Karnataka

Bellary

CC-244/2013

MOHAMMAD - Complainant(s)

Versus

THE DIVISIONAL MANAGER,ORIENTAL INSURANCE COMPANY LTD. - Opp.Party(s)

SHRI M.LOKESH

24 Feb 2015

ORDER

FILED ON:	23-09-2013
ORDER ON:	24-02-2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

 

C.C.No.244 of 2013

 

Present :

 

 

(1)   Shri. R.Bandachar,

B.Com, LL.B.  (Spl) ……    President

(in-charge)

 

(2) Smt Mary Havila,

B.A.                       ……        Member

 

 

DATED THIS THE 24^th DAY OF FEBRUARY 2015

 

 

COMPLAINANT   By- Shri M Lokesh, Advocate, Bellary.     //VS//	Sri Mohammad, S/o Shashavali, Age: 35 years,  Owner of TATA Goods Vehicle bearing Regn. No.KA-34/4208, Resident of Gandhinagar, Bellary.
RESPONDENT       By-Shri K Subba Rao, Advocate, Bellary.	The Divisional Manager, Oriental Insurance Company Ltd., Parvathi Nagar Main road, SLV Towers, Bellary.

 

// O R D E R //

 

Per Smt Mary Havila.

 

The complainant filed the complaint against the respondent U/Sec-12 of the Consumer Protection Act 1986.

2. The complaint in brief is that the complainant is the owner of TATA goods vehicle bearing Regn. No.KA-34/4208 and was insured with the respondent’s insurance company under public package policy which was valid from 21-06-2012 to                              20-06-2013 and the IDV of the vehicle was Rs.2,70,000/-, on payment of the premium of Rs.18,858/-.  On 21-12-2012 at about 3.00 pm the complainant’s vehicle while proceeding near Torangal suddenly fell down and was totally damaged.  Immediately the complainant informed about the said incident to the respondent’s insurance company who appointed a surveyor to assess the damage caused to the vehicle. The complainant got repaired the said vehicle by spending Rs.2,00,000/-. Thereafter, he made claim with the respondent’s insurance company along with required documents.  After receipt of the same, the respondent issued a letter stating that the vehicle was not having Fitness Certificate as on the date of the accident and repudiated the claim of the complainant.  The complainant’s said vehicle was having Fitness Certificate from the date of its purchase till 13-12-2012 being renewed regularly. The complainant has paid renewal fee of Rs.500/- on 30-11-2012 to the RTO earlier to expiry of the Fitness Certificate period. Hence, it is not violation of the terms and condition of the policy. The policy schedule issued by the respondents did not disclose the alleged violation of the terms and conditions of the policy. Hence, repudiation made by the respondent is illegal which amounts to deficiency in service, due to which the complainant was put to hardship and mental agony. Therefore, the complaint seeking reliefs as prayed for.

 

