IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 25th day of March, 2022.
Filed on 21-1-2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- C.K.lekhamma, B.A.L, LLB (Member)
In
CC/No.21/2021
between
Complainant:- Opposite parties:-
Smt. Jancy A C, 1. The Manager
W/o Vincent, National Insurance Company
Brad Ford Villa, Alappuzha
Ponnadu P O (Adv. T S Suresh)
Mannancherry, 2. The Divisional Manager,
Alappuzha National Insurance Company,
(Adv.T D Rajendrakumar Divisional Office, Alappuzha
Adv. Sunitha G) Ground Floor, Somya Complex,
Vellakkinar, Civilline Road,
Alappuzha.
(Adv. T S Suresh)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Complainant’s case briefly stated is as follows:-
1. On 18.02.2020 complainant purchased a Toyota Innova Crysta car bearing registration No.KL 33 G 3400 from one Manoj M R who is a native of Changanassery. The vehicle was purchased by availing a loan of Rs.8/- lakhs from M/s IndusInd bank, Kottayam branch and the EMI is Rs.19,710/-. Sri.Manoj had executed a sale letter in favour of the complainant and the vehicle is a taxi. It was purchased for the livelihood of the complainant and at the time of purchase it was having a permit.
2. Due to Covid 19 pandemic the functioning of government offices were restricted. As per the order dated 24.08.2020 of the Ministry of Road Transport and Highways Government of India the validity of certificates such as permit, driving license, fitness, registration etc. were extended upto 30.09.2020. When the complainant approached the joint RTO Changanasserry application was not accepted. Though complainant contacted several times it was not accepted and finally complainant filed an application and the amount was paid as online. While so on 16.06.2020 at about 2.30 PM the vehicle collided with a Santro car bearing registration No.KL-04-AP 1249 at Asramam junction and an entry was made in the general diary of the North Police Station, Alappuzha. The vehicle was produced before the showroom at Nettoor and the surveyor prepared an estimate of Rs.2,89,420/- + tax. Though the 2nd opposite party who was the insurer had agreed to pay the amount initially later on 17.09.2020 the claim was repudiated on a contention that at the time of accident the vehicle had no permit. Complainant had spent an amount of Rs.2,43,711/- for repairing the vehicle and the amount was paid from the account of the husband of the complainant with SBI, Kommady branch. The act of the opposite party amounts to deficiency of service which caused much inconvenience to the complainant. Hence the complaint is filed for realizing an amount of Rs.2,43,711/- along with interest which was paid as repairing charges and Rs.1/-lakh as compensation for mental agony.
Opposite parties filed a joint version mainly contenting as follows:-
3. The complaint is not maintainable and the complainant has approached this Commission with utmost unclean hands suppressing material facts. There is absolutely no deficiency of service as alleged in the complaint. It is admitted that a policy was issued to vehicle No.KL-33-G-3400 from 25.04.2020 to 24.04.2021 and the sum assured is Rs.8 lakhs. The order of extension of vehicle documents till 30.09.2020 by the central government is not applicable in this case. It is applicable only for extending vehicle documents. Here the prior owner of the vehicle Manoj had given request to the RTO and he surrendered the permit of the vehicle for cancelation. On the basis of his request RTO cancelled the permit w.e.f. 26.04.2020. So as on the date of accident i.e.14.06.2020 the vehicle was not having valid permit. After the cancellation of permit complainant applied for a fresh permit and she obtained permit No.Kl2020-CC-5302C dated 22.07.2020 w.e.f 22.07.2020 to 21.07.2025. So as on the date of accident i.e. on 14.06.2020 vehicle was not having permit at all. The averment that complainant had given application to the Joint RTO Changanassery for changing the permit in her name is not correct. Since the existing permit was canceled w.e.f 26.04.2020, the question of change of permit in the name of complainant will not arise.
4. These opposite parties issued the policy in accordance with provisions of chapter X & XI of MV Act 1988 and it is stated in the policy certificate also. As per Sec.158 of the MV Act it is mandatory that a person driving the vehicle shall have the insurance certificate, certificate of registration, driving license and in case of transport vehicle there shall be permit and fitness. In this case admittedly the vehicle was not having permit and so there is violation of the policy condition. Hence the opposite parties are not liable to give any own damage claim to the complainant.
5. There was no assurance that the amount will be given towards repairing charges and when the claim was received a qualified surveyor was appointed and he assessed the damages as Rs.1,27,580/-. Since the vehicle had no permit surveyor recommended that the claim is not admissible. Hence the claim was repudiated on 17.09.2020. Complainant is not entitled for any relief and complaint may be dismissed with cost.
6. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of the opposite parties as alleged?
- Whether the repudiation of claim on a contention that the vehicle had no permit is sustainable?
- Whether the complainant is entitled to realise an amount of Rs.2,43,711/- along with interest as prayed for?
- Whether the complainant is entitled to realise an amount of Rs.1,00,000/- as compensation?
- Reliefs and cost?
7. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A12 from the side of the complainant. Opposite parties have not adduced any oral evidence Ext.B1 to B4 were marked.
