Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Avijit Gope
Date of filing of the case :17.12.2018
Date of Disposal of the case :07.08.2023
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Final Order / Judgment dtd.07.08.2023
Complainants above named filed this complaint against the aforesaid opposite party u/s 12 of the Consumer Protection Act, 1986 praying for direction to pay Rs.51,523/-, compensation amounting to Rs.30,000/-, repair charge, cost of the case and other reliefs.
He alleged in the petition of complaint that petitioner purchased one two wheeler enhancement cover policy from the OP which was valid for the period from 17.06.2018 to 16.06.2019 for the sum assured of Rs.51,523/-. On 20.06.2018 aforesaid Motor cycle met with an accident with a tree and as a result aforesaid Motor cycle was seriously damaged causing financial loss of the Motor cycle. Complainant informed the matter to the OP. Surveyor inspected the aforesaid vehicle and submitted one report. On 05.09.2018 OP sent a letter to the complainant stating that colour of body of vehicle was found as changed. Complainant gave a reply on 05.09.2018. But OP did not give the payment in favour of the complainant. Hence this complaint.
OP No.1 contests the case by filing a W/V. He denied the entire allegations. He further contented that present complaint failed and neglected to prove and/ or establish that the alleged accident took place and even it is documentary evidence that after day of alleged accident that is on 20.06.2018 the present complainant lost so many dates intimated the OP about the alleged accident on 13.07.2018 i.e after 22 days from the date of alleged accident. It is nothing but ulterior violation of insurance policy. In the instant case complainant measurable failed to maintain the policy. He further stated that they found the colour of the vehicle was changed. They also stated that there is no negligence on the part of the OP. They prayed for dismissal of the complaint.
Trial
During trial complainant filed affidavit in chief. OP filed questionnaire and complainant gave answer.
OP filed affidavit in chief. Complainant filed questionnaire. OP gave answer.
Documents
Complainant filed the following documents:-
- Xerox copy of policy...........(Two sheets)
- Original copy of bill issued by India Yama Motor dated 05.03.2018Original copy of Certificate issued by SBI...........(One sheet)
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- Original copy of letter of OP dated 27.11.2018 addressed to complainant.......(One sheet)
- Original copy of letter dated 05.09.2018 issued by OP addressed to complainant..........(One sheet)
- Original copy of note of acceptance issued by Surveyor dated 16.07.2018........(One sheet)
OP produced the following documents:-
- Xerox copy of investigation report dated 20.07.2018.........(Two sheets)
- Xerox copy of letter dated 05.09.2018............(One sheet)
- Xerox copy of letter dated 25.10.2018...........(One sheet)
- Xerox copy of letter dated 25.10.2018..........(One sheet)
- Xerox copy of letter dated 27.11.2018..........(One sheet)
- Xerox copy of claim not..........(One sheet)
Brief Notes of Argument
Complainant filed BNA. OP filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP, evidence filed by the complainant, evidence filed by the OP, documents filed by the complainant, documents filed by the OP, BNA filed by the complainant and BNA filed by the OP. We have carefully considered these documents.
On perusal of affidavit in chief filed by the complainant, we find that complainant’s two wheeler was covered by insurance policy issued by OP. I find from the record that said policy was issued on 15.06.2018. Cover amount of the policy has mentioned as Rs.51,523/-. Said policy was valid from 17.06.2018 to 16.06.2019.
Complainant further stated in the affidavit in chief that aforesaid two wheeler met with an accident on 20.06.2018. Accordingly, we find that aforesaid accident took place during the validity period of aforesaid policy. Complainant claimed Rs.51,523/- relating to the said accident from the OP. OP repudiated the same as no claim.
On perusal of document dated 27.11.2018 issued by OP we find that they stated that they are unable to process the claim of the complainant and claim is repudiated as no claim. They stated in the said document
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that colour of the vehicle at the time of acceptance of insurance proposal is different from the colour of body of vehicle at the time of accident. He further stated that colour of body of vehicle is not matching . It is mandatory for insured to inform insurance company and RTA for change of colour of vehicle which the complainant did not follow.
Ld. Adv. for the OP argued at the time of hearing that as per section 52 of Motor Vehicles Act prior permission is required from the RTO for change of colour of Motor Vehicle.
We have carefully gone through section 52 of Motor Vehicle’s Act 1988 who is reads as under:-
“ Alternation in motor vehicle.-(1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacture:
Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof, of a vehicle for facilitating its operation by different types of fuel or sources of energy including battery, compressed natural gas, solar power, liquefied petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed.
Provided further that the Central Government may prescribe specifications, conditions for approval, retrofitment and other related matters for such conversion kits:
Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specified purpose.
(2) Notwithstanding anything contained in sub-section (1), a State Government may, by notification in the Official Gazettee, authorise, subject to such conditions as may be specified in the notification, and permit any person owning not less than ten transport vehicles to after any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority.
(3) Where any alternation has been made in motor vehicle without the approval of registering authority or by reasons of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall, within fourteen days of the making of the alteration, report the alternation to the registering authority within whose jurisdiction he resides and
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shall forward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.
(4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.
(5)Subject to the provisions made under sub-sections (1), (2), (3) and (4), no person holding a vehicle under a hire-purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner.”
On careful perusal of the aforesaid provision , we find that at the time of alternation of vehicle prior permission of the authority is required. It has also mentioned therein that particulars content in the certificate of registration are at variance with those originally specified by the manufacturer.
So, it is clear before us that particulars which has mentioned in the certificate of registration should be followed.
We have carefully gone through the certificate of registration of the aforesaid motor byke , we find that over the said document colour of the motor byke has not mentioned. In the specific column of colour it has mentioned “NA” that is not applicable. So it is clear before us that over the certificate of registration colour of the vehicle has not mentioned .
Let us see the policy, we find that in the policy colour of the motor byke has not mentioned in the specific place of “colour”. Over the insurance policy it has mentioned “other”.
From the aforesaid discussion , it is clear before us that colour of the aforesaid motor byke has not mentioned over the certificate of registration and policy issued by OP.
In this situation how the OP came to the conclusion that colour of the motor byke has changed without permission of concerned authority. Their such type of plea is nothing but to avoid the payment of amount which the complainant was entitled as per the aforesaid policy.
On perusal of the policy , we find that sum assured of the policy is the value of the motor byke i.e Rs.51,523/-. Complainant stated in the affidavit in chief that the aforesaid motor byke was badly damaged due to aforesaid accident.
Ld. Advocate for the OP cited a decision of Hon’ble N.C.D.R.C reported in 2016 (1) CPJ 450 (National Insurance Company Limited Vs. Shraban Singh).
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We have carefully gone through the said decision. In the said case intimation of theft was given after one month. Hon’ble State Commission allowed the claim. Hon’ble N.C.D.R.C set aside the said decision.
He cited another decision reported in 2018 (9) SCC 798 (Oriental Insurance Company Limited Vs. ParVesh Chander Chadha). Hon’ble Supreme Court held that repudiation of claim on the ground of delay is proper.
On perusal of said decision, we find that occurrence of theft took place in between 18.01.1995 to 20.01.1995 and intimation was given to the insurance company on 22.05.1995, so there was a delay of 4 months 4 days in the said case.
In the present case OP repudiated the claim on 05.09.2018 by a letter.
In the said letter they did not raise any allegation about delay of filing the claim. As at the time of repudiation OP did not raise any allegation of delay of giving information, so they cannot take the plea of delay of giving intimation at the time of argument of this case.
Accordingly, the aforesaid two decisions on the point of delay of giving intimation are not applicable in the present case.
On perusal of record , we find that complainant is the consumer and OP is the service provider.
Having regard to the aforesaid discussion, we are of the firmed view that complainant has established his grievance by sufficient evidence beyond reasonable doubt and he is entitled to relief as per his prayer.
From the aforesaid discussion, it is clear before us that complainant is entitled to Rs.51,523/- from the OP.
In the result, present case succeeds.
Hence,
It is
Ordered
that the present case be and the same is allowed on contest against the OP with cost of Rs.5,000/- (Rupees five thousand) to be paid by OP in favour of the complainant.
OP is directed to pay Rs.51,523/- (Rupees fifty one thousand five hundred twenty three) in favour of the complainant within 45 days from this date failing which aforesaid amount shall carry interest at the rate of 9% per annum from this date to till the actual date of payment and complainant shall have liberty to put this order into execution.
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OP is further directed to pay Rs.10,000/- (Rupees Ten thousand) to the complainant as compensation for his harassment, mental pain and agony.
Let a copy of this final order be supplied to both the parties as free of costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
