State Consumer Disputes Redressal Commission
Jai Prakash Gupta vs National Insurance Co.Ltd. Through ... on 21 June, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/58
Instituted on : 14.03.2016
Jai Prakash Gupta, Aged 44 years,
S/o Shri Ramswarup Gupta,
R/o : Old Khursipar, Sector -11,
Police Station - Khursipar,
Bhilai, Tehsil & District Durg (C.G.) ..... Appellant
Vs.
1. National Insurance Company Limited,
Chief Manager, Registered Office -
03, Middleton Street, Post Box No.9229,
Kolkata (West Bengal),
2. National Insurance Company Limited,
Branch Manager, Second Floor, Dubey Complex,
Near Basant Talkies, G.E. Road,
Bhilai, Tehsil & District Durg (C.G.) ......Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Rajesh Pandey, for the appellant.
Shri P.K. Paul, for the respondents.
ORDER
DATED : 21/06/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 20.01.2016, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum") in Complaint Case No.C.C.2015/141. By // 2 // the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated the facts of the complaint of the appellant (complainant) are that the appellant (complainant) is registered owner of Tata Truck L.P.T. 2515 bearing registration No.C.G.04-JA-0173. The said vehicle was insured with the respondents (OPs) for the period from 21.12.2013 to 20.12.2014. The appellant (complainant) had purchased the above goods carries vehicle from Jaika Automobiles, Raipur on 15.12.2006 at the cost of Rs.10,59,628/-. The appellant (complainant) was using the said vehicle as goods carries vehicle and was earning his livelihood. On 28.04.2014, in the container of the above goods carries vehicle Chromic Acid was loaded and was going from Bhilai, District Durg to Silwasa (Gujarat) and during transportation, the vehicle was burnt at Muktai Nagar, District Jalgaon (Maharasthra). Due to above accident, the vehicle goes to total loss condition and there is no possibility of its repairing. On next day, the appellant (complainant) went to branch office of the Insurance Company and gave information regarding the incident and requested for compensation. The respondents (OPs) did not give compensation to him, therefore, the appellant (complainant) sent letters to the respondents (OPs) on 22.08.2014, 03.11.2014 and 01.12.2014 for obtaining compensation, but in spite receipt of the above letters, the respondents (OPs) did not provide compensation to the appellant (complainant) and avoided by saying that // 3 // the documents are not complete and some formality is required to be completed, whereas the appellant (complainant) is having all documents for obtaining compensation. The respondents (OPs) did not provide compensation in respect of damaged vehicle till date, therefore, the appellant (complainant) suffered financial loss and mental agony. The respondents (OPs) did not provide compensation to the appellant (complainant) and thus, committed deficiency in service. The appellant (complainant) sent notice through his Advocate to the respondents (OPs) by registered post on 16.05.2015, but even then the respondents (OPs) did not provide compensation to him. Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
3. The respondents (OPs) filed their written statement and averred that on being intimation received by the respondents (OPs) from the appellant (complainant) regarding incident, the respondents (OPs) deputed Shri Rajesh R. Zawar, Surveyor and Loss Assessor, who conducted spot survey of the vehicle. Shri Rajeshj R. Zawar submitted Spot Survey Report on 14.05.2014 in the office of the Insurance Company. Thereafter, the Insurance Company got conducted final survey of the vehicle through Shri P.K. Rathi, Surveyor and Loss Assessor. Shri P.K. Rathi, Surveyor and Loss Assessor submitted his Surveyor Report on 30.07.2014 with his opinion. The appellant // 4 // (complainant) did not provide fitness certificate as on the date of accident to the respondents (OPs) and the when the appellant (complainant) sent letter to the respondents (OPs), then the respondents (OPs) sent reminder to the appellant (complainant) on 03.12.2014 and demanded fitness certificate of the vehicle, but the appellant (complainant) did not provide fitness certificate to the respondents (OPs). The appellant (complainant) did not provided fitness certificate as on 28.04.2014 to the respondents (OPs) in respect of the damaged vehicle Tata Truck bearing registration No.C.G.04-JA-0173, therefore, the respondents (OPs) did not commit any deficiency in service. The appellant (complainant) got insured his vehicle Tata Truck bearing registration No.C.G.04-JA from the office of the respondents (OPs) under policy No.28520531136300007700 for the period from 21.12.2013 to 20.12.2014. At the time of getting the vehicle insured, the appellant (complainant) informed the respondents (OPs) that the Insured Declared Value (IDV) of the vehicle is Rs.6,40,000/- (Rupees Six Lakhs Forty Thousand) On the basis of the IDV, premium amount was taken. On the date of incident i.e. 28.04.2014 fitness certificate of the damaged vehicle was not available, therefore, due to violation of terms and conditions of the insurance policy, the respondents (OPs) did not pay the claim amount to the appellant (complainant) and did not commit any deficiency in service. The respondents (OPs) sent reply to the registered notice to the appellant (complainant) on 16.03.2015 through // 5 // their advocate. The respondents (OPs) while giving reply to the letter of the appellant's (complainant's) demanded fitness certificate as on the date of incident, but the same was not provided by him. Therefore, the respondents (OPs) did not commit any deficiency in service by not paying claim amount to the appellant (complainant). On the date of incident i.e. 28.04.2014, there was no fitness certificate of vehicle Tata Truck bearing registration No.C.G.04-JA-0173, therefore, the Incharge Office, Transport Check Post Patekohar, District Rajnandgaon imposed fine of Rs.2,000/- under Section 56/192 of Motor Vehicles Act because the vehicle was not having fitness certificate. On the date of incident, the vehicle was not having fitness certificate. Therefore, there was violation of terms and conditions of the insurance policy, hence the respondents (OPs) did not commit any deficiency in service by not paying claim amount in respect of the damaged vehicle to the appellant (complainant). Shri P.K. Rathi, Surveyor conducted the final survey in respect of damaged vehicle truck bearing registration No.C.G.04-JA-0173 and submitted his report. In the above Survey Report, the Surveyor assessed total loss to the tune of Rs.6,40,000/- out of which a sum of Rs.1,500/- was deducted towards compulsory excess as per terms and conditions of the insurance policy and thereafter a sum of Rs.6,38,500/- was assessed. The respondents (OPs) have received a proposal form from the appellant (complainant) on 30.07.2014 that the appellant (complainant) will keep salvage with him for Rs.1,04,000/-, in reply to // 6 // which the respondents (OPs) assessed the salvage amount Rs.1,40,000/-. Thus, the respondents (OPs) were liable to pay a sum of Rs.4,98,5000/- to the appellant (complainant). As per provisions of Motor Vehicles Act, 1988 valid and effective fitness certificate of the vehicle is necessary, but on the date of incident i.e. 28.04.2014 there was no fitness certificate of the damaged vehicle and due to violation of the terms and conditions of the insurance policy, by not paying the claim amount, the respondents (OPs) did not commit any deficiency in service. The respondents (OPs) appointed Shri Ajay Nigam as Investigator, who contacted Regional Transport Officer, Raipur and verified the fitness certificate. The Regional Transport Officer, Raipur informed that the fitness certificate in respect of truck bearing registration No.C.G.04-JA- 0173 was issued for the period from 23.04.2013 to 22.04.2013. On the date of incident i.e. 28.04.2014, the vehicle in question was not having fitness certificate. Therefore, due to violation of terms and conditions of the policy, by not paying the claim amount, the respondents (OPs) did not commit any deficiency in service. The respondents (OPs) are not liable to give claim amount, amount of compensation for mental agony, amount of financial loss, interest and advocate fees. The complaint is liable to be dismissed.
