State Consumer Disputes Redressal Commission
Sh. Banarsi Dass. vs Iffico Tokio Gen. Insu. Co. Ltd. on 16 May, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 201/2017
Date of Presentation: 25.04.2017
Order Reserved on : 19.03.2018
Date of Order : 16.05.2018
......
Banarsi Dass son of Shri Kahan Chand resident of Village Theda
Post Office Taklech Tehsil Rampur District Shimla-H.P.
...... Appellant/Complainant
Versus
IFFCO TOKIO General Insurance Company Limited First
Floor Savitri Bhawan Khalini Shimla-H.P through its Branch
Manager.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Daleep Singh Kaith Advocate.
For Respondent : Mr. Virender Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 07.11.2016 passed by Learned District Forum Shimla in consumer complaint No.240/2014 title Banarsi Dass Versus IFFCO TOKIO General Insurance Company Ltd. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) Brief facts of consumer complaint:
2. Banarsi Dass filed consumer complainant under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is owner of Tipper bearing registration No.HP-06A-4203. It is pleaded that vehicle was insured with opposite party w.e.f. 29.01.2013 to 28.01.2014. It is pleaded that vehicle was insured in consideration amount of Rs.931000/-(Nine lac thirty one thousand). It is pleaded that premium was also paid by complainant. It is pleaded that on 28.12.2013 vehicle met with accident at Naltu rivulet near Theda Tehsil Rampur District Shimla. It is further pleaded that FIR No.197 dated 28.12.2013 under section 279 of IPC and 337 of Motor Vehicles Act was also lodged. It is pleaded that information of accident was also given to opposite party.
It is pleaded that opposite party has rejected the claim of complainant and committed deficiency in service. Complainant sought relief of Rs.345360/-(Three lac forty five thousand three hundred sixty) on account of repair expenses of vehicle alongwith interest @ 9% per annum. In addition complainant also sought relief of compensation to the tune of Rs.50000/-(Fifty thousand) on account of mental tension and harassment. In addition complainant also sought relief of litigation costs to the tune of Rs.25000/-(Twenty five 2 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) thousand). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party pleaded therein that complaint is not maintainable. It is pleaded that complainant did not obtain valid route permit in order to ply the vehicle on public road. It is pleaded that complainant has intimated about the accident after a period of three days. It is further pleaded that complainant has submitted forged bill before learned District Forum. It is pleaded that consumer complaint is bad for non-joinder of necessary party i.e. Financer Cholamandalam Investments Finance Co. Ltd. It is further pleaded that complainant has committed fundamental breach of insurance policy. It is pleaded that driver did not possess valid and effective driving licence at the time of accident. It is further pleaded that opposite party did not commit deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Learned District Forum dismissed the consumer complaint. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
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Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017)
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that complainant purchased vehicle Tipper bearing registration No.HP-06A-4203. There is recital in affidavit that vehicle was insured with opposite party w.e.f. 29.01.2013 to 28.01.2014. There is further recital in affidavit that vehicle was insured in consideration amount of Rs.931000/-(Nine lac thirty one thousand) and premium to the tune of Rs.27747.57/-(Twenty seven thousand seven hundred forty seven rupee & fifty seven paise) was paid to opposite party. There is recital in affidavit that vehicle met with accident on 28.12.2013 at Naltu rivulet near Theda on Teklech-Bahli Raod Tehsil Rampur District Shimla. There is recital in affidavit that FIR No.197/2013 was also lodged in police station Rampur District Shimla-H.P under Section 279 & 337 of IPC. There is recital in affidavit that opposite party repudiated the claim. There is recital in affidavit that complainant did not commit any violation of terms & 4 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) conditions of insurance policy. State Commission has perused annexures-C1 to C6 filed by complainant carefully.
8. Opposite party also filed affidavit of Sanket Gupta Vice President & authorised signatory of IFFCO Tokio General Insurance Co. Ltd. There is recital in affidavit that opposite party deputed surveyor cum loss assessor to assess the loss. There is further recital in affidavit that at the time of accident insured vehicle was plied upon public place without any route permit. There is recital in affidavit that complainant has committed fundamental breach of terms & conditions of insurance policy in own damage matter.
9. Opposite party also filed affidavit of Parvinder Kumar surveyor cum loss assessor. There is recital in affidavit that deponent is duly licensed surveyor cum loss assessor. There is recital in affidavit that at the time of accident insured did not possess a valid route permit. State Commission also perused annexures OP1 to OP5 filed by opposite party carefully.
10. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for a sum of Rs.345360/-(Three lac forty five thousand three hundred sixty) on account of repair expenses of vehicle alongwith interest @ 9% per annum from the date of complaint till its realization is decided accordingly. Opposite 5 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) party has repudiated the claim on the ground that at the time of accident vehicle did not hold valid route permit to ply the vehicle on public road. State Commission has carefully perused the RC of vehicle. As per RC annexure-C1 placed on record vehicle was registered as Medium Goods Vehicle unladen weight of which was 3750 Kg and laden weight of vehicle was 8250 Kg. RC was issued on 13.03.2014 and as per RC vehicle was fit to ply upon public road up to 17.03.2015. In the present case accident took place on 28.12.2013. There is no evidence on record in order to prove that on dated 28.12.2013 owner was holding valid route permit to ply the vehicle on public road. As per section-66 of Motor Vehicles Act 1988 no owner of motor vehicle shall use vehicle in public road for carrying passengers or for carrying goods without route permit. State Commission is of the opinion that word shall mentioned under section 66 of Motor Vehicles Act is mandatory in nature and not directory in nature. Even case of complainant did not fall within section 66(3)(i) of Motor Vehicles Act 1988 because gross weight of vehicle was exceeding 3000 Kg at the time of accident. Even case of complainant did not fall under section 66(3)(p) of Motor Vehicles Act 1988 because it is not the case of complainant that at the time of accident vehicle was proceeding empty for purpose of repair. Hon'ble National Consumer Commission has held in case reported in 2018(1) 6 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) CPR 524 NC titled Shriram General Insurance Co. Ltd. Versus Vinod that driving vehicle without route permit upon public road is fundamental breach of insurance policy. Hon'ble National Consumer Commission has distinguished ruling reported in Kulwant Singh and others Versus Oriental Insurance Company Ltd. 2015(2) SCC 186 and Hon'ble National Consumer Commission has also distinguished ruling reported in Amalendu Sahoo Versus Oriental Insurance Company Ltd. 2010(4) SCC 536 and held that different concept would apply to third party claim and to own damage case qua route permit. Hon'ble National Commission held that aforesaid decision would not apply to a consumer complaint where insured himself commits breach of terms of permit by way of plying vehicle in a place where he was not permitted to ply vehicle in own damages consumer complaint. Latest ruling cited supra given by Hon'ble National Consumer Commission is binding upon all State Commissions as per law unless set aside by Hon'ble Apex Court of India.
11. Insurance Company has also appointed surveyor cum loss assessor and he has specifically mentioned in the report that complainant did not hold valid route permit at the time of accident. Even insurance company has filed affidavit of surveyor com loss assessor. Affidavit filed by surveyor cum loss assessor is trustworthy, reliable and inspire confidence of State Commission. Complainant did not file any 7 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) interrogatories to surveyor cum loss assessor qua route permit. Even as per certificate given by Regional Transport Authority annexure-OP5 route permit was issued to vehicle w.e.f. 24.06.2014 to 21.03.2018. There is no evidence on record that at the time of accident vehicle was having valid route permit. Accident of vehicle took place on dated 28.12.2013. See 2016(II) CPJ 326 NC New India Assurance Co. Ltd. Versus Deepak Jayothi Sharma. See 2005(IV) CPJ 115 NC United India Insurance Company Versus Dharam Raj.
12. Submission of the learned Advocate appearing on behalf of complainant that complainant is entitled for Rs.50000/-(Fifty thousand) on account of mental tension and harassment is decided accordingly. State Commission is of the opinion that in view of ruling cited supra complainant is not entitled to any relief from State Commission because vehicle was driven upon public road without route permit at the time of accident in own damage consumer complaint.
13. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled to litigation costs to the tune of Rs.25000/-(Twenty five thousand) is decided accordingly. State Commission is of the opinion that in view of ruling cited supra complainant is not entitled for litigation costs from opposite party because vehicle was driven upon public place without route permit at the time of accident. Case of complainant did not fall within 8 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) exclusion clauses mentioned in section 66 of Motor Vehicles Act 1988 in own damages consumer complaint.
14. Submission of learned Advocate appearing on behalf of opposite party that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that order passed by learned District Forum is strictly in accordance with law and is in accordance with proved facts. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. Point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum in consumer complaint No.240/2014 dated 07.11.2016 title Banarsi Dass Versus IFFCO TOKIO General Insurance Company Ltd. is affirmed. Report of surveyor cum loss assessor annexure-OP3 and RC of vehicle annexure-CI and Goods Carriage Permit annexure-OP-5 w.e.f. 24.06.2014 to 21.05.2018 would form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be 9 Banarsi Dass Versus IFFCO TOKIO General Insurance Co. Ltd.
(F.A. No.201/2017) consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 16.05.2018.
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