CC Filed on 21.01.2010<br /> Disposed on 26.07.2010<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 26th day of July 2010<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> <br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No. 13/2010<br /> <br /> Between:<br /> <br /> <br /> Mr. P. Manjunath,<br /> S/o. Pemmaiah,<br /> House No. 25, <br /> Marasanahalli,<br /> Chikkaballapura Taluk,<br /> Chikkaballapura District.<br /> <br /> <br /> (By Advocate Sri. Sama Rangappa & others) <br /> <br /> <br /> <br /> <br /> <br /> ….Complainant<br /> <br /> V/S<br /> <br /> <br /> The Branch Manager,<br /> The New India Assurance<br /> Company Ltd.,<br /> No. 19/4, Saranchal Arcade,<br /> I Floor, Dinnur Main Road,<br /> R.T. Nagar, <br /> Bangalore – 560 032.<br /> <br /> <br /> (By Advocate Sri. L.N. Ramanatha) <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> ….Opposite Party<br /> <br /> ORDERS<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay Rs.3,58,842/- as compensation for total loss of the vehicle and also to pay Rs.1,25,000/- as compensation for deficiency in service with costs, etc.,<br /> <br /> 2. The material facts of complainant’s case may be stated as follows:<br /> That the complainant is the R.C. Owner of TATA 407 vehicle bearing Registration No.KA-40-1142. This vehicle was a new vehicle purchased by taking finance. The vehicle was insured with OP from time to time and the recent insurance was for the period from 27.05.2007 to 26.05.2008 with policy No. 672102/31/07/01/00000403 covering own damage risk. The said vehicle was light goods vehicle and it met with an accident on 11.01.2008 at 10.30 a.m. near Chadlapur Gate on N.H. 7 within the jurisdiction of Chikkaballapur Rural P.S. as a lorry bearing No. KA-04-B-4369 hit the vehicle of complainant and the said lorry was being driven in a rash and negligent manner. It is alleged that due to the said accident the vehicle of complainant was completely damaged and it became useless and beyond repair. The complainant filed claim petition before OP claiming the value of vehicle on total loss basis. The claim was rejected by letter dated 22.04.2009 on the ground that it was transporting 30 persons to attend funeral ceremony in breach of the terms and conditions of policy for use of vehicle. It is alleged that the rejection of the claim is erroneous. Therefore it is contended that the OP is liable to pay Rs.3,58,842/- towards total loss of the vehicle for which value the vehicle was insured. He also claimed damages of Rs.1,25,000/- towards mental agony and interest, etc., The complaint is filed on 21.01.2010. <br /> <br /> 3. The OP appeared and contested the claim. It is admitted that TATA 407 vehicle of complainant was insured with OP as alleged in the complaint. It is contended that the liability of OP is strictly subject to the terms and conditions of the policy. Further it is alleged that after investigation of the claim it came to light that complainant having full knowledge of the terms and conditions of the policy in willful violation of it permitted his vehicle for carrying 30 persons on hire, though the vehicle in question was a goods carrying vehicle which was exclusively meant for carrying the goods. Therefore it is contended that the complainant had committed breach of terms and conditions of the policy at the relevant point of accident and he is not entitled to claim any amount from OP under own damage risk. Hence it contended that the repudiation of claim is valid and legal. The other allegations regarding deficiency in service alleged in the complaint are denied. <br /> <br /> 4. The parties filed affidavits and documents. We heard the Learned Counsel for parties. <br /> <br /> 5. The following points arise for our consideration:<br /> <br /> Point No.1: Whether the rejection of claim by OP is valid?<br /> <br /> Point No.2: If point No.1 is held in negative, to which reliefs<br /> the complainant is entitled to?<br /> <br /> Point No.3: To what order?<br /> <br /> <br /> 6. After considering the records and submissions of parties our findings on the above points are as follows:<br /> Point No.1: The TATA 407 vehicle in question is light goods vehicle and the seating capacity (including driver) is 1 + 2 and its gross vehicle weight is 5,700 kgs. and unladen weight is 2,580 kgs as shown in the R.C. One Babajan S/o. Shabeer Ahmed was the driver of TATA 407 vehicle at the relevant time. It is not in dispute that he was having a valid driving licence to drive the said vehicle. <br /> <br /> The certificate of insurance relating to this vehicle contains the following term regarding use of vehicle <br /> “The Policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988.