State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Devender Kumar on 23 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 436 / 2010
United India Insurance Co. Ltd.
Through Divisional Manager
Divisional Office, 35/36, Tagore Villa
Chakrata Road, Dehradun
......Appellant / Opposite Party
Versus
Shri Devender Kumar
S/o Shri Ram Bahadu
R/o Village Barhwala, P.O. Ashok Ashram, Dehradun
......Respondent / Complainant
Mr. J.K. Jain, Learned Counsel for the Appellant
Mr. R.S. Bajwa, Learned Counsel for the Respondent
AND
FIRST APPEAL NO. 17 / 2011
Shri Devender Kumar
S/o Shri Ram Bahadu
R/o Village Barhwala, P.O. Ashok Ashram, Dehradun
......Appellant / Complainant
Versus
United India Insurance Co. Ltd.
Through Divisional Manager
Divisional Office, 35/36, Tagore Villa
Chakrata Road, Dehradun
......Respondent / Opposite Party
Mr. R.S. Bajwa, Learned Counsel for the Appellant
Mr. J.K. Jain, Learned Counsel for the Respondent
Coram: Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 23/07/2013
ORDER
(Per: Mr. C.C. Pant, Member):
These two appeals arise out of the order dated 26.11.2010 passed by the District Forum, Dehradun, allowing the consumer complaint No. 72 of 2008 and directing the opposite party to pay to the 2 complainant a sum of Rs. 34,000/- together with interest @ 7% per annum from the date of filing the consumer complaint till payment.
2. In brief, the facts of the case are that the complainant was the registered owner of a Mahindra & Mahindra Utility Van bearing registration No. UP07-J-8001. The vehicle was insured with United India Insurance Co. Ltd. (for short "Insurance Company") - opposite party for the period from 02.08.2004 to 01.08.2005. The said vehicle met with an accident on 28.03.2005 and got totally damaged. A claim was lodged by the complainant with the opposite party for indemnification of the loss, which was repudiated by the opposite party on the ground that the vehicle was being plied without a permit and there was no valid permit at the time of the accident. Alleging deficiency in service on the part of the opposite party, the complainant filed a consumer complaint before the District Forum, Dehradun. The District Forum, after considering the facts and circumstances of the case in the light of its legal aspect, allowed the consumer complaint in the above manner. Aggrieved by the said order, the opposite party - insurance company has preferred First Appeal No. 436 of 2010, while the complainant, not satisfied with the quantum of compensation awarded by the District Forum, has preferred First Appeal No. 17 of 2011. Since the facts of the case in both the appeals are same, these are being disposed of by this common order.
3. We have heard the learned counsel for the parties and perused the material placed on record.
4. The first argument advanced by the learned counsel for the insurance company was with regard to maintainability of the consumer complaint. He submitted that the accident took place on 28.03.2005, while the consumer complaint has been filed after three years from this date. The District Forum has not given any finding on this point and, therefore, the impugned order is liable to be set aside. Otherwise also, the learned counsel argued that the complainant was plying his vehicle in 3 contravention to the terms and conditions of the insurance policy. The learned counsel for the insurance company referred to the Circular dated 29.03.2004 issued by the Secretary, State Transport Authority, wherein all the Regional Transport Officers of the State have been intimated about the decision taken by the State Transport Authority with regard to bringing the utility vans under the purview of road permit. The learned counsel, thus, argued that on the date of vehicle's accident, it was necessary to hold a valid permit for plying the utility van in a public place, but the complainant was plying his vehicle without a permit and, hence, the insurance company was justified in repudiating the claim and it has not committed any deficiency in service.
5. The learned counsel for the complainant reiterated the facts of the case and argued that the deductions made by the surveyor in the assessment of net loss, are unjustified.
6. We considered the submissions made by the learned counsel for the parties in the light of legal aspect of the case. In its written statement filed before the District Forum, the insurance company has not raised the preliminary objection that the consumer complaint was barred by time. The preliminary objections are in respect of the use of the vehicle for commercial purpose and that it was being plied without a valid permit. So far as the use of the vehicle for commercial purpose is concerned, the complainant has made it clear in the consumer complaint that he had purchased the said vehicle for earning his livelihood. The insurance company failed to adduce any evidence that it was not so and the complainant has a fleet of vehicles and is engaged in commercial activity. Though the objection in respect of limitation was not raised before the District Forum, but the record reveals that the accident took place on 28.03.2005 and the claim of the complainant was repudiated by the insurance company vide its letter dated 03.04.2006. This letter was received by the complainant on 25.04.2006 and, thus, as stated by the complainant in Para No. 14 of the consumer complaint, the same was within limitation period. In reply to this para, as per the written 4 statement of the insurance company, the insurance company has stated that:-
"14. That in Para 14, it is admitted that the claim was repudiated vide letter dated 03.04.2006 as the OP did not accept any liability. The vehicle was being used without a valid permit."
7. Thus, the District Forum, though it has not discussed the preliminary objection raised by the insurance company, remained silent in its order on the point of limitation because of the facts stated by the complainant in the consumer complaint and reply submitted by the insurance company in the above manner. Therefore, the District Forum has not erred by entertaining the consumer complaint. Now the main dispute in this case is with regard to necessity of permit. The utility van has mainly a cargo body, unless and until it is converted to a passenger vehicle. There is no evidence available on record that the body of the utility van was converted into a passenger vehicle. As per the Registration Certificate issued by the Transport Department, the permitted seating capacity is six in all, including the driver of the vehicle. The unladen weight of the vehicle is 1690 Kgs. and gross vehicle weight is 2750 Kgs. For the goods vehicles having a gross vehicle weight upto 3000 Kgs., there is no need of road permits as per provision of Section 66 of the Motor Vehicles Act, 1988. So far as the passengers are concerned, it can carry five persons excluding the driver of the vehicle. The question is whether a permit under Section 66 of the Motor Vehicles Act, 1988 would be necessary in such a case. The insurance company has relied on the Circular issued by the Secretary, State Transport Authority, as referred above and also the decision of the Motor Accident Claims Tribunal, Dehradun, which pertains to the accident of the complainant's utility van. In this regard, this Commission has held a view in its judgment and order dated 07.07.2009 passed in First Appeal No. 244 of 2008; Divisional Manager, United India Insurance Co. Ltd. vs. Smt. Meera Rawat holding therein that a permit is not necessary for utility vans having a cargo body. In that case 5 also, for third party claims, Motor Accident Claims Tribunal has passed an order, which was challenged in Hon'ble High Court of Uttarakhand by the complainant-Smt. Meera Rawat and also by the insurance company. The Hon'ble High Court of Uttarakhand in its judgment and order dated 12.07.2011 passed in Appeal from Order No. 363 of 2008; Smt. Meera Rawat vs. United India Insurance Co. Ltd. & others, held that utility vans are not required to hold road permits. The Hon'ble High Court of Uttarakhand has discussed the provisions of Section 66 of the Motor Vehicles Act, 1988 along with Rule 66 of U.P. Motor Vehicles Rules, 1998, which are also applicable in the State of Uttarakhand. Rule 66 of U.P. Motor Vehicles Rules, 1998 reads as under:-
"Rule 66. Permit for a motor vehicle adopted to carry more than nine persons- Subject to the provisions of sub-section (3) of Section 66, the provisions of sub-section (1) of the said section shall apply to any motor vehicle adopted to carry more than nine persons excluding the driver."
8. Thus, these provisions clearly establish that the utility vans are not required to hold route permits. The complainant had, however, applied for the permit on 07.08.2004, i.e., much before the date of accident, but it remained pending in the Transport Department's office. Therefore, complainant was not at fault for non-compliance of the Transport Department's direction. This Commission in its judgment dated 07.07.2009 in Smt. Meera Rawat case (supra), has also held that departmental circulars cannot override the provisions under the Act and Rules. Section 66 of the Motor Vehicles Act, 1988 read with Rule 66 of U.P. Motor Vehicles Rules, 1998 make it amply clear that utility van, which has mainly a cargo body and a permitted seating capacity of 6 persons in all including the driver of the vehicle, is not required to hold a route permit. Therefore, the Appeal No. 436 of 2010 filed by the insurance company is devoid of merit and is liable to be dismissed.
69. So far as the Appeal No. 17 of 2011 filed by the complainant is concerned, the learned counsel failed to explain as to where the fallacy lies in the assessment made by the loss assessor / surveyor. The deductions made by the loss assessor were as per the provisions of the insurance policy. Therefore, this appeal has no force and is liable to be dismissed.
10. Accordingly, both the appeals are dismissed. The order dated 26.11.2010 passed by the District Forum is hereby confirmed. No order as to costs.
11. Let the copy of the order be kept on the record of First Appeal No. 17 of 2011.
(SMT. KUSUMLATA SHARMA) (C.C. PANT)