DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 20^th day of August 2020

Present: Sri.V.P.Anantha Narayanan, Member(President I/c)  

              : Smt.Vidya.A, Member                                                   Date of Filing: 08/06/201715/03/2018

CC /92/2017

Sabnu.A.K

W/o Abdul Hakeem,

1/381, Sajnas,

Tharavamattukalam, Kannadi PO,

Palakkad                                                                                              -           Complainant

(By Advs.Shiju Kuriakose & N.D.Rajesh)                                            

V/s

1. The Manager

IFFCO TOKYO GENERAL INSURANCE CO.LTD,- Opposite parties

128, 4^TH Floor, IFFCO Bhavan, Habibulla Road,

T Nagar, Chennai, Tamilnadu

(By Adv.A.Raji Vijaya Shankar)

2. The Mannager

Amana Toyoto V.P.K Motors Pvt, Ltd,

7/749, Mundur PO, Poriyani,Palakkad.

(By Adv.A.A.Abdullah)

O R D E R

By Smt.Vidya.A, Member

Brief facts of the complaint  

            The complainant is the registered owner of the Toyota Etios car bearing registration No.KL-9AL-9663.  She purchased the vehicle from the 2^nd opposite party who is the dealer and service provider of Toyota Company.  1^st opposite party is the insurer of the vehicle with policy No.TAT/91545447 and second opposite party is the insurance agent of the 1^st opposite party.  The vehicle was purchased by the complainant for taxi purpose and she is earning her livelihood from the income derived from the vehicle.  The complainant applied for taxi permit before the authority concerned on 21.01.2017.  The vehicle met with an accident at Palakkad on 26.01.2017 and caused damage to the vehicle.  The vehicle was repaired by the 2^nd opposite party and the complainant herself paid an amount of Rs.20,469/- as repair charges.  Again on 11.02.2017 the vehicle met with another accident at Kottakkal and the vehicle got damaged.  This time an amount of Rs.47,261/- was paid by the complainant to the 2^nd opposite party.  Later she applied before the 1^st opposite party for reimbursement of the amount spent by her in repairing the vehicle.  But the claims were repudiated by the 1^st opposite party with a contention that the above vehicle was not having valid permit to ply on the road at the time of the accidents.  According to the complainant the contention of the 1^st opposite party is baseless and without any legal back-up.  Eventhough the complainant contacted the 2^nd opposite party to interfere in the matter, they avoided the complainant.  Hence there is a clear deficiency of service on the part of the opposite parties.  This caused serious hardship and irreparable injury to the complainant.  So both the opposite parties are jointly and severally liable for the deficiency of service.  Hence this complaint is filed for obtaining an order directing the opposite parties to pay an amount of Rs.67,757/- with interest at 24% to the complainant till the recovery and an amount of Rs.50,000/- for the mental agony suffered by the complainant and Rs.10,000/- as cost of litigation.

            Complaint admitted and notice issued to both opposite parties. Both opposite parties appeared and filed their version.

Contentions raised by the 1^st opposite party in their version

The 1^st opposite party is an insurance company handling General Insurance business.  The complainant’s vehicle was insured with the 1^st opposite party with a package policy covering the insured vehicle as a transport vehicle (taxi car).  The policy was issued as per Motor Vehicle Act with contractual liability adding certain conditions. As per the Motor Vehicles Act “No transport/commercial vehicle shall be used without a valid permit.”  As per the policy conditions such vehicles shall not be used without a valid permit.  The complainant’s vehicle was not having permit when it met with accidents on 26.01.2017 and 11.02.2017 and the insured got the permit only on 21.02.2017.  The insured was using the vehicle for commercial purpose as taxi and due to the careless handling of the vehicle, it met with accidents.  The 1^st opposite party repudiated the claims of the complainant because the vehicle was not having a valid permit at the time of both the accidents. 

The complainant was well aware of these facts and so on both occasions she paid the repair charges herself to the 2^nd opposite party and making these two claims as one, she filed this complaint.  The Motor Vehicles Act is a part of the policy issued by the 1^st opposite party and the policy issued is with special conditions on the basis of the contract and in the case of violation of Motor Vehicles Act, the insurance company has no liability.  The insured is bound to obey the contractual obligations in order to get the indemnity.  Against the contractual obligations by violating the terms and conditions of the policy, the insured used the vehicle for commercial purpose as transport vehicle and met with accidents on two occasions.  As per section 66 of the Motor Vehicles Act “No taxi vehicle shall be used on a public road without a valid permit”.  The policy issued by the company is subject to the Motor Vehicles Act.  There is valid ground for repudiating the claims of the complainant and the 1^st opposite party had informed the complainant about this and she had acknowledged the repudiation letter.  The 1^st opposite party is unaware of the transactions taken place between the 2^nd opposite party and the complainant.  According to the 1^st opposite party, the complainant has got several vehicles and she is using those vehicles for transport purpose as Taxi and the complainant is not a ‘consumer’ under the Consumer Protection Act.  It is not the livelihood of the complainant and she is a landlord and owner of several vehicles and she was using these vehicles by appointing several drivers.  So the averment in the complaint that the vehicle is the livelihood of the complainant is denied by 1^st opposite party.  The complainant had no mental agony or pain when she paid the repair charges to the 2^nd opposite party.  It is not a case of submitting the bills directly to the company.  The complainant herself paid the repair charges and she made the claim with 1^st opposite party subsequently and on going through the papers, the 1^st opposite party came to know that the vehicle was not having valid permit at the time of accidents and hence the claims were repudiated.  There is no deficiency of service on the part of this opposite party and no question of joint and several liability arises in this case.  The repair charges shown are incorrect and it is 60% excessive.  There is no cause of action for the complainant to file this complaint and so it has to be dismissed with cost to the 1^st opposite party.

Version of 2^nd opposite party

The 2^nd opposite party admits that the complainant purchased the vehicle from this opposite party on 30.12.2016.    But they denied the averment in the plaint that 2^nd opposite party is the insurance agent of the 1^st opposite party.  According to 2^nd opposite party, the reason for repudiation of the claim for reimbursement of repair charges from the 1^st opposite party is that the vehicle had no valid permit for using it as a taxi on the dates of the accidents.  The validity of the permit for taxi starts only from 21.02.2017, whereas as per the complaint the accident happened on 26.01.2017 and on 11.02.2017 which is prior to the issuance of permit to the complainant.

The privity of contract is between the insurance company and the complainant and the 2^nd opposite party has no say in the matter.  The 2^nd opposite party is not an insurance agent of the 1^st opposite party as alleged by the complainant, they only help the purchaser to get vehicle insurance.  The 2^nd opposite party has neither received nor demanded any amount from the complainant for any insurance related service and there is no deficiency of service on the part of the 2^nd opposite party.  The insurance company has directly rejected the claim of the complainant due to policy violation and the complainant is not entitled to claim any relief against the 2^nd opposite party.  The complainant has impleaded the 2^nd opposite party as the Manager of the establishment and on that ground itself the complainant is liable to be dismissed against this opposite party.

From the complainant’s side chief affidavit filed.  Complainant was examined as PW1 and Ext.A1 to A5 marked.  From the 1^st opposite party’s side chief affidavit filed and Ext.B1 to B3 were marked.  (B3 in series) and the Manager (Legal) of the 1^st opposite party was examined as DW1.  From the 2^nd opposite party’s side, chief affidavit filed.  No witness was examined from their side.

Main issues arising for consideration are:

1. Whether there is any deficiency of service on the part of the opposite parties?
2. If so, what is the relief as to cost/Compensation?

Issues 1&2

Heard.  We perused the affidavits and documents on record filed by both sides.  It is admitted fact that the vehicle bearing registration number – KL – 9AL – 9663 is registered in the name of the complainant and the said vehicle was insured with 1^st opposite party under insurance policy number TAT/91545447 for the period from 31-12-2016 to 30-12-2017.  As per the complainant, the vehicle met with accidents on 26-01-2017 and 11-02-2017.  On both occasions the damage was only to the vehicle and the complainant paid Rs.20,469/- and Rs.47,261/- respectively for the repair of the vehicle.  The complainant filed claims for reimbursement of these amounts and the same was repudiated by the 1^st opposite party. 

The only contention, raised by the 1^st opposite party, The Insurance Company is that the vehicle was not having valid Permit for using it as a Taxi at the time of both the accidents.  As per the complaint, the repair works are done by the 2^nd opposite party and the repair charges were paid to them by the complainant.  The complainant claimed reimbursement of these amounts from the 1^st opposite party and they repudiated the claim due to violation of policy conditions.  It can be seen that the contract is directly between the complainant and the Insurance Company and the 2^nd opposite party has only limited involvement in this case and any deficiency in service on their part  is not established. 

It is clear from the complaint that the complainant purchased the vehicle for ‘Taxi’ purpose and applied for Taxi permit before the Regional Transport Authority on 21/01/2017 and received the permit later on which is valid from 21-02-2017 to 20-02-2021.  The permit which is submitted before the  1^st opposite party for claim and marked as Ext.B3 series (page 16) shows that the period of validity of the permit is from 21-02-2017 to 20-02-2022.  The purpose for which the vehicle was used at the time of incident is shown as “Taxi” in the motor claim submitted by the complainant (page 37 of Ext.B3 series), and page 39 of Ext.B3 series.  “In The list of documents required for claim settlement” shows ‘Permit’ and ‘Fitness’ are required for claim in the case of commercial vehicle. 

“Permit” is defined in Sub section 2 (31) of the Motor Vehicles Act.  “Permit” means a permit issued by a state or Regional Transport Authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle.  Sub section (1) of S.66 of the Motor Vehicles Act which is material in this case reads as “No owner of a motor vehicle shall use or permit the use of the vehicle as transport vehicle in any public place whether or not such vehicle is carrying any passenger or goods save in accordance with the conditions of a permit granted or countersigned by Regional or State Transport Authority or any prescribed authority authorizing the use of the vehicle in that place in the manner in which the vehicle is being used”.

Bare reading of this provision would show that it creates a total bar on the use of a transport vehicle in any public place whether or not such vehicle is carrying any passenger or goods unless the owner thereof holds a ‘Permit’ as defined in S.2 (31).  It is not in dispute that the complainant was not possessing a permit on the dates of the accidents.  Said sub section would thus be applicable even if the vehicle in question was used by the complainant for personal use as deposed by her. 

Vehicle plying on the road without a ‘valid permit’ is fundamental breach of terms and conditions of insurance policy as well as the provisions of Motor Vehicles Act.

In National Insurance Co. Ltd, Vs Chella Upendra Rao & Ors 2004 (8) SCC 517 the Hon’ble Supreme Court held that “A person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof.  Plying of a vehicle without a permit is an infraction.  The question of policy being operative had no relevance for the issue regarding liability of the insurer.” 

It is well established in the light of various judgments of the Hon’ble Supreme Court that the terms and conditions of the insurance policy have to be construed strictly and if there is any violation of the terms, the party cannot claim any relief. 

In United India Insurance Co.Ltd V Dharamaraj  IV (2005) CPJ 115 NC The Hon’ble National Commission.  Held that “The insurance policy represents a contract between the insurer and the insured and the insured has to act strictly in accordance with the statutory limitations and/or the terms of policy.  Since use of the vehicle in question at the time of incident was in contravention of the sub section (1) of 66 of the Motor Vehicles Act and conditions of policy, the complainant is not entitled to any amount under the policy.”

In the facts of the present case, we find that the commercial vehicle which was being used for carrying passengers, no valid permit was available at the time of accidents and thereby not only ‘Law’ is violated but the policy conditions were also violated and therefore the insurance company was fully justified in repudiating the claim of the complainant for own damage of the vehicle due to motor accident. 

In the result, the complaint is dismissed.  No order as to costs.

Pronounced in the open court on this the 9^th day of September 2020.

                                                                                                                                   Sd/-

                 V.P.Anantha Narayanan

                 Member(President I/c) 

                                                                                              Sd/-      

                                                                                                     Vidya.A

                                Member

Appendix

Exhibits marked on the side of complainant

Ext.A1   -  Tax Invoice issued by 2^nd opposite party to the complainant.

Ext.A2   -  Acknowledgement receipt issued by RTO, Palakkad.

Ext.A3   -  Insurance policy issued by 1^st opposite party to the complainant.

Ext.A4   -  Receipt issued by 2^nd opposite party to the complainant.

Ext.A5   -   Receipt issued by 2^nd opposite party to the complainant.`1

Exhibits marked on the side of Opposite parties

Ext.B1   -  Certificate of Insurance Cum Policy Schedule

Ext.B2   -  Copy of Permit in respect of All India Tourist Vehicles issued by Govt.of Kerala, Motor Vehicles

                   Department to the complainant

Ext.B3 series      -  Claim Forms and Survey Report

Witness examined on the side of complainant

PW1       -  Sabnu

Witness examined on the side of opposite parties

DW1      -  Rahul

Cost :   NIL