The Divisional Manager, United India Insurance Co. Ld.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant against Divisional Manager, United India Insurance Company Ltd., Divisional Office, Raichur. The brief facts of the complaint are as under:- On 21-03-04 the complainant Shashibhushan purchased a new motor cycle-TVS-Suzuki Fiero-F2 make bearing Chasis No. MO 624AE1942B and Engine No. OEIB42056646 for Rs. 47,464/- through the financial assistance of ING Vysya Bank Ltd., Hubli under Hypothecation Agreement. As insuring of vehicle being a pre-condition for getting registered the vehicle for riding over the road, so the vehicle was insured with Respondent on the basis of Chasis and Engine Nos. on 22-03-04 by paying Rs. 1,032/- as premium for one year validity with effect from 22-03-04 to 21-03-05 mid-night and the Respondent has issued cover-note and subsequently the vehicle was registered temporarily with RTO Raichur bearing Temporary Registration NO. KA-36/K-5238 which was valid for one month. The complainant is having valid and effective driving licence to drive the two wheelers vehicle with gear. He has paid Rs. 3,660/- as life time Road Tax to the RTO on 23-03-04. On 02-05-04 the complainant and his brother in-law Marisiddappa were proceeding on this motor cycle for distributing Marriage Cards of this complainant scheduled in that month and when the vehicle was proceedings on Sirwar-Arakeara road near Jagir Jadaladinni village, one tractor Bearing Registration No. KA-36/T-5174 came from opposite direction in rash and negligent manner and dashed to their motor-cycle resulting the spot death of his brother-in-law Marisiddappa who was riding the motor-cycle and the complainant sustained grievous injuries and the motor cycle was totally damaged. The accident was due to rash and negligent driver of the tractor. This incident was reported to Deodurga P.S. who registered a case in Crime No. 67/04. Because of shock due to the death of brother-in-law Marisiddappa the complainant did not inform immediately to the Respondent about the incident but informed the same through application on 25-05-04. However the Respondent through their letter dt. 13-12-05 asked the complainant to produce necessary documents for process of claim and the same were produced to the Respondent. Thereafter on 02-02-06 the Respondent repudiated the claim of this complainant on the ground that on the date of accident the vehicle had no valid Registration Certificate after lapse of temporary Registration on 31-03-04. The ground taken by the Respondent for repudiation of his claim is neither a pre-condition imposed for insuring vehicle nor intimated expressly or through documents (policy) to the complainant. Even the said ground is not a clause under Exclusion-Clauses of the policy and it is not a cause which directly resulted to said accident. So it is not violation of policy conditions or breach of terms and conditions of the Insurance policy. Even if it considered under provision to section 149 of M.V. Act 1988, then also the ground taken for repudiation is not a defence within the meaning of section of 149 of M.V. Act and eschew from liability. The validity of Insurance policy will not be ceased due to expiry of temporary Registration of vehicle. So there is a deficiency in service by Respondent in repudiating his claim. Hence for all these reasons the complainant has sought for direction to the Respondent for payment of Rs. 32,000/- of vehicle damage and Rs. 20,000/- towards keeping idle the vehicle without repair for non-payment of damage amount and Rs. 10,000/- towards mental harassment suffered by the complainant and for awarding cost of litigation. 2. The Respondent Divisional Manager United Insurance Company Ltd., has filed written statement contending that the valid period of temporary Registration Certificate in-respect of two wheeler of the complainant had already expired on 31-03-04 when the accident took place on 02-05-04. So the validity period in-respect of temporary certificate of registration was not at all in-force on the date of accident. No damage is caused to the vehicle as stated in the complaint claiming Rs. 32,000/-. This Respondent soon-after the accident arranged for survey of the damages wherein the Surveyor assessed the loss to the tune of Rs. 31,000/-. But however the complainant is not entitled in-view of violation of terms & conditions of the insurance policy and also as per the Rules & Regulations of M.V. Act. Hence there is no deficiency in service on the part of this Respondent. So the complainant is not entitled for damages of Rs. 32,000/- and compensation of Rs. 20,000/- & Rs. 10,000/- as claimed. Hence for all these reasons the Respondent has prayed for dismissal of the complaint with cost. 3. During the course of enquiry the complainant has filed sworn affidavit by way of examination-in-chief. The Respondent has also filed his sworn affidavit by way of examination-in-chief. Both parties have not chosen to cross-examine. Further on behalf of complainant (12) documents were got marked at Ex.P-1 to P-12. On behalf of Respondents (9) documents at Ex.R-1 to R-9 were got marked. 4. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:- 1. Whether the complainant proves deficiency of service by the Respondent, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 6. There is no dispute that the vehicle TVS Suzuki was insured with Respondent and the vehicle met with an accident by the rash and negligent act of the opposite vehicle dashed tractor which dashed to the motor-cycle causing spot death of Marisidappa the driver of the motor cycle and causing damage to the motor cycle. It is the case of the complainant that he purchased the motor-cycle TVS Suzuki on 21-03-04 with financial assistance from Vysya Bank Hubli and the vehicle was Temporarily Registered with RTO Raichur bearing Temporary Registration No. KA-36/K-5238 which was valid for one month. The accident took place on 02-05-04 a complaint regarding accident was lodged in Deodurga PS in Crime No. 67/04. The complainant could not inform the accident immediately to the Respondent but he informed the same through application dt. 25-05-04. The Respondent on 13-12-05 vide letter asked to produce necessary documents for process of his claim and the same were produced to the Respondent. But the Respondent has repudiated his claim through letter dt. 02-02-06 on the ground that the complainant ride the vehicle on the road without valid Registration Certificate after lapse of temporary Registration on 31-03-04. 7. The complainant has produced in all (12) documents. Out of which Ex.P-6 is the Original Certificate of Insurance. Ex.P-7 is the Attested True Copy of Temporary Certificate of Registration. Ex.P-8 is the Certified Copy of FIR with complaint. Ex.P-10 is the Respondents letter dt. 13-12-05.Ex.P-11 is the Repudiation letter of the Respondent dt. 02-02-06 and Ex.P-12 is the Certified coy of Survey Report dt. 23-09-05. The Temporary Registration Certificate Ex.P-7 disclose it was valid upto 31-03-04. Ex.P-10 is the letter dt. 13-12-05 of the Respondent to the complainant asking to produce certain documents for processing his claim application. Ex.P-11 is Repudiation letter dt. 02-02-06 which interalia reads as under: On scrutiny of the claim papers which you have submitted in-respect of above claim, we have observe that, your motor cycle temporary Registration has been expired on 31-03-2004 i.e. after a lapse of one month 2 days of validity of your R.C. Book. As per the I.M.V. Act your motor vehicle cannot play in a public place without valid registration certificate. Therefore, for the reasons mentioned above, we are not in a position to admit your claim which please note. 8. As stated earlier there is no dispute that the Temporary Register of vehicle under Ex.P-7 was to expire on 31-03-04 and the vehicle was not having valid Registration Certificate on the date of accident which took place on 02-05-04. The learned counsel for complainant argued that the defences open to the Respondent Insurance Company is only as per section 149(2) of Motor Vehicle Act and the non-registration of the vehicle being not enumerated U/s. 149(2) of Act. The Respondent is not entitled to repudiate the claim on the ground of non-registration of the vehicle on the date of accident and so the Insurance Company is liable to the claim of the complainant. In-support of his argument the learned counsel has relied on the decision of Honble High Court of Karnataka reported in: 2000(1) KLJ 495 Head Note which reads as under: MOTOR VEHICLES ACT, 1988, Sections 39, 43 and 149(2)__ Temporary registration__ Insured vehicle involved in accident on account of rash and negligent driving thereof happening after expiry of__ Liability of Insurance Company to pay compensation awarded against owner of vehicle and grounds of defence available to Insurance Company to avoid liability__Since non-registration of vehicle is not one of grounds enumerated in Section 149(2) of Act, as available to insurer to avoid his liability, Insurance Company cannot refuse to pay compensation on ground that vehicle was not registered at time of accident. 9. We have sincerely gone through the decision especially para 7 to 9 wherein Honble High Court has observed that the grounds of defences have been specified in section 149 (2) of the Act and no other ground of defence can be added to the said section. So the defence open to the Insurance Company are only those mentioned U/s. 149(2) of M.V. Act. The non-registration of the vehicle is not one of the defence enumerated U/s. 149(2) of the Act. Therefore the Insurance Company is not entitled to take defence of the non-registration of vehicle on the date of accident. Under Sub-section (7) of section 149 of the Act, the person entitled to the benefit of any judgment and award referred to in Sub-section (1) other-wise than in the manner provided for in Sub section 2 of section 149 of Act Therefore the Tribunal was not right in absolving the liability of the Insurance Company on the ground that there was no registration of the vehicle as on the date of accident. The Insurance Company shall not be allowed to raise the defence of non-registration as it falls outside the scope of section 149 (2) of the Act and Insurance Company was directed to pay the amount to the claimant. 9. Bearing-in-mind the principles laid-down in the above said rulings we hold that the principles in the said rulings are aptly applicable to the present case to hold that the Insurance Company is not entitled to raise the defences of non-registration of the vehicle on the date of the accident as it falls outside the scope of section 149 (2) of M.V. Act. So the Repudiation of the claim of the complainant on the very ground of non-registration of the vehicle as on the date of the accident is not legal & justified and consequently it amounts to deficiency in service. Hence we hold that the complainant has proved deficiency in service and so Point No-1 is answered in the affirmative. POINT NO.2:- 10. The complainant has sought for payment of Rs. 32,000/- towards damages of the vehicle Rs. 20,000/- towards loss of income from the vehicle towards keeping idle the vehicle without repair and Rs. 10,000/- towards mental harassment. The complainant in para-2 of his complaint has averred that the Respondent got surveyed the loss by its Panel Surveyor who assessed the loss at Rs. 32,000/-. The complainant is entitled for his estimated amount as he got estimated the loss of vehicle by authorized Show Room and the Dealer of the said Company of vehicle for Rs. 32,000/-. The Respondent Insurance Company in para-3 of the written statement has also stated the survey conducted by surveyor has assessed the loss at Rs. 31,000/-. The complainant has produced certified copy of survey report at Ex.P-12 and Attested Copy of which produced by the Respondent Company is at Ex.R-9. A perusal of it shows that the surveyor has assessed the loss at Rs. 41,414/- and it further states that the insured (complainant) has agreed for Rs. 32,000/- for Cash Loss Settlement. As stated above the complainant has sought for Rs. 32,000/- towards vehicle damage. So we feel it justified to allow this claim of the complainant. In so far as the claim for awarding Rs. 20,000/- towards loss of keeping the vehicle idle without repair for non-payment of damaged amount and Rs. 10,000/- towards mental harassment are concerned, taking into consideration the facts and circumstances of the case and vehicle being motor-cycle and having regard to the repudiation of the claim by the Respondent we feel it justified to allow a global compensation of Rs. 10,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. The Respondent Insurance Company shall pay Rs. 32,000/- towards loss as assessed by the surveyor its panel surveyor and to pay Rs. 10,000/- as global compensation including cost of litigation. The Respondent shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 03-01-07) Sd/- Sri. N.H. Savalagi, President, District Forum-Raichur. Sd/- Sri. Pampannagouda, Member District Forum-Raichur. On leave Smt.Kavita Patil, Member. District Forum-Raichur
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