SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order against opposite parties to pay Rs.3,09,000/- towards expenses for the repair work of the insured vehicle, loss of income, compensation for mental agony etc.
It is the case of the complainant that he had purchased a Ape Auto rickshaw from OP No.1 on 18/10/2019 availing loan from the Canara Bank and that the same was insured with OP No.2 under a 3 wheeler motor transport policy and that the staff of the OP No.1 were not in good terms with him since he did not insure the vehicle as directed by them and that the OP No.1 had agreed to obtain the permit for the vehicle and that on 10/11/2019 the vehicle met with an accident. The complainant says that while he was driving the vehicle through the national highway for the purpose of making a new seat cover of the driver’s seat, he lost control over the vehicle and dashed against the electric post and the vehicle was badly damaged while he was proceeding with the vehicle for fitting cushion for the driving seat, and that the OP No.1 will fully caused delay in obtaining the permit since the insurance of the vehicle was not taken by him from the insurance company suggested by them and that the OP No.2 failed to settle his claim since there was no valid permit for the vehicle on the date of accident and hence the complaint.
After receiving notices OPs 1 and 2 filed separate versions. OP No.1 has contended that this OP is an unnecessary party in the above complaint. It is admitted that this OP is an authorized dealer of Piaggio Vehicles Pvt. Ltd., who is the manufacturer of 3 wheeler vehicles. It is also admitted that the complainant had purchased a new three wheeler from this OP as per invoice dated 30/09/2019 for an amount of Rs.1,86,511/-. The averment in the complainant that this OP made the complainant believe that this OP will make all arrangements for registering the vehicle and for getting the permit of the vehicle from the Motor Vehicles Department, and that was the reason why he chose to purchase the vehicle from this OP is totally false. The liability of this OP is only to get the vehicle registered and to deliver the vehicle after fixing the number plate of the vehicle. The complainant had not paid any amount to this OP for making arrangements for obtaining the permit of the vehicle from the Motor vehicles department and this OP never undertook to make arrangements for obtaining the permit. The application for permit was made by the complainant directly. Further submitted that the complainant got the vehicle insured through the financing bank before registration and delivery of the same by this OP showing the Engine No. and Chassis No. The OP No.2 cannot repudiate the claim on the ground that the vehicle was not covered by permit on the date of accident, since the OP No.2 had insured the vehicle even before registration. So the OP No.2 is legally liable to indemnify the complainant against any damage to the vehicle from the moment it is insured by OP No.2. Further at the time of the alleged accident, the vehicle was not used as a transport vehicle for hire or reward. Hence the refusal of the OP No.2 to settle the own damage claim of the complainant is unjustifiable. After the accident, the vehicle was brought to the work shop of this OP. As per the direction of the Insurance surveyor engaged by the OP No.2, this OP prepared a detailed estimate. It was noticed that the chasses of the vehicle is to be replaced. So as per the request of the complainant, this OP submitted an application before the RTO, Kannur of permission to replace the chassis of the vehicle. But there after the complainant informed this OP that the OP No.2 is not ready to indemnify the loss suffered by him and that he is not having money to pay the repair chares and kept the vehicle in the work shop of this OP and there after removed the vehicle from the work shop of this OP without carrying out the repairs. Till then the complainant was negotiating with OP No.2 regarding the settlement of his claim. If the complainant was ready to pay the repair charges, this OP would have repaired the vehicle within a few days. The complainant is using the vehicle as a transport vehicle. There is no deficiency of service on the part of this OP and this OP had not adopted any unfair trade practice. Since the vehicle was insured by the OP NO.2 at the time of the accident, the OP No.2 alone is liable to settle the own damage claim of the complainant and to pay the compensation if any he is entitled. Hence prayed to dismiss the complaint against OP No.1.
