-::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.55/2018.

                                                            Date of filing: 16.08.2018.

                                                                   Date of disposal:  13.06.2019.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                                                                                                 B.A., LL.B.,

                                                                                                President.

                              (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:             Rajkumar @ Shivraj, S/o Manikappa Karanji,

                                                   Age: 58 years, Occ: Business,

                                                   R/o H.No. 8-7-154, KHB, Colony,

                                                   Bidar.                                                                                                                                                                                                                                

                                              (By Sri.Keshavrao H.S., Adv.)                                         

                                                                 VERSUS

OPPONENT/S:                    The Branch Manager/ Authorized Signatory,

                                                Bharati Axa General Insurance Co.Ltd.

                                                Represented by it’s Branch Manager,

                                                Branch Office, Ground Floor, STBT,

                                                Darga Road, Santraswadi,

                                                Kalaburgi-585101.

                                            ( By Sri. Satish Kulkarni, Adv. )

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

This complainant is against the O.P./Insurance company U/S. 12 of the C.P.Act, 1986 alleging deficiency of service.

2.         The gist of the complaint is as follows:-

            That, complainant had purchased New Motor Cycle Bajaj duke from KMT Kalburgi, Show room against a price of Rs.1,54,000/- on 07.04.2016.  Out of the aforesaid price an amount of Rs.99,802/- was paid by cash and the balance of amount was availed as loan from the Bajaj Auto Finance Co.Ltd. repayable in equated monthly instalments.  On receipt of insurance instalment, the O.P. had issued comprehensive policy bearing No. TFW/S4584389/ED/04/004442 date of validity from 07.04.2016 to 06.04.2017.  The complainant had got deposited the fees/charges, Life Time Tax and other amounts necessary with the R.T.O, Bidar on 25.05.2016 for registration of the vehicle , but the Transport authorities took their own time to allot the Registration card of the vehicle, post the payment of charges and vehicular inspection.

3.         On 26.05.2016, when the complainant was coming from Bhalki to Bidar driving the said vehicle, in the process of giving way to an oncoming vehicle, it got skidded and dashed against a tree on the road side and got damaged.  The complainant also sustained injuries.  The vehicle was taken to the show room of the dealer i.e. KTM, where it was inspected and an estimate of Rs.1,44,230/- was issued with no assurance that, the vehicle would properly be plied on the road after effecting the repairs.  The complainant was advised to opt for a new vehicle.  The complainant had informed the accident to executives of the opponent by names Mallikarjun and Vasanth Kulkarni but, his claim is not being entertained on the pretext that, the vehicle was not assigned the registration. Mark.

4.         The complaint further canvasses that, the ground of refusal is vague and baseless as he has demonstrated to the Insurer about his details of payments for registration to road transport authorities and also allotment of registration number prior to the date of accident i.e. K.A.38S.7366.  It is the contention of the complainant that, the insurance cover within the validity period being a comprehensive one, the O.P. insurance company is liable to pay the estimated amount for repair or in  the alternative provide a new vehicles together with compensation and costs.

5.         The opponent entering into defence has admitted about the purchase of the vehicle and issuance of insurance cover but vehemently demonstrates that, the vehicle having been purchased on 07.04.2016, temporary registration mark was given valid up to 30.04.2016 only and the permanent registration was done on 23.07.2016 and thus on the date of accident, the vehicle was not registered and hence violation of section 39 of the motor vehicle Act. has taken place.  Thereby the insurance company was right in not entertaining the claim of insurance claim.  A presumption is  also raised that, the complainant was not holding valid driver licence on the date of accident.

6.         Both sides have filed their respective evidence affidavits,  documents and written arguments and were heard in length.  Few judgments were also roped in by the parties trying to justify their claims.

7.         Considering the rival contentions of the parties the following points arise for our consideration.

1. Does the complainant prove that there is deficiency of service in the part of the Opponent?
2. Do the Opponents prove that, it was justified in denying the claim?
3. What orders?

8.         Our answers to the points raised are as follows:-

1. In the affirmative.
2. In the negative.
3. As per the final orders owing to the following:-

                                       :: REASONS ::

9.         Point (a) Herein, the accident was self and no police case was filed.  But the estimate of KTM automobiles coupled with colour photographs submitted by the complainant amply proves the accident to the vehicle and damages thereto.  Further, there is  no serious dispute by the the opponent regarding the accident.  Only a defence is raised regarding the price of the vehicle at  Rs.99,082/-.  The complainant has produced statement of accounts and few money receipts of M/s Bajaj Auto Finance from which it is evident that, he had availed a loan of Rs.56,000/- from the finance company which is subtly admitted by the opponent insurance Company.  The policy being a comprehensive one the O.P. should have settled it at the earliest.  Denial of the same on imaginary grounds is surely a deficiency of service and hence we answer this point accordingly.

10.       Point (b) the opponent in it’s versions, affidavit and written arguments has canvassed two points justifying it’s rebuttal-(i) The vehicle was not registered on the date of accident & (ii) The driver was not holding a proper driving licence.  As far as the contention in (i) is concerned, the complainant has submitted copy of receipt No. 4124970 dt.25/05/2016 of the R.T.O,Bidar, evidencing that, a sum of Rs.19,716/- was remitted for the purpose of registration and Regn. No. KA-38 S 7366 was assigned by the authorities.  The issuance of R.C. card at a later date cannot be a ground to belittle the fact of the payment receipt.  Hence on that, count the contention of the O.P. regarding non registration cannot be accepted.  Further the Hon’ble Supreme Court in the case law reported in 2017 (I) C.P.R.-page 57- Lakshmichand V/s Reliance General Insurance Company has been pleased to hold in respect of breach of policy condition.

            “For insurer to avoid his liability, breach of policy must be so fundamental in nature that, it brings contract to an end”.  Hence, we ignore this defence of the opponent. 

         As far contention of opponent at (ii) is concerned, primarily it was presumption and then a vehement submission was forwarded that, on the date of accident the complainant was not holding a valid D.L. we have perused the copy of D.L. We produced by the complainant.  It is in his alias name Shivraj, bearing No. KA-38-1998 0000093 dated 24.04.1998, valid upto 22.05.2018 (NT) authorising him to drive light motor vehicle.  The opponent taking a reference from Judgment of the Hon’ble High Court of Karnataka reported in 2011 Kant. MAC.632 (KANT) has tried to drive in a point that, the D.L. having been for LMV and the vehicle under caption being a Motor Cycle, there has been a violation of policy condition. Per contra, the complainant submitting the Judgment of the same Court reported in [(2018 Kant MAC 40 (Kant)] has emphasized that, as per the latest Judgment it is a settled law that,

“ Supreme Court in case of Mukund  Dewagan V/s Oriental Insruance Co.Ltd. in civil Appeal no. 5826/2011 disposed of on 03.07.2017 held that, insurer cannot escape the liability on the ground that, driver of light motor vehicle did not have transport endorsement”. 

11.       Additionally in II (2016) CPJ.84 (NC)- Harinder Pal Singh V/s National Insurance Co. the National Commission has been pleased to hold that “Insurnace company has no right to raise the point regarding validity of D.L.”

            Further more in another case 2014 (I) CLT page-231 ( Delhi H.C.) Oriental Insurance Company Ltd. V/s Biro Devi, the Hon’ble High Court has been pleased to hold that,

“ Technical defect in D.L. unless contributed to the cause of accident cannot be a ground to escape liability of Insurance”.

12.    The instant case is not regarding satisfaction of a third party claim but, that of the owner/insured, who had obtained a comprehensive policy.  The O.P. could have shown it’s reasonableness and proper business acumen by settling the claim at the earliest alas but, the O.P. has preferred to drag his feet on unsavoury grounds.  Hence we answer point (b) in the negative and proceed to pass the following:

::ORDERS::

The complaint is allowed in part.

1. The opponents  is hereby directed to pay the estimated sum of Rs.1,44,230/- to the complainant.
2. In the peculiar circumstances we are not inclined to award any further compensation or interest in favour of complainant;
3. A litigation expense of Rs.5,000/- be further paid by the opponent.
4. Four weeks time granted to comply the order.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this   13^th  day of June 2019).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                 President.                                                                                       

Documents produced by the complainant

1. Annexure.A- Cash memo of KTM, Kalaburgi Dt.07.04.2016.
2. Annexure.B– Copy of insurance policy.
3. Annexure.C-  Copy of cash receipt no.4124970,dt.25.05.2016 of RTO  Bidar.
4. Annexure.D– Copy of Registration Card of Vehicle no.K.A.387366.
5. Annexure.E  & F- Colour Photographs of damaged vheicle  
6. Annexure.G-  Estimate of KTM Kalburgi.
7. Annexure.H-  Letter dt.09.08.2016 from the O.P. to the complainant
8. Annexure J –  (Í’excluded) letter of rebuttal dt.26.09.2016 from the O.P.to the complainant.  
9. Annexure K-   Copy of statement of account issued by Bajaj Auto  finance in the name of complainant.
10.  Annexure .L- 10 cash receipts of Bajaj Auto Finance in favour of the complainant.
11.  Annexure M-Legal notice with postal receipts issued to the O.P. by         The complainant.

     12.Annexure N- Copy of D.L. in the name of Shivraj S/o Manikappa     Karanji.

     13. Annexure P- (‘O ‘Excluded) Copy of Aadhar Card of Rajkumar Karanji.

     14.Annexure Q- Copy of Voter I.D. card of Rajkumar.

     15. Annexure R- Copy of Pan Card of Manikappa Karanji.

 Document produced by the Opponents.

1.Annexure-R1- Copy of the insurance policy with policy conditions.

2.Annexure-R2- Copy of letter dt. 09.08.2016 from the O.P. to the    complainant.

Witness examined.

Complainant.

1. P.W.1- Sri. Rajkumar @ Shivraj S/o Manikappa Karanji

                  (complainant)

Opponent.

1. R.W.1- Shivali Sharma authorised officer of M/s Bharti Axa Beneral       Insurance Company.

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                   President.