Haryana

Ambala

CC/13/2015

M/s SBS Biotech situated - Complainant(s)

Versus

ICICI Lombard General Insurance Company Limited, - Opp.Party(s)

Kamlesh Gupta

30 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

       Complaint Case No. : 13 of 2015

       Date of Institution    : 15.01.2015

          Date of Decision      :  30.10.2017

 

M/s SBS Biotech Situated at 15/3 Kuldeep Nagar, Nanhera Road, Ambala Cantt. through its General Power of Attorney Sh.Anil Kumar Soni son of Sh.Gian Chand Soni r/o VPO Bara Tehsil & District Ambala.

……Complainant.

 

Versus

 

1. ICICI Lombard General Insurance Company Limited 401 & 402, 4^th Floor, Interface 11, New Linking Road, Malad (West) Mumbai-400064.
2. ICICI Lombard General Insurance Company, Opp. Municipal Corporation, Ambala Cantt.

……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:       SH. D.N. ARORA, PRESIDENT.

                        SH. PUSHPENDER KUMAR, MEMBER.

                        MS. ANAMIKA GUPTA, MEMBER.

                       

Present:          Sh. Kamlesh Gupta, Adv. for complainant.

                        Sh. Rajesh Kumar, Adv. for OPs.

 

ORDER

 

                        Brief facts of the present complaint are that vehicle of the complainant bearing No.HR37-C-8179 is insured with OPs vide insurance policy No.202090978603 bearing cover note No.77724313 having validity from 21.02.2014 to 20.02.2015. The vehicle of the complainant met with an accident on 30.05.2014 near village Pathrehri and due to this the vehicle got damaged and tyre of the same also got burst. The complainant got the vehicle repaired from Om Motor Ambala Cantt. by spending a sum of Rs.41430/-  and further approached the OPs with relevant documents but his claim was repudiated by the OPs vide letter bearing No.MOT/OD/MUM/20144147 dated 25.09.2014 wrongly and illegally on the ground that Fitness Certificate not valid at the time of date of loss. The complainant requested the OPs to treat the impugned null and void and to make the payment of the compensation but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C8.

2.                On notice, OPs appeared and filed their joint reply wherein it has taken many preliminary objections such as cause of action, mis-joinder and non-joinder of necessary parties, maintainability and concealment of material facts etc. It has been submitted that the vehicle was being used for commercial purposes for carrying the goods and the complainant is a partnership firm and proprietorship firm does not fall within the ambit of consumer.  The claim of the complainant has rightly been repudiated as he was violating the terms and conditions of the policy because he was not having fitness certificate at the time of loss to the vehicle. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RX and documents Annexure R1 & Annexure R2.

3.                     We have heard learned counsel for the parties and gone through the record very carefully.

4.                     The opposite parties have taken two objections that the vehicle in question is a commercial and the complainant is a partnership firm and it does not come under the definition of consumer as per Consumer Protection Act and at the time of incident the fitness certificate of the vehicle in question was not valid and hence the claim is not payable due to violation of the terms and conditions of the policy.

5.                     Perusal of Annexure C1/R1 reveals that the policy obtained by the complainant is Goods Carrying Vehicles Packaged policy, therefore, the objection qua this effect that the vehicle was being plied for commercial purposes does not sustain anymore. Since the OPs have obtained the premium for the commercial vehicle, therefore at this stage the insurance company cannot wriggle out for indemnifying the loss sustained by the vehicle during the subsistence of the policy despite the fact that the complainant is a partnership firm. The law relied upon by learned counsel for the OPs titled as Pal Peugeot Limited Vs. Abdul Majid 1999 (1) CPC 694  is not applicable to the case in hand because it relates to defective vehicle as defect was detected in the engine of the car purchased by a firm which is the business to carry Artistic Handicrafts being the partnership firm. Present case relates accident claim and only to indemnify the loss occurred during the currency of the policy in question.

6.                     Now, we take the point qua the validity of the fitness certificate at the time of accident.

7.                     We have perused the registration certificate issued by Registration Authority (RTO), Ambala wherein it is clear that the fitness certificate of the vehicle was valid upto 08.04.2012 and this document has been relied upon by the complainant himself. Now, we have to see whether the vehicle was fit to ply on the road at the time of accident or not. In case titled as G.Kothainachiar Vs. The Branch Manager, United India Insurance Co.and others IV (2007) CPJ 347 (NC) Hon’ble National Commission has held that the insurance company cannot repudiate the claim when there is no breach of the terms of the insurance policy because insurance is a matter of contract between the parties. It was held that the absence of fitness certificate may be a violation of the statutory provisions of the Motor Vehicles Act, 1988 but it was not violation of any term and condition of the insurance policy.  Perusal of the case file reveals that no terms and conditions have been placed on file by the Ops qua this effect. Hon’ble Punjab State Commission in case titled as National Insurance Company Limited Vs. Jog Raj 2009 (1) CLT 665 after relying upon the judgment G.Kothainachiar Vs. The Branch Manager, United India Insurance Co.and others IV (2007) CPJ 347 (NC) (supra) has held that insurance claim- Repudiation- On the ground that the fitness certificate of the inured vehicle was not valid on the date of accident-Held that the absence of fitness certificate may be a violation of terms and conditions of the MVA but it was not violative of any terms.  The OPs have not denied the accident and also not denied the repair of the vehicle as per Annexure RR7 and R8 invoice wherein it has been mentioned that an amount of Rs.29250+12180= 41430/- have been spent by the complainant. 

8.                                 Keeping in view the facts and circumstances of the case and the fact that the present case is squarely covered under the law laid down by the G.Kothainachiar Vs. The Branch Manager, United India Insurance Co. and others (NC) and National Insurance Company Limited Vs. Jog Raj 2009 (1) CLT 665 (Punjab State Commission) (supra), therefore, we allow the present complaint with costs which is assessed at Rs.3,000/- and the OPs are directed to comply the following directions within a period of thirty days from receipt of copy of the order:-

1. To pay a sum of Rs. 41430/- along with interest @ 9 % per annum from the date of filing of the complaint till its realization.

 

                        Copies of the order be sent to the parties, free of costs, as per rules.  File be consigned to the record room after due compliance.

 

 Announced on: 30.10.2017                                                           (D.N.ARORA)

                                                                                                             PRESIDENT

 

(ANAMIKA GUPTA)                      (PUSHPENDER KUMAR)

 MEMBER                                                 MEMBER