State Consumer Disputes Redressal Commission
Nilesh Tiwari vs United India Insurance Co.Ltd on 25 February, 2015
Daily Order Chhattisgarh State Consumer Disputes Redressal Commission Raipur Final Order First Appeal No. FA/14/336 (Arisen out of Order Dated 17/04/2014 in Case No. of District Raipur) 1. Nilesh Tiwari House No 20 Near Shiv Mandir S.B.I Colony Sunder Nagar Raipur Raipur Chhattisgarh ...........Appellant(s) Versus 1. United India Insurance Co.Ltd City Branch Amar Complex Jivan Bima Marg Pandari Raipur Raipur Chhattisgarh ...........Respondent(s) BEFORE: HONABLE MR. JUSTICE R.S.Sharma PRESIDENT HONABLE MS. Heena Thakkar MEMBER HONABLE MR. Dharmendra Kumar Poddar MEMBER For the Appellant: Shri R.K.Bhawnani, Advocate For the Respondent: Shri P.K.Paul, Advocate ORDER CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANDRI, RAIPUR(C.G.) Appeal No.FA/14/336 Instituted on :15.05.2014 Nilesh Tiwari, Age 47 years, S/o Shri B.N. Tiwari, House No.20, Near Shiv Mandir, S.B.I. Colony, Sunder Nagar, Raipur (C.G.) ... Appellant. Vs. United India Insurance Company Limited, City Branch, Amar Complex, Jeevan Beema Marg, Pandri, Raipur, District Raipur (C.G) ... Respondent PRESENT: - HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT HON'BLE MISS HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for appellant.
Shri P.K. Paul, for respondent.
Order Dated : 25/02/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 17.04.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), in Complaint Case No.176/2012. By the impugned order, the complaint of the appellant (complainant) has been dismissed.
2. Briefly stated the facts of the complaint are : that the appellant (complainant) is owner of vehicle Tata Indica Vista baring registration No.CG-04-DQ-5786 and the same was insured with the respondent (O.P.) for the period from 24.02.2010 to 23.02.2011. On 05.07.2010, at about 12.30 midnight the driver of the appellant (complainant) Ahok Nayak along with his two friends Hemant and Sunil Banjare were coming one truck bearing registration No.C.G.04-ZC-4544 dashed the vehicle in question due to which the vehicle in question was completely damaged. The matter was reported to the Police Station Vidhan SAbha, Raipur from where the diary was transferred to Police Sttion, Dharsiwa where crime No.240/2010 was registered. The matter was also intimated to the respondent (O.P.) and the appellant (complainant) submitted claim form along with all relevant documents, but the respondent (O.P.) did not settle the claim of the appellant (complainant), therefore, the appellant (complainant) filed consumer complaint before the District Forum against the respondent (O.P.) and prayed for granting reliefs as mentioned in prayer clause of the complaint.
3. The respondent (O.P.) filed its written statement and averred that insurance policy was obtained under Private Car Package Policy for private use, but the appellant (complainant) get the vehicle in question registered for the motor cab/taxi purpose. The appellant (complainant) did not inform the respondent (O.P.) regarding registration of the vehicle in question as motor cab/taxi purpose and the appellant (complainant) get the vehicle registered for commercial purpose whereas the insurance policy was issued for private use. The vehicle in question was used by the appellant (complainant) for commercial purpose, which is fundamental breach of terms and conditions of the insurance policy. The appellant (complainant) also did not obtain permit and the vehicle in question was being used in the public road without obtaining permit, which is also fundamental breach of the terms and condition of the insurance policy, therefore, the respondent (O.P.) has rightly repudiated the claim of the appellant (complainant).
4. After having considered the material placed before it by both the parties, learned District Forum, has dismissed the complaint.
5. The appellant (complainant) has filed documents. Documents are copy of First Information Reports, Certificate of Registration, Motor Vehicle Cover Note, driving licence, cash receipt, letter dated 10.11.2010 sent by the appellant (complainant) to the respondent (O.P.). OP-1 is letter dated 11.03.2011 sent by the appellant (complainant) to the respondent (O.P.), OP-2 is Motor Insurance Proposal Form, OP-3 is Insurance Cover Note, OP-4 is Private Car Package Policy, OP-5 is Motor Survey Report, OP-6 is Certificate of Registration, OP-7 is Verification Report issued by the R.T.O. Raipur, OP-8 is Extract of Driving Licence, OP-9 is Certificate of Fitness, OP-10 is letter dated 14.10.2010 sent by R.T.O. Raipur to Mohd. Ibrahim (Investigator), OP-11 is driving licence, OP-12 is letter dated 13.10.2011 sent by the respondent (O.P.) to the appellant (complainant).
