BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

   18^th DAY OF JANUARY 2021

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (hereinafter called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to pay the actual vehicle damages amount of Rs.3,69,812/-, to pay Rs.50,000/- towards mental torture, to pay Rs.10,000/- towards cost of the proceedings, to pay interest @ 24% from the date of payment till realization and pass such other reliefs.

2.      The brief facts of complaint is as under:

Complainant submitted that, he is the owner of commercial goods carrying vehicle (Ashok Leyland) bearing No.KA-05-AE-1070.  The said vehicle was insured with OPs bearing policy No.2013-500201-18-1000320-03-000 for Commercial Vehicle Package Policy Goods Carrying Vehicles.  The said policy is valid from 07.07.2018 to 06.07.2019.  That at the time of issuance of the policy, the complainant has clearly declared that the Fitness Certificate in respect of the said vehicle was not renewed but inspite of that the OPs officials have issued the said policy.

Complainant further submitted that on 30.07.2018 at 2.30 PM near Chamarajpet, Bangalore while going for a delivery to one of the dealer at Mysore Road, driver lost the control over the said vehicle and to avoid the major accident, the driver of the vehicle forced to stop the vehicle while hitting an electrical poll.  During the said incident the above said vehicle was carrying 10 Truck Tyres weighing 750 kgs.

Complainant further submitted that from the accident spot the complainant informed and briefed the situation to the OPs insurance advisor Mr.Hari Prasad as KEB people were not interested to go for the 3^rd party claims and as they retained the vehicle with materials.  The complainant settled their amount and after discussing with the insurance advisor and as advised by the local police.  Subsequently complainant towed the vehicle to Ashoka Leyland workshop at Yeshwanthpur for repair.  On 30.07.2018 the vehicle was inspected by insurance company surveyor Mr.Halappa and instructed the workshop to go ahead with the total repair work after his thorough inspection.  The first estimation has come for Rs.3.69 lakhs and insurance company assured the repair works complete, they will be reimbursing the cost.

Complainant further submitted that M/s.Akshara Motors-Ashok Leyland workshop people were refused to provide the cashless facility as they don’t have good relation with OP insurance company and therefore insisted the complainant to pay Rs.50,000/- as advance to start the work after getting the approval from insurance company.  Accordingly the complainant had released the amount to the workshop to start work as Insurance Surveyor had given instruction to start the work on 10.08.2018.  Subsequently complainant received a letter from OP on 16.08.2018 and asking to provide information for which complainant replied with details through post on 18.08.2018.  By that time the OPs Insurance Company have consumed one and half months and complainant had visited workshop on several occasions and after briefing them about the mishandling of the insurance company, while minimizing the replacement of the new parts and painting, finally landed at Rs.1,62,834/- and cleared the repair cost at workshop and taken vehicle on 16.09.2018.

Complainant further submitted that during the time of repair of the said vehicle from 30.07.2018 till its release on 16.09.2018 had hired a private vehicle for the day to day delivery of goods to the customers and incurred a sum of Rs.50,000/- as additional cost for transporting.  That due to over sight complainant has not renewed FC and the same also bring it to the advisor of OPs at the time of issuance of policy on 05.07.2018 but the OPs Advisor assured that not having the valid FC will not cause any hindrance in claiming for insurance claim.  That by believing the said assurance the complainant has renewed the policy for the 4^th year.  Complainant briefed to OPs Branch Manager Mr.Bharat and explained to him that they need to check the FC related subject with issuing the policy.  Else they might refuse to renew the policy then and there.  After promptly collecting premiums OPs should not trouble the customer.

Complainant further submitted that complainant responded to OPs letter dated 10.08.2018, which complainant received by courier on 16.08.2018.  That from time the vehicle met with accident on 30.07.2018, the complainant has been regular touch with insurance company service advisor Mr.Hariprasad.  The complainant has followed Mr.Hariprasad’s advise throughout and completed all the necessary formalities and asked related documents.  In this regard the complainant has sent e-mail on 09.08.2018.  OP insurance company has sent mail on 10.08.2018 confirming that company may proceed with repair works.  That on 30.08.2018 OP-1 issued a letter of repudiation stating that the above said vehicle was not having a valid Fitness Certificate, thus in view of violation of ‘Limitation as to use’ stands repudiated.  In this regard the complainant sent email to office of Insurance Ombudsman (Karnataka).  On 26.10.2018 the Insurance Ombudsman replied to complainant letter dated 23.10.2018 stated that the matter relating to underwriting are not falling within the purview of the Insurance Ombudsman adjudication.  Left with no other option complainant filed this complaint.

3. In response to the notice issued, OPs.1 & 2 appeared through their advocate and filed their version in brief as under:

OPs.1 & 2 submitted that the complaint filed by the complainant is totally false, frivolous and vexatious and is liable to be dismissed in limine.  Complainant is not a consumer as per the C.P Act.  The complainant purchased the commercial vehicle for commercial purpose only.  The policy issued subject to the terms, conditions, exceptions and limitation thereof and the confirmation of the compliance to section 64 VB of the Insurance Act, 1938.  The complainant alleged that complainant has clearly declared that the fitness certificate in respect of the subject vehicle was not renewed but inspite of that the OPs official have issued the said policy.  The complainant explained regarding the nature of accident.  Complainant alleged that the first estimation has come for Rs.3.69 lakhs and insurance company assured the repair works complete, they will be reimbursing the cost.  The allegation made by the complainant is totally false.

OPs further submitted that accordance with the requirement of law that a surveyor is required to be appointed by the insurance company and when such a surveyor who is licensed, professional assessed such loss after investigation furnished a report with reasons to support the same, such a report cannot be discarded.  The surveyor mentioned in his report that fitness certificate is not valid as on the date of alleged accident and requested insured to produce the same.  It is not true that M/s.Akshara Motors Ashok Leyland Workshop people were refused to provide the cash less facility as they don’t have good relation with OPs insurance company and therefore insisted the complainant to pay Rs.50,000/- as advance to start the work.  The complainant has not produced the documents.  It is false that due to over sight the complainant has not renewed fitness certificate and the same also bring it to the advisor of OPs at the time of issuance of policy on 05.07.2018 but the OP advisor assured that not have the valid FC will not cause any hindrance in claiming for insurance claim and further alleged that by believing the said assurance the complainant has renewed the policy for the 4^th year.  That the vehicle of the owner did not have the requisite fitness certificate to run the vehicle, which was a breach of the conditions of the policy and violation of statutory requirements laid down in Motor Vehicles Act.

OPs further submitted that it is the duty of the complainant to update the vehicle documents time to time.  Due to complainant own fault the OP cannot be penalized.  The insurer acted as per the terms and conditions of the policy and Law of insurance.  Thus it cannot be termed as deficiency of service as alleged by the complainant.  The reply given by Ombudsman (Karnataka) to complainant’s letter dated 23.10.2018 is made without any prejudice, hence question of hardship does not arise.  The complainant is a malafide attempt to mislead the Forum.  OPs are not liable to pay the amounts stated in the complaint.  The complainant is a gross abuse of social welfare legislation like the Consumer Protection Act.  That the contract between the party based on the insurance policy and the amount of risk are covered according to the terms of the policy and strictly construed to determine the extent of liability.  It is settled principles of law that the complainant himself cannot be allowed to take benefit of his own mistake or lapse.  There is no deficiency in service on the part of OPs.  Rest of the allegations made by the complainant is denied by OPs.  Hence OP-1 & 2 prayed for dismissal of the complaint with costs.

4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPs have submitted written arguments.  Complainant and OPs have produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

5. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

6. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

7. Point No.1:- On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that, the complainant is the owner of commercial goods carrying vehicle (Ashok Leyland) bearing No.KA-05-AE-1070.  The said vehicle insured with OPs bearing policy No.2013-500201-18-1000320-03-000.  The said policy was valid from 07.07.2018 to 06.07.2019.  It is also an admitted fact that at the time of accident the said policy was in force.

