<br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Azizur Rahman Nawade against the two Respondents. The brief facts of the complaint are that:<br /> <br /> The complainant is the owner of lorry bearing No. CNR-3786. Respondent No-1 is Insurance Company, branch at Raichur and Respondent No-2 is one of its Divisional Office at Guindy Chennai. The complainant got insured his vehicle-lorry bearing No. CNR-3786 with Respondents under policy No. 501600/31/03/6305767 for a period from 22-12-03 to 21-12-04. The insurance policy is comprehensive policy covering third party damages as-well as damages to the lorry.<br /> <br /> On 05-01-04 during night the lorry was transporting the Rice near Kappgal village and at that time one Tipper came from opposite direction & dashed to his lorry as a result of which the driver of the lorry sustained injury and the lorry also damaged extensively. The incident of accident was registered at Manvi police station. Panchanama was conducted on 06-01-04 (by way of amendment at Para-4(a) the complainant has added that). After the accident the complainant completed all formalities to claim insurance from Respondents and submitted all documents including permit details. The Respondent arranged for survey of damages to the lorry accordingly the surveyor conducted survey and submitted his report on 22-01-04 with photos. After due intimation to the Respondents and as per their instructions the complainant got repaired his vehicle. The total repair expenses were Rs. 1,48,392/-. After repair of his vehicle he lodged his claim with Respondents to indemnify the loss caused due to his vehicle in the accident. The complainant repeatedly requested the Respondents to reimburse the repair expenses. But the Respondents dragged on the matter on one or the other pretext. Again the Respondents ordered for a final survey of the damage caused to the vehicle. Finally the survey report and photographs and other documents were submitted to Respondent No-2. On 14-05-05 again the complainant requested Respondent NO-2 to settle the matter at an earliest. But the Respondent No-2 sent a letter dt. 21-06-06 to the complainant and asked for some more documents which were submitted earlier. The complainant again sent all documents. Many times the complainant made repeated requests to settle his claim but in vain. Finally he got issued a legal notice dt. 24-10-06 to both the Respondents. The Respondent No-2 replied by letter dt. 08-01-06 stating his claim as repudiated. The Respondents did not settle the claim without any valid reasons. So there is deficiency of service on the part of the Respondents for not satisfying the loss incurred by him. To repudiate the claim the violation of policy conditions must be grave so as to add more to the risk for the accident or that violation itself is cause for the accident. Both the Respondents have played un-fair trace practice in not settling his claim. Hence for all these reasons the complainant has sought for direction to Respondents to pay Rs. 1,48,392/- towards vehicle damages with interest and cost.<br /> <br /> 2. The Respondents 1 & 2 appeared through counsel and have filed a common written statement contending that the liability if any, of the Ops to pay compensation is subject to production of valid documents of insured vehicle like valid permit, RC Book, Driving licence etc., On the date of accident i.e, 06-01-04 the vehicle was plied without a valid permit. The Records disclose that the vehicle was brought as the road without a valid permit which is not only an offence under the M.V. Act but also a breach of policy conditions. A temporary permit was obtained after the accident dt. 06-01-04 as per credit certificate issued by RTO Raichur. Consequently they are not liable to pay any amount and repudiation letter dt. 06-11-06 made by them is valid and correct and there is no deficiency of service.<br /> <br /> Without prejudice to this case it is specifically denied that the complainant has sustained any loss or damage to the vehicle is highly inflated and is on the higher side and is not supported by any documents and there is no cause of action. Hence for all these reasons the Respondents have sought for dismissal of the complaint.<br /> <br /> By way of additional written-version the Respondents have contended that the complainant has not submitted original permit of the lorry in-question as on the date and time of the accident. As such the allegation of the complainant in Para-4(a) of the complaint that he had completed all formalities to claim insurance from Respondents and had submitted permit on the date and document of the accident is denied.<br /> <br /> 3. During the course of enquiry the complainant filed his sworn-affidavit by way of examination-in-chief and has got marked (12) documents at Ex.P-1 to P-12. In-rebuttal the Respondents have filed sworn-affidavit of Respondent No-1 by way of examination-in-chief and got marked (2) documents at Ex.R-1 & Ex.R-2. <br /> <br /> 4. It is worth-while to note here itself that on 27-07-07 counsel for Respondents filed an application for calling upon the complainant to produce vehicle permit as on the date & time of accident. For which the counsel for the complaint on 24-10-07 filed a memo with affidavit of the complainant stating that the complainant had no permit as on the date of accident as called for. But however on 16-01-04 he had paid permit fee of Rs. 200/- under Receipt issued by the concerned Authorities which has been produced by the Respondents.<br /> <br /> 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> <br /> 1.Whether the complainant proves deficiency in service by the Respondents in not settling his claim, as alleged.?<br /> <br /> 2.Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 6. Our finding on the above points are as under:-<br /> <br /> 1.In the negative. <br /> <br /> 2. As per final order for the following.<br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 7. There is no dispute that the complainant Azizur Rahman is the owner and RC Holder of lorry bearing NO. CNR- 3786 and it was insured with Respondent Company under insurance policy for a period from 22-12-03 to 21-12-04. It is the case of the complainant that on 05-01-04 during night the insured lorry was transporting Rice and at that time one Tipper came from opposite direction near Kappagal village and dashed to his lorry as a result of which driver of his lorry sustained injury and his lorry was also damaged extensively. A case was registered with Manvi Police-Station and panchanama was conducted on 06-01-04. The accident was informed to the Respondents who in-turn arranged for survey of damages of the lorry and surveyor who conducted survey submitted his report on 22-01-04. Thereafter as per instruction of the Respondents he got repaired his lorry incurring expenses of Rs. 1,48,392/- and there afterwards he lodged his claim with the Respondents by submitting all original repair bills and other documents. In-spite of repeated request the Respondents dragged on the matter and ordered for final survey of the damages to the lorry and final survey report with photos was submitted on 14-05-05. Again the complainant requested for settlement of the matter but Respondent No-2 sent a letter dt. 21-06-06 and asked for submitting some more documents, accordingly the complainant sent all the required documents and in-spite of his repeated requests the Respondents failed to settle his claim. So he got issued legal notice dt. 24-10-06 to the Respondents. The Respondent NO-2 repudiated his claim as per letter dt. 08-09-06 which was informed through their letter dt. 07-11-06. The Respondents have denied all these allegations of complaint.<br /> <br /> 8. The complainant has produced in all (12) documents at Ex.P-1 to Ex.P-12 namely (1) Copy of Insurance Policy, (2) Extract of RC Book, (3) Copy of Driving Licence, (4) Spot Panchanama, (5) Estimate, (6) 15 Repair Bills, (7) Surveyor Report dt. 22-01-04, (8) Surveyor Report dt. 14-05-05, (9) Letter of Respondent No-1 dt. 21-06-06, (10) Copy of legal notice dt. 24-10-06, (11) Postal acknowledgement, and (12) Reply letter of Respondent No-2 dt. 07-11-06. The Respondents have produced two documents at Ex.R-1 & Ex.R-2 namely (1) Credit Certificate dt. 22-08-06 and (2) Copy of the letter of the Respondent 08-09-06 issued to the complainant.<br /> <br /> 9. As stated above during the course of enquiry on 27-07-07, on the application of the Respondents, the complainant was directed to produce vehicle Permit of the lorry as on the date & time of the accident. After taking sufficient time the counsel for complainant on 24-10-07 filed a memo along with affidavit of the complainant, stating that the complainant is not in possession of the Permit of the vehicle as on the date of the accident as called for.<br /> <br /> 10. Ex.P-12 is the Reply letter of the Respondent dt. 07-11-06 intimating the complainant that the claim has been repudiated vide their letter dt. 08-09-06 issued to the insured (complainant) for the reasons stated there in. Ex.R-2 is the Repudiation letter dt. 08-09-06 intimating the complainant that on the scrutiny of the documents submitted, it is observed that the temporary permit obtained from RTO Raichur by paying permit fee through challan No. 2475527 dt. 06-01-04 after the date and time of the accident i.e, on 1-30 hours on 06-01-04. So it is observed that there was no valid permit at the time of accident as per the documents submitted. Therefore the claim stands repudiated. Further the memo dt. 24-10-06 filed with affidavit of the complainant states that there was no vehicle permit on the date and time of the accident. This memo supports the contention of the Respondents that there was no vehicle permit of the date & time of the accident of the lorry in-question. Ex.R-1 is the Credit Certificate dt. 22-08-06 issued by RTO Raichur certifying that the complainant RC Holder of the vehicle has paid temporary permit fee of Rs. 200/- vide challan No. 2475527 dt. 06-01-04 and as per SL.No. 86 dt. 06-01-04 cash register. This means after the accident which took place in the intervening night on 05-01-04–06-01-04, the complainant applied for temporary permit of the vehicle on 06-01-04 which is even after the accident on the early hours on 06-01-04. So it shows that at the time of accident there was no vehicle permit to the lorry in-question. <br /> <br /> 11. The Learned Counsel for the complainant argued that merely because there was no vehicle permit on the date & time of the accident the Respondent Insurance Company cannot shirk its liability to the claim of the complainant. In support of his arguments he has relied on decision of Hon’ble National Commission reported in I (2007) CPJ 274 National Commission Head Note which reads as under:<br /> <br /> “ Consumer Protection Act, 1986__ Section 2(1) (g)__Insurance__Hefty premium charged to insure Merceedez car__Repudiation on flimsy grounds__Plea, vehicle did not have permanent registration number__ Not acceptable__Non-registration of vehicle did not lead to accident__ If OP were so strict about said conditions they should have cancelled policy within reasonable time after brining it to knowledge of complainant__ Same not been done__Repudiation unjustified__Insurer liable”.