DATE OF FILING: 25.04.2013.
DATE OF DISPOSAL: 15.09.2017.
O R D E R
Dr. Alaka Mishra, Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that on 07.01.2012 the complainant being the owner of the Auto Rickshaw bearing Registration No. OR-07-T-5910 insured with the O.P. for an amount of Rs.1,06,272/-. Accordingly the O.Ps issued policy certificate bearing No.3368/00353778/000/02 to the complainant which was valid from 07.01.2012 to 06.01.2013. The said policy was covered under first party damage compensation as well as coverage for third party risk and accident benefits. On 12.11.2012 the auto of the complainant was kept by the side of NH-5 when all of a sudden an unknown Truck dashed the auto and fled from the place causing serious damage to the auto. The said matter was intimated to the Jankia Police Station vide Station Diary No.278 dated 13.11.2012. The auto of the complainant was badly damaged and the complainant shifted the said auto to Gurapali Auto Garage for necessary repairing and immediately submitted the damage claim of Rs.70,000/- towards repairing cost of the auto before the O.Ps. The complainant approached the local agency of the O.Ps and they suggested to make the necessary repairing in his own cost and after due enquiry, the O.P. will compensate the complainant. Thereafter the complainant undertook repairing of the damage at the Gurapalli garage and the total damage repairing cost comes to Rs.61,500/-. The complainant send one photocopy of the said repairing expenses to the O.Ps but the complainant waited for the result of the damage claim and on 24.11.2012 the O.P. appointed a surveyor to assess the loss and damage occurred to the auto of the complainant and also assured to dispose of the damage claim at an early date. Since more than four months passed from the appointment of the surveyor but neither claim of the complainant was settled nor was the complainant paid his damage claim. Hence on 06.03.2013 the complainant issued a legal notice through his advocate to settle the damage claim but all went in vain. Alleging deficiency in service on the part of the O.Ps, the complainant has filed this consumer dispute praying to direct the O.Ps to pay the damage claim of Rs.61,500/- along with penal interest from the date of accident of the insured vehicle till payment is made along with Rs.10,000/- towards compensation for the mental agony and suffering in the best interest of justice.
3. Upon notice the O.Ps filed version through learned counsel Shri R.K. Panigrahi, Advocate and filed written version on 11.9.2013. In the written version it is stated that the averments made in the complaint are not all true and those are not specifically admitted herein, are deemed to have been denied and the complainant is put to strict proof of the same. Soon after receipt of the intimation, the (Insurance Company) engaged a surveyor for estimation of loss, verification of documents, bills and voucher/cash memos etc. The surveyor accordingly collected documents from the complainant and submitted the same along with the report in the office of the O.Ps. Soon after receipt of the documents from the complainant, the O.Ps verified the same and found that the fitness certificate of the alleged transport vehicle OR-07-T- 5910 Auto Rickshaw was not in force on the date and time of accident. The O.Ps has served a letter to the complainant to submit the valid fitness certificate in order to process the claim. The complainant did not supply the same and accordingly O.Ps repudiated the claim. The complainant has put the insured vehicle on road knowing that the vehicle ply on road without the fitness certificate, fitness of the vehicle was expired at the material time of accident. Therefore vehicle being a commercial vehicle has been put to use in violation of Section 84 of Motor Vehicle Act and in violation of permit condition. While verify the documents submitted by the complainant it reveals that on the date and time of accident the alleged vehicle had no such fitness certificate. In spite of letters of the O.Ps, the complainant did not furnish the fitness certificate of the above alleged vehicle. In these circumstances, it is established that on the date of accident, the vehicle had no such fitness certificate. Hence plying of the above alleged vehicle without fitness certificate is a violation of conditions of insurance policy as well as the provisions of the M.V. Act. In this context, the claim of the complainant is not maintainable and the same is liable to be dismissed. The allegations made in the complainant against this O.Ps are all baseless. To ply any vehicle on the road fitness certificate is mandatory and also for any accidental claim fitness certificate is necessary document for the settlement of claim towards the damages of the vehicle. In the present case the complainant plied the above alleged vehicle without fitness certificate. The complainant has violated the conditions of the insurance policy by plying the above alleged vehicle in absence of the fitness certificate and hence the repudiation of the claim made by the O.Ps (Insurance Company) is justified as the vehicle was plying in absence of the fitness certificate. The allegations of deficiency in service and negligence leveled against the O.Ps are all baseless. The complainant knowingly well about the position of the claim, unnecessarily dragged the O.Ps to the Hon’ble Consumer Forum, and due to this unwarranted action of the complainant, the O.Ps a financial organization, suffered a lot which caused wastage of time as well as loss of public money towards the unnecessary vexatious litigation and disturbing the services towards other valuable customers. The proceeding is bad for wrong joinder of parties. The complaint is not maintainable in law nor does this Forum have jurisdiction to adjudicate the same. Hence the O.Ps prayed to dismiss the complaint and pass suitable order with a direction to the complainant for payment of cost and damages towards the vexatious litigation against this O.P. in the interest of justice.