OP No.2 Insurance company has filed version stating that the 2nd OP is unnecessary party to the proceedings. As the complainant has not attributed any deficiency of service or unfair trade practice against the 2nd OP, the complaint against the 2nd OP is liable to be dismissed. They are not liable to pay the insurance amount towards the own damage caused to the auto rickshaw KL13/AQ 6392 as per the terms and conditions of the insurance policy of the vehicle, because the auto rickshaw which was insured as a transport vehicle was plied on the public road at the time of the accident by the insured without a permit. As per the Motor insurance policy terms and conditions of the said transport auto rickshaw, plying of the same without permit amounts to fundamental breach of the insurance policy and its conditions. Therefore due to the fundamental breach of insurance policy conditions committed by the complainant, the 2nd OP is not liable to pay any amount towards the own damage claims of the vehicle. The averments in the complaint that the vehicle was not being used for carrying passengers at the time of the accident, since the driver was taking the vehicle to repair the seat cover of the same etc are all false. The said averments classifying the use of the vehicle for private purpose and not for commercial purpose is only a ruse to shoulder the liability of paying the compensation on the 2nd OP. Hence the complainant must be put to strict proof regarding the above averments. In fact Moto insurance policy over the transport vehicle was taken at the time of the purchase of the vehicle by the complainant. The vehicle was purchased for the purpose of plying the same as a transport vehicle. Therefore failure on the part of the 1st OP to obtain the permit for the vehicle in time and the consequences of non-possession of a permit for the vehicle at the time is entirely due to the latches on the part of the1st OP. Hence the sole responsibility to bare the repair charges of the vehicle and other damages caused to the complainant is with the 1st OP alone. The 2nd OP can only act according to the contract of insurance where in terms and conditions are specifically written. The breach of the policy condition by the complainant by plying the transport vehicle without a permit at the time of the accident, which is in violation of the policy condition will not entitled the complainant to claim for the insurance amount form the 2nd OP. Hence prayed for the dismissal of complaint against OP No.2.
The evidence adduced consisted of Pw1 and Ext.A1 to A7 from the side of complainant. Dw1 and B1 and B2 from OP NO.1 side and Ext.B3 from the side of OP NO.2. After that the learned counsels of parties made oral arguments and learned counsel of OPs 1 and 2 filed written argument notes also.
The admitted facts in this case are that 1) complainant purchased a APE city Piaggio vehicles, from OP No.1 the authorized dealer of Piaggio vehicles Pvt. Ltd. On 30/09/2019 for an amount of Rs.1,86,511/-. Further the said vehicle was insured with 2nd OP. Under commercial Vehicle package policy the vehicle met with an accident while the policy was in force. The other admitted fact is that the said auto rickshaw was not having a transport permit at the time of alleged accident. The other undisputed fact is that complainant has not intimated the accident to the policy and also not intimated to the Insurance company (OP No.2). Further complainant has not submitted claim form before the Insurance Company. Further complainant has not submitted estimate for repair of the vehicle before OP NO.2. Further there is no survey report regarding the loss happened to the insured vehicle.
OP NO.2 contended that complainant ought to have submitted claim intimation and claim form along with the work estimate from the service centre and the police records regarding the cause of damage. Further submitted that on submitting those documents could enable the insurer to ascertain the true facts and circumstances of the claim by appointing an investigator and a licensed surveyor in order to make a loss assessment on the basis of the estimate made by the service centre. Thus the complainant has violated the mandatory requirements of processing a claim. According to OP No.2 since complainant has not complied the above said conditions company could not find out the nature of accident, and net loss happened to the vehicle in the alleged accident. OP NO.2 contended that the insured vehicle was not having a transport permit at the time of alleged accident and the vehicle plied without transport permit is a violation of insurance policy conditions and hence OP NO.2 is not liable to pay the repair charges of the vehicle.
Complainant alleged that while he was driving the auto rickshaw through the road, for the purpose of making a new seat cover of the driver’s seat, he lost control over the vehicle and dashed against electric post and the vehicle got damaged. Complainant further alleged that the denial of own damage claim of the complainant by OP No.2. On the ground of lack of permit on vehicle on the accident date is not justifiable because the vehicle was not used as a transport vehicles at the time of the alleged accident. It is stated that as per sec.66 (3) (p) of Motor Vehicle Act, permit is not necessary for private use of vehicle. The learned counsel of complainant has relied up on decision of Hon’ble High Court of Kerala in Suresh Kumav V oriental Insurance Co. Ltd. and another. There is also similar question is considered. That was a case where there was no permit while the accident of Auto rickshaw took place. In said case the appellant took a contention the Auto rickshaw was not being plied as a transport vehicle. It was plied for his own use. After considering the contentions of both parties the Hon’ble High Court of Kerala has taken a view that permit is not necessary when the vehicle was plied for personal use. In the said case appellant proved that through police records ie final report given by the police, the offences alleged are under Sec.279 and Sec.338 IPC, and charge sheet that the said vehicle was used by the appellant for his personal purpose.
