State Consumer Disputes Redressal Commission
B.M. The Oriental Insurance Co.Ltd. . vs Rajkumar Sood & Anr. on 31 July, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/592
Instituted on : 02.09.2014
Branch Manager,
The Oriental Insurance Company Limited,
Through : Divisional Manager,
Divisional Office No.1, Medical College Road,
Kutchery Chowk,
Raipur (C.G.) ... Appellant
Vs.
1. Rajkumar Sood, Aged about 61 years,
S/o Late Harikishan Sood,
Proprietor of Sadguru Travels, Telibandha,
House No.33, Anand Nagar,
Raipur (C.G.).
2. Manager, Hotel Babylon International Pvt. Ltd.,
VIP Road, (Airport Road),
Raipur (C.G.) ... Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Manoj Prasad, for the appellant.
Shri Ashutosh Dubey, for respondent No.1.
None for respondent No.2.
ORDER
DATED : 31 /07/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 18.07.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.513/2012. By the impugned order, the learned District Forum, has partly allowed the // 2 // complaint filed by the respondent No.1 (complainant) and directed the appellant (O.P. No.1) and respondent No.2 (O.P.No.2) to jointly and severally pay within a period of one month from the date of order a sum of Rs.3,30,511/- along with interest @ 12% from the date of filing of the complaint i.e. 13.12.2012 till realisation. The appellant (O.P. No.1) and respondent No.2 (O.P.No.2) have further been directed to pay a sum of Rs.2,000/- towards advocate fees and cost of litigation to the respondent No.1 (complainant).
2. Briefly stated the facts of the case are that the respondent No.1 (complainant) had purchased a new Tata Indigo Car having chassis No. MAT607146BWAO1368 and Engine No.475IDT14PZYPA6350 from National Garage, Raipur on 31.01.2011 at the price of Rs.4,63,874/- for using the same for Sadguru Travels. The respondent No.1 (complainant) is taking action for registration of the vehicle in R.T.O. Raipur. The vehicle in question was immediately got insured and Policy No.191100/31/2011/12670 dated 02.02.2011 for the period 02.02.2011 to 01.02.2012 was issued. The driver of the respondent No.1 (complainant) Raj Kumar Yadav, who is having driving licence no. C.G.04-19990005609 which was issued on 22.08.1999 and is valid till 28.09.2020. The vehicle in question was parked at about 7.00 P.M. on 25.03.2011 in the parking place of Hotel Babylon, respondent No.2 (O.P.No.2) by driver Rajkumar Yadav. The respondent No.2 (O.P.No.2) has provided facility to park the vehicle of Sadguru Travel in its // 3 // parking place for the business purpose and in this regard an agreement has been executed between the respondent No.1 (complainant) and respondent No.2 (O.P.No.2). After parking the vehicle of the respondent No.1 (complainant), the driver Rajkumar had gone to his home and on next day in morning when he came back to Hotel Babylon then he found that the vehicle not parked there. The vehicle was stolen by some unknown person. Rajkumar gave intimation regarding theft of the vehicle to the office of the respondent No.2 (O.P.No.2) as well as to the office of the respondent No.1 (complainant). Thereafter the respondent No.1 (complainant) and employees of the respondent No.2 (O.P.No.2) have searched the vehicle and when the vehicle was not traced then on 26.03.2011 written intimation was given in Police Station Telibandha, Raipur, where First Information No.125/2011 for offence under Section 379, IPC was registered. The respondent No.1 (complainant) has given intimation regarding the theft of the vehicle to the appellant (O.P.No.1). The appellant (O.P.No.1) appointed Surveyor and the respondent No.1 (complainant) deposited all documents i.e. Certificate of Registration of the vehicle, cash invoice, insurance policy and First Information Report. Police Station, Telibandha, Raipur issued Khatma Prativedan No.50/2011 dated 31.07.2011, which was accepted by City Police Superintendent and copy of the same was provided to the appellant (O.P.No.1). The appellant (O.P.No.1) has not paid the insurance amount to the respondent No.1 (complainant) till date. Non-
// 4 // payment of the claim amount by the appellant (O.P.No.1) to the respondent No.1 (complainant), is an indication of committing deficiency in service by the appellant (O.P.No.1). When the appellant (O.P.No.1) did not pay the claim amount. The respondent No.1 (complainant) sent legal notice through Advocate to the appellant (O.P.No.1) on 01.08.2012, but the appellant (O.P.No.1) did not pay the claim amount to the respondent No.1 (complainant). Therefore, the respondent No.1 (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The appellant (O.P. No.1) filed written statement and averred that the complaint is neither maintainable in law nor on facts and no cause of action had arisen to the respondent No.1 (complainant) to prefer this complaint. The District Forum is having no jurisdiction, thus the present complaint is liable to be dismissed with cost. The respondent No.1 has engaged the vehicle for gaining sums and thus it was commercial purpose of the respondent No.1 (complainant). Insured Declared Value (IDV) was fixed at Rs.4,40,681/-, but not at Rs.4,63,874/- but the respondent No.1 (complainant) has suppressed the same with the District Forum. The District Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, // 5 // 1986 and as such the compliant is liable to be dismissed summarily on this score alone. The respondent No.1 (complainant) has failed to disclose all the correct facts and intentionally not come with clean hand and as such the respondent No.1 (complainant) cannot be allowed to gain from the same and hence now the District Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint. The dispute raised by the respondent No.1 (complainant) in the present complaint is manifestly outside the purview of the Consumer Protection Act, 1986. The proceeding initiated by the respondent No.1 (complainant) under the Act is without jurisdiction. The definitions of the complainant, complaint, consumer dispute and service, as defined in Section 2(1) of the Consumer Protection Act, do not cover the claims arising under the present dispute and that from the aforesaid definitions, the respondent No.1 (complainant) is not ''consumer" and the controversy involved in the complaint is not a consumer dispute. Hence the present complaint is baseless and flagrant abuse of process of law to harass the appellant (O.P.No.1). The respondent No.1 (complainant) has made the complaint relying on the terms of the policy and it is to be noted that as per the terms of the policy, any dispute should be adjudicated by the Arbitrators. The alleged theft has occurred due to the negligence of the respondent No.1 (complainant) and respondent No.2 (O.P.No.2). The alleged vehicle was provided parking facility by respondent No.2 (O.P. // 6 // No.2) and the alleged theft has occurred from there, and also vehicle was not having Registration Certificate and it was being used without fitness and permit at the material time. Therefore, respondent No.2 (O.P.No.2) is solely liable for the payment of compensation to the respondent No.1 (complainant), if any. Therefore, the present complaint cannot be entertained by the District Forum and the present complaint is liable to be dismissed with cost against the appellant (O.P.No.1). The vehicle was insured by the respondent No.1 (complainant) for passenger carrying vehicle and was engaged for gaining sums and therefore, it comes under the category of a transport vehicle and hence it was required to obtained fitness and permit certificate under the mandatory provision of Section 56 and 66 of the Act. It was also required to get registration certificate as per provision of Section 39 of the Act or to get temporary registration certificate from the concerned R.T.O. But the same was not done by the respondent No.1 (complainant) and he violated the mandatory provisions of the Motor Vehicles Act, 1988. Moreover, the driver of the vehicle was not holding valid and effective driving license. He was not holding driving license according to provision of Section 14 of the Act. He was not authorized to drive a transport vehicle. The purpose of the respondent No.1 (complainant) was of commercial use of the vehicle and thus the driver was required to hold a driving license to drive a transport vehicle. But he was not holding the same and this act is also amount to // 7 // violation of terms and conditions of the insurance policy. The appellant (O.P.No.1) has sent several letters dated 25.07.2011, 05.08.2011, 11.08.2011 and 24.08.2011 demanding all relevant documents to the respondent No.1 (complainant) but the respondent No.1 (complainant) has not provided the relevant documents and has failed to help to appellant (O.P.No.1). The appellant (O.P.No.1) was insurer of the said vehicle, but it was done subject to compliance of terms and conditions of the policy. Insured Declared Value was fixed at Rs.4,40,681/- and not Rs.4,63,874/- and the respondent No.1 (complainant) has suppressed the same with the District Forum. The appellant (O.P.No.1) has not committed any deficiency in service on their part. The respondent No.1 (complainant) has failed to prove deficiency in service on the part of appellant (O.P.No.1) and thus the complaint filed by the respondent No.1 (complainant), is liable to be dismissed with cost.
4. None appeared for the respondent No.2 (O.P.No.2) before the District Forum in spite of service of notice by registered post and the respondent No.2 (O.P.No.2) did not file written statement, affidavit and documents. Therefore, respondent No.2 (O.P.No.2) was proceeded ex-parte by the District Forum.
5. After having considered the material placed before it by both the parties, learned District Forum, allowed the complaint in part and directed the appellant (O.P. No.1) and respondent No.2 (O.P.No.2) to // 8 // jointly and severally pay compensation to the respondent No.1 (complainant), as mentioned in para 1 of this judgment.
6. The respondent No.1 (complainant) filed documents. Invoice No.2011010153 dated 31.01.2011 issued by National Garage, Raipur in favour of the respondent No.1 (complainant) is at page No.1, Duplicate Sales Invoice is at page No.2 Motor Insurance Certificate Cum Policy Schedule PCCV-4 wheelers - carrying passengers-capacity NOT > 6 Package Policy - Zone - B is at page No.3 & 4, Receipt issued by the Oriental Insurance Company Limited is at page No.5, intimation regarding the theft of the vehicle given by the complainant to Incharge, Police Station Telibandha, Raipur (C.G.) on 26.03.2011 is at page No.6, First Information Report is at page No.7 & 8, Motor Claim Form is at pate No.9 & 10, Agreement dated 01.04.2009 is at page No.11, driving licence of Raj Kumar Yadav is at page No.12, Police Investigation Report is at page No.13, Final Report under Section 173 Section Cr. P.C. is at page No.14 & 15, Police Investigation Report is at page No.16, Vehicle Enquiry Report is at page No.17, Registered notice sent by Ashutosh Dubey, Advocate on behalf of the respondent No.1 (complainant) to The Oriental Insurance Company Limited, Divisional Office No.1, Raipur and The Oriental Insurance Company Limited, Registered Office, New Delhi is at page No.18 & 19, postal receipt is at page No.20, acknowledgement is at page No.21, reply sent by Shri // 9 // Pradeep Kumar Paul, Advocate to the respondent No.1 (complainant) in response to notice dated 01.08.2012 is at page No.22 and 23.
7. The appellant (O.P.No.1) has also filed documents. Annexure OP-1 is Motor Insurance Certificate Cum Policy Schedule PCCV-4 wheelers - carrying passengers-capacity NOT > 6 Package Policy - Zone - B, Annexure OP-2 is Motor Claim Form, Annexure OP-3 is Agreement dated 01.04.2009, Annexure OP-4 is driving licence of Raj Kumar Yadav, Annexure OP-5 is intimation regarding the theft of the vehicle given by the complainant to Incharge, Police Station Telibandha, Raipur (C.G.) on 26.03.2011, Annexure OP-6 is letter dated 25.07.2011 sent by the Sr. Divisional Manager, The Oriental Insurance Co. Ltd., Divisional Office-I, Raipur to the respondent No.1 (complainant), letters dated 05.08.2011, 18.08.2011 and 24.08.2011 sent by the Senior Divisional Manager, The Oriental Insurance Co. Ltd., Divisional Office No.1, Raipur to the respondent No.1 (complainant), Annexure OP-7 is terms and conditions of Commercial Vehicle "B" Policy (Misc.).
8. Shri Manoj Prasad, learned counsel appearing for the appellant (O.P.No.1) has argued that the finding recorded by the learned District Forum, is perverse and is not sustainable in eye of law. He further argued that learned District Forum has failed to appreciate the facts brought on record. The respondent No.1 (complainant) obtained // 10 // insurance policy for private use of vehicle in question, but the vehicle in question was being used by him as taxi and no endorsement was obtained by him in this regard. The appellant (O.P. No.1) issued the policy for private use of the vehicle in question, but the vehicle in question was being used by the respondent No.1 (complainant) as taxi purpose. The vehicle in question was being run without obtaining registration and permit, which come within fundamental breach of terms and conditions of the insurance policy as well as provisions of the Motor Vehicles Act, 1988. The impugned order is liable to be set aside. He placed reliance on judgment of Hon'ble Supreme Court in the case of Narinder Singh vs. New India Assurance Company Ltd. & Ors. IV (2014) CPJ 11 (SC).
9. Shri Ashutosh Dubey, learned counsel appearing for the respondent No.1 (complainant) has argued that the finding recorded by the learned District Forum, is just and proper and does not call for any interference by this Commission. He further argued that on 25.03.2011, the vehicle in question was parked in Hotel Babylon International Pvt. Ltd. and on next morning, the vehicle in question was not found at the place where the vehicle in question, was parked and some unknown person had stolen the vehicle in question. The report was lodged immediately in the concerned Police Station and intimation regarding the theft of the vehicle was also given to the appellant (O.P.No.1). The vehicle in question was parked in the Hotel // 11 // Babylon International Pvt. Ltd, respondent No.2 (O.P.No.2), therefore, permit, was not required. The respondent No.1 (complainant) had applied before the concerned R.T.O. for obtaining Certificate of Registration. During the pendency of the said application, the incident of theft of the vehicle in question took place. The vehicle in question was insured with the appellant (O.P.No.1), therefore, the respondent No.1 (complainant) is entitled to get compensation from the appellant (O.P.No.1) and the learned District Forum, has rightly awarded compensation to the respondent No.1 (complainant), hence the appeal filed by the appellant (O.P.No.1), is liable to be dismissed.
10. Before us, in spite of service of notice by registered A/D post, none appeared for the respondent No.2 (O.P.No.2) on 17.07.2015, when the case was fixed for final hearing.
11. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
12. The respondent No.1 (complainant) pleaded in para 2 of his complaint that he purchased the vehicle on 31.03.2011 from National Garage (Manglam Motors, Tatibandh, Raipur). In para 3 it is pleaded that the vehicle in question was insured with the appellant (O.P.No.1) for the period from 02.02.2011 to 01.02.2012 and the premium amount Rs.17,283/- was paid to the appellant (O.P. No.1). In para 4 it is pleaded that on 25.03.2011 at about 7.00 P.M., the vehicle was parked // 12 // by the driver Rajkumar Yadav in Hotel Babylon International, respondent No.2 (O.P.No.2). An agreement has been executed between the respondent No.1 (complainant) and respondent No.2 (O.P.No.2) and on the basis of said agreement, the vehicle in question, was parked in Hotel Babylon International, from where the vehicle in question was stolen.
13. It appears that the respondent No.1 (complainant) purchased the vehicle on 31.01.2011 and incident of theft of the vehicle in question, took place on 25.03.2011 i.e. after near about one month and twenty four days from its purchase. Both the parties have filed copy of insurance policy.
14. From bare perusal of insurance policy, it appears that PCCV-4 Wheelers - carrying passengers policy, was obtained by the respondent No.1 (complainant). It appears that the vehicle in question was being used as a passenger carrying vehicle (taxi), but the respondent No.1 (complainant) did not obtain any permit and the vehicle in question was not registered with concerned RT.O. and the vehicle in question was being used without Certificate of Registration.
15. Provisions of Section 39 of The Motor Vehicles Act, 1988 runs thus :-
"39. Necessity for registration. - No person shall drive any motor vehicle and no owner or a motor vehicle shall cause or permit // 13 // 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 carries a registration mark displayed in the prescribed manner :
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."
16. Provisions of Section 43 (1) & (2) of The Motor Vehicles Act, 1988 run thus :-
"43. Temporary registration.- (1) Notwithstanding anything contained in Section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.
(2) A registration made under this Section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted [with a body, or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow."
17. Provisions of Section 56 of The Motor Vehicles Act, 1988 runs thus :-
// 14 // "56. Certificate of fitness of transport vehicles.- (1) Subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:
Provided that where the prescribed authority or the authorised testing station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The "authorised testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages. (3) Subject to the provisions of sub-section (4), a certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act. (4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained. (5) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India."
18. In Narinder Singh vs. New India Assurance Company Limited & Others (Supra), Hon'ble Supreme Court has observed thus :-
"14. Indisputably, a temporary registration was granted in respect of vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without // 15 // registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of the policy contract."
15. In the aforesaid premises, we do not find any infirmity in the order passed by the State Commission and the National Commission."
19. In Bhagwat vs. The United India Insurance Company Limited, IV (2014) CPJ 698 (NC), Hon'ble National Commission has observed that petitioner never applied before Regional Transport Officer for getting permanent registration of the vehicle and for failure to meet statutory requirement regarding registration of the vehicle, the complainant was not entitled to get claim even on non-standard basis.
20. In Din Dayal vs. National Insurance Company Ltd. & Anr. I (2013) CPJ 10 (NC), Hon'ble National Commission, has observed thus :-
"5. These arguments do not sound very convinced. Section 39 of the Motor Vehicles Act, 1988 lays down that the registration of the vehicle is mandatory requirement of law to drive the vehicle on any place or any other place. In support of his case, the State Commission has placed reliance upon the order of this Commission in the case of Kaushalendra Kumar Mishra v. Oriental Insurance Company // 16 // Limited, I (2012) CPJ 559. Consequently, there was violation of Section 39 of the Motor Vehicles Act.
[See also Iffco Tokio General Insurance Co. Ltd. & Anr. v. Pratap Bhagwan Patil, II (2015) CPJ 739 (NC)].
21. In Niranjan Kumar Yadav vs. National Insurance Co. Ltd., II (2011) CPJ 64 (NC), Hon'ble National Commission has observed thus :-
"4................ On the contention of the present revision petitioner that the registration was already applied for and was pending with the registering authority, the State Commission has made the following categorical observations :-
"If permanent registration cannot be done for the delay of the office of the registering authority then it must have temporary registration. Legality is the essence of all agreement. If it is violative of law, any contract or agreement is bound to fail, may there be otherwise expressed provision in the terms and condition of the agreement or not. The appellant failed to show any temporary registration number. He also failed to show any receipt of the application for registration to prove that he had applied for registration before the mishap."
5. In view of this observation of the State Commission, the claim of the Revision Petitioner/Complainant that the registration was pending before the Registering Authority, looses all credibility."
22. In Saleena Rani vs. United India Insurance Co. Ltd. & Another, I (2015) CPJ 220 (NC), Hon'ble National Commission has observed that temporary registration was valid only for period of one month. The petitioner did not get vehicle registered with concerned // 17 // authority in accordance with provisions of Motor Vehicles Act, 1988. Petitioner itself was at fault. After expiry of temporary registration she did not apply before concerned authority in accordance with provisions of Motor Vehicles Act, 1988.
23. In Oriental Insurance Co. Ltd. Through its duly constituted attorney vs. Vidya Bai, 2015 (1) CLT 534, Hon'ble National Commission has observed in para 9 that in case in hand the complainant had not placed any evidence on record that after getting the vehicle insured she ever applied for extension of temporary registration or applied for temporary registration under Section 39 of the Motor Vehicles Act, 1988. Merely by mentioning that after purchase of the vehicle, the complainant's husband, on account of serious illness was admitted in various hospitals and she remain busy to help her husband, it cannot be a sufficient ground for not getting the vehicle registered for 110 days. In such situation, I did not find any deficiency on the part of the petitioner in repudiation of the claim.
24. In National Insurance Co. Ltd. vs. Challa Bharathamma and others, 2004 ACJ 2094; 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 // 18 // 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."
25. In United India Insurance Co. Ltd. vs. Dharam Raj, 2006 NCJ 218 (NC); 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."
// 19 //
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."
26. In Dhaneshwar Sahu vs. The New India Assurance Co. Ltd., 2009 (3) CPR 76, 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.
// 20 // 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.
// 21 //
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 // 22 // 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.
27. In the instant case, the respondent No.1 (complainant) did not file Certificate of Registration and Permit. It appears that at the time of incident, the vehicle in question was not registered with the concerned R.T.O. According to the respondent No.1 (complainant), the vehicle in question was parked in Hotel Babylon International, therefore, permit and registration, was not required. The contention of the respondent No.1 (complainant) is not acceptable.
// 23 //
28. In Oriental Insurance Co. Ltd. V. Abdul Rashid and others, 2015 ACJ 226, Hon'ble High Court of Chhattisgarh at Bilaspur has observed thus :-
20. In order to answer this question, it would be proper to notice the meaning of words 'public place'. The words 'public place' have been defined in Section 2 (34) of the Motor Vehicles Act which reads as follows :
"(34) 'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
In United India Insurance Co. Ltd. v Lakshmi, 1997 ACJ 489 (Kerala), after quoting the observations of Barry, J. in R v. Kane, 1965 1 All ER 705, it was held as follows :-
"7. .... In substance, a place is a 'public place' though it is private property when it is shown that the public are in the habit of resorting to it and one is prevented therefrom so resorting to it.
In Stround's Judicial Dictionary, 5th Edn., p. 2094 'public place' has been defined as follows :
"A 'public place' is a place to which the public can and do have access; it does not matter whether they come at the invitation of the occupier or merely with his permission, or whether some payment of the performance of some formality is required before access can be had..."
