Karnataka

Belgaum

CC/423/2014

Kallappa S Bacholkar - Complainant(s)

Versus

The Manager of New India Assurance Co-Ltd - Opp.Party(s)

P.N.Balrkundri

12 Feb 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

: ORDER :

          The complainant has filed complaint against Opponent U/s. 12 of C.P. Act alleging deficiency in service for repudiation of claim in respect of paying damages caused to the vehicle bearing registration No.K.A.22/A-3411 met with accident

          2) Opponent has appeared through his counsel and has filed his written version has denied the deficiency in service on justification on the grounds. The vehicle involved in the accident being Goods vehicle, the driver of the said vehicle allowed 4 unauthorized passengers were being carried although the seating capacity of the said vehicle is only 2+1. The complainant violated of the provision of the M.V. Act and permit and the insurance policy. Hence prays for dismissal the complaint.

          3) In support of the claim of the complainant, complainant has filed his affidavit by way of evidence and opponent has filed his affidavit and produced some documents by the complainant.

          4) We have heard the arguments and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the opponent and entitled to the reliefs sought?

          6) Our finding on the point is partly in Negative, for the following reasons.

:: REASONS ::

          7) On perusal contents of the complaint, the complainant has alleged in his complaint that he had purchased the Bajaj Goods Tempo for his avocation bearing registration No.KA-22 / A-3411. The complainant has taken up the package policy from opponent for his goods vehicle and thus opponent has provided the policy to the complainant which is bearing No.671100-31-07-00003006 having its validity from 31/10/2007 to 30/10/2008 of the said vehicle to the indemnify for the losses in case of accident.  The complainant further alleged that said vehicle was met with an accident on 27/8/2008 at Maratha Mandals Degree College Khanapur on N.H.4 at about 11-00 P.M. and after the accident Khanapur police registered the case under Khanapur Police Station Crime No.251/2008 u/s. 279, 388, 304A and of I.P.C. and 134 & 187 of M.V. Act, in the said accident the vehicle was damaged to the maximum extent. After the accident the complainant informed to the opponent office by filing the claim form for getting the damages on 3/10/2008. The opponent had appointed office Surveyor to make the assessment of damages of the vehicle of the complainant. The complainant was asked to get repairs of the said vehicle and produce the bills before the office of the opponent for the grant of the damages caused in the accident. Accordingly the complainant has got repaired vehicle and produced the bills before the office of opponent on 01/07/2009 but the office has spent about 1 and ½ years time and later on told the complainant to go to the court for getting damages to the complainant. The complainant has claimed vehicle repairs bills amount to the extent of Rs.1,83,078/- and travelling expenses of Rs.5,000/- and total amount of Rs.1,88,078/- from the opponent along with the interest at 18% from the date of accident till realization of entire amount.

          8) The opponent has filed his objection and admitted in his objection that vehicle bearing No.KA-22/A-3411 insured with the opponent met with an accident on 27/8/2008 at given place and that complainant lodged a claim with opponent in respect of the damages caused to the said vehicle. Further contended that after submitting the claim petition opponent engaged the services of the qualified independent and licensed surveyor to assess the exact loss sustained by the owner of the vehicle due to accident. The opponent engaged the service of one Sri. C.S.V. Acharya, a licensed surveyor to conduct the spot survey of the said vehicle. After receiving the information of the said accident the said surveyor visited the sport and noted down all the damages caused to the vehicle. Submitted is report on 2/9/2008. Thereafter opponent has engaged the service of Shri. Suresh S. Gull, licensed surveyor to conduct the Final Survey and submitted his Motor Final survey report dated 14/2/2009 and re-inspection report dated 13/5/2009. Thereafter the said Sri. Suresh S. Gull has submitted scrutiny report dated 6/7/2009, assessing the net liability of the opponent Rs.66,247/-. Hence complainant would have received an amount of Rs.66,247/- from the opponent after submitting salvage, provided there was no violation of any of the terms and conditions of the Insurance Policy. The opponent further contended that the complainant violated conditions of the insurance policy and hence he is not entitle for any amount under the policy. On perusal contents of the complaint filed by One Vijay Ananth Kumbar to the police that at the time of alleged accident along with him, 3 other persons were travelling in the said vehicle and in the accident one person has died and the other sustained injuries. Advocate for opponent argued that it amounts to violation of the policy terms and conditions. Hence it is submitted that Carrying of 4 passenger in the vehicle registered as Goods Carrying Public Carrier is a clear violation of the provisions of M.V. Act. Hence the complainant is not entitled any amount for damages caused to the vehicle. The opponent had no alternative that to repudiate the claim of the complainant.

9) On perusal contents of the complaint and affidavit filed by the complainant it is admitted fact that vehicle bearing No.KA 22/A-3411 insured with the opponent which was met accident on 27/8/2008 and after the accident the complainant lodged the claim with the opponent in respect of damages caused to the said vehicle. On perusal documents produced by the complainant as well as opponent accident took place on NH 4A near Maratha Mandals degree College in the said accident vehicle was damaged. Further the opponent has taken contentions that at the time of the accident Mr. Ganesh M Bekwadkar was driving vehicle of the insured. According to them 3 others person were travelling in the insured vehicle excluding the driver. The names of the 3 persons are; 1) Mr. Vijay Ananth Kumar R/o. Ganebail Tal: Khanapur Dist. Belgaum. 2) Mr. Gyaneshwar Shrikant Bhat R/o. Muggewadi Tal: Khanapur, Dist. Belgaum. 3) Mr. Yeshwant Athamaram Baragaonkar R/o. Ganebail, Tal: Khanapur Dist. Belgaum. After accident one Sri. Vijaya Ananth Kumbar has filed the complaint before the Khanapur Police Station and he has stated in his complaint that along with him, 3 other persons were travelling in the said vehicle. Even though the seating capacity of said vehicle only 2+1, however 4 persons were traveling in the said vehicle. The complainant violated condition of insurance policy, the said vehicle being the goods vehicle Goods carrying public carrier is a clear violation of the M.V. Act, unauthorized passengers travelling in the said vehicle.  Complainant violated the terms and conditions of the insurance policy. Hence opponent repudiate the claim of the complainant.

10) Opponent has taken another contention that one Mr. Vijay Ananth Kumbar of Belgaum had purchased said insured vehicle on 20/8/2008 by giving Rs.5000/- in advance against Rs.1,90,000/- as agreed and the complainant had handed over the custody of the vehicle to Vijay Ananth Kumbar before the accident. On perusal surveyor investigation report submitted by K.R.Maheshkumar it reveals that Mr. Vijay Ananth Kumbar had purchased the said vehicle for Rs.1,90,000/- and paid Rs.5,000/- as advanced and said vehicle was handed to the custody on said Vijay Ananth Kumbar on 20/8/2008 and surveyor submitted is report along with statement of Vijay ananth Kumbar and capacity of the said vehicle 2+1 and on the date of accident 2 persons along with Vijay Ananth Kumbar travelling in the said insured vehicle at the time of accident.  At the time of accident Mr. Vijay Ananth Kumbar, Driver and cleaner and another  person were travelling in the said vehicle and said vehicle was Goods vehicle.

11) Advocate for opponent relied on decision reported in

1) VII – 1995 (2) 502, National Consumer Disputes Redressal Commission, New Delhi.

 In between K. Rajgopal V/s. National Insurance Co. Ltd. & anr.

Consumer Protection Act, 1986-Sections 12 & 17 – Deficiency in insurance service-Vehicle insured’s transferred by complainant under agreement for sale and received part payment from buyer-Sale of vehicle has to be held stood finalized on date of agreement itself when possession was delivered to buyer-It is immaterial that time for payment of balance amount was postponed-Insurance Company was justified to repudiate claim as per terms of policy that insured interest had terminated.

 

          12) On perusal objection and affidavit filed by the opponent. The complainant sold his vehicle to Vijaya Ananth Kumber of Belgaum for Rs.1,90,000/- and he received the amount of Rs.5,000/- as advanced and took the vehicle is custody on 20/8/2008 but there was still balance of Rs.1,85,000/- and there was no complete transaction of sale. After receiving Rs.5,000/- from the Vijaya Ananth Kumbar the complainant handed over possession of the vehicle to Vijay Ananth Kumbar. As per the above said decision under the agreement for sale and received the part payment from the buyer sale of vehicle has to be hold stood finalized on date of agreement itself, when possession was delivered to buyers it is immaterial that time for payment of balance amount was postponed insurance company was justified the repudiate the claim, as per the terms of policy that insured interest had terminated policy. Complainant has received the Rs.5,000/- as advanced and handed over possession of the vehicle in such circumstances, the complainant is not entitle damages from the opponent.

          13) The opponent has taken another contention that at the time of accident 4 persons were travelling in the vehicle. The said vehicle is Goods vehicle the seating capacity of the vehicle is only 2+1. However at the time of accident 4 persons were travelling in the vehicle i.e., violated terms and conditions of the policy.  On perusal contents of the complaint it is admitted fact that 4 persons were travelling in said vehicle. 

14) The advocate for opponent relied on ruling reported in IX-1995 (3) 46, National Consumer Disputes Redressal Commission, Camp Office, Bangalore

In between The new India Assurance Co. Ltd., V/s. A Mohamad Yasin.

Consumer Protection Act, 1986-Sections 12 & 17 Vehicle insured with appellant damaged in accident-Report of surveyor revealed that vehicle which was a goods vehicle was carrying unauthorized passenger-Stated Commission repelled the contention of Vehicle carrying unauthorized passenger merely by holding that it was a claim for damage to vehicle- Vehicle by carrying unauthorized passengers in violation of terms and conditions of policy as well of the permit does not make Insurance Company liable to indemnify complaint against loss- Though Insurance Co. offered to settle claim for 75% on non-standard basis which was not accepted by complainant, it can not be a foundation for any deficiency in service.

And another decision reported in IX -1995 (3) (104) State Consumer Disputes Redressal Commission, Karnataka, Bangalore.

In between P.Palaniswamy V/s. M/s. Oriental Insurance Co. Ltd.,

Consumer Protection Act, 1986-Sections 12 & 17-Goods vehicle damaged in accident number of people were travelling in vehicle at the time of accident and it was being used for carrying passengers- Vehicle was used in violation of terms of policy-Repudiation of claim can not be classified as deficiency in serive.

Important Point

If the goods vehicle were to be used wrongfully for carrying passengers the Insurance Co. is absolved of its liability & repudiation of claim is not a deficiency in service.

        And another decision reported in 1996 (2) CPR 108 National Consumer Disputes Redressal Commission, New Delhi.

In between National Insurance Co. Ltd. V/s. Rais Abbas Naqvi

        Consumer Protection Act, 1986-Sections 12 & 17- Insurance Claim- Truck insured damaged in accident- Claim repudiated on ground that vehicle was passed for carriage of 12 tonnes by Registering Authority whereas it was carrying 15 tonnes load – Policy had laid down limitation as about use that vehicle was to be used under a public carriers permit within the meaning of Motor Vehicles Act- Goods loaded in truck were insured under Marine Insurance Policy – Goods receipts showed that load was 15 Tonnes-Repudiation of claim was based or investigation report as well claim filed by owner of goods – Repudiation could not be said arbitrary & deficient in service – Order of State Commission allowing claim is unsustainable.

Important point

        Once Insurance Company has taken decisions after detailed consideration of cause of accident & whether there had been breach of conditions of public carriers permit under which vehicle was being plied, it is not open for opinion of the Insurance Company.

 

        Important point for goods vehicle were to be used wrongfully for carrying passengers the insurance Company is absolve its liability and repudiation of claim is not a deficiency in service.

       

          15) On perusal documents and argument submitted by advocate for opponent the vehicle bearing registration No.KA-22/A-3411 insured with opponent is goods carriers’ vehicle. The goods carrier vehicle is not permit to use for the purpose of carrying passengers. On perusal contents of complaint survey report of surveyor the vehicle was admittedly carrying unathorised passengers when the accident took place. The vehicle was being run for purpose not allowed by the goods carriage permit and there has been specified condition of the policy which has put limitation as to use only for purpose of the carriage of goods within the scope and ambit of the M.V. Act 1988. At the time of accident vehicle was carrying unauthorized persons in violation of terms and conditions of the policy as well as of the permit. The opponent is not liable to indemnify the complaint against loss caused to the vehicle. As per the decision reported in State Consumer Disputes Redressal Commission, Karnataka Bangalore repudiation of insurance claim registration of goods vehicle does not constitute deficiency in service.  If the goods vehicles were to be used wrongfully for carrying passengers the Insurance Co. is absolved of its liability & repudiation of claim is not a deficiency in service.

          16) On perusal contends of affidavit of opponent and decision relied by the advocate for opponent. The complainant sold is vehicle to Vijaya Ananth Kumbar and received the part amount and handed over vehicle to the Vijay Ananth Kumbar. At the time of the accident said Vijay Ananth Kumbar was travelling in the said vehicle. On perusal surveyor report and complaint filed by the Vijay Ananth Kumbar he was present at the time of the accident. On perusal surveyor report possession was delivered to Vijaya Ananth Kumbar by the complainant, in such circumstances insurance company can repudiated the claim of the complainant and on perusal documents and evidence affidavit of opponent, unauthorized passengers were travelling in the goods vehicle they are violated the terms of policy, in such circumstances the opponent repudiated the claim of the complainant cannot be classified as deficiency in service. The complainant is not entitled to any damages from opponent. The decisions relied by the advocate for opponent are applicable to the case of the opponent. The complaint filed by the complaint is not maintainable. Hence we held point No.1 in the negative. Hence we pass the following order;

: ORDER :

The complaint is dismissed. No order as to cost.

(Order dictated, corrected & then pronounced in the Open Forum on this 12th day of February 2016)

                   Member                    Member                    President

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