Karnataka

Gadag

CC/39/2015

Rajendra B Hampannavar - Complainant(s)

Versus

The Chief Manager, Sriram General Insurance Co. Ltd. - Opp.Party(s)

M.B.Sajjanar

26 Nov 2016

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OPs. 

 

2.    The brief fact of the case is that the Complainant is owner of lorry bearing No.KA-22, A-9055. He insured his vehicle under the policy No.10010/31/1330. The said policy was inforce from 24.01.2013 to 23.01.2014. On 02.04.2013, the said vehicle met with an accident at Hirehal Village,
Ron Taluk, Gadag District near K.E.B. at about 10-00 O’ clock the said accident occurred. By which the said vehicle was badly damaged.

 

3.      The said accident was informed to the concerned Police and Motor Accidental Report has been prepared. As such, the said vehicle was examined by Automobiles and Service Pvt. Ltd., Hubli and assessed the loss of
Rs.7,00,000/-. The Complainant submitted that the claim form along with the said assessment to the Ops, but till date Ops have not paid the amount. As such, Complainant had suffered with mental torture and agony. All the attempts made by the Complainant stood futile, Complainant issued a legal notice to the OP on 28.01.2015, but OP not replied to the same. The Ops were aware of the accident, but failed to answer the same and made a deficiency in service. 

 

4.      Further Complainant submits that the driver of the said vehicle had filed a ECA against the Complainant, the said case was disposed-off on 13.08.2015 immediately Complainant issued the notice to the Ops on 21.08.2015, as such there is continuity of cause of action, hence submits that the case is within a limitation and prayed to order for Rs.7,00,000/- towards repair of the vehicle and Rs.20,000/- for mental agony and Rs.5,000/- towards the litigation charges.

 

5.      The Complaint was registered and notice was issued to OP. The OP present before the Forum through his advocate. Vakalat and Written Version filed.

 

The brief fact of the Written Version is as follows:

          The OP denied the Complaint and submits that the Complaint filed by the Complainant is vexatious and suppressed the material facts. The OP admits that the Complainant had issued a legal notice on 28.01.2015 and admits that the OP had not replied to the said notice since the claim of the Complaint is already repudiated on 09.05.2013. Hence Complainant know the fact and OP admit the ECA Case filed by the driver of the Complainant before the Hon’ble Senior Civil Judge, CJM Court, Ron and submits that the said case was preferred an appeal before the Hon’ble High Court of Karnataka the matter is pending for adjudication.

 

          6.      The OP further submits that the contract of insurance has to be construed without altering the nature of the contract as the same may affect the interest of the parties adversely and as per the provision of the Motor Vehicle Act, condition of the policy the Complainant had required to ply the goods vehicle with permit as per the Terms of the permit.

 

          7.      As per the Section 84 of M.V. Act, 1988, that the vehicle to which the permit relates carries valid Certificate of Fitness issued u/s 56 and his at all time so maintained as a has to comply with the requirement of this Act under Rules made there under. Hence, Complainant is violated the terms of permits by plying the vehicle without Fitness Certificate on the date of accident. The said vehicle Certificate was not renewed on 01.04.2013 the said Fitness Certificate was expired on 09.01.2013.

 

          8.      Further OPs submits that OP appointed a IRDA Surveyor to assess the loss and the said surveyor assess the loss of RS.2,91,994.30 paise and submits that this Forum comes to the conclusion that the OP is liable to pay any compensation then the OP submits that IRDA surveyor had assessed the loss of RS.2,91,994.30 paise and OP further submits that the Forum had no jurisdiction to try the case and the said jurisdiction is Jaipur Rajasthan State since the vehicle is insured with Sri Ram General Company Ltd., Jaipur Rajasthan and further OP submits that the case was barred by time, the claim of the Complainant is repudiated by the OP by his letter dated: 09.05.2013 and submits that case may be dismissed with compensatory costs.   

9.      On the back ground of the above said pleadings, the Complainant himself examined before this Forum as CW-1 and got marked the documents as EX C1 to C15. The documents are as follows:

1.	EX.C1	Certified copy of FIR
2.	EX.C2	Complaint copy
3.	EX.C3	Charge Sheet,
4.	EX.C4	Panchanama
5.	EX.C5	Motor Vehicle Accident Report
6.	EX.C6	R.C. Copy,
7.	EX.C7	Repair Estimation,
8.	EXC8	Legal Notice
9.	EXC9	Notarized copy of Driving Licence,
10.	EXC10	Notarized copy of Permit,
11.	EXC11	Certified copy of Order of ECA
12.	EX C12 & 13	Postal Receipts
13.	EX C14 & 15	Postal Acknowledgement,

          On the other hand, OP No.1 present before the Forum filed affidavit along with 03 documents which are marked as EX OP1 to OP3.

1. EX OP1 Surveyor Opinion Report,
2. EX OP2 Repudiation letter along with postal receipts,
3. EX OP3 Certificate of Policy Schedule.

