For Complainant : Adv. Shri. Shyam Maheshwari
For Opponent : Adv. Shri. Sanjit Shenoy
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
[1] The facts giving rise to the complaint briefly stated are as follows :-
It is the case of the Complainant that the Complainant is the registered owner of the vehicle bearing Reg. No. MH – 14- AS -8771 (Tata Truck), which was purchased by him in the month of May 2007. It is further stated that as per the Opponent’s procedure, and after verified all the vehicle documents of the aforesaid vehicle, the Opponent had insured the said vehicle with it vide policy No. 271002/31/10/6300000494 for the validity period 27/5/2010 to 26/5/2011. The Opponent had verified all the documents including the RCTC and also had inspected the vehicle before issuing the said policy. The Complainant had paid the premium as per the directions of the Opponent itself. It is the contention of the complainant that during the validity period the Complainant’s vehicle met with an accident on 29/7/2010 near village Bhose, Bhose to kalus Road, Chakan, Dist. – Pune and result thereof the vehicle was extensively damaged. In this regard the Complainant had given information of the said accident and as per the Opponent’s requirements fulfilled all the compliance alongwith the necessary and relevant documents including the claim form. Thereafter, the Opponent Company had appointed the surveyor, after his visit the inspection of the damaged vehicle and completed the survey and submitted the report to the Opponent Company. It is further submitted by the Complainant that the vehicle was take to their authorized repairer/garage i.e. Pandit Automotive Ltd. for repairs. The Complainant further alleged that even after personal visits, telephonic discussions and intimation in writing the Opponent failed and neglected to compensate the Complainant for the damage sustained to the insured vehicle. According to the Complainant, he has sustained damage to the extent of Rs.2,61,381/- for repairs to Pandit Automotive Ltd. and also incurred expenses of Rs.95,275/- for repairs from Dhurv Autocraft (I) Pvt.Ltd. plus Rs.1,400/- for towing the vehicle to the garage. Further the Complainant is also required to incur other incidental charges of nearly Rs.45,500/-. As such the Complainant has incurred total expenses for repair to the tune of Rs.4,03,556/-. Due to the accidental damage, the vehicle was under repair for a considerable period of time. According to the Complainant, time and again he had given the Opponent all this information but the Opponent tried to avoid its liability and denied to pay the rightful claim of the Complainant on one or other false and vexatious reasons. It is the contention of the Complainant that there was no breach of any terms and conditions of the policy on the part of the Complainant as he had not misrepresented or given false information to the Opponent. Thus according to the Complainant, the act of the Opponent is deficiency in service and the Opponent’s attitude is totally against the terms and conditions of the policy. The Opponent’s reasons for non payment of the Complainant’s claim is totally illegal, false and nothing but an excuse not to pay the claim of the Complainant. Due to all this, the Complainant faced mental and monetary loss and hence the Complainant has claimed Rs.25,000/- towards mental agony. According to the Complainant, the cause of action arouse on 29/7/2010 when the vehicle met with an accident. Thereafter it again arouse on 18/2/2011 when the Opponent repudiated the claim of the Complainant. On all these grounds and as specifically stated in the complaint application, the Complainant has prayed as follows :-
a. The Opponent be directed to compensate the amount of Rs.4,03,556/- as stated above being the amount spent by the Complainant for the repair of the insured vehicle and other incidental expenses alongwith interest @18% p.a..
b. The Opponent be directed to pay an amount of Rs.25,000/- towards mental and physical harassment.
c. The cost of this complaint may kindly be awarded
from the Opponent etc..
The complaint application is supported with the affidavit
of the Complainant. As also the Complainant has filed documents such as, policy issued by the Opponent, panchanama dtd.30/7/2010, tax invoice issued by Pandit Automotive Pvt.Ltd. dtd.10/102010, bill issued by Dhruv Autocraft (I) Pvt.Ltd. dtd.20/10/2010, cash memo issued by Sainath Body Builder dtd.18/10/2010 for the amount of Rs.45,500/-, challan dtd. 30/7/2010 issued by Suraj Crane Services of the amount of Rs.1,400/-, repudiation letter dtd.18/2/2011 by the Opponent to the Complainant etc..
[2] Initially after due service of notice the Opponent remained present on 25/5/2011 and has prayed for adjournment for filing the written statement. The Opponent filed its written statement and stated that the complaint filed against them is false, frivolous, vexatious and not maintainable and as such the same is liable to be dismissed with cost. The Opponent further submitted that there is no deficiency of services or delay on part of the Opponents in respect of the services rendered by them in respect of the policy issued to the Complainant. According to the Opponent, the Opponents have taken a decision to repudiate the claim of the Complainant under the policy since the Complainant was plying his commercial vehicle in the absence of a fitness certificate. According to the Opponent Company that the Complainant has violated the statutory provisions requiring every commercial vehicle to have a valid fitness certificate. The Opponent denied that they had verified all the vehicular documents of the vehicle. The fitness certificate is not scrutinized at the time of issue of the policy but has to be submitted alongwith the claim form at the time of lodging the claim as per the universal procedure followed by all insurance Companies. At the time of lodging the claim, it was observed by the Opponents that the fitness certificate of the insured vehicle was not valid as on the date of the accident. The very fact that the Complainant has not annexed the copy of the fitness certificate to the Complaint, amply indicates that the same was not valid and that is why the Complainant has suppressed the fitness certificate. The Complainant’s actual expenses incurred is Rs.2,61,381/- as per the Complainant’s admission and the amount of Rs.95,275/- has not been submitted for approval to the surveyor not has the same been approved. The Opponents are not liable to pay the amount of Rs.4,03,556/- nor any interest thereon nor costs. According to the Opponent, assuming without admitting that if this Hon’ble Forum were to hold the Opponents liable then the same would not exceed Rs.2,61,381/-. Moreover the interest of 18% p.a. claimed by the Complainant is also on the higher side and contrary to the interest Act. Therefore the Opponent prayed that the complaint filed against them be dismissed with cost. Alongwith the written statement the Opponent has also filed list of documents such as, fitness certificate. On 12/1/2012 the Opponent filed survey report. On 25/1/2012, the Opponent filed case-law.
[3] The Complainant filed his claim affidavit on 7/10/2011 and written arguments filed on 12/1/2012. On 25/1/2012, the Advocate for the Complainant filed purshis stating therein that the Complainant does not wish to lead any further oral or documentary evidence. On 2/2/2012, the Complainant filed authorities.
[4] On perusal of the entire proceedings, pleadings, documentary evidence, written and oral arguments, the following points arouse for our consideration.
Points Answers
1. Whether the Opponent has rendered
deficiency in service to the Complainant ? … No.
2. What order ? … As per final order.
REASONS :-
[5] Alongwith the complaint application, the Complainant filed policy issued by the Opponent. The vehicle of the Complainant met with an accident within the policy period. This fact has not been denied by the Opponent in their say and affidavit. Hence it is undisputed fact that the Complainant is a “consumer” of the Opponent.
[6] Points Nos.1 & 2 :- The Complainant came with the case that the Opponent repudiated the rightful claim of the Complainant. This act of the Opponent is deficiency in service. The Opponent’s attitude is totally against terms and conditions of the policy. The Opponent’s reason for non payment of claim is totally illegal, false and nothing but an excuse not to pay the claim of the Complainant etc.. However the Complainant has not filed any documentary evidence on record which shows that the Opponent rendered deficiency in service to the Complainant or the non payment of claim by the Opponent is totally illegal. After filing the Opponent’s say neither the Complainant has filed the fitness certificate of their insured vehicle nor any documentary evidence is brought on the record. Thus the Complainant has failed to prove his case against the Opponent.
[7] After perusal of the documents on the record it is crystal clear that the Complainant has taken the policy of their commercial vehicle from the Opponent. The policy period of the vehicle is valid from 27/5/2010 to 26/5/2011 and the Complainant’s vehicle met with an accident on 29/7/2010. After that the Complainant sent the required documents to the Opponent for sanctioning the insured claim amount of their vehicle. On 18/2/2011, the Opponent repudiated the claim of the Complainant by repudiation letter. After perusal of repudiation letter by the Opponent the reason of repudiation stated in the letter is fitness not valid on the date of accident.
