BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:631/2019

DATED: 24/04/2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                          Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER  

:JUDGEMENT:

Delivered by Hon’ble President, Kum. H.N. MEENA.

The complainant has filed this complaint under section 12 of Consumer Protection Act, 1986 for seeking the relief to direct the opposite party to pay Rs.4,20,000/- as compensation and Rs.1,00,000/- for other expenses @ 18% interest as costs and pass any other such order, as this Hon’ble Commission may deems fit and proper in the  interest of Justice.  

2. The brief facts of the complaint:

Complainant is the owner of Goods vehicle (Tempo) of bearing No.T.P. No.KA/6/TMP/2019/20245, Engine No.BKH042013P, Chassis No. MB1AA22E8KRB79534 Model Name DOST RLS (BSIV).   The policy was in force at the time of arising dispute.

3. Complainant alleged that, on 28/08/2019 the driver Goods vehicle driving at night 10.15 pm. In NH-150 near to Gollahalli Village, for negligence of the Lorry driver the vehicle took an accident the Goods vehicle was fully damaged, without stopping the Lorry went high speed in the high way and the Goods Vehicle Driver could not get the Lorry and Lorry number. The complainant is owner of the goods vehicle he has purchased the goods vehicle and he was having Temporary number, the vehicle owner is farmer and he had taken Bank Loan of purchased the Goods vehicle.  The complainant has given the Complaint immediately to the jurisdictional Police Station and FIR has been registered, and even the complainant has given his statement before the Insurance Company also.

4. Complainant further submits that, the complainant has took new Goods Vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/- it’s a heavy repair charges the complainant is a farmer not bearing the heavy amount. Hence the complainant has given the quotation and along with complaint copy and FIR copy and other documents to Opponent for the purpose of claiming amount of insurance.

5. The insurance company / opponent has sent the reply to the complainant on 07/09/2019, in this letter the opponent is not paying Accidental Claim due to breach of insurance Company conditions that they Insurance/Opposite party has found that three (3) people were traveled at the time accident as it is an exceeding seating capacity claim will be under repudiation. The complainant complained in his complaint that, the written complaint was delivered at the office of the opponent, in spite of which, the opponent did not send any service/investigation officer immediately to rectify the faults.

6. Complainant further submits that the opponent is liable for breach of contract as it has not complied with the terms of the guarantee and have acted extremely negligently in attending to the complaint of complainant and is therefore liable to pay the claim amount the complainant for the loss and injury caused to him.     

 7. The complainant issued a notice to the Opponent on 03.05.2021 which was received on 20/09/2019 and no reply has been given to the said notice. Hence, filed this complaint. The cause of action and Jurisdiction for this complaint is comes under the purview of this Hon’ble commission.

8. This commission after registering this complaint ordered for issuance of notice to opponent, wherefore opponent have made their appearance, through their respective counsels.

9. Version filed by the Opponent submit as hereunder:

The opponents stated in the version that the allegations of the complaint para No.1 to 10 which are not specifically admitted in this version are all hereby denied as false. That the opponent insurance company has issued policy to the Goods vehicle policy to the bearing Engine No. BKH042013P and its Chassis No.MB1AA22E8KRB79534 for the period 22/08/2019 to 21/08/2020 bearing policy No.3392/30033009/000/00 in the name of Thippeswamy S/o Thippanna and the said policy covers own damage for an amount of Rs.5,41,793/- (IDV) and also covers the risk of one WC employee and one owner of the goods and seating capacity of the vehicle is 1+1 i.e. one driver and one owner of the Goods, and the said policy was in force for the terms and conditions of policy and M.V. Act and confirmation
of 64 VB.

10. The opponents further stated in the version that the above said vehicle has met with accident on 28/08/2019 at about 10:15 pm and the same as intimated to the opponent insurance company in writing. For that the opponent insurance company has appointed surveyor for conducting final survey, for that he has conducted the final survey assessing the liability of Rs.1,68,745/- and given his report and also the complainant has given claim form with an estimation and with police papers, driving license, temporary registration certificate, RC and the said claim and the said claim form was duly signed by the complainant.

