BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.128/2008 Order dated this the 9th day of February 2009 COMPLAINANT/S Sri.Nagesh S/o Puttarajegowda, R/o Doddenahalli Village, Nagamangala Taluk, Mandya District. (By Sri.D.G.Niranjanamurthy., Advocate) -Vs- OPPOSITE PARTY/S The Branch Manager, National Insurance Company Ltd., V.V.Road, Mandya. (By Sri.S.Sudarshan., Advocate) Date of complaint 27.11.2008 Date of service of notice to Opposite party 08.12.2008 Date of order 09.02.2009 Total Period 2 Month 1 Day Result The complaint is partly allowed directing the Opposite party to pay Rs.1,71,600/- with cost of Rs.3,000/-. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite party Insurance Company to pay the damage claim of Rs.2,39,783/- and rental charges of Rs.12,000/- with interest and compensation of Rs.5,000/- with costs. 2. The case of the complainant is that he is the owner of the Fiat Polia Luxury Taxi Car No.KA-11-3997 and he has obtained permit from 25.05.2006 to 24.05.2012 through out Karnataka and the said vehicle has been insured with the Opposite party from 27.06.2006 to 26.06.2008. The said vehicle met with an accident on 06.02.2008 near Doddajataka Gate on Tumkur Mysore Road, and the said car was extensively damaged and the police have registered Crime No.26/2008 and the car was inspected by the Motor Vehicle Inspector. The said car was moved with the help of towing to the Police Station spending Rs.3,000/- and the said vehicle was left in TATA Motors at Bangalore and he has spent Rs.2,17,065/- for repairs. Since, he could not pay the repair charges, the vehicle was in Tata Motors is charging Rs.200/- per day for parking, some parts were purchased from Bangalore Prime Motors at the cost of Rs.14,118.75/- and from Sri Saibaba Tyres Company for Rs.5,600/-. Then, the complainant preferred the claim to the Opposite party insurance company, but the Opposite party has repudiated the claim by letter dated 08.10.2008 stating that there was no fitness certificate for the said vehicle as on the date of accident. At the time of obtaining the insurance to the vehicle he had furnished all the documents. In spite of it, the Opposite party has repudiated the claim which amounts to deficiency in service. Therefore, the present complaint is filed. 3. The Opposite party has filed version admitting that the complainant informed the Opposite party about the accident, involving the taxi in question on 06.02.2008 and the complainant had filed a claim, claiming the amount towards the damages said to be caused to his vehicle and the complainant is put to the strict proof of the various damages and also expenditure incurred for repair charges and transportation charges. The Opposite party arranged for investigation through an authorized Insurance Surveyor. During investigation it was found that the vehicle in question was not having a valid and effective fitness certificate which has expired on 19.06.2007. Since, there was no fitness certificate on the date of accident, the driving of commercial passenger vehicle without fitness certificate is violation of law in force and also the terms of the policy and hence, the Opposite party has repudiated the claim. There is no deficiency in service on the part of the Opposite party. The Opposite party is not liable to pay the amount claimed. Therefore, the complaint is liable to be dismissed. 4. During trial, the complainant has filed affidavit and produced documents Ex.C.1 to C.6 and Opposite party has filed affidavit of witness and produced the documents Ex.R.1 to R.10. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether the complainant has violated the terms of the policy? 2. Whether the complainant has spent Rs.2,39,783/- for repairs of the vehicle? 3. Whether the Opposite party has committed deficiency in service? 4. To what relief the complainant is entitled? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that the complainant is the owner of Luxury Taxi Car bearing No.KA-11-3997 as per Ex.C.1 R.C. book and he has obtained the permit in respect of particular contract carriage as per Ex.C.2. It is also undisputed fact that the said vehicle met with an accident on 06.02.2008 and police registered Crime No.26/2008 under section 279, 337 of IPC as per the FIR Ex.C.5. It is also undisputed that the said vehicle was insured with the Opposite party Insurance Company as per Ex.C.4 valid from 27.07.2007 to 19.06.2008 and so as on the date of accident there was valid insurance. The complainant reported the accident to vehicle in question as per Ex.R.2 letter and preferred the claim and also as per the letter Ex.R.1 & R.3 with documents and then the Opposite party has appointed a Insurance Surveyor and the surveyor had assessed the damages at Rs.1,51,882/- including towing charges of Rs.1,500/- and as per Ex.R.5 the surveyor Sri.T.R.Krishna Murthy inspected the vehicle on 15.03.2008 at M/s Concorde Motors (Tata Motors at Bangalore). The complainant had produced the photos of the damaged vehicle and estimate of the repairs at Rs.2,42,332/- and submitted Ex.R.10 the Tax Invoice i.e., bill for Rs.2,17,065/-. The complainant has also submitted cash bill from Prime Automobiles as per Ex.R.7 for Rs.14,118.75/- on the ground that some parts were purchased as not available in Tata Motors and also Tax Invoice as per Ex.R.8 issued by Sri Sai Baba Tyres Company for Rs.5,600/- and also produced receipt of the towing charges of Rs.3,000/- as per Ex.R.9. After all these process Sri.N.S.Amaresh, the Insurance Surveyor has re-inspected the vehicle in question and found that vehicle repairs have been carried out satisfactorily and he has mentioned the new parts have been replaced as recommended by the earlier surveyor. The Opposite party has repudiated the claim as per the letter Ex.R.4 stating that the fitness certificate which has expired in 19.06.2007 was not valid on the date of accident, as such the vehicle was not in a road worthy condition on the date of accident and there is violation of the policy condition and therefore they are repudiating the claim. 