Tamil Nadu

South Chennai

CC/244/2014

D.Senthil Kumar - Complainant(s)

Versus

Magma Fincorp Ltd., - Opp.Party(s)

M/s.Durai Rajan

07 Oct 2016

ORDER

                                                                        Date of Filing  :  27.05.2014

                                                                        Date of Order :  07.10.2016.

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

           DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO. 244 /2014

FRIDAY THIS  7^th DAY OF OCTOBER 2016

 

D. Senthil Kumar,

No.61/31, Ponniamman Koil Street,

Kottur,

Chennai 600 085.                                         .. Complainant

 

                                      ..Vs..

 

1.  Magma HDI,

Rep. by Authorized Signatory,

General Insurance Company Ltd.,

Magma House,

24, Park Street,

Kolkata 700 016.

 

2. The Branch Manager,

Magma Fincorp Ltd.,

No.1043, Navins Presidium, 7^th Floor,

B-Wing, Nelson Manikam Road,

Chennai – 600 029.

 

3. The Manager,

Magma Fincorp Ltd.,

Finance & Insurance Department,

No.148-150, Creative Enclave,

Luz Church Road,

Mylapore,

Chennai 600 014.                                               ..Opposite parties 

 

 

For the Complainant                 :   M/s. Dorai Rajan & other    

For the opposite party-1            :   M/s. N.Vijayaraghavan

For the opposite parties 2 & 3    :  M/s. T.Srinivasaraghavan & Associates.  

        Complaint under section 12  of the Consumer Protection Act 1986.  The complaint is filed seeking direction against  the opposite parties  to pay insurance claim of Rs.2,38,948/- with  Rs.4214/- towards parking charges and also to pay a sum of Rs.5,00,000/- as compensation  and to pay cost of the complaint.  

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II     

1.The case of the complainant is briefly as follows:

            The  complainant submit that  he had purchased a four wheeler namely Toyota Innova 2.5G for the purpose of operating the same as a commercial / tourist vehicle.   He also obtained a permit from the Regional Transport Authority, Chennai, the said permit is valid from 18.12.2012 to 17.12.2017.    The complainant also states that for the purchase of the said vehicle he had obtained a loan of Rs.8,92,774/- from the 2^nd opposite party, the said loan was approved prior to the purchase of the vehicle on the basis that the vehicle was the only means of livelihood for the complainant.    The complainants states that being innocent and without much knowledge / exposure of insurance, he readily agreed to the recommendations of  2^nd opposite party and had acted upon their promise, which resulted in him obtaining an insurance policy for his vehicle from the 1^st opposite party  valid from 15.23 Hrs of 3.12.2012 to midnight of 2.12.2013.  the above said vehicle had met with an accident on the road from Tirumayam to Pudukottai.  The accident was caused when the driver lost control of the vehicle due to the abnormal brightness of the head light of an oncoming vehicle.    The driver lost visibility of the road and the vehicle rammed on to a pile of sand, stacked for the purpose of the construction of a toll gate.     The complainant was informed that insurance can be claimed only if the vehicle is serviced, repaired and restored at an authorized Service Centre of Toyota.  Hence on 24.9.2013 the said vehicle was sent for service and repairs under insurance coverage.  There was no progress in the processing of the insurance claim for the payment of compensation as per the agreed policy between the 1^st and 2^nd and 3^rd opposite parties and the complainant.   The failure  and deficiency of service on their part had caused a delay of nearly a month.   After completion of repairs in taking delivery of the vehicle from this service centre, for which the complainant was liable to pay parking charges Rs.4214/- to the service centre.     As such the act of the opposite parties amounts to deficiency in service and which caused mental agony and hardship to the complainant.  As such the complainant sought for insurance claim of Rs.2,38,948/- with  Rs.4214/- towards parking charges and also to pay a sum of Rs.5,00,000/- as compensation  and to pay cost of the complaint. 

Written version of 1^st opposite party is  briefly as follows:-

2.     The 1^st opposite party deny all the averments and allegations contained in the complaint, except those that are specifically admitted herein.     On receipt of claim the 1^st opposite party scrutinized the claim papers and found that the insured vehicle was registered under Maxi Cab, but the Policy was issued as Private Car Package Policy.  The Private Car Package Policy clearly states that policy covers the use of vehicle for any purpose other than

a) Hire or Reward,

b) Carriage of goods

c) Organized racing.

d) Pace making.

e) Speed testing.

f) reliability trade.

g) use in connection with Motor trade. 

