National Consumer Disputes Redressal
United India Insurance Co. Ltd. vs Kishore Sharma on 28 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2600 OF 2014 (From the order dated 07.04.2014 in Appeal No. 822 of 2012 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur) United India Insurance Co. Ltd. Petitioner Division Office, Bikaner Through Manager United India Insurance Company Regional Office Sahara Chamber Tonk Road Jaipur (Rajasthan Vs Kishore Sharma Respondent Son of Shri Satya Narayan Sharma Resident of Gram Tehandesar Tehsil Sujangarh District Churu (Rajasthan) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Mohan Babu Agarwal, Advocate For the Respondent Mr Girish K Mishra, Advocate Pronounced on 28th January 2015 ORDER
REKHA GUPTA Revision petition no. 2600 of 2014 has been filed against the order dated 07.04.2014 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (the State Commission) in Appeal no. 822 of 2012.
2. The brief facts of the case as per the respondent/ complainant are that the respondent an educated unemployed youth, for his bread and butter, on 20.11.2009 purchased a jeep for Rs.5,32,500/- from M/s Xylo Motors on loan from Mahindra and Mahindra and Com. The said vehicle was purchased by the respondent to ply it as a taxi. After finalization of purchase deal, the seller of the vehicle, i.e., M/s Xylo Motors issued a temporary registration certificate no. RJ 07 TA 122376 which was valid for one month and the petitioner insurance company issued a policy for comprehensive risk for the period from 20.11.2009 to 19.11.2010.
3. On 29.11.2009, the respondent went to village Bidasar from his village Tehandesar in a marriage party and on 30.11.2009 in the morning at 05.00 a m when the respondent was coming back to his village and on Bidasaw Sandwa road near village Sandwa Bhatlai suddenly a cow appeared before the vehicle and the vehicle got imbalanced, overturned and damaged. Respondents vehicle was being driven by Kishna Ram who possessed the driving licence to drive such type of vehicle. Due to this accident the respondent and his driver sustained minor injuries but the vehicle was totally damaged.
4. Immediately after the accident, intimation was given to the Insurance Company, Branch Office at Bikaner. On receipt of intimation, surveyor came from the Branch Office and took the necessary photographs of the vehicle and visited the spot of accident and noted down the damages and advised the respondent to shift the vehicle to the authorized showroom M/s Bikaner Motors and also asked to prepare the complete estimate for repairing the vehicle in the presence of authorized official of the insurance company.
5. After the accident of the vehicle on 04.12.2009 the estimate of the damaged vehicle was prepared in the presence of insurance officer and estimate of Rs.5,75,034/- was prepared by the Bikaner Motors and the same was sent to the petitioner insurance company and the respondent was advised to contact the office of insurance company. The respondent contacted the Divisional and Branch Office of the company at Bikaner and an assurance was given to the respondent that his claim will be settled within one week.
6. On 14.12.2009, the respondent visited the Branch Office of the petitioner insurance company and asked about the repairing of the vehicle and the officer sitting there told that the vehicle was totally damaged and not repairable. The cost of the vehicle was Rs.5,32,500/- and the estimate for repairing the vehicle was Rs.5,75,034/- hence, this was a case of total loss and claim file had been sent to Regional Office at Jaipur for necessary advise and directions and whenever they received the guidelines the same would be communicated to him over phone. Even after one month of the accident, the insurance company did not give any information to the respondent. The vehicle of the respondent was lying at Bikaner Motors in a damaged condition.
7. The authorized person of Bikaner Motors informed the respondent over phone that his vehicle was lying in the workshop in a damaged condition for the past one month and Rs.100/- per day were being charged for it. Hence, requested him to get the vehicle repaired at his own expenses or remove the vehicle from the workshop. After receipt of this information, the respondent again visited the office of insurance company and the officer informed him that they had not received any guidelines from the Regional Office, hence, he would have to wait and in this assurance five to six months elapsed. Aggrieved by the attitude of the insurance company, the respondent served a legal notice dated 14.04.2010 to the petitioner through his advocate asking for payment of loss of damage to the vehicle and other expenses but the insurance company had not replied to the notice of the respondent till date and also had not paid the compensation amount. As the vehicle was parked in the workshop of Bikaner Motors, expenses per day of Rs.100/- were being accrued to the respondent and the respondent was not in a position to repair the vehicle on his own.
8. The insurance company had shown deficiency of services by way of non-payment of the claim of the respondent. It was definitely deficiency of service on the part of the insurance company as the claim had not been settled in time and was kept pending. Due to this attitude of insurance company the vehicle was parked in the workshop of Bikaner Motors, expenses per day Rs.100/- were being accrued to the respondent for which insurance company was responsible.
9. The respondent prayed as under:
Respondent requested that the complaint be admitted and award be passed against the insurance company as under:
(i) Considering the deficiency in service on the part of the insurance company, the respondent may be allowed Rs.5,75,034/- with interest @ 24% from the date of accident, i.e., 30.11.2009;
(ii) Rs.21,000/-
should be allowed as parking charges (Rs.100/- per day) for 210 days for keeping vehicle at Bikaner Motors and to be continued till the date of taking delivery of repaired vehicle by the respondent;
(iii) Rs.1.00 lakh to be allowed for mental agony; and
(iv) Rs.20,000/- should be allowed as cost of litigations.
10. In their written statement before the District Consumer Disputes Redressal Forum, Churu, Rajasthan (the District Forum) the petitioner/ opposite party stated that the respondent purchased the vehicle to run it as taxi. The true fact was that the respondent purchased the vehicle for transportation business and also appointed a driver to drive the vehicle. Hence, the respondent had purchased the vehicle for a commercial purpose. The said facts were confirmed by the claim form dated 09.12.2009 submitted by the respondent with the insurance company and the statements given by the respondent on 06.04.2010. During investigation it was proved that the said vehicle was purchased for commercial purpose. Insurance of M&M Xylo 02 Chassis no. JAK92 K 22359, engine no. JA 94K 10224 was done in the name of the respondent for the period 20.11.2009 to 19.11.2010 and its insurance policy no. is 141000/31/09/01/00005061 issued by the insurance company. Its cover note no. JRO/09/ No. 586606 had been issued. The respondent has mentioned the cover note no. JRO/ 09/ No. 586607 of some other vehicle for which the insurance company was not liable.
11. The respondent intimated the insurance company regarding the accident of the insured vehicle on 30.11.2009, Shri Mahendra Lokwani was appointed by the insurance company for spot survey of the vehicle. Survey report dated 25.12.2009 was received by the insurance company on 29.12.2009.
12. The respondent was plying the accident vehicle at the time of accident without registration certificate, permit and fitness against the terms and conditions of the policy and the provisions of the Motor Vehicle Act. As per policy, the documents were necessary for a commercial vehicle. It is clear that the respondent had violated the conditions of insurance policy. Hence, the complaint of complainant deserves to be dismissed.
13. Temporary registration no. RJ 07 TA 0122376 was issued by Bikaner Motors Pvt. Ltd., and was valid till 19.12.2009. The subject vehicle met with an accident on 30.11.2009 at 05.00 AM. Thereafter on 08.12.2009, the respondent deposited the fees for registration and road tax in the office of Transport Authority, Churu, vide receipt no. 94375 dated 08.12.2009 and receipt no. 94376 dated 08.12.2009 had been issued for fitness fee. Transport Officer, Churu had issued registration certificate of the vehicle for the period 13.01.2010 to 12.01.2025. After issuance of registration certificate of the vehicle, tourist permit was issued on 14.01.2010 and its validity had been shown upto 13.01.2015. All the above formalities had been done by the respondent after 30.11.2009, the date of accident of vehicle. The registration of vehicle was issued on 13.01.2010, fitness was issued on 14.01.2010 and permit no. 0019979 issued on 14.10.2009 by Transport Officer, Churu. The said registration no. RJ 10 TA 0462 dated 13.01.2010 was for the transport vehicle which can be issued only after issuing the fitness under form 38. In this case fitness certificate no. 1205442 has been issued on 14.01.2010. Fitness certificate clearly states that all provisions and conditions of Motor Vehicle Act had been complied by the respective motor vehicle and this vehicle was fit for plying on the road. Before issuing the said documents, physical verification of vehicle was also done by the registration authority. Permit no. 0019979 which was issued on 14.10.2009. The documents getting issued by the respondent from DTO Churu for the accident vehicle are doubtful hence, the respondent was not entitled to get any relief. The respondent has hidden the material facts from the insurance company.
14. The respondent has clearly mentioned that he had purchased the vehicle to ply it as a Taxi. In column no. 3 (1) (jha) (na), the respondent has clearly mentioned that his driver Kishna Ram is a paid driver since last two years. It is clear that the respondent had purchased the vehicle for his transport business and driver has been employed for driving the said vehicle. Hence, the purpose of purchasing of vehicle was to use the vehicle for commercial purpose hence, the respondent do not fall under the category of consumer hence, complaint of the respondent deserves to be dismissed.
15. The District Forum vide its order dated 28.03.2012 while allowing the complaint ordered thus:
Without any dispute, the subject vehicle was purchased on 20.11.2009 which met with an accident on 30.11.2009. The insurance company had insured the vehicle on the basis of temporary registration certificate. On technical grounds, the opposite party insurance company cannot reject the claim of complainant stating that owner of the vehicle was not having permit. It was the duty of opposite party insurance company that before granting insurance cover, they must have checked all vehicular documents. Now opposite party insurance company cannot escape from liability. Opposite party insurance company got the vehicle inspected through their surveyor. Surveyor has prepared his report hence, it is justify to allow the amount assessed by surveyor Rs.3,04,856/- to the complainant.
Hence, accepting the complaint of the complainant, opposite party insurance company is ordered to pay the amount of Rs.3,04,856/- assessed by the surveyor for the insured vehicle no. RJ 07TA 122376 which met with an accident and damaged during insurance period, covered under policy no. 586606 within two months otherwise interest @ 9% per annum will be payable. The complainant also receive Rs.2500/- from opposite party for mental agony and cost of litigation.
16. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:
At the time of accident, temporary registration certificate of vehicle was issued, hence, on this ground the insurance claim cannot be repudiated. As far as requirement of permit as per section 66 of Motor Vehicle Act is concerned, we observed the Registration Certificate of this vehicle, Laden Weight of this vehicle is 2745 kgs whereas as per section 66 (3) (I) permit is required only for those vehicles whose laden weight is more than 3000 kgs. As per registration certificate of the vehicle seating capacity of passengers for this vehicle is shown as 7 and travelling of 6 passengers in the vehicle at the time of accident is not disputed. On the basis of this registration certificate, permit for this vehicle was not necessary. Although the vehicle was being used as a taxi and the complainant had received its one route permit on 14.01.2010 and fitness certificate of vehicle was also got on 13.01.2010. During this discussion it is found that at the time of accident there was temporary registration certificate of the vehicle and permit was not required for that vehicle as per section 66 (3) (I) of M V Act. As far as fitness certificate is concerned, the National Commission in the matter of United India Insurance Co. Ltd., vs B Ugandar has decided that fitness is necessary for safety of passengers and their goods and non-availability of fitness is not the sufficient ground to repudiate the claim. In this matter, this is to mention that fitness is not the sufficient ground to repudiate the claim. In this matter, this is to mention that fitness was required before plying the vehicle but we also want to mention here that the vehicle met with an accident only after 10 days of its purchase as a cow suddenly appeared before the vehicle, the vehicle was brand new, it was run only for 10 days and under these circumstances, formalities regarding fitness were not completed but there cannot be any dispute regarding its fitness certificate. On this ground we are of the opinion that repudiation of claim was not justified.
The order given by the District Forum to pay the amount as assessed by the surveyor is justified hence, there is no need to interfere in it. There is also no need to interfere in amount of Rs.2500/- allowed for mental agony and cost of litigation. If the insurance company pay this amount within one month then interest will not be payable. The amount deposited by insurance company in the District Forum should be adjusted with interest and the balance amount is to be paid.
17. Hence, the present revision petition.
18. We have heard the learned counsel for the parties and have carefully gone through the records of the case. Learned counsel for the petitioner has stated that the impugned order of the State Commission is based on wrong observations, perverse findings, extraneous considerations against the material on the record of the case, non-consideration and without appreciation of the evidence. Further, the settled law has not been considered by the State Commission and thus the impugned order is liable to be set aside while the facts of the case clearly establishes that there was a violation of the terms and conditions of the insurance policy. The said vehicle in question was plying against the settled terms and conditions of the contract of insurance between the insurer and the insured hence, claim is not maintainable and the petitioner was justified in repudiating the same. The vehicle in question only had a temporary registration certificate on the date of the accident. He also drew our attention to section 66 (1) of the Motor Vehicles Act, 1988 which reads 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 is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.
19. He further stated that the State Commission has observed that as per section 66 (3) (I) permit is required only for those vehicles whose laden weight is more than 3000 kgs and as such permit was not required for the vehicle is a wrong conclusion. Section 66 (3) (I) refers to goods vehicle and not LMV/ transport vehicle. He has shown us the registration certificate where the registration is for the LMV and as per the insurance policy it had been insured as a commercial vehicle.
20. As per the definition of Motor Vehicles Act, 1988, section 14 reads as under:
Goods carriage means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.
Section 22 of the M V Act, 1988 reads as under:
Light motor vehicle means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed (7500) kilograms.
21. We agree with the argument of the learned counsel for the petitioner that at the time of accident the vehicle in question had only temporary registration certificate and as per the section 39 of the M V Act, 1988, no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carried a registration mark displayed in the prescribed manner.
22. As per section 23 of the said Act, the temporary registration is valid only for one month and is not renewable. Section 66 (i) and (k) of the M V Act, 1988 reads as under:
(i) To any goods vehicle, the gross vehicle weight of which does not exceed 3000 kilograms;
(k) To any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle.
23. The State Commission while relying on the order of the National Commission in the case of United Insurance Company Ltd., vs B Ugandar decided on 15.04.2010 has wrongly read and interpreted the order. The said order reads as under:
7. A combined and harmonious reading of provision of Section 84 of MV Act read with section 39, 59 and 60 would show that transport vehicle was required to have a fitness certificate impliedly for safety of passengers or goods. These are statutory requirements of M V Act, 1988 in violation of which, vehicle was put to use on road.
Authority of Insurance Company to resist claim of the insured taking recourse to provisions of Section 149 (2) (a) (i) was held to be valid by Honble Apex Court in the case of National Insurance Company Ltd., vs Challa Bharathamma and Ors., V (2004) SLT 825 = III (2004) ACC 292 (SC) = (2004) 8 SCC 517, there being violation of statutory requirements of the Act. Fora below was in error in upholding claim by respondent, which is not sustainable. Revision petition in the circumstances succeeds, however, with no order as to cost.
24. It is clear from the above, that there was a violation in the terms and conditions of the insurance policy as also violation of the provisions of the M V Act, 1988. The insurance policy is a contract between the insurer and the insured. The petitioner was justified in repudiating the claim of the respondent/ complainant, hence, revision petition is allowed and the impugned orders of the fora below are set aside and the complaint is dismissed.
Sd/-
..
[ Rekha Gupta ] Sd/-
..
[ Ajit Bharihoke, J.] Satish