State Consumer Disputes Redressal Commission
Achambhit Prasad Gupta vs The Oriental Insurance Co.Ltd. Through ... on 7 April, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/14/13
Instituted on : 01.05.2014
Achambhit Prasad Gupta,
Age about 54 years,
S/o Vindhyachal Gupta,
Bhatgaon, Surajpur, District Surajpur (C.G.) ... Complainant.
Vs.
1. The Oriental Insurance Co. Ltd.
Through : Chief Regional Manager,
Regional Office, 1st Floor, R.K. Plaza,
Ring Road-1, Pachpedi Naka,
Raipur (C.G.)
2. The Oriental Insurance Co. Ltd.,
Through : Divisional Manager,
Rama Trade Centre, 1st Floor, Near Bus Stand,
Bilaspur (C.G.)
3. The Oriental Insurance Co. Ltd.,
Through : Divisional Manager,
3rd Floor, Technopolis, 1-10-44 Chikoti Gardens,
Hyderabad (A.P.) 500016
4. M/s Tata Motors Insurance Brokers & Advisory
Services Limited,
C/o : Shivam Motors,
Bilaspur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri R.K. Bhawnani, for the complainant.
Shri P.K. Paul, for the O.P.Nos.1 to 3.
None for the O.P.No.4.
// 2 //
ORDER
Dated : 07/04/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
1. The Opposite Parties be directed to pay claim amount of Rs.20,65,000/-, interest @ 18% p.a. from 08.03.2013 till the date of filing of complaint amounting to Rs.3,71,790/-, compensation of Rs.2,00,000/- against harassment and mental agony, total comes to Rs.26,37,290/- and further pay interest @ 18% p.a. from the date of complaint till payment to the complainant jointly and severally.
2. Cost of complaint amounting to Rs.10,000/- may also be awarded.
3. Any other relief which the Hon'ble Commission being deems fit under the facts and circumstances of the present complaint is also awarded.
2. Brief facts of the complaint case are that the complainant, Achambhit Prasad Gupta is a retired employee of South Eastern Coal Fields Ltd. After retirement, the complainant started transport business for livelihood of his family and for self-employment, investing it hard earned money received from South Eastern Coal Field Ltd as his retiral // 3 // benefits. The complainant purchased one Hiwa Tata Truck from Shivam Motors (Dealers of Tata Motors) on 20.12.2013 at the cost of Rs.24,85,000/-. The said vehicle was insured with O.P.No.1 to 3 and premium of Rs.49,138/- was paid. The said vehicle was parked in the garage; driver Shri Chandra Shekhar sitting in the driving seat started the engine and also lifted the load body. The driver did not notice that high tension power line was passing through above the said vehicle; as soon as the load body came into contact with high tension wire, the vehicle got electrocuted and got burnt completely. Intimation in this regard was sent by the complainant to the Branch office, Ambikapur of the Insurance Company and also to O.P.No.4. The O.P.No.1 to 3 appointed Shri A.P. Singh, Surveyor to conduct preliminary survey. Shri A.P. Singh, Surveyor conducted preliminary survey. Thereafter the complainant submitted claim along with all relevant documents before the O.P. No.1 to 3. On being receipts of the documents, the O.P.No.1 to 3 appointed Shri R.B. Singh as Surveyor, who also inspected the vehicle and assessed the loss and submitted his report. Shri R.B. Singh, Surveyor after adjusting salvage value of Rs.3,00,000/- and excess clause of Rs.1,500 as per the terms and conditions of the policy, assessed the actual loss as Rs.20,65,500/- which is payable by O.P.No.1 to 3 to the complainant, but the O.P.No.1 to 3 did not pay the said amount to the complainant and repudiated the claim of the complainant. The complainant further averred that the Motor // 4 // Insurance Policy's Part I (Own Damage Portion) is a contract between insurer and insured. In the said contract, no where it is mentioned that the vehicle should be registered, then only, in the event of any damage, loss will be indemnified. The O.P.No.1 to 3 repudiated the claim of complainant on ambiguous and hypothetical ground. The O.P.No.1 to 3 committed deficiency in service as well as unfair trade practice, therefore, the complainant filed the instant complaint and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P.No.1 to 3 filed their joint written statement and averred that the vehicle in question was not registered with the concerned R.T.O., which is violation of terms and conditions of the insurance policy. The vehicle in question was being used for commercial purpose, therefore, fitness and permit is required, but no fitness and permit was obtained by the complainant. The complainant violated terms and conditions of the insurance policy as well as mandatory provisions of the Motor Vehicles Act, 1988. The vehicle in question was being used in the public placed without obtaining permit and fitness, which is fundamental breach of the terms and conditions of the insurance policy. Therefore, the O.P.No.1 to 3 has rightly repudiated the claim of the complainant. The complainant is not a consumer. He purchased three Hiwa trucks which were engaged with a contractor for transporting mine's material.
// 5 //
4. In spite of service of notice, none appeared before us on behalf of the O.P.No.4, hence written statement has not been filed.
5. The complainant filed documents. Document A-1 is copy of insurance policy issued by O.P.No.1 to 3, A-2 is Temporary Certificate of registration, A-3 is Letter of the complainant dated 19.03.2013 sent to Oriental Insurance Company Limited, A-4 is Claim Form, A-5 is Estimate of Shivam Motors, A-6 is Tax Invoice of Shivam Motors dated 20.12.2012, A-7 is letter of the complainant dated 20.11.2013 sent to The Oriental Insurance Company Limited, A-8 is registered notice dated 06.01.2014 sent by Shri Rajesh Kumar Bhawnani, Advocate on behalf of the complainant to The Oriental Insurance Company Limited, Raipur (C.G.), A-9 is reply dated 17.01.2014 sent by Shri R.N. Pusty to Shri Achambhit Prasad Gupta, A-10 is letter dated 10.01.2014 sent by The Oriental Insurance Co. Ltd. Divisional Office, Bilaspur to Shri Rajesh Kumar Bhawnani, Advocate, A-11 is Acknowledgement of Income Tax Return for Assessment Year 2010-11, A-12 is Acknowledgement of Income Tax Return for Assessment Year 2011-12, A-13 is acknowledgement of Income Tax Return for Assessment Year 2013-14, A-14 is Acknowledgement of Income Tax Return for Assessment Year 2014-15, A-15 is letter dated 13.07.2013 sent by Shivam Motors to the complainant, A-16 is letter dated 19.03.2013 sent by Surguja Kshetriya Gramin Bank to The Oriental Insurance Company Ltd., A-17 is Account Statement given by H.D.B. Financial Services, Pithora to the // 6 // complainant, A-18 is letter dated 06.03.2014 sent by the Oriental Insurance Company Ltd. to the complainant, A-19 is Certificate issued by Surguja Kshetriya Gramin Bank to the complainant. The complainant has also filed Acknowledgement of Income Tax Return for Assessment Year 2013-14 along with computation sheet, Acknowledgment of Income Tax Return for Assessment Year 2014-15 along with computation sheet, copy of written report made by the complainant before Police Station Odagi, District Surajpur on 03.03.2013.
