Date of Filing: 14/07/2011
Date of Order:24/10/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 24th DAY OF OCTOBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1303 OF 2011
Sri. B.A. Lokesh Kumar,
S/o. B. Aswatha Raju,
Aged About 39 years,
No.1532/2, Raghavendra Nilaya,
Opp. To: Venkatenahalli Kalyana Mantappa,
B.B. Road, Chikkaballapur-562 101.
(Rep. by Advocate Sri.D.V.Vishwanatha Gowda) …. Complainant.
V/s
The Manager,
Bharti AXA General Insurance
Company Limited, 1st Floor,
Fems Icon, Sy No.28,
Doddanekkundi Village,
Outer Ring Road, K.R.Puram Hobli,
Bangalore-560 037.
(Rep. by Sri.H.N.Keshava Prashanth, Advocate) …. Opposite Party.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay the sum of Rs.13,31,997/-, are necessary:-
The complainant has insured his brand new INNOVA car bearing registration No. KA-01/TR-MB-2979 with the opposite party under a comprehensive insurance policy which was valid between 25.10.2010 to 24.10.2011. On 09.06.2011 at 10.30 AM the said vehicle driven by Suresh met with an accident causing damage to the vehicle, injuries to Driver and death of the son of the complainant. This was intimated to the opposite party also. As per the instructions of the opposite party the vehicle was shifted to the show room of the Ravindu Toyota Show Room, Opp. to Iskon Temple, west of Chord Road, Bangalore. The damage was assessed at Rs.13,16,997=00. The complainant had incurred Rs.15,000/- towards lifting and shifting charges. Later the opposite party repudiated the claim. Hence the complaint.
2. In brief the version of the opposite party are:-
The complainant has not approached this Forum with clean hands nor there is any negligence or deficiency in service. The insurance of the vehicle is admitted. The liability of the insurer is as per the terms of the policy and as per the provisions of the Motor Vehicles Act. The complainant informed the accident on 13.06.2011 and the accident took place on 09.06.2011. The surveyor was directed to assess the damages and gives the report. On verification of the documents, the opposite party came to know that the vehicle was unregistered and the same was plied by the complainant without registration certificate as required under the Motor Vehicles Act. After the lapse of temporary registration on 23.11.2010 the complainant never got the vehicle registered. Hence it was clear violation of the act and thus the claim was rightly repudiated. The accident occurred on 09.06.2011 and it was intimated to the opposite party on 13.06.2011 thus there is inordinate delay in intimating the accident to the opposite party. As the complainant has violated the policy conditions the claim was repudiated.
3. To substantiate their respective cases, the parties have filed their affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether the repudiation of the claim by the opposite party amounts to deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant is the owner of the vehicle bearing registration No. KA-01/TR-MB-2979 a INNOVA Car. He got it insured with the opposite party under the policy No.FPV/10401796/E4/10/BIE413 and the insurance was valid between 25.10.2010 to 24.10.2011. It is also an admitted fact that the vehicle met with an accident on 09.06.2011 the son of the complainant died in the accident, the driver sustained injuries and a complaint was lodged before the jurisdictional police on 09.06.2011 itself and the police have registered the case in Crime No.91/2011 and investigated the matter. Regarding the vehicle damage as per the request of the opposite party the complainant shifted the vehicle to the Ravindu Toyota Show Room, Opp. To Iskon Temple, west of chord Road, Bangalore, wherein the damage was assessed at Rs.13,16,997=00 and the towing charges Rs.15,000/-. This was intimated to the opposite party and the surveyor of the opposite party has gone and verified the same and it was a comprehensive insurance. The claim was made before the opposite party and the opposite party rejected the claim on the ground that the vehicle’s temporary registration was lapsed and there was no registration of the vehicle as on the date of the policy. It is an admitted fact that there was no registration number given to the vehicle as on the date of the policy.
7. In a case between C.B. Virupaksha alias Shivu –V/s- Shivakumar & Another in 2000(1) Karnataka Law Journal 495 Hon’ble Justice Chandrashekaraiah [as his lordship then was who was later Chairman of the Karnataka State Consumers Disputes Redressal Commission] has held thus:-
“The defences open to the Insurance Company are only those mentioned under Section 149(2) of the Act. The non-registration of the vehicle is not one of the defences enumerated under Section 149(2) of the Act. Therefore, the Insurance Company is not entitled to take defence of the non-registration of the vehicle on the date of the accident. Further, the grounds of defences have been specified in Section 149(2) of the Act and no other ground of defence can be added to the said section. Under sub-section (7) of Section 149 of the Act, the Insurance Company is not entitled to avoid its liability to any person entitled to the benefit of any judgment and award referred to in subsection (1) otherwise than in the manner provided for in sub-section (2) of Section 149 of the Act. Therefore, the Tribunal was not right in absolving the liability of the Insurance Company on the ground that there was no registration of the vehicle as on the date of the accident. The Insurance Company shall not be allowed to raise the defence of non-registration as it falls outside the scope of Section 149(2) of the Act in this appeal. The insurance company is directed to pay the amount to the claimant as awarded by the Tribunal.”
It means, Insured vehicle involved in accident on account of rash and negligent driving thereof happening after expiry of – Liability of Insurance Company to pay compensation awarded against owner of vehicle and grounds of defence available to Insurance Company to avoid liability – Since non-registration of vehicle is not one of grounds enumerated in Section 149(2) of Act, as available to insurer to avoid his liability, Insurance company cannot refuse to pay compensation on ground that vehicle was not registered at time of accident. Hence under these circumstances the opposite party cannot take the defence of non-registration to reject the claim. Hence that repudiation has to be set aside.
8. In this case the other contention taken in the version is delay of intimating the accident to the opposite party. In this case the accident occurred at 10.30 AM on 09.06.2011 near Shanthigrama in Hassan where there was injuries to the driver and the son of the complainant died. The complainant was not there at the spot when he has received the intimation of death of his son he has to attend to the cremation. Hence he has made the claim with the opposite party on 13.06.2011 it is well within the reasonable period. Complaint to police was lodged on 09.06.2011 itself. He has given the intimation to the opposite party. There is no delay at all.
9. Considering the facts and circumstances of this case the opposite party’s repudiation of the claim is nothing but an unfair trade practice and also deficiency in service.
10. The parties have cited (i) ACJ 2010 Page No.871, Karnataka, (ii) ACJ 2011 Page No.1831, Karnataka, (iii) AIR 1966 SC 1644. There is no dispute above the proposition of law stated therein. These principles are not applicable to the facts and circumstances of this case. Quoting the said judgments in extenso is prohibited under Regulation 18(5) of the Consumer Protection Regulation (2005). Hence it is not quoted in extenso. Hence for the forgoing reason we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay Rs.13,31,997/- to the complainant together with interest thereon at the rate of 12% per annum from 13.06.2011 until payment within 30 days from the date of this order.
3. The opposite party is also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 24th Day of October 2011)
MEMBER MEMBER PRESIDENT