The said policy as mentioned above being a private car package policy, it does not cover the use of insured vehicle for hire.   The insured vehicle was used as maxi cab for hire in violation of policy condition.   Insurance is based on Utmost good faith.  Both parties are bound by the terms and conditions of contract of insurance.   It was denied that there was a delay in processing the insurance claim lodged by the complainant and the opposite party.    There was a delay on the part of the complainant in submitting the repairer’s estimate of  the insured vehicle and submission of other relevant records to insurer.   Hence there is no deficiency in service on the part of the opposite party  and the complaint is liable to be dismissed.

Written version of 2^nd and 3^rd  opposite parties are  briefly as follows:-

3.     The 2^nd & 3^rd  opposite parties deny all the averments and allegations contained in the complaint, except those that are specifically admitted herein.   The opposite parties submit that the complainant had entered into Hire purchase agreement on 6.12.2012 and he had to pay a total sum of Rs.8,92,774/- in 36 installments and the 1^st installment to be paid on 1.1.2013 and ending on 1.1.2013.  The complainant herein is a commercial transporter and he purchased the vehicle for his commercial transaction hence the complainant will not come under definition of consumer and he has no right to approach this forum under “Guise” of consumer has to be  dismissed in liminie.    The hirer / complainant only at his option the insurance company can be opted for making insurance in respect of the subject vehicle.  The 2^nd opposite party is only the financer and its role is only to finance for the purchase of the vehicle by the complainant under the Hire Purchase System.   It is neither a necessary party nor a proper party to this complaint.   Hence there is no deficiency in service on the part of the opposite party  and hence the complaint is liable to be dismissed.

4.   Complainants have filed their Proof affidavit and Ex.A1 to Ex.A26 were marked on the side of the complainant.   Proof affidavit of Opposite parties filed and Ex.B1 to Ex.B9 were marked on the side of the  opposite parties.    

5.      The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite parties?

 

2. Whether the complainant is entitled to the  reliefs sought for?.

 

 

6.     POINTS 1 & 2 :

           Perused the complaint filed by the complainant and his proof affidavit and documents Ex.A1 to Ex.A26 were marked on the side of the complainant.  Written version and proof affidavit filed by the opposite parties and Ex.B1 to Ex.B9 were marked on the side of opposite parties and also considered the both side arguments.

7.        The complainant had purchased a four wheeler namely Toyota Innova 2.5G,  on 3.2.2012 for the purpose of operating the same as a “commercial / tourist vehicle”.   At the inception the complainant took a cover note from the opposite parties (vide Ex.A2), the cover starting from 28.11.2012 5.p.m to 27.11.2013 up to 5. p.m. where the validity of the cover note is issued under rule No.142 (1) of Motor Vehicle Rules 1989.   Followed by  the opposite party had issued a comprehensive private car package policy for the period from 3.12.2012 to the mid night of 2.12.2013.   Where the limitations of usage is described “for the use of the vehicle for any purpose other than a) Hire or Reward b) Carriage of goods  other than samples or personal luggage c) organized racing d)face making  e) Speed testing f) Reliability  Trials g) Use in connection with Motor Trade”.   The complainant covered the insurance for the value of Rs.11,49,461/- by paying the premium of Rs.48,027/- and this certificate of the insurance was issued to the complainant by the opposite party in accordance with the provision of chapter 10 and chapter 11 of Motor Vehicle Act 1988.(Vide Ex.A6).    The complainant states that he availed Financial services from the 2^nd opposite party and agreed to insure this vehicle under an Insurance scheme from the 1^st opposite party and stated that he is an innocent without much knowledge and exposure of insurance.    It was stated that captioned vehicle of the complainant met with an accident on 19.9.2013 when the driver lost control the vehicle rammed onto a pile of sand stacked for the purpose of construction of a Toll gate.   The complainant states that he had reported the matter to the police station and to substantiate he had submitted the police certificate dated 09.9.2013 for claiming insurance.  Having informed to the opposite party-3 on 22.9.2013 he had sent a vehicle for repair on 24.9.2013.   It was alleged that the officers of opposite parties 1, 2, & 3, were continuously promising to help and but failed to honour their promises and there was a delay of giving approval to get the vehicle  repaired in time.   It was found that the delay was on part of opposite party-1, where the complainant was forced to shall out Rs.4,214/- as parking charges and irresponsible behavior of opposite party amounts to deficiency of service.

8.     The complainant states that he had made a payment of Rs.2,38,948/- to the repairer and to his surprise the opposite party-2 informed to the complainant insurance claim could not be processed as it was observed that the vehicle was registered under “maxi cab” and insurance policy was issued as a private car policy.   It was stated that the 2^nd opposite party  had not co-ordinated with the opposite party-1 to take correct  insurance and because of the ignorance  he took Private car policy instead of commercial vehicle policy.  Because of the  deficiency of service of opposite parties  the complainant had to huge amount of money sought refund of repair charge of Rs.2,38,948/- along with parking charges  Rs.4,214/- with compensation of Rs.5,00,000/- and cost of the complaint.

