BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th October 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.390/2012
(Admitted on 19.12.2012)
Sylvia Castelino,
D/o Fredrick Castelino,
Aged 39 years,
Runwell House, Guruprasad Lane,
Gorigudda, Kankanady post,
Mangalore 575002
……… Complainant
(Advocate for Complainant by Sri. AKK)
VERSUS
- The claims Mangaer,
Cholamandalam MS,
General Insurance Co.Ltd,
Dare House, 2nd floor, No.2
NSC Bose Road,Chennai 600001,
Tamilnadu State.
- The Branch Manager,
Cholamanadalam MS,
General Insurance Co.Ltd,
S.R. Complex, Near Bendoor Well Circle,
Mangalore 575002
…. Opposite Parties
(Advocate for the Opposite Parties No.1 and 2: Sri. HM)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to pay the repair charges of Rs. 2,87,777/, the interest thereon from the date of accident i.e. from 23.07.2012 till deposit, Rs. 5,000/ towards cost of this proceeding, compensation of Rs. 10,000/ towards mental agony caused to the complainant.
II. The brief facts of the case are as under:
The complainant has insured her brand new Toyota Innova Car bearing Regn No. KA.13.C.7763 under policy bearing No. TCH/97042187 for the period commencing from 24.06.2012 to 23.06.2013 which is a renewal policy and same has been issued after verifying the vehicular documents pertaining to afore said vehicle by the Opposite Party. That the above said vehicle was damaged in a road traffic accident on 23.07.2012 caused by a third party Escher Lorry bearing Regn No. KA.21.A.5252, but not due to any mechanical failure and complainant vehicle sustained severe damages and same has been notified to the Opposite Party immediately and later it was towed to United Cars Pvt. Ltd, Mangalore, the authorized dealer and repairer to Toyota Model vehicles, wherein the estimation towards repair cost was done by the said dealer and the surveyor deputed by the Opposite Party has surveyed the said vehicle by the Opposite Parties side in the absence of the complainant and after survey upon the assurance of Opposite Party to reimburse the repair expenses and also with the permission of the said surveyor complainant has commenced the repair works at Yes Yes Auto works, pump well, Mangalore entirely upon the assurance Opposite Party that they would reimburse the expenses met by the complainant. But during the course of repair, to the utter surprise of the complainant and to the contrary to their promise, the Opposite Party has written a letter dated 23.08.2012 to the complainant repudiating the claim of the complainant on flimsy and unreasonable grounds. Before deputing the surveyor the complainant has submitted all the documents of his said vehicle to Opposite Party and they have verified the same and after which only they deputed the surveyor. Upon the Opposite Parties assurance to reimburse the repair bills, the complainant has commenced and finished the repair works by incurring a sum of Rs. 2,87,777/ the Opposite Party did not furnish the copy of the survey report, in spite of her several requests and there by the Opposite Party has kept the complainant in dark so far as the assessment of loss allegedly done by them. Therefore the complainant does not admit the survey allegedly done by the Opposite Party. The complainant has got surveyed her vehicle through Mr. Praveen Chandra Shetty, the IRDA approved and authorized General Insurance surveyor, as the Opposite Party failed to furnish the copy of survey report or the details of survey allegedly done by them. The reasons stated in Opposite Parties letter dated 23.08.2012 for repudiation of complainant claim is vague and nothing to do with the claim of the complainant. That after repair of the vehicle once again the complainant has requested the Opposite Party to reconsider their decision on non standard basis, but they turned down the request of the complainant. Therefore the complainant got issued legal notice on 09.11.2012, calling upon the Opposite Party to pay a sum of Rs. 2,87,777/ towards the expenses incurred for the repair of his above vehicle, which has been duly served on Opposite Party, but not replied till date. By repudiating the lawful claim of the complainant, the Opposite Party has rendered deficiency in their service towards the complainant. Hence, the above complaint.
III .Version Notice served to the opposite party by RPAD appeared through an advocate and filed their version. That it is admitted that car bearing No. KA 19 C 7763 was insured with this opponent and this opponent has issued PASSANGER CARRYING COMMERCIAL VEHICLE policy and the said policy were valid up to 26.03.2013. That said policy was subject to conditions, limitations and exclusions stipulated thereon. That the car was manufactured in the year 2010, hence it is not a brand new car. That on intimation, this opponent came to know about the accident and Opponent Company has appointed a surveyor Mr. Raghavendra Prasad to assess the damages and the said surveyor have submitted the report dated 05.08.2012 to the opponent. On perusal of the documents it was noted that the fitness certificate had expired at the time of accident and as such the claim of the complainant was denied and the same thing was communicated to the complainant vide letter dated 23.08.2012. That the vehicle is registered as a Motor Cab for hire and reward. As such the vehicle at all times whilst moving at a public place must be fit enough to ply so and the same has to be certified by the RTO in line with Section 56 of M.V Act. Whereas on the date of alleged accident there was no fitness certificate to alleged vehicle. Which amounts to violation of policy condition. That the legal notice dated. 09.11.2012 has been duly replied by the opponents as per letter dated 15.11.2012. After due enquiry and verification of documents and applying policy conditions, the claim as been repudiated and letter to that effect was sent to the complainant as per letter dated 23.08.2012. That the facts narrated at para 6 is not admitted by this opponent. There is no deficiency in service of any kind, and sought for dismissal of the complaint. The complainant Sylvia Castelino (CW1), Praveen Chandra Shetty (CW2) general insurance surveyor, filed evidence by way of affidavit and documents got marked as Ex C1 to C8 and answered the interrogatories served on him. On behalf of the opposite parties Mr. Srinivas V.A (RW1) Chola MS General Insurance company Ltd, were examined and marked the documents as Ex R1 to R8.
IV. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that there is a deficiency of service on the part of Opposite Parties as per the complaint?
- If so, for what quantum and from whom the complainant in entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (i): The few brief facts of the case is the complainant is the registered owner of the vehicle Toyota Innova Car bearing registration No. KA.19.C 7763, the same is obtained the insurance policy from Opposite Party No. 1 and 2 bearing No. TCH/97042187, validity for the period from 24.06.2012 to 23.06.2013, by collecting huge sum of Rs. 30,639/towards premium amount as per ExC2. Which is the renewal policy since the vehicle is of 2010 model.During the course that on 23.07.2012 the vehicle met with road traffic accident, and got several mechanical damages to the said car. In which it was informed and notified to the Opposite Party accordingly the procedural aspect was done. Then the estimation of the damage and also towards its repairs and cost etc, was surveyed by the authority of Opposite Party and made claim by the complainant for its expenses incurred by her upto date. In that regard correspondence made by her with the Opposite Party, with all material documents bill etc. In turn Opposite Party repudiate the said claim as per its letter dated. 23.08.2012, mainly on the ground that the said vehicle was not having fitness certificate, as on the date of accident. Except the same there is no any dispute by the Opposite Party side for settlement of the claim of own damage of the said car of the complainant. In that regard the complainant also got issued legal notice dated. 09.11.2012. Even it was duly served on the Opposite Party, no response made. Hence this complaint lodged before us by her against Opposite Party for claiming repair charges incurred by her of a total sum of Rs. 2,87,777/ with interest etc. Further she also claimed the same as averred in the complaint page 2 Para 5 On non-standard basis. The said fact also found even in the legal notice dated 09.11.2012. As such she has restricted her claim to the tune of non standard basis for settlement of her legal claim. Even in such a situation the Opposite Party taken a view in total for its defense under repudiation letter stated above dated 23.08.2012, since the vehicle was in the absence of fitness certificate. Such being so admittedly the vehicle is of yellow board and commercial in nature. Hence, its defense for dismissal of the complaint. In such a view under our discussion is that once when it is of renewal of insurance policy of Opposite Party from the year 2010 to the vehicle, it presumes that all the material documents of the vehicle have been verified and then only Opposite Party issued the policy by collecting requisite premium amount. As such since the validity of the policy is from 24.06.2012 to 23.06.2013, such being so the said fact of the period pertaining to fit certificate of vehicle from the competent