IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 31st day of May, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 74/2020 (Filed on 17-06-2020)
Petitioner : Jacob Sebastian,
Pezhumthottathil House,
Panamattam P.O. Koorali,
Ponkunnam, Kottayam
Vs.
Opposite party : (1) United India Insurance Co. Ltd.
Divisional Manager, Kottayam
(As per IA 125/20)
(Adv. P.G. Girija)
(2) Joint RTO
Kanjirappally Kanjirappally P.O.
O R D E R
Sri. Manulal V.S. President
The brief facts of the case are that the Complainant is the registered owner of the car bearing No. KL-67- 2197. He purchased the said vehicle from One A.G. Balakrishnan Nair on 11-3-2018.
On 17-3-2018 complainant filed an application before the Uzhavoor R.T.O, who had issued a clearance certificate for transferring the permit and the ownership in the name of the complainant. When the same was received by the complainant, on 3-4-2018 the complainant had paid necessary fees with the second opposite party to effect the transfer of the permit and the ownership in the name of the complainant.
At the time of purchase the said vehicle was insured with the first opposite party. The said policy was in the name of the A.G. Balakrishnan Nair who was the prior owner of the vehicle. The complainant applied for the transfer of existing insurance policy in his name and the same was transferred by the first opposite party on the basis of the clearance certificate issued by the Uzhavoor R.T.O.
When the complainant applied for the transfer of ownership and permit, the second opposite party assured him that the change in the ownership and transfer will be effected within 3 days and the records will be given to him within 7 days through the post.
While so on 12-4-2018 the said vehicle met with an accident and thereby caused severe damage to the vehicle. It was submitted that the as per the instruction of the first opposite party vehicle was taken to the workshop of G.M. Motors at Kottayam and the complainant had paid Rs.2,72,686/- towards the repairing cost. However, the claim was repudiated vide letter dated 17-9-2018 despite submission of all relevant information and documents by the Complainant.
It is averred in the complaint that though the he had paid the requisite fee for the transfer of ownership and permit on 3-4-2018 the second opposite party committed deficiency in service by not transferring the ownership and permit in the name of the complainant. It is further averred in the complaint that the first opposite party had committed deficiency in service by repudiating the genuine claim of the complainant.
Hence, the Complainant had filed this complaint being aggrieved by the act of the Opposite Parties and had sought relief of the insured value of Rs.2,72,686/- along with interest and cost of Rs.10,000 /-.
The Opposite Parties appeared before the commission and resisted the Complaint and denied all the allegations filing separate versions.
Version of the first opposite party as follows:
It was submitted that the policy was issued to the vehicle KL-67-2197 for the period from 3-4-2018 to 16-12-2018.The insured of the said vehicle was the complainant. The registered ownership of the vehicle was changed to the name of the complainant with effect from 7-3-2018. The averment that the vehicle was used for the complainant’s use on 12-4-2018 is not true. The bill dated 25-5-2018 issued by the G.M. Motors is highly exorbitant and baseless. The first opposite party had deputed an approved surveyor to assess the damages and he assessed an amount of Rs.1,59,659.55/- as damages to the loss caused to the vehicle. If it is paid by the complainant it is not with the consent of the first opposite party and hence the first opposite party is not liable to pay the same as per policy condition. For processing the claim the complainant was not able to produce a valid permit
for the vehicle in his name. The complainant’s vehicle being a public carrier, a valid permit in his name is necessary as per section 66 of the motor Vehicles Act 1988. But the complainant being the registered owner and insured of the vehicle no. KL- 67-2197 had a valid permit in his name from 16-4-2018 only whereas the vehicle met with accident on 12-4-2018. Since there was no valid permit for the vehicle in his name on 12-4-2018, the first opposite party could not honour the own-damage claim of the complainant as per guidelines for the same. It was further submitted that the first opposite party had rightly repudiated the claim. Hence, the first opposite party prayed for dismissal of the complaint.
Second opposite party filed version contending as follows:
The second opposite party is not liable for the damages caused by using a motor cab without permit, which is mandatory as per the Motor Vehicle Act. The second opposite party cannot be held liable for the damages caused to vehicle for the reason that the second opposite party had received the application for transferring the permit in the name of the complainant. When the application which is filed on 3-4-2018 received by the second opposite party from Uzhavoor SRTO , after completing the procedure , ownership has been transferred by the
second opposite party on 16-4-2018 with effect from 7-3-2018. The second opposite party has no role in dispute between the first opposite party and the complainant with respect to the insurance claim.
Evidence of this case consists of exhibit A1 to A8 from the side of the complainant and exhibit B1 to B4 from the side of the opposite party.
On the basis of the contention of the rival parties we framed the following issues for consideration.
(1)Whether the opposite parties committed any deficiency in service as
alleged?
(2). Regarding the relief and costs?
Point number 1 and 2
There is no dispute on the fact that Complainant purchased the car bearing No. KL-67-2197 from One A.G. Balakrishanan Nair on 11-3-2018.On 12-4-2018 the said vehicle met with an accident and thereby caused severe damage to the vehicle. The claim of the complainant was rejected by the first opposite party
stating that the complainant did not have valid permit at the time of accident.
It is an admitted fact that at the time of accident the said vehicle was insured with the first opposite party for a period from 3-4-2018 to 16-12-2018.
Exhibit B1 is the certificate of registration of the vehicle bearing reg.no. KL-67-2197. On perusal of exhibit B1 we can see that the registration of the said vehicle was transferred in the name of the complainant with effect from 7-3-2018.
Exhibit A3 is the tax invoice issued by Geeyem Motors to the complainant for an amount Rs.2,72,686 towards the repair cost of the said vehicle.
The specific case of the complainant is that though he had filed an application before the second opposite party to transfer the ownership and permit in the name of the complainant along with the clearance certificate issued by SRTO, Uzhavoor, the complainant received the permit, from the second opposite party only on 14-4-2018.
That it is also pertaining to note that as per the exhibit A5 issued by the R.T.O. Office, Kanjirappally , dated 19-8-2018 , the second opposite party has received the clearance certificate from SRTO Uzhavoor on 24-3-2018 and the complainant had applied for transfer of permit on 3-4-2018, , it can be believed that the complainant had made sincere effort to transfer the same in his name , in the R.T.O. Office, Kanjirappally, as per the provisions of Motor Vehicle Act 1988 and as per the Central Motor Vehicle Act 1989 in order to get the contract carriage permit the complainant has to fulfil the necessary requirement within the period of 120 days that means the complainant has to fulfil the necessary requirement namely production of vehicle for inspection as well as furnishing of necessary documents to the R.T.O. Office within 120 days from the date of 11-3-2018 ie. the date of purchase of the vehicle but prior to that on 12-4-2018 the vehicle of the complainant met with an accident and got heavy damage therefore, it cannot be said that the complainant had not made any attempt to obtain the contract carriage permit of the vehicle in question and it cannot be said that there was no permit prior to that for the said vehicle in question and therefore, it cannot be said that there was a fundamental breach of terms and condition of the Insurance Policy as well as provisions of Motor Vehicle Act and for that the Insurance Company is authorized to repudiate the claim of the insured vehicle.
The Hon’ble Supreme Court of India in the case of Amalendu Sahoo Vs. Oriental Insurance Company Ltd., II (2010) CPJ 9 (SC), wherein it has been held as under:
12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh , reported in II (2006) CPJ 83 (NC)=2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited V. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC)=2008 (7) SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:
“The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non- standard basis”
13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak , reported in II (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:
Sr. No . Description Percentage of settlement
(i) Under declaration Deduct 3 years’ difference in
of licensed carrying premium from the amount of
capacity claim or deduct 25% of claim amount, whichever is higher.
(ii) Overloading of vehicles Pay claims not exceeding 75% of
beyond licensed admissible claim
carrying capacity
(iii) Any other breach Pay upto 75% of
of warranty/ condition admissible claim
of policy including
limitation as to use
Hon’ble National Commission in the case of United Insurance Co. Vs. Simla Engineers and contract PVT. LTD. Reported in 2020 (3) CPJ 184 and submitted that no possession of the permit on the date of accident without an Act of intend or mala fide motive could not be said to be fundamental breach of the terms and condition of the Insurance Policy. It has also been observed that the violations as objected by the Opposite Parties are not at all violations of any material conditions of the policy, rather are the violations of the provisions of Motor Vehicles Act , which also contains the penalty provisions for such violations.
We also put reliance on the judgment of Hon’ble National Commission, New Delhi in case New India Assurance Co. Ltd. Vs. Ajay Bharti, R.P.No.3286 of 2018, decided on 10.1.2019.
In the case referred above, the claim of the claimant was allowed and repudiation of the claim was held to be unjustified for the clear reason that there was no nexus between the intoxication of the driver and the theft of the stationary vehicle.
In the same manner having no valid permit at the time of accident has no nexus with the damage caused to the vehicle as the first opposite party in their turn failed to prove on record that the vehicle at the relevant time of accident was being plied for any commercial purpose. It is the duly sworn contention of the complainant that the he was using the vehicle for his own purpose and this contention has not been rebutted by first opposite party anywhere in the version.
There is no evidence on record which points that the vehicle at the time of accident was being plied for any commercial usage mandating the requirement of route permit. The averment of the complainant that he was using the vehicle for his own use , when the accident took place, goes unrebutted and thus proved.
From the above observations, it is clear enough that complainant on the minimal side is fully entitled for his claim at least for 75% of the sum insured in view of formula set out by the Hon’ble Apex Court in case Amalendu Sahoo Vs. Oriental Insurance Company Ltd.
II (2010) CPJ 9 (SC), referred to above. Marching one step ahead, it is pertinent to mention that in view of the latest pronouncement of the Hon’ble National Commission, New Delhi in the case of New India Assurance Co. Ltd. Vs. Ajay Bharti, R.P.No.3286 of 2018, decided on 10.1.2019, the complainant is entitled for the full claim as has been assessed by the Surveyor. In sequel to the above discussion we are of the opinion that the first opposite party had committed deficiency in service by repudiating the genuine claim of the complainant and thereby caused mental agony and hardship to the complainant.
Exhibit B2 is the report prepared by Sri. Anshath Hussian who is the surveyor and loss assessor appointed by the first opposite party. In exhibit B2 the loss assessor assessed an amount of Rs.1,59,659.55 as damages to the loss caused to the vehicle. Therefore we hold that the complainant is entitled to Rs.1,59,659 .55 from the first opposite party in accordance with the contract of insurance. In these circumstances we allow the complaint against the first opposite party and pass the following order.
- We hereby direct the first opposite party to pay Rs.1,59,659.55/- to complainant along with 9% interest from 17-6-2020 ie the date on which the complaint is filed till realization.
- We hereby direct the first opposite party to pay Rs.10,000/- as cost of this litigation to the complainant.
Order shall be complied within 30 days from the date of receipt of this order.
Pronounced in the Open Commission on this the 31st day of May, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Policy certificate issued by United India Insurance Co. Ltd.
A2 – Cash receipt No.34/13490 dtd.03-04-18 issued by opposite party
A3 – Invoice dtd.25-05-18 by Chevrolet
A4 – Claim repudiation letter dtd.17-09-18
A5 – Letter dtd.19-08-2018 by Joint RTO to complainant
A6 – Letter dtd.05-10-18 by Sub Regional Transport Officer to complainant
A7 – Copy of letter dtd.28-09-18 by complainant to Regional Transport Office,
Ponkunnam
A8- Cash receipt No.34/13490 dtd.03-04-18 issued by opposite party
Exhibits marked from the side of opposite party
B1 – Copy of Registration certificate (KL-67-2197)
B2 – Motor final survey report dtd.18-06-18 by Anshath Hussain K.P.
B3 – Copy of Contract carriage permit dtd.16-04-18
B4- Copy of letter dtd.19-08-18 by Joint RTO to United India Insurance Co.
By Order
Sd/-
Assistant Registrar
