DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  19^th day of April 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 15/06/2015

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.86/2015)         

Mohammad Ali,

S/o.Hamsa,

Perundapurath House,

Nattukal Post,

Mannarkkad Taluk,

Palakkad.

Rep.by Attorney Holder,

Ishac.P

S/o.Hamsa,

Perundapurath House,

Nattukal Post,

Mannarkkad Taluk,

Palakkad.                                                     -        Complainant

(Adv.Dhananjayan.K)

         V/s

1.Authorised Signatory / Manager

   The National Insurance Co.Ltd.

    Regd.Office at Div No.10,

    Flat No.101-106, N-1 BMC House,

    Connaught Place,

    New Delhi – 110 001

   Chief Executive Officer,

   Max Newyork Life Insurance Co.Ltd.

2.The Branch Manager

   The National Insurance Co.Ltd.

    Branch Office at Kannoos East

    Fort Resort,

   18/77, 3^rd Floor,

   Kunnathurmedu Post,

   Palakkad – 678 013                            -        Opposite parties

(By Adv.P.K.Devadas)

O R D E R

By Smt.Suma.K.P. Member

The complainant is the RC owner of a vehicle bearing Reg.No.KL-50-C-6815. The original complainant is represented by his elder brother by virtue of a power of attorney executed by him in favour of his brother dated 22/9/2014. A separate application was filed seeking permission to file, prosecute and continue with the case. While the complainant on his journey from Palladam in the state of Tamilnadu to his residence at Nattukal, Mannarkkad on 9/11/2013, the said vehicle met with an accident at a place known as Kannadi, Manalur near Palakkad town by 5.45 AM. At the time of the accident the said vehicle was driven by Muhammed Riyas. The reason for the accident was that one of the rear wheels of the car was suddenly scattered away from the car and hit on the nearby mud ridge and due to that the car has lost its control and tumbled down on the road. Due to the incident and impact of the sudden hit and accident, one of his relative who was travelling in the car died on the spot and the vehicle was badly damaged. Immediately the accident was reported to the town traffic police station and they had registered a crime as crime No.2062/2013 dated 9/11/2013. At the time of the accident the vehicle was driven by Muhammed Riyas and he was having a valid driving license to drive the vehicle. After the accident as the vehicle was totally damaged, it had been taken to the work shop yard of the popular motors who is the authorized agent and service centre of Maruti India Ltd. on the next day. It is submitted that the driver was not at all negligent and the reason for the accident was purely mechanical defect. At the time of  accident the complainant’s vehicle has got a valid insurance coverage. The opposite parties had issued a certificate of insurance to the complainant. The total premium paid by the complainant was Rs.13,945/-. The complainant submits that he is entitled to get the amounts spent to repair the vehicle and to make it into a running condition. The complainant has informed the opposite parties regarding the accident of the vehicle immediately. So the opposite party has conducted a survey in order to assess the loss and damages. Survey and assessment of loss was conducted by SP engineers and surveyors, Kottayam at the workshop of Popular automobiles and services Ltd.at Palakkad. They have assessed the damages to repair the vehicle and to make it into running condition as Rs.2,20,000/-. Soon after receiving the valuation and survey report, the complainant has filed a claim petition to the opposite parties. The opposite party has received the claim of the complainant’s vehicle but they have repudiated the genuine claim of the complainant for the reasons that the car was used for commercial purposes by transporting 28 boxes of chicks and the complainant was fined Rs.12,000/- by sales tax department. Hence the complainant had approached before this Forum seeking an order to get Rs.2,20,000/- as the cost of expenses spent and incurred at the workshop to repair the vehicle and to get Rs.50,000/- as damages for the mental agony caused by the complainant due to the repudiation of the claim along with cost of this litigation. 

After issuing notice the opposite parties have appeared and have filed their respective version.

The opposite party admits that the vehicle was insured at the relevant time and the policy was valid from 21/10/2013 to 20/10/2014. But liability of the opposite party is limited to the terms, conditions, exemptions and limitations enumerated in the  policy issued and also subject to the provisions of MV act and rules made there under. The mere existence of a policy does not ipso facto does not attach any liability with the opposite party. The opposite party will not be liable under this policy in respect of any accidental loss damage and / liability caused sustained or incurred while vehicle insured herein is being used otherwise than in accordance with the “limitations as to use”. It is clearly stated in the policy (1) & (2) issued that this policy does not cover the used for hire or reward of carriage of goods (other than samples or personal luggage). The policy with terms and conditions was produced before the Forum. The opposite party does not admit that the accident has happened due to any mechanical defect as alleged. The driver was driving the vehicle in most rash and negligent manner and the speedometer of the car after the accident shows that the vehicle was at 140 km per hour at the relevant time.  The car involved in the alleged accident is a private one which cannot be used for commercial purpose. There is no valid and effective permit taken for transportation of goods.  The complainant has admitted that the car was a private vehicle and on the relevant day of the accident there were 28 boxes of chicks. As there is violation of terms and conditions of the policy the opposite parties are not liable to satisfy the claims for damages. The complainant has not intimated the company immediately after the accident as mentioned by the complainant. Hence there was no spot survey done. There is no unfair trade practice or deficiency of service on the part of the opposite party and hence the complaint has to be dismissed.

