BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.42/2014
 

Date: 11^th day of January, 2017

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

03) Shri.Shravanakumar.D.Kadi                               Member…

                        M.Com.LL.B.  (Spl)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) seeking direction OPs to issue the DD of insurance amount with acquired interest their upon till date, Rs.50,000/- towards mental agony, Rs.10,000/- towards court cost of this litigation any other relief as the Forum deems fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

On 30.08.2010, the above complainant has purchased one TATA ACE four wheeler vehicle and its registration No. is KA-29/A-2127 since the complainant has availed a vehicle loan from Indusind Bank Station Road, Bagalkot and the vehicle is hypothecated to the said Bank.

3.      That the vehicle insurance coverage under the policy bearing No.3368/00389100/000/2 for Rs.2,42,876/- only of chola M/s Insurance Company Pvt. Ltd., Since the vehicle financed by Indusind Bank, the said chola M/s Insurance Company is being tied up with the above bank and the yearly premium amount is being collected by the vehicle owner and remitted to chola M/s Madaras through Indusind Bank Bagalkot Branch and the insurance coverage is regular till day and it is in force. That due to bad luck the said vehicle met with an accident on 08.11.2012 near Hunagund and it was damaged completely. That suddenly it was reported to Hunagund Police Station and the police authorities filed FIR and filed the case of accident at Hon’ble JMFC Hunagund, the driver was punished by the Hon’ble Court by imposing the fine of Rs.2,200/- on the driver. That the vehicle covers under the insurance policy bearing No.3368/00389100/000/ 2 and at the time of accident its coverage was upto 15.08.2013 midnight. After the accident, it was informed to Chola M/s Insurance Company and the surveyor from Bijapur Branch surveyed the damaged vehicle and had not given the report copy to the complainant till today. On 09.11.2012, the Inspector of R.T.O. Bagalkot had inspected the said vehicle given the report about the damages of the vehicle. That on the date of accident, the driver of the vehicle Sri.Hanamantappa Shamarao Jadhav has possessed the valid driving licences upto 2017.

4.     Even after the repeated requests to the insurance company for releasing the assured amount they never cared about releasing the insurance amount to the owner of the vehicle and he visited the Madras Office and OP No.2’s Office severally. But they were assuring that, they will send cheque at the earliest. After waiting for more time, the complainant was forced to leave the damaged vehicle at M/s Patil Trucks Pvt. Ltd., Bijapur and got damaged vehicle and got the damaged vehicle repaired by paying in a sum of Rs.1,64,485/-. That the complainant was being fedup with the attitudes of the Ops have sent one legal notice to OP No.1 on 27.03.2013 through Sri.Sunilkumar H Daddi, Advocate and on 22.11.2013 to both the Ops through Sri.B.K.Patil, Advocate, Bagalkot. But till today the Ops neither responded nor released the insurance amount to the complainant this amounts to deficiency in service as per Sec. 2(g) for which the Hon’ble Forum be pleased to order the damages of Rs.50,000/- to the complainant from the Ops. Hence, the complainant has filed this Complaint.        

5.      After receipt of notice, OPs have appeared through their counsel and filed Objections.  

The Objection of OP No.1 are as follows:

 OP No.1 alleged that the contents, averments, allegations and assertions made in the Complaint are all false, baseless, frivolous, and vexatious hence the same are specifically denied by this OP. The Complaint filed by the complainant in the present form is not maintainable in the eyes of law and hence the same deserve to be dismissed in limine. The averments made in Para No1 to 14 of the Complaint are partly correct and partly incorrect. It is fact that, the complainant is the owner of TATA ACE 4 wheeler bearing Register No.KA-29/A-2127 and it may be fact that the sad vehicle was hypothecated to OP No.2. It is fact that the above said vehicle is insured with OP No.1 under its policy No.3368/00389100/000/02 which is valid from 16.08.2012 to 15.08.2013 but the liability of Insurance Company is in terms of policy conditions and also provisions of M.V. Act. It is false to alleged that the said vehicle was completely damaged It may be fact that, the same was reported to the Hunagund P.S. and Hon’ble JMFC Hunagund has convicted the drive of vehicle who has paid fine of Rs.2,200/- before JMFC Hunagund.   

6.      OP submits that after receipt intimation regarding accident to the insured vehicle, the OP No.1 has appointed a surveyor to assess the damages caused to the vehicle bearing No.KA-29A-2127. Accordingly, the surveyor namely Nagappagouda S Patil has inspected the damaged vehicle and noted the damaged parts to the above said vehicle and also verified the labour charges and also value of the spare parts to the said vehicle According to the said surveyor has submitted final surveyor report on 02.04.2014. As per the final surveyor report, the net liability of insurer is assessed at Rs.13,570.15 it includes labour charges and parts applicable to the damaged vehicle.. But the liability of the insurance company is subject to the policy conditions and provisions of M.V. Act and M.V Rules.

7.      It is submitted that as per the fitness certificate issued to the complainant by R.T.O. Bagalkot, the fitness certificate was valid upto 29.08.2012. Where as the date of accident is 08.11.2012. The complainant did not renew fitness certificate till the date of accident after its expiry period. But it is I violation of provisions of MV. Act. For that this OP No1 is not liable to pay compensation to the complainant. Accordingly, the OP No.1 has repudiated the claim of the complainant on 1702.2013. The repudiation is made as per the rules framed under Central Motor Vehicles Rules, 1989 Form No.38 Rule 62 (1) regarding certificate of fitness. By repudiating to deficiency in service, complainant is not entitled for any claim made in his Complaint. The prayer column made in the Complaint is denied by this OP in toto.

8.      OP No.1 specifically submits that by looking to all the provisions of M.V. Act, Central Motor Vehicles Rules 1989 Form No.38 Rule 62 (1) regarding certificate of fitness and policy conditions and the surveyor’s report, the OP No.1 has rightly repudiated the O.D. claim of the complainant. Since the complainant has violated all the above said provisions. Therefore, there is no deficiency of service on the part of the OP No.1 in repudiating the claim of the complainant in this case. Hence the Complaint may be dismissed with cost in the interest.    

The Objection of OP No.2 are as follows:

9.      OP No.2 alleged that the Complaint is suffering from misjoinder of party. IN the present Complaint OP No2 is neither a necessary party nor formal party and also no claim has been made against OP No.2. Only to harass OP No.2 and with an intention to put the Complaint within the jurisdiction of this Hon’ble Forum for his convenience, the complainant made OP NO.2 as a party in this Complaint.

10.    That the present Complaint is frivolous and vexatious and deserves to be dismissed u/s 26 of the Act. That the present Complaint is not supported by an affidavit and the same is put to strict proof with respect to OP No.2. That the present case is purely insurance claim and OP No.2 is no wher concerned to this deficiency for repudiation of insurance claim, since OP No.2 is the financial institution rather than insurance company is not liable for the repudiation of insurance claim for the best reason known to the complainant and the dispute involved in the Complaint is not a consumer dispute against OP No.2 and it does not fall within the ambit of the provisions of the C.P. Act, 1986. It is specifically denied that due to said accident the complainant’s vehicle suffered damage. Further, it is denied that the complainant has paid Rs.1,64,485/- for repair of the said vehicle.

11.    OP No.2 further alleged that it is true that the loan has been raised by the complainant from OP NO2 at the time of purchasing the said vehicle and the Insurance Company never denied the payment of the premium. Further, loan transaction of said vehicle or premium amount paid through OP No.2 will not become the grounds for this Complaint against OP No.2. So the question of deficiency in service on the part of OP NO2 does not arise as OP No.2j’s duty is only financial one i.e. financing for purchase, it doesn’t include insurance. The matter of claiming Insurance is purely a matter in between complainant and the Insurance Company i.e. OP No.1 and also no cause of action to file the present Complaint arose on 27.03.2013 or 22.11.2013 or at any time against this OP No.2. No cause of action for this Complaint has been arisen within the jurisdiction of this Forum. Premium amount paid through OP NO.2 or Loan transaction of said vehicle are no grounds for jurisdiction of Forum. Hence, this Hon’ble Forum has no jurisdiction to try and decide this Complaint. Hence, it is humbly prayed that this Hon’ble Forum be pleased to dismiss the Complaint against OP No.2 with compensatory cost of Rs.10,000/-.

12.    The complainant tendered affidavit evidence and placed following documents of complainant which are marked as EX A-1 to A-22. OP No.1 filed affidavit evidence and filed one document which is Final Survey Report by N.S.Patil, Surveyor. OP No.2 filed affidavit evidence in support of his case. Complainant and OP No.2 filed Written Arguments.

13.    After considering the material placed on record, the following points that arise for our consideration are:-

: REASONS :

          14.    POINT No.1 AND 2 :- As these issues are interconnected each other hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

          15.    On perusal of the pleadings, evidence coupled with the documents of respective points on record it is the case of the complainant alleging deficiency in service in settling the Accident claim Insurance of the vehicle. There is no dispute regarding that the complainant had availed a vehicle Insurance Policy with its policy No.3368/00389100/ 000/02 which is valid from 16/8/2012 to 15/8/2013. There is also no dispute that the premium towards the policy is not paid. On 8/11/2012 the said vehicle met with an accident near Hungund and after all necessary formalities, the complainant approached the O.P.No.1 and claimed for the amount of the damaged vehicle. The complainant submitted the claim form and necessary documents to O.P.No.1. But till today the O.P.No.1 has not settled the claim. Hence the complainant alleges deficiency in service.

          16.    To prove the case of the complainant the PW-1 has reiterated the complaint averments in his examination in chief and in support of his case he has produced the documents pertains to the policy bond. The said policy bond is marked as EX. A-1. EX.A-1 clearly reads that the policy is in the name of the complainant and in the policy bond all the details of the policy and its premium is mentioned. He has further averred that at the time of the accident the driver of the vehicle had all the necessary documents like valid driving licence and to substantiate the same. The complainant has produced the driving licence of the driver by name Hanamanthappa S. Jadhav and it is marked as EX.A-4.
Ex-A-4 clearly reveals that the driving licence has its validity upto 21/12/2027.  PW-1 further averred that all the necessary documents were produced to the O.P.No.1 at the time of policy claim.