11. As on the date of the accident that the vehicle bearing Engine No. BKH042013P, Chassis No. M.B.1AA22E8KRB79534 was registered temporarily in RTO office, Chitradurga but the said vehicle was not registered on the date of accident dated 28/08/2019, that means there is no valid permanent registration certificate to the vehicle, hence it is a violation of policy terms and conditions and MV Act conditions.

That as per Sec. 39 of the M.V. Act, necessity for registration no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.

That as per Sec. 43 of the M.V. Act, notwithstanding anything contained in section 40, the owner of a motor vehicle may apply to any registering authority or other authority as may be prescribed by the State Government to have the motor vehicle temporarily registered and such authority shall issue a temporary certificate of registration and temporary registration mark.

 12. The complainant has violated and he has not renewed his vehicle permanently on the date of accident and this claims was falls under the exclusion clause and opponent further stated that, on the date of accident 3 persons were travelled at the time of accident by way of passengers in a Goods vehicle and also there is no valid permanent registration certificate to the vehicle, hence for that opponent insurance company has repudiated the claim of the complainant due to breach of registration clause of the motor insurance policy and provisions of MV Act, since the vehicle was not having registration certificate and valid fitness certificate which was not at all effective from the above said reasons it shows the complainant has filed this complaint with flimsy and untenable grounds without any proper reasons and there is no deficiency in service on the part of opponent. Opponent prayed the Hon’ble Commission be pleased to dismiss the complaint.

        13. Both complainant and opponent filed their evidence by way of Affidavit, the documents produced by complainant with list dated 14/02/2020 and 13/03/2020 came to be marked as Ex.A-1 to Ex.A-8 and documents produced by Opponent marked as Ex.B-1 to Ex.B-4, Both complainant and OPs filed their written arguments. Heard oral arguments of both side.

        14. On the assessment of the above facts, the following points arise for our consideration Viz.

1. Whether the complainant further proves any deficiency of service on the part of OP?
2. Whether the complainant is entitled to reliefs as prayed in the complaint?
3. What order?

15. The findings of this commission on the Points for consideration are as below.

Point No.1: In the affirmative

Point No.2: Partly In the affirmative

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

REASONS

16. Point No.1&2: We have gone through the complaint, objection, evidence and documents produced by both the parties. It is clear that the complainant is the owner of Goods vehicle (Tempo) of bearing
No.T.P. No.KA/6/TMP/201 9/20245, Engine No.BKH042013P, Chassis No. MB1AA22E8KRB79534 Model Name DOST RLS (BSIV).   In respect to his vehicle he had obtained the insurance policy bearing No. No.3392/30033009/000/00 valid from 22/08/2019 to 21/08/2020.

 To substantiate the above said fact policy copy Ex.A-6 proved that, the policy was in force at the time of accident. The complaint obtained the vehicle policy in bearing No. No.KA/6/TMP/2019/20245. It is not disputed in above said fact by opponent.

17. The complainant further submits that, on 28/08/2019 the driver of goods vehicle driving at night 10.15 p.m. In NH-150 near to Gollahalli Village for negligence of the Lorry driver the vehicle took an accident the Goods vehicle was fully damaged, without stopping the Lorry went high speed in the highway and the Goods vehicle Driver could not get the Lorry and Lorry Number. The complainant is owner of the goods vehicle he has purchased the goods vehicle and he was having Temporary number, the vehicle owner is farmer and he had taken Bank Loan for purchased the Goods vehicle. The complainant has given the complaint immediately to the jurisdictional Police station and F.I.R. has been registered FIR and Spot Panchanama was clearly reveals above said facts and truths.

18. The complainant further submits that, after the accident the complainant has took above Goods Vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/-. It’s a heavy repair charges the complainant has given the quotation and along with complaint copy and FIR copy and other documents to opponent for the purpose of claiming amount of insurance. The insurance company repudiated the claim of the complainant on 07/09/2019 stating that, three (3) people were traveled at the time of accident as it is an exceeding seating capacity claim will be under repudiation.

19. In the back ground of above said fact, we perused all the documents produced by the complaint these are got marked as Ex.A-1 complaint copy, Ex.A-2 FIR copy, Ex.A-3 Spot Panchanama, Ex.A-4 vehicle insurance claim, Ex.A-5 Temporary certificate of Registration Ex.A-6 Insurance Policy, Ex.A-7 Quotation copy, Ex.A-8 repudiation letter. These documents are substantiate fact of the case.

20. And moreover, we perused the Ex.A-5 Temporary Certificate of Registration. The complainant has having Temporary registration certificate for the vehicle from 27/08/2019 to 21/09/2019, on the date of accident temporary registration certificate is existing. The Temporary registration certificate is not expired. Hence he is still liable to claim. So for as the above fact concerned we perused the Ex.A-7 is Quotation the complainant has took goods vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/-.

21. In this regard, the complainant has not proved by evidence on record, there is no witness evidence to prove the case the complainant has got repaired his vehicle by incurred sum of Rs.4,20,000/-. It is not clear the complainant has must he proved by evidence on record. There is no evidence to prove the Ex.A7 it is as well as bill which were produced before court genuine or fake, because complainant has not produced the cogent evidence of Manager of the body constructor shop. Hence those were not believable document (Bill) repair alleged vehicle.

22. In spite of this, as per the Ex.A-8 is repudiation letter submitted by the complainant wherein rejection of the valid claim of the complainant is on ground of on the date of accident 3 people were travelled at the time of accident by way of passengers in a Goods vehicle and also there is no valid permanent registration certificate to the vehicle. The Insurance company has not produced any evidence on record to prove that, the accident occurred on account of on the date of accident 3 persons were travelled at the time of accident but the time of the accident the complainant has having Temporary Registration  of certificate issued by R.T.O. Chitradurga it is very clear in Ex.A-5.

        23. In this regard we perused the Ex.B-3, the OP has appointed surveyor for conducting final survey for that he has conducted the final survey assessing the liability of Rs.1,68,745/- in the above circumstance is very clearly reveals that, the OP insurance company admitted the accident and liability is reserved.

        24. The opponent insurance company has not escape their liability to adduce same reason, even though complainant entitled for claim as per below citation.

Citation reported in National Consumer Dispute Redressal Commission, New Delhi, Order in 2010(3) CPR 38 (NC) The Manager, The United Insurance Co. Ltd.
Vs Sri B. Ugandar as here under:

Consumer Protection Act, 1986-Sections 12 and 17- Insurance claim – Taxi Cab carrying eight persons as against sanctioned capacity of six persons met with accident by colliding against another vehicle – There was no fitness certificate of vehicle at the time of accident – Carriage of eight passengers against sanctioned capacity of six could not be construed as major violation or breach of conditions of policy.

Vehicle overloading no reason to deny insurance:

Overloading of a vehicle cannot be the sole ground for an insurance company to reject claims for damages caused to the vehicle in a road accident, the Supreme Court has ruled while quashing National Consumer Disputes Redressal Commission (NCDRC)'s order that loss caused to overloaded vehicle won’t be compensated.

NEW DELHI: overloading of a vehicle cannot be the sole ground for an insurance company to reject claims for damages caused to the vehicle in a road accident, the Supreme Court has ruled while quashing National Consumer Disputes Redressal Commission(NCDRC)'s - order that loss caused to overloaded vehicle won’t be compensated.

A bench of Chief Justice T S Thakur and V Gopala Gowda held that carrying more passengers than the permitted seating capacity in a insured vehicle does not amount to a fundamental breach of the terms and conditions of the policy and the insurance company could not eschew its liability towards the damage caused to the vehicle.

It said that the insurance company had to prove that the accident was caused because of the overloading to escape the liability of paying claims. The bench directed the insurance company to reimburse claim to the damages caused to a goods-carrying vehicle travelling with five passengers while seating capacity of the vehicle was only two including driver.

"This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle," it said.

The bench said that the insurance company could deny claims only in cases where breach of insurance policy was so fundamental in nature that it brought the contract to an end "The insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle," it said.

The bench quashed the order passed by NCDRC and Haryana State Consumer Disputes Redressal Commission which had allowed plea of insurance company that overloading could be a ground for denying claim for the damages. "In the instant case, the insurance company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle.

25. The above citation is applicable to the present case. The complainant has proved the deficiency of service on the part of the OP. Once the deficiency of service is proved the next question for? The complainant has prayed for Rs.4,20,000/- towards the repairs. But it is not supported by documentary evidence Ex.B-3 is a survey report submitted by OP himself. In this the loss is assessed at Rs. 1,68,745/-

26. The report of the surveyor is an important document in settling the claim of the  insured vehicle, for this, we rely on ruling reported in 2008 (4) CPR 83 (NC) The National Insurance Company Ltd., through its, Branch Manager and another V/s Shree Shyam Cold Storage through its Director.

“Report of the surveyor appointed under the provision of   

  Insurance Act has to be given greater importance”

        27. The complainant has proved deficiency in service on the part of OP he is entitled for Rs.1,68,745/- and claim for compensation mental agony and cost  of proceeding at Rs.10,000/- along with interest accordingly we answer the Point No. 1 & 2 partly in the affirmative.

28. Point No.3:  In view of the discussion, we proceed to pass the following.

::ORDER::

1. The complaint filed by the complainant U/s.12 of Consumer Protection Act, 1986 is hereby Partly Allowed.

2. The OP, shall pay Rs.1,68,745/- to the complainant along with  at the rate of interest 6% p.a. from the date of complaint till its realization.

3. The OP, shall pay Rs.10,000/- to the complainant as compensation for deficiency of service and towards mental agony and also cost of the proceedings.  
4. In case of non-compliance of the order the entire amount shall carry interest at the rate of 10% p.a. till its realization.

5. The OP shall pay the above said award amount within 30 days from the date of this order.

6. Send the free copies to both parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 24^th April 2023.)

                Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:-Sri Thippeswamy, S/o Thippanna by way of affidavit of evidence.

Wetness examined behalf of opponents:

DW-1:- Sri Mahantesh S/o Divakar by way of affidavit of evidence

Documents marked on behalf of Complainant:

Documents marked on behalf of opponents:

                Sd/-                               Sd/-                                     Sd/-

LADY MEMBER               MEMBER                     PRESIDENT

GM*BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:631/2019

DATED: 24/04/2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                          Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER  

:JUDGEMENT:

Delivered by Hon’ble President, Kum. H.N. MEENA.

The complainant has filed this complaint under section 12 of Consumer Protection Act, 1986 for seeking the relief to direct the opposite party to pay Rs.4,20,000/- as compensation and Rs.1,00,000/- for other expenses @ 18% interest as costs and pass any other such order, as this Hon’ble Commission may deems fit and proper in the  interest of Justice.  

2. The brief facts of the complaint:

Complainant is the owner of Goods vehicle (Tempo) of bearing No.T.P. No.KA/6/TMP/2019/20245, Engine No.BKH042013P, Chassis No. MB1AA22E8KRB79534 Model Name DOST RLS (BSIV).   The policy was in force at the time of arising dispute.

3. Complainant alleged that, on 28/08/2019 the driver Goods vehicle driving at night 10.15 pm. In NH-150 near to Gollahalli Village, for negligence of the Lorry driver the vehicle took an accident the Goods vehicle was fully damaged, without stopping the Lorry went high speed in the high way and the Goods Vehicle Driver could not get the Lorry and Lorry number. The complainant is owner of the goods vehicle he has purchased the goods vehicle and he was having Temporary number, the vehicle owner is farmer and he had taken Bank Loan of purchased the Goods vehicle.  The complainant has given the Complaint immediately to the jurisdictional Police Station and FIR has been registered, and even the complainant has given his statement before the Insurance Company also.

4. Complainant further submits that, the complainant has took new Goods Vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/- it’s a heavy repair charges the complainant is a farmer not bearing the heavy amount. Hence the complainant has given the quotation and along with complaint copy and FIR copy and other documents to Opponent for the purpose of claiming amount of insurance.

5. The insurance company / opponent has sent the reply to the complainant on 07/09/2019, in this letter the opponent is not paying Accidental Claim due to breach of insurance Company conditions that they Insurance/Opposite party has found that three (3) people were traveled at the time accident as it is an exceeding seating capacity claim will be under repudiation. The complainant complained in his complaint that, the written complaint was delivered at the office of the opponent, in spite of which, the opponent did not send any service/investigation officer immediately to rectify the faults.

