BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 13th DAY OF NOVEMBER, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
APPEAL No.420/2020
Bodimala Venkatanarayana Reddy,
S/o Narayana Reddy,
Aged about 38 years,
Occupation Lorry Business,
R/O 11-325-A2, Aravind Nagar,
Anantapur Now at Bengaluru
... Appellant/s
Through his GPA
Sangamesh Murgad
S/o Baburao Murgad,
Age 40, R/o 001,
Sujana Homes, Gottigere,
BG Road, Bengaluru
(By Sri.K.Manohara Chari, Advocate)
-V/s-
1. The General Manager,
Tata AIG General Insurance
Company Ltd., Registered office:
Peninsula Business Park, … Respondent/s
Tower-A, 15th Floor,
G.K. Marg, Lower Parel,
Mumbai 400 013
2. The Manager,
Tata AIG General Insurance
Company Ltd., 2nd Floor, … Respondent/s
JP & Devi Jambukeswar Arcade,
No.69, Millers Road, Vasantha Nagar,
Bengaluru 560 052.
(Respondent Nos.1&2-By Sri.Prashanth T.Pandit, Advocate)
O R D E R
BY SMT. SUNITA C.BAGEWADI, MEMBER
This appeal is filed by the appellant/complainant being aggrieved by the order dated 18.02.2020 passed by the 1st Addl. District Consumer Commission, Bengaluru in CC.No.586/2018 and prays to set-aside the order and to allow the appeal in the interest of justice and equity.
2. The brief facts of the complaint are as under:-
The complainant purchased TIPPER vehicle by obtaining loan of Rs.20,00,000/- from OP.No.1 to be repayable in 35 EMI’s of Rs.73,150/-. The same was registered with RTO at Chikkaballapur on 05.08.2015 and the number given was KA 40 – A 2919. The RC has also been issued to his name. It is further contended that on 17.09.2017 at about 7 p.m near Cheldiganipalli village, Ramakuppa Mandal, Malur – V-Kota Road, the vehicle met with an accident due to which it got fully damaged as it fell into 10 feet depth and the same could not be put on road and it is a total loss. One person working along with the driver in the said vehicle also died in the said accident. Immediately police and the OPs were intimated and informed over telephone and an insurance claim was also made for the insured value. The insurance was in force at the time of accident. However, OP rejected the indemnification of the policy on the ground of breach of conditions, such as no valid fitness certificate and permit. The Opposite Party appointed surveyor to survey the loss who assessed the loss after inspection and found that there is no mechanical defect in the vehicle at the time of accident. In view of the same, the repudiation on the part of OP amounts to deficiency in service and hence the complaint.
3. Upon the service of notice, Opposite Parties have appeared before the Forum and filed the version contending that the complaint is not maintainable either in law or in facts; it is frivolous, vexatious and liable to be dismissed by imposing punitive cost. After obtaining the insurance from them, the complainant has violated the terms and conditions under which the policy was issued. He also violated the provisions of Motor Vehicles Act 1988, in particular, Section 56, 66, 59 and 60 of the Motor Vehicles Act.
It is further contended that, the accident and the claim was reported to it on 20.09.2017 and they sent a surveyor to survey the spot as per IRDA Rules on 21.09.2017. During the course of inspection and on verification, it was found that the said tipper was running on the road out of the permit area on the date of accident i.e. on 17.09.2017. No permit was obtained by the complainant to take the vehicle to a neighboring state without obtaining necessary permission. Further there is no valid fitness certificate at the time of accident which is violative of the provisions of Sub-Section 3 Section 66 and Section 56 of the Motor Vehicles Act and prayed to dismiss the complaint under Section 26 of the Consumer Protection Act.
4. After trial, the District Consumer Commission has dismissed the complaint with cost.
5. Being aggrieved by the said order, the appellant/complainant has preferred this appeal on various grounds.
6. Heard the arguments.
7. Perused the appeal memo, certified copy of the order passed by the District Consumer Commission, we noticed that, it is not in dispute that the appellant had purchased TIPPER lorry bearing Reg. No.KA-40-A-2919 and it has been insured with the Opposite Party for a sum of Rs.19,80,803/-being the IDV value of the vehicle. It is also not in dispute that, the said vehicle met with an accident fell into 10 feet depth on 17.09.2017 at about 7.00 p.m. near Cheldiganipalli village, Ramakuppa Mandal, Malur-V.Kota Road fully damaged and the same could not be put on road and it is a total loss. It is also not in dispute that, at the time of accident, the policy was in force. The allegations of the appellant is that, after accident he made the claim for insurance/respondent Company, however, the respondent/ insurance company repudiated the claim on the ground that the breach of conditions i.e. the vehicle does not have fitness certificate and valid permit.
