National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Mohameed Yusuf on 25 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4926 OF 2012 (Against the Order dated 27/06/2012 in Appeal No. 567/2012 of the State Commission Karnataka) 1. UNITED INDIA INSURANCE CO. LTD. Through the Regional Manager, DRO-1 Kanchenjunga Building,8th floor, 18 Barakhamaba Road, NEW DELHI - 110001 ...........Petitioner(s) Versus 1. MOHAMEED YUSUF S/o Sh. Gousemodin Momin, Mirde Galli Road, Opp. Byakod Building, Minaxi Chock BIJAPUR KARNATAKA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Naveen Kumar , Advocate For the Respondent : Mr. H.Chandra Sekhar, Advocate
Dated : 25 May 2018 ORDER
This revision petition has been filed by the petitioner United India Insurance Co. Ltd. against the order dated 27.06.2012 of the State Consumer Disputes Redressal Commission, Karnataka (in short 'the State Commission') passed in Appeal No.567 of 2012.
2. Brief facts of the case are that on 24.03.2009, the petitioner issued one 'Passenger Carrying Commercial Vehicle Policy' in favour of respondent vide policy No.241000/31/08/01/00009764 for the period of 24/03/2009 to 23/03/2010 as per applicable terms and conditions with the sum insured of Rs.4,30,000/-. On 28.10.2009, the insured vehicle ford Fiesta car bearing No.KA/28/E.2900 met with an accident and FIR No.290/2009 dated 29.10.2009 was registered with police station Bijapur Rural. On 12.11.2009, the respondent submitted the claim before the petitioner company. The petitioner repudiated the claim filed by the respondent and communicated to the respondent vide their letter no. Ref.241000/MOTCL/2011 dated 30.05.2011 on the ground that the "vehicle certificate of fitness was valid from 02.03.2006 to 01.03.2008 and there was no validity on the date of accident i.e. on 28.10.2009. Another ground was that the driver was not having DL authorized to drive taxi/passenger vehicle since he was not having PSV Badge. " On 17.11.2011, respondent filed a complaint No.130/2011 before the District Consumer Disputes Redressal Forum, Bijapur, Karnataka (in short 'the District Forum') and claimed for Rs.2,23,231/- towards motor damage claim, Rs.50,000/- towards mental pain and shock and sufferings, Rs.25,000/- towards costs and compensatory costs and Rs.50,000/- towards inconvenience caused in total a sum of Rs.3,48,231/-. On 23.02.2012, the District Forum, Bijapur allowed the complaint partly and passed the order that the respondent (complainant) is entitled for compensation of Rs.1,50,700/- from the petitioner (opponent) with interest at the rate of 9% from 30.05.2011 till realization and Rs.10,000/- towards mental agony and Rs.2,000/- towards litigation expenses. On 27.03.2012, petitioner (opposite party) being aggrieved by the order passed by the District Forum, filed appeal Nos.567/2012 before the State Commission. On 27.06.2012, the State Commission dismissed the appeal.
3. Hence the present revision petition.
4. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner stated that when the vehicle met with accident, it did not have a valid fitness certificate and hence the vehicle was not entitled to be plied on the road as it was a commercial vehicle. Both the fora below have not considered this aspect as violation of the terms and conditions of the policy on the ground that the complainant had applied for the fitness certificate prior to the accident and if the delay has happened in the office of the RTO, the complainant cannot be held responsible for the same. The learned counsel stated that the earlier fitness certificate expired in March, 2008 whereas he applied for the fresh fitness certificate only in June, 2009. Thus, there was a huge gap in applying to RTO for issuing fresh fitness certificate. No advantage of this delay can be given to the complainant.
5. It was further mentioned by the learned counsel for the petitioner that driver was not having passenger service vehicle driver badge and the same was also in violation of the rules. Both the fora below have erred in not considering two important aspects before allowing the claim of insurance.
6. Learned counsel further stated that in RP 2976 of 2006, United India Insurance Co. Ltd. Vs. Trilok Kaushik, decided on 09.11.2010, (NC) this Commission has allowed the revision petition filed by the Insurance Company in a consumer matter where both the fora below had allowed the claim of the complainant though the vehicle was plying without any permit and fitness certificate etc. This Commission has observed the following:-
"11. In view of the above, we are of the opinion that there is a breach of fundamental conditions as well as breach of law on the part of the complainant at the time when the accident in question took place on account of which complainant is not entitled to any compensation claimed by him.
7. On the other hand, learned counsel for the respondent/complainant stated that the complainant had applied to the RTO for the fresh fitness certificate before the date of accident, therefore, he cannot be held responsible for not having the fitness certificate at the time of accident. It was further stated that the District Forum has clearly held that the wearing of the driver badge was not mandatory, therefore, insurance claim cannot be repudiated only on this count. Learned counsel for the respondent added that both the fora below have given concurrent finding and therefore, the scope under the revision petition becomes very limited. Learned counsel for the respondent cited the following judgment:-
(1) M/s. IFFCO Tokio General Insurance Co. Ltd. Vs. Sri Krishnan & Ors., MFA No.7958/2010 (MV), dated 14.06.2012 (High Court of Karnataka). It has been held that:
"8. Section 149, stipulates that, the insurer to satisfy the judgement and award. The opinion of the full bench of this court in MFA 12371/2006 c/w MFA Crob 96/2007 in MFA12871/2006 12793 defence is not available to the insurer under Section 149 of MV Act, to deny the compensation on the ground of not possessing. In case of New India Assurance Company Limited v/s Shyam Singh and others reported in AIR 2011 SEW 4126 in MFA NO.6621/2006 and Connected matters. It has been held that the fitness certificate not be in force or expired will not disentitle claimant for claiming compensation. It has been held that non-existence of fitness certificate cannot be a reason to deny the compensation to the claimant."
8. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. In the present case, the question of driver not having the PSV driver badge is not that serious as the question of fitness certificate. Fitness certificate is an essential requirement for a transport vehicle and without fitness certificate vehicle will not be treated duly registered as per Section 38 of the Motor Vehicle Act. However, both the fora below have shown leniency and have allowed complete insurance claim on the basis of the report of the investigator and the loss assessed by him has been allowed. If the vehicle is not fit as a transport vehicle, the chances of accident are much higher. The judgment cited by the respondent in the matter of M/s. IFFCO Tokio General Insurance Co. Ltd. Vs. Sri Krishnan & Ors. (supra) relates to award of the motor claims tribunal and relates to third party insurance mainly, whereas the present case is for the own damage. Therefore, this judgment is not applicable to the present case. The spirit of this judgment can be considered in the sense that if the accident has not happened due to any fitness problem as has been held by both the fora below in this case, this can be considered violation of terms and conditions of the policy, which will not be sufficient to completely deny the claim of the complainant in the light of the decision of the Hon'ble Supreme Court in Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), wherein the Hon'ble Supreme Court has allowed to consider the payment of insurance claim upto 75% even if some condition of the policy has been contravened. It is true that in the present case a fundamental condition of plying of the transport vehicle has been breached and therefore, in the facts and circumstances of the case, I deem it appropriate only to allow 50% of the insurance claim. Accordingly, the respondent/complainant is only entitled to Rs.75,350/- [50% of Rs.1,50,700/-] with interest @6% p.a. from the date of the order of the District Forum i.e. 23.02.2012 till actual realization. The order of the District Forum and consequently, the order of the State Commission stand modified accordingly. In the facts and circumstances of the case, there seems to be no justification for awarding any compensation for mental agony and therefore, the order of District Forum awarding Rs.10,000/- as compensation for mental agony is set aside. The order of the District Forum with respect to cost of R.2,000/- is maintained. The revision petition stands disposed of in these terms. The petitioner Insurance Company is directed to comply with the order within a period of 45 days.
...................... PREM NARAIN PRESIDING MEMBER