6. Complainant further submits that the opponent is liable for breach of contract as it has not complied with the terms of the guarantee and have acted extremely negligently in attending to the complaint of complainant and is therefore liable to pay the claim amount the complainant for the loss and injury caused to him.     

 7. The complainant issued a notice to the Opponent on 03.05.2021 which was received on 20/09/2019 and no reply has been given to the said notice. Hence, filed this complaint. The cause of action and Jurisdiction for this complaint is comes under the purview of this Hon’ble commission.

8. This commission after registering this complaint ordered for issuance of notice to opponent, wherefore opponent have made their appearance, through their respective counsels.

9. Version filed by the Opponent submit as hereunder:

The opponents stated in the version that the allegations of the complaint para No.1 to 10 which are not specifically admitted in this version are all hereby denied as false. That the opponent insurance company has issued policy to the Goods vehicle policy to the bearing Engine No. BKH042013P and its Chassis No.MB1AA22E8KRB79534 for the period 22/08/2019 to 21/08/2020 bearing policy No.3392/30033009/000/00 in the name of Thippeswamy S/o Thippanna and the said policy covers own damage for an amount of Rs.5,41,793/- (IDV) and also covers the risk of one WC employee and one owner of the goods and seating capacity of the vehicle is 1+1 i.e. one driver and one owner of the Goods, and the said policy was in force for the terms and conditions of policy and M.V. Act and confirmation
of 64 VB.

10. The opponents further stated in the version that the above said vehicle has met with accident on 28/08/2019 at about 10:15 pm and the same as intimated to the opponent insurance company in writing. For that the opponent insurance company has appointed surveyor for conducting final survey, for that he has conducted the final survey assessing the liability of Rs.1,68,745/- and given his report and also the complainant has given claim form with an estimation and with police papers, driving license, temporary registration certificate, RC and the said claim and the said claim form was duly signed by the complainant.

11. As on the date of the accident that the vehicle bearing Engine No. BKH042013P, Chassis No. M.B.1AA22E8KRB79534 was registered temporarily in RTO office, Chitradurga but the said vehicle was not registered on the date of accident dated 28/08/2019, that means there is no valid permanent registration certificate to the vehicle, hence it is a violation of policy terms and conditions and MV Act conditions.

That as per Sec. 39 of the M.V. Act, necessity for registration no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner.

That as per Sec. 43 of the M.V. Act, notwithstanding anything contained in section 40, the owner of a motor vehicle may apply to any registering authority or other authority as may be prescribed by the State Government to have the motor vehicle temporarily registered and such authority shall issue a temporary certificate of registration and temporary registration mark.

 12. The complainant has violated and he has not renewed his vehicle permanently on the date of accident and this claims was falls under the exclusion clause and opponent further stated that, on the date of accident 3 persons were travelled at the time of accident by way of passengers in a Goods vehicle and also there is no valid permanent registration certificate to the vehicle, hence for that opponent insurance company has repudiated the claim of the complainant due to breach of registration clause of the motor insurance policy and provisions of MV Act, since the vehicle was not having registration certificate and valid fitness certificate which was not at all effective from the above said reasons it shows the complainant has filed this complaint with flimsy and untenable grounds without any proper reasons and there is no deficiency in service on the part of opponent. Opponent prayed the Hon’ble Commission be pleased to dismiss the complaint.

        13. Both complainant and opponent filed their evidence by way of Affidavit, the documents produced by complainant with list dated 14/02/2020 and 13/03/2020 came to be marked as Ex.A-1 to Ex.A-8 and documents produced by Opponent marked as Ex.B-1 to Ex.B-4, Both complainant and OPs filed their written arguments. Heard oral arguments of both side.

        14. On the assessment of the above facts, the following points arise for our consideration Viz.

1. Whether the complainant further proves any deficiency of service on the part of OP?
2. Whether the complainant is entitled to reliefs as prayed in the complaint?
3. What order?

