DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.<br /> <br /> CC.No 134 of 19.06.2009<br /> Decided on 01.02.2010<br /> Om Parkash son of Sh. Mukand Lal, Sole Prop. of M/s. Sarna Mal Mukand Lal, near Arya High School, Rampura Phul, Distt. Bathinda.<br /> ......Complainant.<br /> Versus<br /> <br /> 1. United India Insurance Co. Ltd., Divisional Office, Bathinda.<br /> 2. United India Insurance Co. Ltd., Divisional Office, Bathinda, through its Divisional Manager.<br /> .......Opposite parties.<br /> <br /> Complaint under Section 12 of the Consumer Protection Act, 1986.<br /> <br /> QUORUM<br /> <br /> Smt. Vikramjit Kaur Soni, President.<br /> Sh. Amarjeet Paul, Member.<br /> <br /> Present:-<br /> For the Complainant : Sh.R.K.Mittal, counsel for the complainant.<br /> For the Opposite parties : Sh. Sunder Gupta, counsel for opposite parties.<br /> ORDER<br /> <br /> VIKRAMJIT KAUR SONI, PRESIDENT:-<br /> <br /> 1. In brief, the facts of the complaint are that complainant is owner of vehicle Mahindra Utility No. PB-31B-7788. He got the said vehicle insured with the opposite parties vide Insurance Cover Note No. 621090, issued by opposite party No.1 w.e.f. 08.05.2006 to 07.05.2006 and paid an amount of premium Rs. 5,087/- to opposite party No.1. The vehicle of the complainant unfortunately met with an accident on 10.03.2007 while he was returning from Abohar to Rampura. Complainant got lodged DDR No. 33 on 13.03.2007. Complainant gave the information regarding the accident to opposite party No.1 and completed all the due requisite formalities to the opposite parties for his claim. On 26.02.2008; opposite party No.1 repudiated his claim on the ground that the Fitness Certificate was expired on 10.12.2004. The complainant furnished all the documents as required by the opposite parties at the time of getting the said vehicle insured but no such objection was ever raised by the opposite parties. He requested the opposite parties many times to settle his claim but opposite parties did not listen to his requests. Therefore he pleaded that opposite parties be directed to settle the claim of the complainant to the tune of Rs. 3,00,000/- alongwith compensation to the tune of Rs.1,00,000/- on account of mental tension, harassment and inconvenience he has suffered alongwith litigation expenses to the tune of Rs. 25,500/-. <br /> 2. Opposite parties pleaded that the complainant had violated the terms and conditions of the Insurance Policy. At the time of accident insured vehicle was not carrying valid Fitness Certificate. The insured vehicle was having Certificate of Fitness upto 10.12.2004 whereas the accident has occurred on 10.03.07. Moreover as per Section 56(1) of the Motor Vehicles Act, a transport vehicle shall not deemed to be validly registered for the purpose of Section 39 unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government and as per Section 56(2) of the Act to the effect that vehicle complies for the time being with all the requirements for the Motor Vehicle Act and Rules made there under, and since the insured vehicle was not carrying fitness certificate, so the claim of the complainant was rightly repudiated vide letter dated 26.02.2008. <br /> 3. In order to prove his allegations complainant filed his own affidavit dt. 14.10.09 Ex.C-6,and affidavit of Sh. Harpreet Singh dt. 14.10.09 Ex.C-7, and also brought on record photocopy of R.C. of vehicle No. PB-31B/7188 Ex.C-1; copy of D.D.R. dt. 13.03.07 Ex.C-2; copy of Insurance Cover Note Ex.C-3; copy of letter dt. 26.02.08 Ex.C-4; copy of Order dt. 05.05.09 Ex.C-5; copy of estimate Ex.C-8; copy of bill dt. 13.03.07 Ex.C-9; copies of quotation Ex.C-10 to Ex.C-12; photographs Ex.C-13 to Ex.C-14; Negative of of photographs Ex.C-15, and copy of Order dt. 27.02.09 Ex.C-16.<br /> 4. To controvert the evidence of the complainant, opposite parties filed affidavit of Er. Arun Kumar Surveyor dt. 26.10.09 Ex.R-1 and Sh. Balwinder Singh Divisional Manager dt. 11.11.09 Ex.R-5, and also brought on record, photocopy of survey report dt. 09.05.07 Ex.R-2; copy of Investigation report dt. 07.09.07 Ex.R-3; copy of Insurance Policy Ex.R-4, and copy of Policy alongwith terms and conditions Ex.R-6, respectively.<br /> 5. Arguments heard. The written submissions submitted by both the parties perused. First ground for repudiating the claim of the complainant is that the insured was not having Fitness Certificate when it met with an accident on 10.03.2007. In support of their contentions they have relied upon an authority of the Hon'ble State Commission, Tamil Naidu, 2005 (1) CLT 631.<br /> 6. This contention of the respondents rebutted by precedent laid down by our own Punjab State Consumer Redressal Commission, Chandigarh in case titled National Insurance Co. Ltd. Vs. Jog Raj 2009(1)CLT 665. The precedent laid down by the Hon'ble Punjab State Commission Chandigarh is binding on this forum. Therefore repudiation of the claim of the complainant on this score was illegal. <br /> 7. The next ground for repudiation of the claim of the complainant is that he was plying the vehicle in question for commercial purpose. This contention of the opposite parties stands rebutted by the precedent laid down by Rajasthan State Consumer Disputes Redressal Commission, Jaipur in case titled Rigid Global (India) Vs. Iffco Tokio General Insurance Co. Ltd., & others, II (2008) CPJ 365.<br /> 8. The next contention of the opposite parties is that the complaint is not maintainable as it has not been filed within twelve months, after repudiation of the claim of 26.02.2008 as per conditions No.7 of the Policy. Reliance has been placed on National Insurance Co. Vs. Sujir Ganesh Naik and Co., 1997 (2) CPR 306 and the same has also been followed by the Hon'ble State Commission, Maharashtra 2009(1) CLT 217. The complainant had earlier filed a complaint on the same cause of action and for the same relief before District Consumer Forum Mansa which was dismissed on 27.02.2009 for want of territorial jurisdiction and an appeal filed by the complainant against that order was dismissed by the Hon'ble State Commission, Chandigarh on 05.05.2009 with liberty to the complainant to file a fresh complaint and delay of the period spent in perusing his remedy before District Consumer Forum, Mansa was also condoned. The claim was repudiated on 26.02.2008. The complaint was to be instituted on 25.09.2009 as per conditions No.7 of the Insurance Policy. The period which during the complainant persued his remedy before the Learned Consumer Forum, Mansa is to deducted. Date of institution of the complaint before the Learned Consumer Forum Mansa has not brought on the record. The said complaint was dismissed by that Forum on 27.02.2009. Therefore, that complaint must have been lodged in the month of Dec. 2008 or Jan.2009, because notice of the complaint to the opposite parties must be of atleast 30 days. Therefore the complaint has deemed to have instituted on Jan.2009. Therefore period from 01.01.2009 to 05.05.2009 is to be deducted from the period from 26.02.2008 to 19.06.2009. Therefore if the period from 01.01.2009 to 05.05.2009 is deducted from this period the complaint would have been instituted within 12 months after 26.02.2008. Hence complaint is within limitation.<br /> 9. Moreover Section 24-A of the Consumer Protection Act, 1986 provides limitation of two years from the date of accrual of cause of action for filing such a complaint. Consumer Protection Act, 1986, is a special Act which have overriding effect on the conditions of the Insurance Policy mentioned in the written reply. <br /> 10. Opposite parties have themselves admitted their liability to the tune of Rs. 1,30,000/- which is based on the report of the surveyor Ex.R-2. The vehicle in question was insured for Rs. 2 lacs. The complainant has not been able to find any acceptable flaw in the report of the surveyor. Therefore it is held that the complainant is entitled to this amount. <br /> 11. In view of what has been discussed above this complaint is accepted with Rs.5,000/- as cost, and opposite parties are jointly and severally directed to pay Rs. 1,30,000/- with interest @ 8.5% P.A. from the date of three months after lodging of the claim till realization.<br /> 12. The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> 13. The copy of this order be sent to the parties concerned free of cost and file be consigned for record.<br /> <br /> <br /> Pronounced (VIKARMJIT KAUR SONI)<br /> 01.02.2010 PRESIDENT<br /> <br /> <br /> (AMARJEET PAUL)<br /> MEMBER<br /> <br /> <br /> <br />