9. Now, first we will consider whether the complainant has violated the policy condition and whether the vehicle was not in a road worthy condition on the date of accident. Of course as per Ex.R.5, the surveyor had called for the valid fitness certificate apart from other documents. According to the complainant evidence he has no knowledge about fitness certificate to be obtained and as on the date of accident there was no fitness certificate to his vehicle. 10. In Ex.C.4 the insurance policy issued by the Opposite party, the policy covers use of the vehicle only under a permit within the meaning of the Motor Vehicle Act, 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988. So, in the policy Ex.C.4 issued by the Opposite party, the policy covers only the permit issued under the Motors Vehicles Act, 1988 or such a carriage falling under Section 66(3) of the Motor Vehicles Act, 1988. The complainant has produced Ex.C.2 the permit issued by the RTO Office as a contract carriage taxi. In item No.8 of this permit, it reads thus permit shall be subject to the following conditions in vehicle in the conditions laid down in section 84 of the Act (a) The Regional Transport Authority may after giving notice of not less for the month. (b) May the conditions of the permit. (c) Allert to the permit further conditions. (d) The words to be maintained and the date of which returns are to be rules to the Transport Authority. (e) Any other conditions. List attached. In item No.7 Whether a taxi meter is to be fitted and if so the make and model number (in case of Motor Cab only) it is written as conditions enclosed. The conditions sheet is also enclosed with the permit. Nowhere in the conditions it is mentioned that the motor vehicle should possess the fitness certificate. 11. Of course, as per Section 84 of the Motor Vehicle Act 1988, one of general conditions attaching to all permits is that the vehicle in which permit relates carries, valid certificate of fitness issued under Section 56 and is at all times so maintained as to the comply with the requirements of this Act and the rules made there under. But, in the permit Ex.C.2 though section 84 is mentioned, but nowhere in the conditions A to E, it is mentioned that the vehicle should possess a valid fitness certificate and even the conditions attached to Ex.C.2 does not disclose the possession of fitness certificate. The Opposite party has taken a contention that the fitness certificate had expired on 19.06.2007 and there is no valid fitness certificate as on the date of accident. The complainant has produced Ex.C.1 the certificate of registration and in this we find certificate of fitness particulars and we find entry the fitness certificate valid from 20.06.2006 to 19.06.2007 and there is no further entry of fitness certificate. So, the document reveals that it is mandatory to possess a fitness certificate as per Section 84 of the Motor Vehicles Act. It is not in dispute that the complainant has obtained a permit as per Ex.C.2 as provided under section 66 of the Motor Vehicles Act and as per section 84 of the Act a vehicle having a permit shall possess valid certificate of fitness issued under 66 of the Act. 12. But even though the complainant has deposed that he does not know that fitness certificate should be obtained every year and there was no fitness certificate as on the date of accident, it is contended that the vehicle was in road worthy condition, because the accident was not due to the mechanical defect of the vehicle as per the report of inspector of Motor Vehicle. The complainant has produced the motor vehicle accident report and even the Opposite party has produced the same and as per this report the accident was not due to any mechanical defect of the vehicle. So, there is no evidence that the vehicle though not possessing fitness certificate was not in road worthy condition on the date of accident. 13. In the decision reported in (2003) 4 CLD 836 in the case of Oriental Insurance Co., Ltd., -Vs- Narayan Das Gupta, the Orissa State Commission has observed The District Forum held that the Insurance Company did not mention as to which specific policy condition was violated except taking a general stand that the vehicle was plying without fitness certificate violating the policy condition. The Forum has also analysed the condition No.3 of the policy as well as the law that insured in respect of the vehicle in question shall take all reasonable steps to maintain the motor vehicle in an efficient condition. The District Forum took note of the opinion of the Motor Vehicle Inspector who inspected the vehicle and opined that the accident did not occur due to any mechanical defect. Though the learned counsel for the Insurance Company has strenuously urged that the vehicle was being plied without a fitness certificate, we are unable to accept the contention in view of the finding of the District Forum that the vehicle was not in an a unfit condition for plying. Infact we do not find any other tenable ground. On that basis the State Commission upheld the decision of District Forum. 