Karnataka

Chitradurga

CC/48/2014

B.H.Nagendra Babu S/o. Halappa - Complainant(s)

Versus

The Authorised Signatory, Reliance Insurance Co Ltd, - Opp.Party(s)

Shri.C.M.Veeranna

27 Jul 2015

ORDER

COMPLAINT FILED ON : 03/07/2014

     DISPOSED ON: 27/07/2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 48/2014 DATED:27th July 2015

 

PRESENT :-     SRI.V.H.RAMACHANDRA PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY                MEMBER

                                B.Com., LL.B.,(Spl.)

                SMT.G.E.SOWBHAGYALAKSHMI     MEMBER

                                B.A., LL.B.,

 

COMPLAINANT	B.H. Narendra Babu, S/o Halappa, Age: 34 Years, Businessmen, R/o Maruthi Nagar, Chitradurga.   (Rep by Sri. C.M. Veeranna,  Advocate)
OPPOSITE PARTY	Authorised Signatory, Reliance Insurance Company, Branch Office, B.D. Road, Chitradurga.   (Rep by Sri. K.E. Mallikarjun, Advocate)

 

SRI.V.H.RAMACHANDRA, MEMBER.

ORDER

 

The above said complainant has been filed by the complainant U/s 12 of C.P. Act 1986 for the relief to direct the Opposite party to pay Rs.2,88,940/- towards damages to his vehicle bearing No.KA-16/A-9272 Ashok Leyland Truck (hereinafter called truck) and for costs, interest etc.  

 

2.     Brief facts of the case is that, he is doing a business for earning his livelihood and for that purpose, he purchased Truck bearing No.KA-16-A-9272 and it was duly insured with the OP under policy No.1406532334001634 and policy was in force for the period from 22.07.2013 to 21.07.2014.  It is further stated that, on 26.09.2013 when the driver took the said truck for transporting coal from Goa to Kerala.  He was driving the truck carefully and when reached Cancana-Margoa road near Bareem village, all of a sudden, the strained dog came in front of his truck, to save the same, he took the vehicle to the left side and loss his control and so, dashed to the road side bridge and consequently truck was damaged.  It is further stated that, complainant has informed the same to the OP and made a claim and OP has appointed a surveyor from Karwar who came and inspected the vehicle and assessed the damage and submitted a report to the OP.  It is further stated that, in spite of the vehicle was duly insured and policy was in force, OP has illegally repudiated the claim and thereby OP has committed deficiency of service and so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

 

        3. On service of notice, OP has appeared through Sri. K.E. Mallikarjun, Advocate and filed written version and admitted the contents of para-1 of complaint.  The allegations made in para-2 are denied as not known.  The contents of para-3, 4 and 5 are denied.  The allegations made in para-6 of complaint are denied.  The contents of para-7 and 8 are denied.  It is further stated that, the complainant has filed a false and frivolous complaint and OP has not committed any deficiency of service and complainant has no locus-standee to file complaint.  The alleged cause of action is denied.  It is also stated that, complainant is not a consumer within the meaning of Section 2(1) of C.P Act.  It is admitted that, complainant is the owner of said Truck and it was duly insured with the OP and policy was in force as on the date of accident.  It is further stated that, the complainant has not obtained valid permit for transportation of Coal from Goa to Kerala and it had valid permit for Karnataka only and since the accident has occurred in Goa State so, complainant has violated the terms and conditions of the insurance policy and so, OP has rightly repudiated the claim and etc., and prayed for dismissal of the complaint.

 

        4. Complainant himself examined as PW-1 by filing affidavit evidence and got marked Ex A-1 to A-7.

 

        5. OP has examined one Sri. H.V. Guruprasad, Deputy Manager (Legal), RGIC as DW-1 by filing affidavit evidence and got marked Ex B-1 to B-7.  

        6. Both the sides have filed written arguments and oral arguments also heard.

 

7. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, he is the owner and RC holder of truck bearing No  KA-16-A-9272 and it was duly insured with the OP and on 26.09.2013 on Cancana-Margoa road it was met with the accident and sustained damages and OP has illegally repudiated the claim and thereby complainant has sustained financial loss and mental agony and OP has committed deficiency of service and entitled for the relief as prayed in the complaint?

 

Point No.2:- What order?

 

        8. Our findings on the above points are as follows:

 

        Point No.1:- Partly affirmative.

        Point No.2:- As per the final order.

 

                                ::REASONS::

 

       9. Point No. 1:- It is not in dispute that, complainant is the owner and RC holder of said truck and it was duly insured with the OP under policy No.1406532334001634 and it was in force for the period from 22.07.2013 to 21.07.2014 and this accident has occurred on 26.09.2014.  So, as on the date of accident, insurance policy was in force.  It is the main contentions of the complainant that, on 26.09.2013 when the driver driving the said truck from Goa to Kerala and when reached Cancana-Margoa road near Bareem village a strained dog came across the truck and to save the same, driver lost his control and dashed to the road side bridge and thereby accident has occurred and vehicle was damaged.  Complainant has informed same to the OP and made a claim and in spite of policy was in force, OP has illegally repudiated the claim and thereby he sustained financial loss.  It is also stated that he got repaired the truck by spending an amount of Rs.2,88,940/- and since the OP has repudiated the claim, he sustained financial loss and OP has committed deficiency of service and so, this complaint has been filed. 

 

       10.  In support of his contentions, complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also riled on documents like copy of insurance cover note marked as Ex.A-1 and it is not in dispute.  Copy of RC marked as Ex.A-2 and it is standing in the name of complainant. Ex.A-3 is the cash bill obtained from Ashok Leyland Ariff Auto Diesel Works, Chitradurga amounting to Rs.1,43,240/-.  Ex.A-4 and Ex.A-7 are the office copies of legal notice and postal acknowledgement.  Ex.A-5 is the repudiation letter stating that, truck of the complainant has no valid permit to run in Goa State and so, it has repudiated.  Ex.A-6 is the copy of permit obtained by the complainant from Directorate of Transport, Government of Goa and it was valid up to 30.09.2013. 

      

       11.  On the other hand, it is admitted that, complainant is the owner of said truck and it was duly insured with the OP and policy was in force as on the date of accident.  It is the main contentions of the OP that, even though insurance policy was in force as on the date of accident, but truck of the complainant has no valid permit as on the date of accident to run in Goa State and since this accident has occurred in Cancana in Goa State so, complainant has violated the terms and conditions of the insurance policy and so, OP has rightly repudiated the claim and complaint itself is not maintainable and he is not a consumer etc., and prayed for dismissal of the complaint.

 

       12.  In support of its contentions, OP has relied on the certified copy of the insurance policy with terms and conditions, survey report, repudiation letter, spot sketch, driving license, permit and B-Register extract and tax receipt are marked as Ex.B-1 to 7.  Of course, insurance cover note and RC are not in dispute and driver had a valid DL as on the date of accident.  It is also not in dispute that, OP has appointed a surveyor who assessed the loss and submitted the report as value of damages caused to the vehicle was at Rs.60,088/- as evident from Ex.B-2.  Ex.B-6 is the goods carried permit obtained by the complainant in respect of the above said truck and it shows to "ply on all road in Karnataka State only".  Ex.B-7 shows the driver had a valid DL as on the date of accident. 

 

       13.  On the basis of the above said affidavit and documentary evidences, Sri. C.M. Veeranna, Advocate for the complainant has strongly argued that, admittedly complainant is the owner and RC holder and said truck was duly insured with the OP and even though policy was in force as on the date of accident and OP has illegally repudiated the claim and thereby committed deficiency of service and complainant is entitled for the relief etc., and prayed for allow the complaint.

 

14.  In support of his contentions, complainant has relied on the following decisions.

 

II (2011) CPJ 7 (SC)

Kamala mangalal Vayani & Ors

Vs.

United India Insurance Co. Ltd., & Ors.

