SMT. RAVI SUSHA  : PRESIDENT

   Complainant  filed this complaint U/S  35 of the Consumer Protection Act 2019  seeking to get an  order directing  opposite party to pay Rs.3,04,025/- the repair expense, compensation, together with financial loss happened to the complainant alleging  deficiency in service on the part of opposite party.

    The brief  facts of the present  case are that the complainant  is the RC owner of a Maruti Etriga car  Reg.No.KL/13/AQ/8189.  While purchasing  the car the OP offered  a bumper to bumper  insurance coverage for a period of 1 year  and  paid premium of Rs.40145/- and the OP assured that any kind of damages will be  rectified  on the basis of the above  payment. Thereafter the complainant has transferred his vehicle  into a  tourist taxi permit  on 11/3/2020.  The transfer of permit was duly intimated  to the OP as on 16/3/2020  The District collector has hired the above vehicle  for National Health Mission in order to utilize the vehicle for Corona 19 disease treatment.  On 1/6/2020 the  insured vehicle met with an accident and brought the vehicle before the service center and the same was intimated to the OP.  The surveyor of the OP inspected the vehicle and reported  that the value of the damages is Rs.2,96,000/-.  Thereafter the vehicle was repaired  and the bill was finalized for an amount of Rs.3,04,265/-. When the  same was intimated to the OP by filing  proper insurance claim they were rejected  the same. The complainant stated that the OP has offered their service by issuing  an insurance policy to his vehicle.  Apprehending the full body coverage for repair charges the complainant has paid huge amount towards the insurance premium for bumper to bumper coverage.  The denial of the insurance claim  amounts to deficiency in service and unfair trade practice.  Hence the complaint.

   Upon notice, the OP appeared and denied the claim of the complainant.  It was pleaded that there was no deficiency in service on the part of OP in repudiating the claim of the complainant.  OP further pleaded that car  Reg.No.KL/13/AQ/8189 was insured   vide the policy No.98000031190908453642 as a private car. But this OP denies to pay the  insurance claim  towards the own damage claim of the complainant for the damage sustained to the car in the alleged accident, because the complainant has committed fundamental breach of insurance  policy and its condition and that the premium collected towards the issuance of the  insurance policy was not that for a commercial vehicle .  At the time of  accident the car was being plied as a contract carriage on rental basis .  OP further submits that the  complainant has not given any intimation  regarding the conversion of the vehicle to a commercial one or obtaining  a contract carriage permit  for the  said car  or not  taken any steps to concert the insurance policy  of the vehicle from private car insurance policy to commercial vehicle policy.  On receipt of the claim form from the complainant OP enquired and understand that the vehicle was being  used as a contract carriage vehicle at the time of  accident, even without any endorsement in the registration certificate  of the car regarding the change or without  making necessary changes in the insurance policy.  Further stating that the OP rightly repudiated the claim of the  complainant  on the basis of the terms and conditions of the policy and  has intimated to the complainant  vide letter dtd.28/1/21 regarding the reasons  for the repudiation.  There is no deficiency of service  or unfair trade practice on their part and prayed for the dismissal of the complaint.

        Both sides led evidence.  Complainant has filed his proof affidavit and  has been examined as PW1.  Marked Exts.A1 to A6 on his side.  On the side of OP, the surveyor who inspected the disputed vehicle and  prepared report, was examined as DW1 and marked his report as Ext.B1.  The Deputy Manager of OP company has filed his chief affidavit and was examined as DW2.  The insurance policy of the disputed vehicle issued by OP was marked as Ext.B2.  After that the learned counsel of complainant filed argument note.

   The undisputed matter in this case are that the complainant is an insured of OP, who insured his vehicle having Reg.No.KL/13/AQ/8189 with OP for a period from 7/11/2019 to 6/11/2022 having bumper to bumper coverage and  paid insurance premium of Rs.40145/-.  Further admitted that the insured vehicle met with an accident on 1/6/2020.  Further at the time of taking policy, the car was registered as private car.  Further at the time of accident the permit of the vehicle was transport permit.  It is also an admitted fact that after the accident, complainant had filed insurance claim application to OP for getting repair expense but OP had denied the claim of complainant through Ext.A5 letter dtd.28/1/2021 stating the reason that “since the insured vehicle was converted to commercial  vehicle with effect from 22/11/2019 but the  same was not intimated to OP and the same was not endorsed on policy, is a violation of policy terms and conditions.  Hence the claim was treated as “ No claim”.

     According to OP, the repudiation of the claim was made on the basis of the terms and conditions  of the insurance policy and hence complainant is not entitled to get the own damage of the  vehicle as per  the private  car insurance policy.  OP contended that conversion of the permit alone  and using  private vehicle as a commercial vehicle  amounts to breach of insurance policy condition and also violation of the Motor Vehicles Act and Rules. 

    Complainant has stated that the vehicle was transferred to taxi permit on 10//3/2020.  Ext.A3 shows that the validity of the permit was issued by RTO ,Kannur for a period from 10/3/2020 to 9/3/2025.  According to complainant, the permit transfer was duly intimated to the insurance company as on 16//3/2020.  Further stated that the District Collector had hired the insured vehicle for National Health Mission in order to utilize the vehicle for Corona -19 disease treatment(Ext.A4).  Further intimation  of accident was duly informed the OP  and also filed  proper insurance claim.  According to complainant, the action of OP about  repudiation of  claim application amounts to deficiency in service on the part of OP insurance company.  Here complainant produced Ext.A4 tax invoice issued by Popular vehicle and services Ltd for an amount of Rs.3,04,265/- with respect to the  repaired bill amount of the vehicle .

   The insurance company in this case appointed an insurance surveyor and Loss Assessor(Grade A) DW1, who has prepared a Motor Survey Report.  As per the survey report(Ext.B1), the net loss assessed by the surveyor with 0% depreciation and no salvages value , was Rs.298513/-.  But the complainant has plied his vehicle in violation of the terms and conditions of the policy, therefore, claim was repudiated.

   The point to be decided  whether complainant is entitled to get the claim amount, the Hon’ble Supreme  court in case Amalendu Sahoo vs. OIC II(2010)CPJ 9(SC), wherein  it has been  held that” in case of  violation of terms and conditions of the policy, the claim amount should be settled on non-standard basis”.  In another case Jitendra Kumar vs. Oriental Insurance Co.Ltd  & Another , IV(2003) SLT 497, 1(2008)ACC 139(SC), and in National Insurance Co.Ltd vs. Swaran Singh & others(2004) 3.SCC 297, held  as “ In the case of theft of vehicle breach of condition  is not germane.  The Appellant 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   breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis.  The insurance company cannot repudiate the claim “intoto” in case of loss of vehicle due to theft”.

    In the present case, the vehicle in question met with an accident, when it was being used as a taxi, with permit obtained from the RTO authority.  There is no evidence that transfer of permit was intimated to insurance company, and the premium for commercial vehicle was remitted by the insured which is a  breach of condition of the policy.  The Supreme Court of India , in the aforesaid judgment has held that in the  case of breach of condition is not germane when the insured has taken bumper to bumper  policy.  Hence the insurance company is liable to reimburse the insured of the loss suffered by him.  So in this case also  the claim should be settled on non-standard basis.

   Hence we are of the view that complainant is entitled to get 75% of Rs.298513/-, the amount assessed by the surveyor with compensation.  With regard to loss of income as claimed by the complainant cannot be allowed, since there is no material evidence before us.

   In the result complaint is allowed in part and  direct the opposite party Insurance company to pay Rs.2,23,885/-(75% of 298513/-) to the complainant and further to pay Rs.25,000/- as compensation to the complainant.  The order  be complied  within one month  after receiving certified copy of this order, failing which the awarded  amount Rs.2,23,885+25,000/- will carry interest @9% per annum from the  date of filing of this complaint till its realization .  Complainant is at liberty to execute the order as per the provisions in Consumer Protection Act 2019.

Exts:

A1-Copy of RC

A2-Copy of policy

A3-Copy of permit

A4- Tax invoice

A5-claim rejection letter dtd.28/1/21

A6-order of District program officer

B1-Surveyor report

B2-Insurance policy

PW1- Pramod.K- complainant

DW1 M.Ravindran- OP

DW2-Jayaprakash.M.V- witness of OP

Sd/                                                               Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                        MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR