KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 451/2014
JUDGMENT DATED: 24.01.2023
(Against the Order in C.C. 217/2012 of CDRF, Idukki)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SRI.RANJIT. R : MEMBER
APPELLANTS:
- The Manager, Reliance General Insurance Co. Ltd., Vishnu Building, K.P. Vallon Road, Kadavanthra, Kochi.
- The Manager, Reliance General Insurance Co. Ltd., Kallikuzhi Buildings, Kallarkutty Road, Adimali P.O., Idukki.
(By Adv. Sreevaraham G. Satheesh)
Vs.
RESPONDENT:
P. Chittu, W/o S. Soman, Periyakanal, Lower Division, Suryanelli P.O., Munnar, Idukki-685 518.
(By Adv. Nithya S., Amicus Curiae)
JUDGMENT
SRI.T.S.P. MOOSATH: JUDICIAL MEMBER
The opposite parties in C.C. No. 217/2012 of the Consumer Disputes Redressal Forum, Idukki, (in short, the District Forum) have filed the appeal against the order passed by the District Forum by which they were directed to pay Rs. 1,09,799.45 with interest @ 9% per annum on that amount from the date of complaint and Rs. 2,000/- as costs to the complainant.
2. The averments contained in the complaint are in brief as follows: The complainant is the mother of Mr. Thirupati who was the registered owner of Tata Indica car having Reg. No. KL-07 BG-7162. Mr. Thirupati died due to cancer and there are no legal heirs to Mr. Thirupati other than the complainant. The complainant filed this complaint as the legal heir of Mr. Thirupati. The vehicle was insured with the opposite parties and the validity of the policy was from 06.05.2011 to 05.05.2012. Mr. Thirupati availed a loan of Rs. 1,40,500/- from Adithya Finance, Munnar. The loan amount has to be repaid in 36 instalments. Some months after taking the loan, Mr. Thirupati was diagnosed as a cancer patient and hence he could not ply the vehicle. Only 8 instalments of the loan were repaid. Mr. Thirupati died due to the illness on 09.08.2011. The vehicle was kept at a house near Rajakumari. Since the complainant is very old, she could not take care of the vehicle. Meanwhile, the employees of the financier came to the house of the complainant and asked the complainant to clear the loan. On enquiry, the complainant found that the vehicle had no fitness certificate. Hence the complainant entrusted the vehicle with Mr. Nixon Philip for taking the fitness certificate to the vehicle. On 03.03.2012 while the vehicle was taken for fitness test at Painavu RTO office, on the way to that office the vehicle overturned into a gorge while giving side to another vehicle. Due to the accident the vehicle sustained severe damage. The complainant claimed the insurance amount from the opposite parties. The opposite parties deputed a surveyor and he has assessed the loss. On 11.07.2012 the opposite parties repudiated the claim of the complainant on the ground that the surveyor has reported that since the vehicle has no fitness certificate on the date of accident the insurance amount could not be given. The accident was caused not due to the defect of the vehicle and it occurred due to the poor condition of the road. Since there was no fundamental breach of the policy conditions, the opposite parties are bound to pay the amount to the complainant. The denial of the claim by the opposite parties is deficiency in service and the opposite parties are liable to pay the amount with interest, compensation and costs to the complainant. Hence the complaint.
3. Opposite parties filed version raising the following contentions. The complaint is not maintainable. The complainant has no locus standi to file the complaint. From the complaint it is understood that the registered owner of the vehicle Mr. Thirupati died on 09.08.2011. The complainant ought to have intimated to the opposite parties as well as the Registering Authority about the death of the registered owner of the vehicle and applied for necessary changes in the Registration Certificate and insurance policy. The own damage is purely contractual and only the insured is entitled to claim the same. The complainant has not informed the opposite parties about the death of the insured. The statement in the complaint that the complainant entrusted the vehicle with Mr. Nixon Philip for obtaining fitness certificate is not correct. The statement in the complaint that on 03.03.2012 the vehicle was taken to R.T.O office for fitness certificate is not correct. The allegation of the complainant that the opposite parties repudiated the claim on the basis of the report of the surveyor is not correct. While scrutinizing the claim of the complainant, it was found that the fitness certificate of the vehicle expired as early as on 15.11.2010 and the vehicle had no fitness certificate thereafter. There is wilful violation of the policy conditions and provisions of law. Hence the opposite parties were constrained to repudiate the claim. There is no deficiency in service on the part of the opposite parties and the complainant is not entitled to realize any amount from the opposite parties. The complaint is liable to be dismissed.
4. No oral evidence was adduced by the complainant and Exts. P1 to P4 were marked on the side of the complainant. On the side of the opposite parties DW1 was examined and Exts. R1 to R3 were marked. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order. Aggrieved by the order passed by the District Forum the opposite parties have filed the present appeal.
5. Heard Adv. Sreevaraham G. Satheesh who appeared for the appellants and Adv. Nithya who was appointed as the Amicus Curiae for the respondent/complainant.
6. Parties are referred according to their status/rank in the complaint.
7. The complainant is the mother of Mr. Thirupati who is the registered owner of the car having Reg. No. KL-07 BG-7162. Ext. P3 is the copy of the Registration Certificate of the vehicle in the name of Mr. Thirupati. Mr. Thirupati died on 09.08.2011, due to cancer. Ext. P2 is the copy of the death certificate of Mr. Thirupati, son of the complainant, issued by the Registrar of Birth, Death & Marriage, Chinnakkanal Grama Panchayat, Idukki, which shows that Mr. Thirupati died on 09.08.2011. The vehicle was insured with the opposite parties and period of the policy was from 06.05.2011 to 05.05.2012. Ext. P4 is the copy of the insurance policy issued by the opposite parties in the name of Mr. Thirupati with respect to the vehicle. On 03.03.2012 the vehicle met with an accident, the vehicle overturned into a gorge while giving side to another vehicle. The vehicle sustained damages. The matter was intimated to the Vellathooval police station and G.D. Entry was taken by the Sub Inspector of Police. Ext. P1 is the copy of the G.D Entry of the Vellathooval police station dated 12.03.2012. The complainant has made claim for the damages caused to the vehicle before the opposite parties. Ext. R1 is the claim application filed by the complainant before the opposite parties. The opposite parties deputed a surveyor and he had assessed the loss as Rs. 1,09,799.45. Ext. R2 is the copy of the report of the surveyor. It is reported by the surveyor that there was no fitness certificate to the vehicle on the date of accident. On that ground the opposite parties had repudiated the claim of the complainant. There is not much dispute between the parties to these facts.
8. As contended by the opposite parties the complainant ought to have informed/intimated the opposite parties and the Registering Authorities regarding the death of her son who was the registered owner and could have applied for changes in the Registration Certificate and the insurance policy of the vehicle. But it is not a ground to repudiate the claim of the complainant by the opposite parties since she is the mother of the insured and she had filed the complaint as the legal heir of the insured. It is stated by the complainant that she is the only legal heir of the deceased Mr. Thirupati, the insured, the registered owner of the vehicle. As found by the District Forum the contention of the opposite parties that the insured himself had not filed claim application and so the claim cannot be allowed is not sustainable.
9. The opposite parties had repudiated the claim of the complainant on the ground that there was no fitness certificate to the vehicle on the date of accident. It was reported by the surveyor that there was no fitness certificate to the vehicle at the time of accident and according to the complainant the accident occurred while the vehicle was taken to the RTO office for taking the fitness certificate. The District Forum found that the opposite parties had not been able to prove that the accident occurred due to the absence of fitness certificate. The counsel for the appellants submitted that the necessity of fitness certificate is a statutory requirement and the same is mandatory. The violation of the same is a clear deviation from the contract of insurance and that violation disentitles the insured from raising any claim. He submitted that the settled position of law as per various decisions of the National Commission is that there is no liability for the insurance company to pay compensation in case when there is no fitness certificate to the vehicle. He pointed out that the reason/cause for the accident is immaterial in such cases. The counsel for the appellants cited the decision of the National Commission dated 06.02.2014 in Revision Petition No. 2476 of 2012 (New India Assurance Co. Ltd. Vs. Birbal Singh Jhakhar). In that decision various decisions of the Hon’ble Apex Court and the National Commission were mentioned and it was held that it is apparent that the insurance company can repudiate the claim of the insured in case there is a breach of the policy condition/conditions and the breach is fundamental or material so as to vitiate the insurance contract. He has also cited the decision of the National Commission dated 24.08.2016 in R.P. No. 2283/2016 (Bhagu Ram Vs. National Insurance Company Ltd.). In that decision it was held that as there was no fitness certificate of the vehicle on the date of the accident, driving the vehicle without a fitness certificate was a breach of the terms and conditions of the insurance policy and hence, he was not liable to be compensated under the policy. The counsel for the appellants has also submitted the decision of the Hon’ble High Court of Kerala in Pareed Pillai Vs. Oriental Insurance Co. Ltd., 2018 (5) KHC 1). It was a decision of the Larger Bench of the High Court. The moot question that arose for consideration before the Larger Bench of the High Court was whether the absence of permit or fitness certificate to the transport vehicle was only a technical breach and not a fundamental breach. Based on that fact whether it was a technical breach or a fundamental breach the right of the insurer emanated. The Larger Bench considered the scope of the provisions and held that the absence of permit or fitness certificate in case of a transport vehicle was a fundamental breach. It was held that when a transport vehicle is not having a fitness certificate it will be deemed as having no certificate of registration and when such vehicle is not having permit or fitness certificate nobody can drive such a vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. That being the position, such lapse if any can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary will only negate the intention of the law makers. Admittedly the vehicle involved in the accident had no fitness certificate on the date of accident. In the light of the dicta laid down in the above mentioned decisions the insurance company has no liability to pay the claim amount to the complainant/insured of the vehicle and they were justified in repudiating the claim of the complainant since the vehicle was used in violation of the terms and conditions of the policy, without valid fitness certificate, which is a fundamental breach of the insurance contract. Without considering these legal aspects the District Forum found that there was unfair trade practice and gross deficiency in service on the part of the opposite parties to deny the insurance claim of the vehicle to the complainant who is the legal heir of the insured and directed the opposite parties to pay Rs. 1,09,799.45 to the complainant with interest from the date of the complaint and Rs. 2,000/- as costs. In view of the above discussions we are of the opinion that the finding and the order passed by the District Forum are not sustainable and are liable to be set aside. We do so. So the appeal is to be allowed.
In the result, the appeal is allowed. The order passed by the District Forum is set aside and the complaint filed by the respondent/complainant is dismissed. Parties are directed to suffer their respective costs.
Refund the amount of Rs. 25,000/- deposited by the appellants at the time of filing of the appeal, to them, on proper acknowledgement.
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JUSTICE K. SURENDRA MOHAN : PRESIDENT
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T.S.P. MOOSATH : JUDICIAL MEMBER
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RANJIT. R : MEMBER
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