8. The complainant submits that the above said vehicle met with an accident on 30.07.2018 near Chamarajpet, Bangalore.  The vehicle was completely damaged.  The said fact was informed to the OPs.  Thereafter the complainant has shifted the damaged vehicle to service station for repairs.  There OP insurance company conducted the survey and assured that they will reimburse the repair cost.  After assurance given by the OPs Insurance Company, the complainant requested the service station to repair the said vehicle.  The vehicle was repaired and issued a bill of Rs.1,62,834/-.  Thereafter the complainant submitted all documents along with claim form to the OPs.  The OPs have rejected the claim of the complainant on the ground that the said vehicle was not having valid fitness certificate.  The complainant alleged that at the time of obtaining the policy the complainant clearly declared that fitness certificate in respect of the said vehicle was not renewed, inspite of that, the OPs have issued the said policy.  Now the repudiating the claim on the ground that vehicle does not possessed valid fitness certificate is unjustified.  Since at the time of issuance of policy, it is the duty of the OP to look into the fitness certificate of the vehicle.  In this regard the complainant relied on the following judgment passed by Hon’ble High Court of Karnataka.

1. In the High Court of Karnataka at Bangalore, M.F.A No.6410/2009 (MV) – Shri.Rangappa @ Rangappa Shetty V/s. Shri. Jayaramaiah.

9. Per contra OPs submitted that the complainant run the vehicle on the public road without fitness certificate as on the date of accident.  As per the provisions of Motor Vehicle Act, 1988 allowing the transport vehicle to be used on the public road without fitness certificate it is violation of terms and conditions of the policy and also provisions of Motor Vehicle Act, 1988.  Hence the OPs have rightly repudiated the claim of the complainant.  In this regard the OPs relied on the provision of section 56 of Motor Vehicle Act, 1988 which reads here as under:

Section 56. Certificate of fitness of transport vehicles. (1) subject to the provisions of section 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 this Act and the rules made thereunder.

 10. On perusal of the repudiation letter dated 30.08.2018/Ex-A8 the OPs have repudiated the claim of the complainant only on the ground that the said vehicle was not having a valid fitness certificate at the time of accident.  Admittedly the said vehicle does not have a valid fitness certificate on the date of accident.  As per section.56 the transport vehicle shall not be deemed to be validly registered for the purpose of section 39 unless it carries a certificate of fitness in the format prescribed by the Central Government and issued by prescribed authority.  This is a mandatory requirement.  In the instant case the complainant knowing fully well that the vehicle in question did not have a valid fitness certificate, allowed his transport vehicle to be driven on the public road by his driver as a result accident took place and the said vehicle got damaged.  Hence the complainant violated the terms and conditions of the policy and also the provisions of Motor Vehicle Act, 1988.  Further the complainant counsel relied on the decision held by the Hon’ble High Court of Karnataka in M.F.A No.6410/2009 (MV) between Shri.Rangappa @ Rangappa Shetty V/s. Shri. Jayaramaiah.  The said decision has not applicable to the case on hand because that was a case of injuries caused to third party in an accident.  In the instant case the complainant has claiming own damage of his vehicle.  Hence on the above the claim was repudiated by the OPs on the ground that the said vehicle does not have valid fitness certificate at the time of accident cannot be found fault.

11. In view of the discussions made above, we are of the opinion that the complainant is not entitled to any relief as prayed in the complaint.  The complainant has failed to prove any deficiency in service on the part of the OPs.  Therefore, the complaint is liable to be dismissed.  Accordingly, we answer the point No.1 in negative.

12. Point No.2:  In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the open Commission on this 18^th day of January 2021)

Witnesses examined on behalf of complainant by way of affidavit:

Sri.S.Prabhakar Ro, Managing Director, Sai Med Systems Pvt. Ltd.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs.1 & 2 by way of affidavit:

Sri.Karthik M, who being working as Legal Manager, Liberty General Insurance Ltd., and authorized signatory of OPs.

Documents produced on behalf of Opposite Parties.1 & 2:

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