Motor Vehicles Act, 1988 – Sections 66(3), 149 – Permit – Liability of insurance Company – Breach of Policy Conditions – Absence of permit for operation as public service vehicle – Onus of proof of permit – Insurance Company to prove absence of permit and not claimant – Insurance Company held liable in absence of such proof.

 

2011 ACJ 2600

Madhya Pradesh, Indore Bench

Budhesingh

Vs.

Amman Khan and another

 

 Motor Vehicles Act, 1988, – Sections 66(1) and 149 (2)(a)(i) (c) – Motor insurance - Permit – Liability of insurance Company – Insurance company disputes its liability on the ground that bus was running without permit – Insurance Company sent notice to owner to produce relevant documents including permit but no evidence to show that any inquiry was made from R.T.O – No positive evidence has been produced by insurance company to establish that vehicle was running without permit – Whether Tribunal was justified in exonerating insurance company from liability – Held: no.

 

and etc.  We perused the above said decisions.

 

 

       15.  On the other hand, Sri. K.E. Mallikarjun, Advocate for the OP has strongly resisted the said contentions stating that, as per the terms and conditions of the insurance policy marked as Ex.B-1, complainant was expected to have a valid permit while running the said truck.  However, he had valid permit to run the truck in Karnataka State only as per Ex.B-6.  However, this accident has occurred in Cancona of Goa State and so complainant has violated the terms and conditions of the insurance policy and so claim of the complainant is not maintainable and complaint is liable to be dismissed. 

 

       16.  In support of his contentions, Sri. K.E.Mallikarjun, Advocate for OP has relied on the following decisionss:

 

       Computerized extract of judgment of Hon'ble High Court of Karnataka dated 24.08.2012 between B.T. Venkatesh Vs. Jagadish Kumar and another and another decision reported in 2013 ACJ 1306 of Hon'ble High Court of Karnataka, Bangalore in New India Assurance Company Vs. Sureshappa and another, relevant portion reads as under:

 

Motor Vehicles Act, 1988, – Sections 149 (2)(a)(i)(c) – Motor insurance - Permit – Violation of - Liability of insurance Company – Owner had permit to ply auto rickshaw in a particular village and within 10 im thereof but the vehicle was being plied outside the limits when it met with accident – Whether Tribunal was justified in directing insurance company to satisfy the award and then recover the amount from owner – Held: no.

 

     

and another decision of 2013 SCR (Civil) 199 Hon'ble High Court in Export Credit Guarantee Corporation of India Vs. M/s Garg Sons International.  We perused the above said decisions.

 

17.  He also relied on the copy of judgment of this Forum in C.C.No.34/2013 dated 27.01.2014.  However, facts and circumstances of the case are different from present case. 

 

18.  On hearing the rival contentions of both the sides and on careful perusal of the entire records, it clearly shows that, only on on ground, OP has repudiated the claim of complainant.  Admittedly, complainant is the owner of said truck and it was duly insured with the OP and policy was in force as on the date of accident.  OP has appointed Surveyor and who assessed the loss and submitted the report.  According to the counsel for the OP, complainant had no valid permit to run the said truck in Goa State and since this accident has occurred in Goa so, complainant has violated the terms and conditions of the insurance policy and so, OP has rightly repudiated the claim and complaint itself is not maintainable and he is not entitled for any relief. 

 

19.  On hearing the rival contentions of both the sides and on perusal of Ex.A-6 it shows complainant had a valid permit up to 31.08.2013 which was obtained from Government of Goa.  The relevant portion of the Ex.A-6 reads as:

 

"Government of Karnataka, Directorate of Transport, the vehicle No.KA-16/A-9272, permit valid up to 31.08.2013 and admittedly this accident has occurred on 26.09.2013.  Of course, complainant has not produced further valid permit obtained from Goa State.  According to the complainant, he had applied for permit but not yet obtained.  Of course, it is true that, accident has occurred in Goa and complainant had a valid permit in Karnataka as evident from Ex.B-6.  But Ex.A-6 shows that he had a valid permit as on the date of accident, Ex.A-6 was expired.  So, we are of the considered opinion that, it is just and proper to award compensation under the head of non standard basis as per the decision reported in AIR 2010 Supreme Court page:2090 reads as follows:

 

AIR 2010 Supreme Court 2090.

Amalendu Sahu V/s Oriental Insurance Co. Ltd.,

     Motor Vehicles Act (59 of 1988), S. 147-Liability of insurance Company-Comprehensive policy-Vehicle taken on hire by person, meeting with accident during subsistence of policy-Such use From Judgment and Order of National Consumer Disputes Redressal Commission, New Delhi in R.P. No.1233 of 2004, dated 13/10/2008. Was not permitted under policy-Insurance company cannot repudiate its claim in toto in such case in view of guidelines issued by it Insurance company directed to pay consolidated sum of 50% of claim made by complainant owner of vehicle. (paras16, 17) Whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving license and met with an accident.  While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about setting all such non standard claims.

In the instant case the entire stand of the insurance company is that claimant has used the vehicle for hire and in the course of that there has been an accident Following the aforesaid guidelines, this Court is of the opinion that the insurance company cannot repudiate the claim in toto.

     For the reasons stated, we cannot affirm the order of the fora below. We direct the respondent insurance company to (Countd., on Col.2)

At the rate of 75% of the total cost.

 

20.  As per Ex.B-2 Surveyor's report, the total loss was assessed by the Surveyor at Rs.60,088/- even though the complainant has produced bills for having repaired the vehicle as per Ex.A-6 at Rs.1,43,240/-, the valid surveyor report is available on record as per Ex.B-2, it is just and proper to taken into consideration the surveyor's report only because complainant has not denied the correctness of the surveyor's report marked as Ex.B-2.  In view of the above cited decisions 75% of Rs.60,088/- comes to Rs.45,000/- and complainant is entitled for the relief at Rs.45,000/- along with that complainant is also entitled for Rs.10,000/- for mental agony and Rs.5,000/- towards costs of the proceedings.  Accordingly, this Point No.1 is partly held as affirmative to the complainant.

 

        21.   Point No.2:- As discussed on the above point and for the reasons stated there in we pass the following.

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

        It is ordered that OP is directed to pay Rs. 45,000/- to the complainant towards damages to the truck of the complainant along with 9% interest p.a from the date of complaint i.e., 02.07.2014 till payment on Rs.45,000/-.

 

        It is further order that OP is directed to pay an amount of Rs. 10,000/- towards mental agony and Rs. 5,000/- towards cost of the proceedings to the complainant and shall pay the above amount within two months from today.

        Accordingly complaint is partly allowed.

 

(This order is made with the consent of President and Member after the correction of the draft on 27/07/2015 and it is pronounced in the open Court after our signatures.)   

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1 Witness examined on behalf of complainant:

                                                -Nil-

 On behalf of OP Sri. H.V. Guruprasad, Deputy Manager (Legal), RGIC as DW-1 by filing affidavit.

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

01	Ex-A-1:-	Copy of Insurance cover note
02	Ex-A-2:-	Copy of RC
03	Ex-A-3:-	Copy of cash bill obtained from Ashok Leyland Ariff Auto Diesel Works, Chitradurga
04	Ex-A-4:-	Office copy of legal notice
05	Ex-A-5:-	Repudiation letter
06	Ex-A-6:-	Copy of permit obtained by the complainant from Directorate of Transport, Government of Goa
07	Ex-A-7:-	Office copy of postal acknowledgement.

Documents marked on behalf of Opponent:

01	Ex-B-1:-	Terms and conditions
02	Ex-B-2:-	Survey report
03	Ex-B-3:-	Repudiation letter
04	Ex-B-4:-	Spot sketch
05	Ex B-5:-	Driving license
06	Ex-B-6:-	Goods Carriage permit
07	Ex B-7:-	B-Register extract and tax receipt

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.