State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. vs Shri Sumiter Singh Masand on 30 March, 2012
H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
First Appeal No: 119/2011
Date of
Decision: 30.03.2012.
.
The
New India Assurance Company Limited
Branch
Office Palampur, District Kangra
Through
its Senior Divisional Manager,
IIIrd
Floor, Block No.7, SDA Complex, Kasumpti,
Shimla-171009.
Appellant.
Versus
Shri
Sumiter Singh Masand
S/O
Shri Amin Chand Masand,
Proprietor
M/S Masand Coach Service, Village Mumta,
Tehsil
& District Kangra, H.P.
Respondent.
Coram
Honble Mr. Chander
Shekhar Sharma, Presiding Member
Honble Mrs. Prem
Chauhan, Member.
Whether approved for
reporting?[1]Yes.
For
the Appellant: Mr. Ratish Sharma,
Advocate.
For respondent: Mr. Manohar Lal Sharma, Advocate.
O R D E R:
Chander Shekhar Sharma, Presiding Member:
1.
This appeal is directed against the order dated 3rd March, 2011, of learned District Consumer Disputes Redressal Forum, Kangra, at Dharamshala, passed in Consumer Complaint No. 214/2009, whereby complaint under section 12 of the Consumer Protection Act, 1986, filed by him (complainant) against the opposite party, was partly allowed and opposite party was directed to pay compensation amounting to `80,235/- along with interest at the rate of 10% per annum, from the date of complaint, till its actual payment, within 30 days from the date of receipt of copy of this order. The opposite party was further directed to pay compensation for the mental agony and harassment, to the tune of `20,000/- and litigation charges were quantified at `5,000/-. The parties are hereinafter referred to as their status in the complaint.
2. Facts of the case as they emerge from the complaint are that the complainant, who is registered owner of bus bearing registration No.HP-68-1509, hereinafter referred as the vehicle in question, was running two other buses, registered in his name. The vehicle, in question, was insured with the opposite party for a sum of `7,32,800/- and the insurance was effective from 09.10.2007 to 08.10.2008. The vehicle in question, met with an accident at village Lilly on 11.12.2007 and extensive damage was caused to the vehicle. Thereafter, FIR was lodged and intimation was also given to the opposite party. A claim was lodged with the opposite party, who dilly-dallied the same and repudiated vide letter dated 24th June, 2008, by informing the complainant that he was not having a valid route permit, where the accident had taken place.
3. Further averments in the complaint are to the effect that the complainant had submitted the list of fleet of buses to the opposite party, which had been issued by the R.T.O., Dharamshala out of which bus bearing registration No.HP-40A-7509 was having route permit from Lilly to Dharamshala from 31.10.2007 to 20.10.2012. The State Government has discontinued with the previous practice of consolidated permit from time to time, which was being followed in the year 2004, and thereafter single permit was being issued for a single bus. However, the matter was challenged before the Honble High Court of H.P. in Writ Petition, and the Honble High Court vide order dated 06.06.2008, had directed that the previous practice, which was in consonance of providing consolidated permit for the fleet of buses, being plied by the transporters was to be continued. It was further averred that no doubt the complainant was not having a special permit for the vehicle in question, for route on which it was plied at the time of accident, but the another bus was having the permit for this route, and as per rules, the bus in question could have also been plied, as ordered by the Honble High Court. Hence, deficiency in service had been alleged on the part of the opposite party and in this background the present complaint was filed under section 12 of the Consumer Protection Act, 1986, wherein prayer had been made for setting aside the repudiation letter dated 24th June, 2008, issued by the opposite party and compensation to the tune of `2,00,000/- had also been sought along with interest, besides compensation of `25,000/-for causing mental, physical and financial harassment and litigation costs of `5,000/- had also been claimed.
4. The complaint was resisted and contested by the opposite party, on the ground that there is no deficiency in service on the part of the opposite party. Since the complainant was not having a valid route permit at the time of the accident and it was also pleaded that the complainant had furnished a temporary route permit, after tampering, which was originally issued for 12th December, 2007, by the R.T.O., Dharamshala, but by tampering, it was shown to be for 11.12.2007 and after verification, this permit was found to be tampered with and as such it was pleaded that the claim of the complainant had rightly been repudiated and there is no deficiency in service on the part of the opposite party.
5. Rejoinder to the complaint was also filed wherein the averments made in the complaint were reiterated.
6. The brief resume of the evidence led by the parties in nutshell is that the complainant in support of his case had filed his own affidavit and had placed reliance upon numerous documents vis-a-vis Annexures C-1 to C-14. The opposite party in the present case had filed affidavit of Santosh Kumar, Divisional Manager of the Company, affidavit of Manmohan Sharma, Surveyor & Loss Assessor, affidavit of Lokesh Sharma, Advocate, and affidavit of H.S. Bawa, Surveyor & Loss Assessor and had also placed on record Ex. OPW-1 to OPW-4 and had also placed reliance upon numerous documents, vis-a-vis Annexures OP-1 to OP-12.
7. We have heard learned counsel for the parties and scanned the record of the case meticulously.
8. Mr. Ratish Sharma, Advocate, representing the appellant argued that the order of the learned Fora below is not legally sustainable, inasmuch, as, the complainant himself had produced a forged route permit, Annexure OP-7, which is at page 105 of the complaint file, which clearly depicts that the route permit had been tampered with. Since, it was originally issued for 12th December, 2007, but after tampering, date has been shown as 11.12.2007. Mr. Sharma, also drew our attention to the statement of Shri Vijay Bhuria, Dealing Clerk, in the office of RTO, Dharamshala, which was recorded by the learned Fora below, in which he had stated that the permit was issued on 12.12.2007, only for one day and there is no cutting/overwriting in their record and the document Annexure OP-7, clearly depicts overwriting/cutting, qua dates. Per him, the judgment of the Honble High Court of H.P. passed in Writ Petition No.637 of 2005, decided on 6th June,2008, which had been relied upon by the learned Fora, is not applicable in the present case and he had also argued that since the complainant had not come with clean hands and had produced a forged route permit, as such, the learned Fora below, had wrongly awarded interest at the rate of 10% per annum, and further awarding of compensation to the tune of `20,000/-, is not legally sustainable. Per him, the learned Fora below had also wrongly awarded the amount of `80,235/-, without deducting the amount of `1500/- as excess clause. He further argued that the fleet list, which had been supplied to the R.T.O., Annexure C-5, is only from 21.01.2009 to 20.01.2010, wherein there is a description of only three buses bearing Nos., Bus No.HP-40A-7509, HP-68-1509 & HP-68-2909. He had also placed reliance upon III (2004) ACC 292 (SC) in case National Insurance Company Ltd. Versus Challa Bharathamma & others, wherein it has been held that in case there was no valid permit, then repudiation of claim was held to be justified. He also placed reliance on III (2010) CPJ 321, of Chhattisgarh State Consumer Commission, in case Bhupal Singh Thakur versus Oriental Insurance Company Ltd., wherein it was held that in case of fake route permit, the rejection of claim was held to be justified. He further placed reliance upon National Insurance Company Ltd. Versus Sunil Sood, F.A. No.292/2007, decided on 30.10.2009, of our own State Commission, wherein it was held that in case of plying a vehicle without route permit, in violation of the terms and conditions of the policy, repudiation of claim was justified. There is no dispute about the legal preposition laid down by the Honble Supreme Court and State Commissions.
9. On the other hand, Mr. Manohar Lal, Advocate, representing the respondent/complainant, has supported the order of the learned Fora below and had also placed reliance upon the judgment of the Honble High Court of H.P. in C.W.P. No.724/2004, Pawan Kumar versus State of Himachal Pradesh, decided on 06.06.2008, whereby bunch of writ petitions were disposed of by the Honble High Court vide aforesaid order.
10. After hearing the learned counsel for the parties and going through the record, we are of the considered view that there appears to be legal infirmity in the order of the learned Fora below qua awarding of compensation to the tune of `80,235/- in favour of the complainant, is concerned. However, the interest, which had been awarded at the rate of 10% per annum appears to be on higher side, which deserves to be reduced to 9% per annum. However, in the peculiar facts and circumstances of this case, complainant will not be entitled for any compensation for harassment, as awarded by the learned Fora below amounting to `20,000/- and rest of the order qua awarding of litigation costs, deserves to be maintained.
11. Reason being that it is abundantly clear from Annexure C-6, which is copy of permit in respect of a service of stage carriages, that the complainant was having a route permit for Bus No.HP-40A-7509 from Lilly to Dharamshala, which was effective from 31.10.2007 to 20.10.2012, and in the fleet list, which was countersigned by the Secretary, Regional Transport Authority, Dharamshala, Annexure C-5, clearly depicts that the complainant owned three buses bearing No.HP-40A-7509, HP-68-1509 & HP-68-2909. The complainant was also having route permit from Lilly to Dharamshala from 31.10.2007 to 20.10.2012 and he owned three buses in his own name.