[8] After filing written statement the Complainant filed his claim affidavit on 4/2/2011. But in their claim affidavit the Complainant has not whispered a single word on the validity of fitness certificate and also the Complainant has not filed fitness certificate of their insured vehicle on record for perusal of the Hon’ble Forum. As against this, the Opponent has filed fitness certificate on the record for perusal of the Hon’ble Forum. After perusal of the fitness certificate, it appears that the Complainant’s vehicle’s fitness certificate was expired on 24/5/2009. The Opponent filed survey report on record. After perusal of survey report issued by Mr. Dilip R. Bhavsar, it is clear that in the survey report, the surveyor remarked that fitness certificate number validity not produced, fitness validity to be confirmed. It means that on the date of accident of insured vehicle, the Complainant’s vehicle was not having valid fitness certificate. Therefore in our opinion, the Opponent has rightly repudiated the claim of the Complainant for breach of terms and conditions of the policy. In addition to that in this context the Opponent filed fitness certificate of the insured vehicle, survey report by which it is crystal clear that the Complainant suppressed the material fact about the fitness certificate from this Hon’ble Forum. As also the documents filed by the Opponent are supported to the contentions made in the written statement. In view of the Opponent Company that the Complainant has violated the statutory provisions requiring every commercial vehicle to have a valid fitness certificate. And also on perusal of the documents on the record it is evident that at the time of accident, the insured vehicle have no fitness certificate and there is no any explanation given by the Complainant to that effect.
[9] On 25/1/2012 the Opponent has filed Revision Petition No. 2976 of 2006 of the Hon’ble National Commission in the matter of United India Insurance Co.Ltd. V/s. Trilok Kaushik in which the order was passed on 9/11/2010. The relevant portion of the said order is as under :-
“The fact that the vehicle did not have valid permit and fitness certificate on the date of accident amounts to fundamental breach not only of policy conditions, but also breach of law.
Section 38 of the Motor Vehicle Act, deals with certificate of the fitness of the transport vehicles which reads as under :-
“38 Certificate of fitness of transport vehicles. (1) subject to the provisions of Section 39, a transport vehicle shall not be deemed to be validity registered for the purposes of Section 22, unless it carries a certificate of fitness in form H as set forth in the First Schedule, issued by the prescribed authority, to the effect that the vehicle complies for the time being with all the requirements of Chapter V and the rules made thereunder. Where the prescribed authority refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal”.
From the above, it is clear that a transport vehicle shall not be deemed to be validly registered for the purpose of Section 22 of the Motor Vehicle act, unless it carries a certificate of fitness. The vehicle in question did not have a fitness certificate on the date of the accident and as such the vehicle in question is deemed to be not validly registered. For the breach of these provisions, penal provision is contained in Section 123 of the act.
In view of the above, we are of the opinion that there is a breach of fundamental conditions as well as breach of law on the part of the Complainant at the time when the accident in question took place on account of which Complainant is not entitled to any compensation claimed by him”.
[10] On 2/2/2012, Advocate for the Complainant filed case laws 2008 ACJ 2642 in the matter of Bajaj Allianz General Insurance Co.Ltd. V/s. Vaishali Shety and others decided on 31/3/2008 and secondly 2008 ACJ 2274 in the matter of United India Insurance Co.Ltd. V/s. Vimal Narayanrao Nandanwar and others decided on 10/12/2007. After going through these case laws decided by the Hon’ble High Courts, it reveals that the facts in the present matter and in the authorities given by the Complainant are different one, therefore not considerable in the present matter.
[11] With the aforesaid discussions and relying on the judgment of the Hon’ble National Commission, in our opinion the Opponent has not rendered deficiency in service to the Complainant. Hence the complaint is liable to be dismissed and therefore we answer the points No. 1 & 2 accordingly.
Hence we pass the following order :-
// ORDER //
(i) The complaint stands dismissed.
(ii) No order as to costs.
(iii) Certified copies of this order be supplied to
all the parties free of costs.
