D.o.F:24/2/2011

D.o.O:31/5/2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                      CC.NO. 44/11

                   Dated this, the 31st   day of May 2011

PRESENT:

SRI.K.T.SIDHIQ                     : PRESIDENT

SMT.P.RAMADEVI                          : MEMBER

SMT. SMT.BEENA.K.G                     : MEMBER

Roby.A, S/o Abraham,

R/at House No.133/14,

Bandadka PO, Chengala Via,                  :  Complainant

Kasaragod

(Adv.K.Kumaran Nair, Kasaragod)

The Manager,

United India Insurance Co.Ltd,

Micro Office, Ist floor,

Hill Side Commercial Comples,               : Opposite parties

Hosangadi,Manjeshwar,Kasaragod.

(Adv.C.Damodaran, Kasaragod)

                                                             ORDER

SRI.K.T.SIDHIQ : PRESIDENT

                In nutshell the case of the complainant is as follows:

  The complainant is the owner of tourist vehicle  Mahindra Scorpio bearing Reg .No.KL13-Q/1101.  The vehicle is duly insured with  opposite party.  On 21/12/09 it involved in an accident .  In respect of the accident a complaint was registered at  Perumbavoor Police Station and it is intimated to the opposite party also.  An authorized surveyor engaged by opposite party  inspected the damaged vehicle and made a report about it.  The complainant spent more than  ` 1,10,000/-  for repair of the said vehicle.  But the surveyor estimated total loss of  ` 63406/-.  Thereafter complainant submitted the claim before the opposite party for the indemnification of the  loss  caused to the vehiclet.  But the opposite party repudiated the claim stating that at the time of accident the vehicle was used as a taxi with  private car insurance and without  a valid permit .  Hence alleging deficiency in service in repudiating the claim  the complainant filed this complaint.

2.   According to opposite party  the vehicle was insured under a private car package policy.  At the time of accident it was plying as a taxi and  suppressing the fact of  conversion of the private car to taxi w.e.f 30/11/09 and obtaining a permit w.e.f 13/1/10, he was using the vehicle for hire without a permit and without paying premium for passengers.  The complainant has violated the policy conditions, principles of good faith and Motor Vehicles Act and Rules.  As such repudiation of the claim is legal and there is no deficiency in service on their part.  If at all any loss is occurred  then the survey report is binding  regarding loss assessment.  The complaint is only experimental in nature and the claim is excessive.

3.      On the side of complainant Ext.A1 series and Ext.A2 marked.  Counsel for the opposite party produced Exts.B1 to B6 .  Both sides heard and documents perused carefully.

4.   Now the points arise for consideration  is

       1.whether there is  any deficiency in service on the part of opposite parties and

       2.If so the relief and costs?

5.     For the sake of brevity both points are discussed  together.

            Ext.A1 series are the copies of bills pertaining to the repair of the vehicle.  Ext.A2 is the copy of the surveyor’s re inspection report.  Ext.B1 is the copy of the Private Car  policy issued by the opposite party to the complainant. Ext. B2 is the copy of the RC of the vehicle KL 13Q/ 1101.  Ext.B3 is the relevant page of the RC which carries the endorsement of RTO Kasaragod regarding the class of vehicle and its fitness.  Ext,B4 is the Motor claim submitted by the complainant before opposite parties.  Ext.B5 is the copy of the permit  issued from STAT to the complainant.  Ext.B6 is the copy of the final  survey report of the surveyor.  On going  through the above documents it is clear that at the time of accident the vehicle was having a valid permit to use it as an all India taxi w.e.f 30/11/09.  So at the time of accident it was having a valid permit to use it as a transport vehicle. Another  contention of the opposite parties is  that the vehicle  was insured as a private car and hence there is violation of a policy condition.  Even if the contention of the opposite parties accepted  even then the repudiation of  claim in toto is illegal and it amounts to deficiency in service.  In view of the  decision of the

 Hon’ble Apex Court in the case of Amalendu Sahoo  Vs  Oriental Insurance Company Ltd reported in II (2010) CPJ 9 (SC). By referring to the decisions of the Hon’ble National Consumer Disputes Redressal Commission as well as the guidelines issued by the Insurance Company about the settling of non-standard claims the Hon’ble Supreme Court has held:

       “Reference in this case may be made to the decision of National Commission rendered  in the case of United India Insurance Company Limited v. Gian Singh,reported in II (2006) CPJ 83 (NC) 2006 CTJ 221 (CP) (NCDRC).  In that decision of the National Consumer disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis.  The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal, reported in IV (2008) CPJ 1 (SC)2008 (7) SCALE 351.  In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:

             “………The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.”

       In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.

       In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in II (2006) CPJ 144 (NC).  In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident.  While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about settling all such non-standard claims.  The said guidelines are set out below:

            From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached and in this case the complainant used the vehicle as taxi with a comprehensive private car package policy. Hence applying the principle enunciated  in the above judgment in this case also complainant is entitled for the settlement of his clam on non-standard basis.

12.      Relief & Cost

            As per the survey report the total cost for the indemnification of the loss is ` 63406/-  The complainant is entitled for 75% of the above amount that would be  ` 47555/-.

            In the result, complaint is allowed and opposite party is directed to pay `` 47555/- (Rupees forty seven  thousand five hundred and fifty five only) with 9% interest from the date of complaint till payment together with a cost of  `  2,000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order.

Exts:

A1 series- copies of  bills pertaining to the repair of the vehicle

A2-Copy of surveyors’ re-inspection report

B1-copy of private car policy

B2-copy of RC

B3-copy of relevant of RC

B4- copy of Motor claim submitted before the OP

B5-Copy of permit

B6-copy of final survey report.

MEMBER                                                 MEMBER                                             PRESIDENT

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