BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 27th October 2016
PRESENT
SMT. C.V. SHOBHA : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 333/2012
(Admitted on 07.11.2012)
Mr. Jagannath Shetty,
Aged about 34 years,
S/o Late Sanjeeva Shetty,
Daddi New House, Padebettu,
Padubidri 576117.
…….. COMPLAINANT
(Advocate for Complainant: Sri AKK)
VERSUS
The Divisional Manager,
National Insurance Co. Ltd.,
II Floor, Rasik Chambers,
Opposite Central Market,
Mangalore 575001.
……OPPOSITE PARTY
(Advocate for Opposite Party: Sri PJR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA
1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite party to pay the repair charges of Rs.1,09,528/, the interest thereon from the date of accident i.e., from 03.05.2012 till deposit, Rs.5,000/towards cost of this proceeding, and to pay as compensation of Rs.10,000/ towards mental agony caused.
I. The brief facts of the case are as under:
The top Number Complaint lodged by the complainant against the above of the opposite party Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant has insured his brand new Maruti Omni Van bearing Reg. No.KA.20.B.7281 under policy bearing No.35101031116330839942 for the period commencing from 01.03.2012 to 28.02.2013 which is a renewal policy and same has been issued after verifying the vehicular documents pertaining to afore said vehicle by the opposite party. It is stated that the above said vehicle met with an accident on 03.05.2012 when the vehicle skidded, but not due to any mechanical failure and complainant’s vehicle sustained severe damages and same has been notified to you and later it was towed to Mandovi Motors, Surathkal, the authorized dealer for Maruti model vehicles, wherein the surveyor deputed by the opposite party has surveyed the said vehicle by the opposite parties side and assessed the loss from their said and after survey upon the assurance of opposite party to reimburse the repair expenses and with the permission of the said surveyor complainant has carried out repair works incurring Rs. 1,09,528/ entirely upon the assurance opposite party that they would reimburse the expenses met by the complainant. After repair, the Complainant has submitted the original repair and spare parts bills to opposite party for reimbursement. Before deputing the surveyor the complainant has submitted all the documents of his said vehicle to opposite party and they have verified the same and after which only deputed the surveyor. Upon the opposite parties assurance to reimburse the repair bills, the completing the repair works, when the original repair bills were submitted to opposite party for reimbursement, they are avoiding the payment of damages on one or other pretext. The reasons assigned in their letter dated 29/08/2012 for repudiation of complainant’s claim are vague and nothing to do with the claim of the complainant. Further stated that at the time of accident, the complainant’s vehicle was not being plied for any commercial purpose, nor was carrying any passengers, nor caused any third party injuries or any third party property damage. As such absolutely no violation of any rules or law. Therefore, the complainant does not admit violation of any rules of as alleged in their above letter. The repudiation of Complainant’s claim is without any reasonable grounds. Their act of repudiation of the complainant’s claim amounts of deficiency in their service to the complainant.Thereafter, on receipt of above repudiation letter from opposite party the complainant got issued legal notice calling upon the opposite party to pay a sum of Rs. 1,09,528/- towards the expenses incurred for the repair of his above vehicle for which a vague reply is given by the opposite party which is produced along with this complaint. The complainant is the consumer as defined under section 2(d) of the Consumer Protection Act, 1986 and the act of repudiation of the complainant’s claim amounts to a huge deficiency of service in the case on hand. Hence, the matter raised for claiming an adequate compensation and other appropriate reliefs. On the strength of the same there is also a ground of prolonging the service by the concerned opposite party. This also covered with deficiency of service in all the angle. That apart continues with unfair trade practice in the business transactions.
II. Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite party by RPAD with copies of the complainant. The opposite party appeared through their counsel filed separate version as per the documents available in the case. Accordingly, the said opposite party proceeded the case for steps against the said opposite party. The allegations that the complainant is a consumer and that the opposite party has committed deficiency in service are not admitted. It is stated that during the course of the regular business of the opposite party company, a claim dated 15.05.2012 was received from the complainant in respect of an alleged damage arising out of an alleged accident on 03.05.2012, to the vehicle KA.20.B 7281 along with estimates of damages from Mandovi Motors, Surathkal. Without admitting the liability Mr. Vishwanath Shetty a licensed independent surveyor and loss assessor was appointed. The surveyor after inspection submitted his motor survey report dated 26.06.2012. The said surveyor after discussion with the repairer and after obtaining the consent for the revised estimate had estimated the damages approximately at Rs. 85358/- which is without prejudice. After the repairs the vehicle was re inspected on 23.06.2012 as per report dated 27.06.2012. However, while processing the claim, among others it was observed that at the time of alleged accident on 03.05.2012 the vehicle was not holding certificate of fitness from the concerned R.T.O. The records furnished by the insured showed the Maruti Omni KA.20.B.7281 was registered as passenger carrying vehicle (commercial vehicle) as Tourist Taxi. The said vehicle was also insured as passenger carrying vehicle commercial vehicle. On verification of the documents it is revealed that the certificate of fitness of the insured vehicle had expired on 05.03.2012 and there is no certificate of fitness as on 03.05.2012 the alleged date of accident. The surveyor also has noted this aspect in his report. Further stated that the allegations of Para 2 of the complaint are not fully true and hence denied. It is denied that the Maruti Omni KA.20.B.7281 was a brand new as on 1.03.2012. The said vehicle is registered on 6.3.2010 and the vehicle is 2 years old. It is further denied that the policy was renewed only after verifying the vehicular documents. At any rate the vehicle had valid certificate of fitness when the policy was given on 1.03.2012. Further that the allegations at para 3 of the complainant are not fully true and hence denied. The alleged accident on 3.5.2012, the nature of damage caused in the alleged accident, the cause of the alleged accident etc., are not admitted and the complainant is put to strict proof since the facts alleged are within the knowledge of the complainant. The complainant has neither informed the opposite party immediately so that the opposite party can arrange spot survey nor arranged for spot photos or any independent surveyor’s report on the spot. Further submits that, it is not correct to say that only after verifying the vehicular documents the surveyor was deputed. After perusal of the survey reports, vehicular documents and other documents submitted by the complainant and after application of mind the claim will be considered. The alleged assurances of the opposite party that they will reimburse the expenses are denied, repeatedly the alleged assurance of the opposite party have been mentioned in the complaint just to give colour to the false. The allegations at Para 4 of the complaint are denied. Admittedly the Maruti Omni KA.20.B.7281 was registered as passenger carrying vehicle (commercial vehicle) as Tourist Taxi. The insured has admitted that the vehicle has been used for hire. The policy issued is subject to the provisions of the Motor Vehicles Act 1988. Section 56(1) of the MV Act 1988 clearly indicates that a transport vehicle shall not be deemed to be validly registered for the purpose of section 39, unless it carries a Certificate of Fitness. Due to the above shortcoming/non-compliances the claim did not fall within the purview of consideration of settlement. Thereafter by letter dated 10.07.2012 before repudiating the claim an opportunity was given to the complainant to have his views. In reply dated 13.08.2012, the complainant has clearly admitted that he forgot renew the Fitness certificate on expiry and it was renewed from 21.07.2012 to 20.07.2013. He furnished the Xerox Copy of the certificate of registration (RC) and Fitness certificate (FC). The original RC shown was returned immediately after verifying with the Xerox copy. Thereafter the claim was once again examined and after application of mind the claim was repudiated as per communication dated 29.08.2012 stating the reasons for repudiation. The Advocate’s notice 27.09.212 has been properly replied as per reply dated 28.09.2012. The opposite party is not liable to indemnify/reimburse the alleged loss/damage to the complainant. In support of the complaint the complainant Mr. Jagannatha Shetty examined as CW1 and produced documents got marked the documents as Ex C1 to C12. On behalf of the opposite party Mr. K Padmaprakash Rao Rw1 & Vishwanath Shetty Rw2 examined and produced documents and marked as Ex R1 to R23.
III. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite Party?
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) & (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No.1 & 2: For the convenience the brief facts of the case is that the complainant as a registered owner of the vehicle in question a new brand Maruti Omni van bearing registration No. KA 20 B7281, obtained an insurance policy from the opposite party bearing its No.35101031116330839942 for the period validity from 01.03.2012 to 28.02.2013. Which is a renewal policy, pertaining into the case on hand. In the meantime the same vehicle was met with an read traffic accident on 03.05.2012, for the reasons best known to the opposite party. Wherein the same was badly damaged in mechanical. Inturn it was taken away to M/s Mandovi motors Surathkal, for its necessary repairs. By the time, all the things have been informed to the opposite party by the complainant. Inturn the opposite parties has been accepted, for doing needful and attended for all the procedural activities, pertaining to the claim which made with them by the complainant. On the basis of the same the authorized surveyor also has been deputed for the needful action in the matter. Accordingly, opposite party has been permitted and consented for getting repair with the said M/s Mandovi motors, to the complainant. As such after a long time and on completion of all the repairs, the said van was delivered by collecting a total tune of Rs.1,09,528/ towards its repair charges, spare parts and other expenses from the complainant, by that M/s Mandovi motors, surathkal, who also an authorized dealer for maruti vehicles. Till the above facts which narrated, there was no any dispute by the opposite party in the case on hand, pertaining to the road traffic accident, damage of the vehicle, ownership of the complainant including payment which made by him to the said M/s Mandovi motors, surathkal of a tune of Rs.1,09,528/ towards its repair charges. In this regard, for the above set of facts, the complainant sought for the relief in the case against the opposite party under his prayer including other claims. On the other hand, the opposite party on its appearance through a counsel made a detail version and disputing the said claim of the complainant in total, only on the ground that there was no any fitness certificate from the competent authority of the Regional transport, pertaining to the said vehicle to the date of its Road traffic accident and the damaged caused. So that the main issue raised in the case on the point of, fitness certificate of the said vehicle as on the date of its accident, is the ground for escape from liability by the opposite party or not, is only to be adjudicate now, by us. For which we observed all the available pleadings, oral as well as documentary evidence done by either the parties including notes of arguments and their citations which produced by them respectively. For the above set of facts it is our considered opinion is that the date of accident is 03.05.2012, the said policy in question is valid to the said date. Further, as per the document of registration certificate Ex-C2 reveals that the complainant is the owner to the said vehicle and also fitness of the vehicle till 05.03.2012 and thereafter it was renewed till 20.07.2013 by a gap till 20.07.2012 from 06.03.2012.
Further, it is also the admitted fact that on the date of issuance of said policy that on 01.03.2012, the opposite party on scrutinize and verified all the documents of the vehicle being to the complainant and then only issued the said insurance policy by collecting a total sum of Rs.8,736/ towards the premium amount as per the Ex R23 policy. Such being so, the said fitness of the vehicle till 05.03.2012, so that it is the duty of the opposite party while issuing the said Ex R23 policy and fixing its validity till 28.02.2013, the better authority is only the opposite party as fixed by us to answer, why this was issued and collecting the said huge amount towards premium from the complainant. Because, as per the provision of the law of contract derived U/s 124, it is the law of indemnity, the opposite party is only the proper person to discharge its liability as a burden, mainly on the basis of the terms and conditions of the said policy document Ex R23. Much more than that we also observed that one more important document available before us as per ExR13, naming clature that Form 42, permit in respect of a particular contract carriage which issued by RTA Udupi. Wherein serial No.06, date of expiry i.e. 08.03.2010 to 07.03.2015. Such being so once the said vehicle has been permitted for the said period even to ply on all the schedule routes of state of Karnataka. So that there is no any ground to disallow the claim which made by the complainant.
The said claim of a total tune of Rs.1,09,528/, also revealed from the document receipt voucher of the said M/s Mandovi motors Surathkal as per Ex R15. So, there is no any dispute and it is enough to conclude that the said sum was paid by the complainant and got the vehicle from M/s Mandovi motors Surathkal on 25.06.2012. So that from 03.05.2012 to 25.06.2012, the said damaged vehicle in question was kept for its necessary repairs, so that the complainant was unable to use for his livelihood. The same was also proved as per the Ex R16 & R9. Further, admittedly the said vehicle is of a yellow board vehicle and it was used by complainant for his livelyhood and domestic purpose. That, apart, so many photographs found to show its huge mechanical damage and also motor survey report is at Ex R8. As per Ex R2 it is claim intimation from and R3 is motor claim form, Ex R4 is an endorsement issued by Kapu police station of Udupi dated 03.05.2012, of its accident and caused the damage. Inspite of it that on 29.08.2012 issued the said repudiation letter as per Ex R18. Wherein their ground for its repudiation is only of fitness certificate was not to the date of the accident. Except the same there is no dispute regarding their payment or refund of the said claim to the complainant by the opposite party.
For all the reasons stated above we observed from the ruling reported in ILR 2014 Karnataka page 191 it is clear that even though the vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay is not valid. The said headnote of the Hon’ble High Court of Karnataka is as follows:
Contention of the insurer is that the offending vehicle did not possess fitness certificate at the relevant time and therefore, they are not liable to pay compensation HELD, The life of an Insurance Policy issued in respect of a motor vehicle will be valid for one year and for every next year either it has to be renewed or new policy has to be obtained. Therefore, the insurer at every time of insuring a vehicle and issuing policy or renewing such policy should verify whether the vehicle has possessed all the necessary certificates including the fitness certificate. The Insurance Companies cannot blindly insure motor vehicle and collect premium and thereafter contend that the vehicle did not possess fitness certificate at the relevant point of time and therefore they are not liable to pay compensation to the claimants. This attitude of the insurer cannot be encouraged any longer.
FURTHER HELD,
It is no doubt true as per Ex.R.1 an endorsement issued by the RTO, the fitness certificate of the offending vehicle was not in force as on the date of accident. If that is so the insurer should not have insured the vehicle for the period during which vehicle did not possess the fitness certificate. The insurer cannot say they would insure a vehicle irrespective of the fact that whether it has a fitness certificate or not and collect premium and when it comes to liability, their liability is subject to vehicle possessing fitness certificate.
As revealed from the above ruling of our Honble High Court of Karnataka that the opposite party cannot escape from discharging its liability as per its policy. Further, as per another ruling ILR 2013 Karnataka page 3311 wherein once the vehicle was registered on its certificate by the RTA under Section 39 of motor vehicle Act, it is enough to show the vehicle under the statue, hence the opposite party as an insurance company to satisfy the claim as its liability fasten under the policy. For those reasons also, the action which taken by the opposite party in the case as per the document Ex-R18, for repudiation is totally improper and it was in without any justification. Hence, it is the case on hand is of a pure deficiency in service which caused by the opposite party to the complainant. In such a view even regarding the quantum claimed by the complainant here is of a total sum of Rs.1,09,528/ as per Ex R15. In such a situation it is also the case of opposite party as per their motor survey report as per Ex-R8 it is only a sum of Rs.85,358/-, there is no ground and reason to conclude the same since, the said total amount paid by the complainant to M/s Mandovi motors, surathkal that on 25.06.2012 of Rs.1,09,528/- as per Ex-R15. For that we also observed from the ruling cited of
Honble supreme Court of India 2009 ACJ 1729, which reads:
Insurance Act 1938, section 64.UM (2) Motor insurance Claim for damage to truck-Surveyor s report-Truck fell into khud and was damaged-Owner of the truck filed claim duly supported by original vouchers, bills and receipts for the parts purchased and the labour charges paid for repairs Insurance company appointed surveyor who estimated damages at Rs.63,771 which was not accepted by the owner/ Owner filed complaint and District Forum directed insurance company to pay Rs.1,58,409 which was confirmed by State Commission and National Commission-Contention that loss assessed by approved surveyors was binding-Whether the report of the approved surveyor is binding upon the insurance company and the insured Held: no it may be the basis or foundation for settlement of a claim; loss assessed by Consumer Fora affirmed.
According to the above cited ruling also the total amount of claim of the complainant in the case as per Ex R15 of Rs.1,09,528/ is a valid claim of the complainant with the opposite party. Because, the amount whatever estimated by the surveyor as per Ex R8 not at all to be accepted. From the above ruling also confirmed to that aspect pertaining to the claim also confirmed to the said total claim of Rs.1,09,528/. Therefore, on that ground also we come to a considered opinion that the above both the point No.1 & 2 have been answered in Affirmative. That apart we also observed all the citation produced by the opposite party in the case none of the same is applicable to the facts of the case on hand. Once the deficiency of service has been proved by the complainant together with the unfair trade practice of the act which made by opposite party, which is clear that intentionally opposite party made its all efforts with a view to escape from discharging its liability in either to make payment or to settlement the claim. Despite with a malafide intention to have wrongful gain the said repudiation was made as per Ex R18 that on 29.08.2012. Furthermore on the face of the said document Ex R18, the opposite party prepared the same actually on 10.07.2012. Thereafter, the said date was strike off and mentioned as it was 29.08.2012. On that count also the same was made out for the purpose of the case which discloses the conduct of the opposite party is deliberate in taking the said deffence. Therefore it amounts to violation of trade practice since it is of a commercial business, making profit and gain by the opposite party. Hence, making all the false plea in the case without any justification. Further, it is also in the manner of inconsistent view which taken by the opposite party in the case. Hence, the opposite party is also liable to pay or refund the said entire sum of Rs. 1,09,528/ with an accrued interest @ 10% p.a. from 25.06.2012 till making payment. Further, for causing harassment, damage and mental agony to the complainant, the opposite party is also liable and responsible to pay a sum of Rs.10,000/ towards compensation including another sum of Rs.5,000/ towards cost and litigation expenses incurred by the complainant.
POINTS No. (iii): In the result, as per the Order below:
ORDER
The Complaint is allowed in part. The opposite party is responsible and liable to pay or refund the said entire sum of Rs.1,09,528/ (Rupees One lakh Nine thousand Five hundred Twenty Eight only) with an accrued interest at the rate of 10% per annum from 29.08.2012 till making payment. Further, the opposite party to pay for a sum of Rs.10,000/ (Rupees Ten thousand only) towards compensation and for a sum of Rs.5,000/ (Rupees Five thousand only) towards the cost of litigation expenses incurred by the complainant in the above case. Hence the payment shall be made within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 18 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 27th day of October 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C. V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Jagannatha Shetty
Documents marked on behalf of the Complainant:
Ex. C1: True copy of the R.C. of vehicle No.KA.20.B.7581
Ex. C2: True copy of policy of above vehicle
Ex. C3: True copy of Check Report cum Receipt
Ex. C4: True copy of spot mahazar
Ex. C5: True copies of repair bills issued by Mandovi Motors Pvt Ltd
Ex. C6: True copy of permit of above vehicle
Ex .C7: Photographs of above damaged vehicle
Ex. C8: Letter of Opposite Party dated 10.07.2012
Ex. C9: Copy of claim form
Ex.C10: Copy of claim repudiation letter of opposite party dated 29.08.2012
Ex.C11: Official copy of legal notice sent to opposite party dated 27.09.2012 with postal receipt and acknowledgement
Ex.C12: Reply of opposite party dated 28.09.2012 to above notice.
Witnesses examined on behalf of the Opposite Party:
RW 1: Mr. K Padmaprakah Rao, Deputy Manager.
RW 2: Mr. Vishwanatha Shetty, D.M.E (Auto) F.I.I.S.A, General Insurance Surveyor and Los Assessor.
Documents marked on behalf of the Opposite Party:
Ex.R1: Insurance policy in respect of vehicle bearing No.KA.20B.7281 With terms and conditions
Ex.R2: Dated: 15.05.2012 Claim intimation form
Ex.R3: Dated: 15.05.2012 Claim form submitted by Complainant to Opposite party
Ex.R4: Dated: 03.05.2012 Acknowledge for police complaint
Ex.R5: Dated: 03.05.2012 Check report cum receipt
Ex.R6: Dated: 03.05.2012 Endorsement by Kapu Police Station
Ex.R7: Dated: 03.05.2012 Spot Mahazar
Ex.R8: Dated: 26.06.2012 Motor Survey Report with photos
Ex.R9: Dated: 26.06.2012 Job Estimate
Ex.R10: Dated: 10.06.2012 Supplementary Estimate.
Ex.R11: Copy of RC with Fitness Certificate
Ex.R12: Tax paid receipt
Ex.R13: Permit in respect of vehicle bearing No.KA.20B.7281
Ex.R14: Copy of the Driving licence of Mr.Venkatesh PC alleged drive of Vehicle Bearing No.KA.20B.7281
Ex.R15: Dated: 25.06.2012 Payment receipt vocher
Ex.R16: Dated: 23.06.2012 Job card Retail invoice
Ex.R17: Dated: 27.06.2012 Re inspection Report
Ex.R18: Dated: 29.08.2012 Repudiation Letter
Ex.R19: Dated: 30.08.2012 Acknowledge for service of repudiation Letter
Ex.R20: Dated: 13.08.2012 Letter from complainant to Opposite party
Ex.R21: Dated: 04.06.2013 Information received from RTO Udupi relating to vehicle KA.20B.7281 (T.T) obtained under RTI Act
Ex.R22: Dated: 04.06.2013 B Register Extract of KA.20B.7281 Obtained from RTO Udupi under RTI Act
Ex.R23: Certified true copy of the policy bearing No.35101031116330839942 for the period 01.03.2012 to 28.02.2013 with terms and conditions.
Dated: 27.10.2016. PRESIDENT
