BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                      

Dated this the 11^th January 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                 : HON’BLE MEMBER

ORDERS IN

C.C.No.52/2014

(Admitted on 05.02.2014)

Mr. Shanawaz Khan, aged 50 years,

S/o. Akbar Khan,

D.No.3.14.1257A,

Makan Street,

Bikarnakatta,

Mangalore  575 005.

                                          ….. COMPLAINANT

(Advocate for the Complainant: Sri NK)

VERSUS

The Senior Divisional Manager,

The New India Assurance Co. Ltd,

Divisional Office,

2^nd Floor, Centenary Building,

G.H.S.Road,

Mangalore  575 001.

                                         …........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri SKU)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

     The complainant contends he had insured his vehicle Mahindra Xylo, bearing registration No. KA/20/P/0848 with opposite party.  On 26.9.2012 the vehicle was extensively damaged by few miscreants and complainant was injured was admitted to the hospital.  Crime No.119/2012 was registered against one Santhosh Kumar and others.  When claim was laid with opposite party for repairs carried out after the surveyor report opposite party repudiated the claim after delaying just the claim of complainant.  False complaint was filed by one Raviraj Shetty in crime no 119/2012.  As such the complainant got issued legal notice seeking payment of the expenditure incurred towards repairs of the vehicle which was not complied by opposite party.   Hence seeks relief claimed in the complaint.

II.      Opposite party in the written version contends the ownership of the vehicle of the complainant and that it was insured with opposite party and the damages caused to vehicle by misconceived were all denied. Asserting suppression of facts by complainant opposite party contends the vehicle was used for committing crime by the complainant and that led to registration of crime No.119/2012 against complainant.  If the alleged damage is proved to be not due to any accident and as per the terms and conditions of the policy of insurance the opposite party is not liable to indemnify the complainant.  The complainant has failed to furnish documents called for from him for processing complainant’s claim.  The complainant is well aware that charge sheet which would show the insured vehicle involved in the crime or not.  The legal notice received was replied properly.  Contending that there is no deficiency in service on the part of opposite party and that the intention of the complainant is to harass and extracting money from opposite party filed false complaint.   Hence seeks dismissal.

2.     In support of the above complainant Mr. Shanawaz Khan filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C5 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Sheshappa Naik M (RW1) Authorised Administrative Officer, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R9 as detailed in the annexure here below.

In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

               Point No.  (i): Affirmative

              Point No.  (ii): Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):  As seen from the written version opposite party denied Insurance Policy issued covering the risk of complainant’s vehicle.  Even as per Ex.C3 reply to the legal notice got issued on behalf of opposite party to complainant’s concern there is no admission of issue of policy in respect of complainant’s vehicle in question.  Ex.R5 is copy of the insurance policy issued by opposite party to complainant in respect of the Vehicle Number KA.20.P.0848 for the period from 31.10.2011 to 30.10.2012 the incident took place on 26.9.2012. Hence the complainant as the consumer and the opposite party is the service provider having issued the policy in respect of complainant’s vehicle is the service provider is established by the complainant. Opposite party has repudiated the claim of the complainant.  Hence there is dispute between the parties as contemplated under section 2 of the C P Act.  Hence we answer point no.1 in the affirmative.

POINTS No.(ii): The damage caused to the vehicle of complainant on 26.9.2012 is not disputed by opposite party.  The complainant on the date of incident had gone to collect the rentals and some incident took place and when he demanded from job oriented students payment of rentals as seen from copy of the complaint lodged by complainant registered in FIR as marked at Ex.C1 at that time some people assaulted and some injuries were caused to complainant and others and they tried to get away from that spot. At that time damage was caused to the vehicle.  On the other hand Ex.R1 the copy of the FIR and complaint registered on the complainants of one Rajendra about the said assault is nothing but a counter complaint.   In this complaint Ex.R1 it is seen when the present complainant was reversing the car it hit to the compound wall and damages caused to the vehicle.  It is not in dispute that the cases were registered against both the side and in the complaint in one respect of the complaint charge sheet was filed and in respect of the other complaint B final report was filed. 

2.     Ex.R3 is the Motor Surveyors final report in which the total damage caused to the vehicle was assed Rs. 64,817.27.  It was argued for opposite party insurance company by the learned counsel as the vehicle was involved in commission of the crime opposite party is not liable under the terms of the policy to pay any amount and as such repudiated the claim of the complainant.  In this connection the learned counsel Mrs. MNA referred to Ex.R9 contending the policy scheme of the insurance the column pertaining to limitations as to use.  The relevant portion of the limitations as to use read thus:

Limitations as to use: The Policy covers use of the vehicle for any purpose other than:

 a) Hire or Reward

b) Carriage of goods (other than samples or personal luggage)

C) Organized racing

d) Pace making

e) Speed testing

 f) Reliability Trials

 g) Any purpose in connection with Motor Trade

Reference was also made to General Exceptions mentioned in the said policy Ex.R9 especially to General Exception No.5 which reads thus:

5. The Company shall not be liable in respect of any liability directly or indirectly or proximately or remotely occasioned by contributed by or traceable to or arising out of or in connection with War, Invasion, the Act of foreign enemies, hostilities or warlike operations (whether before or after declaration of war), Civil War, Mutiny, Rebellion Military or usurped power or by any direct or indirect consequences of any of the said occurrences and in the event of any claim hereunder, the Insured shall prove that the accident, loss, damage and/or liability, arose independently of and was in no way connected with or occasioned by or contributed by or contributed to by or traceable to any of the said occurrences or any consequences thereof and in default of such proof, the Company shall not be liable to make any payment in respect of such a  claim.

Ongoing through the above we are of the view that at no stretch of imagination an act done at the spot of incident the vehicle was used by the complainant to go to collect rentals and when reversing the vehicle while trying to escape from the place of incident then the vehicle hits to the compound wall or otherwise resulted in damage due to intentional damage caused to the vehicle by complainant’s opponents by hitting the vehicle with sticks in our view cannot be termed as falling within the ambit of clause 5 quoted relied by the learned counsel for opposite party at Ex.R9 referred above.

3.     Reference was also made by learned counsel for opposite party to section 149 (1) and (2) of Motors Vehicle Act 1988.  The relevant provision reads thus:

Section 149 in The Motor Vehicles Act, 1988

149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.

(1) If, after a certificate of insurance has been issued under sub section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub section (l) of section 147 (being a liability covered by the terms of the policy) 1(or under the provisions of section 163A) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable there under, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.

(2) No sum shall be payable by an insurer under sub section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely

(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely

(i) a condition excluding the use of the vehicle

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or

(d) without side car being attached where the vehicle is a motor cycle or

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion or

(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.

The learned counsel for opposite party pointing to sub section 149 (2) (d)(iii) argued that as the vehicle was is involved in rioting/civil commotion the  criminal act alleged  involving the vehicle resulting in its damage is excluded.  Ex.C1 is the CC of the FIR registered on the complaint of present complainant Shanawaz Khan.  The offences mentioned are Sections 143, 147, 148, 427, 323 324, R/w 149 IPC.  On the other hand the offences under which case was registered again the present complainant and others in the counter complaint are Sections 448, 427, 324, 326, 504, 506 r/w 34 read with section 34 IPC.

5.     Lord Mansfield, as seen from Google search, defines a civil commotion to be an insurrection of the people for general purposes, though it may not amount to rebellion where there is a usurped power.

6.     However as seen from the terms of the policy in the case on hand we do not find any clause excluding civil commotion or damage caused during any criminal activities.  In any case in the case on hand the purpose for which the vehicle was taken was to collect the rentals.  However the learned counsel for opposite party pointed out that the weapons of the offence like iron rods were found in the vehicle at the time of incident as mentioned in the complaint at Ex.R1.  Hence, it was argued the vehicle was involved in criminal activity.  Hence it was contended the opposite party is justified in repudiating the claim of complainant.

7.    The meaning of the word rioting as found from Google search is a violent disturbance of the peace by a crowd: riots broke out in the capital.   

8.     Referring to the word meaning the learned counsel argued the acts complained of damages caused to complainant’s vehicle comes within the exclusion as mentioned in section 149 (2)(d)(iii) of M V Act. However we have to consider section 149 of M V Act speaks about duty of insurer to satisfy judgments and awards against persons insured in respect of third party risks.  This is evident from section 149 the very 1^st part their under which reads:    

149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.

