National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Thirath Singh Brar on 14 August, 2018
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1870 OF 2015 (Against the Order dated 30/04/2015 in Appeal No. 377/2013 of the State Commission Punjab) 1. NEW INDIA ASSURANCE CO. LTD. DELHI REGIONAL OFFICE-I R.G. CITY CENTRE, 2ND/3RD FLOOR, LSC, BLOCK-B LAWRENCE ROAD, NEW DELHI-110035 ...........Petitioner(s) Versus 1. THIRATH SINGH BRAR SON OF SHRI BAKHSHIS SINGH, R/O VPO MEHMA SARJA, TEHSIL AND DISTRICT BATHINDA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. Maibam N. Singh, Advocate For the Respondent : Mr. Gagan Gupta, Advocate.
Dated : 14 Aug 2018 ORDER Challenge in this Revision Petitioner under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 30.04.2015 in FA No. 377 of 2013 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (for short "the State Commission.")
2. By the impugned order, the State Commission while affirming the finding of the District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum") has modified the order of the District forum by reducing the amount from ₹11,31,826/- to ₹10,93,421/- confirmed the rest of the order of the District Forum.
3. The facts in brief are that the Complainant has purchased a truck of TATA Model LPS in the month of March, 2012 and got the same insured with the Opposite Party (hereinafter referred to as the "Insurance Company") for the period 21.03.2012 to 20.03.2013. It was averred that the Complainant had purchased the said vehicle for earning his livelihood by way of self-employment. It was stated that the Complainant applied in the office of DTO, Bathinda for registration of the subject vehicle and the DTO issued the Registration Certificate and allotted Registration No. PB-03-AA-8477. On 30.03.2012, the Motor Vehicle Inspector also gave a fitness certificate. The Complainant applied for goods carriage permit and deposited the tax and permit fee and other expenses in time. The RTA, Bathinda issued the permit of the said vehicle in the name of the Complainant which was going to expire on 11.04.2007. The Complainant appointed Balwinder Singh @ Binder Singh as driver of the subject truck as he had a valid heavy driving licence and is entitled to drive the said vehicle.
4. It was averred that the Complainant had directed the driver on 10.04.2012 to go to Pathankot and to bring the crusher, on his directions, the driver went to Pathankot, purchased the crusher, left on 10 p.m. Around 3 a.m. on 11.04.2012, when the subject truck reached near Jeera Town some animals came from the right side. The driver, while trying to save the animals, turned the steering to the left side and also tried to stop the vehicle by applying the brakes but unfortunately truck over-turned in a khud after hitting the trees. The driver reported the accident to the Complainant at around 5 a.m. and the Complainant immediately rushed to the place of the incident and informed the Insurance Company. A Surveyor was appointed who inspected the damage and prepared a list of all the damaged parts.
5. It was averred that the Complainant had requested the officer of the Insurance Company to assess on total loss basis as the vehicle has been totally damaged and was in such a condition that even after repair it would not be able to function properly. But the Insurance Company pressurized the Complainant to get the vehicle repaired and assured that all the repair bills would be cleared by them. On such an assurance, the Complainant got the vehicle repaired from five workshops at Bathinda. The engine parts + cabin + chassis were got repaired from the Company namely Gobind Motors who are the authorized dealers of Tata Motors Limited. It was pleaded that the Complainant paid an amount of ₹7,37,578/- in cash to the Gobind Motors against the bill dated 24.04.2012. It was averred that the Complainant paid a total amount of ₹11,31,826/- to different workshops namely ₹13,300/- to Surjeet Repair Works, ₹3,55,710/- to M/s JGR Fabricators, ₹15038/- to Kohinoor Lubricants, ₹10200/- to Mohan Singh Body Maker.
6. It was further averred that the Complainant had taken a loan to purchase the subject vehicle and was paying instalments of ₹58,500/- per month to the Finance Company and has borrowed an amount of ₹7,00,000/- from near and dear and the delay by the Insurance Company in the settlement of the claim was causing loss of ₹3,000/- per day. Despite several requests, the Insurance Company did not settle the claim. Hence the Complainant approached the District Forum seeking directions to the Insurance Company to pay an amount of ₹11,31,826/- with interest, compensation, costs and other reliefs.
7. Insurance Company filed their written version stating that the accident took place on 10.04.12, as per the route permit supplied by the Complainant to them, it was valid only for a period from 12.04.12 to 11.04.17, meaning thereby that the said vehicle was plying without valid route permit which was a clear violation of the rules & regulations and terms & conditions of the policy. The Complainant was informed regarding the date of the route permit vide letter dated 29.08.12. A reference with regard to the head office circular dated 26.10.04 was also given to him. It was pleaded that the claim of the Complainant has been rightly repudiated as the Hon'ble Apex court in case CA No. 6129 of 2004 has laid down that plying the vehicle without requisite permit is a breach of the terms & conditions and the Insurance Company is not liable for settling the claim.
8. The District Forum based on the evidence adduced allowed the Complaint directing the Insurance Company to pay an amount of ₹11,31,826/- with compensation of ₹50,000/- to be paid within a period of 45 days from the date of the receipt of a copy of the order, failing which the amount shall attract interest @ 9% p.a. from the date of filing of the complaint till the date of realization.
9. Aggrieved by the said order, the Insurance Company preferred an Appeal before the State Commission, which, while concurring with the findings of the District Forum only reduced the amount to ₹10,93,421/-. The State Commission reasoned as follows:-
"It has been argued by the counsel for the appellant that on the date of accident, the vehicle in question was not having the route permit. The accident took place on 10.04.2012 whereas route permit was issued on 12.04.2012, therefore, on the date of occurrence, the vehicle in question was not having the valid route permit and accordingly, the complainant had violated the terms and conditions of the policy. We have gone through the route permit placed on record by the complainant as Ex. C-4 and its expiry date is mentioned as 11.04.2017. The order was signed by Secretary, RTA, Bathinda on 12.04.2012. However, during the hearing of appeal, the counsel for the respondent has placed on the record the verification sought from Secretary, RTA that the permit was issued against the vehicle No. PB03AA8477 was from 11.04.2012. In case, we go through the allegations made in the complaint, the alleged accident took place at 3 a.m. on 11.04.2012 near Zeera as pleaded in Para No. 6 of the complaint. In reply to it, this fact has not been denied. However in verification report Ex. R-4 the date of permit is mentioned as 12.04.2012 and the accident took place on 11.04.2012 one day prior to the accident. However, it is pertinent to mention here that it was a new vehicle. After getting the registration number, it was duly tested by Motor Vehicle Inspector and the route permit is not processed in one day. The application with requisite charges was filed and then the file is processed and it takes sufficient time, therefore, certainly, it must have been applied before accident and in case, sufficient time was taken in the office of RTA for the issuance of the route permit, then the complainant could not be blamed for that. There is a circular of IRDA dated 20.09.2011 that the claim should not be repudiated on the technical ground in a mechanical fashion. In case, there is a difference of only one day in issuance of the route permit before the happening of accident, that in view of the formalities to be performed to get the permit, it must have been then applied before the accident, therefore, the claim cannot be repudiated on the technical ground and accordingly, we agree with the findings so recorded by the District Forum and same are hereby affirmed on that point."
10. Ld. Counsel for the Revision Petitioner vehemently argued that both the fora below have failed to appreciate that on the date of the accident i.e. 10.04.12 the insured vehicle did not have the relevant route permit which is dated 12.04.12; that the Fora below did not appreciate that the Complainant failed to produce an FIR corroborating the date of accident; the report of the Surveyor cannot be ignored without any justification and that the vehicle was used for commercial purpose and therefore, the repudiation is justified.
11. Ld. Counsel for the Complainant submitted that the Complainant had applied much earlier as it is a new vehicle and the insurance was taken from 21.03.12 to 20.03.13. On a pointed query from the Bench as to whether there is any documentary evidence that the permit was applied for before the date of accident i.e. 10.04.12, the Counsel replied in the negative. He further pleaded that the vehicle was not used for commercial purpose. It can be seen from the record that there is a pleading in the Complaint that the vehicle was purchased by availing a loan and for earning livelihood, by means of self-employment. There is no evidence brought on record by the Insurance Company to substantiate their contention that the vehicle was purchased for commercial purpose.
12. The brief point which falls for consideration in this case is whether a vehicle which does not have the relevant route permit as on the date of the accident can be indemnified by the Insurance Policy. A perusal of the Insurance Policy specifies that the said vehicle would be used only under a permit within the meaning of Motor Vehicles Act.
13. It is relevant to reproduce Clause 5 of the Circular No. HO:MTD:2013:CIR:15: IBW. ADMN. 73 dated 30.04.2013 of the Insurance Company which squarely applies to the facts of the instant case where the vehicle is a brand new vehicle and an accident resulted in total loss settlement:-
"Where brand new vehicle (not put to commercial use so far) is stolen or meets with an accident resulting into total loss settlement, the claim can be considered for settlement on standard basis without insisting for production of permit."
14. The contention of the Insurance Company that Clause 5 does not apply on the ground that it should not have been put to commercial purpose is unsustainable in the light of the fact that there is a specific pleading made in the complaint that the Complainant was constructing a house at village Mehma Sirja, Tehsil & District Bathinda and he required a crusher as building material and so in the morning of 10.04.12 he directed his driver to go to Pathankot and brought the crusher. Admittedly, the driver purchased a 400 ft. crusher through Baba Transport Company, Pathankot and while he was on his way back on 11.04.12 at about 3.00 a.m. an accident occurred when he tried to save some animals which were crossing the road. Therefore, in the light of this specific pleading it can be safely construed that the vehicle was not being put to commercial use till the date of accident and also as on the date of the accident. Additionally, we are of the considered view that the accident in which the vehicle got damaged cannot be attributed to its being plied without a route permit and therefore, no prejudice would be caused to the Insurance Company on account of the Complainant not possessing a route permit. For all the afore-noted reasons we are of the considered view that there is no illegality or infirmity in the concurrent finding of deficiency of service by both the Fora below.
15. However, it was observed from the record that the District Forum has awarded an amount of ₹11,31,826/- along with interest @ 9% p.a. from the date of filing of the Complaint till the date of realization and costs of ₹50,000/- which the State Commission has reduced to ₹10,93,421/-. Having regard to the Circular dated 03.04.2013 (Supra) and also the judgements of the Hon'ble Apex Court in Amlendu Sahoo Vs. Oriental Insurance Co. Ltd. (2010) 4 SCC 536 and National Insurance Company Ltd. Vs. Nitin Khandelwal (2008) 11 SCC 259, we are of the considered view that the claim can be settled on a non-standard basis and the Insurance Company shall pay 75% of the total claim amount to the Complainant. The rest of the order of the State Commission is confirmed. Revision Petition stands disposed of accordingly.
16. Vide an Order dated 21.08.2015 this Commission directed the Insurance Company to deposit 50% of the compensation awarded and stayed the operation of the impugned order. Needless to add that this amount shall stand adjusted from the decretal amount.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER