BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 19/08/2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 100/2016
Complainant/s: 1. Smt.Nanda W/o:Anilraj Dudhale,
Age:26 years.Occ;Household work,
R/O;Masuti Oni,Gopanakoppa Village,
Hubballi,Tq;Hubballi,Dist. Dharwad
2. Kumar Krishna S/o: Anilraj Dudhale,
Age: 04 years Occ: minor
3. Kumari Vaishnavi D/O Anilraj Dudhale,
Age: 02 years Occ: minor
4. Sri Yallappa S/o:Tippanna Dudhale,
Age: 63 years, Occ: Agriculture
R/o;Masuti Oni Gopanakoppa village,
Hubballi,Tq;Hubballi Dist;Dharwad
5. Girijabai W/o;Yellappa Dudhale,
Age: 60,Occ: Household ,R/o: -do-
(Rep.by Shri.V.F.Ullalgaddi, Advocate)
V/s
Respondent/s: 1.The Divisional Manager,
National Insurance Co.Ltd.,
Kusugal Road,Opp:SBI Zonal Office,
Keshwapur,Hubballi
2. The Proprietor,Shantesh Auto Pvt.Ltd.
Shiva Avenue, Gokul Road,Hubballi.
(R-1 rep.by R.H.Kulkarni, Advo. &R-2 rep.by
B.V.Talawai,Adv.,)
O R D E R
By: Shri. B.H.Shreeharsha: President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay personal accident claim of Rs.15,00,000/- for the death of the insured & with regard to the damages towards accident vehicle to pay Rs.10,000/- towards cost of litigations with interest at 18% and to award Rs;20,000/- towards mental agony and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant No.1’s deceased husband had purchased a Motorcycle “Dream Yuga” from the respondent 2 the dealer 19/2/2015 through cash payment. The respondent No2 had undertaken to get the vehicle temporary registration and also to insure the same with respondent No.1. As such her deceased husband took delivery of the same by paying all the amount thinking that the respondent No.2 as per his assurance had registered and insured the vehicle on 19/2/2015. After taking delivery of the vehicle her husband took the vehicle on 20/2/2016 went to visit Yallamma Temple at Savadatti. While so proceeding by observing all the Traffic Rules in between Ugargol and Yallamma Temple another Motor cycle bearing No.KA 24S 3619 came from opposite direction in a rash and negligent manner and dashed against her husband’s motor vehicle at about 15.30 hrs.,near S.T.Malannavars land on Ugargol Yallamma Temple. As a result of accident riders of both vehicles died at the spot. Thereafter father of the deceased made claim to the respondent No.1. For that the respondent No.1 gave an excuse saying that the accident involved vehicle was not registered at RTO and is registered only on 23/2/2015 i.e. after occurrence of the accident. The respondent No.2 had collected all the charges viz., TRC and insurance charges along with the cost of the vehicle. The non-settlement of the claim amounts to deficiency in service. Hence the complainant No.1 wife, Complainant No.2 &3 son and daughter complainant No.4 &5 father and mother of the deceased have filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared and filed detailed written version.
4. Respondent.1 admits written version taking contention that the very complaint is not maintainable either in law or on facts and also denied the deficiency in service alleging the very complaint is frivolous one and prays for dismissal of the complaint. Further the answering respondent denied the complainants are the legal heirs of the deceased Anilraj Dudhale. Further the answering respondent among some other admissions and denials denied the claim under the personal accident policy and took contention that since the vehicle was not registered and as the deceased owner violates the Sec.39 of M.V.Act the Respondent No.1 not liable to pay compensation and put the complainants to strict proof of the same. Further also denied the deceased was possessing valid DL to ride the same and also taken contention that the accident was not immediately intimated to the respondent No.1 and was intimated only on 5/3/2015 i.e. after lapse of 15 days, hence on that point also the respondents are not liable to pay any claim under the policy and further contended that the respondent has not committed any deficiency in service and the alleged cause of accident is imaginary one and also taken contention that the Forum has no jurisdiction to adjudicate the same, the complainant has not approached the Forum with clean hand and suppressed the real facts with utterer motive to have false claim and in turn pray for dismissal of the complaint with cost.
5. The respondent No.2 also admits the written version in detail denying and disputing all the complaint averments as in the same line as respondent No.1 taken contention and pray for dismissal of the same. Further the respondent denied the deceased had paid entire amount of the cost of the vehicle as contended by the complainants and put the complainants to strict proof of the same. Further the respondent pleaded the deceased purchased the said vehicle under buyback scheme by selling his old motorcycle as an exchange. Since the deceased has not furnished vehicular documents of his old vehicle the purchaser of the old vehicle did not pay the amount. So also the deceased also not paid the cost of the new vehicle as per the invoice and was in due. In spite of it even though answering respondent did not agreed to deliver the vehicle unless payment of entire amount and also as the vehicle was not temporarily registered the deceased took the vehicle saying that he is taking it for test drive and will return. By saying the same he took the vehicle there after did not return. At that time the respondent thinking that he may come on the next day, kept quiet. The old vehicle purchaser paid the amount on 23/2/2015. So the respondent got it temporarily registered on 23/2/2015. Before that the deceased took the vehicle for long drive without possessing the vehicular documents and met with the accident and died in the accident on 20/2/2015. For that the respondents are not liable it is deceased himself held responsible as he has violated Sec.39 of the M.V.Act. Since the deceased has not paid the entire amount the respondents have not registered the vehicle so also in fact the respondents have not deliver the vehicle it is complainant himself took the vehicle saying that he will go for test drive. Despite of this the complainant no.1 along with her relatives approached the respondent No.2, during that time the respondent revealed all the facts in detail and told her that there is no fault on the part of the respondents despite the complainant no.1 and her relatives insist for payment of the amount during that time respondent told if there is any claim, claim against the respondent no.1 as the respondent no.1 has issued the policy. However, lastly the respondent paid Rs;50,000/- to the complainant towards the value of the motor cycle irrespective of no liability. Despite receiving the said amount the complainant no.1 at the instance of others in order to have wrongful gain has filed the instant complaint against the respondent claiming false claim. The respondent has not committed any deficiency of service. Further the respondent denied the cause of action and prays for dismissal of the complaint with cost.
6. On the said pleadings the following points have arisen for consideration:
1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?
7. Both the parties have admits sworn to evidence affidavit relied on documents. The respondents Apart from arguments relied on citations. Heard. Perused the record.
Finding on points is as under.
1. In Negative
2. In Negative
3. As per order
Citations relied by the respondent No.1 ;
2015 Kant.M.A.C.65(SC) Narinder Sigh V/S New India Assurance Company Ltd. & another.
Citations relied by the respondent No.2;
AIR 1994 SC 853 S.P. Changalvaraya Naidu V/S Jagannath
R E A S O N S
P O I N T S 1 & 2
8. Ongoing through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that the complainant No.1’s deceased husband had approached the respondent No.2 and purchased new motorcycle under exchange scheme and husband Shri Anilraj Dudhale died in Motor vehicle accident on 20/2/2015.
9. Now the question to be determine non settlement of the claim by the respondent amounts to a deficiency in service ,if so for what relief the complainants are entitle.
10. Since the facts have been revealed in detail which requires no repetition.
11. The case of the complainants is that on 19/2/2015 deceased Anilraj Dudhale took delivery of the Motorcycle from the respondent by paying entire cost including temporary registration and insurance premium. While it is the case of the respondent No.2 is that the deceased approached the respondent to buy new motorcycle in exchange of his old motorcycle and it was agreed to pay Rs;50,000/- for his old vehicle and the cost of the new vehicle was Rs;48,474/- excluding temporary registration charges and insurance premiums. Since it was exchange offer the insurance was free in the said offer scheme. The deceased had paid Rs;557/- towards the token amount and it was agreed to adjust the exchange amount to the new motorcycle. Since the deceased did not brought his previous vehicles documents the buyer of the old vehicle did not paid the entire amount but paid only part amount Rs;35,000/- and hence the vehicle was not delivered to the deceased despite invoice Ex.C-1 . Since the deceased was known and regular customer the deceased on 19/2/2015 at about 5.30 p.m. in spite of resistance by the Respondent No.2 insist to permit him to take the motor cycle for test drive. After taking delivery of the motorcycle the deceased did not returned hence the respondent No.2 thinking that he may come on the next day was silent. Since insurance was free as per the offer the policy was drawn in the name of the deceased. But TRC was not done as the deceased not paid entire amount. But on the next day the respondent came to know that Mr.Anil Dhudhale died in the Motor cycle accident. Since the buyer of the old vehicle remitted the amount on 23/2/2015 the TRC was applied and took in the name of the deceased. In support of this contention the Respondent No.2 produced and relied on Ex.R2 -9 document. The perusal of document R2 -9 in detail it is made clear that the deceased had given undertaking to the respondent No.2 on his own responsibility he is taking delivery of the vehicle. This fact is rectified by the undertaking endorsement Ex.R-2-9(a) and signature of the deceased on Ex.R-2 -9 at Ex.R-2 9 (b). The signature of the deceased Ex.R-2 9(b) is not disputed by none of the complainants. In support of the fact deceased has not paid the entire amount on 19/2/2015 as contended the respondent No.2 relied on Ex.R-2-1 and submit as the buyer of the old bike appeared and paid the balance amount on 23/2/2015 the respondent 2 got TRC in the name of the deceased on 23/2/2015 only. Hence argued there is no fault or deficiency of service on the part of R-2. Further argued and submits if any liability, it is of respondent No.1 who has issued policy to the vehicle in the name of deceased Mr.Anilraj Dhudale.
12. While it is the grievance of the complainant that subsequent to the incident, they have submitted claim to the respondent No.1 and they refuse to settle the claim through their letter Ex.C-7 contending that the deceased had violated M.V.Act and to the date of accident the said vehicle was not registered either temporarily or permanently. Further grievance of the complainants that since the respondent No.2 had received all the money including registration charge and insurance premium not register the vehicle hence they are entitle for the claim.
13. The LC for Respondent No.1 in reply contending that though R-1 has issued policy as per Ex.C-2 since the vehicle met accident on 20/2/2015 to that day the said vehicle was not registered in the name of the deceased and the deceased was not possessing valid documents at the time of accident, the deceased has violated the provisions of Indian Motor Vehicle Act and relevancy produced.
i)Sec.39 of M.V.Act 1988 – No person shall drive any motor vehicle and 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 and the certification of registration of the vehicle has not been suspended or cancelled and the vehicle carried a registration marks displayed in the prescribed manner.
Provided that nothing in this section shall apply to a motor vehicle in possession of vehicle subject to such conditions as may prescribed by the central govt.
ii)Sec.192(1); USING VEHICLE WITHOUT without registration- Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravesion of the provisions of Sec.39 shall be punishable first offence with fine which may extent to Rs;5,000/- but shall not be less that Rs;2,000/- for a second or subsequent offence with imprisonment which may extend to one year or with fine which may exend to Rs;10,000/- but shall not be less that Rs;5,000/- or with both;
Provided that the court may, for reasons to be recorded, impose a lesser punishment.
14. In support of contention of violation of the proviso of the M.V.Act LC for the respondent relied on - 2015 Kant.MAC 65(SC) Narinder Singh V/S New India Assurance Co.Ltd and others. Wherein it is held when the owner of the vehicle violates the proviso of Sec.39 of MV Act is not entitle for the coverage of insurance and the repudiation by the insurer on this ground is valid and justified. By submitting this LC for Respondent No.1 argued the non-settlement of the claim by the Respondent No.1 is justified and not amounts to deficiency in service as alleged and prays for dismissal of the claim against Respondent No.1.
15. The LC for Respondent 2 argued on the basis of pleadings and coupled with evidence contending that the deceased has not paid entire amount so they have not applied for TRC so also the deceased took the vehicle irrespective of payment saying that he will take for test drive and then he did not return and in meanwhile he met with an accident, and died. Hence Respondent No.2 not liable to pay any compensation. In support of this contention R-2 restressed on document Ex.R2-9 (a)&(b). Further the respondent No.2 inviting the attention of this Forum to Ex.C-1 invoice argued that no where in the Ex.C-1 it is mentioned the respondent No.2 have collected amount towards TRC and insurance. Hence at no point of time the respondent No.2 had assured they have applied for TRC and by saying so they have deliver the possession. Since the deceased not paid the entire amount constructive possession was not delivered. Hence Respondent No.2 not liable to reimburse the loss or to pay any compensation or personal Accident claim as per Ex.C-2. Despite of it on the insist and repeated pressures and demands made by the complainant No.1 and her relative the Respondent No.2 has paid entire cost of the motor cycle and complainant No.1 has received the same as per Ex.R2 -6 voucher dtd. 26.5.2016. Despite of receipt of the same the complainant have approached this Forum and filed the present complaint to have unlawful gain. Further submits despite of the receipt of said amount the complainants have not stated in their pleading all these facts and also of the facts new motorcycle was purchased on exchange scheme and also nonpayment of the entire amount on 19/2/2015 .Further submits the complainants are not entitle for any claim much less the amount as prayed . In support of this fact the R-2 relied on citations as referred supra.
16. By looking into all these facts put forth it is evident that on 19/2/2015 the deceased has not paid entire amount and despite of no TRC, took possession of the motor cycle against to the constructive delivery by the Respondent No.2 and played the vehicle on public road without possessing valid documents and violates the proviso of Sec.39 of the M.V.Act 1988. Added to it by Ex.R2-9 it is evident that the deceased has not paid the entire cost and he took possession of the vehicle on his own responsibility/ risk. Hence the complainants have failed to establish the deficiency of service by the Respondent No1 and 2 with cogent and appulsive evidence. Hence the complainants are not entitle for any relief much less for the relief as sought. Pro contra the respondents have justified in their action in non-settlement of the claim and non-commission of deficiency of service as alleged by the complainant.
In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively and accordingly.
Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. Parties to bear their own cost.
(Dictated to steno, transcribed by her and edited by us and pronounced in the open Forum on this day on 19th day of August 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
GDB