6. The O.P.No.1 to 3 (Insurance Company) has also filed documents. OP-1 is Motor Insurance Certificate Cum Policy Schedule CGCV Public Carriers Other Than Three Wheelers Package Policy - Zone C along with terms and conditions, OP-2 is Motor Spot Survey Report dated 31-03-2013 of Shri Arunendra Pratap Singh, Surveyor & Loss Assessor, OP-3 is Motor (Final) Survey Report dated 24.07.2013 of RBS Surveyors & Loss Assessors Co. Pvt. Ltd., OP-4 is letter sent by the complainant to the Chief Regional Manager, The Oriental Insurance Company Limited, Regional Office, Raipur, OP-5 is demand notice dated 13.08.2013 sent by the Oriental Insurance Co. Ltd. to the complainant, OP-6 is demand notice dated 29.08.2013 sent by the Oriental Insurance Company Ltd. to the complainant, OP-7 is Temporary Certificate of Registration Temporary Registration Mark, issued by R.T.O. Bilaspur, OP-8 is Investigation Report dated // 7 // 16.09.2013 of Shri Anup Mehta, Investigator, OP-9 is intimation given by the driver Chandrashekhar to Thana Prabhari, Odagi, District Surajpur (C.G.) on 09.03.3013, OP-10 is statement of Shri Ganesh Kumar along with photograph, OP-11 is statement of Shri Chandrashekhar Rajwade along with photograph, OP-12 is statement of Shri Achambhit Gupta along with photograph, OP-13 is photograph of the vehicle, OP-14 is letter dated 10.01.2014 sent by The Oriental Insurance Co. Ltd. to the complainant, OP-15 is notice dated 06.01.2014 sent by Shri R.K. Bhawnani, Advocate on behalf of the complainant to The Oriental Insurance Co. Ltd., Raipur (C.G.), OP-16 is reply dated 17.01.2014 sent by Shri R.N. Pusty, Advocate to the complainant.
7. On the basis of averments of both the parties, the points for determination are :-
(1) Whether the O.P.No.1 to 3 (Insurance Company) has erroneously repudiated the claim of the complainant ?
(2) Whether the complainant is entitled to get compensation from the OPs, as mentioned in the relief clause of the complaint, if yes then to what extent ?
Discussions and its conclusion:
8. We shall consider whether the O.P.No.1 to 3 (Insurance Company) has erroneously repudiated the claim of the complainant ? and whether the complainant is entitled to get // 8 // compensation from the OPs, as mentioned in the relief clause of the complaint, if yes then to what extent ?
9. Shri R.K. Bhawnani, learned counsel appearing for the complainant has argued that the vehicle in question was parked in the garage, being a prudent transporter, the complainant knows that any machine should not be kept idle for long time, as such, the vehicle was being periodically checked up and maintenance is also being done by the complainant. To perform above process, on the date of incident, driver Shri Chandrashekhar sitting in the driving sit started the engine and also lifted the load body. The driver did not notice that high tension power line was passing through above the said vehicle, as soon as the load body came into contact with high tension line, the vehicle got electrocuted and got burnt completely. Intimation regarding the incident was given by the complainant to the O.P.No.1 to 3 as well as to the O.P.No.4. The O.P.No.1 to 3 appointed the Surveyor, who assessed the loss to the tune of Rs.20,65,500/-, but the O.P.No.1 to 3 did not pay the amount of compensation, as assessed by the Shri R.B. Singh, Surveyor. Thus the O.P.No.1 to 3 (Insurance Company) has committed deficiency in service. The complainant being a consumer, is entitled to get compensation from the O.P.No.1 to 3.
10. P.K. Paul, learned counsel appearing for the O.P.No.1 to 3 (Insurance Company) has argued that the complainant is not a consumer. The vehicle in question was being used for dumping mine's // 9 // material and the vehicle was not registered with the concerned R.T.O. at the time of incident. The vehicle in question was being used by the complainant without obtaining Certificate of Registration, Permit and Fitness, which is violation of terms and conditions of the insurance policy as well as mandatory provisions of the Motor Vehicles Act, 1988, therefore, the O.P.No.1 to 3 (Insurance Company) has rightly repudiated the claim of the complainant and has not committed any deficiency in service. The complainant is not entitled to get any compensation from the O.P.No.1 to 3. He placed reliance on judgment of Hon'ble Supreme Court in Narinder Singh v. New India Assurance Company Limited & Others, 2014 ACJ 2421; judgments of Hon'ble National Commission in Oriental Insurance Co. Ltd. vs. K.M. Thirunavukkarasu, I (2013) CPJ 32B (NC)(CN); Nisha v. ICICI Lombard General Insurance Co. Ltd. & Ors. II (2013) CPJ 6A (NC) (CN); Narinder Singh vs. New India Assurance Co. Ltd. & Ors., II (2013) CPJ 20A (NC)(CN); Niranjan Kumar Yadav v. National Insurance Company Limited, II (2011) CPJ 64 (NC); Dindayal vs. National Insurance Company Ltd. & Anr. I (2013) CPJ 10 (NC); Rajesh Sharda vs. New India Assurance Co. Ltd. & Ors. I (2013) CPJ 12 (NC); New India Assurance Co. Ltd. vs. Rajesh Yadav, II (2013) CPJ 398 (NC), United India Insurance Co. Ltd. vs. Dharam Raj, 2006 NCJ 218 (NC); The Oriental Insurance Co. Ltd. vs. Pawan Kumar Agrawal, 2009 (3) CPR 248; judgments of this Commission in Dinesh Kumar Dewangan vs. Iffco Tokio General Insurance Co. Ltd. II (2011) CPJ // 10 // 214, Girish Yadav vs. Chief Branch Manager, Iffco Tokio General Insurance Co. Ltd. & Others - Appeal No.FA/13/69 decided on 24.12.2014, Smt. Meena Yadav vs. Chief Branch Manager, Iffco Tokio General Insurance Co. Ltd. & Others, Appeal No.FA/13/70 decided on 24.12.2014.
12. None appeared before us on behalf of the O.P.No.4 on 09.03.2015, when the case was fixed for final arguments.
12. We have heard learned counsel for both the parties and have perused the documents filed by the parties.
13. Firstly we shall consider whether the complainant is a consumer?
14. Section 2(1)(d) of the Consumer Protection Act, 1986 runs thus :-
"(d) "consumer" means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"
// 11 // Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
15. Section 2(1)(o) of the Consumer Protection Act, 1986 runs thus :-
"(o) " "service" means service of any description which is made available to potential [users and includes, but not limited to the, provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
16. In the instant case, the complainant has obtained the insurance policy form the O.P.No.1 to 3 and paid premium thereof. The contract of insurance is contract of indemnity and therefore, obtaining insurance policy is not covered within purview of commercial transaction and insurance policy is for indemnifying the loss and insured who takes insurance policy cannot carry on any commercial activity with regard to the insurance policy taken by him.
17. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject // 12 // matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service"
for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever // 13 // there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
18. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
19. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
// 14 // "We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
20. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC), Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
// 15 //
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
21. The insurance policy was taken by the complainant for protection of his vehicle and not for making any profit, therefore, the complainant is a consumer and dispute between the parties comes within purview of consumer dispute.
// 16 //
22. Now we shall examine whether the complainant has violated terms and conditions of the insurance policy and mandatory provisions of the Motor Vehicles Act, 1988 ?
23. Provisions of Section 39 of The Motor Vehicles Act, 1988 runs thus :-
"39. Necessity for registration. - No person shall drive any motor vehicle and no owner or a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner :
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."
24. Provisions of Section 43 (1) & (2) of The Motor Vehicles Act, 1988 run thus :-
"43. Temporary registration.- (1) Notwithstanding anything contained in Section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.
(2) A registration made under this Section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a // 17 // workshop beyond the said period of one month for being fitted [with a body, or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow."
25. Provisions of Section 56 of The Motor Vehicles Act, 1988 runs thus :-
"56. Certificate of fitness of transport vehicles.- (1) Subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:
Provided that where the prescribed authority or the authorised testing station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The "authorised testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.
(3) Subject to the provisions of sub-section (4), a certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in // 18 // respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained.
(5) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India."
26. In Narinder Singh vs. New India Assurance Company Ltd. and others (Supra), Hon'ble Supreme Court has observed thus :-
"14. Indisputably, a temporary registration was granted in respect of vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of the policy contract."
15. In the aforesaid premises, we do not find any infirmity in the order passed by the State Commission and the National Commission."
27. In Bhagwat vs. The United India Insurance Company Limited, IV (2014) CPJ 698 (NC), Hon'ble National Commission has observed that petitioner never applied before Regional Transport Officer for getting permanent registration of the vehicle and for failure to meet // 19 // statutory requirement regarding registration of the vehicle, the complainant was not entitled to get claim even on non-standard basis.
28. In Din Dayal vs. National Insurance Company Ltd. & Anr. (Supra), Hon'ble National Commission has observed thus :-
"5. These arguments do not sound very convinced. Section 39 of the Motor Vehicles Act, 1988 lays down that the registration of the vehicle is mandatory requirement of law to drive the vehicle on any place or any other place. In support of his case, the State Commission has placed reliance upon the order of this Commission in the case of Kaushalendra Kumar Mishra v. Oriental Insurance Company Limited, I (2012) CPJ 559. Consequently, there was violation of Section 39 of the Motor Vehicles Act.
29. In Niranjan Kumar Yadav vs. National Insurance Co. Ltd. (Supra), Hon'ble National Commission has observed thus :-
"4................ On the contention of the present revision petitioner that the registration was already applied for and was pending with the registering authority, the State Commission has made the following categorical observations :-
"If permanent registration cannot be done for the delay of the office of the registering authority then it must have temporary registration. Legality is the essence of all agreement. If it is violative of law, any contract or agreement is bound to fail, may there be otherwise expressed provision in the terms and condition of the agreement or not. The appellant failed to show any temporary registration number. He also failed to show any receipt of the application for registration to prove that he had applied for registration before the mishap."
5. In view of this observation of the State Commission, the claim of the Revision Petitioner/Complainant that the registration was pending before the Registering Authority, looses all credibility."
// 20 //
30. In Saleena Rani vs. United India Insurance Co. Ltd. & Another, I (2015) CPJ 220 (NC), Hon'ble National Commission has observed that temporary registration was valid only for period of one month. The petitioner did not get vehicle registered with concerned authority in accordance with provisions of Motor Vehicles Act, 1988. Petitioner itself was at fault. After expiry of temporary registration she did not apply before concerned authority in accordance with provisions of Motor Vehicles Act, 1988.
31. In Oriental Insurance Co. Ltd. Through its duly constituted attorney vs. Vidya Bai, 2015 (1) CLT 534, Hon'ble National Commission has observed in para 9 that in case in hand the complainant had not placed any evidence on record that after getting the vehicle insured she ever applied for extension of temporary registration or applied for temporary registration under Section 39 of the Motor Vehicles Act, 1988. Merely by mentioning that after purchase of the vehicle, the complainant's husband, on account of serious illness was admitted in various hospitals and she remain busy to help her husband, it cannot be a sufficient ground for not getting the vehicle registered for 110 days. In such situation, I did not find any deficiency on the part of the petitioner in repudiation of the claim.
32. In National Insurance Co. Ltd. vs. Challa Bharathamma and others, 2004 ACJ 2094; Hon'ble Supreme Court has observed thus :-
// 21 // "12. High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court, was, therefore, not justified in holding the insurer liable."
33. In United India Insurance Co. Ltd. vs. Dharam Raj (Supra), Hon'ble National Commission has observed thus :-
"4. Only submission advanced by Mr. Karan Mehra for petitioner was that the respondent was not having permit authorising the use of vehicle in question as transport vehicle on the date of accident. Permit was obtained later on from 25.7.2000 to 24.7.2011. Use of the vehicle on the date of accident, was thus, in violation of Section 66 of the Motor Vehicles Act, 1988 ( for short the Act) as also in breach of condition of insurance policy. Reliance was placed on the decision in Oriental Insurance Co. Ltd. vs. Sony Cheriyan, 1986-99 CONSUMER 5083 (NS) : 1999 (2) CCC 42 (NS) : 1999 (6) SCC 451.
5. Permit is defined in Section 2(31) of the Act as under :
"Permit means a permit used by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle".
Omiting three provisos, Sub-section (1) of Section 66 which is material reads thus :
// 22 // "No owner of a motor vehicle shall use or permit the use of the vehicle as transport vehicle in any public place whether or not such vehicle is carrying any passenger or goods save in accordance with the conditions of a permit granted or counter- signed by Regional or State Transport Authority or any prescribed authority authorising the use of the vehicle in that place in the matter in which the vehicle is being used."
6. Bare reading of this provision would show that it creates a total bar on use of a vehicle in any public place whether or not such vehicle is carrying any passenger or goods unless the owner thereof holds a permit as defined in Section 2(31). It is not in dispute that respondent was not possessing a permit of the said vehicle on the date of accident. Said sub-section would, thus be applicable even if vehicle in question was used by the respondent for his personal work i.e. to return empty 5/6 milk tanks as alleged in para No.2 of the complaint.
Insurance policy represents a contract between the insurer and the insured has to act strictly in accordance with the statutory limitations and/or the terms of policy. Since use of vehicle in question at the time of incident was in contravention of aforesaid Sub-section (1) of Section 66 and conditions of policy, the respondent is not entitled to any amount under the policy. Orders passed by Fora below being legally erroneous can not be sustained and deserve to be set aside.
7. Resultantly, while allowing revision, aforesaid orders dated 28.1.2003 and 27.3.2003 are set aside and complaint dismissed. Awarded amount received by the respondent will be refunded to the petitioner-insurance company within four weeks from the date of receipt of copy of this order. No order as to cost."
34. In Dhaneshwar Sahu vs. The New India Assurance Co. Ltd., 2009 (3) CPR 76, this Commission observed thus :-
// 23 // "11. In the case of "Challa Bharathamma (supra) Hon'ble Supreme Court, in para 12, has held that "as person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149 (2) defence is available to the insurer on that respect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer.
High Court was, therefore, not justified in holding the insurer liable". Ultimately in that case the insurer was not held liable.
13. The case of Nitin Khandelwal (supra) relied by the appellant was in respect of vehicle which was insured for personal use and was being used as taxi, it was observed by Hon'ble Supreme Court that use of the vehicle was having no connection with snatching of the vehicle or its theft. It was observed that "In the case of theft of the vehicle breach of condition is not germane". In that case the State Commission has allowed 75% of the sum assured on non-standard basis. Apex Court has kept this question undecided whether it was justified or not. In Revision Petition of Sanjay Shihre (supra) and other connected revisions, which have been relied by learned counsel for the appellant, the question of amount of compensation on non-standard basis was considered, but no question of permit was involved in those cases, and the cases were in respect of use of vehicle as taxi, though insured as private car. There was robbery and driver was murdered. In the case of G. Kothainachiar (supra), the question was of fitness certificate and it was observed that "the alleged breach is with regard to the provisions of Motor Vehicles Act or some other Act. Therefore, the question would be whether the Insurance Company can repudiate the claim on the alleged ground of breech of some provisions of the Motor Vehicles Act, or some other Act."" Ultimately, it was found that insurance company cannot repudiated the claim, when there is no breach of terms of policy, // 24 // because insurance is a matter of contract between the parties. It is worth noting that in that case the insured was having fitness certificate with regard to the vehicle till 30.05.1995 and the accident took place on 20.06.1995 and the vehicle was found by the R.T.O. Inspector in good condition for its being plied, at the time of accident. Considering these facts, the order of allowing complaint, was passed.
14. The case of Shri Gian Singh (supra) having the fact of carrying 12 unauthorized persons in a truck, which was ordered to be settled on non-standard basis. This Commission in the case of Smt. Fatima Khatun (supra) on the basis of surveyor's report, passed an award of assessed amount by the surveyor and it was also found proved that the vehicle was being plied as taxi. The case of M/s. Pushpalaya Printers (supra) cited by learned counsel for the appellant, is in respect of building construction. In that case the question regarding interpretation of some words was considered and it was held that if "two interpretations are possible, one beneficial to insured, should be accepted", but in the facts of the present case there is no such situation and two interpretations are not possible of the policy conditions and it is clear that without permit, if the transport vehicle, which was insured as such, have been plied, then it is clear cut violation of law and policy conditions also. Similarly, in the case of Omprakash Baghel (supra), which has been cited by the appellant, the vehicle was purchased only 7 months back and in that condition if the permit and fitness certificate were not produced, then the breach was not found fundamental or contribution in the accident, so order for payment of compensation was passed placing reliance on the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh and Others I (2004) ACC 1 (SC). In the case of M/s. Harsolia Motors (supra), the insurance policy, taken for commercial unit, was not found to be any hiring or services for commercial purposes so as to exclude it from purview of Consumer Protection Act. After going through whole // 25 // judgment, we do not find it helpful to the appellant in anyway. Another judgment cited by learned counsel for the appellant is in case of Government Tool Room and Training Centre (supra), in that case the question was different and was in respect of full and final settlement. Lastly learned counsel for the appellant has this Commission's judgment in the case of Prandhar Agrawal (supra) in that case looking to the facts of the case, it was observed that payment upto 75% as pr guidelines provided for settlement of non-standard claim, was admissible and was allowed, but in the facts of the present case we find that for commercial vehicle, which was being used for carrying passengers in city, no permit was obtained and thereby not only Law as violated but the policy conditions were also violated and therefore, the insurance company was fully justified in repudiating the claim of the complainant for own damage, in the vehicle due to motor accident. It is worth mentioning that plying a vehicle without permit in the City must have been contributed in the accident itself and thus it was fundamental breach of the policy condition. So, we find that insurance company was justified in repudiating the claim and learned District Forum has not committed any mistake in dismissing the complaint of the complainant.
15. Thus, we do not find any substance in this appeal and dismiss the same. No order as to the cost.
35. In the instant case, the complainant himself admitted that at the time of the incident, the vehicle in question was not registered with concerned R.T.O. According to the complainant the vehicle was parked in garage and routine check-up was done by the driver of the vehicle. The above contention of the complainant is not acceptable.
// 26 //
36. In Oriental Insurance Co. Ltd. V. Abdul Rashid and others, 2015 ACJ 226, Hon'ble High Court of Chhattisgarh at Bilaspur has observed thus :-
20. In order to answer this question, it would be proper to notice the meaning of words 'public place'. The words 'public place' have been defined in Section 2 (34) of the Motor Vehicles Act which reads as follows :
"(34) 'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
In United India Insurance Co. Ltd. v Lakshmi, 1997 ACJ 489 (Kerala), after quoting the observations of Barry, J. in R v. Kane, 1965 1 All ER 705, it was held as follows :-
"7. .... In substance, a place is a 'public place' though it is private property when it is shown that the public are in the habit of resorting to it and one is prevented therefrom so resorting to it.
In Stround's Judicial Dictionary, 5th Edn., p. 2094 'public place' has been defined as follows :
"A 'public place' is a place to which the public can and do have access; it does not matter whether they come at the invitation of the occupier or merely with his permission, or whether some payment of the performance of some formality is required before access can be had..."
In black's Law Dictionary, 6th Edn., p. 1230 'public place' has been defined as follows :
" 'Public place' : A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighbouring public (e.g., a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of // 27 // the community. A place exposed to the public and where the public gather together or pass to and fro."
21. The first thing with regard to the definition is that it is an inclusive one. Secondly, it in term makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is a 'right of access' and 'access as of right'. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user. Stage carriage is defined in sub-clause (29) of section 2 and it means a motor vehicle which is used to carry or adapted to carry more than six persons excluding the driver and which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. In short, it means a public passenger carrier. In other words, by virtue of the last part of the definition, the expression would include any place including private, where public passenger carrier picks up or sets down passengers.
27. The contention taken here was that since the vehicle was entrusted with a repairer or a workshop, the owner is not liable and, therefore, the appellant insurance company is also not liable is covered by the decision of the Apex Court rendered in case of Guru Govekar v. Filomena F. Lobo, 1988 ACJ 585 (SC). The Supreme Court held as follows :-
"9. ... When the owner of a motor vehicle entrusts his vehicle to a repairer to carry out repairs he is in fact allowing the repairer to use his vehicle in that connection. It is also implicit in the said transaction that unless there is any contract to the contrary the owner of the vehicle also causes or allows any servant of the repairer who is engaged in the work of repairs to use the motor vehicle for the purpose of or in connection with the work of repairs and when such work of repair is being carried out in a public place if on account of the negligence of either the repairer or his employee, who is engaged in connection with the work of repair, a third party dies or suffers any // 28 // injury either to his person or property, the insurer becomes liable to pay the compensation under the provisions of the Act..."
The court further held as under that :
"(13) ... This meant that once the insurer had issued a certificate of insurance in accordance with sub-section (4) of section 95 of the Act, the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy. He was liable to satisfy the decree when he had been served with a notice under sub-section (2) of section 96 of the Act about the proceedings in which the judgment was delivered.
(14) Thus on the facts of the case before us we are of the view that the insurer is liable to pay the compensation found to be due to the claimant as a consequence of the injuries suffered by her in a public place on account of the car colliding with her on account of the negligence of the mechanic who had been engaged by the repairer who had undertaken to repair the vehicle by virtue of the provisions contained in section 94 of the Act which provides that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance, complying with the requirements of Chapter VIII of the Act. Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing the necessary for taking out insurance policy under the Act."
28. In the case of Oriental Insurance Co. Ltd. v. Uttara Devi, 2013 ACJ 1357(Chhattisgarh), the Divisional Bench of this court has held that workshop is a 'public place' as defined in section 2(34) of the Act, 1988. The relevant portion of the said judgment reads thus :
"(9) In the present case also the accident had occurred in a motor workshop where there is no restriction for the entry of // 29 // any person or vehicle. In the evidence also it has come that the driver had entered in the area, i.e., workshop where the deceased was working under the instruction of his employer.
Therefore, in the light of the above, we are of the opinion that the 'motor workshop' comes within the definition of 'public place' as defined in section 2(34) of the Act, 1988 and as such, the first argument advanced by learned counsel for the appellant that the accident had not occurred in a public place has no force."
37. The O.P.No.1 to 3 appointed Shri Anup Mehta, as Investigator, who visited the spot and investigated the matter. He found that on the date of accident, the vehicle in question was not registered with concerned R.T.O. and the complainant had not obtained fitness and permit. The incident took place 30 Kms away from the residence of the complainant. The vehicle was being used for dumping gitti for construction of the road and vehicle was hired by a contractor Mr. Sushil Sinha. He further observed that when the driver lifted the load body for dumping gitti, then it came into contact of high tension power line. On the basis of report of Shri Anup Mehta, Investigator, it appears that vehicle in question was being used by the complainant for carrying / transporting mine's material. It appears that at the time of incident, the vehicle in question was being used by the complainant for commercial purpose.
38. In the case in hand, the complainant had not placed any evidence to establish that after getting the vehicle insured, he ever applied for temporary registration or applied for permanent // 30 // registration under Section 39 of the Motor Vehicles Act, 1988. It is also established that the vehicle in question was being used by the complainant for commercial purpose, therefore, permit and fitness are required. It is incumbent duty of the owner of the vehicle that he must obtain certificate of registration and permit. It is violation of law and contract of agreement and fundamental breach of terms and conditions of the policy. On the date of accident, the complainant was using the vehicle in question on public road without any registration certificate. It is not only an offence under Section 192 of the Motor Vehicles Act, 1988 but it is also a breach of fundamental terms and conditions of the policy. The O.P.No.1 to 3 (Insurance Company) has rightly repudiated the claim of the complainant. In these circumstances, the complaint filed by the complainant is not maintainable and the complainant is not entitled to get any compensation from the OPs and the complaint is liable to be dismissed.
39. Therefore, the complaint of the complainant, is liable to be and is hereby dismissed. Parties shall bear their own cost.
(Justice R.S. Sharma) (Ms. Heena Thakkar)
President Member
/04/2015 /04/2015