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THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD. V/S O.V. MANUKURIKKAL, decided on Wednesday, March 8, 2000.
[ In the Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram, Appeal Nos. 175 & 432 of 1999. ] 08/03/2000
Judge(s) : L. MANOHARAN, PRESIDENT, PROF. K. MADHURI LATHA, MEMBER & PROF. R. VIJAYAKRISHNAN, MEMBER
Advocate(s) : S.S. Kalkura, R.S. Kalkura, G.S. Kalkura. S. Chandramohan Nair.
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  "2001 (2) CPJ 226"  ==   ""  







    L. Manoharan President:1. These appeals arise from the order in O.P. 43/ 1998 on the file of the CDRF Malappuram. Whereas the opposite party in the aforesaid complaint is the appellant in Appeal No. 175/99 the complainant is the appellant in Appeal No. 432/99. The complainant’s bus KLM-5804 while it had insurance cover met with an accident on 3.7.1997 at a place near Areacode. Even though the complainant had to spent an amount of Rs. 70 171/- towards the repair of the vehicle his claim was settled by the opposite party only for an amount of Rs. 26 500/-. Complainant alleged that he had to spend an amount of Rs. 30 217/- towards price of spare parts had to spent Rs. 2 500/- for towing the vehicle from the place of accident to the workshop and Rs. 30 000/- towards labour charges. He maintained that the failure of the opposite party to settle the claim for the whole amount spent by him would constitute deficiency of service and therefore he wanted direction in his favour. In the version by the opposite party they supported the settlement of the claim at Rs. 26 500/- maintaining that the claim was settled on the basis of the correct assessment made by the Surveyor who was appointed pursuant to the intimation by the complainant as to the accident. The Surveyor had assessed the loss only for the said amount and the same being true and correct the complainant is not entitled to anything more than that. The claim of the complainant that he had spent Rs. 30 000/- towards labour charges is not true or correct as the real amount spent by the complainant towards that was only Rs. 15 000/-. They maintained that they are liable to pay only Rs. 26 500/-. Before the District Forum complainant produced Exts. Al to A4 and gave evidence as P.W. 1 and also examined P.W. 2. On behalf of the opposite parties Exts. Bl to B5 were produced and they examined D.W. 1 and D.W. 2. Upon a consideration of the said evidence the District Forum made a direction to the opposite party to pay a total sum of Rs. 43 876.50 paise within one month from the date of receipt of the order. It also allowed interest at the rate of 12% on the said amount from the date of the order. It is the said direction that is under challenge in these appeals by both parties.2. The learned Counsel for the opposite party Insurance Company the appellant in Appeal 175/99 urged that the acceptance of the Ext. A3 receipts issued by P.W. 2 is not correct as according to the learned Counsel P.W. 2 could not have been relied on and Ext A3 receipts could not have been made the basis for finding that the complainant had to pay repair charges in two instalments of Rs. 15 000/- each. It is pointed out by the learned Counsel that the attending circumstance would show that the case of the complainant in this regard is not probable and when the very conduct of the complainant is taken into account it could be seen that the subsequent payment of Rs. 15 000/- sought to be proved by the evidence of P.W. 2 and Ext. A3 is not probable to be accepted. On the other hand the learned Counsel for the appellant in Appeal 432/99 - the complainant wanted a modification to the order of the District Forum urging inasmuch as had the District Forum given enough importance to Ext. B3 series bills evidencing purchase of spare parts the District Forum would have in addition awarded an amount of Rs. 9 654.50 paise also. Of course the learned Counsel for the complainant supported the finding of the District Forum that as a matter of fact the complainant had to spent Rs. 30 000/- towards labour charge in other words the learned Counsel supported the evidence of P.W. 2 as well as Ext. A3.3. In the nature of the contentions we may first take up the question as to whether the payment of Rs. 15 000/- as per Ext. A3 to P.W. 2 in the circumstance could be supported. The circumstance relied on by the learned Counsel for the opposite party in this regard is that had Ext. A3 been there the complainant would have tendered it before the Surveyor on 17.9.1997 when the Surveyor visited for re-inspection and the failure to produce Ext. A3 along with the other documents also is a circumstance which would destroy its probative value. It is also maintained by the learned Counsel that in the given circumstance P.W. 2 could not have been delivered. The statement of P.W. 1 that he could not produce it along with the other documents which were produced along with the complaint was on account of misplacement of Ext. A3 cannot be accepted and when such circumstances are taken into account according to the learned Counsel the conclusion reached by the District Forum in this aspect can be seen to be faulty. On the other hand the complainant’s Counsel while supporting the finding of the District Forum pointed out that when the probative value of Ext. A3 and the evidence of P.W. 2 is assessed in the context of Ext. B1 it could be seen that the probability is that the complainant should have incurred the said amount also towards the repair charges. Therefore it is maintained by him that there is nothing wrong in the District Forum reaching the conclusion to the effect that the amount evidenced by Ext. A3 to have been spent for repair is genuine.4. The rule of appreciation of evidence is on the preponderance of probability. The basic question is whether the failure of the complainant to produce Ext. A3 along with other records and his failure to show the same to the Surveyor on 17.9.1997 when he visited for re-inspection would provoke a conclusion that the complainant’s case in this regard is not probable. In analysing the said aspect one another material piece of evidence has also to be taken into account. The touch-stone on which the said evidence is to be tested is whether an ordinary person could have conducted in the manner in which P.W. 2 behaved in relation to Ext. A3. It is in that context Ext. B1 assumes importance. Ext. B1 is a document produced by the opposite party. It contains the estimate of the amount required for labour charge and other charges the same estimates the labour charges at Rs 47 000/-. If as a matter of fact P.W. 2 who attended the repair agreed to repair the whole damage for an amount of only Rs. 15 000/- the same would work out only to l/3rd of the 47 000/- in Ext. Bl. The question therefore is whether an ordinary workshop owner who had estimated the labour charges at Rs. 47 000/- could have repai the vehicle for a sum of Rs. 15 000/- only. Unless there are other features to support the same it has to be stated that the said reduced rate is highly improbable whereas Rs. 30 000/- bares a reasonable proportion to total estimate of Rs. 47 000/-. If the rival arguments are appreciated against the backdrop of the said circumstance we are unable to accept the case of the opposite party that the whole labour charge was only Rs. 15 000/-. When the evidence of P.W. 2 and Ext. A3 are appreciated in that context we find no infirmity in the District Forum accepting the evidence of P.W. 2 and Ext. A3.5. The other question that arises for consideration is whether the complainant’s claim that he is entitled to the whole value of the spare parts as mentioned in Ext. B3 series could be accepted. The District Forum discusses the said aspect in para 10 of the impugned order. The District Forum of course notes that Ext. B3 series would take in a total of Rs. 38 217/- depreciation of 50% was made by the Surveyor. He arrived at the price of the spare parts taking into account the dealers price list also. The observation by the District Forum that the Surveyor’s evidence is persuasive to be accepted cannot be faulted. Having regard to the aforesaid aspects we cannot support the argument of the learned Counsel for the complainant in this regard. When the disputed questions are answered as above it could be seen that there is nothing to interfere in the impugned order. Both appeals are liable to be dismissed.6. In the result both appeals are dismissed however there will be no order as to costs.