9.     The opposite party submitted that insurance policy with terms and conditions were given to the complainant and submitted a copy of the claim form submitted by the complainant to the opposite party  and final survey report assessed  by the loss assessor  and the tax card issued by the Transport Department and certificate of registration of the insured vehicle and permit issued by the Transport Department  of the captioned vehicle and the repudiation letter copy issued by the opposite party dated 4.3.2014 stating inability to make good the loss suffered by the complainant due to the description  observed that the said vehicle registered under “Maxi Cab” and the policy was taken as “Private Car” Package policy where the claim is not admissible (Ex.B1 to Ex.B7).  In addition  the opposite party had submitted the tax invoice of the vehicle under Ex.B8 and copy of the hire purchase agreement made by the complainant under Ex.B9.  

10.    The learned counsel of the opposite party argued and submitted his written version stating that the complainant had violated the basic principle of uberrimae fide (utmost good faith) in suppressing the material fact while taking insurance which is prohibited as per the terms and conditions of the policy where the complainant should not use the vehicle for hire or reward.  But the complainant took the registration certificate as Maxi cab and took the permit to use the said vehicle as commercial vehicle which is against the provision of the policy issued.   Hence the repudiation given by the insurer is in order and the claim is to be rejected and requested the forum to dismiss the complaint.

11.    Perused on the complaint, proof affidavit, documents and written arguments filed by the complainant and the written version, proof affidavits, documents filed by the opposite parties we have gone through the facts of the dispute and heard the oral arguments of the learned counsels of both the parties concerned, and observed  

i). A motor insurance contract has all the ingredients of general contract in respect of insured’s duty to disclose material facts and insured’s right to insure any legal interest, legal liability or damage to third party property, besides insurer is bestowed with the duty to indemnify and as a corollary accrues right of subrogation and contribution.    

ii). The use of “proposal form”  is compulsory and the declaration clause in the proposal form modifies the common Law duty into a Contractual duty of utmost good faith.  The effect of this justification is that the answers given in the proposal form become continuing warranties.  The answers are required to be literally true and correct.  Any wrong answer, irrespective of its materiality, will render the Insurance contract voidable by insurers, although the burden of proving concealment or misrepresentation rests on the insurance company.  

iii). The Motor Vehicles Act 1988 stipulates that the owner of a motor vehicle shall arrange for the registration of the vehicle with the Registering Transport Authority. For registration of a vehicle evidence of valid insurance in the form of a Certificate of Insurance or Cover Note is a prerequisite to comply with the 1988 Act. 

Therefore, the owner of a motor vehicle by virtue of his title and possession has an insurable interest which must be existing throughout the ownership of a vehicle.    The contention of the complainant stating that the appellant /opposite party-3 who had coordinated in covering  the insurance with opposite party-1 and putting the blame on the opposite party could not be accepted by this forum.  However Sec. 51 of the Motor Vehicle  Act 1988 requires the registration of the vehicle in the name of the user in view of this the insurance policy is issued by incorporating the financial interest clause as per India Motor tariff IMT 5 & 6 &  General Regulation of All India Motor Tariff 19 & 20 respectively.    

12.    The complainant having taken private car package nsurance policy and using his vehicle has Maxi camp  which means any Motor Vehicle  constructed or adopted to carry more than 6 passenger but not more than 12 passenger excluding Driver for hire or reward.   The complainant in addition to using the vehicle as Maxi Cab he had taken permit under sec. 66 (1) of the M.V. Act 1988.   

13.    The standard documentation of general insurance is described to GR2, GR3, GR22, GR23 GR8, GR11 GR 19 GR 21 which stipulates the insured should know about all these Regulsations.  Merely stating he was innocent cannot be accepted.  In India, Motor Insurance is mandatory u/s 146 of Motor Vehicle Act 1988 this act is benevolent legislation as far as compensation is payable to a third party.   The Motor policy containing a clause called “avoidance of certain times and rights of recovery”.  The allegations of negligence may be rewarded by the following defenses  non fit injuria, inevitable accident act of insured in the event of emergency.   In this particular case the insured cannot escape just by saying I am not aware of the insurance conditions.    Under section 147 of Motor Vehicle Act 1988 provides the mandatory motor policy, the policy is basic document hence the defenses available of motor policy is based on policy conditions.     This certificate of insurance and cover note issue becomes infractuous but the treatment of the conscious is a difference in case of own damage disability via-a-via 3^rd part liability as envisage under 1988.

