Per:  Akatha. H.D.  

JUDGMENT

            The Complainant has filed this complaint U/s 12 of the Consumer Protection Act- 1986 against  the OPs alleging deficiency E£À service in not settling the claim of the policy amount of Rs. 10,00,000/- . Hence, prays for relief to settle the policy claim of Rs. 10,00,000/-.

Brief averments of the complaint are:-

2)         That the complainant is the R.C. Owner of the vehicle. That the complainant alleged that the OPs are the Insurer of the vehicle bearing registration number TSO6-UA2866, Vide Policy No: OG-15-1801-00002787, validity from 18-11-2014 to 29-10-2016. The policy issued by the OP-1 . The policy is a comprehensive policy. The policy was in force on the time and date of the Accident. The Policy of the vehicle is herein filed for the kind perusal of the Hon’ble Forum.

            That the complainant further alleged that the insured Vehicle met with an accident and got damaged on 12-06-2015, at about 3.45 AM at Gudada Camp, Tq: Gangavathi, District: Koppal (Karnataka). The Gangavathi Rural Police have registered a crime vide crime No: 0168/2015, on the file of their police station. The FIR, Complaint, Pnachanama, MVI Report, Spot Panchanama, Chargesheet are herein filed for the kind perusal of the Hon’ble Forum.

            That the complainant further alleged that the accident was duly informed to the OP-2, because the accident took place at Gangavathi, Dist: Koppal, The OP-2 arranged for survey by their panel surveyor and who has assessed the loss of the damaged vehicle and has submitted the survey report to the OP-2.

            That the complainant further alleged that the vehicle was shifted to the Authorized dealer M/s Bharath Benz, Koppal, the authorized dealer of the Truck, has prepared the assessment, and have assessed the loss/damage of the vehicle in the accident at Rs. 5,45,877.96/-. The Photo stat copy of the estimate is herein filed for the kind perusal of the Hon’ble Forum.

That the complainant further alleged that the Compliant has submitted all the required documents to the OP-2 for settlement of the own damage claim of the insured vehicle.

            That the complainant further alleged that all the request of this complainant to settle the claim fell on deaf ears.

            That the complainant further alleged that it is very pertinent to mention here that, the OPs at the time of issuing the policy had assured the Complainant that, the contract is to indemnify the loss suffered to the vehicle in an accident. That, the policy is a comprehensive policy and the company had assured this complainant that it shall indemnify the complainant for the loss suffered to her.

            That the complainant further alleged that the OPs at no point of time had explained the terms and conditions of the policy to this complainant.

            That the complainant further alleged that the OPs have repudiated the claim on extraneous grounds, which  amount to unfair trade practice and amounts to deficiency of service.

            That the complainant further alleged that the repudiation of own damage claim of the insured vehicle on extraneous grounds is illegal and amounts to deficiency of service and unfair trade practice, consequently the OP is liable to pay the compensation and damages to this Complainant.

            That the complainant further alleged that the complainant has suffered huge financial loss. Mental agony as the vehicle was kept ideal and also because that the OPs failed to settle the claim in time.

            Hence, filed the complaint praying for settling the policy claim of Rs. 10,00,000/- as prayed above.

3)         This forum after admitting the complaint a notice was issued to the OPs and the said notice is served upon them. The OP-1 did not appear on the date of appearance hence he was placed as Ex-parte. The OP-2 appeared before the forum  through his counsel and filed vakalatanama and main objections/written version to the main petition and then the said case was posted for the evidence.

4)         The main objections/ written version of the OP-2.

            The OP submits that, the complaint filed by the complainant against the respondents is false, frivolous and vexatious and far away from the truth and the same is not maintainable either in law or on facts. Hence, the same is fit to be dismissed.

            The OP further submits that, the contents of Para No.1 of the complaint are true and correct. Hence, they are submitted.

            The OP further submits that, the contents of para No.2 of the petition are true and correct and hence, they are admitted. It is true that, the OPs are the insurer of the vehicle bearing registration number TS06-UA2866, vide policy No.OG-15-1801-1803-00002765, validity from 30-10-2014 to 29-10-2015. All other contents of Para No. 1 of the complaint are true and correct.