4. On the date of disposal of the case on merit, the learned counsel for the O.Ps is present and learned counsel for the complainant was absent. In fact the learned counsel for the complainant was absent since long and after filing of written argument on 16.11.2016 he is not proceeding with the case. The learned counsel for the O.Ps filed their written argument on 24.05.2016. The complainant was absent for last five adjournments and even not taking any steps for final hearing of the consumer dispute. Despite several opportunities were given, the learned counsel for the complainant did not attend the case for final hearing hence the Forum decided to dispose the case on merit as per Section 13 (2) (c) of Consumer Protection Act, 1986 since this is a year old case and the complainant is not interested to proceed with the case.
5. On the date of final hearing of the consumer dispute, we have heard argument from the learned counsel for the O.Ps at length. We have also gone through the case record and perused the materials like complain petition, written arguments of complainant and other materials filed by the complainant in support of his case. On going through the case record and on perusal of materials, on merit, it is not in dispute that the vehicle was insured with the O.Ps on dated 07.01.2012 which was valid w.e.f. 07.01.2012 to 06.01.2013. It is also not a disputed fact that the vehicle was met with an accident on dated 12.11.2012 and on the very next date the complainant lodged the complaint before Jankia Police Station on 13.11.2012 regarding the accident of the alleged vehicle. It is also not in dispute that on intimation of the complainant, the O.P. insurance company had appointed the surveyor for assessment of loss of the complainant. On a careful perusal of materials placed on the case record and on verification of written submissions of complainant as well as O.Ps, it has came to our knowledge that the alleged auto was plying without a fitness certificate on the date of accident of the vehicle. It is also a fact that the on the date of insurance of the vehicle it was having a valid fitness certificate but on the date of accident i.e. on 13.11.2012 there was no valid fitness certificate of the Auto Rickshaw in dispute. The complainant has put the insured vehicle on road knowingly that the vehicle plies on road without a fitness certificate. On verification of the fitness certificate placed on the case record, we find that the fitness of the vehicle was expired on 18.01.2012 much before the date of accident. In the foregoing peculiar fact and circumstances, it is established beyond doubt that on the date of accident of the alleged Auto Rickshaw was not having a fitness certificate which is required as per the Motor Vehicle Act to ply on the road. On this account only we are convinced that the claim of the complainant was liable to repudiated by the insurance company. In this case it is proved beyond that the complainant was plying the Auto Rickshaw without a fitness certificate which is violation of policy conditions and violation of the Motor Vehicle Act hence the O.Ps are not liable to compensate the loss of the complainant. In a sequel to the above discussions and considering the facts and circumstances of the case, we found that the complaint of the complainant has got no merit for consideration and the same is liable to be dismissed due to devoid of any merit.
6. In the result, we dismissed the complaint of the complainant due to devoid of any merit. Parties are directed to bear their own costs. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 15th September 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
