BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of April 2012
Filed on : 12/08/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No.438/2011
Between
Jose Mathew, : Complainant
Ettackakunnel house, (party-in-person)
Muttom P.O., Thodupuzha,
Idukki-685587.
And
1. M/s. Reliance General Inurance : Opposite parties
(Anil Dhirubhai Goup), (By Adv. Saji Isaac KJ.,
28 East Wing, 5th Floor, 311.H.B.Flats, panampilly
Centenary Building, Nagar, Kochi-682 036)
M.G. Road, Bangalore,
Karnadaka State-560 001.
2. The Officer-in-charge,
Reliance general Insurance Ltd,
1st & IInd Floor,
Vishnu Buidling,
K.P. Vallan Road,
Kadavathra, Kochi-20.,
Ernakulam.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant purchased a new car on 21-08-2010. The car was insured with the opposite party with effect from
21-08-2010. The vehicle was produced before the sub Regional Transport officer Thodupuzha on 27-08-2010 for registering the vehicle and taking taxi permit. On 28-08-2010 the car met with an accident and the vehicle was taken to the dealer of the vehicle for its repairs. At the instance of the opposite party a surveyor inspected the vehicle and assessed the damage. In the meantime the complainant paid Rs. 26,236/- to repair the vehicle on 29-09-2010. The opposite party sent a letter to the complainant stating that they are unable to reimburse the amount stating since certificate and route permit produced by the complainant was valid from to 06-09-2010 only. The complainant is entitled to get the insurance claim together with compensation and costs since the complainant had completed all the formalities for taking taxi permit, fitness certificate and route permit on 27-08-2010 and remitted the required fees on the same day. “This complaint hence.
2. The version of the opposite parties.
The complainant’s vehicle was a taxi car. As per the provisions of the motor vehicles Act the complainant has to obtain permit and fitness certificate for using the vehicle as a taxi. The accident was on 28-08-2010 and fitness certificate and permit were valid only from 06-09-2010 and 05-09-2010 respectively. There has been violation of the provisions of the Motor Vehicles Act and the conditions of the policy of insurance. So the opposite party is not liable to pay the insurance claim as claimed by the complainant.
3. No oral evidence was adduced by the parties. Ext. A1 to A5 and B1 to B3 were marked on the side of the complainant and the opposite parties respectively. Heard the complainant who appeared in person and the learned counsel for the opposite parties.
4. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get the insurance
claim of his car from the opposite party?
ii. Whether the opposite parties are liable to pay
compensation and costs of the proceedings to the
complainant?
5. Point No. i. Admittedly the complainant insured his car with the opposite party for the period from 21-08-2010 to 20-08-2011. However the vehicle happened to meet with an accident on 28-08-2010 within the currency of the policy. The opposite party repudiated the claim of the complainant stating the following reasons in Ext. A3 letter dated 29-09-2010.
The fitness certificate and route permit provided by you are valid from 06-09-2010 and 05-09-2010 respectively. The Fitness and Route permit is not valid and effective on date of loss i.e. 28/08/2010, thus the claim not payable as per the policy terms and conditions.
6. According to the complainant he duly produced the vehicle before the registering authority, Thodupuzha and paid the fees as per law to obtain taxi permit before the accident and so he is entitled to get insurance claim from the opposite party. On the contrary the opposite party contented that the permit was valid from 06-09-2010 and the fitness certificate was valid from 05-09-2010 evidenced by Exts. B2 and B3. The learned counsel for the opposite party relied on the decision rendered by the Hon’ble High Court of Kerala in Thara Vs. Syamala 2009 II KLT-707. The Hon’ble High Court has held as follows:
In other words a goods carriage can be used on the road for carrying goods only after obtaining the permit and the use of the vehicle without fitness certificate or permit will entitle insurer to dishonour the liability under the policy”
7.Admittedly Exts. B2 and B3 go to show that the authority has accorded the contract carriage permit and fitness certificate only after the accident on 28-08-2010. The insurance claim application was repudiated by the opposite party stating that there was no valid fitness certificate and routé permit at the time of accident. The Hon'ble Supreme Court in Amalendu Sahu Vs. Oriental Insurance Co. Ltd. II (2010) CPJ 9 (SC) held in para 14 as follows :
“In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Ltd. V. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below :-
Sl. No. | Description | Percentage & settlement |
1. | Under declaration of licensed carrying capacity | Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher. |
2. | Over loading of vehicles beyond licensed carrying capacity. | Pay claims not exceeding 75% of admissible claim. |
3. | Any other breach of warranty/conditions of policy including limitation as to use. | Pay up to 75% of admissible claim. |
8. Relying on the above decision, the Hon'ble Kerala State Consumer Disputes Redressal Commission in Haneefa Vs. M/s. Cholomandalam MS General Insurance Ltd. (Appeal 688/2005) decided on 30-09-2010 held that the opposite parties are liable to settle the claim on non-standard basis as out lined by the Apex Court. The set of facts in the above case and the case at hand is similar and the above decisions are squarely applicable in the instant case.
9. Ext. B1 is the survey report produced by the opposite party. The surveyor assessed the loss of the vehicle at Rs. 19,425.79. Nothing is on record to overcome or reject the findings of the surveyor in Ext. B1. In view of the above we are of the firm view that the complainant is entitled to get 75% of the amount assessed by the surveyor in Ext. B1 as observed above together with interest @9% p.a.
10. Point No. ii. The lenient view of the Hon’ble Supreme Court towards an erring complainant should not primarily be taken an excuse since the constitution itself demands that a complainant comes before law with clean hands. On these reasonable grounds we are not inclined to grant compensation or costs. The primary grievance of the complainant having been met squarely and legally according to the law of the land.
11. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay75% of the amount assessed by the insurance surveyor in Ext. B1 together with interest @ 9% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of copy of the order.
Pronounced in the open Forum on this the 30th day of April 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits:
Ext. A1 : Certificate of registration
A2 : Copy of policy certificate
A3 : Copy of claim rejection letter
A4 : Copy of tax invoice
A5 : Copy of tax license
Opposite party’s exhibits:
Ext. B1 : Copy of survey report print full
report accidental photos
document
B2 : Copy of contract carriage permit
B3 : Copy of certificate of fitness.
Copy of order despatched on :
By Post : By Hand:
