State Consumer Disputes Redressal Commission
Ramesh Kumar vs United India Insurance Company Limited ... on 24 February, 2014
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.65/2013
Date of Presentation: 21.03.3013
Date of Decision: 24.02.2014
..................................................................................
Ramesh Kumar, son of Shri Bhawani Dutt,
Resident of Village & Post Office Upper Khera,
Tehsil Palampur, District Kangra, Tika Chammona.
.......... Appellant
Versus
(1) United India Insurance Company Limited,
Branch Office,
Through its Branch Manager, Dharamshala,
District Kangra, H.P.
(2) MCC Power Project Private Limited,
Head Office, Patiala House, Lower Kaithu,
Shimla-3.
(3) MCC Power Project Private Limited,
Site at Bandala, near Palampur Village &
P.O. Narachi, District Kangra, H.P.
(4) State Bank of India, Khera,
Tehsil Palampur, District Kangra, H.P.
.......... Respondents
.........................................................................................
Coram
Hon'ble Mr. Justice (Retd.) Surjit Singh, President
Hon'ble Mr. Chander Shekhar Sharma, Member.
Hon'ble Mrs. Prem Chauhan, Member
Whether approved for reporting?1
For the Appellant: Mr. S.K. Guleria, Advocate.
For Respondent No.1: Mr. Jagdish Thakur, Advocate.
For Respondents No.2 & 3: None.
For Respondent No.4: Mr. Arvind Sharma, Advocate.
..........................................................................................
1
Whether Reporters of the local papers may be allowed to see the order?
Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013)
________________________________________________________________________
O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Appellant is aggrieved by the order dated 19.01.2013, of learned District Consumer Disputes Redressal Forum, Kangra at Dharamshala, whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the respondents-United India Insurance Company Limited; MCC Power Project Private Limited, Head Office, Shimla and MCC Power Project Private Limited at site Bandala, seeking indemnification for the loss of insured tractor from United India Insurance Company Limited and rent amounting to `2,07,000/- from other two respondents, has been dismissed.
2. Appellant owned a tractor, which he insured with respondent No.1-United India Insurance Company Limited in the sum of `1,20,000/-, for the period from 30.10.2009 to 29.10.2010. Vehicle was insured as a transport vehicle. In the registration certificate also, the vehicle was categorized as a transport vehicle. Vehicle had been hired by other two respondents on monthly rent of `9,000/- for use at their construction site.
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Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________
3. On 03.02.2010, when the policy was in force, vehicle rolled down from the site, where it was deployed by respondents No.2 & 3 and fell into a gorge. Tractor broke into pieces and because of depth and narrowness of gorge, it could not be retrieved. Intimation of accident was given to respondent No.1. Spot surveyor deputed by the respondent-United India Insurance Company Limited visited the spot and reported that vehicle had broken into pieces and fell into a gorge and it was not easy to reach the site, where it had scattered. Thereafter, investigator was deputed, who confirmed that the vehicle had met with an accident. Loss Assessor had reported that it was a case of total loss.
4. Respondent No.1, however, repudiated the claim on the ground that at the time, when accident took place, vehicle was being used, without there being a route permit and also there was no valid fitness certificate in respect thereof.
5. Appellant then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against respondent No.1 as also respondents No.2 & 3 alleging that respondents No.2 & 3 had not paid the Page 3 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ hire charges rent for twenty-seven months and he claimed a sum of `2,07,000/- on account of arrears of hire charges from respondents No.2 & 3. So far as respondent No.1 is concerned, he claimed the insurance money, besides seeking compensation and litigation expenses.
6. Respondents No.2 & 3 did not put in appearance before the learned District Forum. So, they were proceeded against ex-parte.
7. Respondent No.1 contested the complaint and pleaded that claim of the appellant had rightly been repudiated because fitness certificate of the vehicle had expired on 24.06.2009 and there was no route permit for using the tractor as a transport vehicle.
8. Learned District Forum, vide impugned order, has concluded that there is no relationship of consumer and provider of service between the appellant and respondents No.2 & 3. As regards the claim against respondent No.1, learned District Forum has held that vehicle had not been certified to be fit beyond 24.06.2009 and also there being no route Page 4 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ permit for its use as a transport vehicle, respondent No.1 was justified in repudiating the claim.
9. Appellant has assailed the order of learned District Forum by means of present appeal.
10. We have heard learned counsel for the parties and gone through the record.
11. Appellant cannot be said to be a consumer qua respondents No.2 & 3 for the simple reason that relationship of a consumer and service provider does not exist between the appellant and said two respondents. Claim of the appellant against respondents No.2 & 3 is for recovery of hire charges of tractor. Remedy of the appellant, therefore, lies in filing civil suit for recovery of money.
12. So far as the claim against respondent No.1 is concerned, admittedly fitness certificate of the vehicle had expired on 24.06.2009 and also there was no route permit. Submission made on behalf of the appellant is that when fitness certificate had expired and it had not been got renewed by the time the insurance policy was obtained from respondent No.1, the latter ought not to have insured the vehicle. Also, it is submitted that when route permit was also not Page 5 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ there, respondent No.1 should have refused to insure the tractor as transport vehicle.