In fact the case on hand pertains to the claim of insured and not third party claim.  In such circumstance in our view it is the terms of the policy which should govern the liabilities.   As can be seen from Ex.R9 as already quoted from the relevant portion there is no exclusion clause mentioned in respect of involvement of the vehicle in a crime.  Hence the argument of learned counsel for opposite party supporting the repudiation of complainant’s claim is unjustified and accordingly the same is rejected.

9.     In fact the learned counsel for complainant has drawn our attention to a reported judgment of the National Commission reported in II (2013) CPJ 611 (NC) Oriental Insurance Co. Ltd & Anr vs. Prateek Rathi  & Ors. this reported judgment reads thus:

Consumer Protection Act, 1986-(Life) Exclusion Clause Cancellation of policy-Death of insured and nominee in road accident Claim repudiated Deficiency in service District Forum allowed complaint State Commission dismissed appeal Hence revision where exclusion clause of standard policy was neither a part of contract of insurance nor disclosed to the insured, Insurance Company cannot claim benefit of exclusion clause Condition No.5 reserving right to cancel the policy was part of policy issued by petitioner in favour of deceased, nor such condition was brought to his notice; nor policy was cancelled before his death State Commission not committed any error in dismissing appeal No interference required.

The law laid down in this reported judgment in our view is fully applicable to the facts on hand.

10.  In the case on hand as mentioned earlier the surveyor assessed the liability at Ex.R3 at Rs. 64,817.27.  Hence opposite party is liable to pay this amount to complainant.  In view of the unjust rejection of complainant’s claim awarding compensation of Rs. 30,000/ towards mental agony hardship and inconvenience is justified.   Advocate fee fixed at Rs.5,000/ Hence answer point No.2 in the affirmative. 

POINTS No. (iii): Wherefore the following order

ORDER

        The complaint is allowed with cost.  Opposite party is directed to pay a sum of Rs. 64,817.27 (Rupees Sixty Four thousand Eight hundred Seventeen and Twenty Seven Pisa only) to complainant with interest at 9% per annum from the date of legal notice till the date of payment.  Opposite party shall also pay compensation of Rs.30,000/- (Rupees Thirty thousand only) towards mental agony hardship and inconveniences.

2. Advocate Fee fixed at. Rs.5,000/ (Rupees Five thousand only) 

3. Payment shall be made within 30 days from the date of copy of this order.

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 12 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open          court on this the 11^th January 2017)

              MEMBER                                                  PRESIDENT

  (   SRI T.C. RAJASHEKAR)                    (SRI VISHWESHWARA BHAT D)

       D.K. District Consumer Forum                    D.K. District Consumer Forum

       Additional Bench, Mangalore                       Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Shanawaz Khan

Documents marked on behalf of the Complainant:

Ex.C1: Certificate copy of the FIR in Crime No.119/2012 of  Mangalore East  P.S.

Ex.C2: Office copy of the Legal Notice

Ex.C3: Reply Notice

Ex.C4: Acknowledgement Card

Ex.C5: Wound certificate (produced with Reply)

Witnesses examined on behalf of the Opposite Party:

RW1  Mr. Sheshappa Naik M, Authorised Administrative Officer

Documents marked on behalf of the Opposite Party:

Ex.R1:29.09.2012: First Information Report No.120

Ex.R2:26.09.2012: Intimation to the Police about the injuries by the  Hospital Authority

Ex.R3:15.12.2012: Final Motor Survey Report by Mr. Raviraj Shetty

Ex.R4:27.10.2012: Copy of Order in Crl. Mis case No.759/2012 on the file of III Addl. District  Judge, Mangalore

Ex.R5:               : Policy Copy

Ex.R6:23.04.2013: Investigation Report by Mr. S.P. Hegde

Ex.R7:08.05.2013: Demand notice issued to the complainant

Ex.R8:04.07.2013: Reply issued by the opposite party

Ex.R9:               : Policy copy with conditions

Dated: 11.01.2017                                    PRESIDENT