Then in the instant case, the question to be decided is whether the complainant has proved his averment about the use of the insured vehicle for his personal purpose and not being used as a transport vehicle. OP No.2 vehimently denied the alleged accident as narrated by the complainant in the complaint. According to OP NO.2, the accident as narrated by the complainant is a fabricated story for the purpose of claiming the repair charges.
Here since insurance company denied the story of complainant regarding the accident, complainant ought to have proved the incident without any doubt. Here complainant did not adduce any evidence related to the alleged accident. No police record either final report of police or charge sheet prepared by the police has not been produced before us. Here complainant does not have a case that the accident was intimated to the police or to the Insurance company (OP No.2). Without proving the way of accident and whether the vehicle was used for this personal purpose, we cannot relied the decision of Hon’ble High court of Kerala produced here as similar to this case. Hence without proving the fact that the insured vehicle was plied for the complainant’s private purpose at the time of accident as alleged, without intimating the incident to the Insurer without submitting claim form to the Insurer and without any survey report assessing the damage happened to the vehicle, mere submitting estimate issued by OP No.1, cannot be considered as quantum of damage occurred to the vehicle in the accident and it is eligible to get to the complainant as claim amount from the Insurance company (OP No.2). OP No.2 has contended that they got information about the damage happened to the insured vehicle only when they received copy of complaint in this case from the commission. The said point also has not been substantiated by the complainant. Considering the afore said facts and circumstances we are of the view that the denial of repair charges as claimed by the complainant, is justifiable. Here complainant has clearly violated the policy terms and condition and OP NO.2 could not get an opportunity to enquire about the accident and assess the quantum of damages through investigator and surveyor and loss Assessor.
With regard to the allegation of complainant about OP No.1 the authorized dealer of the insured Auto rickshaw, it is seen that complainant alleged that the vehicle was purchased from OP No.1 on 18/10/2019 after registering from RTO Kannur. Further there was no valid permit to the vehicle when the vehicle handed over to the complainant. He alleged that he entrusted OP No.1 for taking permit and paid money to OP No.1 for the said purpose and he approached many times to OP NO.1 for getting valid permit; Then OP No.1 failed to take arrangement to obtain the permit in time and delayed, because OP1 had animosity towards the complainant since the complainant had taken the policy with OP No.2 with the assistance of Canara Bank.
OP No.1 totally denied the said allegations of the complainant raised against OP No.1. OP No.1 contended that complainant had not paid any amount to OP NO.1 for making arrangements for obtaining the permit of the vehicle from the Motor Transport Department and OP NO.1 never undertook to make arrangements for obtaining the permit. The application for permit was made by the complainant directly. According to OP NO.1, the liability to OP NO.1 is only to get the vehicle registered and to deliver the vehicle after fixing the number plate of the vehicle. Here, it is seen that complainant had failed to substantiate his allegation against OP NO.1 also by producing any material evidence to show that he had entrusted OP 1 for making arrangements for taking permit and also paid money for the said purpose. Hence we can see that complainant is miserably failed to substantiate his allegations and averment against both OPs. Hence we cannot come to a conclusion that there is deficiency of service and unfair practice on the part of OPs 1 and 2. So complainant is not entitled to get relief from opposite parties 1 and 2.
In the result, complaint is dismissed. There is no order as to cost.
Exts.
A1- Copy of Insurance policy
A2- Copy of RC
A3- Copy of pass book of Canara Bank
A4- Copy of estimate
A5- Copy of petition before RTO
A6- A letter to RTO by complainant
A7-Bill-accident labour charge
Pw1- Complainant
B1-Authorisation letter
B2- Tax invoice dated 30/09/2019
B3-Policy Schedule cum certificate of Insurance0
Dw1-Renjith P – witness of OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