15. The findings of this commission on the Points for consideration are as below.

Point No.1: In the affirmative

Point No.2: Partly In the affirmative

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

REASONS

16. Point No.1&2: We have gone through the complaint, objection, evidence and documents produced by both the parties. It is clear that the complainant is the owner of Goods vehicle (Tempo) of bearing
No.T.P. No.KA/6/TMP/201 9/20245, Engine No.BKH042013P, Chassis No. MB1AA22E8KRB79534 Model Name DOST RLS (BSIV).   In respect to his vehicle he had obtained the insurance policy bearing No. No.3392/30033009/000/00 valid from 22/08/2019 to 21/08/2020.

 To substantiate the above said fact policy copy Ex.A-6 proved that, the policy was in force at the time of accident. The complaint obtained the vehicle policy in bearing No. No.KA/6/TMP/2019/20245. It is not disputed in above said fact by opponent.

17. The complainant further submits that, on 28/08/2019 the driver of goods vehicle driving at night 10.15 p.m. In NH-150 near to Gollahalli Village for negligence of the Lorry driver the vehicle took an accident the Goods vehicle was fully damaged, without stopping the Lorry went high speed in the highway and the Goods vehicle Driver could not get the Lorry and Lorry Number. The complainant is owner of the goods vehicle he has purchased the goods vehicle and he was having Temporary number, the vehicle owner is farmer and he had taken Bank Loan for purchased the Goods vehicle. The complainant has given the complaint immediately to the jurisdictional Police station and F.I.R. has been registered FIR and Spot Panchanama was clearly reveals above said facts and truths.

18. The complainant further submits that, after the accident the complainant has took above Goods Vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/-. It’s a heavy repair charges the complainant has given the quotation and along with complaint copy and FIR copy and other documents to opponent for the purpose of claiming amount of insurance. The insurance company repudiated the claim of the complainant on 07/09/2019 stating that, three (3) people were traveled at the time of accident as it is an exceeding seating capacity claim will be under repudiation.

19. In the back ground of above said fact, we perused all the documents produced by the complaint these are got marked as Ex.A-1 complaint copy, Ex.A-2 FIR copy, Ex.A-3 Spot Panchanama, Ex.A-4 vehicle insurance claim, Ex.A-5 Temporary certificate of Registration Ex.A-6 Insurance Policy, Ex.A-7 Quotation copy, Ex.A-8 repudiation letter. These documents are substantiate fact of the case.

20. And moreover, we perused the Ex.A-5 Temporary Certificate of Registration. The complainant has having Temporary registration certificate for the vehicle from 27/08/2019 to 21/09/2019, on the date of accident temporary registration certificate is existing. The Temporary registration certificate is not expired. Hence he is still liable to claim. So for as the above fact concerned we perused the Ex.A-7 is Quotation the complainant has took goods vehicle to the showroom for the purpose of repair and verifying of the Vehicle condition the quotation has been issued a sum of Rs.4,20,000/-.

21. In this regard, the complainant has not proved by evidence on record, there is no witness evidence to prove the case the complainant has got repaired his vehicle by incurred sum of Rs.4,20,000/-. It is not clear the complainant has must he proved by evidence on record. There is no evidence to prove the Ex.A7 it is as well as bill which were produced before court genuine or fake, because complainant has not produced the cogent evidence of Manager of the body constructor shop. Hence those were not believable document (Bill) repair alleged vehicle.

22. In spite of this, as per the Ex.A-8 is repudiation letter submitted by the complainant wherein rejection of the valid claim of the complainant is on ground of on the date of accident 3 people were travelled at the time of accident by way of passengers in a Goods vehicle and also there is no valid permanent registration certificate to the vehicle. The Insurance company has not produced any evidence on record to prove that, the accident occurred on account of on the date of accident 3 persons were travelled at the time of accident but the time of the accident the complainant has having Temporary Registration  of certificate issued by R.T.O. Chitradurga it is very clear in Ex.A-5.

        23. In this regard we perused the Ex.B-3, the OP has appointed surveyor for conducting final survey for that he has conducted the final survey assessing the liability of Rs.1,68,745/- in the above circumstance is very clearly reveals that, the OP insurance company admitted the accident and liability is reserved.

        24. The opponent insurance company has not escape their liability to adduce same reason, even though complainant entitled for claim as per below citation.