13. Reliance has been placed on behalf of the appellant upon three judicial precedents, one of them is judgment of Hon'ble Supreme Court in case National Insurance Company Limited versus Nitin Khandelwal 2008 (3) RCR (Civil) 193. The other two judgments are of Hon'ble National Consumer Disputes Redressal Commission. Particulars of these cases are; Revision Petition No.497 of 2012 titled Oriental Insurance Company Limited versus Swami Devi Dayal decided on 14th February, 2012 and Revision Petition No.3748 of 2006 titled HDFC Chubb General Insurance Company Limited versus Ila Gupta & Others 2007(1) CPC 432.
14. In the case before Hon'ble Supreme Court, i.e. National Insurance Company Limited versus Nitin Khandelwal supra, facts were that vehicle was insured for personal use, but it was being used as taxi. Vehicle had been stolen when the insurance policy was in force. Claim was repudiated on the ground that vehicle was being used as a transport vehicle. Hon'ble Supreme Court held that in the case of theft Page 6 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ of a insured vehicle, breach of condition regarding user of the vehicle contained in the insurance policy is not germane and while so holding the Hon'ble Supreme Court noticed its earlier judgment in National Insurance Company Limited versus Kusum Rai & Others 2006 (2) RCR (Civil) 313: (2006)4 SCC 250, in which repudiation of claim on account of breach of condition had been held to be justified. The said judgment was distinguished with the observation that that was a case of accident. So, the aforesaid precedent has no application to the facts of the present case as the claim is on account of loss of vehicle due to accident and not theft.
15. Hon'ble National Consumer Disputes Redressal Commission's judgment in Oriental Insurance Company Limited versus Swami Devi Dayal supra, in our considered view is also not applicable to the facts of the present case. In that case, vehicle was being used without registration at the time of accident. Repudiation of claim by the Insurance Company was held to be not justified for the reason that at the time when the insurance policy was purchased, vehicle was registered temporarily for a Page 7 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ period of one month and the accident took place after expiry of a period of one month and before the vehicle was registered. Hon'ble National Consumer Disputes Redressal Commission observed that Insurance Company ought to have cancelled the insurance policy, when on expiry of temporary registration, no proof of registration of vehicle was submitted.
16. In the second case also, i.e. HDFC Chubb General Insurance Company Limited versus Ila Gupta & Others, facts were similar to those of Oriental Insurance Company Limited versus Swami Devi Dayal's case (supra).
17. In the present case, fitness of vehicle had expired and it was not renewed. Of course, the fitness had expired even before the appellant sought insurance of the vehicle with respondent No.1, but according to the learned counsel for the appellant, this was a case of renewal of earlier insurance and, therefore, documents were not looked into.
18. In addition to expiry of fitness certificate, there was no valid permit for use of the vehicle as a transport vehicle, when the accident took place. It is Page 8 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ not expected of the insurer to accept the proposal of insurance in respect of a transport vehicle, only when route permit is shown. Permit to ply a vehicle can be had at any time and for very short duration, say even for few days, by paying a higher amount of permit fee.
19. Respondent No.1's counsel has placed reliance upon a latest judgment of Hon'ble National Consumer Disputes Redressal Commission, in which claim had been repudiated on the ground that a transport vehicle having been plied without permit, at the time when accident took place. Hon'ble National Commission held that the insured was guilty of breach of condition of policy regarding 'limitation as to use.' Particulars of the case are Revision Petition No.2476 of 2012 titled New India Assurance Company Limited versus Birbal Singh Jhakhar decided on 6th February, 2014. Hon'ble National Consumer Disputes Redressal Commission further held that Section 66 of the Motor Vehicles Act, prohibits the use of vehicle as a transport vehicle, without route permit and use of vehicle as a transport vehicle without permit amounts Page 9 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ to breach of condition 'limitation as to use' contained in the policy.
20. We find similar condition as is noticed in the aforesaid precedents, in the insurance policy relied upon, in this case. Condition says that the policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under Sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. Vehicle, admittedly, does not fall under Sub-section (3) of Section 66 of the Motor Vehicles Act, 1988.
21. In view of the above stated position, we find no merit in the present appeal and the same, is therefore, dismissed.
P.S.
22. In the grounds of appeal, State Bank of India has also been impleaded as respondent No.4. In the complaint also, the Bank was impleaded, but thereafter its name was ordered to be deleted by the learned District Forum. Because of the appearance of the name of State Bank of India as respondent No.4, in the grounds of appeal, notice was sent to the said Bank. Shri Arvind Sharma, Advocate has put in Page 10 of 11 Ramesh Kumar versus United India Insurance Co. Ltd. & Ors.
(F.A. No.65/2013) ________________________________________________________________________ appearance on behalf of State Bank of India. Notice is withdrawn, as the State Bank of India is not a party to the complaint as also the final order, passed by the learned District Forum.
23. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member February 24, 2014.
*dinesh* Page 11 of 11