The District Consumer Disputes Redressal Forum District Office Premises, Kolar 563 101. consumer case(CC) No. CC/10/29
Smt. Renuka, W/o G.R.Shankare Gowda,
...........Appellant(s)
Vs.
The Branch Manager,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 03.04.2010 Disposed on 31.07.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 31st day of July 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 29/2010 Between: Smt. Renuka, W/o. G.R. Shankare Gowda, R/o. 4th Main, 4th Cross, P.C. Extension, Kolar 563 101. (By Advocate Sri. S.C. Venkatachalapathi) .Complainant V/S The Branch Manager, M/s. United India Insurance Co. Ltd., 1st Floor, Bagalur Mansion, Doddapet, Kolar 563 101. (By Advocate Sri. B. Kumar & others) .Opposite Party ORDERS 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.52,536/- towards the actual repair charges of the vehicle in question and Rs.30,000/- towards damages and costs. 2. The material facts of complainants case may be stated as follows: That the complainant purchased a brand new Indica Vista Terra TDI car (artic silver colour) of TATA company on 22.08.2009 from the Passenger Car Dealer Concorde Motors Limited and on the same day it was temporarily registered as KA-01-TRMA-6076 and was also insured with OP under a package policy for the period from 22.08.2009 to 21.08.2010. On 22.11.2009 at about 8.00 p.m. the said car met with an accident near Bypass Kolar NH4 while being driven by one Sri. Girigowda who was holding a valid driving licence. It is alleged that due to the impact the entire front portion of the said car was damaged. It is alleged that the event of accident was immediately informed to OP and a Surveyor had inspected the vehicle and later the vehicle was sent to the authorized garage of Concorde TATA Motors. Further it is alleged totally Rs.52,536/- was paid towards repairs and replacement of parts. Further it is alleged that the claim submitted by complainant was repudiated under letter dated 12.01.2010 on the ground that on the date of accident the vehicle was not registered and by that time the period of temporary registration had expired. It is alleged that the said vehicle was permanently registered on 10.12.2009 at R.T.O Kolar with registration No. KA-07-M-2810. It is alleged that the reason stated by OP for repudiation of claim is not sustainable in law. Therefore the complainant filed the present complaint on 07.04.2010. 3. The OP filed version admitting the issuance of package policy as alleged in the complaint and reiterating the ground for rejection of claim as stated in the repudiation letter. 4. The parties filed affidavits. The complainant filed the necessary documents. We heard the Learned Counsel for parties and perused the records. 5. The following points arise for our consideration: Point No.1: Whether the repudiation of claim for the reasons stated therein is valid and legal? Point No.2: If point No.1 is held in Negative, to which reliefs the complainant is entitled to? Point No.3: To what order? 6. After considering the records and submissions of parties our findings on the above points are as follows: Point No.1: The brand new car was purchased on 22.08.2009. It was temporarily registered on 22.08.2009 itself. The accident had happened on 22.11.2009. Admittedly on the date of accident the vehicle was not permanently registered. The permanent registration was done on 10.12.2009. The period of temporary registration expired after one month from 22.08.2009. The Learned Counsel for OP submitted that without obtaining necessary registration of the motor vehicle no person shall drive that motor vehicle on any public place or in any other place as prescribed in sec -39 of M.V. Act 1988, therefore he submitted that the complainant should/could not have allowed her vehicle to be driven on the public road. He also contended that the policy prescribes that the insurer should comply with all the provisions of the Act, Rules and Regulations relating to motor vehicle. Therefore he submitted that there is gross violation of sec 39 of the Act by complainant and thereby there is no liability on the part of OP to indemnify the complainant for the loss sustained in the accident. The Learned Counsel for complainant relied upon the decision citied in II (1996) CPJ 28 (SC) between B.V. Nagaraju V/s. Oriental Insurance Co. Ltd., to contend that the ground stated by OP is irrelevant. In above said decision the insurance company denied its liability on the ground that goods vehicle was being used for carrying nine passengers against permissible limit of six. The terms of the insurance policy provided that the vehicle should be used for the carriage of goods within the meaning of the Motor Vehicles Act 1988 and further it provided that the policy does not cover use for carrying passengers in the vehicle except employees other than driver not exceeding six in numbers coming under the purview of W.C. Act 1923. While interpreting Exclusion Clause in the policy the Supreme Court laid down the following principles relying on the earlier precedents, which is as follows: Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle without the knowledge of 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. In Sikands case this Court paved the way towards reading down the contractual clause by observing as follows: . When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one where to make a strictly doctrinaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause highlighted earlier. The effort must be to harmonise the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carters Breach of Contract vide Paragraph 251. To quote: 8. Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the main purpose rule, which may limit the application of wide exclusion clauses defining a promisers contractual obligations. For example, in Glynnn v. Margetson & Co., 1893 AC 35S, 357, Lord Halsbury, L.C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract. Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledged when the doctrine was rejected by the House of Lords in Suissee Atlantique Societed Armement Maritime S.A. v. N.V. Rootterdamsche Kolen Centrale, 1967 1 AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main propose, or object of the contract. In the present case, the OP has issued private car package policy. Admittedly the car of complainant met with accident when the period of temporary registration had expired and the permanent registration had not yet been taken. The complainant had produced private car package policy schedule. It does not contain any term that the car should be used only after permanent registration. It is true that Sec-39 of M.V. Act 1988 prescribes that no owner of a Motor Vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this chapter etc., The contravention of this section is punishable under Sec-192 of the said Act. It cannot be contended that the non-registration of the vehicle in any way contributed to the happening of the accident. Even assuming that the policy contains a general term to comply all the provisions of Motor Vehicles Act by the owner, at best using the vehicle without registration amounts to mere misuse of vehicle but not so fundamental in nature so as to put an end to the contract of insurance unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. We think the above principle is applicable in the present case. Therefore we hold that the rejection of the claim by the OP is not valid. Hence Point No.1 is held in negative. Point No.2: The complainant got her vehicle repaired at Concorde TATA Motors which is an authorized repairer by spending totally Rs.52,536/-. The said expense is supported by proper documents. The OP did not deny the incurring of such expense for repairs. Therefore we think the OP is liable to reimburse this amount. As the repudiation was invalid we think interest at 9% p.a. from the date of repudiation letter may be awarded by way of compensation. Hence point No.2 is held accordingly. Point No.3: Hence we pass the following: O R D E R The complaint is allowed with costs of Rs.1,000/-. The OP shall pay Rs.52,536/- (rupees fifty two thousand five hundred and thirty six only) with interest at 9% p.a. from 12.01.2010 to the date of payment. The amount under this award shall be paid within 6 weeks from the date of this order. Dictated to the Stenographer, corrected and pronounced in open Forum this the 31st day of July 2010. MEMBER MEMBER PRESIDENT
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