Citation reported in National Consumer Dispute Redressal Commission, New Delhi, Order in 2010(3) CPR 38 (NC) The Manager, The United Insurance Co. Ltd.
Vs Sri B. Ugandar as here under:

Consumer Protection Act, 1986-Sections 12 and 17- Insurance claim – Taxi Cab carrying eight persons as against sanctioned capacity of six persons met with accident by colliding against another vehicle – There was no fitness certificate of vehicle at the time of accident – Carriage of eight passengers against sanctioned capacity of six could not be construed as major violation or breach of conditions of policy.

Vehicle overloading no reason to deny insurance:

Overloading of a vehicle cannot be the sole ground for an insurance company to reject claims for damages caused to the vehicle in a road accident, the Supreme Court has ruled while quashing National Consumer Disputes Redressal Commission (NCDRC)'s order that loss caused to overloaded vehicle won’t be compensated.

NEW DELHI: overloading of a vehicle cannot be the sole ground for an insurance company to reject claims for damages caused to the vehicle in a road accident, the Supreme Court has ruled while quashing National Consumer Disputes Redressal Commission(NCDRC)'s - order that loss caused to overloaded vehicle won’t be compensated.

A bench of Chief Justice T S Thakur and V Gopala Gowda held that carrying more passengers than the permitted seating capacity in a insured vehicle does not amount to a fundamental breach of the terms and conditions of the policy and the insurance company could not eschew its liability towards the damage caused to the vehicle.

It said that the insurance company had to prove that the accident was caused because of the overloading to escape the liability of paying claims. The bench directed the insurance company to reimburse claim to the damages caused to a goods-carrying vehicle travelling with five passengers while seating capacity of the vehicle was only two including driver.

"This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle," it said.

The bench said that the insurance company could deny claims only in cases where breach of insurance policy was so fundamental in nature that it brought the contract to an end "The insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle," it said.

The bench quashed the order passed by NCDRC and Haryana State Consumer Disputes Redressal Commission which had allowed plea of insurance company that overloading could be a ground for denying claim for the damages. "In the instant case, the insurance company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle.

25. The above citation is applicable to the present case. The complainant has proved the deficiency of service on the part of the OP. Once the deficiency of service is proved the next question for? The complainant has prayed for Rs.4,20,000/- towards the repairs. But it is not supported by documentary evidence Ex.B-3 is a survey report submitted by OP himself. In this the loss is assessed at Rs. 1,68,745/-

26. The report of the surveyor is an important document in settling the claim of the  insured vehicle, for this, we rely on ruling reported in 2008 (4) CPR 83 (NC) The National Insurance Company Ltd., through its, Branch Manager and another V/s Shree Shyam Cold Storage through its Director.

“Report of the surveyor appointed under the provision of   

  Insurance Act has to be given greater importance”

        27. The complainant has proved deficiency in service on the part of OP he is entitled for Rs.1,68,745/- and claim for compensation mental agony and cost  of proceeding at Rs.10,000/- along with interest accordingly we answer the Point No. 1 & 2 partly in the affirmative.

28. Point No.3:  In view of the discussion, we proceed to pass the following.

::ORDER::

1. The complaint filed by the complainant U/s.12 of Consumer Protection Act, 1986 is hereby Partly Allowed.

2. The OP, shall pay Rs.1,68,745/- to the complainant along with  at the rate of interest 6% p.a. from the date of complaint till its realization.

3. The OP, shall pay Rs.10,000/- to the complainant as compensation for deficiency of service and towards mental agony and also cost of the proceedings.  
4. In case of non-compliance of the order the entire amount shall carry interest at the rate of 10% p.a. till its realization.

5. The OP shall pay the above said award amount within 30 days from the date of this order.

6. Send the free copies to both parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 24^th April 2023.)

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LADY MEMBER               MEMBER                     PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:-Sri Thippeswamy, S/o Thippanna by way of affidavit of evidence.

Wetness examined behalf of opponents:

DW-1:- Sri Mahantesh S/o Divakar by way of affidavit of evidence

Documents marked on behalf of Complainant:

Documents marked on behalf of opponents:

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LADY MEMBER               MEMBER                     PRESIDENT

GM*