of the District Forum is not justifiable when the complainant raised the claim only on the basis of good faith under the insurance policy.
11. The learned District Forum has reconstructed the missing documents without following the procedure. Therefore, the documents received from the District Forum are unreliable. The learned counsel for the appellants/opposite parties represented that if the complaint was remanded back to the District Forum for re- trial, they are ready and willing to proceed with the case before the District Forum. Hence, considering the above facts and circumstances of the case and the representations made by the opposite parties and the award passed by the learned District Forum and subsequently the order made for reconstructing of documents which was not made within the four corners of law by the District Forum, we come to the conclusion that the award passed by the learned District Forum itself is not maintainable under law on the sole ground. Therefore, we also come to the conclusion that the order passed by the Learned District Forum is not sustainable under law as it requires further detailed enquiry and accordingly we decide that the matter has to be remanded back to the District Forum for fresh disposal on merits after hearing both sides and for which the appeal has to be allowed and the matter has to be remanded back to the District Forum for fresh disposal on merits after hearing both sides as per law and the points are answered accordingly. 8
12. In the result, the appeal is allowed by setting aside the order of the learned District Consumer Disputes Redressal Forum, Thanjavur made in C.C.No.18/2011, dated 14.05.2015 and the complaint is remanded back to the District Forum, Thanjavur for fresh disposal on merit after hearing both sides.
Both parties are directed to appear before the District Forum, Thanjavur on 24.02.2020 for further proceedings.
The appellants/opposite parties are directed to file their written version, proof affidavit and documents if any on that date itself.
The District Forum shall proceed with the case further and dispose of the complaint on merits after hearing both sides within three months from the date of appearance of both parties, as per law.
The District Forum shall issue notice to the parties regarding the appearance and the date of hearing.
Both parties shall abide by the order of the learned District Forum regarding the mandatory deposit already made by the appellants/ opposite parties before this Commission.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
Index: Yes/No TCM/SCDRC/Madurai Bench /Orders/Jan/2020