BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Complaint No.CC/10/999 of 18.11.2010 Decided on: 7.9.2011 M/s Guru Kirpa Traders, 65, St. No.3, Dashmesh Nagar, Patiala through its Sole Proprietor Amarjit Singh son of S.Dharamvir Singh-Owner of vehicle APE Delivery Van bearing Regd.No.PB-11AE-9149. -----------Complainant Versus 1. IFFCO-TOKIO General Insurance Company Ltd., SCO-65, 2nd & 3rd Floor, New Leela Bhawan, Patiala through its Branch Manager. 2. IFFCO-TOKIO General Insurance Company Ltd., Corporate Office, 4th & 5th Floor, IFFCO Tower’ Plot No.3, Sector 29, Gurgaon (Haryana) through its Managing Director. ----------Opposite parties. Complaint under Section 12 of the Consumer Protection Act. QUORUM Sh.D.R.Arora, President Smt.Neelam Gupta, Member Present: For the complainant: Sh.Alok Dewan, Advocate For opposite parties: Sh.B.S.Chehal, Advocate ORDER D.R.ARORA, PRESIDENT The complainant purchased one Ape delivery van (diesel) three wheeler on 29.1.2006 from M/s Pace Auto, 2, Rajbaha Road, Patiala. The dealer got the vehicle insured from Oriental Insurance Co.Ltd., Sheran Wala Gate Branch Patiala for the period 5.9.2006 to 5.9.2007.The complainant used the said vehicle for his personal needs as sole proprietor of M/s Guru Kirpa Traders so as to earn his livelihood. 2. On 5.82009,Harmeet Singh, brother of the complainant was going on the aforesaid vehicle towards Sirhind and at about 5.30PM one vehicle make Tawera bearing registration No.PB-11AE-4277 collided against the aforesaid vehicle of the complainant and as a result of the accident the vehicle of the complainant was totally damaged. The accident had occurred because of the rash and negligent driving by the driver of the vehicle make Tawera as the same had hit the Ape delivery van of the complainant from the wrong side . A compromise was arrived at between the parties which was reduced to writing and in respect of which DDR No.15 dated 8.8.2009 was lodged with P.S.Mulepur District Fatehgarh Sahib. 3. After the accident, the complainant had removed the vehicle to the workshop of the dealer, who arranged a surveyor and loss assessor namely Mr.K.K.Singhi, who had taken the photographs of the vehicle and assessed the total loss in a sum of Rs.1,03,000/- and who assured the complainant to reimburse the amount. 4. The complainant visited the dealer many a times but he did not care for the request of the complainant.The dealer had even got the said vehicle insured for a further period of 21.10.2008 to 20.10.2009. 5. The vehicle No.PB 11AE 9194 was insured with Iffco Tokio General Insurance Co.Ltd. i.e. op no.1 but the ops refused to reimburse the claim of the complainant. The complainant received a registered letter dated 23.11.2009 from op no.1 having informed him that they had closed the claim file as ‘no claim’. It is averred that the refusal to have been made by op no.1 that the vehicle was not holding a certificate of fitness at the time of accident is not acceptable because the vehicle was in a very good condition and therefore, the same was being plied at the time of the accident. Accordingly the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) for a direction to the ops to compensate the complainant with Rs.1,03,000/- and to pay him Rs.30,000/- on account of harassment and the mental agony experienced by him at the hands of the ops. 6. On notice, the ops appeared and filed their written version. The ops have raised certain preliminary objections, interalia , that the complaint is barred by the principles of res-judicata because a similar complaint regarding the same subject matter was filed by Amarjit Singh as sole proprietor of M/s Guru Kirpa Traders against Pace Auto and the ops which was dismissed on 4.10.2010; that the complainant had no cause of action to file the present complaint; that the complainant is not a consumer under the Act because the vehicle was being used by the complainant for commercial purposes and that the carrying of the fitness certificate from the competent authority was a necessity. As regards the facts of the complaint, it is admitted that the vehicle bearing registration No.PB-11AE-9194 was got insured from the ops for the period 21.10.2008 to 20.10.2009 vide cover note no.37638103.It was a commercial vehicle and was being used for commercial purposes. It is further averred by the ops that they had deputed Mr.K.K.Singhi, surveyor and loss assessor,Patiala, who assessed the loss to the tune of Rs.85374/- on repair basis. It is denied if the surveyor assessed the loss to the tune of Rs.1,03,000/- .The surveyor and loss assessor also verified the documents and found that the vehicle was not carrying any fitness certificate at the time of the accident. The fitness certificate was valid upto 10.12.2008 and thereafter the same was not got renewed. The insured violated the terms and conditions of the policy. Accordingly, the ops intimated the insured that the claim had been closed as ‘no claim’ because the vehicle was not carrying the fitness certificate at the time of the accident vide letter dated 23.11.2009 having repudiated the claim of the insured. 7. The ops have taken up the plea that the complainant has not disclosed the date when he had sold the salvage of the vehicle and to whom and for what price the same was sold. He was not competent to sell the salvage during the pendency of the complaint and therefore, the complainant is not entitled to claim any compensation from the ops.Ultimately, it was prayed to dismiss the complaint. 8. In support of his claim, the complainant produced in evidence his sworn affidavit,Ex.C1 alongwith the documents,Exs.C2 to C21 and his learned counsel closed the evidence. 9. On the other hand, on behalf of the ops, their learned counsel tendered in evidence Ex.R1 the sworn affidavit of Mr.Rajeev Chowdhary,authorized signatory of the ops alongwith Ex.R2 the survey report dated 22.8.2009 and their learned counsel closed the evidence. 10. The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record. 11. Admittedly the vehicle Ape delivery van is a transport vehicle as would appear from the Certificate Form 22 ,Ex.C5 issued by the manufacturer namely Piaggio and that is why the complainant used to pay the special road tax as would appear from Ex.C6 the pass book of the road tax containing the entries regarding the payment of the road tax at Ex.C7. Ex.C10, is the certificate to have been issued by the Secretary R.T.A.,Patiala dated 26.12.2006, regarding the exemption from obtaining the permit under section 3(i) of Section 66 of the Punjab Motor Vehicles Act,1988( for short the Act of 1988). Ex.C11 is the copy of the registration certificate of the aforesaid vehicle which also contains the certificate of fitness valid upto 10.12.2008. 12. Ex.R2, is the copy of the survey report dated 22.8.2009 submitted by Mr.K.K.Singhi, surveyor and loss assessor, appointed by the ops, who assessed the loss on repair basis at Rs.88,874/- - Rs.3500/- salvage value of the damaged parts i.e. Rs.85374/-. He also assessed the liability on total loss basis at Rs.90,000/- after deducting the salvage value of the damaged vehicle at Rs.10,000/- and Rs.500/- as per the policy clause but he determined the loss at Rs.79500/-.He also assessed the liability as on net off salvage basis at Rs.75000/- i.e. Rs.90,000/- as the insured declared value – Rs.15000/- the tentative price alongwith RC. 13. The ops have not produced the insurance policy for the period 21.10.2008 to 20.10.2009 during which period the accident had taken place. The complainant has proeduced,Ex.C13, the copy of the cover note of the said vehicle for the said period. 14. It was, however, submitted by Sh.B.S.Chehal, the learned counsel for the ops that it is provided under Section 56 of the Act of 1988 that subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in Sub Section (2) to the effect that the vehicle complies for the time being with all the requirements of the Act and the rules made there under. 15. In the case of the citation Aeroflot Soviet Airlines versus United India Insurance Co.Ltd.IC(2006)CPJ 62(NC), the Hon’ble National Consumer Disputes Redressal Commission, New Delhi observed, “ a combined reading of Sections 39 and 56 of the Motor Vehicle Act makes it abundantly clear that the vehicle could not have been driven in any public place unless the provisions of chapter IV of the Motor Vehicles Act were observed. Section 56(1) with provisio makes it abundantly clear that no vehicle would be deemed to be “validly registered for the purpose of Section 39 unless it carries a certificate of fitness……..”. Admittedly the fitness certificate as contained in the registration certificate,Ex.C11 had already expired on 10.12.2008, whereas the accident took place on 5.8.2009 and therefore, because of the violation of Section 56(1) of the Act of 1988, no liability could be fastened upon the insurance company i.e. the ops . 16. As an up shot of our aforesaid discussion, it would appear that the ops had rightly repudiated the claim of the complainant because of the reason that the vehicle was not carrying the fitness certificate valid on the date of the accident and accordingly we do not find any substance in the complaint and the same is hereby dismissed. Pronounced. Dated:7.9.2011 Neelam Gupta D.R.Arora Member President
| | Smt. Neelam Gupta, Member | HONABLE MR. D.R.Arora, PRESIDENT | , | | 
