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.119 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.2,73,874/- being the cost of damage caused to vehicle with interest at 24percent 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 HGV” on 02.06.2011 for Rs.15,48,000/- which is insured with the opposite party under comprehensive policy No.550401/31/11/6365000133 for the period covering from 02.6.2011 to 01.06.2012. While so, on 15.11.2011 at 6.00 p.m when the said vehicle came from Koradi and unloaded the raw material at power plant of NTPC construction site and then the insured vehicle came to the Project Office and due to uneven surface, the vehicle turned down on left side resulting damage to insured vehicle to an extent of Rs.2,73,874/-. Immediately the complainant personnel informed the same to the opposite party who in turn deputed an approved independent surveyor who assessed the damage. The complainant got repaired the vehicle by spending Rs.2,73,874/- 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 insured under policy was not registered”. 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.5/2014 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.
3. 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 B25 were marked on behalf of opposite party.
4. Heard both sides.
5. 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?
POINT NO.1 :-
6. 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 bearing No. MH40 N 6594 with the opposite party vide comprehensive policy bearing No.550401/31/11/6365000133 on payment of Rs.39,524/- as premium. The said policy is valid from 02.06.2011 to 01.06.2012. Ex.A3=Ex.B1 copy of policy issued by opposite party discloses the said fact. To prove the ownership of vehicle, the complainant filed Ex.A6 and A7 Temporary Registration Certificate and Certificate of registration issued by Transport Authorities. According to the complainant on 15.11.2011 at 6.00 p.m when the said vehicle came to the Project Office, due to uneven surface, the vehicle turned down on left side resulting damages to the vehicle. The spot surveyor report and final report, which are marked as Ex.B5 and Ex.B7 disclose 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 K.K.Motors, Nagpur by spending an amount of Rs.2,73,874/-. Ex.A4 invoice and estimate discloses the fact that the complainant spent Rs.2,73,874/- 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.
7. The main grievance of the complainant is that when they made claim for the said amount of Rs.2,73,874/-, the opposite party repudiated the claim vide Ex.A5 = Ex.B21/Ex.B23 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 insured under policy was not registered.
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.B21/B23 is valid or not. As seen from the said 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 insured under policy was not registered.
9. With regard to the said grounds i.e. vehicle is not having fitness certificate and vehicle is not registered are concerned, it is pertinent to note that the complainant purchased the vehicle on 02.06.2011 and got insured the same on 02.06.2011 itself with opposite party. Further as seen from Ex.A6 Temporary Registration Certificate, it is clear that the complainant got the temporary registration number to the vehicle on 25.05.2011 from the concerned registering authority. Perusal of Ex.A6 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 is renewable on payment of fees under the circumstances mentioned therein. Hence, the temporary registration is valid up to 24.06.2011 for the subject vehicle. The complainant got the permanent registration number on 29.12.2011 under Ex.A7. Further as per the opposite party, the fitness certificate issued to the subject vehicle on 29.12.2011, which is evident from Ex.B14 Form-38. As seen from record, the accident took place on 15.11.2011. 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 …
From the 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. Admittedly the insured vehicle is not having fitness certificate as on the date of accident on 15.11.2011 and that it has no permanent registration number. In this regard, the case of complainant is that he got temporary registration number in the first instance and later obtained the permanent registration on 29.12.2011 under Ex.A7 by paying penalties to the concerned department. Issuance of Ex.A7 Certificate discloses that the complainant has complied with the provisions of MV Act. It is pertinent to note that when the contract of insurance is with Engine Number, Chasis number and name of complainant and the delay if any, in getting permanent registration number, stood condoned by concerned authorities 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 and vehicle is not registered. Further it is not a condition laid down in the policy and if the complainant’s vehicle is not having fitness certificate and the vehicle is not registered, 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 uneven surface, which is beyond the control of driver of vehicle and it seems that there is no fault on the part of driver of subject vehicle. The cause for the occurrence of accident was also admitted by the opposite party. There is no material on the record to suggest that the plying of vehicle without fitness certificate and without permanent registration 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 and 2 taken by opposite party are arbitrary and unreasonable. Hence, we found deficiency in service on the part of opposite party.
