State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Pradeep Singh Bisht on 15 September, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 224 / 2007
The New India Assurance Company Limited
Divisional Office, Nainital Road, Haldwani
through Senior Divisional Manager
Astley Hall, Dehradun
......Appellant / Opposite Party
Versus
Sh. Pradeep Singh Bisht S/o Sh. Harish Singh Bisht
R/o Adarsh Nagar, Haldwani
District Nainital
.....Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Deepak Ahluwalia, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 15.09.2008
ORDER
(Per: Justice Irshad Hussain, President):
This is insurer's appeal against the order dated 07.06.2007 passed by the District Forum, Nainital, partly allowing consumer complaint No. 76 / 2006 and directing the insurer to pay compensation of Rs. 67,013/- together with interest @9% p.a. and Rs. 1,500/- as cost to the complainant, so as to indemnify him for the loss occasioned due to accident of his insured taxi cab No. UA04A / 4082.
2. The claim was repudiated by the insurer on the ground that the driver of the accidental vehicle was not having a valid and effective driving licence at the time of the accident and, as such, the company was not liable to pay any compensation. Vehicle in question was being used as a transport vehicle under tourist permit issued by the Secretary, State Transport Authority, Dehradun (Uttaranchal, now 2 Uttarakhand) and the same was valid from 26.07.2005 to 26.07.2006. Accident took place on 23.08.2005 and at the time of the accident, the vehicle was being driven by Sh. Pradeep Bisht, whose licence was endorsed for driving transport vehicle on 08.08.2003 and the validity was upto 07.08.2006. By the tourist permit of the vehicle in question, a specific condition was imposed on the permit holder, i.e., the insured that he shall employ such a driver, who was having atleast five years experience in driving the transport vehicle. Sh. Pradeep Bisht was authorised to drive transport vehicle on 08.08.2003 and, as such, he does not meet the required specific condition of driving of vehicle in question. That was the reason for repudiation of the claim.
3. The District Forum rejected the insurer's contention by observing that since the cover note issued by the insurance company stipulated that any person having valid driving licence, shall be entitled to drive the insured vehicle in question, the repudiation of the claim was unjustified and in doing so, the insurance company made deficiency in service.
4. Learned counsel for the insurer argued that the District Forum fell in error in observing that the driver of the vehicle in question was having valid driving licence and was authorised to drive the vehicle in question and also in not taking into proper prospective the terms and conditions of the policy of insurance, which prescribe limitation as to the use of the vehicle in question and particularly the limitation as to the use as below:
"The Policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 or such a carriage falling under 3 Sub-section 3 of Section 66 of the Motor Vehicles Act, 1988."
5. Referring to the above term and condition, learned counsel also submitted that as stipulated by Section 66 of the Motor Vehicles Act, 1988, the insured, the permit holder of taxi cab in question, was legally obliged to use the said transport vehicle in any public place only in accordance with the conditions of the permit granted by the transport authority concerned and since the vehicle in question was being driven by the driver, who was not having atleast five years experience in driving the transport vehicle, the vehicle in question was not being used at the time of the accident save in accordance with the conditions of the permit granted and contrary to the limitation as to its use in contravention of the terms and conditions of the policy of insurance and the repudiation of the claim was justified. According to the learned counsel, the District Forum made a patent error in not accepting the defence contention regarding just and proper repudiation of the claim preferred by the complainant. Per contra, learned counsel for the complainant urged that the condition as laid down in the permit by the Transport Authority being vague, the same is required to be interpreted in complainant's favour. Secondly, it is submitted that at any rate, the claim may be directed to be settled as non-standard claim and to the extent of 75% of the claim made in this case.
6. Sub-section (1) of Section 66 of the Motor Vehicles Act, 1988 without reference to its provisos read as under:
"66. Necessity for permits - (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle 4 is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used."
7. From above provision, it is evident that it creates a legal obligation that a transport vehicle, such as the vehicle in question, was to be used as such only in accordance with the conditions of a permit granted by the transport authority. As stated above, the permit of the vehicle in question has a specific condition imposed on the permit holder of the vehicle that he shall employ such a driver, who is having atleast five years experience in driving the transport vehicle and as referred above, the permit holder, the complainant has not adhered to the said condition of the permit and employed the driver, who was having experience of just over two years. The condition of the permit as regards the experience of the driver, does not at all appear to be vague as claimed by the learned counsel for the complainant. The same clearly appear to have been purposely laid to protect the life and property of the consumers, those as a passenger for hire or reward, were to travel in the taxi cab. Permit had been granted by the Transport Authority of the hill region of the State of Uttarakhand, where on hill routes, drivers having sufficiently long experience, are required to drive transport vehicles such as taxi cab, so that accidents, which do occur in large number, could be avoided. It shall not be out of place to refer to the latest report of the National Crime Records Bureau according to which, road accidents comprised 54.60% of all unnatural deaths in Uttarakhand, much higher than national figure of 36.10%. Moreover, while the rate of death per 100 accidents was just 5 26.80% in the country, in Uttarakhand, the figure stood at 66.70%, sixth highest after Meghalaya, Mizoram, Nagaland and Sikkim, wich have much more difficult higher terrain. Therefore, labeling the above condition as vague and interpreting the same in favour of the complainant, is not at all warranted. The fact is that the vehicle in question was not being used save in accordance with the conditions of the permit, as envisaged by above referred Section 66 of the Motor Vehicles Act, 1988 and as a consequence thereof, we have no hesitation in subscribing to the argument advanced that the vehicle in question was being used at the time of the accident contrary to the limitation as to its use, as provided by the contract of the insurance as referred above. Therefore, on the date of the accident, the vehicle in question was being used in violation of the terms of the insurance policy by reason of the use of the same contrary to the conditions of its permit issued by the transport authority concerned and in a situation like this, the insurer was not liable to indemnify the loss occasioned to the complainant due to the accident of the vehicle. The District Forum made an apparent error in considering this legal aspect of the matter and in recording a finding against the insurance company. We have taken similar view in regard to the said condition of the permit of the transport vehicle in our decision dated 14.06.2007 in First Appeal No. 241 / 2006; The New India Assurance Company Limited Vs. Sh. Mahesh Chandra Rawat and permit holder of the vehicle was non-suited in regard to his claim for indemnification of the loss occasioned as a result of the accident of the transport vehicle. In view of it, we would not be able to accept the contention that the claim may be directed to be settled as non-standard claim and to the extent of 75% of the claim on the ground that the breach of the condition of the policy was in regard to the limitation as to the use of the vehicle in the manner prescribed.
68. In view of the above finding, this appeal would succeed and the order impugned is liable to be set aside.
9. In so far as the question as to the propriety of the amount of compensation awarded is concerned, we also find force in the argument of the learned counsel for the insurance company that the District Forum by the impugned order, was not justified in awarding compensation to the tune of Rs. 67,013/-, although the insurer's surveyor assessed net loss at Rs. 26,886/-. The reason being that only bodily damage was caused to the vehicle in question in the accident and the engine assembly and other vital parts of the vehicle were intact. The District Forum has not given any cogent reason to discard the detailed and objective report of the surveyor Sh. Ashok Kumar Joshi dated 13.09.2005 (Paper Nos. 17 to 20) and even made patent error in coming to the conclusion that the complainant spent Rs. 35,500/- towards purchase of diesel pump and the claim for which, was not found admissible by the surveyor. Therefore, at any rate, the complainant could not have been granted compensation more than the net loss assessed by the surveyor.
10. For the reasons aforesaid, this appeal succeed and is to be allowed accordingly.
11. Appeal is allowed. Order dated 07.06.2007 of the District Forum is set aside and the consumer complaint No. 76 / 2006 is dismissed. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal