Date of Filing:20/01/2018 Date of Order:02/01/2019 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27. Dated:2nd DAY OF JANUARY 2019 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT SRI D.SURESH, B.Com., LL.B., MEMBER COMPLAINT NO.125/2018 COMPLAINANTS : | | KUMAR K, Aged about 40 years, S/o Kalaiah, R/o No.118, 1st Cross, KantiravNagara, Nandini Layout, Bangalore-560 096. (Sri K.G.Bhat Adv. for Complainant) | |
Vs OPPOSITE PARTIES: | | M/s SHRIRAM GENERAL INSURANCE CO. LTD., No.41, 1st Floor, A.J. Chembers, Bangalore -4 by its Manager. (Sri B.C.Shivanne Gowda Adv. forO.P.)
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
1. This is the Complaintfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not paying the repair charges in respect of the vehicle met with an accident and direct the OP to pay a sum of Rs.8,42,520/- with interest at 18% per annum till realization and cost of litigation and other reliefs as the Forum deems fit.
2. The brief facts of the complaint are: Complainant is the owner of goods vehicle EICHER MGV bearing No. KA-04 C-4277. It has been insured with OP for the period 18.10.2016 to 19.06.2017 under package insurance policy No.418007/31/17/002047. The said vehicle met with an accident and dashed to a road side tree on 07.11.2016 at about 7.30PM in Nandini layout, Bengaluru.The same was informed on the same day to op. OP entrusted the survey of the damage to the surveyor on 8.11.2016 and the said surveyor visited the accident spot and surveyed/inspected the vehicle. On his(surveyor’s) instruction only, the said vehicle was shifted to M/S Sri Lakshmi Motors Pvt. Ltd., for repair. On 16.12.2016, the said Lakshmi Motors Pvt. Ltd., issued an estimate of Rs.3,58,700/- for the repair of the said vehicle. OP did not pay the said amount. The claim made by the complainant in respect of the insurance was rejected. Complainant visited the office of OP and inspite of it, O.P postponed the claim for one reason or the other. It is deliberate. On 09.02.2017 the OP rejected the claim on the ground that the complainant has been deliberate and will-full misrepresentation on his part as to the vehicle produced by him at the time of insurance is completely differs from the accident vehicle. The reasons for rejection of the claim under own damages of the accident plan by O.P violatesthe terms and conditions and no sufficient reasons to disallow his claim. The transport department has issued fitness certificate after examining the vehicle. It is a public service goods vehicle and nomisrepresentationhasbeenreported.
3. The vehicle was plying with a registration of RTO Bengaluru.They have not withhold the vehicle any time. Complainant is facing many problems and the rejection of his claim has put him to hardship. There is deficiency in service on the part of the O.P which made him to suffer mental shock. The claim is within time. OP is bound to pay Rs.3,58,700/- towards repair charges, Rs.2,00,000/- for causing mental agony and shock, Rs.6,000/- towards notice charge, Rs.1,50,000/- towards loss of income and interest thereon at 18% per annum and in all Rs.8,48, 520/- and hence prayed to allow the complaint.
4. Upon the service of the notice, O.P. appeared before the forum through his advocate and filed the version contending that the complaint is not maintainable due to the violation of the terms and conditions of the policyand against the provisions of the Motor Vehicles Act and also that it is not maintainable either in law or on facts.
5. It is further contended by admitting that the vehicle was a goods vehicle insured with them and the insurance was given subject to the terms and conditions and limitation of Insurance policy and Motors vehicle Act. It has admitted regarding the intimation given by the complainant regarding the accident and also appointing a surveyor by it to assess the damage caused to the Motor Vehicle.
6. The complainant was requested to submit the vehicle documents estimation report, claim request in order to appoint a final survey of the vehicle to assess the loss which the complainant submitted. The surveyor reported by assessing the loss at Rs.1,72,075/-.
7. It is contended by the OP that on verification of the pre-inspection report and the photos, it became clear that the vehicle involved in the alleged accident do not match with the length of load body of the insuredvehicle. As per the inspection of the insured lorry, it was having 10 Section while the vehicle involved in the vehicle is having 13 Section. Further the cowl top is different in both the vehicle, the colour shape of the front penal in both the vehicles is different and they found that there is a deliberate and willful misrepresentation on the part of the complainant. Since the vehicle produced by the complainant at the time of insurance, at the time of pre-inspection photograph is completely different from the accidental vehicle and therefore fraud has been played and hence they have rejected the claim of the complainant by repudiating the claim.
8. It is further contended that on verification of photo of the damaged vehicle and the photo of the insured lorry at the time of inspection while issuing the policy it was found that the insured lorry has been altered without any permission from the concerned regional transport authority and also by the OP. Therefore, he sought clarification from the owner of the lorry who on 18.01.2017 admitted the same in his letter and that he modified the length of the lorry from stage 1 to 3rd stage without prior permission of the RTO and hence claim of the complainant is rejected.
9. As per Section 52 of the M.V. Act, any alteration to the vehicle has to be made with permission otherwise as per Section 52/(1) any alteration which is a cause for the accident for which they are not liable to pay the compensation. The driver of the lorry who was driving the altered vehicle might have been not able to assess and could not able to control the lorry and therefore, due to the alteration of the insured lorry, the accident took place and hence they are not bound to pay the insurance claim. It has further denied all the other allegations made against it and prayed the Forum to dismiss the complaint.
10. In order to prove the case, both the parties filed their affidavit evidence and produced documents. Heard the arguments. The following points arise for our consideration:-
1) Whether the complainant has proved
deficiency in service on the part of the
Opposite Party?
2) Whether the complainant is entitled to
the relief prayed for in the complaint?
11. Our answers to the above points are:-
POINT NO.1: In the Affirmative.
POINT NO.2: Partly in the Affirmative.
For the following.
REASONS
POINT No.1 and 2:-
12. On perusing the entire documentsand evidence, it becomes clear that the complainant is the registered owner of the vehicle which was insured with the O.P. There is no dispute regarding the accident, filing of the claim, appointing of the investigator / surveyor, regarding his report and repudiation of the claim on the ground that the vehicle has been misrepresented.
13. It is the specific case of the Op that at the time of producing the vehicle for insurance, it was having 10 Sections, whereas at the time of the accident the vehicle was having 13 sections i.e. length of the load body modified and hence there is difference and further COLOUR AND SHAPE OF THE FRONT PANEL SEEMS IN BOTH TYE VEHICLES, whereas COWL TOP SEEMS DIFFERENT IN BOTH THE VEHICLES and under Section 52 of the Motor Vehicles Act, any modification to the vehicle has to be done with the permission of the motor vehicle authorities and the complainant himself has admitted regarding the alteration of the vehicle and hence there is misrepresentation of the vehicle and hence they are not liable to honour the claim of the complainant and hence have repudiated the same.
14. Section 52 of the Motor Vehicles Act clearly says that any alteration to be effected to the motor vehicle is to be done with a permission of the motor vehicles department. Further it is to be noted here that, it is the boundenduty of the O.P who has taken the contention that the accident has taken place due to the change / modification of the vehicle.According to OP, the length of the body of the vehicle was altered and increased and hence the accident has takenplace. It is mentioned in Section 52 Alteration – Meaning – the alteration within the meaning Section 52 (1) must be change in the structure of the vehicle which results in the change in its basic features and because of that alteration only, the very accident taken place and therefore, the claim to be rejected.
15. In this case, though O.Phas taken the said contention, there is no material placed and motor vehicles inspector report, surveyor’s report, expert opinion and evidence adduced to show to the forum that the said accident in fact has taken place due to such modification of the vehicle. Further it is only a technical point which has been taken by the O.P to repudiate the claim.
16. It is held in many cases and in particular ORIENTAL INSURANCE CO. VS MEENA VARIAL APPEAL 5825/2006 AND NATIONAL INSURANCE COM. LTD. SWARN SINGH AND OTHERS (2010) 10 SCC 567 thatthe breach of condition of the policy has to be proved to have been committed by the insured for avoiding liability by the insurer.
17. The insurance company to avoid liability, has not only to establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of vehicle for which the burden of proof would rest with the insurance company.
18. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer will not be allowed to avoid liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.
19. In AUGUSTIN V.M vs AYYAPPAN KUTTY & OTHERs it was held that expiry of fitness certification, can at the most be said to be a technical violation and it cannot be a ground to absolve the insurer from its liability to pay the compensation.
20. If there is any violation of the Motor Vehicles Act, the owner of the vehicle has to be penalized or punished, whereas it is not a ground for the insurance company to repudiate the claim. Further the violation alleged or only technical violation and it has nothing to do with the cause of the accident.
