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.111/2009 Order dated this the 27th day of November 2009 COMPLAINANT/S Sri.Chandra S/o K.Kalegowda, R/at Bhramadevarahalli Village, Honakere Hobli, Nagamangala Town. (By Sri.M.J.Jain., Advocate) -Vs- OPPOSITE PARTY/S National Insurance Company Ltd., No.1576, 1st Floor, Vishweshwaraiah Road, Mandya. Rep. by the Branch Manager. (By Sri.S.Sudarshan., Advocate) Date of complaint 24.09.2009 Date of service of notice to Opposite party 07.10.2009 Date of order 27.11.2009 Total Period 1 Month 20 Days Result The complaint is partly allowed, directing the Opposite party to pay Rs.32,025/- with interest at 9% p.a. from the date of repudiation (08.10.2008) with cost of Rs.1,000/- to the Complainant. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party Insurance Company claiming Rs.1,15,000/- with interest. 2. The case of the Complainant is that he is the owner of the vehicle bearing No.KA 11/4376. The said vehicle is insured with the Opposite party. The said vehicle met with an accident on 08.02.2008 and the vehicle was damaged. The factum of accident was intimated to the Opposite party and the claim form was submitted. As per the suggestions of the Opposite party, the Complainant got repaired vehicle at Mysore and gave quotation for Rs.1,15,000/- to the Opposite party. The Opposite party by his letter dated 08.10.2008 has rejected the claim of the Complainant on the ground that the fitness certificate was not valid on the date of accident and the vehicle was not in a roadworthy condition on the date of accident. Subsequent to accident, the fitness of the vehicle has been certified by the concerned authority stating that it is in roadworthy condition. Therefore, the Opposite party has committed deficiency in service in rejecting the claim. 3. The Opposite party has filed version admitting the insurance of the vehicle of the Complainant and also accident on 08.02.2008 and the claim lodged to the Opposite party. It is contended that after investigation it was found that the fitness certificate issued to the vehicle had expired on 19.05.2007 and has not been renewed for the subsequent year. Since, plying of a commercial passenger vehicle without a valid fitness certificate is unlawful and against the provisions of Motor Vehicles Act and the terms of the policy and hence, the Opposite party repudiated the claim. There is no negligence or deficiency in service as alleged and it is false that the Complainant has spent Rs.1,15,000/- towards the repair of the vehicle. Therefore, the Complainant is not entitled to any damages and the complaint is liable to be dismissed with cost. 4. During trial, both parties have filed affidavit and the documents. 5. We have heard both the sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party has committed deficiency in service in rejecting the claim on the ground that the insured vehicle was without fitness certificate as on the date of accident? 2. Whether the Complainant is entitled to the compensation of Rs.1,15,000/-? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- The undisputed facts are that the Complainant is the owner of Goods Tempo vehicle bearing No.KA 11/437 and said vehicle was insured with the Opposite party. During the term of policy, vehicle met with an accident on 08.02.2008 and the factum of the accident was informed to the Opposite party and claim was submitted with necessary documents and the Opposite party has repudiated the claim on the ground that there was no fitness certificate for the vehicle on the date of accident and it is violation of provision of Motor Vehicle Act and terms of the policy. 9. The Complainant has produced the copy of the RC along with the fitness certificate of fitness and the fitness certificate is valid from 20.05.2006 to 19.05.2007 and he has paid tax up to 31.07.2008. It is an admitted fact that the Opposite party deputed a Surveyor and surveyor has inspected the vehicle in question and assessed the damages at Rs.42,698/-. The Complainant has produced the cash receipts for Rs.54,844/- + Rs.15,705/- and Rs.15,200/-. 10. Admittedly, the accident took place on 08.02.2008 and there was no certificate of fitness issued by the competent authority. As per the provisions of motor vehicle act, it is mandatory to use the vehicle on road with a certificate of fitness issued by the transport authority. 11. The contention of the learned counsel for the Complainant is that the fitness certificate is renewed subsequent to the accident and found to be roadworthy condition and he has cited decision in 2007(I) CPJ page 189 (NC) and 2007(I) CPJ page 90 of the Chatisgarh State Commission. The learned counsel for the Opposite party contended that there is breach of law and fitness of the vehicle cannot be presumed and when there is no fitness certificate, the conclusion is that vehicle is not in a roadworthy condition and the Complainant has to prove that the vehicle was in roadworthy condition. 12. In the case of National Insurance Co., Ltd., -Vs- Maya Gandhi I(2007) CPJ page 189, the Honble National Commission has allowed the claim of damages to the vehicle on the basis of loss assessed by the Surveyor. In that case also, the claim was rejected on the ground that there was no fitness certificate. But, the Honble National Commission has observed that the Annexure R.3 collectively produced on record mentions that the fitness certificate was to expire on 05.03.1994, The vehicle was stolen in the night of 3/4 March 1994 and the Complainant for temporary permit was granted to the Complainant on 6th March 1993, though the vehicle was of 1986 model. On that basis, the Honble National Commission has held that there was fitness certificate on the date of accident and allowed the claim of the loss assessed by the surveyor. So, this decision is not helpful to the Complainant. The Complainant has relied upon another decision reported in I (2007) CPJ page 90 in the case of Om Prakash Baghel Vs- Oriental Insurance Company Ltd., rendered by the Chatisgarh State Commission. In that case also the Insurance Company repudiated the claim of damages sustained in the accident to the vehicle on the ground of non-production of the fitness certificate permit etc., and contended that the Complainant committed breach of policy conditions. The Honble State Commission has held that there is nothing to show that the said breach in any manner contributed to occurrence of the accident and therefore, it is just and proper to treat claim as non-standard one and the Honble State Commission has awarded 75% of the loss assessed by the surveyor. 13. Now, in the present case admittedly as on the date of accident of the vehicle there was no fitness certificate and it is a breach of policy conditions and naturally the insurance company is not liable to pay any damages. But, as observed by the Chatisgarh State Commission and also in one case by the Honble National Commission mere non-obtaining the fitness certificate will not entitle the insurance company to repudiate the claim and insurance company shall prove that the non-possessing of certificate of fitness contributed to the accident and the vehicle was not in a roadworthy condition and it is not for the Complainant to prove the same. Admittedly, the Complainant has obtained permit from the year 01.06.2004 to 31.05.2009 and it is a goods transport vehicle and he has paid tax up to 31.07.2008 and hence permit is issued to use the vehicle. As per the RC, the vehicle in question is of the year manufacturing in 2004 and the accident has taken place on 08.02.2008. So, the vehicle is of 4 years old and it cannot be said it is a old vehicle. The Opposite party has not produced any document to prove from the competent authority that it is not in roadworthy condition. Even, the report of surveyor does not establish that the vehicle is not in roadworthy condition and it has contributed to the occurrence of the accident. It cannot be presumed that a new vehicle of 4 years old is unfit for use, merely because fitness certificate is not obtained intime. Therefore, in the circumstances of the case, we hold that the rejection of the claim by the Opposite party on the ground that there was no certificate of fitness and violation of law is not justified and hence, we hold that the Opposite party has committed deficiency in service in rejecting the claim. 14. The Complainant has sought for Rs.1,15,000/- as the loss caused to the vehicle in the accident. Of course, the Complainant has produced the bills for Rs.54,844/- + Rs.15,705/- and Rs.15,200/-, but they are not proved and further admittedly the vehicle in question was inspected by the surveyor deputed by the Opposite party Company and has submitted the report assessing the loss caused to the vehicle in the accident and though the total estimate submitted by the Complainant is Rs.1,43,120/- the assessment of loss made by the surveyor is Rs.42,698/-. This is not challenged by the Complainant at all and therefore there are no reasons to reject the assessment made by the surveyor. In view of the decision of the Honble National Commission it is just and proper to treat the claim as non-standard one and hence, the Complainant is entitled to 75% of Rs.42,698/- assessed by the surveyor and therefore, the Opposite party is liable to pay loss of Rs.32,025/- with interest at 9% p.a. from the date of repudiation. 15. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite party to pay Rs.32,025/- with interest at 9% p.a. from the date of repudiation (08.10.2008) with cost of Rs.1,000/- to the Complainant. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 27th day of November 2009). (PRESIDENT) (MEMBER) (MEMBER)