14.    Based on the Motor Vehicle Act 1988 rules and sections stipulated as per the policy, the policy issued  by the opposite parties is a private car package policy, the complainant use the vehicle for hire or reward as a maxi cab and taken the permit from the registering authority which is against the provision of private car package insurance policy.   Hence the defense taken by the opposite parties are found to be in order and the complaint filed by the complainant is against the provision of Insurance policy.    

15.    Therefore we are of the considered view that the allegation of deficiency of service attributed by the complainant against the opposite parties in the complaint are not proved, as such the complainant is not entitled for any relief sought for, in the complaint against the opposite parties and the complaint is liable to be dismissed.  Considering the facts and circumstances, both the parties are to bear their own costs.  Accordingly the points 1 and 2 are answered.

In the result the complaint is dismissed.   No cost.

               Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  7^th   day  of  October  2016.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 23.11.2012         - Copy of receipt from Lanson Motors Pvt. Ltd issued to the

                             complainant.

 

Ex.A2- 28.11.2012         - Copy of Cover note issued by the 1^st opposite party.

 

Ex.A3- 28.11.2012         - Copy of receipt from Lanson Motors Pvt. Ltd to the

                             complainant. 

 

Ex.A4- 1.12.2013  - Copy of receipt from Lanson Motors Pvt. Ltd to the

                             complainant.

 

Ex.A5- 3.12.2012  - Copy of Tax invoice issued by Lanson Motors Pvt. Ltd.

 

Ex.A6- 3.12.2012  - Copy of Certificate of Insurance cum schedule.

 

Ex.A7- 3.12.2012  - Copy of certificate of registration of the vehicle.

 

Ex.A8- 3.12.2012  - Copy of tax card issued by the Transport Depart.

 

Ex.A9- 18.12.2012         - Copy of Permit issued by the Transport Dept.

 

Ex.A10- 16.2.2013         - Copy of letter from 1^st opposite party to the complainant.

 

Ex.A11- 20.9.2013         - Copy of certificate issued by the Sub-Inspector of police.

 

Ex.A12- 24.9.2013         - Copy of Estimate issued by the Service Centre, Trichy.

 

Ex.A13- 24.9.2013         - Copy of receipt for payment of Rs.10,200/-

 

Ex.A14- 27.9.2013         - Copy of Pawn Ticket issued M.Bhimraj Jain for the jewels

                              Pledged by the complainant.

 

Ex.A15- 28.9.2013         - Copy of receipt for payment of Rs.40,000/-

 

Ex.A16- 28.9.2013         - Copy of receipt for payment of Rs.35,000/-

 

Ex.A17- 4.11.2013         - Copy of reminder letter from the service center Coimbatore.

 

Ex.A18- 9.11.2013         - Copy of reminder letter from the Service Centre Coimbatore

 

Ex.A19- 11.11.2013-Copy of receipt for payment of Rs.49,000/- issued by the

                                Service Centre, Coimbatore.

 

Ex.A20- 11.11.2013 –Copy of receipt of Rs.31,000/- issued by the Service

                               Centre, Coimbatore.

 

Ex.A21- 11.11.2013 – Copy of pawn ticket issued Padmavathy Bankers for the

                                Jewels pledged by the complainant.

 

Ex.A22- 12.11.2013- Copy of receipt for payment of Rs.72,513/- issued by the

                                Service Centre, Coimbatore.

 

Ex.A23- 12.11.2013 – Copy of Tax Invoice issued by the Service Center

                               Coimbatore.

 

Ex.A24- 4.3.2014  -   Copy of letter from the 1^st opposite party rejecting

                               Claim for insurance.

 

Ex.A25- 7.3.2014    - Copy of party ledger of the complainant maintained by the

                              3^rd opposite party.

 

Ex.A26- 17.3.2014         -  Copy of legal notice sent to the opposite parties.

 

 

Opposite parties’ Exhibits:- 

 

Ex.B1-         -       -  Copy of Insurance Policy with terms and conditions.

Ex.B2-         -       -  Copy of Claim Form.

Ex.B3- 18.11.2013         - Copy of Final Survey Report.

Ex.B4- 3.12.2012  - Copy of Certificate of registration of Insured vehicle.

Ex.B5- 30.4.2013  - Copy of tax card issued by Transport Department.

Ex.B6- 18.12.2012         - Copy of permit issued by Transport Department.

Ex.B7- 4.3.2014    - Copy of repudiation letter from 1^st opposite party to

                             complainant.

Ex.B8-         -       -  Copy of Tax Invoice.

Ex.B9-         -       - Copy of Hire Purchase Agreement.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.