          17.    Further with respect to points No.1, the RW-1 who is the O.P.No.1 has deposed as per the specific defence set up in their written version that after receipt of the intimation regarding the accident to the insured vehicle. The O.P.1 had appointed a Surveyor to assess the damages caused to the vehicle bearing No. KA-29 A-2127. Accordingly the Surveyor inspected the damaged vehicle and submitted the final survey report and the net liability of Insurer is assessed at Rs.13,570.15.

          18.    PW-1 further averred and deposed that as per the fitness certificate issued to the complainant by RTO Bagalkot, the fitness certificate was valid upto 29/08/2012, whereas the date of the accident is 8/11/2012.  The said fitness certificate is produced by the complainant and it is marked as Ex.A18.  On perusal of Ex.A-18, the fitness certificate it clearly reveals that it was valid upto 29/8/2012 and at the time of the accident, the fitness certificate was not having any validity. From this it is crystal clear that the complainant did not renew fitness certificate at the date of the accident after its expiry period. So Accordingly the O.P.No.1 has repudiated the claim of the complainant on 17/2/2013 and the repudiation is made regarding certificate of fitness. But to disprove the said entries, the fitness certificate of the complainant has not produced any other cogent and corroborate evidence except putting the suggestion that they have not settled the Insurance claim of the vehicle and the said suggestion have been categorically denied by the opponent. Hence the complainant was repudiated by the opponent on the ground that on the date of accident, the vehicle was not having valid fitness certificate for plying the vehicle.  The learned counsel for the O.P.No.1 stated that in accordance with Section 53 of the Act, the vehicle was required to have a fitness certificate required for plying the Commercial vehicle in accordance with Section 66 of the Act the claim had therefore, been rightly repudiated by the O.P.No.1.

19.    In support of his arguments, the learned counsel for the opponent has dream attention to a Judgement passed by the Hon’ble National Commission, New Delhi in Rev. Petition No. 969 of 2011.

          The facts and circumstance of the case in hand and the fact and circumstances of the said citation are all same.

          20.    The complainant has also relied on the citation report in Supreme Court of India, Civil Appeal No.2703 of 2010 (Amalendu Sahoo – Appellant V/s Oriental Insurance Company Ltd.,), 2015 CJ 491 (NC) in Revision Petition No.3740 of 2012 (National Insurance Company Ltd., V/s Princy Roy) and 2014 CJ 506 (N.C.) in Revision Petition No.365 of 2013 (New India Assurance Company Ltd and Another V/s Kumar Gaurav and Others).

          The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different.

          21.    It is quite evidence that the vehicle did not have any fitness certificate on the date of the accident. In a catena of Judgements made by the Hon’ble Apex Courts and the Hon’ble Commission has been held from time to time that the claims are not payable if there is no valid fitness certificate for the said vehicle. It is quite evidence that there is violation of the Statutory provision of law contained in the Motor Vehicles Act on point of the complainant. In view of citation laid down in 2014 AAC 1251 (KAR) (Nazir Ahmed V/s Chandrashekhargouda and Another. The important points are as hereunder:

             “Vehicle was not having valid Fitness Certificate at the time of accident, Insurer not liable to pay compensation.”  

The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in II (2016) CPJ 53 (NC) New India Assurance Co. Ltd., V/s Meenakshi Jarial. The important points are as hereunder:

“Consumer Protection Act, 1986 – Sections 2 (1) (g) 21 (b) – Motor Vehicles Act, 1988 – Sections 39, 53, 66, 192 – Insurance – Accident of vehicle – Route permit and fitness certificate – Absence – Violation of policy conditions – Claim repudiated – Alleged deficiency in service – District Forum allowed complaint – State Commission modified order – Hence revision – Vehicle did not have any registration, neither it had any route permit nor fitness certificate on date of accident – Violation of statutory provisions of law contained in MV Act on part of complainant – Claim cannot be allowed even to limited extent – Repudiation justified.”

          Relying upon the Judgement refused it is very clear that there is no justification for allowing the complaint and hence the claim cannot be allowed even to a limited extent.  On the contrary as per the oral evidence coupled with documentary evidence, the complainant has failed to prove the deficiency in service on part of the opponent No.1 in settling the insured vehicle claim amount and the said fact has been clearly discloses in Ex.A-18 which is the fitness certificate which have been already discussed supra. Hence in the light of above observation the complainant failed to prove deficiency in service on settling the insured vehicle claim amount. Hence in the light of above observation we constrained to held point No.1 and 2 in the Negative.

          22.    POINT NO.3:  Hence in the result we proceed to pass the following:

: ORDER :

1. The complainant filed by the complaint is hereby dismissed.
2. No order as to cost

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 11^th day of January, 2017)