8. Per-contra, the respondents contended that this appellant has violated the terms and conditions under which the policy was issued and violated the provisions of Motor Vehicles Act, 1988 and also contended that after information they have appointed a surveyor to survey the spot and during the survey, the surveyor found that the said tipper was running on the road out of permit area on the date of accident and also there was no valid certificate, hence the appellant has violated the terms and conditions of the policy. Hence they have repudiated the claim.
9. Perused the order passed by the District Commission, we noticed that, the District Commission after trial framed two points/issues, one is whether the complainant has proved deficiency in service on the part of the Opposite Parties? and the second is whether the complainant is entitled to the relief prayed for in the complaint? and answered the first point/issue as affirmative and the second point/issue as negative.
10. The District Commission relied on the judgment of Hon’ble Supreme Court of India in 2016 III SCC 100 and AIR 2015 KERALA 131 – Full bench held that, it is bounden duty of the insurer to prove that, the accident has taken place only due to the violation of the conditions of the policy. Hence in the present case, the respondents have not placed any evidence and hence the District Commission answered the point/issue No.1 in the affirmative. We agreed with the order passed by the District Commission, because the vehicle was purchased by the appellant is on 5-8-2015 and accident was occurred on 17-4-2017. In case of private vehicle, the fitness certificate is valid for 15 years and thereafter to be renewed for every five years and in case of commercial vehicle the fitness certificate is for two years and subsequently to be renewed every year and if there was no fitness certificate renewal as per the MV Act, there was provision to impose penalty.
11. Now coming to the second point/issue, we noticed that, the District Commission held that, on the date of accident, the appellant has not owner of the said vehicle and insurable interest is not vested with him. The appellant was suppressed the materials regarding the sale of the said vehicle in favour of Mr.Sangamesh Muragad and also the District Commission held that, the counsel of the appellant has not brought to the notice any decisions contrary to the same either by the Hon’ble Supreme Court of India or the Hon’ble National Consumer Commission and held the repudiation of claim of the appellant is just and proper.
12. Perused the documents, we noticed that, the appellant has purchased the vehicle and registered on 5.8.2015. General Power of Attorney executed in favour of Sri.Sangamesh Murgad on 31-8-2015 and authorizes to him to act on his behalf. The appellant has purchased the vehicle by obtaining the loan of Rs. 20.00 lakhs from TATA Motors repayable in 35 EMIs of Rs.73,150/- and the said loan was closed by the appellant in 2018 as per the documents. The District Commission in their order held that the complainant has purchased a vehicle on 14-7-2015 and agreement in favour of Sangamesh Muragad executed on 5-3-2015 by receiving Rs.5,75,000/- and handing over the possession along with required document. Hence on the date of accident, the complainant/appellant is not the owner of vehicle and he has no insurable interest. However, if the vehicle was purchased through hire purchase agreement, the appellant cannot transfer the ownership of the vehicle in favaour of the 3rd person until the loan amount is fully repaid. The appellant cannot sell the vehicle without permission/consent of the financier. Moreover whenever the property is subject to future terms and conditions and its transfer is based on future date, it is referred as agreement to sell. In the present case, the respondents have not produced any documents that the appellant has delivered the actual possession of the said vehicle to the Mr.Sangamesh Muragad through registration. The registration was on the name of appellant valid upto 2017 the permit was on the name of appellant valid upto 2020 and policy was also in the name of the appellant which was in force at the time of accident. There is no any document on record to show that, Mr.Sangamesh Muragad is the actual owner of the said vehicle at the time of accident. Hence, though the vehicle is in possession of Mr.Sangamesh Muragad he cannot said to be the owner. Person in whose name the vehicle stands registered on the date of accident to be treated as the owner of the vehicle. Mere letter dated 5.10.2016 in complaint No.1181/2018 which is issued by the respondent/TATA ANG General Insurance Company to Sangamesh Muragad which is not sufficient to prove that the ownership of the vehicle was with Sangamesh Muragad and he was the owner of the said vehicle at the time of accident.
13. Regarding the insurable interest, the appellant has produced some citations such as 1) AIR 2020 Supreme Court 3149, 2) I (2022) CPJ 52 (Del), 3) I (2020) CPJ 152 (Del), 4) II (2015) CPJ 646 (NC). We relied upon the said judgments and considering the facts, discussion made here, we are of the opinion that, the order passed by the District Commission is not in accordance with law; hence it is liable to be set aside. Hence, we proceed to pass the following:-
O R D E R
The appeal filed by appellant is hereby allowed.
The impugned order 18.2.2020 passed by the 1st Addl. District Consumer Disputes Redressal Commission, Bengaluru in CC.No.586/2018 is set-aside. Consequently, the complaint filed by the complainant is allowed.
The Opposite Parties are directed to pay an amount of Rs.19,80,803/-, the IDV value of the vehicle to the complainant within 45 days from the date of this order.
Further, the Opposite Parties are directed to pay compensation of Rs.1.00 lakh and litigation expenses of Rs.25,000/- to the complainant.
The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to complainant.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Lady Member Judicial Member
