KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 275/2015

JUDGMENT DATED: 10.10.2023

(Against the Order in C.C. 08/2008 of CDRC, Alappuzha)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Bajaj Allianz General Insurance Co. Ltd., 3^rd Floor, Finance Tower, Kaloor, Kochi.

(By Adv. Rinu S. Aswan & Pallichal Aswakumar)

                                                Vs.

RESPONDENTS:

1. Maryamma, W/o Jose Thomas, Santhi Maria, Karumkudi P.O., Ambalapuzha, Alappuzha.

2. Jose Thomas, Santhi Maria, Karumkudi P.O., Ambalapuzha, Alappuzha.

(By Adv. R. Suja Madhav for R1 & R2)

3. Maruti Udyog Ltd., 11^th Floor, Jeevan Prakash, Kasturba Gandhi Marg, New Delhi-100 001.

4. Indus Motors Co. Ltd., City Workshop, M.G. Road.

5. The Works Manager, Indus Motors Co. Ltd., M.G. Road, Cochin.

(By Adv. C.R. Suresh Kumar for R4 & R5)

6. Maruti Suzuki Ltd., Regional Office, 2^nd Floor, Tutus Tower, Palarivattom, Cochin-24.

JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

This is an appeal filed u/s 15 of the Consumer Protection Act, 1986 by the 5^th opposite party in C.C. No. 08/2008 on the file of the Consumer Disputes Redressal Commission, Alappuzha (will be referred to as District Commission for brevity) against the order dated 30.01.2015.  The District Commission had allowed the complaint and directed the appellant to pay Rs. 63,750/- along with interest @ 9% per annum from 16.01.2008 till the date of realization to the complainant as compensation regarding the loss caused to the motor car owned by the complainants which was insured with the appellant.  Being aggrieved by the aforesaid order this appeal has been filed. 

2.  This is the second round of litigation.  Initially the District Commission had allowed the complaint against which an appeal was filed as A 461/2011.  This Commission as per the judgment dated 07.02.2012 had allowed the appeal by setting aside the order of the District Commission and the matter was remanded for fresh disposal by providing an opportunity for the opposite parties to implead the necessary parties for adjudication.  After the remand, the appellant was additionally impleaded as the 5^th opposite party. 

3.  The case of the complainant before the District Commission was as under:  The 1^st complainant is the registered owner of the Maruthi M 800 vehicle bearing No.K.L-5/K­8087.  The said car was being used by the 2^nd complainant, the husband of the 1^st complainant. The complainants had insured the vehicle with the 5^th opposite party. On 22.06.2007, when the vehicle was driven by the 2^nd complainant, the front portion of the car caught fire.  The said accident was duly intimated to the 2^nd and 4^th opposite parties. On 25^th June, at the instance of the 2^nd and 4^th opposite parties, the vehicle was taken to the workshop of the 2^nd opposite party for repair. The 2^nd, 3^rd and the 4^th opposite parties jointly made the complainants believe that the total estimated cost of repair work was Rs. 69,000/-, and the said amount would be reimbursed by the 5^th opposite party. On 27^th June 2007, the complainants lodged a claim with the 3^rd opposite party. On 27^th September 2007, the 4^th opposite party obtained Rs. 5,000/- from the complainants as advance towards the cost of repairs. The 4^th opposite party assured the complainants that the work would be completed within 10^th November 2007.  But the 4^th opposite party did not keep his word, and due to their negligence and deficiency, the 3^rd opposite party repudiated the claim of the complainants on flimsy grounds. The 2^nd and the 4^th opposite parties issued a bill to the complainants for an exorbitant amount as the charges of repair claimed to have been effected in the complainants’ vehicle. The complainants sustained untold mental agony at the hands of the opposite parties. Hence the complaint was filed.

4.  The opposite parties appeared and filed their respective versions. The 1^st and the 4^th opposite parties jointly filed version contending as follows: The complaint is bad for non-joinder of parties. The complainants have not impleaded M/s. Bajaj Allianz General Insurance Company Limited to the array of the opposite parties. The complainants had never entered into any sort of contract with the 2^nd and 4^th opposite parties. The complainants have suppressed material facts. Actually the fire could have been emerged from the LPG fittings. The 4^th opposite party never furnished to the complainants any estimate of Rs. 69,000/-. They never effected any sort of assurances to the complainants, and as such there was no obligation on the part of the said opposite parties to effect repair. The complaint is vexatious as well as frivolous.  Hence they sought for dismissal of the complaint with costs.

5.  The 2^nd and 3^rd opposite parties filed version contending that as per the estimate the approximate cost of repairing was Rs.1,28,000/-, and the same was duly intimated to the complainants. The insurance value of the vehicle was only Rs. 85,000/-.  The insurance company issued a letter to the complainant requiring her to produce the concerned records furnishing the actual reasons for the claim. But the complainant did not respond to the said letter.  The said opposite parties never caused the 2^nd complainant believe that the probable cost of the repair work would be Rs. 69,000/-.  The 3^rd opposite party had never promised the complainant that the said amount would be reimbursed by it, for the insurance claim could only be settled in tune with the terms and conditions of the insurance, and that too by an insurance company.  The 3^rd opposite party being not an insurance company, the prayer against the 3^rd opposite party is unsustainable.

6.  The additionally added 5^th opposite party filed version contending as follows: The 1^st complainant herself had violated all legal principles and statutory obligations by using the vehicle in question by totally violating the Tariff General Rules 42 of Indian Motor Tariff.  The 5^th opposite party had issued a Private Vehicle package policy vide policy No. BA 3018229 for the period from 25.05.2007 to 24.05.2008 in respect of the vehicle bearing Reg. No. KL-5/K/8087 in favour of the 1^st complainant.  In the certificate cum policy schedule it was clearly endorsed that the 1^st complainant had not remitted the extra premium towards LPG/CNG.  After obtaining the policy, the 1^st complainant herself had fitted the above mentioned vehicle with domestic LPG kit and used the same without obtaining the requisite and mandatory permission from the Regional Transport Authorities as required under the General Rules 42 of India Motor Tariff, thereby grossly violating the provisions of Sec. 52 of Motor Vehicle Act 1988 and rules framed thereunder by committing a totally unlawful act forbidden by law, for which she herself is liable and responsible.  The claim was intimated by the complainant only on 02.07.2007 i.e; after a very long delay of 10 days from the date of the alleged accident and further the matter was reported to the Aroor Police station authorities only on 11.09.2007 i.e; after a huge delay of 81 days from the date of the alleged accident.  The complainant was duty bound to give immediate notice about the alleged accident to this opposite party as per condition No. 1 of the policy issued in respect of the vehicle.  The 5^th opposite party immediately on receipt of the claim intimation had deputed a qualified licensed independent investigator to inspect and conduct investigation into the alleged accident and file authentic report for the same.  The above investigator, after conducting detailed investigation had submitted his report dated 11.09.2007 wherein he had clearly stipulated that the damage to the vehicle could neither be attributed to be an accident by an external means nor as a result of any malicious act and hence the claim did not fall under the purview of insurance.  The complainant had deliberately removed the vehicle from the spot of accident depriving the opposite party an opportunity to ascertain the necessary facts relating to the accident, including cause of loss, circumstances and question of loss required to decide the admissibility of claim.  On receipt of the claim intimation regarding the fire accident this opposite party had deputed an independent licensed surveyor and loss assessor Sri. K.V. Augustine, to conduct survey and assess the loss in respect of the damages caused to the insured vehicle.  The said surveyor had conducted detailed survey and assessed the damages and submitted his report dated 02.01.2008.  The surveyor assessed the total spare parts cost including taxes and other levies as Rs. 37,503.21 and Rs. 9,550.60 towards total labour charges totaling Rs. 47,053.81.  From the aforesaid amount Rs. 1,300/- was deducted towards salvage value and Rs. 500/- was deducted towards policy excess and the net loss was assessed at Rs. 45,253.81.  But the complainants were not entitled to get any amount as the vehicle was fitted with a domestic LPG kit illegally and the same was also not endorsed in the registration certificate as well as in the policy of insurance. Hence they sought for dismissal of the complaint with costs. 

7.  The evidence consists of the testimony of the 2^nd complainant as PW1, and the documents Exbts. Al to A23 were marked. On the side of the opposite parties, 1^st and 3^rd opposite parties were examined as RWs l and 2, and the documents B1 to B2 were marked. Exts. B3 to B9 were marked on the side of the 5^th opposite party.  The Advocate Commission report was marked as Ext. C1.  The photos produced along with the commission report were marked as Ext. C2 series.    

8. Heard both sides.  Perused the records received from the District Commission.

9.  Admittedly, the vehicle in question was covered by a comprehensive insurance policy with the appellant.  On 22.06.2007 at about 6 p.m. the vehicle had met with an accident due to fire and the front portion of the vehicle got damaged. The matter was reported to the 4^th opposite party who had issued the package policy in respect of the vehicle in the name of the 1^st complainant.  But in the package policy there was no remittance made towards extra premium by the complainant for the use of LPG/CNG.  According to the appellant, after obtaining the policy the 1^st complainant had unauthorizedly fixed the LPG kit and used the same without getting permission from the Regional Transport Authority as envisaged under General Rules 42 of India Motor Tariff which amounted to violation of the provisions under Sec. 52 of Motor Vehicles Act which according to the appellant was an unlawful act.  So the appellant had repudiated the claim.  There was also delay in reporting the matter.  The policy condition was violated and the said fact was brought to the notice of the appellant through the investigation conducted by the authorized surveyor of the 4^th opposite party.  On 11.09.2007 the surveyor had filed a report that loss of the vehicle could neither be attributed on an accident by external means nor as a result of any act and hence the same did not fall under the purview of insurance.  It is also alleged in the report that the complainant had deliberately removed the vehicle from the spot of accident and deprived the opposite party an opportunity to ascertain the real state of affairs.  But later an independent licensed surveyor had inspected the vehicle and assessed the total amount to be required for repair as Rs. 47,053/-.  On the basis of the violation of the conditions of the insurance policy it is alleged that the insurance company has no liability to honour the claim and in that event no deficiency of service could be attributed.  So the complaint is sought to be dismissed. 

10.  In this connection it is significant to note that the appellant had admitted the fact that the vehicle was insured with them as covered by a comprehensive policy.  Our Hon’ble Supreme Court in Civil Appeal No. 2703 of 2010 in Amalendu Sahu Vs. Oriental Insurance Company Ltd. had considered the scope of violation of policy condition and the yardsticks to be adopted when such matters are being adjudicated.  It was a case where the District Commission had declined to order compensation on the ground of violation of policy condition.  This finding was upheld by the State Commission and also the National Commission.  But when the matter reached before the Apex Court it declined to approve the findings rendered by the Foras on the reason that the vehicle was covered by a comprehensive insurance policy and the accident had taken place during the subsistence of such a policy.  The Apex Court had placed reliance upon the earlier precedents in a decision taken by the National Commission in United India Insurance Company Limited Vs. Gian Singh reported in 2006 CTJ 221 (CP) and an earlier decision of the Apex Court in National Insurance Co. Ltd. Vs. Nitin Kandelwal reported in 2008(7) SCALE 351.  In these rulings it was held that in case of violation of the conditions of policy as to the nature of the use of the vehicle, the claim ought to have been settled on a non-standard basis.  Even assuming that there was breach of condition of the insurance policy as per the view taken by the Apex Court in such cases the insurance company ought to have settled the claim on non-standard basis.  In Nithin Khandelwal (supra) the State Commission had allowed 75% of the claim on non-standard basis which was upheld by the National Commission and affirmed by the Apex Court and ultimately separate guidelines are incorporated in the above ruling with respect to the percentage of claim which could be ordered in case of violation of the policy conditions.  Three categories are incorporated in the guidelines and the third category is any other breach of warranty / condition of policy including limitation as to use.  The percentage to be paid is up to 75% of the admissible claim.  Basing upon these authorities the District Commission had allowed the claim and directed the appellant to pay 75% of the IDV of the vehicle on non-standard basis, as there was sufficient evidence brought before the District Commission that the vehicle is in a condition of total loss.  The learned counsel for the appellant would place reliance upon the ruling of the Apex Court in Civil Appeal Nos. 219-222 of 2019 in Regional Transport Officer & ors. Vs. K. Jayachandra & anr. to canvass a proposition that fixing of LPG kit without obtaining necessary permission from the Transport Authorities would amount to alteration of vehicle as contemplated as per the proviso under Sec. 52 of the Motor Vehicle Act.  It is true that the complainant had violated the policy condition in fixing an LPG kit without obtaining necessary permission from Motor Vehicle Department.  That could only be construed as a breach of policy condition and total denial of compensation cannot be made.  The District Commission had applied the guidelines stipulated by the Apex Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. and ordered the compensation.  The District Commission has approached the matter in its correct perspective and reached a proper conclusion.  Therefore, we do not find any reason to interfere with the order passed by the District Commission. 

In the result, the appeal fails and is accordingly dismissed. 

Parties shall bear their respective costs.      

                            AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                      RADHAKRISHNAN K.R.  : MEMBER

jb