Karnataka

Chitradurga

CC/369/2019

Sri Aleefulla V S/o Vaheed Khan - Complainant(s)

Versus

The Branch Manager, The New India Assurance Co.Ltd., - Opp.Party(s)

Sri.A.M.Rudramuni

16 Sep 2019

ORDER

COMPLAINT FILED ON:26/06/2019

DISPOSED      ON:22/10/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:369/2019

DATED: 22^nd   October 2019

PRESENT :-     Smt. C.M.Chanchala.                     …. President

                           B.A.L.,,LL.B.,                 

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	Sri. Aleefulla V S/o Vaheed Khan, Aged about 50 years, R/o A.G. Road, Raheem Nagara, Challakere Town-577522. Owner of Bus Bearing Reg.No.KA-19/C-3150 (Rep by Sri.A.M. Rudramuni,   Advocate)
V/S
…..OPPOSITE PARTY	The Branch Manager, The New India Assurance Company Limited, OPP., Nanjundeshwara Petrol Bunk, Davanagere Road, Chitradurga.   (ReP by Sri. P. Nanjundappa, Advocate)

Pronounced on 22^nd of October 2019  .

Written by C.M.Chanchala, President.

ORDERS

 

1.   This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by Allefulla, the Complainant against the Opposite party (for short ‘OP’ ) praying to award Rs. 2,56,800/- towards damage caused to the vehicle with 12 % interest and Rs.19,000/- for compensation towards mental agony, Rs.50,000/- towards towing charges, Rs.5000/- towards cost of the proceeding - etc.

The complaint:-

2.   The complaint in brief is that the complainant is the absolute owner of Bus Bearing Registration        KA 19/C-3150. It is the case of the complainant that he had also insured the said vehicle in the office of the OP and for which the OP has collected the premium and issued Policy bearing No:680502/31/18/01/00004008, which is valid from 29-11-2018 to 12-07-2019.  It is the further case of the complainant that on 24-1-2018 at about 10.45 pm the above said bus met with accident and inmates of the bus were injured due to the accident. In this regard police complaint also lodged before the jurisdictional police station and accident has intimated to the OP intime and got bus repaired by paying Rs. 2,56,800/- for repair charges. In response to the intimation, the OP deputed their surveyor, after survey they repudiated the claim on the ground that the bus was used for the purpose of school trip there by he violated the terms and conditions of the policy. Hence he alleged deficiency of service on the part of OP for non settling the claim amount.

3.   After hearing on admission the complaint was admitted and  notice was ordered to be issued to the OP  to file its written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OP 1 has appeared through its counsel and filed written version.

Defense:

4.      The OP has resisted the claim of the complainant by filing his written version, wherein, the Respondent, except admitting that, the complainant has obtained a policy bearing No:680502/31/18/01/00004008, which is valid from 29-11-2018 to 12-07-2019, has denied all the allegations made by the complainant in his complaint as false and baseless. The OP contended that, the complainant bus is passenger carrying commercial stage carrying vehicle and at the time of accident the vehicle was used for tour purpose for school children, he violated the terms and conditions of the policy. As the complainant violated terms and conditions of the policy, the OP justified its repudiation of the claim made by the complainant. 

Evidence :

5.      The complainant got himself examined as PW-1 by filing his affidavit as a part of examination in chief and also got Ex.A-1 to A-11 marked and closed the evidence.

6.    On behalf of OP one Shekavaish Mudalaiah got himself examined as RW-1 by filing his  affidavit as a part of examination in chief and documents marked as EX- B 1 and B 2 and closed the evidence.

Arguments:

7.      We have heard the complainant as well as counsel of OP and perused the written arguments filed by both side advocates.  

8.      The points that arise for our determination are ;

1. Whether the complainant proves that deficiency of service on the part of opponents?

2. Whether the complainant proves that he is entitled for the relief sought?

3. What order?

9.      Our finding on the above points are as under;

          Point No.1: In the Affirmative

          Point No2: In the Affirmative

          Point No3: As per final order,

Discussion and Reasoning:

Point No.1 and 2:

 

 10.  There is no dispute between the parties regarding, validity of policy, payment of premium, accident Dtd: 24-12-2018, damage caused the bus due to the accident and Complaint before the police. EX- A 2 to A 8  produced by the complainant proves the above said contention.

11.    The OPs repudiated the claim of the complainant on the  ground that, the complainant has violated the terms and condition of the policy as the Bus is passenger carrying commercial stage carrying vehicle and at the time of accident the vehicle was used for tour purpose for school children. In this regard they have also produced investigation report of the surveyor as EX- B2.

12.   As per the investigation report, the investigator made observation in his report as follows:-

1. Insurance Particulars:           Policy /Cover No. Period of Insurance sum insured	M/s The New India Assurance Company limited, Chitradurga. Mr. Aleefulla V. S/o VAheed Khan (contact No.. 9036895786) R/o A.G. Road, Rahim Nagara, Challakere, Chitradurga 577 522 From 29/11/2018 to 28/11/2019 Rs. 4,50,000/.
2. Vehicle Particulars:
Registration	KA-19-3150
Date of Registration	On 03/03/2009
Registered Owner	Sri. Aleefulla V S/o Vaheed Khan, Aged about 50 years, R/o A.G. Road, Raheem Nagara, Challakere Town-577522
Chassis	BNE664423
Engine	CNE103324Z
Make/Model	Ashok Leyland Bus/Jan-2009
Vehicle Colour and Fuel	NA and Diesel
Type of body and Seating	Saloon and 50
Tax Paid and FC up to	QTT paid and 03/07/2019
permit No.and Valid Upto	TP No. 120/2018-19 and 28/02/2019 (Stage Carriage)
Permitted Routes	Byadareddy Halli to Chitradurga/Chitradurg to Kakkere , Chitradurga to Devarahalli/Chitradurga to Rayanahalli,
3. Driver Particulars: Name	Mr. Shivaraja M.P. S/o Puttappa
Driving Licencse	KA-1620130003429
Date of Issue	06/06/2013
Authorised to drive	MCWG, LMV, Trans and PSVBus
Validity	05/06/2033(NT)/16/04/2021(TR)
Issued by	Chitradurga RTO
4. Cause and Nature of Accident:

          On 24/12/2018 at 10-45 PM, near Janakonda Village Road Humps, on N.H-13 road, Chitradurga, ahead moving TP vehicle No. KA-16-A-7391 driver slow down his truck on observing speed breakers. Unfortunately, hind coming insured bus No.KA-19-C-3150 driver failed to control the speed of his bus and hit against rear right side of TP Vehicle. As a result of this accident, front left side of insure bus got severely damaged and few passengers of the same bus sustained injuries. On occurrence of this accident, about 7 injurers were shifted to nearby District Hospital, Chitradurga for necessary medical aid.

5. INVESTIGATOR OBSERVATION:

          With reference to appointment of claim investigation, we have verified available set of claim records and learnt that, insured bus might have violated the issued permit condition of Road Transport Authority, Chitradurga. Thus, in order to confirm the same and on receipt of instruction from insurer, we have visited all injurers place and gathered following information.

          On verification of Charge sheet we have notice all 7 injures are connected with one school address, which is known to be M/s Vasavi Vidyanikethana School, Bangalore road, Challakere.

          Accordingly, we have visited the same school, took permission from the school authority in order to interrogate the matter of sustained injuries by them in an aforementioned mishap.      

          Fortunately, we could able to meet 4 Teachers (Miss. Sowmya, Mrs Roopa K. and Mrs. Sharadamma B R and 3 students (miss. Bindushree v. Miss. Anushka R and Miss. Thrunika C). The photographs captured marking their sustained injuries were appended below for your ready reference.

          During our visit M/s Sri Vasavi Vidyanikethana School Authority was hesitant to share anything in writing as they knew the fact that, the authority has utilized non-contract carriage for their tour purpose.

          However we are fortunately to get them convinced to narrate this accident on individual capacity and hence the statement of loss was collected from one injured Miss. Sowmya B.R, which reconfirmed by her colleagues Mrs. Roopa K and Sharadamma B.R as witness.

          The injured in her statement informed that, on 23/02/2018 at night hours, injured Miss, Sowmya and her school staff (14) as well as students (95) were travelled to school trip/tour from challakere to Jog falls, Sighndoor Temple and nearyby places at Shimoga in 2 hired busses (Inclusive of insured bus)   

          After completing their travel, on 24/12/2018 at 10:45 P.M. near jankonda Village road Humps, on NH-13 road, Chitrdurga, ahead moving TP vehicle No. KA-16-A-7391 driver slow down his truck on observing speed breakers. Unfortunately, hind coming insured bus no. KA-19-C-3150 driver failed to control the speed of his bus and hit against rear right side of TP vehicle. As a result of this accident, front left side of insured bus got severely damaged.         

          This accident was reported to concern Chitradurg Rural police station under Crime No. 420/2018 U/s 279, 337 IPC by driver of TP vehicle. Laer chitrdurga Rural police on conducting their crime investigation made charge sheet against IV driver Mr. Shivaraj s/o Puttappa U/s 279/,337/IPC.

          From above said findings it was evident that, insured bus was utilized form contract Carriage purpose for carrying school students for their annual trip/tour purpose. Thus, by doing so insured has violated the rules under IMV act by utilizing his bus registered as stage carriage into contract carriage in area which  is not permitted by the authority. We request insurer to process this claim on available merits. Final discretion on this claim is left with insurer.