In black's Law Dictionary, 6th Edn., p. 1230 'public place' has been defined as follows :
" 'Public place' : A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather // 24 // than private, a place visited by many persons and usually accessible to the neighbouring public (e.g., a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public and where the public gather together or pass to and fro."
21. The first thing with regard to the definition is that it is an inclusive one. Secondly, it in term makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is a 'right of access' and 'access as of right'. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user. Stage carriage is defined in sub-clause (29) of section 2 and it means a motor vehicle which is used to carry or adapted to carry more than six persons excluding the driver and which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. In short, it means a public passenger carrier. In other words, by virtue of the last part of the definition, the expression would include any place including private, where public passenger carrier picks up or sets down passengers.
27. The contention taken here was that since the vehicle was entrusted with a repairer or a workshop, the owner is not liable and, therefore, the appellant insurance company is also not liable is covered by the decision of the Apex Court rendered in case of Guru Govekar v. Filomena F. Lobo, 1988 ACJ 585 (SC). The Supreme Court held as follows :-
// 25 // "9. ... When the owner of a motor vehicle entrusts his vehicle to a repairer to carry out repairs he is in fact allowing the repairer to use his vehicle in that connection. It is also implicit in the said transaction that unless there is any contract to the contrary the owner of the vehicle also causes or allows any servant of the repairer who is engaged in the work of repairs to use the motor vehicle for the purpose of or in connection with the work of repairs and when such work of repair is being carried out in a public place if on account of the negligence of either the repairer or his employee, who is engaged in connection with the work of repair, a third party dies or suffers any injury either to his person or property, the insurer becomes liable to pay the compensation under the provisions of the Act..."
The court further held as under that :
"(13) ... This meant that once the insurer had issued a certificate of insurance in accordance with sub-section (4) of section 95 of the Act, the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy.
He was liable to satisfy the decree when he had been served with a notice under sub-section (2) of section 96 of the Act about the proceedings in which the judgment was delivered. (14) Thus on the facts of the case before us we are of the view that the insurer is liable to pay the compensation found to be due to the claimant as a consequence of the injuries suffered by her in a public place on account of the car colliding with her on account of the negligence of the mechanic who had been engaged by the repairer who had undertaken to repair the vehicle by virtue of the provisions contained in section 94 of the Act which provides that no person shall use except as a // 26 // passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance, complying with the requirements of Chapter VIII of the Act. Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing the necessary for taking out insurance policy under the Act."
28. In the case of Oriental Insurance Co. Ltd. v. Uttara Devi, 2013 ACJ 1357(Chhattisgarh), the Divisional Bench of this court has held that workshop is a 'public place' as defined in section 2(34) of the Act, 1988. The relevant portion of the said judgment reads thus :
"(9) In the present case also the accident had occurred in a motor workshop where there is no restriction for the entry of any person or vehicle. In the evidence also it has come that the driver had entered in the area, i.e., workshop where the deceased was working under the instruction of his employer. Therefore, in the light of the above, we are of the opinion that the 'motor workshop' comes within the definition of 'public place' as defined in section 2(34) of the Act, 1988 and as such, the first argument advanced by learned counsel for the appellant that the accident had not occurred in a public place has no force."
29. In the case in hand, the respondent No.1 (complainant) had not placed any evidence to establish that after getting the vehicle insured, he ever applied for getting registration under Section 39 of the Motor // 27 // Vehicles Act, 1988. It is also established that the vehicle in question was being used by the respondent No.1 (complainant) as Taxi, therefore, permit is required. It is incumbent duty of the owner of the vehicle in question that he must obtain certificate of registration and permit. It is violation of law and terms of the agreement and fundamental breach of terms and conditions of the insurance policy. On the date of the incident, the respondent No.1 (complainant) was using the vehicle in question without any registration certificate. It is not only an offence under Section 192 of the Motor Vehicles Act, 1988, but it is also a breach of fundamental terms and conditions of the insurance policy. The appellant (O.P.No.1) has rightly repudiated the claim of the respondent No.1 (complainant).
30. Therefore, the impugned order dated 18.07.2014, passed by the District Forum is erroneous and the same calls for interference by this Commission. Hence, the appeal filed by the appellant (O.P.No.1), is allowed and impugned order dated 18.07.2014, passed by the District Forum, is set aside. Consequently, the consumer complaint also stands dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (NarendraGupta)
President Member Member
/07/2015 /07/2015 /07/2015