Before the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, District Kangra (HP)
Consumer Complaint No.7/08
Date of presentation: 14.1.2008
Date of decision: 30.11.2009
Sh. Kartar Singh son of Late Shri Jagdish Chand, resident of VPO Ladwara, Tehsil Shahpur, District
Kangra-HP
Complainant
Versus
United India Insurance Company Ltd., Branch Office, near Red Cross Building, Dharamshala, Tehsil Dharamshala, District Kangra-HP through it’s Branch Manager
Opposite party
Complaint under section 12 of the Consumer Protection Act, 1986
PRESIDENT: R.K.MITTAL
MEMBER: PARDEEP DOGRA
For the complainant: Sh. Rakesh Mehra, Advocate
For opposite party: Sh. Neeraj Bhatnagar, Advocate
R.K.MITTAL, PRESIDENT (ORAL)
Order/
The brief facts of the complaint, as alleged, are that the complainant, after raising a loan to the tune of Rs. three lacs, and thirty five thousand, ( Rs.3,35,000), from the KCC Bank Limited, Jamanabad, Tehsil and District Kangra, had purchased one vehicle(tractor), bearing registration No.HP-68-0639 which he had got insured with the opposite party, for a sum of Rs.2.35 lacs, vide cover note No.716087, for a period valid with effect from 31.1.2007 to 30.1.2008. It is alleged that before getting the insurance of the vehicle, the agents/employees of the opposite party had thoroughly checked, and verified all the documents of the vehicle, and only after their satisfaction, they had insured this vehicle, for the aforesaid period, vide aforesaid Insurance Policy cover note. It is alleged that on 24.3.2007, this vehicle had met with an accident, as it had fallen down from a hill, at a place (Darini), Tehsil Shahpur, District Kangra, due to which there was total loss to the vehicle. The complainant had got assessed the loss of the vehicle, which was found to be Rs.2,34,000/-,(Two lacs and thirty four thousand), as per estimate. A report of this accident was also lodged in the Police. The matter was reported to the opposite party, who had deputed the surveyor. Accordingly, the Surveyor had visited the spot, and had inspected the vehicle. The complainant had submitted all the claim papers with the opposite party, but they vide their letter dated 20.9.2007, had demanded the fitness certificate of the vehicle, as on the date of loss, from the complainant. Although, the complainant had submitted the copy of the registration certificate, which was valid with effect from 1.10.2003 to 30.9.2018, on the basis of which the vehicle was insured, but the opposite party did not settle his claim. The complainant has been requesting number of times, to settle his claim with the opposite party, but of no avail. Hence, this complaint, seeking the relief of reimbursement of the insured amount of the vehicle alongwith compensation to the tune of Rs.25,000/-, for his mental agony, and harassment.
2. The opposite party has contested the complaint by filing their reply on 5.6.2008, in which they have admitted the insurance, and accident of the vehicle. However, they have contended that after the receipt of intimation, about the accident of the vehicle, they had hired the services of an independent Surveyor Sh. Munish Katoch, who had visited the spot, and had inspected the vehicle. He had submitted his spot survey report before their company on 17.4.2007. Thereafter, the opposite party had hired the services of one Sh. Mohinder Sharma, to conduct the final survey of the accidental vehicle, and accordingly, after conducting the final survey, the Surveyor had submitted his final survey report dated 14.7.2007 before the opposite party, and he had assessed the loss/damage only to the tune of Rs.1,15,453/75 paise, subject to the terms, and conditions of the Insurance Policy.
The opposite party has contended that the Surveyor had written various letters dated 28.05.07, 6.6.2007, and 18.6.2007 to the complainant, but he did not submit the required documents. After the investigation, and due processing of the claim of the complainant, the opposite party came to the conclusion that the aforesaid vehicle was being plied on the road, without a fitness of registration certificate, and it was also plied for commercial purpose, which was in contravention of the terms, and conditions of the Insurance Policy. The opposite party had sent a letter dated 20.9.2007 to the complainant for clarification. They had also issued another reminder dated 5.11.2007 to the complainant, but the complainant had failed to reply these letters, so the claim of the complainant was rightly repudiated by them vide their letter dated 25.2.2008. The opposite party has contended that since there is no deficiency in service on their part, so they are not liable to pay any claim to the complainant. They have prayed for the dismissal of this complaint either admitting, or denying the contentions of the opposite party, made in their reply.
3. No rejoinder has been filed either admitting, or denying the contentions of the opposite party, made in their reply filed on 5.6.2008.
4. We have heard the learned counsel for both the parties, and we have also carefully gone through the case file, facts, and the evidence on the record.
5. The complainant Sh. Kartar Singh, has fully supported/corroborated the facts/averments of the complaint, on oath, in his affidavit Ex.CW-1. Sh. Santosh Kumar, owner of the firm/workshop “M/S Sani Ford” has been examined by the complainant, who has stated, on oath, that he had issued the certificate Annexure C-1, about the damage of the tractor No.HP-68-0639, which was brought to their firm/workshop by the complainant on 5.42007. He has also stated that he had issued the estimate (Annexure C-2), on 14.4.2007, about the damage of the aforesaid tractor. He has stated that he had issued the certificate about the approximate loss to the tractor in question to the tune of Rs.2, 34,000/-, as per Annexure C-2. Annexure C-3 (also Annexure OP-1), is letter dated 25.2.2008, vide which, the opposite party had repudiated the claim of the complainant. Annexure C-4(also Annexure C-7), is the photo copy of the Insurance Cover Note of the tractor. Annexure C-5(also Annexure OP-9) is the copy of the registration certificate of the tractor. Annexure C-6, is the copy of the pass-book of the loan account of the complainant. Annexure C-8 ( also Annexure OP-12), is the copy of route permit of the tractor, as “Goods Carriage Permit”, and Annexure OP-13 also relates to the permit of the tractor. Annexure C-9(also Annexure OP-10), is the photo copy of the F.I.R. Annexure C-12, is the photo copy of the letter/intimation dated 30.8.2007, made by the complainant before the opposite party regarding re-survey of the damaged tractor in question. Annexure C-14, is the photo copy of the notice dated 24.12.2007, given by the bank regarding loan to the complainant.
6. On the other hand, Ex.OPW-1, is the affidavit of Sh. Ram Singh, Branch Manager of the opposite party. Ex. OPW2, and Ex.OPW-3, are the affidavits of the Surveyors S/Sh. Manish Kumar, and Mohinder Kumar Sharma. Annexures OP-2, and Annexure OP-8, are the detailed reports dated 17.4.2007, and 14.7.2007, respectively, made by the aforesaid Surveyors. Annexures OP-3, and OP-4, are the copies of the letters dated 18.6.2007, and 28.5.2007, written by the Surveyor Sh. Mohinder Kumar Sharma to the complainant, requesting him to submit the papers. Annexures OP-5 to OP-7 are the copies of the letters dated 5.11.2007, 20.9.2007, and 6.6.2007, written by the opposite party to the complainant. Annexure OP-11, is the claim form filled by the complainant, in which the complainant had mentioned that at the time of accident of the tractor, they were coming back after leaving the goods. Annexure OP-14, is the Insurance Policy of the tractor. Sh. Hukam Singh, Clerk of the RTO Office, has been examined by the opposite party, who has stated on oath, that as per registration certificate, the fitness of the tractor NO.HP-68-0639 was valid with effect from 22.10.2003 upto 21.10.2005.
7. The contentions made on behalf of the opposite party are that the complainant was not having a valid fitness certificate of the tractor in question, at the time of the accident, and that the vehicle was being plied by the complainant on the road, in contravention of the terms and conditions of the Insurance Policy.
8. Although, the tractor comes under the definition of “Light Motor Vehicles”, but neither the opposite party has asserted that who was driving the tractor in question at the time of the accident, and whether the driver was having a valid licence or not? However, regarding the fitness certificate of the tractor, we will like to mention here that admittedly, the complainant could not produce any fitness certificate of the tractor during the trial of this complaint. The perusal of the copy of registration certificate (Annexure C-5) shows that the tractor in question was found fit with effect from 22.10.2003 upto 21.10.2005. The perusal of section 56 of the Motor Vehicles Act, indicates that what has been made necessary is that a transport vehicle shall not been deemed to be validly registered unless it carries a certificate of fitness. In other words, absence of a certificate of fitness would be a disqualification for it’s registration, and by no stretch of imagination, can it be deemed to be such a flaw so as to render the claim for indemnification, against the insurance company in valid.
8. The question which arises for our main consideration is whether the alleged absence of certificate of fitness of the tractor in question, involved in the accident, giving rise to the claim for indemnification by the Insurance Company, so as to defeat the claim of the complainant. The learned counsel appearing on behalf of the opposite party has vehemently argued that section 56 of the Motor Vehicles Act read with the terms and conditions of the Insurance Policy, made it obligatory for a commercial vehicle to be declared fit for plying, and to have a certificate of fitness in this behalf, otherwise the claim for indemnification in case of it’s accident would be invalid. We have considered the ruling “Latest HLJ 2004(HP)-448 Oriental Insurance Company Ltd. versus Sh. Ramesh Chand” in which it has been held that the repudiation of the claim on the ground that the certificate of fitness was not obtained, cannot be considered the fundamental branch of the Insurance Policy so as to disclaim the liability of the Insurance company. So, accordingly, in the present case, although the complainant was not having a certificate of fitness of his registered vehicle, at the time of the accident, but it’s absence can not dis-entitle him, for re-imbursement of his claim, from the Insurance Company.
9. Now, so far as the terms and conditions of the Policy are concerned, we have carefully gone through the original Policy, Annexure OP-4. The tractor in question of the complainant was insured with the opposite party only for commercial purpose, but the evidence produced by the parties is to the effect that the tractor bearing registration No.HP-68-0639 was being used for agriculture purpose. Annexure OP-11, is the claim form filled by the complainant. It clearly depicts that the tractor in question was returning, at the time of accident, after leaving the goods. The complainant had already got the route permit of the tractor valid on the roads, through out the Himachal Pradesh. Moreover, the evidence of the complainant shows that the tractor was being used for commercial purpose, but the insurance of the vehicle was only for agricultural purpose. Admittedly, the complainant was using the tractor in question in violation of the terms and conditions of the Insurance Policy, so he is not entitled to get any claim from the opposite party. His complaint deserves to be dismissed. Accordingly it is dismissed, leaving the parties to bear their own costs. The copy of this order be sent to the parties, free of costs, by post, and the file after it’s due completion be consigned to the record-room.
Announced R.K.Mittal
Date: 30.11.2009 President
Pardeep Dogra
Member
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