authority, was already in the knowledge and notice by the Opposite Party and then only they have come forward to enter into the contract of insurance policy. Such being so immediately to the date of accident that is 23.07.2012 the say of the Opposite Party under repudiation letter dated 23.08.2012, the say regarding fitness certificate is, only to avoid from its liability. Because, the same was disclosed by them to the complainant on the date of issuance of the policy by collecting premium amount, it amounts to fair trade practice. But in the case on hand for the present it is of a pure deficiency of service and untrade practice done by Opposite Party to the complainant. It was happened just because to have premium amount for its gain and profit on the ground that no loose economically to the Opposite Party, in the event of any claim made in the future. This is the motive kept in mind by the Opposite Party side and now, it was utilized, by issuing the said repudiation letter. Hence, the act done is amounts to unfair trade practice. That apart merely because, the vehicle is of yellow board and since it is a commercial in nature, it is also far the lively hood for earning and to lead life by the source of the same. Such being so in this case it is reasonable to adopt and apply the non-standard basis for consideration of the said claim.
In this regard the same set of fact have been discussed in the ruling reported in ILR 2014 Karnataka page 191 it is clear that even though the vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay is not valid. The said headnote of the Hon’ble High Court of Karnataka is as follows:
Contention of the insurer is that the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay compensation HELD, The life of an Insurance Policy issued in respect of a motor vehicle will be valid for one year and for every next year either it has to be renewed or new policy has to be obtained. Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insure motor vehicle and collect premium and thereafter contend that the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
FURTHER HELD,
It is no doubt true as per Ex.R.1 an endorsement issued by the RTO, the fitness certificate of the offending vehicle was not in force as on the date of accident. If that is so the insurer should not have insured the vehicle for the period during which vehicle did not possess the fitness certificate. The insurer cannot say they would insure a vehicle irrespective of the fact that whether it has a fitness certificate or not and collect premium and when it comes to liability, their liability is subject to vehicle possessing fitness certificate.
Even according to the guidelines for issuance/renewal of fitness certificate discloses that the renewal: an applicant should apply for renewal of his vehicle fitness certificate within 30 days from the date of expiry of its validity and preface: A fitness certificate is an official document certifying that the holders vehicle is fit to drive at public places And Necessity for fitness certificate: Under the permissions of motor vehicle Act, 1988 in India the registration of vehicle is treated as valid, only if the vehicle has a valid certificate of fitness. Where as in this case though the vehicle Innova cars fitness certificate expired on 07.07.2012, it was duly renewed for its fitness by the competent authority of RTO Mangalore from 24.08.2012 to 23.08.2013, as per Ex C1. It means even for intervene period the said vehicle was fit to drive at public place. But, the said endorsement regarding its renewal of fitness of the vehicle is not found in document Ex R8 at the relevant column. It is not in dispute that the complainant taken a insurance policy nor it in dispute that the accident took place during the subsistence of the policy. The policy was, therefore, valid on the date of the accident.What is disputed by the insurance company is that the vehicle was not having valid fitness certificate, hence complainant/insurer had violated the terms of the insurance policy and on that basis the insurance company was within its right to repudiate the claim.
Supreme court of India in Amalendu Sahoo V/s Oriental insurance company Ltd, the Supreme Court held that, in the instant case the entire stand for the insurance company is that considered as used that vehicle for hire and in the course of that there has been and accident. Hence the insurance company cannot repudiate claim in Toto. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Ltd, V/s Gain Singh reported in 2006 CTJ 221 (CP) (NC). In that decision of the National Consumer Dispute Redressal Commission it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a nonstandard basis. The said decision of National Commission has been referred to by this court in the case of National Insurance Company Ltd V/s Nitin Khandelwal reported in 2008 (7) SCALE 351. In paragraph 13 of the Judgment in the case of Nitin Khandelwal (Supra) this court held:
The appellant insurance company is liable to indemnity the owner of the vehicle when the insurer has obtained policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non standard basis.
In the case of Nitin Khandelwal (Supra) the state Commission allowed 75% of the claim of the claimant on nonstandard basis. The said order was upheld by the National Commission and this court refused to interfere with the decision of the National Commission.
In the case of New India Assurance Co.Ltd V/s Narayan Prasad Appa Prasad Pathak reported in 2006 CPJ 144(NC), any other breach of warranty/ condition of policy including limitation as to use, to pay 75% of admissible claim.
In the instant case the entire stand of the insurance company is that the vehicle was not having valid fitness certificate and in the course of that there has been an accident. Following the aforesaid guidelines, this for a is of the opinion that the insurance company cannot repudiate the claim in toto. Hence we considered that the insurance company to pay a consolidated sum of Rs.1,98,648/ even though claimed is Rs. 2,64,864/. This also consider by us to conclude the matter on merit. So with all the above discussion together with oral and documentary evidence, pleadings with notes of arguments available in the case we hold that the above point No.1 is in the affirmative. Even going through the rulings sighted by Opposite Party are not apply to the facts and circumstances involved in this case.
Point No.2: Since, the point No.1 is already answered by us in the affirmative, this point is also to considered on the basis of the material documents available under Ex C5 , on our keen observation those are in total 14 in numbers, computing in total for a sum of Rs. 2,64,864/. In such a view by adopting the non standard basis i.e. of 75% is only Rs. 1,98,648/ is entitled to the complainant. So the Opposite Parties have liable to pay the said sum of Rs. 1,98,648/ together with the interest at the rate of 10% P.a from the date of repudiation till payment. The Opposite Party is also liable to pay Rs. 5,000/ towards compensation and another sum of Rs. 3,000/ towards cost and litigation expenses incurred by the complainant. Accordingly, the point No. 2 is also answered in the affirmative.
POINT No. (iii): In the result, as per the Order below:
ORDER
Complaint is allowed in part. All the opposite parties are jointly and severally held responsible and liable to pay for a sum of Rs.1,98,648/ with (Rupees One lakh ninety eight thousand six hundred forty eight only) accrued interest at 10% from the date of repudiation i.e on 23.08.2012 till make payment. Further to pay for a sum of Rs.5,000/(Rupees five thousand only) towards compensation and also for a sum of Rs.3,000/ (Rupees three thousand only) towards cost and litigation expenses incurred by the complainant. Payment shall be made within 30 days from the date of receipt of copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 13 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of October 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C.V.SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Sylvia Castelino,
CW 2: Praveen Chandra Shetty,
Documents marked on behalf of the Complainant:
Ex.C1: True copy of the R.C. of vehicle No.KA.19.C.7763.
Ex.C2: True copy of policy of above vehicle issued by Opposite Party.
Ex.C3: Check Report cum Receipt issued by Puttur Traffic police.
Ex.C4: Original Estimate of repairs issued by United Cars Pvt.Ltd.
Ex.C5: Bills for purchase of spare parts and labour charges.
Ex.C6: Survey Report with photographs of complainant vehicle.
Ex.C7: Claim Repudiation Letter of Opposite Party dated 23.08.2012.
Ex.C8: Office copy of legal notice sent to Opposite Party dated 09.11.2012 with postal receipt and acknowledgement.
Witnesses examined on behalf of the Opposite Parties:
RW.1: Mr. Srinivas V.A
Documents produced on behalf of the Opposite Parties:
Ex.R1: Reply to Mr. Anil Kumar k Advocate
Ex.R2: Repudiation Notice.
Ex.R3: Photos.
Ex.R4: Letter dated 01.08.2012 from
Ex.R5: survey report with bill.
Ex.R6: Estimate
Ex.R7: Motor claim form.
Ex.R8: Copy of RC.
Dated: 28-10-2016 PRESIDENT
