JUDGEMENT
Date - 20.11.2013
(By Shri.Vinayak Raoji Londhe, President )
The complainant filed the present compliant U/sec.12 of Consumer Protection Act against the respondent and prayed for compensation on account of deficiency in the service at the hands of the respondents.
Following are the brief facts giving rise to the decision of complaint. It is the case of complainant that, he owned and possessed the vehicle TATA INDICA bearing no.MH-23/C-1349. The said vehicle was registered at Beed RTO. The Complainant has obtained loan from respondent no.1 Indusind Bank ltd. The said bank has assured that, the insurance of the said vehicle will be obtained by the bank for three years. The respondent no.1 bank has insured the vehicle of complainant with Reliance General Insurance Company Branch Aurangabad for first year. The respondent no.1 bank was fully aware of the fact that, the vehicle was a taxi vehicle, however, the respondent no.1 has obtained the policy as a private Car policy. The respondent no.1 did not supply the copy of policy to the complainant. Complainant was not having knowledge about it. For second year, the respondent no.1 bank insured the vehicle of complainant with Royal Sudaram Insurance company as a private Car package policy. Instead of tourist Taxi the said policy was obtained without knowledge and consent of complaint. The RC book was in the custody of respondent no.1 bank.
It is the case of complainant that, on 24.06.2009 the vehicle met with an accident on Pune-Mumbai Road near Pimpari Chinchwad. The vehicle was suffered damaged. The complainant has informed the respondent no.1 about the accident. The information was also given to respondent no.2. Both the respondent permitted complainant to repair the vehicle. The complainant incurred the expenses of Rs.1,20,000/- for repairing the vehicle. The complainant has submitted claim alongwith all documents to the respondent no.2. The respondent no.2 has repudiated the claim on the ground that, the vehicle was insured as a Private Vehicle and at the relevant time the vehicle was used for commercial purpose.
It is the contention of the complainant that, it is the mistake of respondent no.1 bank who ought to have the insured vehicle for commercial purpose. The complainant purchased the said vehicle as a commercial taxi. The respondent no.1 bank is liable to pay the compensation on above stated fact, the complainant has prayed the sum of Rs.4,20,000/- with interest @ Rs.12% p.a. from respondent no.1 and 2 for deficiency in the service.
The respondent no.1 appeared and contested the complaint by filing Written Version at Exh.13. The respondent no.1 has denied all allegations against him in the complaint. The complaint is challenged on the ground that, the same is not maintainable before this Fora. There is no deficiency in the service. It is contended that, the dispute between complainant and respondent no.1 is covered under arbitration clause. The District Forum has no jurisdiction to entertain the complaint. It is further contended that, the said vehicle was used for commercial purpose and therefore, the complainant is not consumer as contemplated under Consumer Protection Act. It is further contended that, the complainant has suppressed material fact. It is further contended that, the respondent no.1 has filed execution petition U/sec. 36 of the arbitration Act before Principle District Judge, Beed for recovery of loan amount. The Hon ble Court has issued attachment warrant against complainant. It is further contended that, the agreement has executed at Aurangabad. The Cause of action does not arise within the jurisdiction of this Fora. It is further contended that, the complainant had taken Private Motor Policy. The complainant did not submitted all papers to the respondent at the time of advancing loan. The vehicle of complainant was registered as tourist taxi and being uged commercial purpose. And thus, the insurance company has rightly repudiated the claim. It is further contended that, the complaint is barred by law of limitation. On above stated fact the respondent no.1 prayed for dismissal of complaint.
The respondent no.2 appeared and filed Written Version at Exh.8. It is the contention of respondent that, this Hon ble Forum has no jurisdiction to entertain the complaint. The complaint is barred by law of limitation. It is further contended that, the vehicle was insured of Private Car package policy. The said vehicle was used as tourist taxi. There is breach of terms of policy. It is submitted that, the said car was used for commercial purpose. Complainant is not consumer. On above stated facts it is urged that, complaint filed by complainant be dismissed.
On consideration the pleadings of the complainant and respondents and documents place on record following points arise for decision. We have recorded our findings against each points for the reasons to be followed.
POINTS ANSWER
1. Does the complainant proved that, the
Respondent by repudiating the claim of
the complainant committed deficiency in
the service ? No.
2. Is proved that, the complainant has
Committed the breach of express terms
And conditions of the policy ? Yes.
3. Whether complainant is entitled for the
Relief prayed ? No.
4. What order ? As per final order.
REASONS
Point no.1 to 4 :-
The complainant and his Advocate are, given sufficient opportunity to argued the case. They failed to argue the case. The respondents Advocate of Shri. Deshmukh and Shri.A.P.Kulkarni have argued the case.
The complainant has come with the case that, the respondent no.1 has insured the vehicle of the complainant with respondent no.2 for the period from 16.10.2008 to 15.10.2009. It is grievance of the complainant that, instead of issuing policy for commercial purpose i.e. taxi. The insurance company has issued the policy for private car. It is the fault of the respondent, the vehicle of the complainant meet with an accident on Pune-Mumbai High Way, in which the said vehicle was damaged. The complainant has submitted the claim, however, the said claim is repudiated by the respondent. It is urged that, the complainant never applied for Private Car package policy. The vehicle of the complainant used as a taxi, and therefore, the respondent have committed deficiency in the service. Complainant is entitled for the compensation.
Let us considered the argument advance on behalf of the respondent. The respondent no.2 has admitted that, the vehicle of the complainant was insured with the respondent. The said vehicle was insured as private Car package policy. The insured has paid the premium for the said policy. The complainant never applied for policy of commercial purpose i.e. taxi. At relevant time of the accident the vehicle was used for hiring the passenger. It is breach of express conditions of the policy. The learned Advocate took me through the certificate of insurance and policy schedule filed on record. And urged that, the complainant is not entitled for the claim, as the vehicle was used in contravention of terms of the policy.
The learned counsel Shri.Deshmukh for respondent no.1 support the argument advanced on behalf of respondent no.2. On behalf of the respondent the reliance is placed on following authority,
The Judgement in Revision Petition no.2316/12 rendered by National Consumer Disputes Redressal Commission, New Delhi, on dated.10.10.2012 The Hon ble Presiding Member in the cited case relied the judgement rendered by Hon ble Supreme Court in Suraj Mal Ram Niwas Oil Mills (p) Ltd. Versus United India Insurance co.Ltd. and another 2011 CTJ 11 (Supreme Court) (CP) It is held that, in a contract of insurance, the rights and obligation are covered by the terms of the contract. Therefore, the terms of a contract of insurance have to be strictly construed and no exception can be made on the ground of equity.
Another case relied is reported in II (2008) CPJ 240 (NC) Joginder Singh Versus Oriental Insurance Company Ltd. and ors. It is held that, the vehicle was insured as a Private Vehicle same is used as a taxi and hire and reward. The repudiation of claim of insurance company is upheld.
Now, we have to considered Nature of Insurance policy of the vehicle of the complainant. On considering the documents filed by complainant it appears that, the Car purchased by complainant is TATA Indica BDLE bearing no.MH-23-C-1349. Complainant has obtained finance from respondent no.1. The complainant has filled the proposal form for policy. It is shown as private Car. It is not shown as commercial vehicle. It is after purchased of the said Car complainant has obtained the permit and converted the said vehicle into commercial vehicle—passenger carrying taxi. It was the duty of the complainant bring this fact to the notice of the insurance company and obtained a policy of commercial vehicle. The complainant has filled the proposal form in which he has intended to obtain the policy as a private Car policy. From the documents available before this Forum. It can be inffered that, at the time of accident the car of the complainant was insured as private car and not as a commercial vehicle carrying passengers. Complainant is trying to blame the respondent no.1 contending that, it was the duty of respondent no.1 to insured the vehicle as a passenger carrying vehicle. However, the facts remain that, when the complainant has obtained permit. It was his duty to obtain the policy for passenger carrying vehicle. The proposal form submitted by the complainant no where indicates that, the he was intended to obtain the policy for passenger carrying vehicle.
An considering the evidence and the documents placed before this Forum, we are of the opinion that, at a relevant time of the accident the vehicle of complainant was carrying passengers. The policy of the said vehicle was private Car package policy. It was not permitted under the said policy to carry passengers or hire or reward. We find that, there is breach of the condition of the policy. The cases relied on behalf of the respondent are applicable to the present case in hands. For the reasons stated above we are of the opinion that, there is breach of express condition in the policy. Complainant is not entitled for relief.
The another point argued before us is, that the complaint is barred by law of limitation. The learned Advocate for the respondent brought to our notice that, the alleged accident took place on 24.06.2009. The complainant has presented the case before this For a on 06.01.2012. The respondent has repudiated the claim by his letter dt.22.10.2009. The period for filing the complaint appear expire on 21.10.2011. The complainant has not filed the delay condone application. In view of this fact, we find that, the complaint is barred by law of limitation and same is liable tobe dismissed. For the reasons stated above, we hold that, the complaint is liable to be dismissed. Thus, we answered point no.1 and 3 in negative and point no.2 in affirmative. And passed following order.
ORDER
1. The complaint stands dismissed with cost.
2. The Complainant be returned the complaint set
as per section 20 (3) Consumer Protection Act,.1986.
Smt.Manjusha Chitalange Shri.Vinayak Londhe
Member President
District Consumer Disputes Redressal Forum,Beed.
Jayant Parvekar
Steno
