BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 27th DAY OF SEPTEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint filed by the complainant under section 35 of C.P. Act, 2019 seeking relief against OP,

1. Direct the OPs to remit the policy amount to the above said vehicle as the earliest  along with interest till the date of claim made and of Rs.5,50,000/- along with interest at the rate of 18% p.a.
2. Direct the OPs to liable to pay legal fee, for mental agony and physical suffering to the tune of Rs.50,000/- towards compensation deficiency of service.
3. Direct the OPs to pay compensation of Rs.1,00,000/- to the complainant towards due to the deficiency of service on the part of OP and such other reliefs deems fit.

2. The brief facts of the complaint is as under:

The complainant was the owner of the vehicle bearing no.TATA 709, NOKA-53-B-6780 which he purchased in the name of Darshan Enterprises in the year 2014 and there after he was using the vehicle and on 27.11.2019 at about 8.00PM when the said vehicle was in front of shop, said vehicle was stolen. The complainant lodged complaint for theft of the said vehicle with the K.R.Puram Police Station and got registered FIR no.611/2019. The complainant submits that the stolen vehicle was insured with OPs bearing no.0725813119P110256678 and the policy was in force on the date of theft and policy was in force from 13.11.2019to 12.11.2020. The incident occurred on 27.11.2019 and in this regard he submitted claim form to the OPs and same was declined by the OP as permit was not valid as on date of loss. There was no permit on the date of theft and renewed laterwithin 07 days from the date of theft, but the policy was in force and the complainant has sought for the benefit of the said policy. The complainant has approached OPsmany timesfor his insurance. Instead of issuance of the policy amount of said vehicle,the OPs have been harassingthe complainant and issued false endorsement dt.10.12.2020. Inspite of frequent follow-upby the complainant, the complainant was not able to get the claim from the OPs and finally the complainant got issued legal notice dt.18.01.2021 calling upon the OPs to remit the policy amount within the 07 days and said notice was duly served on the OPs, inspite of legal notice, OPs have not sanctioned the said amount which is due to the complainant. For non sanction of claim amount to the complainant by the OP, the complainant alleges deficiency of service on the part of OPs and has filed this complaint.

3. After service of notice, OPs have appeared through  their counsel and have filed version.  In the version they have contended that the complaint filed by the complainant alleging deficiency of service against the OPs is not maintainable either in law or on the facts  that the OPs have acted strictly adhering to the terms and conditions of the policy and  have dealt with the claim of the complainant. The complainant being the proprietor of M/s Darshan Enterprises  obtained GCV public Carrier  other than 03 wheeler package policy no.0725813119P110256678 for the period 13.11.2019 to 12.11.2020 and the claim form dt.03.12.2019 in respect of  Tata 709 vehicle bearing No.KA-53-B-6780. The complainant submitted the claim dt.03.12.2019 to the OPs mentioning that the said vehicle was stolen on 27.11.2019 when the same was parked in front of the shop with 150 bags of cement load. After  theft of the parked vehicle the complainant has lodged police complaint by one Nandappa, Proprietor of Darshan Enterprises, the insured vehicle was stationed after loading cement bags  at 7.00 PM  on 27.11.2019 and they found the said vehicle was stolen.

4.  The OPs being the insurer of the said vehicle registered the claim of the complainant, processed the same and found that the insured vehicle was not having valid permit to ply on the road as on the date of theft. There after the permit is obtained for the period from 28.11.2019 to 27.11.2024.  In the  instant case, the vehicle was not having  valid permit in the state of Karnataka. The insured vehicle was stolen  on 26.11.2019  and same was found missing on 27.11.2019. The complainant  came to know about theft of the vehicle at 8.00PM on 27.11.2019 and police complaint was lodged on 29.11.2019 at 10.00PM with K.R.Puram  Police station after obtaining permit of the missing vehicle at K.R.Puram RTO, Bengaluru. The complainant has suppressed the fact of theft of the vehicle  while obtaining permit in respect of the said vehicle. This act of the complainant clearly shows that he has not approached  either the insurer or this commission with clean hands and the complainant has suppressed the said fact while  obtaining permit on 28.11.2019. Hence, pray to dismiss the complaint  in lemine. Further OPs contend that there is no cause of action for the complainant for filing above complaint before this commission and OPs have acted upon the terms and conditions of the policy and have rightly rejected the claim of the complainant.  Further denies all other allegations made in the complaint and pray for dismissal of the complaint.

5. The complainant has lead his evidence and got marked Exhibits P1 to P22. OPs have also lead evidence and got marked Exhibits R1 to R7.

6 .     Heard  arguments of complainant and arguments of OPs is taken as heard.  Perused documents.

7.      The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

8. Our answer to the above points are as under:

       Point No.1:- Negative.

      Point No.2:- Negative.

      Point No.3:-As per the final order.

REASONS

9.  Point No.1 & 2: It is admitted by the both parties in the  pleading that the complainant being the proprietor of M/s Darshan Enterprises, R.C. owner  GCV public carrier  obtained policy from OPs bearing policy no.0725813119P110256678 which  was in force from 13.11.2019 to 12.11.2020 and complainant was using the above said vehicle, but due to misfortune when the complainant parked his vehicle in front of his shop on 27.11.2019. At about 8.00PM the complainant came to know that the vehicle parked in front of his shop was  stolen by some unknown person after  searching the vehicle,  the complainant lodged complaint to the K.R.Puram Police Station and FIR was registered bearing No.611/2019. The police have filed ‘C’ report. Though the complainant was holding policy valid from 13.11.2019 till 12.11.2020, but the incident  of theft has occurred on 27.11.2019. The complainant had submitted claim form to OPs who repudiated the claim, complainant  was not holding valid permit as on the date of theft when he parked the vehicle with load. There was no permit as on the date of theft. The complainant has suppressed the fact that the said vehicle was not having valid permit at the time of theft. However, the complainant managed to get the permit from the K.R. Puram  R.T.O  by suppressing the fact that there was theft of the said vehicle  while renewing the permit. The  OPs relied on citations of Hon’ble Supreme court of India and National consumer Commission  a) United India Insurance Co. Ltd., V/s Sushil Kumar Godara, in Civil Appeal No.5887/2021,  b)Narinder Singh V/s New India Assurance Co.Ltd., and other c) Oriental Insurance Co., Ltd. V/s VikramKand by National Commission.  In the United India Insurance Co. Ltd. V/s Shushil Kumar Godara, wherein which it is held by the Hon’ble Supreme Courtof  India that in the which that in the said decision. It is clearly held  that using the vehicle on the public road without any registration/permit is not only an offence punishable under section 192 of the Motor Vehicle Act, but also a fundamental breach of the terms and conditions of policy contract. Further more, in the instant case, the vehicle which was parked by with load of 100 bags of cement, which clearly indicates that without permit, the complainant used the said vehicle without  having the permit on the date of theft. The complainant  drove the said vehicle without permit and parked  after expiry of the permit on the date of theft. Therefore, when the insurable incident that potentially results in liability occurs, there should be no fundamental breach of the conditions contained in the contract of insurance. Therefore, on the date of theft, the vehicle has been driven/parked without a valid permit amounting to clearly violation of section 39 and192 of Motor Vehicle Act 1988. This resulted in a fundamental breach of the terms and conditions of the policy, as held by the court in Narinder Singh  V/s New India Assurance Co. Ltd., In the instant case also complainant was not having the permit on the date of  theft. Section 66 of the Motor Vehicle Act, 1988  speaks about control of transport vehicles which says that no owner of a Motor vehicle shall use or  permit to use of the vehicle as a transport vehicle in public place whether or not  such  vehicle is actually carrying any passengers or goods save in accordance with the  conditions of the permit granted or countersigned by the Regional or State authority or any prescribed authority authorizing him to use of the vehicle in the place in the manner in which the vehicle is being used.  In the instant case the complainant has used the said vehicle and the said vehicle  is transport vehicle, which requires permit to use the said vehicle. Ex.P4, charge sheet, in which the investigation report reveals that the complainant has used his vehicle  by the driver who had loaded 100 cement bags  on 26.11.2019 at 7.00PM and after which the said vehicle Tata 709 bearing No.KA-53-B-6780 which was parked has been theft/stolen on 27.11.2019 at about 8.00AM  on perusing Ex.P21 i.e. the representation given by one Nandappa to the insurance company and  so theft and use of the vehicle has been established by Ex.P4 & P21 and also clearly indicates that the complainant has used the said  vehicle without permit. As such in the instant case, the vehicle has been driven/used without permit in absence of valid permit as on the date of theft  the vehicle had been driven/used without valid permit amounting to  a clear violation of section 39 and 192 of Motor Vehicle Act, 1988. The OPs having processed the claim of the complainant  rightly  repudiated claim of the complainant as per terms and conditions of the policy. Hence, we answer point no.1 & 2 in the negative.
10.  Point no.3:- For the for going reasons, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without cost.
2. Furnish the copy of this order to both the parties, and return spare pleading and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 27^th  day of September, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :