Date of filing:2.7.2013.
Date of disposal: 31.1.2014.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER.
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
FRIDAY, THE 31st DAY OF JANUARY, 2014
C.C.No.118 of 2013
Between:
M/s Power Mech Projects Limited, Rep. by its Executive (HR), Having its Office at 2nd Floor, Lohia Towers, Opp.to Nirmala Convent,Vijayawada 520 010.
.… Complainant.
AND
M/s National Insurance Company Limited, Rep., by its Senior Branch Manager, Branch Office – I, Kaleswararao Road, Governorpet, Vijayawada 520 002.
. … Opposite Party.
This complaint coming on before the Forum for final hearing on 16.1.2014 in the presence of Sri S.Narasimha Rao, Counsel for complainant and Sri T.Veerabhadra Rao, Counsel for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S.Sreeram)
This complaint is filed by complainant i.e. M/s.Power Mech Projects Limited, rep.by its Executive (HR), Vijayawada under Section 12 of Consumer Protection Act, 1986 directing the opposite party to pay Rs.1,60,000/- being the cost of damage caused to vehicle with interest at 24percemt p.a from the date of repudiation till realization, to pay Rs.40,000/- in total towards compensation, costs of the complaint and other reliefs.
1. The brief averments of the complaint are as follows:
The complainant is an Engineering Company registered under Indian Companies Act dealing with Civil, Mechanical and Electrical works having corporate office at Vijayawada. The complainant purchased a vehicle MAN FORCE TRUCK CLA with Chasis No.MBKMA5DE3BN006760 and Engine No.6DBC07550 on 27.8.2011 for Rs.15,48,000/- which is insured with the opposite party under comprehensive policy No.550401/31/11/6365000389 for the period covering from 27.8.2011 to 26.8.2012. While so, on 26.09.2011 at 9.30 p.m while the said vehicle was plying between Devsar – Bargaon in empty condition, a truck going ahead, truck stopped without giving any signal and as such the insured vehicle dashed the rear portion of the Truck through its frontal portion causing damage to insured vehicle to an extent of Rs.1,60,000/-. Immediately the complainant personnel informed the same to the opposite party who in turn deputed an approved independent surveyor by name Sanjeev Agarwal who assessed the damage. The complainant got repaired the vehicle by spending Rs.1,60,000/- and made a claim to opposite party who repudiated the same vide the letter dt.04.07.2012 for the reason that the vehicle insured under the policy was not having valid fitness certificate at the time of accident and that the vehicle shown in the survey report not tallied with the vehicle colour mentioned in registration certificate. The repudiation of claim by opposite party is unjustifiable and unreasonable, which amounts to deficiency in service. It is further contended that the acts of opposite party not only caused business loss to the complainant, but also mental agony. Hence the complainant is constrained to file the present complaint.
2. After registering the complaint, notices were sent to the opposite party. In the first instance, Sri T.Veerabhadra Rao filed Vakalat on behalf of opposite party. But, subsequently no version was filed on behalf of opposite party in spite of granting sufficient time. As such the case was proceeded exparte and posted to 10.1.2014 for orders. While so, on 10.1.2014, the opposite party filed I.A.No.4/2014 for reopen of the case, to receive version and documents. The said petition was allowed on 10.1.2014 itself and the version of opposite party, chief affidavit of opposite party and documents were received.
3. The opposite party filed version denying the material allegations made in the complaint. The opposite party while admitting the subsistence of insurance for the vehicle has reproduced the complaint averments and correspondence made between the complainant and opposite party. Further the opposite party contended that the complainant committed violation of terms and conditions of the policy and MV Act and that the grounds for repudiation are valid. It is further contended that this Forum has no jurisdiction to try the case as the dispute is out of scope of policy and that there is no cause of action for the complaint and that there is no deficiency in service on the part of opposite party and that the claim of complainant is excessive and arbitrary and finally prays to dismiss the complaint.
4. The Executive (HR) of complainant company filed affidavit reiterating the material averments made in the complaint and got marked Ex.A1 to A7. The Senior Divisional Manager of opposite party filed chief affidavit reiterating the contents of its version and Ex.B1 to B20 were marked on behalf of opposite party.
5. Heard both sides and perused the record.
6. Now the points that arise for consideration in this complaint are:
- Whether there is any deficiency in service on the part of the opposite party in not settling the claim of complainant?
- If so is the complainant entitled for the reliefs as prayed for?
7. Point No.1 : The admitted facts and undisputed facts in the case on hand are that the complainant company got insured their vehicle i.e. MAN FORCE TRUCK having Chasis No.MBKMA5DE3BN006760 and Engine No.6DBC07550 with the opposite party vide comprehensive policy bearing No.550401/31/11/6365000389 on payment of Rs.35,736/- as premium. The said policy is valid from 27.8.2011 to 26.8.2012. Ex.A3 Ex.B2 copy of policy issued by opposite party discloses the said fact. To prove the ownership of vehicle, the complainant filed Ex.A6=Ex.B6 and A7=Ex.B7 Temporary Registration Certificate and Certificate of registration issued by Transport Authorities. According to the complainant on 26.09.2011 at 9.30 p.m when the said vehicle was plying between Devsar – Bargaon in empty condition due to sudden stoppage of the vehicle going ahead vehicle, the insured vehicle dashed the rear portion of truck resulting damages to the vehicle. The final surveyor report, which is marked as Ex.B11 discloses the said fact. Further according to the complainant, immediately he informed the same to opposite party who deputed surveyor and on the advice of surveyor, he got repaired the vehicle at Shriram Motor Works Pvt. Ltd., Satna, Madhya Pradesh by spending an amount of Rs.1,60,000/-. Ex.A4=Ex.B13 invoice and estimate discloses the fact that the complainant spent Rs.1,60,000/- towards repairs to the damaged vehicle. Ex.A1 and A2 are the Registration certificate of complainant company and authorization given by complainant company. The damages caused to the vehicle in the incident are evident from the photographs marked on behalf of opposite party.
8. The main grievance of the complainant is that when they made claim for the said amount of Rs.1,60,000/-, the opposite party repudiated the claim vide Ex.A5=Ex.B18 letter dt.4.07.2012 on the ground that the vehicle insured under the policy was not having valid fitness certificate at the time of accident and that the vehicle shown in the survey report not tallied with the vehicle colour mentioned in registration certificate.
8. Perusal of record discloses that there is no dispute with regard to subsistence of policy and accident occurred to the subject vehicle. In view of these circumstances, the only point that stood for consideration before us is whether the grounds for repudiation mentioned in Ex.A5=Ex.B18 is valid or not. As seen from the repudiation letter, the ground for repudiation is that the vehicle insured under the policy was not having valid fitness certificate at the time of accident and that the vehicle shown in the survey report not tallied with the vehicle colour mentioned in registration certificate.
9. With regard to the 1st ground i.e. vehicle is not having fitness certificate is concerned, it is pertinent to note that the complainant purchased the vehicle on 27.8.2011 and got insured the same on 27.8.2011 itself with opposite party. Further as seen from Ex.A6/Ex.B6 Temporary Registration Certificate, it is clear that the complainant got the temporary registration number to the vehicle on 2.9.2011 from the concerned registering authority. Perusal of Ex.A6/B6 also discloses the chasis number, engine number and name of the owner of the vehicle. As per Sec.43 of Motor Vehicles Act, the temporary registration is valid for one month and the same may be renewable on payment of fees under the circumstances mentioned therein. Hence, the temporary registration is valid up to 1.10.2011 for the subject vehicle. As such the complainant is at liberty to get permanent registration on or after 1.10.2011 and till then the temporary registration is valid for subject vehicle. As seen from record, the accident took place on 26.9.2011 i.e. within the period of temporary registration. Further as per Sec.56 of the MV Act a transport vehicle shall not be deemed to be validly registered for the purpose of Sec.39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by Central Government, issued by prescribed authority Sec.39 of MV Act deals with necessity of registration No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chapter and
A combined reading of above sections, it is clear that unless the vehicle carries a certificate of fitness, it shall not be deemed to be validly registered. The word ‘validly registered’ denotes that ‘permanent registration’. As such during the temporary registration period, no fitness certificate is necessary for running the vehicle. As stated above, the accident took place within temporary registration period. As such the question of having fitness certificate as alleged by opposite party does not arise. Subsequently the RTA Authorities issued permanent registration certificate to the subject vehicle under Ex.A7=Ex.B7 and the fitness certificate is issued on 23.12.2011, which is evident from Ex.B10. Issuance of Ex.A7 Certificate discloses that the complainant has complied with the provisions of MV Act. When the contract of insurance is with Engine Number, Chasis number and name of complainant and the opposite party admitted the factum of accident and damage, it could not have repudiated the claim of complainant only on the sole ground that the vehicle is not having fitness certificate. Further it is not a condition laid down in the policy and if the complainant’s vehicle is not having fitness certificate, he is liable to be punished under Sec.192 of Motor Vehicles Act. In this regard, we would like to rely upon the decision of Hon’ble National Commission in Revision Petition No.626/2013 which was decided on 7.8.2013, wherein it is held that if the complainant did not have the registration number, he is liable to be punished under Sec.192, which provides that, whosoever drives a motor vehicle, or causes or allows a motor cycle, to be used in contravention of the provisions of Sec.39, shall be punishable for the first offence, with a fine, which may extend to five thousand rupees, but shall not be less than two thousand rupees…. and further held that the insurance company does not enjoin the powers of traffic police and that it does not give any power to the insurance company to press this section into service
10. Further as per the complainant the accident occurred due to sudden stoppage of ahead going vehicle, which is not foreseen one to anybody and there is no fault on the part of driver of subject vehicle. There is no material on the record to suggest that the plying of vehicle without fitness certificate had contributed to the accident and the opposite party also failed to establish that the fitness of the vehicle had any nexus with the cause of accident.
11. The Hon’ble National Commission of India in a case between G.Kothainchiar Vs. United India Insurance Co., Ltd., (2008(1) CPC-186) and in number of cases held that the breach with respect to plying of the vehicle without permit is only a breach with respect to the provisions of Motor Vehicles Act and it is not a breach of terms and conditions of policy and further held that the insurance companies cannot legally repudiate the claims on that ground. The same ratio is followed by Hon’ble State Commission of Himachal Pradesh, Shimla (2012 – 3 CPR 169), which decision is relied on by the complainant. Taking in to consideration of the said ratio, we are of the considered opinion that the ground No.1 taken by opposite party is arbitrary and unreasonable. Hence, we found deficiency in service on the part of opposite party.
12. So far as 2nd ground i.e. the colour of vehicle mentioned in surveyor report is not tallied with the registration certificate is concerned, as per Ex.A5 letter, the opposite party mentioned that, in the registration certificate issued by Transport Authorities, the vehicle colour was mentioned as “Naple Gold”, but where as the photos taken by surveyor disclose the colour as ‘white’. The photographs marked on behalf of opposite party also show the colour as ‘white’. But a perusal of Ex.A6/B6 Temporary Registration discloses the colour of vehicle as ‘Yellow’ and Ex.A7 registration certificate discloses the colour as ‘white’. The registration certificate marked on behalf of opposite party under Ex.B7 discloses the colour as ‘naplegold’. But the photographs marked on behalf of opp.party discloses the colour as ‘white’ and the Ex.A7 marked on behalf of complainant also disclose the colour as ‘white’, we would not like make reliance on Ex.A7 and photographs and considered the colour as ‘white’. As such the mentioning of ‘yellow’ colour in Ex.A6 would be a clerical mistake and the same is not an obstacle for the process of claim by opposite party, particularly when the engine no. and chasis no. tally.
13. Now with regard to the quantum of amount to be granted, admittedly after the accident, the complainant informed the same to opposite party who deputed surveyor and who made visit to the servicing center at Satna, Madhyapradesh and submitted Motor Final Survey Report dt.3.11.2011 recommending the amount for Rs.81,875/- subject to policy conditions and after deducting special discount to be given by workshop at 10%, he recommended Rs.76,881/-. The said report is marked as Ex.B11 on behalf of opposite party. But as per the complainant, he spent Rs.1,60,000/- towards repairs and got marked Ex.A4 invoice dt.21.10.2011 issued by Shriram Motor Works Pvt. Ltd., Satna. The disallowed items in Ex.B11 are noted as NA (Not affected) or ENDI 21 IMT (as per endorsement IMJ 21). IMJ 21 states that certain items such as mudguard, bonet, painting are not covered by liability. That apart depreciation will be calculated by the insurance surveyor. We find that Ex.B11 report is proper. We see no reason to discard the surveyor report. Then this Forum can say that the complainant was entitled to the sum of Rs.76,881/-. Since the repudiation is not justified, the complainant is entitled to interest on the said amount from 3.11.2011 the date of final surveyor report. The complainant shall also be entitled to costs assessed at Rs.2,000/-.
14. In view of the foregoing discussion, we are of the considered opinion that the opposite party has committed deficiency in service by repudiating the claim of complainant. As such the complainant is entitled to the amount as observed above with interest and costs.
POINT No.2
15. In the result, the complaint is partly allowed directing the opposite party to pay a sum of Rs.76,881/- (Rupees seventy six thousand eight hundred and eighty one only) together with interest at 9% p.a. from the date of report Ex.B1 i.e., 3.11.2011till realization besides costs of Rs.2,000/-. Time for compliance is one month from the date of receipt of this order. The other claims of complainant if any shall stands dismissed.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 31st day of January, 2014.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant:- For the opposite party:-
P.W.1 P.Chandra Mohan, D.W.1 M.Ranga Rao,
Executive of the Complainant Senior Divisional Manager,
(by affidavit) of the opposite party.
(by affidavit)
DOCUMENTS MARKED
On behalf of the complainant:
Ex.A.1 22.07.1999 Attested copy of certificate of incorporation.
Ex.,A.2 15.02.2013 Letter from the complainant.
Ex.A.3 . . Attested copy of Certificate of Insurance cum Policy Schedule.
Ex.A.4 . . Attested copies of invoice and estimate issued by Shriram Motor
Works, Satna, M.P.
Ex.A.5 04.07.2012 Letter from the opposite party to the complainant.
Ex.A.6 02.09.2011 Photocopy of Temporary Certificate of registration.
Ex.A.7 . . Attested copy of Certificate of Registration..
For the opposite party:
Ex.B.1 . . Insurance certificate.
Ex.B.2 . . Letter from the opposite party to the complainant.
Ex.B.3 . . Motor Claim form.
Ex.B.4 . . Letter from the opposite party.
Ex.B.5 . . Photocopy of insurance policy.
Ex.B.6 02.09.2011 copy of Temporary registration certificate.
Ex.B.7 . . Photocopy of certificate of registration.
Ex.B.8 24.12.2011 Photocopy of Certificate.
Ex.B.9 . . Form 47.
Ex.B.10 02.12.2011 Form C.M.V.R.38 fitness certificate.
Ex.b.11 03.11.2011 private & Confidential Motor (Final) Survey Report.
Ex.B.12 . . Bunch of photocographs.
Ex.B.13 21.10.2011 Photocopy of Invoice issued by Shriram Motor Works Pvt., Ltd.,
Satna, M.P.
Ex.B.14 28.10.2011 Re-Inspection Report.
Ex.B.15 . . Bunch of Photographs.
Ex.B.16 08.05.2012 Letter from the opposite party to the complainant.
Ex.B.17 14.05.2012 Letter from the complainant to the opposite party..
Ex.B.18 04.07.2012 Letter from the opposite party to the complainant.
Ex.B.19 14.05.2012 Letter from the complainant to the opposite party..
Ex.B.20 . . Photocopy of conditions for goods carriages.
PRESIDENT