            The OP further submits that, the contents of Para No. 4 of the complaint are partly true and partly false. It is true that, the insured vehicle met with an accident on 12-06-2015 at about 3.45 AM at Gudada Camp, Tq: Gangavathi, District Koppal. But, it is false to state that, the vehicle got damaged in the said accident. Further it is true that, Gangavathi Rural Police have registered a crime No:168/2015. Hence, the complainant is put to strict proof of the same.

            The OP further submits that, the contents of Para No.4 of the complaint are true and correct. It is true that, the accident was duly informed to the respondent No.2, because the accident took place at Gangavathi, District Koppal and the opponent No.2 arranged for survey by their panel surveyor who has assessed the loss of the damaged vehicle and has submitted the survey report.

            The OP further submits that, contents of Para No.5 of the complaint are false and baseless and hence, they are denied. Hence, the complainants be put to strict proof the same.

            The OP further submits that, the contents of Para No.5 of the compliant are false and baseless and hence, they are denied. It is false to state that, the vehicle was shifted to the Authorized dealer M/s Bharath Benz, Koppal, the authorized dealer of the Truck, has prepared the assessment and have passed the loss damage of the vehicle in the accident at Rs.5,45,977.96/-. Hence, the complainants are put to strict proof of the same.

            The OP further submits that, the contents of Para No.6 of the complaint are true and correct and hence, they are admitted.

            The OP further submits that, the contents of Para No.7 of the complaint are false and baseless and hence, they are denied. It is false to state that, all the request of this complainant to settle the claim fell on deaf ears of the respondents.

            The OP further submits that, the contents of Para No.8 of the complaint are true, but, they are along with the terms and conditions which have been shown in the policy. Hence, the complainant is put to strict proof of the same.

            The OP further submits that, the contents of the Para No.9 of the complaint are false and baseless and hence, they are denied.

            The OP further submits that, the contents of Para No.10 of the complaint are also false and baseless and hence, they are denied. It is false to state that, the opponents have repudiated the claim on extraneous grounds, which amount to unfair trade practice and amounts to deficiency in service. As matter of fact, the opponents have rightly repudiated the claim of the complainant. Hence, the complainant is put to strict proof of the same.

            The OP further submits that, the contents of Para No.11 of the complainant are also false and baseless and hence, they are denied. It is false to state that the repudiation of own damage claim of the insured vehicle on extraneous grounds is illegal and amounts to deficiency of service and unfair trade practice, consequently the opponent is liable to pay the compensation and damages to this complainant. Hence, the complainant is put to strict proof of the same.

            The OP further submits that, the contents of Para No.12 of the complaint are also false and baseless and hence, they are denied. It is false to state that, the complainant has suffered huge financial loss, mental agony as the vehicle was kept ideal and also because that the opponents failed to settle the claim in time. Hence, the complainant is put to strict proof of the same.

            The OP further submits that, the contents of Para No.13 of the complaint are also false and baseless and hence, they are denied. It is false to state that this Hon’ble court has got jurisdiction to try the above complaint. As a matter of fact, the vehicle is of Telangana State and the policy issuing branch is Hyderabad and Belgaum. Hence, this Hon’ble Court has no jurisdiction to try this complaint.

TRUE FACTS OF THE CASE:-

            The OP further submits that, it is true that, the vehicle bearing registration number TS06-UA2866, is insured with respondents and its policy No:OG-15-1801-1803-00002765, validity from 30-10-2014 to 29-10-2015. But, it is false to state that, the vehicle has been damaged in the accident as shown in the complaint on 12-06-2015.

            The OP further submits that, this respondent submits that, the permit of the vehicle is valid for Telangana state only from date 16-12-2014 to 15-12-2009 and the vehicle is not having permit to ply within the jurisdiction of the Karnataka State. Hence, on this count also, the complaint is fit to be dismissed.

            The OP further submits that, the complainant has furnished permit of the Karnataka state, but the same is valid from 09-07-2015 to 15-12-2019. But, the accident in question has occurred on 12-06-2015 prior to issuing the Karnataka permit. Hence, there is violation of Permit conditions by the complainant. The vehicle in question is not having any permit to ply the vehicle within the limits of Karnataka State and whereas the accident in question has occurred in Gangavathi Taluka jurisdiction of Karnataka. Hence, on this count also, the complaint is to be dismissed.