<br /> <br /> The L.C. has also relied on decision of Hon’ble Supreme Court reported in II CPJ 1996 volume II Supreme Court Page 28 Head Note which reads as under: <br /> “ Consumer Protection Act, 1986__ Section 2(1) (g)__Insurance__ “ Deficiency in Service”__ “Insurance”__ “Exclusion Clause”__ Complainant’s insured vehicle met with an accident__Claim lodged__ Complaint filed__Insurance Company denied the liability on the ground that goods vehicle was being used for carrying nine passengers against permissible limit of six__ State Commission allowed the complaint, but the order was reversed by the National Commission__ Whether the Insurance Company can take advantage of “Exclusion Clause’?__(No)”.<br /> <br /> As against this the L.C. for the complainant argued that the Insurance Company is not liable to pay the claim of the complainant as he has not only violated the terms & conditions of the policy but has violated premium the M.V. Act itself by allowing his vehicle to ply for transportation of Rice without valid permit which amounts to in-fraction of law. So the Insurance Company has got a defence of denial of its liability as per section 149 (2) of M.V. Act. In support of his argument he has relied on decision of Hon’ble SC reported in AIR 2004 SC Page 4882 Head Note (A) which reads as under:<br /> Head Note(A)<br /> “ (A) Motor Vehicles Act (59 of 1988), S. 149(2)__Accident__Compensation__Denial of liability by insurer__Defences that are available__ Plying of vehicle without valid permit__ It amounts to infraction of law__ Accident caused__Said defence would be available to insurer__ Person without permit to ply vehicle cannot be placed at better pedestal vis-à-vis one who has permit, but has violated condition thereof__Insurer consequently would not be liable to pay compensation”.<br /> <br /> 12. So far as the first ruling cited by the L.C. for the complainant is concerned it is not applicable to this case since in the cited rulings the insurance company had repudiated the claim on the ground of non-registration of the vehicle. But in the present case repudiation of the claim is made for want of valid vehicle permit on the date & time of the accident of the vehicle in-question which has been admitted by the complainant-himself and the temporary permit applied by the complainant being after the accident so it cannot be said that the vehicle had valid Permit on the date and time of the accident. Similarly the second ruling relied upon by the L.C. is also not at all applicable for simple reason that in the said ruling the repudiation of the claim was made for carrying (9) passengers against the permissible limit of (6) in the goods vehicle. So both the rulings are not bearing on the facts of this case and so they are not applicable.<br /> <br /> 13. On the contrary, the ruling relied upon by the L.C. for the Respondents is aptly applicable to the facts at hand. Because in the said ruling the vehicle had no valid permit on the date of accident. The Hon’ble Supreme Court observed that the defence available to the Insurance Company for its non- liability of the claim is defined U/s. 149(2) of M.V. Act. The Hon’ble Supreme Court further observed that plying of vehicle without valid permit amounts to in-fraction of law so the insurer consequently could not be liable for compensation. <br /> 14. Section 149(2) of M.V. Act which is material in this case and which has been observed at length by the Hon’ble Supreme Court in Para-7 of the judgment reads as under:<br /> “ No sum shall be payable by an insurer under sub/section(1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment of award is given the insurer had notice thrugh the Court or, as the case may be the Claims Tribunal of the brining of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the brining of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:-<br /> (a)that there has been a breach of a specified condition of the policy being one of the following conditions, namely:-<br /> (i)a condition excluding the use of the vehicle_<br /> (a)for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or<br /> (b) for organized racing and speed testing, or<br /> (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicles, or<br /> (d) without side-car being attached where the vehicle is a motor cycle; or<br /> (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of dis-qualification or<br /> (iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or<br /> (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.”.<br /> <br /> 15. Section 66 of M.V. Act contemplates the necessity of vehicle Permit. This section 66 which is also material for our purpose and which has been observed by the Hon’ble Supreme Court in Para-8 of the judgment interalia reads as under:<br /> “66, Necessity for permits__(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used”.<br /> <br /> 16. So having regard to section 66 of M.V. Act showing imperative of the vehicle Permit to make use of it and having regard to section 149(2) of M.V. Act showing a defence available to the Insurer and the fact that vehicle in this case having been allowed to ply for transporting Rice without valid permit on the date & time of the accident, then the contention of the complainant that the insurance company is liable to pay the compensation and the non-payment of compensation amounts to deficiency in service, holds no water. Hence for all these reasons we hold that the complainant has failed to prove deficiency in service by the Respondent-insurer. Therefore Point NO-1 is answered in the negative.<br /> <br /> POINT NO.2:-<br /> <br /> 17. In view of our discussion and finding on Point No-1, we hold that the complainant is not entitled for reliefs <br /> sought for. In the result we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost.<br /> <br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 30-11-07)<br /> <br /> Sd/- Sd/- Sd/-<br /> Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi,<br /> Member. Member. President, <br /> Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.<br />