IN THE DIST.CONSUMER DISPUTES REDRESSAL FORUM BELAGAVI.
Dated this 20 September 2017
Complaint No. 280/2014
Present: 1) Shri. B.V.Gudli, President
2) Smt.Sunita Member
-***-
Complainant/s:
Sri.Ramesh Bhimrao Sindagi,
Age: 45 years, Occ: Business,
R/o.Near Opp.Bus Stand,
Athani, Dist. Belagavi.
(By Sri.N.A.Solkan-Patil, Advocate).
V/s.
Opponent/s:
The Bajaj Allianz General Insurance Co. Ltd.,
Madiwale Arcade, 3935/26A, 1st Floor,
Hasmi Manzil, Club Road, Belagavi.
(O.P. by Sri.S.P.Chougule)
(Order dictated by Shri. B.V.Gudli, President)
ORDER
U/s.12 of the C.P. Act, complainant has filed the complaint against the O.P. alleging non payment of insurance amount.
2) Upon service of notice O.P appeared through his counsel and filed objections & affidavit along with some documents.
3) In support of the claim in the complaint, complainant has filed his affidavit and produced some documents.
4) We have heard the argument of both side and perused the records.
5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.P. and complainant is entitled to the reliefs sought?
6) Our finding on the point is partly in negative, for the following reasons.
:: R E A S O N S ::
7) On perusal contents of the complaint and affidavit filed by the complainant the complainant in his complaint has averred that, he is the owner of Indica car bearing No.KA 23/A 4124 & for the said car by taking loan from SBM, Vadagaon Branch. The said car was insured with OP with IDV of the vehicle estimated to Rs.3.30 lakhs. Accordingly the complainant had paid the premium of the said vehicle of Rs.18479/- covering the risk from 19.10.2011 to 18.10.2012. On 03.05.2012 the complainant along with his friends were returning back to Athani in the said car and the driver Basavaraj S.Gadade who was driving it in moderate speed with great cautious to his correct side. When it reached the Chikodi-Miraj road, a truck bearing No.KA 23 A 3206 came in high speed in a rash & negligent manner & dashed the car of the complainant & caused the accident. The said crime is registered at Chikodi P.S.Cri.No.126/12. In the said accident the complainant has sustained multiple fracture injuries and the driver succumbed to fatal injuries and other friends sustained grievous injuries. The complainant had intimated the said accident to OP immediately after the accident and accordingly the surveyor Sujit Shah was appointed. The said vehicle was left for repairs at Manikbag Automobiles Pvt. Ltd., Belagavi after the release of the vehicle from police station. The surveyor of the OP estimated the total loss of Rs.685309/-. Hence the vehicle was not in a condition of repairs. The complainant had complied with all the requirements of the OP & submitted all the relevant documents to the OP. The deceased driver Basavaraj was having valid and effective DL to drive LMV vehicle which was issued on 06.02.1996 by the RTO under DL No.5069/95-96. The DL being issued prior to amendment act in force from 28.03.2001. This license is eligible to drive any class of LMV as per law and inspite of satisfying the requirements of rule of Central Motor Vehicle Act, 1989, the OP refused to give the claim of the complainant due to vague reasons. Hence the complainant issued legal notice to OP on 03.07.2012 calling upon to pay the damages caused to the vehicle. The act of OP amounts to deficiency in service. Therefore the complainant is are constrained to file this complaint against OPs.
8) On perusal of contents of objections and evidence affidavit of Legal manger of OP company, he has contended that, on the date of the accident the complainant insured car bearing No.KA 23 A 4124 was duly insured with OP insurance company under commercial vehicle package policy. It is further contended that, the said insured car was registered and insured as passenger carrying commercial vehicle and as such on the date of the alleged accident the driver Sri.Basavaraj was not at all holding an effective and valid DL to drive the insured car in question. There was no specific endorsement in the DL of driver as LMV Transport and further the driver was not holding PSV Badge and the said vehicle was plying on the road without permit and as such the insured owner of the car had entrusted, employed and engaged a driver knowingly well that the said driver of the car was not holding an effective valid DL and was plying on the part of road without permit as the car in question was commercial carrying passenger vehicle and as such the complainant insured has wilfully violated the terms and conditions, limitations & exceptions of the policy in question and as such after conducting proper investigation and after verifying the entire records the OP has repudiated the claim of the complainant. Further, the OP has contended that till this day the complainant has failed to submit the badge as well as copy of the permit before the OP. Further, there is a collusion between the insured car and a truck bearing No.KA 23 A 3206 and as such Chikodi police have filed charge sheet against driver of the truck and as such the complainant is a third party to the opposite truck which has caused the accident in question and as such the complainant can well maintain a claim petition against the owner of the truck before MACT, and as such whether the present complainant has not disclosed anything in this regard whether he has filed any claim petition against the owner and insurer of the truck in question for claiming damages to his vehicle and as such complainant has also not made or impleaded the owner and insurer of the truck in question as necessary parties to this case. Hence there is no deficiency in service on the part of OP and accordingly prays for dismissal of the complaint.
9) On perusal of contents of complaint averments and objections filed by the OP, there is no dispute with regard to the fact that, the vehicle of the complainant bearing No.KA 23/A 4124 was insured with OP covering the risk from 19.10.2011 to 18.10.2012. It is also not in dispute that the car in question was met with accident on 03.05.2012 i.e. within policy risk coverage period.
10) The main contention of the OP is that, the insured car was registered and insured as passenger carrying commercial vehicle and as such on the date of the alleged accident the driver Sri.Basavaraj was not at all holding an effective and valid DL to drive the insured car in question. There was no specific endorsement in the DL of driver as LMV Transport and further the driver was not holding PSV Badge and the said vehicle was plying on the road without permit and as such the insured owner of the car had entrusted, employed and engaged a driver knowingly well that the said driver of the car was not holding an effective valid DL and was plying on the part of road without permit as the car in question was commercial carrying passenger vehicle and as such the complainant insured has wilfully violated the terms and conditions, limitations & exceptions of the policy in question and as such after conducting proper investigation and after verifying the entire records the OP has repudiated the claim of the complainant. On perusal of insurance policy the car of the complainant was registered in the category of commercial vehicle-package policy. As per the letter dt.12.06.2012 issued by OP to complainant the cause of repudiation is, driver not having transport license. The DL copy of the driver Sri.Basavaraj produced by complainant and DL Extract issued by ARTO Belagavi dt.13.02.2015 produced by OP does not show specific endorsement by the RTO to drive transport vehicle along with batch. Also on perusal of RC of the vehicle in question there is no permit by the RTO authorizing the use of motor vehicle as a transport vehicle. As per the decision II (2016) CPJ 332 (NC) between Hari Om Yadav vs. United India insurance co., it is held that, “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” Omitting three provisions, sub sec.1 of Sec.66 which is material, reads thus “no owner of a motor vehicle shall use or permit the use of the vehicle as transport vehicle in any public place whether or not such vehicle is carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by Regional or State Transport Authority or any prescribed authority authorizing the use of the vehicle in that place in the manner in which the vehicle is being used”.
11) The advocate for complainant has relied on decisions reported in 2012 ACJ 229 between National insurance co. vs. Yalgurdappa & another; 2012 ACJ 233 between Union of India & another vs. Chandrakali Chaturvedi & others ; 2015 (2) TAC 794 (Kant.) between A.Sandhya & Others vs. Oriental insurance co., are not applicable to the case on hand.
12) Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.P. has not been proved.
13) Accordingly, the following
:ORDER:
The complaint is dismissed. No order as to costs.
(Order dictated, corrected and then pronounced in the open Forum on: 20 September 2017)
MSR