            The OP further submits that, the driver of the vehicle involved in the accident as shown in the FIR i.e. Jugeshwar Mahto was not the driver of the said vehicle and he has been falsely implicated in the case only with a view to get the compensation from the respondent’s insurance company.

            The OP further submits that, the complainant is the permanent resident of Sagala village of Gadwal Mandal, Mehaboob Nagar District of Telangana State and the policy issued branch is Hyderabad i.e. OP-1 and the fact of the accident has been informed to OP-2 who is the branch at Belgaum. Hence, this court is not having jurisdiction to try this complaint. Hence, on this count alone, the complaint is fit to be dismissed, with heavy costs.

            The OP further submits that, without prejudice to the above contentions it is submitted that, we deputed the IRDA licensed surveyor to assess the loss of the damaged vehicle. Said surveyor has assessed the loss to the tune of Rs.5,68,639/- with depreciation of Rs.32,260.68/- add on cover subject to terms and conditions of the policy. It is submitted that the complaint is not entitled to claim the amount as stated in the complaint and even assessed loss. This Respondent Insurance Company is not liable to pay to the complainant as per the estimate of repairs submitted by the RNS Trucking Koppal. The estimate is merely estimation and such estimate cannot take the place of actual proof of alleged loss. It is always an expert duly licensed surveyors and loss assessors, who are authorized under section 64 UM of the Insurance Act to make the assessment of losses as per terms and conditions of the policy after taking into consideration all the aspects with regard to class, model, market value of vehicle, depreciation of parts, cost of repairs and salvage value of the parts etc., thus relying entirely upon the estimate of repair is neither tenable nor proper and surveyors report is always an important piece of evidence and cannot be discarded or brushed aside.  The liability of the Insurance Company, if any will be as per the survey report of the surveyor if the claim is admissible under terms of the Policy. The surveyor has taken into consideration all the factors and has submitted the survey report and the liability if any of the Insurance Company is as per the assessment made by the surveyor and not as per the claim made by the complainant nor the estimate of repairs submitted by the complainant. The surveyors who are licences by the IRDA will take into consideration all the relevant factors and will submit the report to the Insurance Company. The Insurance Company will taken into consideration the report of the surveyor in finalizing the claim after taking into consideration the terms and conditions of the policy. In this case as there is breach of policy condition on the part of the insured and hence, the Insurance Company is not liable to make the payment to the complainant. Hence, prays for the dismissal of the complaint with heavy cost.  

5)         On the basis of the above pleadings the following points that arise for our consideration are;

POINTS

1)         Whether the complainant proves that there is deficiency in service in not settling the policy claim amount of the vehicle after the accident?

2)         Whether the complainant is entitled for relief as sought for?

3)         What order?

6)         To prove the case of the complainant, the complainant himself examined as PW-1 and he has got marked the documents as per Ex.A-1 to Ex.A-11 and closed their side of evidence.  The OP-2 himself examined as RW-1 to RW-3 and he has got marked documents as per Ex. B-1 to Ex. B-9 and closed their side evidence and posted for arguments.  

7)         Heard the arguments of counsels and perused the records.

8)         Our findings on the above points are as under;

Point No. 1:   In the Negative

Point No. 2:  In the Negative

Point No. 3:  As per final Order for the following

REASONS

9)         POINT No. 1 and 2:- As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

10)  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, It is the case of the complainant alleging deficiency in service in not settling claim of the policy amount of Rs. 10,00,000/-. There is also no dispute regarding that the complainant has insured his vehicle and had obtained the commercial vehicle package with a policy No: OG-15-1801-1803-00002787 which was issued on 18-11-2014 with a premium of Rs. 92,467/- to the total sum insured of Rs. 22,17,690/-. There is also no dispute that the premium of the policy is not paid on 12-06-2015 the complainant vehicle met with an accident and got damaged at about 3.45 A.M. at Gudada Camp, Tq: Gangavathi, Dist: Koppal. Being beneficiary in the policy the complainant approached and claimed for sum insured amount and submitted the claim form and necessary documents then the claim was repudiated on the ground that the vehicle was not having a valid permit to ply in the State of Karnataka. Till today the OP has not settled the claim. Hence the complainant alleged deficiency in service.

11)       To prove the case of the complainant, the PW-1 has reiterated the complaint averments in his examination of chief and in support of his case, he has produced the vehicle policy document which has been marked as Ex. A-1. It is admitted that this policy was issued by OP. He has further averred that the policy contained the details of the sum insured and the premium to be paid i.e. Ex. A-1. Ex. A-1 clearly reveals that this policy is issued in the name of the complainant and the premium was paid and the policy commenced from 18-11-2014 and had validity up to 29-10-2015.

12)       As per Ex. A-2 it is the copy of the Registration certificate issued by the Government of Telangana on perusal of Ex. A-2 it clearly reveals that the complainant has a valid permit given by the Telangana Transport Department. Ex. A-4 is the FIR issued by the Gangavathi Rural Police Station along with the complaint. As per Ex. A-7 and Ex. A-8 these are the permits issued by the RTO of Maheboob Nagar and RTO of Bengaluru. Ex. A-7 Clearly records that it has permit validity from 16-12-2014 to 15-12-2019. Ex. A-8 clearly reveals that it has a permit validity from 09-07-2015 to 15-12-2019.

13)       Further with respect to Point No:1, the RW-2, the OP-2 has deposed as per their specific defence set up in their written version that the permit of the vehicle is valid for Telangana State only from 16-12-2014 to 15-12-2019 and the vehicle is not having permit to ply within the Karnataka. The permit is valid from 09-1-2015 to 15-12-2019 as per Ex. A-8. But the Accident in question has occurred on 12-06-2015 prior to issuing of the Karnataka Permit and to substitute the same, the OP-2 produced the letters issued to the complainant dated: 04-09-2015, 06-07-2015, 13-07-2015 and 19-08-2015. Which have been marked as Ex. B-1 to Ex. B-5.

14)       As far as merits of the case in covered it is adjudicated fact that at the time of incident which occurred on 12-06-2015. The vehicle was not having Karnataka Permit but it had a permit of Telangana Government.

15)       In the context of the above noted settled legal position we now placed to angle the facts of the case. Section 60(1) of the Motor Vehicles Act, 1988 deals with “Necessity for Permits,” which reads  there;

“Necessity for permits:-

1. No owner of motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place. Whether or not such vehicle is actually covering any passengers or Goods same in accordance with the conditions of the permit granted or counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.

16)       From the above, it is clear that no transport vehicle can be used on any public place without a valid without a valid permit cannot be plied on the road. For the violation of the said provision, there is a penal liability provided U/sec. 192(A) of the Motor Vehicles Act. learned counsel for the OP-2 submitted that no vehicle can be plied on the road unless it has a valid permit, the vehicle in dispute did not had a valid permit of Karnataka State and hence was being used in violation of the law and condition of the Insurance policy. The vehicle in question is a Transport Vehicle. Therefore the complainant is not entitled to get compensation.

17)       We have perused the permit of Telangana State i.e. Ex. A-2 produced by the complainant the same was issued plying on the roads only to the extent of Telangana State. Admittedly the offending vehicle was not having permit to ply in the Karnataka State at the time of accident. To drive the said vehicle, a permit is required under the provisions of Sec. 192(a) of the Motor Vehicle Act. As per the evidence adduced in this case, the complainant possessed only permit towards Telangana State. Section 88 of the Motor Vehicles Act provides that a permit granted by the Regional Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter singed by Regional Transport Authority of that Region and a permit granted in any one state shall not be valid in any other state unless it is counter signed by the State Transport of that other State. In view of Provisions of the Motor Vehicle Act, the vehicle in question was beings plied without route permit. Section 87 of the Motor Vehicle Act providing for grant of Temporary Permit to meet particular temporary need, but the complainant has not produced any temporary permit. It is also admitted that there was no permit to ply in the Karnataka State and also that no temporary permit was taken to enter in to the State of Karnataka. Thus this is a clear violation of Section 66, 87 and 88 of the Motor Vehicles Act, 1988 which violation is a fundamental breach of terms and conditions of the insurance policy undisputedly; the vehicle in question was insured and it met with an accident resulting in damage during the concern of Insurance Policy. But at the time of accident, the complainant did not have a valid route permit.

18)       The counsel for the OP-2 has relied the citation recorded in Revision Petition No: 3885/2008 by the Hon’ble National Commission, New Delhi, and United India Insurance Complainant. Ltd. V/s Jarnail Singh.

            That truck in question met with an accident in Himachal Pradesh where it was plying without any valid permit and hence the insurance claim was repudiated by the petitioner Insurance Company as this was a clear violation of the terms and conditions of the insurance policy. In fact the truck had valid permit for only four State namely, Chhatisgarh, Maharashtra, Gujrat and Rajasthan. The respondent/complainant had not taken even any temporary permit to enter the State of Himachal Pradesh. The respondent has submitted that he has paid toll tax and the goods tax while entering Himachal Pradesh. Toll tax and goods tax  are levied on commodities being transported by the vehicle and are not related to the taxes paid for the vehicle for entering a particular State. The District Forum has critically examined this issue has reached the conclusion that the truck was plying in Himachal Pradesh without any valid permit and this is a clear violation of the terms and conditions of the policy. The State Commission has relied on the judgments of Kesarben V/s United India Insurance Complainant. Ltd., (2000) NCJ 632 And 2000 CCJ 64 (NC) Poly Mat India Pvt. Ltd., V/s National Insurance Co. Ltd.

            It is clear that both the for a below have accepted that the breach of terms and conditions of the policy have been made in the present case. I agree with the observations of the District Forum that the payment of toll tax and goods tax at entry point of the State does not entitle the vehicle to ply within the State as these taxes relate to commodities being transported. It is also admitted that there was no permit to ply in the State of Himachal Pradesh and also that no temporary permit was taken to enter into the State of Himachal Pradesh. Thus, there was clear violation of Sections 66, 87 and 88 of the Motor Vehicle Act, 1988. This is a fundamental Breach of terms and conditions of the policy. Accordingly, the Insurance Company/petitioner has rightly repudiated the claim. Violators of law cannot deserve any concessional treatment.

            The fact and circumstances of the case in hand and the fact and circumstances of the said citation are applicable.

19)       Further during the court of argument advanced by the counsel for the complainant they have much argued that the claim has to be settled on non standard basis.

20)       The counsel for the complainant has relied on a citation reported in I (2015) CPJ 332 (NC) by our Hon’ble National Commission, New Delhi, Bheerajram V/s United India Insurance Company Ltd.,

           Consumer Protection  Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(b) – Insurance – Accident of vehicle – Overloading – Violation of conditions of Policy – Claim repudiated – Deficiency in service – District Forum dismissed complaint – State Commission dismissed appeal – Hence revision – Accident took place during subsistence of Policy – Excess load of 2,500 kgs. Works out to be 12% in excess of licensed capacity – Claim had to be settled on non-standard basis i.e. at 75% of admissible claim – Plea that cause of accident was deflation of tire which could be on account of excessive weight, not accepted – Repudiation not justified.

21)       In the instant case the complainant has filed the repairing bill dtd: 21-09-2015 and 15-12-2015 of RNS Trucking (Bharat Benz Authorized Dealer) the same have been marked as Ex. A-9 to Ex. A-11 in which the repairing charges is mentioned in total of Rs.7,72,229/- on perusal of the documents Ex. A-9 to Ex. A-11 filed by the complainant it appear that it is safely established that the complainant has incurred  about a sum of Rs.7,72,229/- in repairing of the vehicle. As per the basis of judgment of Hon’ble Supreme Court in Amalendu Sahoo the complainant is entitled to get compensation on non-standard basis i.e. 75%. Generally the insurance claim on non-standard basis is allowed only in such case where there is some minor lacuna, which does not materially affect the claim. Where as in this case the vehicle was not authorized to ply in the State of Karnataka where it met with an accident. This is a  major violation of the terms and conditions of the policy and allowing claim on non-standard basis cannot be applied. The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different. Therefore the complainant has fails to prove that there is deficiency in service by OP’s. On the contrary as per the oral evidence coupled with the documentary evidence. The complainant has failed to prove the deficiency in service on part of OP’s and the said fact has been clearly disclose in Ex. B-3, Ex. B-6, Ex. A-1 and Ex. A-2 which are the claim repudiation letter, Insurance policy and the permit of Government of Telangana  which have been already discussed supra. Hence, in the light of above observation, the complainant failed to prove the deficiency in service on point of OPs. Hence in the light of above observations we constrained to hold Point No: 1 and 2 in the Negative. 

22)       Hence in the result we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby dismissed.
2. No order as to cost.
3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 26^th day of July 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.