          The complainant as well as opposite parties filed their respective proof affidavits Ext. A1- A7 was marked  from the part of the complainant.  Ext. B1 to B6 was marked from the part of the opposite parties. Evidence was closed. Matter was heard.

The following issues are considered in this case are.

1.Whether there is any deficiency in service from the side of  opposite parties ?

2.If so, what are the reliefs entitled to the complainant ?

Issues 1 & 2

There is no dispute between the parties that the vehicle bearing registration Number KL-50-C-6815  was insured with opposite party and it was having valid coverage at the relevant time.  That is at the time of accident the vehicle is having valid insurance policy and is protected by the insurance coverage issued by the opposite party. It is a “package policy private vehicle” and as per the schedule the complainant is entitled to get the total cost incurred for the repair of the vehicle. According to the complainant the mere existence of chicks on a single incident cannot be termed and treated as the vehicle of the complainant was used for commercial purpose. His  allegation is that he has purchased the above chicks for domestic purpose for the use of his family. According to the opposite parties as there is violation of terms and conditions of the policy they are not liable to satisfy the claim for damages. The sales tax department has slammed Rs.12,000/- as tax for transporting goods for commercial purpose. The requisition letter by the police inspector to the sales tax officer which was marked as Ext.B6 will prove the same. The complainant had not taken any steps against this penalty.  It is not in dispute that the complainant has taken a comprehensive insurance policy nor is it in dispute the accident took place during the subsistence of the policy. What is disputed by the insurance company is that the vehicle was not used for personal use. However, according to the insurance company by using the vehicle for commercial purpose, the complainant had violated the terms of insurance policy and on that basis insurance company was within its right to repudiate the claim.

Reference in this case may be made to the decision of National Commission rendered in the case of United India Co.Ltd. Vs. Gian singh  reported in 2006 CPJ 221 (CP) (NCDRC). In that decision of the National Disputes Redressal commission it has been held that in a case of violation  condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non standard basis. “The appellate court held that the insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive 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 settle the claim on non standard basis.” While granting claim on non standard basis the National Commission set out in its judgement the guidelines issued by the insurance company about settling all such non standard claims.  The said claims are set out below:

From the perusal of the aforesaid guidelines it is clear that this is one of the cases in which  75% claim of the admissible claim had to be settled where condition of policy including limitation as to use was breached. In the instant case the entire stand of the insurance company is that complainant has used the vehicle for commercial purpose and in the course of that there has been an accident. Following the aforesaid guidelines, we are of the opinion that the insurance company cannot repudiate the claim in toto. For the reasons stated, we direct the opposite parties  to pay  a consolidated sum of Rs.1,65,000/- (Rupees One lakh sixty five thousand only), even though compensation was claimed for Rs.50,000/-.

In the fact and circumstances of the case the said sum is to be paid to the complainant by the insurance company without any interest within a period of 6 weeks from the date of receipt of this order. However, if the insurance company delays the aforesaid payment beyond 6 weeks, then this amount will carry an interest of 9% per annum from the date of expiry of the period of        6 weeks till the date of actual payment. Complaint is  thus allowed to the extend indicated above.

Pronounced in the open court on this the 19^th  day of April  2017.

                                                                                        Sd/-

                      Shiny.P.R.

                       President 

                          Sd/-

                      Suma.K.P.

                      Member

                        Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1   –  Original power of attorney executed by complainant in favour of his brother

                Ishac.P  dated 2/10/2014

Ext.A2   –  Photocopy of Certificate of Registration of vehicle of the complainant

                bearing Regn.No.KL-50/C 6815  

Ext.A3   –  Photocopy of the FIR in Crime No.2062/2013 of Traffic Police Station,

                Palakkad alongwith with the FIS  (containing 7 pages)  

Ext.A4  -   Photocopy of the insurance policy of the vehicle of the complainant issued

                by the opposite parties  dated 21/10/13

Ext.A5 –    Photocopy of the Motor Survey Report issued by SP Engineers and Surveyors

Ext.A6 –    Photocopy of the driving license of Mohammed Riyas who has driven the

                vehicle at the time of accident.

Ext.A7 –    Copy of the repudiation letter issued by 2^nd opposite party repudiating the

                genuine claim of the complainant.

Exhibits marked on the side of Opposite parties

Ext.B1 – Photocopy  of the policy with terms and conditions issued to

             complainant for the vehicle KL 50/C 6815

Ext.B2 – True copy of the MVI Report of the vehicle KL 50/C 6815 in crime No.2062 of

              2013

Ext.B3 – True copy of the scene mahazar in crime No.2062 of 2013

Ext.B4 –  True copy  of the final report in crime No.2062 of 2013.

Ext.B5 – True copy of the FIS in crime No.2062 of 2013

Ext.B6 – Copy of requisition letter by SI of police to Sales tax officer.

Cost    

No cost allowed.