Tamil Nadu

North Chennai

CC/42/2015

K.Kasim - Complainant(s)

Versus

United India Insurance Co,Ltd., Rep by its Divisional Manager, - Opp.Party(s)

S.Udhayakumar

27 Jul 2016

ORDER

                                                            Complaint presented on:  05.02.2015

                                                                Order pronounced on:  28.09.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd 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 28^th   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 2^nd 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 2^nd 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 2^nd Opposite Party the Complainant cannot suffer. Legally the permit validity would commence from 16.03.2011 to 15.03.2016. The 1^st Opposite Party cannot take advantage of the mistake committed by the 2^nd 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 1^st Opposite Party to claim the repair charges since the vehicle has been insured with the 1^st Opposite Party. The 1^st 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 1^st 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 1^st   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   2^nd 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 1^st 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 2^nd 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 28^th  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 2^nd 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 1^st Opposite Party

Ex.A37 dated 16.02.2013                 Rejection letter from 1^st Opposite Party

 

LIST OF DOCUMENTS FILED BY THE  1^st 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 1^st Opposite Party to 2^nd Opposite

                                               Party

Ex.B5 dated 14.11.2012                   Investigation Report of Mr.V.Selvaraj      

 

LIST OF DOCUMENTS FILED BY THE  2^nd 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