Date of Filing : 06.04.2016

Date of Disposal : 28.06.2021

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED THIS THE 28^th DAY OF JUNE-2021

PRESENT

Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER

Mrs M.DIVYASHREE : LADY MEMBER

APPEAL NO.830/2016

Vedavathi.T.P

D/o Putte Gowda

Aged about 46 years

R/o Meenakshi Nilayam,

5^th Main, M.J.Nagar,

Hospet.

                                                                                 ..Appellant/s

(By Sri.S.V.Vadavadagi., Advocate)

The Divisional Manager

United India Insurance Co., Ltd.,

Yalamanchali Complex,

Road, Hospet,

Ballary District.

(By Sri.A.N.Krishna Swamy, Advocate)

                     O R D E R

 Mr. KRISHNAMURTHY.B.SANGANNANAVAR : JUDICIAL MEMBER

1. This is an Appeal filed U/s 15 of Consumer Protection Act, 1986 by the Complainant/appellant herein aggrieved by the impugned order dated 06.11.2015 passed by Ballary District Consumer Disputes Redressal Commission in C.C.No.109/2014. (for short District Commission).
2. The brief facts of the complaint case filed by the Complainant/appellant herein before the Commission below U/s.12 of the CP Act, 1986 are  that she is the owner of Toyoto Innova Car bearing Registration No.KA-35/B-0612. This   car was insured with OP/respondent for the period from 23.05.2012 to 22.05.2013 and this vehicle met with an accident on 10.07.2012, while its Driver alone was returning from Bengaluru to Ballary, near Gunter Gururaja Shetty’s coconut field, within the jurisdiction of Kudligi Police Station at about 4.30am due to bad road condition, resulting by the vehicle fell into a ditch on the left side of the road, as a result vehicle was extensively damaged. In this regard jurisdictional Kudligi police station registered a crime in No.103/2012 for the offence U/s.279 of IPC R/w Sec.183 of MV Act, 1998 and this fact was intimated to the OP company and she has also submitted her claim along with all criminal case records and quotation to the OP company. Accordingly, OP Company entrusted the surveyor to conduct inspection of the vehicle and to survey the damages caused to the vehicle in question. However, OP failed to settle the claim on the one or the other pretext. In such circumstances, the  Complainant, to avoid delay and loss to be caused on account of keeping the vehicle idle, got repaired the vehicle at BJS Motors Pvt. Ltd., Hospete, incurring a sum of Rs.3,20,750/- plus and beared Rs.38,057/- towards labour charges. In all she has spent Rs.3,58,807/- towards repair of the insured vehicle  borrowing loan from third party on interest. Since the OP has failed to settle the claim in time, was forced to raise consumer complaint U/s.12 of the CP Act, 1986 before the District Forum which was resisted by the OP/insurer contending that the insured vehicle did not have permit to ply as a maxi cab at the time of accident and the permit was obtained after 8 days of the occurrence of the accident, thereby repudiated the claim of the Complainant. This  case was enquired in to by the Commission below receiving the evidence of PW1, Ex-P1 to P25, R1 and  Ex-R1 to R3, thereby recorded negative findings on the point of deficiency   and  entitlement of the claim of the Complainant, thereby dismissed the complaint with no order as to cost.
3. Now the Complainant is in appeal, aggrieved by the said order on the grounds that the Commission below has failed to appreciate the evidence on record, in particular Ex-P2 coupled with police papers, resulting thereby recorded negative findings. The commission below failed to notice the fact that the vehicle did possess permit as on the date of RTA. Of course it was a temporary permit issued by the Department of Transport, which is valid in law for a period of 90 days was not at all perceived by the commission below. The act of insurer repudiating   the claim submitted by the Complainant and finding of the commission below is contrary to the facts, probability and law is liable to be set-aside.
4.  The Commission heard the learned counsels on record for the parties to the appeal and gone through the impugned order passed by the Commission below. Now we have to examine, whether impugned order passed by the Commission below could be maintained Or required to be interfered in appeal for the grounds of appeal ?.
5.  The policy is admittedly issued by OP/respondent in the name of insured/complainant and it is for the period commencing from 23.05.2012 to 22.05.2013. This policy is a ‘Passenger Carrying Commercial Vehicle’ and it is a package policy issued in the name of Smt.Vedhavathi.T.P, is none other the Complainant/appellant herein. We could see the particulars of vehicle in this policy, since the year of manufacturing is 2012,  the IDV is Rs.11,52,600/-. She has paid Rs.28,900/- towards premium. Geographical area is India. Policy provides for Drivers clause: Persons or Class of Persons entitled to drive: Any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured hereunder, at the time of accident and is not disqualified from holding or obtaining such a license. Further in so for as Limitation as to use: the policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988 or such a carriage falling under sub-section 3 of Section 66 of the Motor Vehicles Act, 1988.
6. In fact these aspects are not at all disputed either before the Forum below or commission. In such circumstances,   we have proceed to examine the police papers, commencing from FIR registered by Kudlagi police station in FIR No.103/2012 on 10.07.2012 for the offence punishable U/s.279 of IPC R/w Sec.183 of MV Act, 1988. It is found pursuant to the said FIR   police took up the matter for investigation, drawn mahajar, subjected the vehicle for inspection of  motor vehicle Inspector, who did inspected and has noticed the damages found on the said vehicle and gave his opinion that the accident was not the result of any mechanical defects in the vehicle. Accordingly, police submitted    charge sheet alleging for the offence of S.279 of IPC R/w Sec.183 of MV Act, 1988. Further,  we would proceed to examine the RC issued by the Registering Authority Hospete (KA35) and found vehicle registered in the name of Smt.Vedavathi.T.P W/o Puttegowda, with registration No.KA35B0612 w.e.f 25.06.2012 mentioning the details of the vehicle classified as ‘max cab’. It is found from police papers and evidence on record before the Forum below that One Sri.Mehaboob Basha,  was alone on the wheel of the said vehicle at the time of accident as driver and he was holding valid DL with badge number, was authorised to drive transport vehicle w.e.f 12.09.2014. Further in Motor Vehicle Accident Report, could see, the Senior Inspector of Motor Vehicles, RTO, Hospete,  while passing the remarks did not pass any remarks that inspected vehicle plied by the driver or the insured without authorising/holding valid permit is one vital aspect was not perceived by the commission below. Secondly the Secretary, Department of Transport, Bengaluru has issued an endorsement on 27.06.2012, is  a temporary permit by receiving Rs.1,100/- on 27.06.2012. In this document, could see, the authority  informed  the owner of the vehicle Smt.Vedavathi.T.P to obtain a permanent permit within 90 days, was not noticed by the commission below. In other words these two vital piece of evidence was not at all examined by the Commission below resulting thereby recording of a wrong findings on the points for consideration which were arise for just decision of the complaint allegations.
7.  The accident admittedly occurred on 10.07.2012, is subsequent to the issuance of temporary permit, issued in the name of insured and the insured vehicle was covered with valid insurance policy for the period from 23.05.2012 till 22.05.2013 fall well within the date of RTA namely 10.07.2012, yet  Commission below wrongly concluded on both points formulated to dispose of the complaint filed by the Complainant seeking relief against the insurer has to be held contrary to facts and law. In such view we found force in the contention of   learned counsel for the appellant  that as on the date of incident the vehicle in question was not used for the purpose of transportation/commercial activity but it was sent on a private works to Bengaluru by insured, since the police papers discloses that Sri.Mehaboob Basha, was on the wheel, as a driver holding a valid DL to drive such vehicle. Further, we found force in his contention that the Commission below ignored the evidence placed by complainant and held that the vehicle did not hold a valid permit to ply as on the date of RTA. In other words Commission below failed to perceive the effect of temporary permit issued by the Secretary, Department of Transportation, Bengaluru and its validity examining the rules.
8. Thus, we conclude that the commission below  failed to appreciated the terms and conditions of the policy issued by the insurer along with police papers and temporary permit in right perception,  resulting thereby recorded negative findings has to be held contrary to the facts and law is liable to be set aside.
9.  Accordingly the impugned order dtd.06.11.2015 passed by the Commission below in CC.No.109/2014 is hereby set aside with a direction to the District Commission to decide the complaint afresh affording opportunities to both parties as early as possible.

10. The parties are directed to bear their own cost. Notify this order

to both the parties to the appeal.

11. Send a copy of this Order to the District Commission and

     parties.

Lady Member                         Judicial Member

*NSG*