3.  The respondent filed the written version stating that the complaint is false on facts, bad in law and is liable to be dismissed in limine.  All the allegations made in the complaint, except those which are expressly admitted, are denied.  The allegation made in the complaint that the insured declared value of the vehicle was Rs.2,70,000/- and premium amount was Rs.18,858/-, is not true.  The policy issued is subject to the terms and conditions.  The allegation made in the complaint that on                      21-12-2012 the complainant’s vehicle while proceeding near Torangal at about 3.00 pm suddenly fell down and it was totally damaged, is false.  In case of any accident, the permit holder shall report it to the Police Station, RTA and the concerned insurance company.  In this case, the complainant has not made any report to the Police and RTA regarding the alleged accident and it is clear violation of the policy and permit conditions.  In case of registration only it would be known whether the accident is genuine or not and whether driver is involved or not. The said vehicle was not inspected by the motor vehicle authorities and no IMV report is produced by the complainant regarding the alleged accident. The allegations made in the complaint that the complainant invested a sum of Rs.2,00,000/- towards expenses for the damaged vehicle and submitted the original bills to the respondent’s insurance company without keeping Xerox copies,  are false.  The allegations made in the complaint that the vehicle is having Fitness Certificate from the date of purchase till 13-12-2012 and it was renewed regularly and is not violation of any terms and conditions and therefore, repudiation is illegal which amounts to deficiency in service and he paid renewal fee etc., are all false.  The complainant suppressed the material facts.  The Fitness Certificate of the vehicle expired on 13-12-2012 and it was renewed on 15-01-2013 and the date of the alleged accident was on 21-12-2012. Hence, it is clear from the copies of the vehicle documents that the vehicle was not having Fitness Certificate on the date of the alleged accident and it is a violation of terms and conditions of the policy.  The use of the vehicle must be as per the permit conditions. On the date of the alleged accident, the complainant’s vehicle was not having Fitness Certificate to use on road and the said vehicle shall not be deemed to be validly registered. The respondent clearly explained the grounds of repudiation through letter dated: 16-09-2013. The owner of the vehicle was required to produce the vehicle for inspection before expiry of the Fitness Certificate and obtain fresh certificate of Fitness under rules framed. But on expiry of the Fitness Certificate, the certificate of registration issued under the Act will not be valid and the owner of such type of vehicle cannot use the same at public place or on road.  Similarly cash payment to the RTA does not create any license to use the vehicle on road.  The net loss assessed by the surveyor is Rs.74,300/- and settlement of the claim is based on the surveyor’s report subject to the terms and conditions of the policy.  As the insured has violated the terms and conditions of the policy the claim repudiated was fair, clear and proper. The complainant has made baseless allegations.  There was no cause of action to file the complaint. Therefore, the complainant is not entitled for reliefs as prayed for. Hence, the complaint be dismissed with costs, in the interest of justice.

4.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and got marked 5 documents as Ex.P.1 to Ex.P.5. The respondent as his evidence, filed one affidavit, which is marked as R.W.1 and got marked 07 documents as Ex.R.1 to Ex.R.7.

5.    The written argument is filed by the respondent and heard arguments on both sides.

6.  The points that arise for our consideration are;

 

1.	Whether the complainant has proved deficiency in service on the part of the respondent towards him, as alleged in the complaint?
2.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
3.	What order?

 

 

 

 

 

 

 

 

 

7.  The findings on the above points are as under.

 

Point No.1:	In the affirmative.
Point No.2:	Partly in the affirmative.
Point No.3:	As per final order.

 

// R  E A S O N S //

Point No.1 : -

8.  There is no dispute that the complainant’s vehicle bearing Regn.No.KA-34/4208 was insured with the respondent’s insurance company under public package policy which was valid from 21-06-2012 to 20-06-2013 and the IDV of the vehicle was Rs.2,70,000/- on payment of the premium of Rs.18,858/-. There is also no dispute that on 21-12-2012 at about 3.00 pm the complainant’s vehicle while proceeding near Torangal suddenly fell down and was totally damaged.

9.  It is the case of the complainant that immediately after the accident he informed about the same to the respondent’s insurance company who appointed a surveyor to assess the damage caused to the vehicle and he got repaired the said vehicle by spending Rs.2,00,000/- and thereafter, he made claim with the respondent’s insurance company along with required documents, but  the respondent issued a letter stating that the vehicle was not having Fitness Certificate as on the date of the accident and repudiated the claim of the complainant.

10.  The respondent has contended that on the date of the alleged accident, the complainant’s vehicle was not having Fitness Certificate to use on road and the said vehicle shall not be deemed to be validly registered and thereby the complainant has violated the terms and conditions of the policy.  It is further contended that the net loss assessed by the surveyor is Rs.74,300/- and settlement of the claim is based on the surveyor’s report subject to the terms and conditions of the policy.

11. To prove their contention that the complainant’s vehicle was not having Fitness Certificate to use on road as on the date of the alleged accident, the respondent got examined one                  A Krishnamurthy, Motor Vehicle Inspector, RTO, Bellary as Cw-1. The respondent has also contended that the concerned RTO has renewed the fitness certificate of the vehicle in question by not following the proper methods.  However, the said contention of the respondent cannot be accepted, in view of the document Ex.P.4 which is the copy of challan issued by RTO, Bellary for having received Rs.500/- towards renewal fee of FC of the vehicle of the complainant. On perusal of Ex.P.4, the complainant paid Rs.500/- towards fee for renewal of the FC of his vehicle on 30-11-2012 itself whereas the accident occurred on 21-12-2012. Therefore, the complainant had got fitness certificate to use the said vehicle on road as on the date of the alleged accident.  Hence, the evidence of Cw-1 is of very little help to the respondent’s case.

12.   However, the complainant’s counsel contended that the claim cannot be repudiated on the ground that the vehicle was not having fitness certificate as on the date of the accident as the same being not a breach of terms and conditions of the policy, though it could be a statuary breach. In support of this contention the counsel for the complainant relied on the decision reported in 2008 (III) CPR 128.  In the said decision, the Hon’ble Punjab State Consumer Disputes Redressal Commission relying on the decision of the Hon’ble National Commission rendered in  G.Kothainachiar V/s United India Insurance Co. and others reported in (IV 2007) CPJ (NC) wherein the Hon’ble National Commission observed thus:

 

The Insurance Company cannot repudiate the claim when there is no breach of the terms of the insurance policy because insurance is a matter of contract between the parties.  It was held that the absence of fitness certificate may be a violation of statutory provisions of the Motor Vehicles Act 1988 but it was not violative of any terms and condition of the insurance policy.

 

13. So as per the above decision, the respondent’s insurance company cannot repudiate the claim of the complainant  merely on the basis that the complainant’s vehicle was not holding valid fitness certificate as on the date of accident.  The  facts of the present case and the facts of the case relied on by the respondent’s counsel reported in 2014 SAR (Civil) 1205 are different and as such the said decision is not applicable to the case at hand.

14.  Considering all the aspects discussed above, we are of the opinion that the repudiation made by the respondent’s insurance company of the claim made by the complainant is improper and illegal, which amounts to deficiency in service on his part.  Accordingly this point is answered in the affirmative.

Point No.2 :-

15.  The complainant has claimed Rs.2,00,000/-  towards damages caused to his vehicle in the alleged accident.  To prove the said claim he has produced the copy of cash bill issued by the concerned repairer, which is marked as Ex.P.5.  The said claim of the complainant cannot be accepted in view of the surveyor’s report Ex.R.6.   As per Ex.R.6, the net loss assessed by the surveyor of the respondent’s company is Rs.74,300/-. We have to accept the report of the surveyor as significant evidence, as per the decisions reported in  I (2015) CPJ 255 (NC).  Therefore, the complainant is entitled for Rs.74,300/- towards the damages caused to his vehicle in the alleged accident with interest. Besides this, the complainant is entitled for compensation towards deficiency in service as well as cost of the proceedings, which shall be as per final order.  Accordingly, this point is answered partly in the affirmative.

Point No.3: -

16. In view of the discussions made under Point No.1 and 2, we pass the following;

 

//ORDER//

The complaint filed by the complainant is partly allowed.

The complainant is entitled to recover sum of Rs.74,300/- with interest @ 9% p.a. from the date of the complaint 23/09/2013 till its realization, from the respondent.

The complainant is entitled to recover sum of   Rs.3,000/- towards compensation for deficiency in service, from the respondent.

The complainant is also entitled to recover sum of Rs.2,000/- towards cost of the proceedings, from the respondent.

The respondent is liable to pay the above said amounts to the complainant within two months from the date of this order.

Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this  24th day of February 2015)

 

 

 

 

	(R.BANDACHAR) PRESIDENT.
	(MARY HAVILA) MEMBER

 

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