DATE OF FILING: 21.9.2010.
DATE OF DISPOSAL: 16.11.2016.
Ms. S.L. Pattnaik, President:
The complainant has filed this consumer complaint Under Section 12 of Consumer Protection Act alleging deficiency in insurance service against the Opposite Parties (for short, O.Ps) and for redressal of his grievance before this Forum.
2. The brief fact of the case is that the complainant had purchased Ape Diesel Three Wheeler vehicle (Auto Rickshaw) bearing engine No. R7L0458674 chasis No. FJL 604154 being financed from State Bank of India, Sikiri Branch and submitted the quotation of Santosh Motor (O.P.No.1) on the table of Bank i.e. Annexure-1 on dated 19.11.2007 and the loan was sanctioned for maintenance of his livelihood by means of self employment. Complainant had paid the price of the vehicle including registration charges, route permit charge and other charges etc. amounting to Rs.1,44,900/- through Demand Draft bearing No. 976610 of State Bank of India, Sikiri Branch and was duly acknowledged the money receipt No. 35 dated 26.11.2007 by O.P.No.1. As per the direction of the O.P.No.1 complainant paid insurance money. After that O.P.No.2 issued the insurance certificate vide policy bearing No.550601/31/07/01/00002736. The O.P.No.1 had given the registration certificate particulars and certificate of registration and certificate of fitness to the complainant but didn’t give route permit to the complainant. So the complainant approached to O.P.No.1 to supply him route permit certificate to which again the O.P. No.1 assured to give within 2 to 4 days. As per the assurance and promises of O.P.No.1, the complainant delivered the said vehicle. Further complainant submitted that, he again approached to O.P.No.1 for supply to him the route permit. But the O.P.No.1 told him the route permit has already been made and assured him that within a few days he will give the complainant route permit papers and permitted to the complainant to carry the passengers in the said vehicle. As per advise by the of O.P.No.1 complainant plied the vehicle on road. Unfortunately on dated 20.2.2008 at about 10 P.M. suddenly two jackals at village Ralaba crossed the road in front of the vehicle, so out of fear, auto rickshaw was driven to the side of the road which was capsized and damaged on the spot. On 21.2.2008 complainant reported to the concerned police and informed to the O.P.No.1 for necessary repairing of the said auto-rickshaw. The damaged vehicle was kept for about 15 days in the show room of the O.P. No.1 with the pretext that the insurance authorities would inspect the vehicle and pays the compensation amount after which the repairing work would start. It is also stated that on dated 29.03.2008, the O.P.No.2 informed to the complainant that at the time of accident, complainant had no valid route permit, hence repudiated the claim of the complainant as the complainant was not entitled for any compensation. The O.P.No.1 did not give delivery of the vehicle and demanded the repair charges. He threatened the complainant that unless repairing amount was paid the vehicle would be again damaged. Finding no other alternative the complainant paid Rs.29,042.53 paisa to the O.P.No.1 towards repairing charges. Further complainant submitted that again he approached and requested on dated 12.1.2010, 29.3.2010, 10.6.2010 to the O.P.No.1 to pay the loss, but the O.P.No.1 not respond the request and maintained deaf ear, which is against the principle of natural justice. So the entire action of the Opposite parties amounts to gross deficiency in service. Hence alleging deficiency in service on the part of the Opposite Parties he filed the present case with a prayer to direct the Opposite Parties (1) to pay the repairing charges of Rs.29,042.53 , (2)financial loss Rs.1,00,000/-, (3)cost of mental agony, torture of Rs.1,00,000/- and (4)litigation expenses of Rs.15,000/- and (5)other relief deems fit and proper.
The complainant in support of his case has filed the following documents.
- Photocopy of quotations of Santosh Motors, for purchase of Ape diesel 3 wheelers dated 19.11.2007.
- Photocopy of retail invoice
- Photocopy of money receipt No. 35 dated 26.11.2007.
- Photocopy of certificate of insurance vide policy No.550601/31/07/01/ 00002736.
- Photocopy of Registration certificate particulars.
- Photocopy of certificate of registration.
- Photocopy of certificate of fitness.
- Photocopy information given to the Hinjili Police station on dt.21.2.2008.
- Photocopy Road permit.
- Photocopy of motor claim form.
11. Copy of repudiation letter of insurance company.
12. Photocopy of money receipts from page 1 to 12 regarding repairing charges.
13. Photocopy of Pleader notice to the Santosh Motor.
14. Photocopy of postal registration receipt dt.25.10.2008.
15. Photocopy of postal AD dated 5.11.2008.
16. Photocopy of reply letter dated 9.11.2008 of Santosh Motor (O.P.No.1) through the Advocate K.M.Panigrahy.
4. On notice being served, the O.P.No.1 appeared on dated 9.12.2010.but didn’t file written version although several opportunities were given hence he declared as set ex-parte on dated 13.11.2013. Notice was duly served upon the O.P.No.2. The O.P. No.2 appeared and filed written version through his advocate on dated 20.6.2012 but failed to file written argument even after repeated directions given by the Forum.
5. The O.P.No.2, in his written version, admitted that the vehicle in question is duly insured with this O.P. vide policy No. 550601/31/07/00002736 with effect from 27.11.2007 and valid till 26.11.2008. As soon as O.P.No.2 received an intimation of the subject loss through the SBI Sikiri Branch on 21.2.2008 have immediately taken steps for inspection of the vehicle and have also deputed an independent competent and qualified surveyor and loss assessor to inspect the damage and to access the loss so as to enable the O.P. to process the claim as per the terms and conditions of the policy. On being requested the vehicle was re-inspected by the surveyor and final survey report was made available to this O.P.No.2 on 20.3.2008. Thereafter, while processing the claim, it came to the notice that the complainant did not possess any route permit to ply the vehicle in gross deviation of the policy terms and condition expressly mentioned on the body of the policy. The insured vehicle having plied by the complainant without any route permit, his claim though was duly processed was rightly repudiated and the fact of repudiation has also been duly intimated to him by this O.P’s letter dated 29.3.2008. The O.P.No.2 further submitted that there is no illegality committed nor there lies any deficiency in service on the part of this O.P.No.2. As such, the present case as against this O.P.No.2 is bad in law, as it is not maintainable and is liable to be dismissed in the interest of natural justice.
6. The case was posted to 22.8.2016 for filing written argument by O.P.No.2 and hearing. Neither the complainant nor O.P.No.2 participated in the date of hearing. Hence the Forum decided to dispose of the matter on merit as per Section 13(2)( c ) of Consumer Protection Act, 1986 since this is an old case belong to 2010 and parties are not attending the proceedings of the case properly.
7. We have perused the case record and documents available in it and also gone through the complaint and written version filed by the O.P.No.2. The O.P. No.1 was declared ex-parte on 13.11.2013. It is submitted by O.P.No.2 that as per the condition of the policy the insured must have a valid route permit during the relevant time of accident to eligible to get insurance benefit under the policy. Since the complainant had ineffective road permit i.e. the permit of the vehicle was not valid at the material time of accident. It is also mentioned in the route permit that the permit is valid from 2.3.2008 to 1.3.2013 but the date of accident of the vehicle is 20.2.2008. Hence they submitted that they have rightly repudiated the claim of the complainant. Therefore, the complainant is not eligible to get the insurance claim.
On the contrary, the complainant submitted that after submission of quotation before the State Bank of India Sikiri Branch and being financed by SBI Sikiri Branch he purchased the vehicle in question from O.P.No.1 and accordingly paid the price of the vehicle including registration charges, route permit charges and other charges amounting to Rs.1,44,900/- (Rupees One Lakh Forty Four Thousand Nine Hundred ) only and also paid the insurance premium to the O.P.No.1 to insure his vehicle before the O.P.No.2 through O.P.No.1. At the time of delivery of the vehicle the O.P.No.1 delivered all the documents relating to the vehicle except route permit. On several approaches, the O.P.No.1 told the complainant to ply the vehicle as the route permit has already been made, but unfortunately on dated 20.2.2008 the vehicle met with accident and got damaged and taken the vehicle to the show room for necessary repairing. The O.P.No.1 kept the vehicle for 15 days with the pretext that the O.P.No.2 is to inspect the vehicle and pay the compensation as it was insured with the O.P.No.2 but the request of the O.P.No.1 was turned down by O.P. No.2 since at the material time of accident the route permit of the vehicle was not valid. The O.P.No.1 after completion of the repairing work demanded the repairing expenses to the complainant when the complainant filed the claim form before the O.P.No.2. The O.P.No.2 vide his letter dated 29.3.2008 repudiated the claim of the complainant as there was no valid route permit during the material period of accident. Finding no other alternative the complainant forced to pay Rs.29,042.53 paisa to the O.P.No.1 towards repairing charges through money receipt.
In the above fact and circumstance the case on perusal of the case record, we perused the retail invoice, money receipt, insurance policy documents and bills and vouchers of repairing charges. On perusal, we found that the complainant made his vehicle insured through O.P.No.1 and O.P.No.1 supplied all the papers except the route permit. The complainant alleges that on several requests the O.P.No.1 did not supply the route permit certificate. Similarly, on perusal of the route permit certificate we found that accident was occurred on 20.2.2008 but the route permit was issued with effect from 2.3.2008 to 1.3.2013. The complainant has alleged that although he paid all charges towards cost of the vehicle but the O.P. No.1 did not supply the route permit documents. Further, the complainant alleged that it is the duty of the O.P.No.1 to supply all the papers relating to the vehicle as he was beyond transaction to him. Under this fact, we are inclined to accept the version of the complainant since the O.P.No.1 neither appeared nor contested the case to controvert the version of the complainant. In view of above discussion, it is clear that the O.P.No.1 without obtaining road permit advised to the complainant to ply his vehicle on the road. Regarding the objection raised by O.P. No.2 that as per the conditions of the policy the insured must have a valid route permit at the time of accident to be eligible to get the insurance claim under the said policy. Since the complainant had not valid route permit, the O.P. No.2 is not liable to pay the insurance amount to the complainant to which the Forum is not agreed by relying on the decision of Hon’ble National Commission, New Delhi reported in 2008 (1) Consumer Protection Cases 186 G. Kothain Chairs versus United India Insurance Company Ltd. wherein it was held that the breach with respect to plying of the vehicle without permit is only a breach with respect to the provision of Motor Vehicle Act and it is not a breach of the terms and conditions of the policy. So the O.P.No.2 cannot legally repudiate the claim on this ground. As such, repudiation of the claim by O.P.No.2 on the aforesaid ground amounts to deficiency in service. Further, the objection raised by O.P.No.2 that since the complainant does not speak any liability vis-à-vis negligence on the part of the O.P.No.2 and while on the other hand it is an admitted fact of the complainant that alleges loss and suffering sustained by him is strictly concerned with the alleged acts and deed of the O.P.No.1 and the case is not maintainable on the misjoinder of necessary party to which this Forum is not agree because it appears from the case record that the complainant purchased the vehicle in question being financed by SBI, Sikiri Branch. He is the registered owner of the vehicle and had insured the same with the O.P.No.2, besides as per the Motor Vehicle Act, any motor vehicle plying on the public place must have a valid insurance policy. This document is available in the case record. The complainant paid the premium before the New India Assurance Company Ltd and obtained a valid insurance policy which covers the period of liability from 27.11.2007 to 26.11.2008. The accident took place on 20.2.2008 during validity of insurance coverage of the vehicle and out of the accident the vehicle sustained a heavy loss due to damage. The O.P.No.2 contended that the vehicle did not have route permission but the O.P. No.2 can’t disown his liability on this ground. Even in the aforesaid fact and circumstance of the case, the O.P.No.2 is liable to settle the claim on non-standard basis i.e. can settle the claim on payment of seventy five percent of the claim amount. Therefore, in our considered view, the O.P.No.2 is liable to pay the insurance claim of the complainant on non-standard basis of total expenditure incurred in the repairing of the alleged damaged vehicle. However, we would at the same time like to saddle the partially liability equally on the O.P. No.1 since the O.P. No.1 provoked the complainant to ply the vehicle on the road without road permit with a false promise to arrange for the same within short period. It is also a fact that the complainant has also claimed damage from the O.P.No.1 and the complain petition and documents have prima facie discloses the negligence of the O.P.No.1 and he has also not controverted the claim of the complainant. Under the above fact and circumstances, we have observed that there is negligence, harassment, unfair trade practice and deficiency in service on the part of the O.P. No.1 for non-providing of route permit as well as on part of O.P. No.2 for non-settlement of the claim of the complainant. Hence, we allowed the case of the complainant against O.P.No.1 and O.P.No.2. The O.P. No.1, who is liable to pay a sum of Rs.7,000/- to compensate the loss of the complainant for non-supply of road permit in time and for extending ill advice to the complainant to ply the vehicle without road permit. The O.P.No.2 is liable to pay Rs.22,000/- towards insurance claim on non-standard basis(i.e. 75% of total expenditure incurred in the repairing of the vehicle) on submission of the bills and vouchers of the repaired vehicle by the complainant before the O.P.No.2.
8. In the result the complaint is allowed both against O.P. No.1 as well as O.P. No.2.
(a) The O.P.No.1 is directed to pay a sum of Rs.7,000/- ( Rupees Seven Thousand) only to partially compensate loss of the complainant for non providing of route permit to the complainant within due time period and ill advise to ply the vehicle on the road without having a valid route permit.
(b) The O.P. No.2 is hereby directed to pay Rs.22,000/- (Rupees Twenty Two Thousand) only towards settlement of insurance claim on non-standard basis after due verification of the bills and vouchers submitted by the complainant before O.P. No.2. The O.P. No.2 is also burdened with a sum of Rs.2000/- towards cost of this litigation and compensation for mental agony and harassment.
(c ) The above order shall be complied by O.Ps within 60 days from the date of receipt of this order failing which the complainant is at liberty to recover the amount from the O.Ps as per Section 25/27 of the Consumer Protection Act, 1986. The case is disposed of accordingly.
The order is pronounced on this day of 16th November 2016 under the signature and seal of this Forum. Copy of the order be supplied to the parties free of cost.