6. The respondent (O.P.) has also filed photographs taken by Shri Rajeev Dausage, Surveyor.
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) submitted that the impugned order passed by the learned District Forum is erroneous. He further argued that at the time of accident, the vehicle in question was duly insured with the respondent (O.P.) and if any breach was found to be committed, then such breach was not fundamental breach of terms and conditions of the policy, therefore, the appellant (complainant) is entitled to get compensation from the respondent (O.P.) on non-standard basis. He placed reliance on judgment of Hon'ble National Commission in Reliance General Insruance Co. Ltd. vs. Dharwin K. Davit, II (2011) CPJ 266 (NC); New India Assurance Co. Ltd. vs. Surinder Singh Khurana 1986-2006 CONSUMER 10530 (NS); National Insurance Co. Ltd. vs. Sanjay Shivhare IV (2007) CPJ 366 (NC); G. Kotainachiar vs. United India Insurance Co. Ltd. & Ors. IV (2007) CPJ 347 (NC). He also placed reliance on judgments of this Commission in Om Prakash Baghel vs. Oriental Insurance Co. Ltd. I (2007) CPJ 90; Girijanand Pathak vs. ICICI Lombard General Insurance Co. Ltd. Through Branch Manager (Appeal No.25/2008 decided on 21.01.2009); Bajaj Allianz General Insurance Co. Ltd. Through Branch Manager vs. Mrs. Sukhvinder Kaur (Appeal No.FA/13/346 decided on 19.08.2014); The New India Assurance Co. Ltd. Through Divisional Manager vs. Prandhar Agrawal (Appeal No.214/07 decided on 30.10.2008); The Oriental Insurance Company Limited vs. Shri Dharnidhar Sharma (Appeal No.FA/13/297 decided on 23.12.2014) .
8. Shri P.K. Paul, learned counsel appearing for the respondent (O.:.) has argued that the impugned order passed by the learned District Forum is just and proper and does not call for any interference by this Commission. He further argued that the appellant (complainant) obtained insurance policy for private use of the vehicle in question, but the vehicle in question was being used as Motor cab /Taxi and no endorsement was obtained by the appellant (complainant) . Even appellant (complainant) did not inform the respondent (O.P.) regarding registration of the vehicle in question as motor cab/taxi purpose and the vehicle in question was being used in a public road without obtaining permit, which comes within fundamental breach of the terms and conditions of the insurance policy. The impugned order passed by the District Forum, is just, proper and reasonable and does not call for any interference by this Commission and the appeal of the appellant (complainant) is liable to be dismissed. He placed reliance on judgments of Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Challa Bharathamma and others, 2004 ACJ 2094; Oriental Insurance Co. Ltd. vs. Sony Cheriyan 1986-99 CONSUMER 5083 (NS); judgment of Hon'ble National Commission in United India Insurance Co. Ltd. vs. Dharam Raj 1986-2007 CONSUMER 12098 (NS); New India Assurance Co. Ltd. vs. Rajesh Yadav II (2013) CPJ 398 (NC); Pal Singh vs. The Oriental Insurance Co. Ltd. 1986-2013 CONSUMER 17532 (NS); Manoj Banerjee vs. Oriental Insurance Co. Ltd.& anr. I (2013) CPJ 543(NC); Sandeep Kumar vs. Iffco Tokio General Insruance Company Ltd. & Anr. II (2014) CPJ 505 (NC); Reliance General Insurance Co. Ltd. vs. Shivakumara S. II (2014) CPJ 57 (NC); National Insurance Company Ltd. vs. Sanjeev Kumar IV (2013) CPJ 1 (NC); Seema Garg vs. Oriental Insruance Company Ltd. II (2014) CPJ 5 (NC) and Vimala & Anr. Aadil Khan vs. Oriental Insurance Company Ltd. & Anr. IV (2013) CPJ 97 (NC), judgment of this Commission in The Oriental Insurance Co. Ltd. vs. Pawan Kumar Agrawal 2009 (3) CPR 248; Dhaneshwar Sahu vs. The New India Assurance Co. Ltd.
9. We have heard arguments of learned counsel for both the parties and have also perused the record of the District Forum.
10. It is not disputed that the appellant (complainant) is owner of vehicle Tata Indica Vista baring registration No.04-DQ-5786 and the same was insured with the respondent (O.P.) for the period from 24.02.2010 to 23.02.2011. In the Motor Vehicle Cover Note it is mentioned that the limitation as to use of the motor vehicle is restricted only for private use and the insurance policy was issued by the respondent (O.P.) in favour of the appellant (complainant) on 24.02.2010 and Certificate of Registration was issued in the name of the appellant (complainant) on 06.03.2010. It appears that vehicle in question was got registered after issuance of the insurance policy. The insurance policy was obtained for private use of the vehicle in question but the vehicle in question was got registered as Motor Cab/Tax purpose, which is not private use but is for commercial purpose, therefore, it is duty caste upon the appellant (complainant) to inform the respondent (O.P.) regarding the registration of the vehicle as Motor Cab/Taxi and to obtain endorsement in the policy regarding registration of the vehicle as Motor Cab/Taxi, but the appellant (complainant) did not obtain any such endorsement in the policy and did not inform the respondent (O.P.). It appears that the vehicle in question was being used by the appellant (complainant) for commercial purpose, therefore, it is essential for the appellant (complainant) to obtain permit for plying the vehicle on the public road and the appellant (complainant) used the vehicle in a public road without obtaining endorsement in the policy and used the vehicle in quested as Motor Cab/Taxi in the public road without permit which comes within fundamental breach of the terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1988.
11. In National Insurance Co. Ltd. vs. Challa Bharathamma and others (Supra), Hon'ble Supreme Court has observed thus :-
"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."
12. 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 :
"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."
13. In Dhaneshwar vs. The New India Assurance Co. Ltd. (Supra), this Commission observed thus :-
"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, 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 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.
14. In The Oriental Insurance Co. Ltd. vs. Pawan Kumar Agrawal (Supra), this Commission, observed thus :-
"7. So far as, first ground is concerned, we find much substance on it. The Insurance Policy, copy of which has been produced as document Annexure A-5, shows that the vehicle was insured under Package Policy as Private Car from 24.10.2003. No registration No. was allotted to the vehicle at that time and that is why in column of Regn. No., only word 'New' has been written and Engine No. and Chasis No. have been mentioned in respective columns. The document of registration Annexure A-8, is also available on record, which shows that the vehicle was registered as a Jeep Taxi and Registration No. CG-15A-2128 was allotted and sitting capacity was prescribed as 5 + 1. The route allotted was from District Headquarter Ambikapur upto 40 kms on nationalized route or non-nationalised route throughout Bilaspur Division. It has also been specified that the owner was permitted to use the vehicle for carrying passengers on hire. This document shows that right from very beginning, the vehicle was intended to be used as a Taxi and was being used as such. Even at the relevant time, the vehicle was acquired by the Government because it was a public vehicle and was used for election duty.
8. These facts including both documents clearly show that right from the very beginning, the intention of the insured/respondent was to use the vehicle as Taxi and was got registered, as such. The Insurance policy which was earlier obtained as Private Car, and was never applied for any change by paying extra premium for passengers, and to convert the same for Transport vehicle, so the policy remained as that of Private Car.
9. Learned counsel for the respondent submitted that it might be a violation of terms regarding limitation as to use and in such circumstances Insurance Co. should have considered the claim of the complainant on non- standard basis. In this regard some citations of Hon'ble National Commission, as well as that of this Commission have also been brought to our notice. Whereas, learned counsel for the appellant submitted that the facts of the case shows that it was not a simple violation of term regarding limitation as to use but right from the very beginning the registered owner was not having any intention to abide the terms.
10. After having considered the arguments as well as the judgment of Hon'ble National Commission and this State Commission cited by both parties, we are of the opinion that all judgments, which have been cited by learned counsel for complainant/respondent, are in respect of one or two violations of any term of the policy regarding overloading, regarding permit or regarding use. But in the facts of the present case, the vehicle itself was registered as taxi and not as a private car whereas it was insured as a Private Car, so there was no intention on the part of the registered owner to abide the terms of the policy and he was continuously violating its terms everyday and every time till the incident. In these circumstances, we do not find that the complainant is entitled for any compensation, as the vehicle was not insured as a Taxi.
11. As discussed aforesaid, the appeal succeeds and is allowed. The impugned award passed by the District Forum is set aside. No order as to cost."
15. The facts of the judgments cited by the learned counsel for the appellant (complainant) are quite distinguishable from the facts of the instant case, therefore, the above judgments do not help the appellant (complainant).
16 It appears that the appellant (complainant) (insured) obtained Private Car Package Policy, but the vehicle was being used as Taxi. The vehicle in question was registered as Motor Cab/Taxi. It shows that from very beginning the vehicle in question was intended to be used as Taxi and was being used as such, but no intimation was given to the respondent (O.P.) to the effect that the vehicle was being used as Taxi. The permit is required for the same, but no permit had been obtained by the appellant (complainant).
17. Therefore, the finding recorded by the learned District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality and does not call for any interference by this Commission.
18. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) President Member /02/2015 /02/2015 [HONABLE MR. JUSTICE R.S.Sharma] PRESIDENT [HONABLE MS. Heena Thakkar] MEMBER [HONABLE MR. Dharmendra Kumar Poddar] MEMBER