12. The action of the State government in restricting the route permit to one specific vehicle and grant for one vehicle only, had been challenged by the various transporters in the Honble High Court of H.P. in Civil Writ Petition No.724/2004, decided on 6th June, 2008, which judgment is placed on record by the complainant as Annexure C-8. The Honble High Court of H.P. in the aforesaid judgment had held that the State has no power to direct that the route permit shall be vehicle specific and granted for one vehicle only and the past practice of entering the registration number of all the vehicles owned by the operators shall be followed so long as necessary amendment is not made in the rules and it was also observed that the action of the State in restricting the route permit to one specific vehicle has no legal sanction and it is not a condition which can be incorporated in the route permit.
13. Since, complainant was owning three buses, the detail whereof is given in Annexure C-5, and he was having a route permit for a bus bearing No.HP-40A-7509, from Lilly to Dharamshala, which was effective from 31.10.2007 to 20.10.2012 and the accident in the instant case had taken place on 11.12.2007. Since, the action of the State government for discounting with past practice of selling route permit, which was being followed in the year 2004, has been held to be illegal by the Honble High Court and as such, it cannot be expected that the number of other buses run by the complainant would have been added in the route permit, but those were required to be added after passing of this judgment.
14. Since, as per fleet list Annexure C-5, it is clearly evident that the complainant is owner of three buses and there is a permit Annexure C-6, for bus No.HP-40A-7509, from Lilly to Dharamshala, where accident had occurred, which was effective from 31.10.2007 to 20.10.2012 and as such on the basis of this permit, he could have plied the accidented bus on the aforesaid road, where the accident had occurred.
15. As such, there appears to be no legal infirmity in the order of the learned Fora below, qua the findings given in paras 5 to 7 of the order. In the present case, it appears that the learned Fora below had wrongly awarded an amount of `80,235/- to the complainant, whereas, as per report of the surveyor H.S. Bawa, Annexure OP-2, it is apparently clear that the amount of `80,235/- had been reduced to `79,735/- by excluding the amount of excess clause amounting to `1500/-. In the affidavit of Santosh Kumar, Divisional Manager of the Company, it is clearly evident that the surveyor had assessed the amount at `79,735/-, after excluding the amount of `1500/- being excess clause. The report of the surveyor, Annexure OP-2, was a reasoned one and based on sound reasoning, he being an expert and qualified person, and as such, his report had been rightly relied upon by the learned Fora below, there being no other expert report to the contrary, having been brought on record by the complainant. However, there was no cogent and reliable evidence having been brought on record by the complainant to justify his claim for an amount of `25,000/- as claimed by him on account of compensation for causing harassment and inconvenience to him.
16. Since, in the present case, this fact is very clear and apparent from the record and even the learned Fora below had also observed in para 5 of the order that the temporary route permit for bus bearing No.HP-68-1509 was issued only for 12.12.2007. This fact is further proved from the statement of Shri Vijay Bhuria, Dealing Clerk, in the office of RTO, Dharamshala, who has stated that the permit was only issued for 12.12.2007, i.e. for one day and as such tampering has been made in this route permit, which is clearly evident from a naked eye, after the perusal of Annexure C-7. As such, the complainant had not come with clean hands before the learned Fora below and the complainant should not have been awarded the compensation of `20,000/- in the present case, which does not appears to be legally justified.
17. However, the interest which had been awarded by the learned Fora below at the rate of 10% per annum, to the complainant, also appears to be on higher side. Generally the rate of interest is being awarded at the rate of 9% per annum. As such, the interest awarded by the learned Fora below deserves to be reduced to 9% per annum, from 10% per annum. The order of the learned Fora below pertaining to awarding of litigation costs, which had been quantified at `5,000/- appears to be legally justified and as such requires no interference.
18. In view of the above stated position, the present appeal is partly accepted and the order of the learned Fora below is modified to the extent that the opposite party shall pay compensation to the tune of 79,735/- instead of `80,235/- and the complainant shall be entitled to interest at the rate of 9% per annum, instead of 10% and the rest of the order pertaining to awarding of litigation costs to the tune of `5,000/- is maintained, whereas, the compensation awarded by the learned Fora below, to the tune of `20,000/- is set aside, for the reasons discussed hereinabove. No order as to the costs.
19. In the above terms, the appeal stands disposed of accordingly.
20. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Chander Shekhar Sharma) Presiding Member (Prem Chauhan) Member March 30, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?