KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 683/12
JUDGMENT DATED: 23.02.2013
PRESENT:
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
1. Reliance General Insurance Co. Ltd.,
Global Plaza, Vanchikulam Road,
Poothole.P.O, Thrissur.
2. Reliance General Insurance Co. Ltd.,
Vishnu Building, K.P.Vallon Road,
Kadavanthra, Cochin.
: APPELLANTS
3. Reliance General Insurance Co. Ltd.,
570, Rectifier house,
Naigaum Cross Road,
Wadala, Mumbai.
(By Adv: Sri. Sreevaraham G. Satheesh)
Vs.
K.D. Asokan,
Kothandath house, Anthikkadavu, : RESPONDENT
Padiyam.P.O, Thrissur.
(By Adv: Sri.Pallichal Asokkumar)
JUDGMENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
The appellants were the opposite parties in CC.591/08 in the CDRF, Thrissur. The respondent was the sole complainant. He approached the Forum claiming insurance amount alleging the following facts.
2. He was the owner in possession of a 2004 model Mahindra Scorpio Saloon bearing Registration No.KL-08/AC 8962. The vehicle was duly insured and was covered by insurance policy with the opposite parties for the period from 16.12.2007 to 15.12.2008. The said vehicle met with an accident on 29.12.2007 at 11.40 at Kuttippuram and sustained damages. Crime No.516/07 was registered in connection with the accident. The complainant gave the vehicle for repairs at M/s Sean Motors, Poonkunnam and preferred claim for Rs.3,75,296/- with the opposite parties. Their surveyor inspected the vehicle and submitted a report admitting the claim of the complainant. Thereafter the complainant contacted opposite partiers 1 and 2. Though they assured that the claim amount would be paid they failed to do so despite repeated requests. Hence the complainant sent notice to the opposite parties through his lawyer but no reply was received. Hence the complainant alleged unfair trade practice and deficiency in service on the part of the opposite parties.
3. The opposite parties admitted before the Forum that the vehicle was covered by valid insurance policy on 29.12.2007 the date of accident and the complainant had lodged claim for damages with them. But they denied the allegation that the surveyor submitted the report admitting the claim of the complainant. According to them the vehicle did not sustain damages to the tune of Rs.3,75,296/-. They also denied the allegations that they had assured to pay the claim but later protracted payment without assigning any reason. They contended that they found that validity of the fitness certificate of the vehicle had expired on 11.12.2007 before the accident on 29.12.07. So, at the time of alleged accident there was no fitness certificate for the vehicle. As such the complainant violated the policy conditions and stipulation in the Motor Vehicles Act. Hence the appellants were entitled to repudiate the claim. Repudiation of the claim was properly communicated to the complainant. Though the appellants deputed a surveyor to carry out the assessment of damages he had not submitted any assessment, since the vehicle was not having valid fitness certificate. Even if assessment of loss is made it is subject to the terms and conditions in the policy. Further the opposite parties have not received copy of the estimate given by Sean Motors without which it was not possible to assess the quantum of loss. The vehicle is registered as a transport vehicle and as per the Motor Vehicles Act such vehicles shall not deemed to be validly registered for the purpose of section 39 unless it carries a certificate of fitness. Hence the complainant is not entitled to any compensation. There is no deficiency of service on the part of the opposite parties or unfair trade practice. Hence the complaint was liable to dismissed.
4. Before the Forum, the complainant gave evidence as PW1 and Exts.P1 to P6 were marked on the side of the complainant. No oral or documentary evidence was adduced by the opposite parties. The Forum held that it was the duty of the opposite parties to intimate the result of the claim without delay and accordingly held that there was deficiency in service on the part of the opposite parties. Relying on Ext.P6, the Forum ordered payment of compensation. The aggrieved opposite parties have preferred this appeal. The only point that arises for consideration is:
Whether the appellants are entitled to any relief?
5. The complainant is the owner of Mahindra Scorpio Saloon bearing registration No.KL-08-AC/8962 which was admittedly insured with the appellants on 29.12.2007 when it met with an accident and sustained damages. Admittedly, the claim form was submitted by the complainant before the appellants and the insurance surveyor has inspected the vehicle. The main contention raised is that the vehicle was registered as a transport vehicle and certificate of fitness is essential for such vehicles without which as per section 56 of the Motor Vehicles Act, such vehicles would not be deemed to be validly registered for the purpose of section 39. The fitness certificate of the vehicle of the complainant had expired prior to the date of accident but was not renewed. As such there was violation of policy condition. Hence the appellants are not liable. Ext.P2 copy of the policy shows that the policy availed by the complainant is for a commercial vehicle (passenger carrying package policy). So it was actually registered as a transport vehicle. The vehicle met with an accident on 29.12.2007 at 11.40 am as seen from Ext.P1 copy of FIR registered before the Judicial First Class Magistrate Court, Tirur. Ext.P1 further shows that while the vehicle was proceeding from Kuttippuram to Kozhikkode and was being driven in over speed and rashly and negligently it broke the side walls of an Over Bridge and thereafter hit the first informant who was waiting in a railway plat form. The complainant has not produced any evidence to show that the vehicle was having certificate of fitness. The burden is on the complainant to prove that he had obtained certificate of fitness for the vehicle. In fact he had admitted that on the date of accident the vehicle was not having certificate of fitness. His explanation is that he was not aware that in the absence of fitness certificate insurance amount could not be claimed. Thus it is obvious that the vehicle was not having valid fitness certificate on the date of accident and in the absence of valid fitness certificate the decision rendered by the National Consumer Disputes Redressal Commission in Aeroflot Soviet Airlines Vs. United India Insurance Company Ltd. IV (2006) CPJ 62(NC) squarely applies and the insurer is not liable to compensate the complainant.
6. It is further pertinent to notice that the Forum awarded compensation based on Ext.P6 which is only quotation both for the spare parts to be used for repair and labour charges. The total estimate quoted is Rs.3,75,296/- based on quotation alone it may not be possible to conclude that the complainant had in fact incurred expenditure to the extent mentioned in Ext.P6 for repairs. So, the Forum also erred in awarding compensation based on Ext.P6. In view of the fact that the vehicle being a transport vehicle was not holding valid certificate of fitness on the date of accident, the appellants rightly repudiated the claim. There was no deficiency of service or unfair trade practice on the part of the appellants. Hence the appeal is liable to be allowed.
In the result the appeal is allowed. The order of the CDRF, Thrissur in CC.591/08 dated:16.4.12 awarding compensation is set aside. The complaint is dismissed and considering the facts and circumstances of the case the parties are directed to bear their respective costs in the appeal.
K. CHANDRADAS NADAR : JUDICIAL MEMBER
VL.