10.    On the basis of above said pleadings, oral and documentary evidence, the following points arises for adjudications are as follows:   

1.   2.     3.	Whether the Op proves that the Complaint is barred by limitation?     Whether the Complainant proves that there was deficiency in service on the part of the OPs?   Whether the Complainant is entitled for the reliefs as sought?
4.	What Order?

 

Our Answer to the above Points are:-

Point No.1 – Negative,

Point No.2 – Affirmative,

Point No.3 – Partly Affirmative,

Point No.4 – As per the final order.

                

R E A S O N S

11.    POINT NO.1:  The Complaint filed by the Complainant for claiming of Insurance amount for accident of his vehicle. The vehicle met with an accident on 02.04.2013, but the said Complaint was filed on 08.12.2015. As such, the advocate for OP submits that the Complaint is filed by the Complainant after expiry of two years.

12.    Perused the documents filed by the Complainant as well as the OP. As per the Complainant, the driver of the vehicle filed a MACT Complaint against the Complainant before Honb’le Civil Judge and Additional MACT, Ron. Since the case was disposed on 13.08.2015. Hence, there is a continuous cause of action and while arguing the matter on merit the advocate for the OP submits that the claim was repudiated on 09.05.2013. Such being the case, the Complainant has no right to file the Complaint after two years. But, while going through the EX C11 the Complaint filed against this Complainant by his driver at Ron, Court is admitted. Hence, the Complaint is not at all barred by limitation. For that we relied upon citation cited below:

III (2016) CPJ 203 (NC), Hon’ble National Consumer Disputes Reddressal Commission, New Delhi (Navin Khanna (Dr.) & Ors. V/s Unitech Reliable Projects Pvt. Ltd.) It is as hereunder:

           “(i) Consumer Protection Act, 1986 – Sections 24A, 21 (a) (i) – Limitation – Continuous cause of action.”

 

Hence, we answer the Point No.1 in affirmative.

 

13.    POINT NO.2 & 3: Since both the points are inter-link and identical, we proceed with both the points together.

 

14.   The Complainant filed this complaint claiming the insurance amount of his vehicle which had been insured with the OP. The said vehicle met with an accident and damaged badly, the Complainant submitted claim form to the OP. OP repudiated the claim stating that violation of condition of the policy. During the accident, the said vehicle did not possess a Fitness Certificate.

15.    After scanning the documents it is true that while accident of the said vehicle, the vehicle have no Fitness Certificate. Here, we have to keenly observe the documents produced by the Complainant are that EX C6 R.C. Book as per that the said Fitness Certificate was expired on 09.01.2013. Unfortunately, the said vehicle met with an accident on 02.04.2013. After lapse of 03 months of expiry of Fitness Certificate the said vehicle met with an accident. Here we have to keenly observe that the OP received the premium from the Complainant on 24.01.2013. While going through the EX C5 it is clear that the Fitness Certificate was expired on 09.01.2013. It is the duty of the insurance company to look after all the documents while issuing the insurance policy. The policy had been issued by the OP on 24.01.2013 while the FC was lapsed on 09.01.2013, the OP had issued the policy for the vehicle when the F.C. was not in force. Hence, we can treat this that the insurance company had agreed to take the risk to issue the policy without FC. As per the slogan of insurance companies, the policy was issued with an utmost good faith is applicable to insurance company also. Merely receiving premium from the customer is not enough to issue the policy. Moreover, as per the EX C5, in column NO.9 BRIEF PARTICULAR OF CAUSE OF ACCIDENT SHOULD BE FURNISHED. Inspector of Motor Vehicle R.T.O. office mentioned that I am of the opinion that this accident not due to any mechanical defect of above said vehicle. Here it is clear that on the date of the accident the vehicle was mechanically good enough to ply on the road. Hence, simply repudiating the claim by mentioning policy condition is violated is not enough to repudiate the claim.

 

16.    The Complainant had claimed Rs.7,00,000/- as  per the private surveyor’s estimation. But, the IRDA Surveyor’s estimation is Rs.2,91,994.30 paise. As such, Complainant is only liable as per the IRDA Surveyor. This is the lesson to the Complainant also while plying the goods vehicles he should have Fitness Certificate. Moreover, it is the Complainant’s duty to look after the documents what should he have during plying the vehicle on road. Hence, the claim made by the Complainant of Rs.7,00,000/- is not acceptable. Complainant had to bear the other expenses. Hence, Complainant is only liable for partial relief. Hence, we answer Point No.2 is affirmative and Point No.3 is partly affirmative.       

  17.     POINT NO.3: For the reasons and discussion made above and finding on the above points, we proceed to pass a following:  

//ORDER//

1. This Complaint is partially allowed.

 

2. OPs are directed to pay a sum of Rs.2,91,994/- (Rupees two lakh ninety one thousand nine hundred and ninety four) towards the Insured amount.

 

3. The Ops are directed to comply this order within a period of thirty days, failing which Ops are liable to pay interest @ 9% from the date of this order, till realization.

 

4. Send the copies of this order to the parties free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 26^th day of November, 2016)

 

 

Member

President