CC Filed on 21.04.2011

         Disposed on 07.01.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.

Dated:  07^th  day of January 2012

PRESENT:

                        HONORABLE T. RAJASHEKHARAIAH,  President.

  HONORABLE T.NAGARAJA,  Member.

       HONORABLE K.G.SHANTALA,  Member.

---

Consumer Complaint No. 126/2011

Between:

ORDER

This is a complaint filed by complainant under section 12 of the Consumer Protection Act, 1986 seeking direction against the Opposite Parties to pay Rs.1,27,540/- towards repairs and replacement of parts of the goods tempo bearing No. KA-01/TR-A-4688, Rs.50,000/- towards deficiency of services, Rs.50,000/- towards mental agony and hardship, Rs.20,000/- per month towards loss of income from the date of purchase till the date of settlement of claim, parking charges of Rs.22,500/- (Rs.150/- per days from 24.11.2010 to 24.04.2011, Rs.5,000/- towards cost of the proceedings and interest at the rate of 12% p.a. on Rs.3,75,040/- from the date of accident till realization and further (future) loss of income from the vehicle per month.

2.         The brief facts of the case is as follows:

On 30.10.2010, the complainant purchased a brand new irish cream colour 407 goods tempo (LCV) of TATA Motors Ltd., from M/s. Prerana Motors (P) Ltd., Bangalore – 27 bearing its chasis No. MAT455026ASK40420 and Engine No. 497SPTC39KZY646188 for Rs.6,38,881/- by getting financial assistance from Opposite Party No.2 for the purpose of earning his livelihood by means of self-employment and Opposite Party No.1 is working as Surveyor for Opposite Party No.2 insurance company and for the gain of Opposite Party No.2.    On 10.11.2010, the complainant took delivery of the said vehicle and the same day, the said vehicle was temporarily registered as No. KA-01/TR-A-4688 at Koramangala R.T.O, Bangalore.    The said vehicle is insured with Opposite Party No.2 under a “package-goods carrying vehicle” policy vide No. 3379/00504034/000/00 valid from 31.10.2010 to 30.10.2011.    On 20.11.2010 as per the complainant’s instructions, his driver took the tempo early in the morning for wash to Kodipalli Majara Gandhinagara and after wash, the said vehicle was coming back to Srinivaspur at about 7.45 a.m. and while crossing a passenger bus hit the said tempo.    Due to the said impact entire front portion of the tempo got damaged.    Immediately the complainant informed Opposite Party No.2 over phone requesting Opposite Party No.2 to arrange for survey to assess the damage sustained to the vehicle.   Accordingly the Opposite Party No.2 company surveyor carried out the survey of the damaged vehicle.      The compainant’s vehicle was not in a driving condition, he hired services of one M/s. M.K.S Transport, Srinivaspur on 24.11.2010 to toe the said vehicle from Gownapalli to M/s. Prerana (P) Ltd., Chikkaballapur by paying toeing charges of Rs.2,500/- where the said vehicle was left for repairs.    After approval of Opposite Party No.2, the vehicle was repaired to road condition for Rs.1,27,640/-.    The complainant gave requisition letters to Opposite Party No.2 at Chennai and Bangalore offices to pay the said charge of Rs.1,27,640/- to the concerned Garage so that he could take delivery of his vehicle.   The complainant received a letter dated 11.02.2011 from Opposite Party No.2 office, Chennai asking for some documentary particulars in order to update in their office records.    The complainant did the needful through e-mail and also through a covering letter dated 18.02.2011 requesting Opposite Party No.2 to settle the said claim by calling many times over phone, Opposite Party No.2 kept postponing the settlement of claim on one pretext or the other.     The complainant got issued legal notice on 05.03.2011 to Opposite Party No.2 at its Chennai and Bangalore offices, which were duly served on 07.04.2011 and  06.04.2011 respectively.     On 20.04.2011 complainant received a letter of repudiation from Opposite Party No.2, Chennai Office, as a result this complaint was filed.  

3.         On service of notices, OP1 remained exparte. OP2 appeared and filed version admitting vehicle insurance but denying liability.   OP2 contended that the vehicle had only temporary registration and as such the vehicle could not have plied in public place and that the vehicle which was being plied was without there being valid permit and Fitness Certificate.  Having full knowledge of this fact, the Complainant had breached the terms & conditions of the policy.  OP2 further contended that it is mandatory duty of the insured (Complainant herein) to ply the vehicle only after the said vehicle is permanently registered after getting valid permit and Fitness Certificate from the appropriate Authorities.  The OP denied that there was deficiency of service on the part of OP as alleged by the Complainant and based its defence on “limitation” as to use, contained in the Policy, therefore sought for dismissal of the Complaint.  OP2 took notice to the Complaint to produce Permit & Fitness Certificate.  The Complainant filed objections to the notice stating that the vehicle had temporary registration at the time of accident, which had occurred within 10 days from the date of purchase of the vehicle.  Permit and Fitness Certificate would be issued only after permanent registration of the vehicle.  As such, these two documents were not available with the Complainant. 

4.         On perusal of the averments in the Complaint and the version, affidavits of the parties, documents, written arguments and citations, the points that arise for consideration are as under:

(1)       Whether there is deficiency of service on the part of Ops?

(2)       If so, to what relief/s the Complainant is entitled to ?

5.         Our findings to these points are as hereunder:

            (1)       Point No. 1 -  Negative

            (2)       Point No. 2 -  As per final order

R E A S O N S

6.         Point No.1 – In our opinion Complainant has failed to prove alleged deficiency in service for the following reasons.   It is the contention of the OP that the Complainant had obtained only temporary Registration Certificate and he has not obtained valid permit and Fitness Certificate.  Without obtaining the valid permit and the Fitness Certificate, he was not authorized to use the vehicle in public place.  In spite of it, he has used the vehicle in the public place and it amounts to violation of terms of the Policy.  Hence, the Complainant is not entitled for any relief. 

7.         Complainant has not produced any materials to show that he has obtained valid permit & Fitness Certificate.  Hence, the contention of the OP that the Complainant did not have the permit and the Fitness Certificate has to be accepted. In our opinion, contention of the OP is acceptable, because under the terms of the Policy there is clause relating to the limitations as to the use and it states that the Policy cover is only under the permit issued within the meaning of the Motor Vehicles Act.  U/s. 2(31) & Sec. 66 of Motor Vehicles Act, provision is made for issuing of permit & Fitness Certificate and prohibition is made about use of the vehicle without permit.  The relevant portion of Sec. 2(31) and Sec. 66 of the Motor Vehicles Act reads as follows:

“Sec. 2(31) - “Permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle.

Sec. 66 – No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed Authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.”

8.         The above provision clearly goes to show that the owner of the vehicle is required to take a Permit from the RTO authorizing the use of motor vehicle.  A owner is not expected to use the vehicle in a public place without obtaining such Permit.  In this case, no such Permit is obtained.  Sec. 87 of the Motor Vehicles Act makes provision for obtaining temporary Permit for limited period and even such temporary Permit is not obtained by the Complainant.  In this way, the vehicle has been used without obtaining necessary Permit and that clearly amounts to violation of the terms of the Policy.  Hence, the OP is not liable to pay the amount.  OP has also relied on decision of National Consumer Disputes Redressal Commission in R.P. No. 2976/2006, United India Insurance Co. Ltd. v/s. Trilok Kaushik which reads as follows:

“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 – 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 – the revision is allowed and the complaint stands dismissed.”

9.         The ratio of the above decision substantiates the contention of the OP and we are of the opinion that the OP has repudiated the claim based on the terms of the policy.  If the claim is repudiated according to the terms of the policy, it cannot be said to be improper.  Hence, Complainant has failed to prove the alleged deficiency in service. Hence, this Point is held against the Complainant. 

10.       Point No. 2 – In view of the finding of the Point No. 1, the Complaint is liable to be dismissed.  Hence, we pass the following:

ORDER

The complaint is dismissed.

            Dictated to the Stenographer, corrected and pronounced in open Forum this the 7^th day of January 2012.

T. NAGARAJA                        K.G.SHANTALA       T. RAJASHEKHARAIAH  

   MEMBER                                 MEMBER                           PRESIDENT