BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 31st August 2015
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 129/2015
Complainant/s: Hussainsab Khadirsab Mujawar, Age: Major, Occ: Business, R/o.Jigeri, Tq. Ron, Dist. Gadag.
(By Sri.M.A.Pujar, Adv.)
v/s
Respondent/s: 1. The Manager, Tata AIG General Insurance Co. Ltd., working At: C/o. M/s. Bellad Engineers (P) Ltd., Bellad Chamber, III Unkal Cross, Hubli 21.
2. The Manager, Tata AIG General Insurance Co. Ltd., II Floor, J.P. & Devi Jambukeshwar Arcade, No.69, Millars Road, Bangalore 52.
(By Sri.S.B.Sudi, Adv.)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondents to pay total loss on own damage policy coverage, to pay compensation for mental agony, pain and sufferings, to order for cost of the proceedings and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, complainant is the owner of the TATA LPT (HGV) 1109 KA 26 A 2964 vehicle which was insured under the policy of respondent 2 through respondent 1 bearing no.064001/0140120210/60/00 covering the risk for the period from 12.06.2013 to 11.06.2014. The said vehicle met with an accident on 26.11.2013 on NH 4 in front of Jai Bharat dhaba Chitradurg district while coming from Bangalore to Nagendragad due to rash and negligent driving of the driver of the complainant’s vehicle which was registered under the Crime no.363/13. In the said accident vehicle was recklessly damaged causing total loss. After the accident complainant submitted claim to the respondent on 26.11.2013 but the respondent repudiated the same on the grounds at the time of accident there were 6 persons traveling against to the seating capacity and contravened the terms and conditions of policy. The said repudiation is illegal. The complainant has not violated any terms and conditions as he enjoys exception clause 192(A) (2) as an emergency the relatives of the complainant were traveling in the said vehicle at the time of accident. Hence, the repudiation is illegal amounts to deficiency in service. Hence, the complainant filed the instant complaint praying for the relief as sought.
3. In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the complaint as brought is false, frivolous and vexatious and not maintainable either in law or on facts and prays for dismissal of the complaint. Further the respondent contended that the complainant not approached the Forum with clean hands and suppressed the material facts in order to misguide the Forum. While the respondent admits issuance of the policy, coverage of the risk to the date of accident subject to terms and conditions of the policy. Further averred, immediate to the intimation of accident deputed respondent company’s IRDA licensed surveyor to access the damages and in turn the surveyor submits report. On verification of the report the permitted seating capacity was only 3 and at the relevant time 7 members were traveling in the said vehicle against to the permit. The same was established by FIR. While the vehicle in question is a goods carrying vehicle. The vehicle in question was given permit in accordance with the Sec.66 of the M.V.Act. According to the said proviso of the Act goods carriages are not permitted to carry passengers. The respondent also disputes the complainant enjoys the exception clause 192 (A) (2) M.V.Act and entitlement of the claim. After placement of the claim respondent ask for explanation from the complainant on 25.02.2014. In reply to the said letter the complainant did not said anything with regard to the exception clause he was enjoying and for the first time he reveals the same as an after thought to have wrongful gain. The respondents have repudiated the claim on sound reason of clear violation of terms and conditions and the same was intimated on 07.04.2014. Hence, there is no deficiency in service on the part of answering respondent and complaint is not maintainable as it bars the jurisdiction of this Forum to adjudicate the same. Among some other grounds the respondent prays for dismissal of the complaint with cost.
4. On the said pleadings the following points have arisen for consideration:
- Whether complainant has proved that there was deficiency in service on the part of respondents ?
- Whether complainant is entitled to the relief as claimed ?
- To what relief the complainant is entitled ?
Both have admits sworn to evidence affidavit, relied on documents. The respondent apart from argument filed written argument and relied on citations. Heard. Perused the records.
Finding on points is as under.
- Negative
- Negative
- As per order
Reasons
Points 1 and 2
5. On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant is the owner of the vehicle and is goods vehicle and is covered with insurance policy risk of the respondent to the date of accident. Further there is no dispute with regard to the fact that at the time of accident there were 7 persons were traveling in the said vehicle against to the permit of 3 seats including driver.
6. Now the question to be determined is, whether the complainant had allowed to travel the more passengets against to the permitted seats and violated the terms and conditions of the policy, repudiation of the claim amounts to deficiency in service, if so, for what relief the complainant is entitled.
7. As contended by the respondent on perusal of Ex.R3 repudiation letter it reveals the complainant allows 6 persons to travel in the said vehicle at the time of accident which is in excess of seating capacity and thereby contravened policy terms and conditions and violated the permit conditions as enshrined in the M.V.Act 1988. Hence, the claim repudiated. With reference to this observation of repudiation letter we went on look on Ex.C1 copy of the FIR. As per Ex.C1 at the time of accident there were 7 persons were traveling in the said vehicle. On perusal of document Ex.C7 RC of the vehicle in question wherein it is mentioned, seating capacity only 3. Perusal of Ex.C11 permit the class of vehicle is goods vehicle. By this it is evident that the complainant being owner of the vehicle allowed more persons to travel in the said vehicle against to the 3 seating capacity and violated the terms and conditions of the policy.
8. The complainant even in the pleadings as well as in the evidence, claims the enjoyment of the exception clause 192(a) (2) of MV Act, but he has not produced any document to show that he had availed such permission from the competent authority. Even Ex.C 7 or C 11 do not disclose anything with regard to the permission u/s.192 (a) (2) as contended by the complainant. Hence, this is a clear case of violation of terms and conditions. On perusal of the FIR Ex.C 1 it is evident that case has been registered against the own driver of the complainant vehicle for rash and negligent driving as it hit against the other vehicle. Under those circumstances the complainant is not entitled for any relief and since there being more than 4 passengers than the permitted vehicle and the vehicle in question itself is responsible for the accident; The complainant even not entitled for privilege of claim/reliefs under non standard basis also.
9. The respondent contending justification of the repudiation prays for dismissal of the complaint relying on case laws CPJ 2012 (3) NC 318; CPJ 2012 (1) Haryana SCDRC page.195; CPJ 2012 (4) NC 62; ACJ 2011 Guvahati 1984. With reference to the relied citations and documents on records supported with the evidence led on file it is a clear case of violation of policy conditions coupled with violation of MV Act. Hence, the complainant failed to establish his case of deficiency in service against the respondents in non settling the claim. Interalia the respondent justified in repudiating the claim. Hence, complainant is not entitled for any relief.
10. In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negative.
11. Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
Order
The complaint is dismissed. No order as to costs.
(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31st day of August 2015)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
MSR
