Karnataka

Chitradurga

CC/18/2015

N.D.Padmavathi D/o. N.D.Kumar - Complainant(s)

Versus

The Managing Director, Royal Sundaram Alliance Insurance Co.Ltd., - Opp.Party(s)

Shri.S.Vidyadhara

04 Jan 2016

ORDER

COMPLAINT FILED ON : 14/01/2015

     DISPOSED ON: 04/01/2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

 

CC. NO. 18/2015 DATED:  4th January 2016

 

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

 

COMPLAINANT	N.D. Padmavathi, D/o N.D. Kumar, R/o Ekanatheshwari Nilaya, II Cross, Nehru Nagara, Chitradurga.   (Rep by Sri. S. Vidyadhar, Advocate)
OPPOSITE PARTIES	1. The Managing Director, Royal Sundaram Alliance Insurance Co. Ltd., Sundaram Towers, 45 $ 46, Whites Road, Chennai-600 014.   2.  The Manager, Cholamandalam Investment and Finance Co. Ltd., Jayadeva Circle, Lawayer Road, Davanagere.     (Rep by Sri.B.S. Shivamurthy, Advocate for OP No.1 and G.K. Mallikarjuna Swamy for OP No.2,  Advocate)

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OPs for a direction to the OP No.1 to pay Rs.9,27,440 /- with 12% interest and to grant court cost and such other reliefs.

 

2.     The brief facts of the case of the complainant are that, she is a registered owner of Ashoka Leyland Lorry bearing Registration No.KA-16-A-4974 and the same was insured with OP No.1 under policy No.VGCC0324724000100 on 06.08.2013 for a period from 06.08.2013 to 05.08.2014.  OP No.1 declared the IDV of the said lorry for a sum of Rs.7,00,000/-.  Complainant purchased the aforesaid lorry with the financial assistance of OP No.2 to an extent of Rs.6,40,000/-. It is further submitted that, on 22.10.2013 at about 11-00 PM, the said lorry toppled down near Shivaganga village, Holalkere road due to the rash and negligent driving of the driver and the same was fully damaged.  Soon after the accident, complainant intimated about the accident to the OP No.1 and thereafter shifted the damaged lorry to Modern Auto Works, B.D. Road, Chitradurga by incurring toeing charges of Rs.5,000/-.  OP No.1 deputed a Surveyor to assess the damage and the Surveyor inspected the vehicle at Modern Auto Works and took photos of the damaged vehicle. It is further submitted that, Modern Auto Works issued an estimation for Rs.3,60,550/- and Rs.55,200/- towards mechanical labour charges and the KGN Labour Body Builders issued estimation for the electric work and for body building to an extent of Rs.2,55,690/-.  Thereafter, complainant submitted a claim form along with required documents to settle the claim to the OP No.1 but, OP No.1 sent a repudiation letter on 29.11.2013 stating that, "damage to the vehicle are not relevant to the cause of accident narrated in the claim form and the fitness certificate of the same was not valid at the time of accident and the vehicle was not in a roadworthy condition".  It is further submitted that, the act of OP No.1 caused much loss which cannot be compensated because the ill-fated lorry still stranded before the said garage and thereby she became chronic defaulter to the OP No.2.  The conduct of the OP No.1 amounts to deficiency of service so, she sustained financial loss and mental agony and etc., and prayed for allow the complaint.

3.     On service of notice, OPs appeared through Advocates and filed their respective version.  OP No.1 filed its version stating that, the complainant took a Goods carrying vehicle policy No.VGC0324724000100 for her Ashoka Leyland lorry bearing Registration No.KA-16A 4974 valid for the period from 06.08.2013 to 05.08.2014.  It is further submitted that, complainant intimated about the accident on 19.10.2013 at about 7-00 PM near Shivaganga and on intimation of the same on 24.10.2013, OP No.1 appointed independent surveyor to assess the loss caused to the vehicle.  It is further submitted that, as per the surveyor, the fitness certificate of the vehicle was not valid at the time of accident and the damages found in the vehicle were not relevant to the cause of accident.  The complainant used the vehicle after expiry of the fitness certificate which is a violation of the M.V. Act and the policy was issued subject to the compliance of the M.V. Act.   The fitness certificate of the vehicle involved in an accident expired at the time of accident and the same was not in a roadworthy condition and therefore, the OP No.1 rightly repudiated the claim of the complainant vide letter dated 29.11.2013.  As per Section 123 of the M.V. Act, no transport vehicle can be used at any public place without a valid fitness certificate and there is a penal liability under Sec.123 of the M.V. Act.  Section 38 of the M.V. act reads as under:

Section 38: Certificate of fitness of transport vehicles.  (1)  Subject to the provisions of section 39, a transport vehicle shall not be deemed to be validity registered for the purpose of section 22, unless it carries a certificate of fitness in Form H as set forth in the First Schedule, issued by the prescribed authority, to the effect that the vehicle complies for the time being with all the requirements of Chapter V and the rules mad thereunder.  Where the prescribed authority refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal".     

 

4.     It is further submitted that, the violation of the M.V. Act by the complainant clearly absolves this OP from any liability to the complainant and the OP acted in a bonafide and legal manner in repudiating the claim of the complainant and therefore, there is no deficiency in service and hence, prayed for dismissal of the complaint.    

5.     OP No.2 filed its version stating that, the complaint is not maintainable in view of the fact that there is one 'Arbitration' clause and on 'Jurisdiction' clause in the agreement executed between the complainant and OP No.2, in which the complainant has specifically agreed that the disputes if any between the parties have to be referred to the sole Arbitrator for adjudication through Arbitration.  It is further submitted that, complainant cannot invoke the provisions of the C.P Act and he is not a consumer as defined under the Act.  He is a borrower under a contract governed by the contract itself.  It is submitted that, the complainant is a registered owner of Ashoka Leyland lorry bearing Registration No.KA-16-A-4974 and the same was insured with the OP No.1 under policy No.VGC0324724000100 on 06.08.2013 for a period from 06.08.2013 to 05.08.2013.  It is denied that, OP No.1 declared the IDV of the said lorry for Rs.7,00,000/- but, it is true that, complainant purchased the said lorry with the financial assistance of OP No.2 to an extent of Rs.6,40,000/-.  Therefore, there is no such cause of action to file this complaint against OP No.2 as alleged in the complaint without any deficiency of service and prayed for dismissal of the complaint.      

        6.     Complainant himself examined as PW-1 by filing affidavit evidence reiterating the contents of complaint and documents are marked at Ex.A-1 to   Ex.A-3. 

7.     On behalf of OP No.1 one Sri. G. Vinayprakash, the Assistant Manager Legal of OP No.1 examined as  DW-1 and affidavit of surveyor Sri. Himath Kedar M.C as DW-2 by filing affidavit evidence and on behalf of OP No.2 affidavit of one Sri. Thippeswamy, the P.A Holder and Senior Legal Co-ordinator and documents have been marked as Ex.B-1 to Ex.B-4.   

 

8.     Written arguments have been filed and oral arguments heard.

 

9. Now the Points that arise for our consideration for the decision of the complaint are that:

 

Point No.1:- Whether the complainant proves that, OP No.1 has committed deficiency of service in settling her claim and she is entitled for compensation as stated in her complaint?

 

Point No.2:- What order?

 

        10. Our findings on the above points are as follows:

 

        Point No.1:- Partly Affirmative.

        Point No.2:- As per the final order.

 

                                        ::REASONS::

 

11. Point No. 1:- It is not in dispute that, complainant purchased the aforesaid lorry with the financial assistance of OP No.2 for a sum of Rs.6,40,000/- and the same was insured with OP No.1 under policy No.VGCC0324724000100 on 06.08.2013 for a period from 06.08.2013 to 05.08.2014 and its declared value is Rs.7,00,000/-.  On 22.10.2013 at about 11-00 PM, due to the rash and negligent driving of the driver said lorry toppled down near Shivaganga village, Holalkere Road and fully damaged in the said accident.  Soon after the accident, complainant intimated about the accident to OP No.1 and thereafter shifted the damaged lorry to Modern Auto Works, B.D. Road, Chitradurga by incurring toeing charges of Rs.5,000/-.  Surveyor of OP No.1 inspected the vehicle.  Modern Auto Works, Chitradurga issued an estimation for Rs.3,60,550/- and Rs.55,200/- towards mechanical labour charges and the KGN Body Builders issued an estimation for the electric work and for body building to an extent of Rs.2,55,690/-.  Complainant submitted a claim form along with required documents to settle the claim.  But, OP No.1 sent a repudiation letter on 29.11.2013 stating that, "damage to the vehicle are not relevant to the cause of accident and the fitness certificate of the same was not valid at the time of accident and the same was expired".  Therefore, she suffered financial loss and mental agony etc., and prayed for allow the complaint.