Point No.2:
12. As far as the quantum of amount to be awarded is concerned, the complainant acted negligently in obtaining fitness certificate and permanent registration within prescribed period by violating the provisions of MV Act. By taking into consideration of breach though for a very short spell but being patent, we hold that granting of 75percent of amount on non standard basis would meet the ends of justice. In this regard, we would like to rely on the decision of Hon’ble Madhya Pradesh State Consumer Redressal Commission, Bhopal (2012(1) CPR -186). 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 conducted spot survey. Later the opposite party upon being informed by the complainant that he is making repairs to the lorry at K.K.Motors, Nagpur, the opposite party appointed another surveyor who made visit to the said servicing center on 7.12.2011 and submitted Final Survey Report dt.7.12.2011 assessing the damages including labor charges, depreciation, spare parts and solvage etc., as Rs.1,20,103.84 ps. The said report is marked as Ex.B7 on behalf of opposite party. But as per the complainant, he spent Rs.2,73,894/- towards repairs and got marked Ex.A4 invoice credit bill dt.6.7.2012 issued by K.K.Motors, Nagpur. As the Final Survey report dt.7.12.2011 is disclosing the estimated amount and assessed amount by the surveyor which includes spare parts, labour charges, depreciation, we find that Ex.B7 report is proper. We see no reason to discard the survey report. Thus this Forum can say that the complainant is entitled to 75percent of Rs.1,20,103.14 ps, which is rounded to Rs.1,20,103/-. Since the repudiation is not justified, the complainant is entitled to interest on the said amount from the date of final survey report. The complainant shall also be entitled to costs at Rs.2,000/-.
13. 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 Rs.90,071/- i.e., 75% of amount as assured by the surveyor as observed above with interest and costs.
14 In the result, the complaint is partly allowed directing the opposite party to pay a sum of Rs.90,077/- together with interest at 9percent p.a. from the date of Final Survey Report i.e., 7.12.2011 till 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 cum Insurance cum Policy
Schedule.
Ex.A.4 . . Attested copies of tax invoice (credit) issued by KK Motors,
Nagpur.
Ex.A.5 04.07.2012 Letter from the opposite party to the complainant.
Ex.A.6 25.05.2011 Photocopy of Temporary Certificate of registration.
Ex.A.7 . . Form 23.
For the opposite party:
Ex.B.1 . . Certificate in respect of compliance of section 61 VB of
Insurance Act, 1939.
Ex.B.2 . . Terms and conditions of the policy.
Ex.B.3 18.11.2011 Intimation of motor loss/accident.
Ex.B.4 . . Claim form.
Ex.B.5 17.11.2011 Photocopy of spot survey report.
Ex.B.6 . . Bunch of photographs.
Ex.B.7 07.12.2011 Motor final survey report.
Ex.B.8 . . Bunch of photographs.
Ex.B.9 31.05.2012 Re-inspection survey report.
Ex.B.10 19.05.2012 ten photographs.
Ex.B.11 14.09.2011 Photocopy of receipt.
Ex.B.12 14.09.2011 Photocopy of receipt.
Ex.B.13 . . Form 23.
Ex.B.14 29.12.2011 Photocopy of certificate of witness.
Ex.B.15 04.01.2012 Photocopy of receipt.
Ex.B.16 04.01.2012 Photocopy of receipt
Ex.B.17 04.01.2012 Photocopy of receipt
Ex.B.18 . . Photocopy of Goods carriage permit.
Ex.B.19 08.05.2012 Letter from the opposite party to the complainant.
Ex.B.20 14.05.2012 Letter from the complainant to the opposite party.
Ex.B.21 04.07.2012 Letter from the opposite party to the complainant.
Ex.B.22 . . Postal acknowledgement.
Ex.B.23 04.07.2012 Letter from the opposite party to the complainant.
Ex.B.24 04.07.2012 Letter from the complainant to the opposite party.
Ex.B.25 . . Permit conditions for goods carriage.
PRESIDENT