21. In view of the above position of law and in view of the non-production of evidence regarding the accident due to modification of the vehicle only, and repudiation of the claim of the complainant amounts to deficiency in service on the part of O.P. Hence we answer Point No.1 in the Affirmative.
POINT NO.2
22. It is the case of theComplainant that he has spent Rs.3,58,700/- towards the repairing charges and he has incurred loss of income of Rs.1,50,000/- due to the delay in getting the vehicle repaired as he was not given the repairing charges by OP. In this connection, complainant has produced the job card/invoice credit wherein the estimate given by Sri Lakshmi Motors Pvt. Ltd., is for Rs.3,58,700/- which includes cost of the spare parts, VAT, other incidental taxes and also labour charges. There is no receipts produced by the complainant that he has paid said amount and got the vehicle repaired. He has produced only two receipts for having paid Rs.10,000/- on 16.11.2016 and Rs.20,000/- on 18.11.2016. Apart from it there is no receipt produced to show that he has paid the amount mentioned in the invoice to get the vehicle repaired. It is also not made clear before the forum as to whether the vehicle has been repaired or not.
23. On the other hand the OP has produced the surveyor’s report along with the detail estimate wherein the cost to be incurred for repair is Rs.2,80,969/ and cost of labour is Rs.24,322/-. It is in the report of the surveyor that after deducting the salvage value and depreciation, it has come to the figure of Rs.1,72,075.79. The complainant has not placed any materials as to how the surveyor report i.e. Ex. R3 cannot be accepted. In view of this, we are of the opinion that a sum of Rs.2,80,969/- along with the labourcharges of Rs.24,322/- with interest at 12% per annum on the above amount from the date of claim i.e. 07.11.2016 if ordered to be paid to the complainant by OP it will meet the ends of justice.
24. The complainant has sought Rs.6,000/- towards legal notice charges and Rs.2,00,000/- towards mental agony and shock and Rs.1,50,000/- towards loss of income. As pointed out above, complainant has not placed any materials to show that the vehicle has been got repaired or not. He could have got the vehicle repaired by paying the cost of repair and would have earned money without waiting for the claim to be settled. As we have ordered interest to be paid on the repair charges and labour cost, complainant is not entitle for any loss in income, since he has not placed any material evidence to show the same. Further the complainant is entitle for the nominal notice charges as he has sent the legal notice to the OP demanding his claim. It is true that the complainant has undergone mental agony shock due to repudiation of the claim by the OP. For which we are of the opinion that if a sum of Rs.25,000/- towards damages, a sum of Rs.3,000/- towards notice charges and a sum of Rs.10,000/- towards litigation expenses, if ordered to be paid by OP to the complainant would meet the ends of justice. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVEand proceed to pass the following:-
ORDER
1. The Complaint is allowed in part with cost.
2. OP i.e. Shriram General Insurance Co. Ltd., Represented by its Manager/Authorised Signatory is hereby directed to pay a sum of Rs.2,80,969/- along with the labour charges of Rs.24,322/- with interest at 12% per annum on the above amounts from the date of claim i.e. 07.11.2016 till the date of payment of the entire amount to the complainant.
3. Further the OP is hereby directed to pay a sum of Rs.25,000/- towards damages, a sum of Rs.3,000/- towards notice charges and a sum of Rs.10,000/- towards litigation expenses.
4. The O.P is hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 2nd JANUARY 2019)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Sri Kumar.K - Complainant |
Copies of Documents produced on behalf of Complainant/s:
Ex.P1: Copy of the certificate of registration
Ex.P2: Photos of the vehicles (6 in Nos.).
Ex.P3: Copy of the Insurance policy.
Ex P4: Copy of the Job card invoice.
Ex.P5: Copy of the approval given by the surveyor of the insurance company.
Ex. P6: Copy of the repudiation letter issued by the O.P.
Ex.P7: Copy of the Legal Notice 8.11.2017.
Ex.P8: Copy of the acknowledgement.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri Abhinandan, Manager Legal of O.P.
Copies of Documents produced on behalf of Opposite Party/s
Ex R1: Copy of the letter regarding alteration.
Ex.R2 : Copy of the Surveyor Report.
Ex R3 to R6: Copy of Photos of insured lorry.
Ex R7: Copy of the repudiation letter.
MEMBER PRESIDENT
