State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd & Anr. vs Smt. Jasbeer Kour on 25 March, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/351
Instituted on : 23.05.2014
The Oriental Insurance Company Limited,
Through : Divisional Manager, Divisional Office No.2,
Chawla Complex, Sai Nagar, Devendra Nagar Road,
Post, Tehsil & District Raipur (C.G.) ... Appellant
Vs.
Smt. Jasbeer Kaur, W/o Shri Ranjeet Singh,
Address : Kalsi Motors Repairing Works,
Plot No.11/12, T.P. Nagar, Raipur
Post, Tehsil & District Raipur (C.G.) ... Respondent
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri P.K. Paul, for the appellant.
Shri R.K. Bhawnani, for the respondent.
ORDER
DATED : 2503/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 09.05.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.298/2012. By the impugned order, the learned District Forum, has partly allowed the complaint and directed the appellant (O.P.) to pay a sum of Rs.1,70,543/- along with interest @ 9% p.a. from the date of filing of the complaint i.e. 28.08.2012 till date of payment. The District Forum has // 2 // further directed the appellant (O.P.) to pay a sum of Rs.2,000/- as cost of litigation to the respondent (complainant).
2. Briefly stated the facts of the case are that : the respondent (complainant) is owner of vehicle bearing registration No.C.G.04-G- 9652. The said vehicle was comprehensively insured with the appellant (O.P.) for the period from 03.02.2008 to 02.02.2009. The Insurance Policy No. is 31/6068/2008. On 01.10.2008, near Abhanpur the said vehicle met with an accident and damaged. The respondent (complainant) gave intimation regarding the incident to the appellant (O.P.). The respondent (complainant) submitted the claim form along all relevant documents before the appellant (O.P.). The appellant (O.P.) has not given any information to the respondent (complainant) regarding the settlement of her claim. The respondent (complainant) contacted the office of the appellant (O.P.) many times but the appellant (O.P.) has not settled her claim and was giving assurance to her that her claim should be settled. On 24.02.2012 the respondent (complainant) demanded documents from the appellant (O.P.) under Right to Information Act which were provided by the appellant (O.P.), then only the respondent (complainant) came to know that her claim was repudiated by the appellant (O.P.) on the ground that at the time of accident the respondent (complainant) has not having permit. After receiving the above documents, the respondent (complainant) was surprised because she was not informed regarding repudiation of her claim and she has // 3 // also not received any letter of repudiation. The vehicle in question met with an accident and the respondent (complainant) suffered loss of Rs.2,27,390/-, but the appellant (O.P.) repudiated the claim of the respondent (complainant) on improper ground. The act of the appellant (O.P.) comes under category of deficiency in service and unfair trade practice. Therefore, the respondent (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.) filed its written statement and averred that the respondent (complainant) is not owner of vehicle bearing registration No.C.G.04-G-9662 but on the date of policy Smt. Joginder Kaur was owner of the vehicle in question. The respondent (complainant) gave intimation regarding the incident to the appellant (O.P.) and also submitted claim along with all relevant documents but on that date the policy was valid, but permit was not valid. On the date of repudiation of claim i.e. 27.04.2009 the respondent (complainant) was having knowledge regarding no claim, therefore, the complaint is time barred. On the date of accident, there was no permit in respect of the vehicle in question therefore, the appellant (O.P.) closed the file as no claim, which is according to law.
4. After having considered the material placed before it by both the parties, learned District Forum, has partly allowed the complaint and // 4 // directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. The respondent (complainant) has filed documents. A-1 is Certificate of Registration of vehicle bearing registration No.C.G.04-G- 9652, A-2 is Certificate Cum Policy Schedule, A-3 is letter dated 24.02.2012 sent by the respondent (complainant) to the appellant (O.P.), A-4 is Motor Claim Form, A-5 is Estimate, A-6 is letter dated 27.04.2009 sent by the appellant (O.P.) to the respondent.
6. The appellant (O.P.) has also filed documents. The documents are letter dated 14.04.2009 sent by Mohd. Ebrahim, Investigator to the Divisional Manager, The Oriental Insurance Co. Ltd., letter dated 09.04.2009 sent by R.T.O. Raipur to Mohd. Ebrahim, and Temporary Licence.
7. Shri P.K. Paul, learned counsel appearing for the appellant (O.P.) submitted that the impugned order passed by the learned District Forum is erroneous. He further argued that the vehicle in question was registered as Goods Carrying Vehicle and for commercial purpose, therefore, the permit is required under Section 66 of the Motor Vehicles Act, 1988 to use the commercial vehicle in a public place. The respondent (complainant) was plying the vehicle in question in public place without valid permit which is fundamental breach of the policy. He further argued that the driver of the vehicle in question was not // 5 // possessing valid and effective driving licence at the time of the accident. Temporary driving licence No.T.P.3645/08 dated 08.09.2008 was not issued from R.T.O. Raipur (C.G.) and the said driving licence is a fake document. The appellant (O.P.) is not liable to pay any compensation to the respondent (complainant). He placed reliance on judgment of National Insurance Co. Ltd. vs. Challa Bharathamma and others, 2004 ACJ 2094; Oriental Insurance Co. Ltd. vs. Sony Cheriyan 1986-99 CONSUMER 5083 (NS); judgments of Hon'ble National Commission in United India Insurance Co. Ltd. vs. Dharam Raj, 2006 NCJ 218 (NC); Pal Singh vs. The Oriental Insurance Co. Ltd. 1986- 2013 Consumer 17532 (NS); New India Assurance Co. Ltd. vs. Rajesh Yadav II (2013) CPJ 398 (NC); Manoj Banerjee vs. Oriental Insurance Co. Ltd.& anr. I (2013) CPJ 542(NC); judgment of this Commission in Dhaneshwar Sahu vs. The New India Assurance Co. Ltd., 2009 (3) CPR 76.
8. Shri R.K. Bhawnani, learned counsel appearing for the respondent (complainant) has supported the impugned order passed by the District Forum. He placed reliance on judgment of Hon'ble National Commission in Reliance General Insurance Co. Ltd. Vs. Dharwin K. David II (2011) CPJ 266 (NC); National Insurance Co. Ltd. Vs. Sanjay Shivhare, IV (2007) CPJ 366 (NC); New India Assurance Co. Ltd. Vs. Surinder Singh Khurana, 1986-2006 CONSUMER 10530 (NS); G. Kothainachiar vs. United India Insurance Co. Ltd. & Ors. IV // 6 // (2007) CPJ 347 (NC); Mohd. Unis vs. United India Insurance Company Ltd. through its Branch Manager & Anr. 2014 (1) CPR 491 (NC), judgment of this Commission in Girijanand Pathak vs. ICICI Lombard General Insurance Co. Ltd. Through Branch Manger (Appeal No.25/2008) decided on 21.01.2009; The New India Assurance Co. Ltd., Through Divisional Manager vs. Prandhar Agrawal (Appeal No.214/07) decided on 30.10.2008; Bajaj Allianz General Insurance Company Ltd. Vs. Mrs. Sukhvinder Kaur (Appeal No.FA/13/346) decided on 19.08.2014; The Oriental Insurance Company Limited vs. Shri Dharnidhar Sharma (Appeal No.FA/13/297) decided on 23.12.2014; Om Prakash Baghel vs. Oriental Insurance Company Limited, I (2007) CPJ 90;
9. We have heard learned counsel for both the parties and have perused the record of the District Forum.
10. We have also perused the impugned order of the District Forum. Learned District Forum in para 8 of the impugned order has observed that at the time of the accident, the respondent (complainant) was not having permit, but on the ground of not having permit, the claim should not be repudiated by the Insurance Company in toto but it is required to be settled on non-standard basis and the learned District Forum awarded compensation on non-standard basis in favour of the respondent (complainant).
// 7 //
11. Now, we shall examine whether the impugned order passed by the learned District Forum, is sustainable in eye of law ?
12. In National Insurance Co. Ltd. vs. Challa Bharathamma and others (Supra), 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 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."
13. In Pal Singh vs. The Oriental Insurance Co. Ltd. (Supra), Hon'ble National Commission observed that "Vehicle insurance - repudiation of claim - on the ground that at the time of accident the petitioner was not holding a valid route permit - violation of terms and conditions of the insurance policy - petitioner not entitled to any insurable benefits."
14. In Manoj Banerjee vs. Oriental Insurance Co. Ltd. & Anr. (Supra), Hon'ble National Commission has observed thus :-
"7. It is seen from the impugned order that the State Commission has non-suited the claim of the petitioner keeping in view the // 8 // admission on the part of the petitioner that the truck had entered into the area of Meghalaya without any valid route permit. It is observed that the report received from the Regional Transport Authority, Yamuna Nagar also indicated that the complainant had obtained the route permit only for Haryana, Punjab, U.P. and Uttrakhand. Considering these admitted facts, the State Commission has accepted the appeal of the OP Insurance Co. applying the ratio laid down by the National Commission in the judgment dated 9.11.2010 rendered in R.P. No.2976 of 2006 United India Insurance Co. Ltd. v. Trilok Kaushik, IV (2010) CPJ 321 (SC). We agree with the view taken by the State Commission in its impugned order which is in line with the view taken by the National Commission. It is well established in the light of various judgments of the Apex Court that the terms and conditions of the insurance policy have to be construed strictly and if there is any violation of the terms, the party cannot claim any relief. Mr. Abhishek Garg, Advocate, learned Counsel for the petitioner, has tried albeit unsuccessfully persuaded us to accept the claim of the petitioner on non-standard basis but in view of the settled position of law, we cannot accept this request. The facts and circumstances of the two cases relied upon by the learned Counsel for the petitioner in the case of G. Kothainachiar v. Branch Manager, United India Insurance Co. Ltd. & Ors., IV (2007) CPJ 347 (NC) = R.P. No.1503 of 2004, decided on 29.10.2007 by the National Commission and Oriental Insurance Co. Ltd. v. Banto Devi & Ors., III (2006) ACC 573 = 2007 (1) T.A.C. 1000 (P & H) decided by the High Court of Punjab and Haryana were different and hence the same cannot be applied to the present case. Consequently, we do not find any merit in the present revision petition which would justify our interference with the impugned order. The revision petition, therefore, stands dismissed at the threshold with no order as to costs."
// 9 //
15. In United India Insurance Co. Ltd. vs. Dharam Raj (Supra), 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."
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 // 10 // 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."
16. In Dhaneshwar vs. The New India Assurance Co. Ltd. (Supra), 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.
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 // 11 // 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.
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 // 12 // 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 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 // 13 // 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.
17. The appellant (O.P.) had appointed Shri Mohd. Ebrahim as Investigator, who obtained information from the R.T.O. Raipur and he gave his report. In his report, it is mentioned that temporary permit bearing No.3645/08 dated 08.09.2008 was not issued by the R.T.O. Raipur. vehicle bearing registration No.C.C.G.04-G-9652. Letter dated 09.04.2009 was sent by R.T.O. Raipur to Shri Mohd. Ebrahim, Investigator in which it is mentioned that :-
"mijksDr lanfHkZr fo"k; esa vkidks lwfpr fd;k tkrk gSa fd vkids vkosnu ds lkFk layXu okgu dzekad&lhth04/th- 9652 Hkkjh eky okgu ;ku (Vªd) dh vLFkk;h vuqKki= dzekad-3645/08 tkjh fnukad 08a.09.2008 dk;kZy;hu vfHkys[kkuqlkj tkjh fd;k tkuk ugha ik;k tkrk gS A "
18. From the bare perusal of above documents, it appears that at the time of accident, the respondent (complainant) was not holding valid permit.
// 14 //
19. The facts of the judgments cited by the learned counsel for the respondent (complainant) are quite distinguishable from the facts of the instant case, therefore, the judgments cited by the respondent (complainant), does not help the respondent (complainant). 20 The vehicle in question is a heavy goods vehicle and it requires permit. At the time of the accident, the respondent (complainant) was not holding valid permit, therefore, it comes within fundamental breach of the insurance policy. The respondent (complainant) is not entitled to get any compensation from the appellant (O.P.). Therefore, the impugned order dated 09.05.2014, passed by the learned District Forum, is erroneous and is not sustainable in eye of law and the same is liable to be set aside.
21. Therefore, the appeal of the appellant (O.P.) is allowed and impugned order dated 09.05.2014, passed by the learned District Forum, is set aside. Consequently, the complaint also stands dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
/03/2015 /03/2015 /03/2015