<br /> The Policy does not cover use for <br /> a) Organised Racing <br /> b) Pace Making<br /> c) Reliability Trails<br /> d) Speed Testing”<br /> <br /> The complaint does not contain any averment regarding transportation of passengers in the vehicle in question at the time of accident. The repudiation letter dated 22.04.2009 states that in breach of conditions of the policy and in violation of the permitted usage of vehicle, the vehicle in question was hired for transporting 30 persons to attend funeral ceremony. In the objection it is contended that after receipt of investigating papers it came to light that complainant having full knowledge of the terms and conditions of the policy allowed his vehicle for carrying 30 persons on hire. The affidavit filed on behalf of OP also repeats the same version. The F.I.R produced by complainant shows that 30 passengers were injured and one passenger had died in the accident, who were traveling in the goods tempo. Therefore we can believe that the goods tempo in question was being used for transporting 30 or 31 passengers at the time of accident. <br /> <br /> Admittedly the vehicle in question is LGV which can be used for transporting goods as per the provisions prescribed under Motor Vehicles Act & Rules and the permit issued for that purpose. Both parties have not produced the permit issued under section 66 of M.V. Act. The gross vehicle weight was 5,700 kgs. Therefore obtaining permit under section 66 of M.V. Act is essential. It is not the case of complainant that carrying persons for attending funeral ceremony is exempted under section 66 (3) of the said Act. Hence the vehicle was certainly misused for the purpose other than the permitted usage. <br /> <br /> The Learned Counsel for complainant relied upon II (1996) CPJ 28 (SC) between B.V. Nagaraju V/s. Oriental Insurance Co. Ltd., and a para of commentary on the Consumer Protection Act, 1986 based on the decision citied in Jagdish Harilal Thakkar V/s. New India Assurance Co. Ltd., 1993 CCJ 501 (509, 511, 512, 513). On the basis of the above decision he contended that the misuse of the vehicle had not contributed to the cause of accident thereby ignoring the misuse of vehicle, the Insurance Company should have considered the claim of complainant. <br /> <br /> We think the facts in the above cases are quite different from the facts of the present case. In the Supreme Court decision on facts it was found that lifting two or three persons more than the permitted seating capacity of 6 workmen, is not a fundamental breach to deny indemnification of owner unless some factors existed which, by themselves have gone to contribute to the causing of the accident. In the other case also the driver and cleaner had given lift to 3 to 4 persons beyond seating capacity in a goods vehicle having capacity to transport 12 tons load. <br /> <br /> In the present case, 30 passengers were injured and one died on the spot, who were traveling in the goods tempo of complainant. The OP has alleged that the owner of the vehicle permitted to carry those persons to attend some funeral ceremony. The seating capacity of the goods tempo was 1 + 2 including driver. The unladen weight of the vehicle was 2,580 kgs. and the gross vehicle weight was 5,700 kgs. Therefore we have to hold that the misuse of the vehicle was so fundamental so as to put an end to the contract and OP is relieved from his liability to indemnify the owner. Carrying so many passengers in a LGV – TATA 407 must have contributed to the occurring of the accident. Hence in the facts and circumstances of the case, the rejection of the claim by OP is valid and legal. Accordingly point No.1 is held in affirmative.<br /> <br /> Point No.2: As Point No.1 is held in affirmative, Point No.2 does not arise for consideration. <br /> <br /> Point No.3: Hence we pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. The parties shall bear their own costs.<br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 26th day of July 2010.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />