State Consumer Disputes Redressal Commission
Oriental Insu.Co. vs Jasveer Singh on 8 April, 2022
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FA No.2199 / 2014.
Oriental Insurance Company,
Through the Divisional Manager,
Divisional Office No.2,
Chamber Bhawan, Civil Centre,
Jabalpur (M.P.). .... APPELLANT.
Versus
Jasveer Singh,
s/o Shri Harvinder Singh,
R/o House No.902, Mahandada,
Madan Mahal, Gupteshwar Ward,
Jabalpur (M.P.). .... RESPONDENT.
BEFORE:
HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT
HON'BLE SHRI S. S. BANSAL, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI RAVINDRA TIWARI, LEARNED COUNSEL FOR THE APPELLANT.
SHR AJAY GUPTA, LEARNED COUNSEL FOR THE RESPONDENT.
ORDER
(Passed on 08 /04 / 2022) The following order of the Commission was delivered by Shantanu S. Kemkar, J :
This is an appeal under Section 15 of the Consumer Protection Act, 1986 whereby the appellant / Insurance Company has challenged
- 2- the order dated 13.10.2014 passed by the District Consumer Disputes Redressal Commission, Jabalpur (for short the 'District Commission') in CC No.109/2013.
2. Briefly stated, the respondent / complainant owned a truck bearing registration No. MP 20 HB 0455 which was insured by him with the appellant. In the intervening night of 7th and 8th September, 2011 he had parked the said truck in front of Pragati Dharmkanta, near Madhotal Police Chowki, Gohalpur, Jabalpur after unloading the fertilizers which were being loaded in it. After parking the truck he went to his house instructing the cleaner to attend the truck but cleaner also went to his house for meals. When in the early morning the cleaner returned he did not find the truck there. When the incident was told to him by his cleaner he reported the incident of theft to the Police on 8.9.2011, vide Ex. C/4 and intimated the incident to the appellant / Insurance Company.
3. The appellant appointed a surveyor to investigate the claim. The respondent / complainant provided necessary documents to the surveyor. After examining the documents the appellant repudiated the claim of the respondent / complainant on the ground that on the date of incident the truck was not having fitness certificate. Feeling aggrieved the appellant filed the complaint case before the District Commission as aforesaid.
4. Before the District Commission the appellant justified the repudiation of the claim on the ground that the fitness certificate of the truck of
- 3- the respondent had already expired on 8.8.2011 whereas the incident occurred in the midnight of 7.9.2011 and 8.9.2011 and as such the respondent's truck was not having valid fitness certificate and thereby there being breach of the policy condition, the appellant was not entitled to receive any compensation.
5. The District Commission after considering the pleadings and the evidence led by the parties vide impugned order allowed the complaint holding that even though the respondent's truck was not having fitness certificate at the relevant time it will not affect his right to receive compensation as the incident of theft has no nexus with the fitness certificate. Having held so the District Commission set-aside the repudiation of the claim and directed the appellant to pay to the respondent / claimant Insured Declared Value (IDV) of the truck amounting to Rs.8,00,000/- with interest @8% and compensation of Rs.5000/- towards mental agony and Rs.1000/- towards costs with interest @10% p.a. Feeling aggrieved the appellant has filed this appeal.
6. Shri Ravindra Tiwari, learned counsel appearing for the appellant in support of the repudiation letter and assailing the impugned order placed reliance on the order passed by the Supreme Court in the case of United India Insurance Company Ltd. versus Sushil Kumar Godara (Civil Appeal No.5887 of 2021 decided on 30.9.2021 as also the order passed by the National Commission in the case of Aeroflot Soviet Airlines versus United -4- India Insurance Co. Ltd., IV (2006) CPJ 62 (NC), New India Assurance Co. Ltd. versus Meenakshi Jarial, II (2016) CPJ 53 (NC), Oriental Insurance Co. Ltd. versus Valsa George & Anr., IV (2012) CPJ 116 (NC) and Tata AIG General Insurance Co. Ltd. & Anr. Versus Chandan Malhotra, III (2018) CPJ 99 (NC).
7. On the other hand, Shri Ajay Gupta, learned counsel appearing for the respondent has placed reliance on the judgement passed by the Supreme Court in the case of Amalendu Sahu versus Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) and on the judgement passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case of National Insurance Company Limited & Anr. Versus Suresh Kumar, II (2017) CPJ 122 (HP) and has argued that the incident of theft and the holding of fitness certificate has no nexus and as such the Insurance Company cannot deny the claim on the ground that the vehicle was not having the fitness certificate.
8. We have considered the rival contentions and perused the record.
9. During the course of hearing, learned counsel for the respondent and the respondent, who was also present in person have not disputed the fact that the said truck was in use and was parked in a public place after unloading the fertilizers carried in it.
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10. Chapter IV of the Motor Vehicles Act, 1988 (for short the "Act of 1988") deals with "Registration of Motor Vehicles". Section 39 of the Act of 1988 provides that "No person shall drive any motor vehicle and no owner of 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."
Section 56 of the Act of 1988 deals with the "Certificate of fitness of transport vehicles", which reads 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 authorized 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:
------------------------------------ (2) ------------------------------------
(3) ------------------------------------
(4) ------------------------------------
(5) -------------------------------------"
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11. Chapter XIII of the Act of 1988 provides for "Offences, Penalties and Procedure". Section 192 deals with "Using vehicle without registration". Section 192 reads as under :-
"192. Using vehicle without registration.--(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of section 39 shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees for a second or subsequent offence with imprisonment which may extend to one year or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both:
----------------------------------
(2) ----------------------------------
(3) ----------------------------------
[Explanation.--Use of a motor vehicle in contravention of the provisions of section 56 shall be deemed to be a contravention of the provisions of section 39 and shall be punishable in the same manner as provided in sub-section (1)."
12. A conjoint reading of the provisions contained in Chapter IV of the Act of 1988 regarding "Registration of Motor Vehicles" including certificate of fitness of transport vehicles and Section 192 (1) and its explanation as provided in Chapter XIII makes it clear that holding of fitness certificate for a transport
- 7- vehicle is mandatory and unless there is certificate of fitness the transport vehicle shall not be deemed to be validly registered for the purposes of Section 39 of the Act of 1988. Explanation to Section 192 makes the use of a motor vehicle in contravention of provision of Section 56 to be a punishable offence as it would be deemed to be contravention of provisions of Section 39. It is thus, clear that plying of a transport vehicle in a public place without a valid fitness certificate tantamounts to violation of the provisions of the Act of 1988 as aforesaid.
13. The Supreme Court in the case of United India Insurance Company vs. Sushilkumar Godara (supra) in a case relating to theft of Bolero car of which the temporary registration certificate had expired on the date when the incident of theft occurred noticing that the vehicle was being under use and finding that it was driven to another place from where it was stolen, held that since on the date when the theft of vehicle had occurred it had been driven and used without registration which amounted to clear violation of Section 39 and 192 of the Motor Vehicles Act, 1988 and this results in a fundamental breach of terms and conditions of the policy, set-aside the order passed by the National Commission. The Supreme Court in the case of United India Insurance Company vs. Sushilkumar Godara (supra) extracted the order passed by the National Commission in the case of Naveen Kumar Versus National Insurance
- 8- Company Ltd. & Anr., (Revision Petition No.250 of 2019 vide order dated 14.1.2020, which reads thus :-
" 9. For the reasons stated hereinabove, the reference is answered in following terms:-
(i) If a vehicle without a valid registration is or has been used/driven on a public place or any other place that would constitute a fundamental breach of the terms and conditions of the contract of insurance even if the vehicle is not being driven at the time it is stolen or is damaged:
(ii) If a vehicle without a valid registration is used/driven on a public place or any other place, it would constitute a fundamental breach of terms and conditions of the policy even if the owner of the vehicle has applied for the issuance of a registration in terms of S.41 of the Act before expiry of the temporary registration, but the regular registration has not been issued".
(emphasis supplied)"
14. In the case of Narinder Singh versus New India Assurance Company Ltd., (2014) 9 SCC 324 the Supreme Court while dealing with a case of accident of an insured vehicle which was being plied after expiry of temporary registration held as under
:
"14. Indisputably, a temporary registration was granted in respect of the 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 any 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
- 9- 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 policy contract."
15. In the case of The Manager, The United Insurance Co. Ltd. versus Sri B. Ugandar, 2010 (3) CPR 38 (NC) also the National Commission has held that the transport vehicle is required to have a fitness certificate and if the vehicle is put to use on road in violation of it, this being violation of statutory requirement of the Motor Vehicle Act, 1988 the claim could not have been allowed.
16. The National Commission in the case of Aeroflot Soviet Airlines versus United India Insurance Co., (supra) has held that a combined reading of Sections 39 and 56 of the Motor Vehicles Act makes it abundantly clear that the vehicle could not have been driven in any public place unless the provisions of Chapter IV of the Motor Vehicles Act were observed. Section 56 (1) with proviso makes it abundantly clear that, no vehicle could be deemed to be "validly registered for the purpose of Section 39 unless it carries a Certificate of Fiensss. Again in the case of Oriental Insurance Co. Ltd. Versus Valsa George & Anr. (supra) the National Commission had denied the claim on the ground that at the time of accident the vehicle which was a tempo traveler ambulance was not
- 10 -
having a fitness certificate nor did the person driving it possess a valid and effective driving licence.
17. The reliance placed by the learned counsel for the respondent while supporting the impugned order on the judgement passed by the Supreme Court in the case of Amalendu Sahoo (supra) is misconceived as in the case of Amalendu Sahoo (supra) the alleged breach of policy condition is about limitation as to use. In the said case the insured was found to have breached the condition as to the mode of use of the insured vehicle. The allegation was that the vehicle was being used for hire and as per the policy condition such use was not permitted. In the present case, admittedly the subject truck was being used for loading and unloading of the fertilizers and after unloading when it was parked near Pragati Dharmkanta, near Madhotal Police Chowki, Gohalpur, Jabalpur, it was stolen. This use of the truck, which is a transport vehicle was in contravention of the provisions of Section 56 and 192 of the Act of 1988 and being punishable as per Explanation to Section 192, the breach is a fundamental breach and cannot be said to be a breach where compensation by applying the principles of non- standard basis, can be awarded.
18. The order passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in the case of Suresh Kumar (supra) in our considered view has no application in view of the judgement passed by the Supreme Court in the case of Sushil Kumar Godara (supra).
- 11 -
19. Having regard to the aforesaid legal position in our considered view, the respondent having put his truck for use on road without having a valid certificate of fitness, he committed violation of the provisions of the Act of 1988 and thereby committed offence punishable under the Act of 1988 and in view of the law laid down by the Supreme Court this being the fundamental breach of policy condition, the repudiation of the claim by the Insurance Company was fully justified.
20. Thus, the District Commission has committed error in holding that the incident of theft of the truck and the necessity of it having valid certificate of fitness had no nexus. The approach of the District Commission is clearly contrary to the law laid down by the Supreme Court and the National Commission as aforesaid.
21. In the result, the appeal is allowed. The impugned order is set-aside. No order as to costs.
(Justice Shantanu S. Kemkar) (S. S. Bansal)
PRESIDENT MEMBER
Phadke