National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Deepak Jayoti Sharma on 29 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1180 OF 2010 (Against the Order dated 26/11/2009 in Appeal No. 119/2008 of the State Commission Himachal Pradesh) 1. NEW INDIA ASSURANCE CO. LTD. Through Regional Office - 1, Jeevan Bharti Building, 124, Connaught Circus New Delhi - 110001 Delhi ...........Petitioner(s) Versus 1. DEEPAK JAYOTI SHARMA R/o. Village Chandesh, Post Office: Gahar, Tehsil Sarkaghat Mandi (Himachal Pradesh) ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
For the Petitioner : Mr. Kishore Rawat, Adv. For the Respondent : Mr. Harsh Jaidka, Adv. along with
Respondent in person.
Dated : 29 Sep 2015 ORDER
Petitioner/Opposite Party has preferred this revision petition against impugned order dated 26.11.2009, passed by Himachal Pradesh, State Consumer Disputes Redressal Commission, (for short, State Commission).
2. Brief facts are, that Respondent/Complainant purchased a vehicle (tempo) on 16.03.2005 from Malhotra Industries Gutkar, Mandi for Rs.4,82,600/- and got the same registered on 24.05.2005. The vehicle was insured with the petitioner for the period from 16.03.2005 to 15.03.2006. It is further alleged, that the said vehicle met with accident on 08.09.2005 at Durgapur and was totally damaged. A report was lodged with the police. The body of the vehicle was taken to Malhotra Industries Gutkar, Mandi for getting it repaired, who gave estimate of Rs. 6,49,422.25 for getting the vehicle completely repaired. Thereafter, respondent informed the petitioner the accident, who deputed a Surveyor to assess the loss. The Surveyor submitted his report that the vehicle has been completely damaged. However, respondent's claim was repudiated vide letter dated 02.08.2006, on the ground that respondent has not produced route permit. There is no such condition in the insurance policy and also there is no nexus between the route permit and insurance. Hence, respondent filed a consumer complaint for a direction to the petitioner to pay compensation to the tune of Rs.6,49,422.25 with interest @ 12% from the date of accident, besides compensation to the tune of Rs. 50,000/- for mental as well as physical harassment and cost of complaint to the tune of Rs.10,000/-.
3. Petitioner in its reply has stated, that respondent took the policy after going through the terms and conditions of insurance policy. At the time of accident, the vehicle was being plied without route permit in violation of the provisions of Motor Vehicle Act and the insurance policy. As such, the claim was validly repudiated after due consideration, vide letter dated 02.08.2006. There is no deficiency in service on its part.
4. District Consumer Disputes Redressal Forum, Hamirpur (for short, 'District Forum') vide order dated 13.03.2008, allowed the complaint and passed following order:
"The opposite party is ordered and directed to pay to the complainant a sum of Rs. 4,49,970/- with interest at the rate of 9% per annum from the date of filing the complaint i.e. 05.12.2006 till realization besides litigation cost, which we assess at Rs. 2,000/-."
5. Being aggrieved petitioner filed (First Appeal No.119 of 2008) before the State Commission, which partly allowed the same.
6. I have heard learned counsel for the parties and gone through the record.
7. It is submitted by learned counsel for petitioner, that as vehicle was being plied without a valid permit, therefore petitioner company is not liable to make any payment. The insurance policy is a contract between the insurer and the insured. The insured has to act strictly in accordance with the terms of the policy. Since, use of the vehicle at the time of accident was in contravention of Sub-section (1) of Section 66 of the Motor Vehicle Act and conditions of the policy, the insured is not entitled to any amount under the policy. The claim of respondent was therefore, rightly repudiated by the petitioner. In support, learned counsel has relied upon following judgments;
(i) National Insurance Co. Ltd. Vs. Challa Bharathamma and Ors. (2004) 8 Supreme Court Cases 517; (ii) United India Insurance Co. Ltd. V.Dharam Raj IV (2005) CPJ 115 (NC); (iii) Kalyan Singh Chauhan Vs. National Insurance Co. III (2014) CPJ 16 (NC); (iv) New India Assurance Co. Ltd. Birbal Singh Jhakhar I (2014) CPJ 597 (NC); (v) Pal Singh Vs. Oriental Insurance Co. Ltd. III (2012) CPJ 489 (NC) and (vi) G. Kothainachiar Vs. United India Insurance Co. ltd. IV (2007) CPJ 347 (NC)
8. On the other hand, it is submitted by learned counsel for respondent, that claim of respondent was repudiated merely on the ground that he had not produced route permit. As per copy of the insurance cover note, therein no condition has been laid down, that valid permit is required. Further, there is no nexus between the route permit and the insurance. Thus, claim was wrongly repudiated. In support, learned counsel for respondent has relied upon following judgments;
(i) G. Kothainachiar Vs. United India Insurance Co.
(Revision Petition No.1503 of 2004) decided by
this Commission on 29th October, 2007;
(ii) HDFC Chubb General Insurance Co. Vs. Ila Gupta & Ors.
I (2007) CPJ 274;
(iii) Oriental Insurance Co. Ltd. vs. Bishan Das and Ors.
AIR 1988 Himachal Pradesh 26;
(iv) National Insurance Co. Ltd. Vs. Swaran Singh and Ors.
(2004) 3 Supreme Court Cases 297;
(v) B. V. Nacaraju Vs. M/s. Oriental Insurance Co. Ltd.
1(1997) ACC 123(SC) and
(vi) Kulwant Singh and Ors. Vs. Oriental Insurance
Company Limited
(2015) 1 Supreme Court Cases (Cri) 860.
9. District Forum in its impugned order;
"6 .......The claim was repudiated on the ground that the vehicle was being plied without route permit. Admittedly, the cause of accident was not for want of rout permit and in view of authority of Hon'ble National Consumer Disputes Redressal Commission, in case Revision Petition 1503 of 2004 titled as G. Kothainachair versus the Branch Manager, United India Insurance Co. Ltd. and others, decided 29.10.2007, the opposite party is not justified in repudiating the claim of the complainant for want of route permit and the complainant is entitled to be indemnified for the loss to the extent as assessed by the Surveyor.
7. As such we find no justification for repudiating the claim to the extent as assessed by the surveyor. It is well settled law that the report of Surveyor is an important document which cannot be brushed aside and assessment of loss made therein has to be specifically agreed to rebutted and an un-scrutinized bill cannot go beyond the loss assessed by the surveyor as has been held by the Hon'ble National Consumer Disputes Redressal Commission, in case titled as The National Insurance Co. Ltd. & Ors. versus Mrs. Aleyamma Verghese & Ors., reported as "2006 (1) CPR 235(NC):.
8. On these facts and circumstances of the case, there is deficiency in service on the part of opposite party and the complainant is entitled to the amount as assessed by the Surveyor."
10. The State Commission, while partly allowing Petitioner's appeal observed;
" 5. After having given our thoughtful consideration to the submissions urged on behalf of the parties, we are of the view that this appeal deserves to be dismissed, of course subject to modification regarding value of salvage. Reason being that in case the respondent is allowed to withhold the salvage as allowed to be paid the entire sum, it is going to result in his undue enrichment which will not only be illegal, but contrary to law as well
6. At this stage, Mr. Ratish Sharma drew our attention to a few decisions which we will refer hereafter. In FAO No.395 of 2007, titled M/S J.B. Pipes Versus Madan Lal and others, decided by the Hon'ble High Court of Himachal Pradesh on 3.10.2007, the question of holding route permit was gone into and then appeal was dismissed in limini. Next decision relied upon by Mr. Sharma is of Hon'ble Supreme Court in the case of National insurance Co. Ltd. Versus Challa Bharathamma & Ors., III (2004) ACC 292 (SC). When a reference is made to both these decisions, it will be seen that these were in the context of public liability under Section 149 of the Motor Vehicles Act, 1988, therefore both these are distinguishable on facts. Shri Sharma with a view to further advance the case of his client referred to the decisions of the National Commission in the case of United India Insurance Co. Ltd. Versus Dharam Raj, IV (2005) CPJ 115 (NC),Oriental Insurance Co. Ltd. Versus Pabindra Naryan Uzir, IV (2006) CPJ 396 (NC) and Sathosh Versus National Insurance Co. Ltd., II (2008) CPJ 171 (NC). According to him, since vehicle in this case was plied without route permit as envisaged under Section 66 of the Motor Vehicles Act,1988, therefore the impugned order was liable to be set aside. We have gone through these decisions, however we are of the view that taking note of the later decision of the National Commission in Revision Petition No.1503/2004 titled G.Kothainachiar Versus The Branch Manager, United India Insurance Co. Ltd. And others, decided on 29.10.2007, on a question of judicial propriety and discipline, we need to follow this, as such the three decisions of the National Commission relied upon by Mr. Sharma do not advance the case of the appellant."
11. It is an admitted fact, that vehicle in question was not having any valid route permit.
12. Present case is of "Own Damage" and not of "Third Party Claim".
13. The issue involved in the present case is no more 'Res integra in view of decision of this Commission in United India Insurance Co. Ltd. V. Dharam Raj, IV (2005) CPJ 115 (NC), in which this Commission held;
"2. Facts giving rise to this revision lie in a narrow compass. Respondent was the owner of a vehicle bearing registration No.HR-47/7207 which was insured with petitioner for the period from 25.07.2000 to 24.07.2001. On 22.06.2001 when respondent was going in the vehicle for his personal work i.e. to return empty 5/6 milk tanks, it turned turtle due to failure of steering and its body was badly damaged. Intimation regarding incident was sent to the petitioner.
3. On 31.08.2001, the petitioner repudiated the claim on the ground of respondent not having a valid permit of the vehicle on 22.6.2011, the date of incident. Complaint alleging deficiency in service filed by the respondent was contested by the petitioner on the ground taken in repudiation letter. Award for said amount of Rs.90,353/- was made taking note of the reports of B.S. Kohli and Rajesh Grover, Surveyors and Loss Assessors appointed by the petitioner.
4. Only submission advanced by Mr. Karan Mehra for petitioner was that the respondent was not having permit authorizing the use of vehicle in question as a transport vehicle on the date of accident. Permits was obtained later on 25.7.2000 to 24..2001. Use of 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. v. Soni Cheriyan, VI (1999) SLT 565-II (1999) CPJ 13 (SC)=1999 (6) SCC 451.
5. Permit is defined in Section 2(31) of the Act as under:
"Permit means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle."
Omitting three provisions, Sub-section (1) of Section 66 which is material, reads thus;
"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 countersigned by Regional or State Transport Authority or any prescribed authority authorizing the use of the vehicle in that place in the manner 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 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 cannot be sustained and deserve to be set aside.
7. Resultantly, while allowing revision, aforesaid orders dated 28.1.2003 and 27.3.2002 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."
14. Therefore, order passed by both the Fora below are not sustainable at all. Accordingly, order passed by the Fora below are set aside. Hence, present revision petition stand allowed. Consequently, the complaint filed by the respondent stand dismissed.
15. No order as to cost.
......................J V.B. GUPTA PRESIDING MEMBER