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K.Kasim filed a consumer case on 27 Jul 2016 against United India Insurance Co,Ltd., Rep by its Divisional Manager, in the North Chennai Consumer Court. The case no is CC/42/2015 and the judgment uploaded on 19 Oct 2016.
Complaint presented on: 05.02.2015
Order pronounced on: 28.09.2016
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., PRESIDENT
TMT.T.KALAIYARASI, B.A.B.L., MEMBER II
WEDNESDAY THE 28th DAY OF SEPTEMBER 2016
C.C.NO.42/2015
K.Kasim,
No.4, Reliance Rice Mill Street,
Konthithope,
Chennai – 600 079.
….. Complainant
..Vs..
1. United India Insurance Co.Ltd.,
Rep. by its Divisional Manager,
No.19, Andiappa Gramani Street,
Royapuram,
Chennai – 600 013.
2. The Regional Transport Authority,
Pulianthope,
Chennai East, Chennai – 12,
| .....Opposite Parties
|
|
Date of complaint : 04.03.2015
Counsel for Complainant : Mr. S.Udhaya Kumar
Counsel for 1st Opposite Party : M/s.Nageswaran & Narichania
Counsel for 2nd Opposite Party : Ponram Rajaa
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IN BRIEF:
The Complainant is the owner of the lorry bearing Registration No.TN 04 AA 5493 and it has national permit to operate the vehicle. The permit was renewed for the period 08.03.2009 to 07.03.2010 and subsequently for the period 18.03.2010 to 17.03.2011. The Complainant paid the necessary fees on 15.03.2011 of Rs.15,000/- for renewal of permit. The permit would come into force on the next day i.e. 16.03.2011. But due to inadvertence of the 2nd Opposite Party he has mentioned that the permit validity would commence from 17.03.2011 up to 16.03.2016 instead of 16.03.2011 upto 15.03.2016 and for the mistake committed by the 2nd Opposite Party the Complainant cannot suffer. Legally the permit validity would commence from 16.03.2011 to 15.03.2016. The 1st Opposite Party cannot take advantage of the mistake committed by the 2nd Opposite Party which is illegal and the illegal mistake would not bind the Complainant. On 16.03.2011 at about 04.00 p.m the vehicle belonging to the Complainant met with an accident at Hospet – Kushtagi NH-13 Road, Gunnala Village Area, Bevoor Limits, Karnataka State and a Complaint has been registered in FIR No.12/2011 for an offence under sections 279, 338 and 304 (A) IPC before the Bevoor Police Station. The vehicle was completely damaged and a sum of Rs.10,00,000/- was spent towards repair charges. The Complainant approached the 1st Opposite Party to claim the repair charges since the vehicle has been insured with the 1st Opposite Party. The 1st Opposite Party sent a reply on 16.02.2013 stating that the claim is not admissible on the ground the permit has not been extended beyond 07.03.2009 which is blatantly false. The 1st Opposite Party is legally bound to settle the claim. The refusal to honour is unjustified and the same amounts to Deficiency in Service. Therefore the Complainant filed this Complaint to order to pay repair charges, loss of earning for a period of one year and compensation for mental agony in all for a sum of Rs.19,75,000/- with cost of the Complaint.
2. WRITTEN VERSION OF THE 1st OPPOSITE PARTY IN BRIEF:
The Complainant has admitted the fact that he is the owner of the lorry bearing registration No.TN-04AA-5493 is plying the lorry during the course of his business venture and not for his personal use. The Complainant is using the vehicle for commercial purpose only. The service of this Opposite Party was availed by the Complainant for commercial purpose. The Complainant is a limited company under the company’s act of 1956. Therefore, the Complainant is not a consumer as they were established to do a commercial activity. The present Complaint is not maintainable as the Complainant was carrying on business for profit. The first Opposite Party states that it had issued a Goods Carrying (Other Than 3 –WH) – public Carriers Package Policy bearing No.011501/31/10/01/00037233 insuring vehicle bearing no. TN-04-AA-5493 for a period from 01.02.2011 to 31.01.2012. The said policy of insurance is subject to policy terms and conditions forming part of the policy. One of the important condition being a valid 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. As on the date of accident i.e 16.03.2011, there was no permit as admitted by the Complainant in the Complaint. Therefore, no claim is admissible under the policy issued by this Opposite Party. Further, if there is an error on the part of the Regional Transport Authority in issuing the permit, nothing prevented the Complainant from rectifying the date as alleged in the Complaint by filing appropriate application for rectification. Without taking any remedial action, rushing before this forum for alleged deficiency is not proper and without any basis. The act of the Complainant is not proper and shows malafide intention and to cover the error on their part. The surveyor who is an independent person has conducted the survey in a proper manner and assessed the loss. The value of the damage to the various parts of the motor vehicle due to the alleged accident is only Rs.3,03,592/- being the assessed value of the lorry as per the surveyors report. The claim for a sum of Rs.10,00,000/- towads repairs is highly inflated, not payable and unreasonable. Therefore, the claim is not admissible and the claim is not maintainable and prays to dismiss the Complaint.
3. WRITTEN VERSION OF THE 2nd OPPOSITE PARTY IN BRIEF:
The Complaint is to be dismissed against this Opposite Party on the ground that there is no Consumer and Service Provider relationship between the Complainant and this Opposite Party. The Complainant did not have the knowledge about the Authorization issued by the second Opposite Party namely Secretary/Regional Transport Authority under Form 47 and under rule 87(2) of Central Motor Vehicles Rules 1989 which was valid for one year from the date of its issue. The Goods Carriage TN04AA5493 was covered by National Permit had five years validity issued from 08.03.2007 to 07.03.2012 and authorization to ply in the states of Tamilnadu, Andrapradesh, Karnataka, Pondichery had one year validity issued from 08.03.2007 to 07.03.2008. The said authorization was issued by the Secretary/Regional Transport Authority Chennai East u/r 87(2) & (3) of Central Motor Vehicles Rules 1989. The Complainant applied for the renewal of authorization and the same was renewed for the period from 08.03.2008 to 07.03.2009 and 08.03.2009 to 07.03.2010. Hence this Opposite Party prays to dismiss the Complaint with cost.
4. POINTS FOR CONSIDERATION:
1. Whether the Complaint is a Consumer?
2. Whether there is deficiency in service on the part of the opposite parties?
3. Whether the complainant is entitled to any relief? If so to what relief?
5. POINT NO :1
The admitted facts are that the Complainant is the owner of the Lorry bearing No.TN04AA5493 goods vehicle and he obtained National permit for the period of 5 years from 08.03.2007 to 07.03.2012 as per Ex.B1 and the said vehicle is a goods carrier. The Complainant also obtained authorization to ply the vehicle under Ex.A1 for the period 08.03.2008 to 07.03.2009 , under Ex.A2 for a period of 08.03.2009 to 07.03.2010 and under Ex.A3 for the period of 18.03.2010 to 07.03.2011 to ply the vehicle in Tamil Nadu, Andra pradesh, Karnataka, Pondichery states and subsequently the said vehicle insured with United India Insurance under Ex.A5 and the Complainant to obtain authorization certificate for the further period remitted a fee of Rs.15,000/- on 15.03.2011 vide bank challan.
6. The Complainant contended that he had paid fee to obtain authorization on 15.03.2011 and the authority ought to have authorized him from 16.03.2012 to 15.03.2016 for a period to ply the vehicle and hence the Complainant is entitled for compensation for the accident which took place on 16.03.2012 at Andra Pradesh and therefore the Complainant driven the vehicle on the date of accident with valid permit.
7. The Opposite Party contended that the Complainant is operating the vehicle for business purpose and therefore he cannot be considered as a Consumer and further on the date of accident the Complainant is not having authorization to ply the vehicle on 16.03.2011 and therefore on the date of accident at Karnataka state the vehicle met with an accident without valid authorization and therefore prays to dismiss the Complaint.
8. The Complainant vehicle is a goods vehicle and the goods vehicle is only commercial vehicle. Further the Complainant vehicle was driven to interstates such as Tamil Nadu, Andhrapradesh, Karnataka and Pondicherry for carrying goods and therefore this fact of evidence proves that the Complainant is carrying on business through his vehicle. Further the Complainant himself pleaded in his proof affidavit that the vehicle is a lorry used for transport of goods and it was insured with the 1st Opposite Party only for commercial purpose and no person will use lorry for personal use. The Complainant also categorically stated in para 5 of his written arguments that the lorry is used only for commercial purpose. Since the Complainant himself admitted that the vehicle is being used by him for commercial purpose, the Complainant cannot be considered as a Consumer and on this score alone the Complaint is not maintainable.
9. POINT NO :2
Ex.B1 is the National permit issued to the Complainant lorry for the period 08.03.07 to 07.03.2012. To ply the vehicle in the interstates authorization for National permit has to be obtained under rule 87(2) of the Motor Vehicle Act. As per Ex.A3 the Complainant was having such authorization for the period 18.03.2010 to 07.03.2011. Thereafter on expiry of authorization only few on 15.03.2011 only he had paid the fee to renew the authorization with a gap of one week. On payment of such a fee of Rs.15,000/- on 15.03.2011, Ex.A6 authorization was issued to the Complainant for the period 17.03.2011 to 16.03.2012. The vehicle met with an accident on 16.03.2011 at Karnataka. As per Ex.A6 and other documents filed by the Complainant on the date of accident on 16.03.2012 no authorization was given by the authority to ply the Complainant’s vehicle. The Complainant contended that since he paid the fees on 15.03.2011 itself, he is entitled the run the vehicle from 16.03.2011 onwards and authority ought to have issued authorization from 16.03.2011 itself and instead the authorization issued from 17.03.2011 is the 2nd Opposite Party is on fault for the same the Complainant cannot be blamed.