12.  In support of her contentions,  complainant has relied on his affidavit evidence in which she has reiterated the contents of complaint.  Complainant has also relied on documents like copy of insurance policy with certificate of insurance which is valid for the period from 06.08.2013 to 05.08.2014 and the IDV value is Rs.7,00,000/- marked as Ex.A-1, Copy of notice dated 11.12.2013 issued by the OP No.2 marked as Ex.A-2, Copy of letter written by OP No.1 repudiating the claim of the complainant marked as Ex.A-3.

 13. So, as on the date of accident, insurance policy was in force.  It is the main contention of the complainant that she made a claim to the OPs by producing all the relevant documents and in spite of policy was in force, OPs have not settled the claim on the ground that, as on the date of accident, the fitness certificate of the said lorry was not valid and the vehicle was not in a roadworthy condition, Complainant has violated the terms and conditions of the insurance policy and also the M.V. Act, without a valid fitness certificate the vehicle cannot be plied on the road and the complainant is not liable to claim any compensation and thereby the OPs have committed deficiency of service and the complainant has sustained financial loss and mental agony and so, this complaint has been filed. 

 

       14.  In support of his contention, Advocate for complainant has relied on a decision reported in 2010 ACJ 1791 wherein it has been held as under:

Gyan Chand Agarwal

Vs.

Ropa Oraon and others

"Motor Vehicles Act, 1988, section 149(1) and Bihar Motor Vehicles Rules, 1992, rule 62 (1) – Motor insurance – Fitness Certificate – Non-production of – Liability of insurance company – Pay and recover order – Owner despite direction of the Tribunal failed to produce fitness certificate of the offending truck – Tribunal directed insurance company to pay compensation to the claimants with entitlement of making recovery from the owner – Whether non-production of fitness certificate by the owner exonerates insurance company from liability and the Tribunal was justified in directing insurance company to recover the amount of compensation from the owner – Held: No."  

      

15.  On the other hand, it is argued by the Advocate for OP No.1 that, the complainant took a Goods carrying vehicle policy No.VGC0324724000100 for her Ashoka Leyland lorry bearing Registration No.KA-16-A 4974 for a period from 06.08.2013 to 05.08.2014.  Complainant intimated about the accident occurred to the aforesaid vehicle on 19.10.2013 at about 7-00 PM near Shivaganga and on intimation of the same on 24.10.2013, OP No.1 appointed independent surveyor to assess the loss caused to the vehicle.  As per the surveyor, the fitness certificate of the vehicle was not valid at the time of accident and the damages found in the vehicle were not relevant to the cause of accident.   Using of the fitness certificate after the expiry, is  violation of the M.V. Act and the same was expired at the time of accident and therefore, rightly repudiated the claim of the complainant through letter dated 29.11.2013.  As per Section 123 of the M.V. Act, no transport vehicle can be used at any public place without a valid fitness certificate and there is a penal liability under Sec.123 of the M.V. Act and the OP acted in a bonafide and legal manner in repudiating the claim of the complainant and there is no deficiency in service on its part and prayed for dismissal of the complaint.

16.   In support of its contentions, OP No.1 has relied on the certified copy of insurance policy with schedule marked as Ex.B-1 and Ex.B-2, Certified copy of computation table, wherein it is mentioned that, the IDV of the vehicle was Rs.7,00,000/- marked as Ex.B-3 and certified copy of commercial vehicles package policy marked as Ex.B-4. 

17.  In support of his contention, Advocate for OP No.1 has relied on a decision reported in IV (2006) CPJ 62 (NC) wherein it has been held as under:

 

Aeroflot Soviet Airlines

Vs.

United India Insurance Co, Ltd.,

 

"Consumer Protection Act, 1986 – Section 15 – Motor Vehicles Act, 1988 – Sections 39, 56 – Insurance – Necessity for registration of vehicle – Carrying of fitness certificate necessary for valid registration – Admittedly, vehicle had no valid fitness certificate on date it was set on fire – Vehicle brought on road without such certificate – Clear case of violation of conditions of policy – Insurer not liable to compensate." 

 

Result: Appeal Dismissed.  

 

18.  It is argued by the Advocate for OP No.2 that, the complaint is not maintainable in view of the fact that there is one 'Arbitration' clause and on 'Jurisdiction' clause in the agreement executed between the complainant and OP No.2, in which the complainant has specifically agreed that the disputes if any between the parties have to be referred to the sole Arbitrator for adjudication through Arbitration. Complainant cannot invoke the provisions of the C.P Act and he is not a consumer as defined under the Act and he is a borrower under a contract governed by the contract itself.  It is argued that, complainant purchased the said lorry with the financial assistance of OP No.2 to an extent of Rs.6,40,000/-.  Therefore, there is no such cause of action to file this complaint against OP No.2 without any deficiency of service and prayed for dismissal of the complaint against OP No.2.     

 

19.  We have carefully gone through the documents submitted by complainant it is seen that, the OP No.1 herein has accepted the policy bearing No.VGC0324724000100 on 06.08.2013 by receiving premium and the IDV of the said lorry was Rs.7,00,000/-.   Now the contention taken by the OP No.1 is that, the fitness  certificate of the said lorry was not valid and the same was expired at the time of accident.  Complainant has violated the terms and conditions of the policy and also the M.V Act and it has rightly repudiated the claim made by the complainant and she is not liable to claim any compensation under the said policy.  Whenever the insurance company accepted the insurance policy and the policy was in force at the time of accident, its duty is to settle the claim.  Herein, the OP/insurance company failed to do so.  The decision relied on by the complainant is squarely applicable to the facts of the present case on hand and therefore, repudiation of the claim made by the complainant herein cannot be reasonable and justifiable.    Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP No.1/insurance company in settling the claim of the complainant.  Hence, the complainant is entitled for compensation on non-standard basis.  Therefore, we are of the considered opinion that, it is just and proper to award compensation under the head non standard basis as per the decision reported in AIR 2010 Supreme Court page:2090 at the rate of 75%. Complainant purchased the said lorry with the financial assistance of OP No.2, it is only a formal party.  Therefore, complainant as against OP No.2 is liable to be dismissed.  Accordingly, this Point No.1 is held as partly Affirmative to the complainant.

 

 

20.  Point No.2:- For the foregoing reasons, we pass the following.

ORDER

        It is ordered that the complaint filed by the complainant U/s 12 of CP Act 1986 is hereby partly allowed.

 

The OP No.1 is directed to pay a sum of Rs.5,00,000/-, along with interest at the rate of 6% p.a from the date of complaint till realization.

 

 

It is further ordered that, the OP No. 1 is  directed to pay a sum of  Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of the proceedings. 

 

It is further ordered that, the OP No. 1 is directed to pay the above amount to the complainant within 60 days from the date of this order. 

 

Complaint as against OP No.2 is dismissed. 

 

        (This order is made with the consent of Members after the correction of the draft on 04/01/2016 and it is pronounced in the open Court after our signatures.)

 

 

 

MEMBER                   MEMBER                      PRESIDENT

 

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1

Witness examined on behalf of Complainant:

                                                -Nil-

On behalf of OP No.1 one Sri. G. Vinayprakash, the Assistant Manager Legal examined as DW-1 by filing affidavit evidence.  

 

Witnesses examined on behalf of OP No.1:

Sri. Himath Kedar M.C, Surveyor examined as DW-2 by filing affidavit evidence.  

Witnesses examined on behalf of OP No.1:

 

Sri. Thippeswamy, the P.A Holder and Senior Legal Co-ordinator

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Copy of insurance policy
02	Ex-A-2:-	Copy of notice dated 11.12.2013 issued by the OP No.2
03	Ex-A-3:-	Copy of letter written by OP No.1 repudiating the claim of the complainant.

 

Documents marked on behalf of Opponent:

01	Ex-B-1 & 2:-	Certified copy of insurance policy with schedule
02	Ex-B-3:-	Certified copy of computation table
03	Ex-B-4:-	Certified copy of commercial vehicles package policy

 

 

MEMBER                   MEMBER                      PRESIDENT

Rhr.