8. Point Nos.1 to 4
PW1 is the power of attorney holder and husband of the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A12.
9. On 18/2/2020 complainant purchased a Toyota Innova Crysta Vehicle bearing Reg.No. KL.33-G-3400 from one Manoj as per Ext.A2 sale letter. The vehicle was insured with opposite parties M/s National Insurance Company, Alappuzha. Though she applied for a permit before the Joint RTO, Changanassery due to covid-19 pandemic there was restriction in opening the office and so it was delayed. She could get Ext.A5 permit only on 22/7/2020 for a period of 5 years. On 14/6/2020 at about 2.30 PM the vehicle collided with a Santro car bearing Reg.No.KL.04-AG-1240 at Asramam Junction and sustained damage. A claim petition was filed before the opposite party company and a surveyor inspected the vehicle and prepared a survey report. The vehicle was entrusted for repairs at Nippon Toyota workshop, Ernakulam and they issued Ext.A11 bill for Rs.2,43,711/-Ext.A12 is the receipt by which Rs.2,43,711/- was given for repairing the vehicle. As per Ext.A10 letter dtd. 17/9/2020 opposite parties repudiated the claim on a contention that there was no valid permit on the alleged date of accident i.e., on 14/6/2020 which is direct violation of the policy conditions. Aggrieved by the same the complaint is filed for realizing an amount of Rs.2,43,711/- along with interest and claiming an amount of Rs.1/-lakh as compensation. Opposite parties filed a joint version admitting that the vehicle had insurance coverage w.e.f 25/4/2020 to 24/4/2021. However on the date of accident i.e., 14/6/2020 the vehicle had no valid permit and the permit was issued in the name of complainant only on 22/7/2020 for a period of 5 years ie, upto 21/7/2025. Since there was no valid permit they repudiated the claim. Hence according to them the complaint is only to be dismissed. The Power of Attorney Holder of the complainant who is none other than her husband was examined as PW1 and Ext.A1 to A10 were marked. Opposite parties have not adduced any oral evidence. Ext.B1 to B4 were marked from their side.
10. According to PW1, his wife who is the complainant purchased the vehicle as per Ext.A2 sale letter on 18/2/2020. The date of accident is on 14/6/2020 which is revealed from Ext.A7 copy of General dairy abstract. Admittedly the vehicle had an insurance coverage and on getting the claim form opposite parties deputed a surveyor and Ext. B4 is the survey report and net loss assessed by the surveyor is Rs. 1,27,580/-. According to PW1 as per Ext.A11 bills the total amount spend for repairs is Rs.2,43,711/- and he has produced Ext.A12 series receipts by which the said amount was paid to M/s Nippon Motor Corporation Pvt. Ltd which is the authorized service centre. The policy is admitted by the opposite parties. However as per Ext.A10 they repudiated the claim on 17/9/2020 since the vehicle had no valid permit at the time of accident. Admittedly complainant obtained the Ext.A5 permit only on 22/7/2020. It was contented that due to covid 19 pandemic the offices were functioning with restrictions and so delay occurred for getting the permit. The learned counsel appearing for the complainant pointed out that the vehicle had a valid insurance coverage at the time of accident and the complainant could not obtained the permit due to restrictions imposed on account of Covid-19 pandemic. In said circumstances according to the learned counsel it was not fair on the part of opposite parties for rejecting the claim on a contention that there was no valid permit. Per contra the learned counsel appearing for the opposite parties pointed out that plying a vehicle without permit is violation of permit conditions and so opposite parties were justified in repudiating the claim. The learned counsel appearing for the complainant relied upon a ruling of Hon’ble High Court in Suresh Kumar Vs. Oriental Insurance Co & Another.( 2015 (4) KHC 370). It was held by the Hon’ble High Court
“The definition of transport vehicle under S.2(47) shows that it means “a public vehicle, a goods carriage, an educational institution bus or a private service vehicle.” The definition of public service vehicle in S.2(35) shows that it means “any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi cab, a motor cab, contract carriage and a stage carriage.” The definition of Autorickshaw under the Kerala Motor Vehicles Rules, 1989, R.2(c) is the following:
“(c) “Autorickshaw” means motor vehicle constructed, adapted or used to carry not more than three passengers excluding the driver for hire or reward and having less than four wheels.”
Therefore, going by these two definitions, it can be seen that a permit will be required for transportation of passengers for hire or reward. The policy contains such a provision also. Hence, if it is not used for transportation of passengers for hire or reward and it is used only for the purpose of the owner, in an event similar to the one covered by this case, it cannot be said that the vehicle has been used as a transport vehicle at the relevant time. If that be so, the insurance company cannot wriggle out of the liability.”
11. It was held by a Full Bench of Hon’ble High Court in Augustine Vs. Ayyappankutty (2015 (2) KLT 139 (F.B)
“Motor Vehicles Act, 1988, Section 149(2) (a) (i) (c) – Unless it is shown that breach was so fundamental that is led to the accident there cannot be an automatic direction to allow Insurance Company to recover amount from the owner – Insurer cannot claim exoneration from its liability if vehicle gets involved in accident after the expiry of validity of fitness certificate or permit.”
12. We do agree that the decision of the full bench is with respect to 3rd party policy. However since the decision was with respect to validity of permit it can be applied to own damage also. Hence applying the principles laid down by the Hon’ble High Court in the decisions cited above we are of the opinion that the repudiation of the claim as per Ext.A10 letter by the insurance company on a contention that the vehicle had no valid permit is not justified and the complainant is entitled to realize the amount. The total bill amount as per Ext.A11 is Rs.2,43,711/-. Ext.A12 is the receipts by which Rs.2,43,711/- was paid to M/s Nippon Motor Corporation Pvt. Ltd.
13. According to the complainant and PW1, complainant purchased the vehicle on 18/2/2020 as per Ext.A2 sale letter executed by one Manoj. Ext.A4 Registration Certificate shows that ownership was transferred in the name of complainant on 17/4/2020. Ext.A8 is the GD entry with respect to the accident dtd. 14/6/2020. From Ext.A8 it is seen that the complaint was lodged by Sri.Manoj M.R and Sri. Sujith P.S stating that their vehicle having Reg.No.KL.33-G-3400 met with an accident. Ext.A11 series receipts shows that certain amounts were paid by Sri.Manoj.R who is the previous owner of the vehicle. However there was no cross examination on these points.
14. As held by Hon’ble District Court in, State of Kerala Vs Venugopalan [1987(1)KLT SN Case No.28,(P15&P16)]. Evidence Act 1872, S.136 failure to cross examine a witness on an aspect amount to acceptance of that aspect by opposite side. This view was reiterated by the Hon. Section Court in Mahaveer Singh vs. State of Hariyana AIR 2014 SC (Supreme) 1460.
15. As per Ext.A11 bill and Ext.A12 receipts complainant is claiming an amount of Rs.2,43,711/-. According to the learned counsel appearing for the opposite parties the surveyor deputed by the insurance company inspected the vehicle and filed Ext.B4 report showing that the amount required for repair is Rs.1,27,580/-. However it is noticed that none of the opposite parties mounted the witness box and Ext.B1 to B4 were marked without examining any witness. As held by the Hon’ble High Court in M/s PRS Hospital Killipalam, Thiruvananthapuram Vs. P. Anilkumar (2020 0 Supreme (Kerala) 883.
“There are four stages before a Court of law can rely upon a document. They are (i) marking of a document, (ii) admissibility of a document, (iii) proof of contents of the document and (iv) evaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document, it does not become admissible in evidence. Further, the marking of a document and being admissible in evidence will still not render the contents of a document as proved. When a document, admissible in evidence, is marked, still to be relied upon by the courts, its contents will have to be proved. For the contents of a document to have a probative value, the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage ie, evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done, a court of law cannot rely upon any document produced or marked before it.”
So it can be seen that the survey report is not sufficiently proved since the surveyor who prepared the report was not examined as a witness. In said circumstances we are of the opinion that complainant is entitled to realise an amount of Rs.2,43,711/- which is shown in Ext.A11 bills and Ext.A12 receipts.
16. Complainant is claiming an amount of Rs.1/- lakh on account compensation on a contention that a genuine claim was repudiated by the opposite parties by which she sustained mental agony. The claim was repudiated by the opposite parties as per Ext.A10 letter on a contention that there was no valid permit. Applying the principles laid down by the Hon’ble High Court we had found that even though there is no valid permit insurance company is liable unless it is proved that the vehicle was transporting any passengers. Here in this case opposite party have no case that the vehicle met with an accident while transporting passengers and so breach was fundamental. In said circumstances complainant is entitled to realize compensation and we are limiting the same to Rs.10,000/-
17. Point. No. 5
In the result complaint is allowed in part.
A) Complainant is allowed to realise an amount of Rs.2,43,711/- along with interest @ of 9% per annum from 17/9/2020(Ext.A10 date of repudiation) till realization from the opposite parties
B) Complainant is allowed to realize an amount of Rs.10,000/- as compensation from the opposite parties.
C) Complainant is allowed to realize an amount of Rs. 2000/- as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 25th day of March, 2022.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Vincent B
Ext.A1 - Power of Attorney
Ext.A2 - Sale letter
Ext.A3 - Loan Account details issued by Indus Ind Bank
Ext.A4 - Copy of RC book of KL-33-G-3400
Ext.A5 - Copy of Permit of the KL-33-G-3400
Ext.A6 - Order of Extension of validity
Ext.A7 - Copy of Offline printing Record
Ext.A8 - Copy of General Diary
Ext.A9 - Insurance Certificate
Ext.A10 - Insurance claim repudiated
Ext.A11 - Bills issued by Toyota
Ext.A12 - Receipts issued by Toyota
Evidence of the opposite parties:- NIL
Ext.B1 - Photo copy of Policy
Ext.B2 - Photocopy of cancellation order of permit
Ext.B3 - Copy of fresh permit in the name of complainant
Ext.B4 - Survey Report
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
