IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 25TH DAY OF MAY 2015.
Present: - SMT. G. VASANTHA KUMARI, PRESIDENT
ADV. RAVISUSHA, MEMBER
ADV.M. PRAVEEN KUMAR, MEMBER
CC No.195/2012
Sivaraman : Complainant
S/o Kunju Pillai
Residing at Athira
Neduvathoor,
Neeleswaram P.O
Kollam
[By Adv. Prince Kumar.G, Kollam]
V/S
1. Regional Claims Manager : Opposite parties
HDFC ERGO General Insurance Co.Ltd.
1st Floor, Chicago Plaza
Near K.S.R.T.C. Bus stand
Rajaji Road
Cochin
2. The Manager
HDFC ERGO General Insurance Co.Ltd.
6th Floor, Bishop Jerome Nagar
Chinnakkada
Kollam – 691001
[By Adv. S.Dileep Kumar, Kollam]
ORDER
ADV. RAVISUSHA, MEMBER
Complainants case is that the complainant is the owner and occupier of an Auto rickshaw manufactured by Bajaj Auto Ltd.bearing Reg.No.KL-24-6672. The complainant purchased the said auto rickshaw on 22/11/2011 by availing loan from Muthoot Capital Services Ltd, Muthoot Towers, M.G. Road, Kochi. The complainant submits that he purchased the said auto rickshaw for earning some income for his livelihood.
The complainant while purchasing the auto rickshaw has insured the vehicle with 1st opposite party as per passenger carrying vehicle package policy (Comprehensive policy) No. 2314200160957500000 dated 25/11/2011. The complainant submits that on 13/12/2011, the
(2)
vehicle has to be produced before Motor Vehicle Inspector for allotting Road Permit to the vehicle. The complainant’s son who is a holder of three wheeler license has taken the vehicle for servicing the vehicle (water service). After service, while returning home with the vehicle, when the vehicle reached near Pulamon Junction near traffic Island at about 10 AM, it met with an accident and there by severe damage was happened to the vehicle. Immediately the accident was reported to the opposite parties and thereafter it was taken to Bindhu Auto Garage, Kottarakkara which is the authorized service centre of Bajaj Auto rickshaw. The insurance surveyor deputed by the 1st opposite party visited the vehicle at garage and consent was given to the complainant to repair the damages caused to the vehicle from the accident. As such the complainant had spent Rs.41,222.80/- for the spare parts, painting and labour charges.
The complainant submits that after completion of the repairing of the vehicle, he made a claim application before the 2nd opposite party. The second opposite party forwarded the claim application to the first opposite party for sanctioning the same. But the first opposite party without any valid reasons rejected the claim application given by the complainant as per letter dated 28/01/2012 that at the time of accident the vehicle had not having any valid permit to use the same in public road. The complainant submits that as per the insurance policy taken by the complainant, the opposite parties are liable to compensate the complainant for own damages. The complainant is entitled to get the amount that he had spent for repairing of the vehicle and the opposite parties are liable to pay the same to the complainant. The complainant submits that the above action of the opposite parties is inexcusable deficiency in service, Hence filed this complaint.
Opposite parties filed version contending that it is admitted that the 2nd opposite party had issued a comprehensive insurance policy to the complainant for his passenger carrying vehicle bearing Reg. No.KL-24D/6672 for a period commencing from 25/11/2011 to 24/11/2012. The insured vehicle is a passenger carrying commercial vehicle and as per the policy issued by this opposite party, the complainant is supposed the use of vehicle for the purpose of carrying passengers alone, if the vehicle is having a valid permit and fitness certificate issued by the authority, in order to identify the risk covered under the contract of insurance. The above condition is specifically mentioned in the policy itself, as to the limitation of use of vehicle permitted under the policy. The insured vehicle being a passenger carrying commercial vehicle, the complainant is permitted to use the vehicle for carrying passengers only if the vehicle is
(3)
having a valid permit issued by the statutory authority, as per the statutory provisions envisaged under sub section (3) of section 66 of the Motor Vehicles Act 1988. The opposite parties are liable to indemnify the complainant for the damages sustained to the vehicle in the event of an accident arising out of the use of the vehicle, in compliance to the limitation as to the use mentioned in the policy.
The complainant in this case has reported a claim before the opposite party stating that the insured vehicle met with an accident on 13/12/2011. On receipt of claim intimation and the estimate from the complainant, the opposite party deputed a Surveyor in order to assess the extent of loss sustained on account of the alleged accident and the cause of accident etc. The surveyor after inspecting the damaged vehicle has assessed the extent of loss in accordance with terms and conditions of the policy. Though the surveyor has assessed the extent of loss to a sum of Rs.38,842/- it is found that the insured was using the vehicle in gross violation to the terms and conditions of the policy at the time of accident. The vehicle was using by the insured/complainant for commercial purpose without a valid fitness certificate and permit at the time of accident. Though the complainant took delivery of the vehicle as early on 21/10/2011, the complainant failed to obtain the permit and fitness certificate for the vehicle within a reasonable time and was using the vehicle for commercial purpose without having a valid permit and fitness certificate. It is also important to note that, the vehicle had already covered 1205 KMs as per the speedometer reading as on the date of accident. This much reading in the speedometer clearly shows that, the complainant was using the vehicle for commercial purpose to a considerable extent till the date of accident after he took delivery of the vehicle.
Though the alleged accident occurred to the complainant’s vehicle is a major one, he has not reported the accident to the police for which there is no satisfactory explanation has given by the complainant, the nature of damages sustained to the vehicle clearly shows that, the cause of accident stated by the complainant is not at all consistent with the nature of damages sustained to the vehicle. According to the complainant as per his claim intimation, the accident occurred while the insured vehicle was parked on the road. But the nature and extent of damages sustained to the insured vehicle clearly shows that the actual damages sustained to the vehicle is as a result
of collision with an oncoming vehicle only. So the complainant has deliberately suppressed the actual cause of accident in the claim petition submitted by him and has given a false declaration about the actual cause of accident.
(4)
The opposite party sent a letter to the complainant on 09/01/2012 informing him about the use of the vehicle for commercial purpose without a valid permit and fitness certificate and also sought clarification about the failure on the part of the complainant in intimating the incident to the police for this major accident and about the inconsistent version of the complainant about the cause of accident etc. But the complainant failed to furnish any clarification, other than the permit and fitness certificate produced by him. The fitness certificate and permit produced by the complainant shows that the complainant had obtained the permit and fitness certificate for the insured vehicle only with effect from 13/01/2012 to 12/01/2017 and 09/01/2012 to 28/11/2013 respectively. The vehicle was using without a valid permit and fitness certificate as on the date of accident and the complainant was using the vehicle against the policy terms and conditions and in violation to the statutory provisions of the Motor Vehicles Act as on the date of accident. So the opposite party sent a letter to the complainant on 28/01/2012 about the inability in admitting the claim and informed the decision to close the claim as ‘No Claim’.
The liability of the insurer is strictly in accordance with the terms and conditions of the policy and the decision for repudiating the claim has taken by this opposite party after due application of mind. The opposite parties are not at all liable to indemnify the complainant, even to the extent of loss assessed by the surveyor due to the grave violation of policy condition committed by the complainant, by using the insured vehicle for commercial purpose without having a valid permit and fitness certificate. Hence prays for dismissal of complaint.
The points that would arise for consideration are:-
(1) .Whether the insured has violated the terms and conditions of the policy?
(2).Whether there is deficiency in service on the part of the opposite parties?
(3).Reliefs and costs?
The Points 1 to 3:- It is not disputed that the complainant has taken Ext P2 policy and that policy was subsisting when the passenger carry vehicle bearing Reg.No.KL-240/6672 met with an accident on 13/12/2011.The complainant submitted Ext.D3 claim form which was repudiated by the opposite party as per Ext.P4 (D6) repudiation letter on the ground that the fitness certificate and permit of the vehicle are not valid until at the material time of accident. Now the question is whether the complainant violated the policy conditions prescribed in Ext P2 policy.
(5)
Opposite party’s version is that on receipt of the claim application form and estimate given by the repairers from the complainant they appointed an insurance surveyor and loss assessor for examining the damages sustained to the vehicle and to assess the extent of loss on account of the accident. The surveyor on verification of the documents produced by the complainant found that the complainant was using the vehicle for commercial purpose without having a valid permit and fitness certificate at the time of accident. It is found that the complainant took delivery of the vehicle as early on 20/11/2011,and he was using the vehicle without having a permanent registration number, permit and fitness certificate at the time of accident. More over the insured vehicle had already covered 1205Kms,as per the speedometer reading at the time of the occurrence. The surveyor also made an observation in his report, though the accident is a major one, the insured has not reported the incident to the police and not even produced a GD entry showing the genuiness of the occurrence stated by the complainant in the claim form submitted by him. According to the opposite party since the complainant was using the vehicle in gross violation of the policy condition they have taken a decision to repudiate the claim form as ‘No Claim’. The learned counsel appearing for the complainant argued that the above contentions of the opposite parties are not having any supported evidence and further the opposite party did not examine the surveyor to prove his versions. Here we are of the view that in such a situation burden of proof lies on the complainant to prove his case. The main contention of the opposite party is that since the complainant was using the vehicle for commercial purpose without having valid permit and fitness certificate, there is gross violation of the policy condition. Then the complainant ought to have produced the valid permit and fitness certificate holding at the time of accident. More over the complainant pleaded that on 13/12/2011 the vehicle has to be produced before Motor Vehicle Inspector for allotting Road permit to the vehicle and the complainant’s son, has taken the vehicle for water servicing the vehicle. But the complainant did not produce the service bill to prove his above pleading. Mere denial of the speedometer reading and the contention that the vehicle has to be produced before Motor Vehicle Inspector for allotting Road Permit to the vehicle is not sufficient. It is not disputed that the complainant took delivery of the vehicle on 22/11/2011 and the vehicle met with the accident on 13/12/2011.Moreover it is evident from Ext.D4 document contract carriage permit that the complainant obtained permit of the vehicle from 13/01/2012 to 12/01/2017 and from Ext.D5 document the certificate of fitness for the vehicle obtained only on 09/01/2012 from Ext.D4 and
(6)
D5 it is clear that the vehicle was used by the complainant without having fitness certificate and permit. So we believe that the odometer reading 1205Kms noted by the surveyor is correct.
The policy Ext.D1 specifically stipulated that the policy covers use of the vehicle only under a permit within the meaning of Motor Vehicles Act 1988.Here it is clearly evident that the complainant was using the vehicle in gross violation of the policy condition. The learned counsel appearing for the opposite party argued that the complainant has got a contractual obligation to comply the terms and conditions of the contract in claiming indemnify under the policy and the opposite party had repudiated the claim of the complainant by invoking the specific condition incorporated in the policy, which has been violated by the complainant.
On considering the entire evidence and circumstances, we are of the view that the repudiation of the claim by the opposite party is perfectly justifiable and there is no deficiency in service on the part of the opposite party.
In the result the complaint fails and is dismissed but without cost.
Dated this the 25th day of May 2015.
G. VASANTHA KUMARI:Sd/-
ADV.RAVISUSHA: Sd/-
ADV.M. PRAVEEN KUMAR:Sd/-
Forwarded/by Order
Senior Superintendent
I N D E X
PW.1:- Siva Raman
Ext.P1:- Copy of RC Book
Ext.P2:- Policy Certificate
Ext.P3:- Tax receipt
Ext.P4:- Repudiation letter dated 28/01/2012
Ext.P5:- Bill dated 29/12/2011
Ext.P6:- Bill No.6997 dated 30/12/2011
Ext.P7:- Bill No.6996dated 30/12/2011
(7)
Ext.P8:- Bill No.6999 dated 30/12/2011
Ext.P9:- Bill No.7000 dated 30/12/2011
Ext.P10:- Bill No. 7005 dated 30/12/2011
Ext.P11:- Bill dated 10/01/2012
Ext.P12:- Bill dated 06/01/2012
Ext.P13:- Bill dated 03/01/2010
Ext.D1:- Certificate of insurance cum policy schedule
Ext.D2:- Copy of R C book
Ext.D3:- Copy of insurance claim form
Ext.D4:- Copy of contract carriage permit
Ext.D5:- Copy of certificate of fitness
Ext.D6:-Letter dated 28/01/2012
Ext.D7:- Motor Survey Report dated 05/01/2012