14. So in the present case also though the vehicle purchased by the complainant insured with the Opposite party was having fitness certificate and expired on 19.06.2007 and there was no valid certificate as on the date of accident, but it is not proved that the vehicle in question was not in road worthy condition as mentioned in the repudiation letter Ex.R.4. Further, it is proved by the complainant by means of the report of the Motor Vehicle Inspector that the accident was not due to any mechanical disorder of the motor vehicle. So, it cannot be said that the vehicle in question was not in a road worthy condition. 15. In the repudiation letter Ex.R.4, the Opposite party has stated that there is violation of policy condition. It is not specified what is the condition of the policy that was violated. Even in the version, the Opposite party simply stated that since driving a commercial passenger vehicle without a valid fitness certificate is apparent violation of the law in force and also terms of the policy, the Opposite party naturally repudiated the claim, it is not specifically stated what is the condition of the policy that was violated and what is the violation of the law. Further, it is to be noted that Opposite party witness has specifically deposed that at the time of insuring the vehicle after expiry of the policy they would inspect the documents and the vehicle. In the present case, the earlier owner Smt.Shusheela Murthy had obtained the insurance from Opposite party effective from 09.06.2006 to 08.06.2007, the complainant has purchased the vehicle and the R.C. was transferred to his name on 25.05.2007. Thereafter, the policy was issued to the complainant with effect from 27.06.2007, though the earlier policy was expired on 08.06.2007. So, if the Opposite party has examined the documents of the vehicle at the time of issuing policy to the complainant, it should have verified the documents whether the vehicle is possessing fitness certificate as per law. In spite of the absence of fitness certificate, the Opposite party has issued the insurance policy and there is no explanation for the omission committed by the Opposite party and under these circumstances, since the accident was not due to the mechanical disorder of the vehicle, it can be said that the vehicle was in road worthy condition. Even though, there was no valid fitness certificate as on the date of accident as held by the Orissa State Commission and that too the Opposite party did not mention as to which policy condition was violated except taking a general stand that the vehicle was plying without fitness certificate violating the policy condition. Therefore, the repudiation of the claim by the Opposite party on the ground that the vehicle in question was not possessing valid fitness certificate on the date of accident is not tenable and it amounts to deficiency in service in not settling the claim. 16. Now, we have to determine the quantum of damages cost incurred by the complainant to get the repairs of the damage. Admittedly, after the accident in the workshop, the surveyor of the Opposite party inspected the vehicle and submitted the report. According to the surveyor report, though the estimate cost of damages is Rs.2,73,875/- he assessed damages at Rs.1,51,882/- including the towing charges. But, the complainant has sought for damages of Rs.2,39,783/- towards the repair costs. The complainant has submitted Ex.R.10 Tax Invoice issued by the Tata Motors (Concorde) for Rs.2,17,065/- including labour charges of Rs.50,021.35/-. The Opposite party has also produced estimate given by the Concorde Tata Motors for Rs.2,42,332/-. Apart from Ex.R.10, the complainant has furnished Ex.R.7 the cash bill issued by Prime Automobiles for Rs.14,118/- and Ex.R.8 issued by Sri Sai Baba Tyres Company for Rs.5,600/- and Ex.R.9 towing charges bill for Rs.3,000/-. The surveyor has allowed only 1,500/- towards the towing charges. The complainant has not disputed the surveyor report about the cost of repairs. On the other hand, the Opposite party has disputed the Tax Invoice issued by the Tata Company. It is well known that in the absence of questioning the damages assessed by the surveyor, we have to give credence to the damages assessed by the surveyor. So, the surveyor has assessed damages at Rs.1,51,882/-, but the complainant has also produced other two bills for Rs.14,118/- as per Ex.R.7 and another bill Ex.R.8 for Rs.5,600/-. So, totally the complainant is entitled to Rs.1,71,600/-. 17. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite party to pay Rs.1,71,600/- with cost of Rs.3,000/-. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 9th day of February 2009). (PRESIDENT) (MEMBER) (MEMBER)