But he has not examined the above such persons before the forum to prove their statements. The surveyor also stated that he recorded the statement of soumya school teacher and also produced her statement. To prove her statement he did not examined her before the forum as a

13.  The Insurance Company cannot repudiate the claim when there is no fundamental breach of terms of the policy,  because insurance is a matter of contract between the parties. The  insurance is a contract between the parties and the parties are governed by the terms of the contract. The law on the subject is settled and for this purpose, we would refer to some of the decisions of the Apex Court for proper adjudication of the matter.

14.   Claim for reimbursement can be repudiated  in case where the breach of  condition  of the policy is fundamental  or material.   This would be clear from the following pronouncements by the Apex Court:

(i)      B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, (1996) 4 SCC 647 , at page 650  :

“Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor”.

 

.(ii).    National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 (at page 337):

“In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence”.

15.  From the settled law quoted above, it is apparent that the Insurance Company can repudiate the claim of the insured in case where there is a breach of the policy condition/conditions; and, the breach is fundamental or material so as to vitiate the insurance contract. In view of the above we hold that repudiation made by the OP is unjustified.

16.   The  complainant contended that he incurred Rs. 2,56,800/- for repair of the vehicle. To prove his contention he has produced EX- A 9 and 10. On perusal of these documents it shows that Karnataka body builder has issued in its letterhead mentioning Rs. 1,88,700/-. But complainant failed to explain whether this is a bill or quotation. Further it is not bears that bill number ect., hence it cannot be consider as a Bill. Further EX- A 10 produced by the complainant is a quotation and not a bill.  As per the IMV report and investigation report the bus sustained damage such as,

KA-19-C-3150 Front windscreen glass and wiper systems damaged. Dashboard assembly damaged. Front left side headlight and indicator damaged. Front left side headlight and indicator damaged. Front bumper left side damaged. Left side body and window glasses damaged. Front wheel mudguard damaged. Front left side rear view mirror damaged.

KA-16-A-7391 Rear door right side damaged. Rear right side body damaged.

 To repair the same which may comes around Rs. 1,50,000/- . Hence the complainant entities the same. As the complainant proved the damage caused to the vehicle due to the accident, it is the duty of Insurance Company to settle the actual loss when the insurance policy is in force. Non-settling the actual claim by the Insurance Company is amounts to deficiency in service towards the Complainant. Accordingly we answer point No.1 as affirmative.

Point No.2 :- 

As the complainant has proved deficiency in service on the part of the OPs  he is entitled for the above said amount along with compensation as per the final order. Accordingly we answer point No.2 as partly in the affirmative.

Point No.3: -

17. In view of the discussions made under Point No.1 and 2,   we pass    the following; 

       // ORDER //

 

                  The complaint is partly allowed.

The opposite parties is directed to pay Rs. 1,50,000/- to the complainant along with interest @ 10 % per annum from the date of filing of this complaint; within six weeks from the receipt of the copy of this order. OP also shall pay Rs.25,000/- to the complainant as compensation for deficiency of service, and also cost of the proceeding within six weeks from the receipt of the copy of this order.  In case of non-compliance of the order the entire amount shall carry interest @ 10% per annum till its realization.

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 22nd  day of October 2019)         MEMBER                                                      PRESIDENT

ANNEXURE

Witness examined for the complainant side:

Complainant- Aleefulla V S/o  Vaheek Khan has examined-in-chief by filing affidavit as PW1.

Documents marked for the complainant side:

01	Ex-A-1:-	Letter dated 13/05/2019 issued by the New India Assurance company limited.
02	Ex-A-2:-	Photos of the Bus(3)
03	Ex-A-3:-	Certified copy of the FIR with complaint in Cr. No. 420/2018
04	Ex.A-4	Certified copy of the charge sheet of Cr. No. 420/2018
05	Ex.A-5:-	Certified copy of the spot mahazar
06	Ex.A-6:-	Seizure Mahazar
07	Ex.A-7:-	IMV report
08	EX-A-8:-	Certified copy of the Re-Statement of complaint.
09	EX-A-9:-	Karnatka body builder bills
	Ex-A-10	K.G.N. Auto bills
	Ex-A-11	Permit

Witness examined for the opponents 1:

RW-1:- Shekaraiah Mudaraiah  by filing affidavit evidence.

Documents marked for the opponents 1:

01	Ex-R-1:-	Repudiation letter.
02	Ex-R-2:-	Investigation report.

 

        (C.M.Chanchala  )

                       President.

                                                                                     

 

 

       (Shivakumar K.N)

                                                                                 Member.