10. The Opposite Parties vehemently denied such arguments of the Complainant and countered that without authorization no vehicle should run.
11. The Complainant paid the fee by way of bank challan at State Bank of India. Ex.A6 categorically authorizes the Complainant vehicle to ply only from 17.03.2011. Immediately after payment of fee the Complainant is entitled to ply the vehicle is not accepted because, he has not paid the fees in continuance of Ex.A3 previous authorization which was expired on 07.03.2011. After expiry of such authorization only and after a gap period of one week only the Complainant paid the fees to issue fresh authorization and therefore considering the rival submission of both the parties and the available records we hold that on the date of accident on 16.03.2011 the Complainant is not having valid authorization to ply the vehicle at Karnataka state.
12. Since the Complainant is not having valid authorization on the date of accident on 16.03.2011 to ply the vehicle the Opposite Parties have not committed any Deficiency in Service to the Complainant and according this point is answered.
13.. POINT NO: 3
Since the Complaint is not a Consumer and the Opposite Parties have not committed any Deficiency in Service, the Complainant is not entitled for any relief in this Forum and the Complaint is liable to be dismissed.
In the result the Complaint is dismissed. No costs.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28th day of September 2016.
MEMBER – II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 08.03.2008 National Permit
Ex.A2 dated 02.04.2009 National Permit
Ex.A3 dated 03.03.2010 National Permit
Ex.A4 dated 06.05.2010 Letter from Cholamandalam DBS
Ex.A5 dated 28.01.2011 Insurance Policy
Ex.A6 dated 15.03.2011 Receipt for payment of fees for permit
Ex.A7 dated 15.03.2011 Payment of fees for permit at SBI
Ex.A8 dated 16.03.2011 First Information Report (Translation copy)
To18.03.2011 Permit issued by 2nd respondent
Ex.A9 dated 26.03.2011 Towing Bill
Ex.A10 dated 03.09.2011 Invoice
Ex.A11 dated 30.04.20111 Purchase Bill
Ex.A12 dated 04.07.2011 Purchase Bill
Ex.A13 dated 10.09.2011 Purchase Bill
Ex.A14 dated 02.11.2011 Purchase Bill
Ex.A15 dated 05.11.2011 Purchase Bill
Ex.A16 dated 08.11.2011 Purchase Bill
Ex.A17 dated 09.11.2011 Purchase Bill
Ex.A18 dated 17.11.2011 Labour charges for body work
Ex.A19 dated 20.11.2011 Purchase Bill
Ex.A20 dated 21.11.2011 Purchase Bill
Ex.A21 dated 21.11.2011 Purchase Bill
Ex.A22 dated 25.11.2011 Invoice
Ex.A23 dated 25.11.2011 Invoice
Ex.A24 dated 25.11.2011 Invoice
Ex.A25 dated 26.11.2011 Purchase Bill
Ex.A26 dated 26.11.2011 Purchase Bill
Ex.A27 dated 30.11.2011 Purchase Bill
Ex.A28 dated 01.12.2011 Purchase Bill
Ex.A29 dated 01.12.2011 Purchase Bill
Ex.A30 dated 21.11.2011 Invoice
Ex.A31 dated 21.11.2011 Invoice
Ex.A32 dated 21.11.2011 Invoice
Ex.A33 dated 01.12.2011 Purchase Bill
Ex.A34 dated 01.12.2011 Purchase Bill
Ex.A35 dated 10.12.2011 Purchase Bill
Ex.A36 dated 08.06.2012 Letter from 1st Opposite Party
Ex.A37 dated 16.02.2013 Rejection letter from 1st Opposite Party
LIST OF DOCUMENTS FILED BY THE 1st OPPOSITE PARTY :
Ex.B1 dated 08.03.2007 Certificate of Authorization for Tourist
Permit/National Permit
Ex.B2 dated 18.03.2011 Certificate-National Permit for Goods Carrier
Ex.B3 dated 06.02.2012 Final Survey Report
Ex.B4 dated 05.11.2012 Letter sent by 1st Opposite Party to 2nd Opposite
Party
Ex.B5 dated 14.11.2012 Investigation Report of Mr.V.Selvaraj
LIST OF DOCUMENTS FILED BY THE 2nd OPPOSITE PARTY :
Ex.B6 dated 17.03.2011 The National permit for the vehicle TN 04 AA
5493 validity 17.03.2011 to 16.03.2012
Ex.B7 dated 17.03.2011 The National Authorization for the vehicle TN 04
AA 5493 validity 17.03.2011 to 16.03.2016
Ex.B8 dated 17.02.2012 The Form ACC the application for surrender of
permit and clearance certificate
Ex.B9 dated 17.02.2012 The fee receipt bearing number A2166025
Ex.B10 dated 23.02.2012 The surrender slip bearing R.No.D1/7646/2012
MEMBER – II PRESIDENT
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