4. The appellant (complainant) has filed documents. Annexure A-1 is photocopy of bill of the vehicle dated 15.12.2006, Annexure A-2 is Certificate of Registration of vehicle bearing registration No.C.G.04-JA-
// 7 // 0173, Annexure A-3 is Certificate of Insurance Cum Schedule issued by National Insurance Company Limited, Branch No.II, Bhilai (C.G.), Annexure A-4 is Authorisation Certificate of N.P. (Goods), Annexure A- 5 is National Permit of Goods Carries Vehicle, Annexure A-6 is Certificate of Fitness, Annexure A-7 is Acknowledgement For On Line Tax Payment, Annexure A-8 is driving licence of driver, Annexure A-9 is First Information Report (Under Section 154 Cr. P.C), Annexure A-10 and A/11 are estimate for repairing of vehicle No.C.G.04/JA/0173, Annexure A-12 is letter dated 13.08.2014 sent by the appellant (complainant) to the Divisional Manage/Branch Manager, National Insurance Company Limited, Bhilai, District Durg (C.G.), Annexure A- 13 is letter dated 03.11.2014 sent by the appellant (complainant) to the Divisional Manager / Branch Manager, National Insurance Company Limited, Bhilai, Tehsil and District Durg (C.G.), Annexure A-14 is acknowledgement, Annexure A-15 is letter dated 01.12.2014 sent by the appellant (complainant) to the Divisional Manager / Branch Manager, National Insurance Company Limited, Bhilai, Tehsil and District Durg (C.G.), Annexure A-16 is registered notice dated 16.02.2015 sent by Shri Saurabh Poddar, Advocate on behalf of the appellant (complainant) to the respondents (OPs), Annexure A-17 are postal receipts, Annexure A- 19(a) is acknowledgement, Annexure A-18(b) is acknowledgement.
5. The respondents (OPs) have also filed documents. Ex.D-1 is Motor Claim Form, Ex.D-2 is Motor (Spot) Survey Report dated // 8 // 07.05.2014 of Shri Rajesh R. Zawar, Surveyors & Loss Assessors, Ex.D-3 is Motor (Interim) Survey Report dated 25.06.2014 of Shri P.K. Rathi, Surveyor and Loss Assessor, Ex.D-4 is Investigation Report of Shri Ajay Nigam, dated 12.06.2014, Ex.D-5 is letter dated 06.06.2014 sent by Regional Transport Officer, Raipur (C.G.) to Shri Ajay Nigam, Insurance Claim Investigator, Receipt dated 27.04.2014 issued by Incharge Officer, Transport Check Post, Patekohar, District Rajnadgaon (C.G.), Ex.D-7 is reminder - I dated 03.12.2014 sent by Senior Branch Manager, National Insurance Company Ltd. Branch No.2,Bhilai to the appellant (complainant), Ex.D-8 is letter dated 30.07.2014 sent by the appellant (complainant) to the Divisional Manager, Divisional Office, National Insurance Company Limited, Bhilai (C.G.), Ex.D-9 is reply dated 16.03.2015 sent by Shri B.S. Khanuja, Advocate to Shri Saurabh Poddar, Advocate in respect of notice dated 16.02.2015, Ex.D-10 is Certificate of Insurance Cum Policy Schedule, Annexure NA-11 is letter dated 21.10.2015 sent by Shri Dhanshukh Patel, Advocate to the Divisional Manager, National Insurance Co. Ltd., Divisional Office, Bhilai,Tehsil and District Durg (C.G.), Annexure NA-12 is letter dated 20.10.2015 sent by Regional Transport Officer, Raipur to Shri Dhanshukh Patel, Advocate.
6. Learned District Forum, after having considered the material placed before it by the parties has dismissed the complaint of the appellant (complainant).
// 9 //
7. Shri Rajesh Pandey, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) obtained fitness in respect of vehicle bearing registration No.C.G.04-JA-01723, which was effective for the period from 23.04.2013 to 22.04.2014. On 22.04.2014, the appellant (complainant) applied for obtaining fitness certificate and deposited the amount on the same day. The appellant (complainant) applied for renewal of fitness certificate, which was under
process at the time of accident, therefore, the respondents (OPs) were not justified to repudiate the claim of the appellant (complainant). It appears that at the time of accident, the appellant (complainant) had already applied for fitness certificate and deposited the amount, therefore, due to non-availability of the fitness certificate, the claim of the appellant (complainant) cannot be repudiated by the respondents (OPs) in toto. The appellant (complainant) is entitled to get compensation from the respondents (OPs) on non-standard basis.
Therefore, the impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appellant (complainant), is entitled to get compensation from the respondents (OPs) on non- standard basis. He placed reliance on judgment of Hon'ble Supreme Court in Civil Appeal Nos.49-50 of 2016 Lakhmi Chand Vs. Reliance General Insurance judgment dated 07.01.2016, Amalendu Sahoo v. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC), Revision Petition No.1503 of 2004 G. Kothainachiar Vs. The Branch Manager, United // 10 // India Insurance Company Limited decided by Hon'ble National Commission on 29.10.2007 and Shriram General Insurance Company Limited & Anr. Vs. Naya Bass Co-Op. Transport Society Ltd., I (2016) CPJ 20B (CN) (Har.).
8. Shri P.K. Paul, learned counsel appearing for the respondents (OPs) has argued that 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 the instant case, the vehicle in question was being used by the appellant (complainant) without fitness certificate, which is fundamental violation of the terms and conditions of the insurance policy, as well as provisions of Section 56 of the Motor Vehicles Act, 1988, therefore, the finding recorded by the District Forum, is just, proper and reasonable and the appeal of the appellant (complainant),. is liable to be dismissed. He placed reliance on United Insurance Company Limited Vs. B. Ugandar, III (2010) CPJ 253 (NC); Aeroflot Soviet Airlines Vs. The United India Insurance Company Limited, 2006 (3) CPR 122 (NC); United India Insurance Company Limited Vs. Kishore Sharma, I (2015) CPJ 760 (NC) and Oriental Insurance Company Limited Vs. Dharnidhar Sharma, I (2016) CPJ 136 (NC).
9. We have heard learned counsels for both the parties and have also perused the record of the District Forum.
// 11 //
10. Sub Section (1) of Section 56 of the Motor Vehicles Act, 1988 runs thus :-
"Section 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 authorized 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 "authorized testing station" refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal."
11. Sub Section (4) of Section 56 of the Motor Vehicles Act, 1988 runs thus :-
"(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."
Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications."
// 12 //
12. So far as Revision Petition No.1503 of 2004 - G. Kothainachiar Vs. The Branch Manager, United India Insurance Company Limited decided by Hon'ble National Commission on 29.10.2007, which has been relied by the appellant (complainant), is concerned, the same has also been published in IV (2007) CPJ 347 (NC) wherein Hon'ble National Commission has observed that Insurance is matter of contract between parties. Insurance Company cannot repudiate claim when there is no breach of policy conditions. Insured having fitness certificate till 30 May, 1995. Accident took place on 20 June, 1995. Vehicle in good condition to be plied at accident time as per RTO inspection report. Order of State Commission, is not sustainable.
13. So far as Lakhmi Chand's case (Supra) is concerned, in that case five persons were travelling in the goods carrying vehicle at the time of accident, whereas the permitted seating capacity of the motor vehicle of the appellant was only 1 + 1. Insurance Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Hon'ble Supreme Court has observed that the breach is not a fundamental breach of terms and conditions of the insurance policy and the Insurance Company is liable. Laxmi Chand's case (Supra) is relating to overloading.
// 13 //
14. The appellant (complainant) has also placed reliance on Shriram General Insurance Company Limited & Anr. Vs. Naya Bass Co-Op. (Supra), in which renewal of permit was under process at the time of accident.
15. The facts of the instant case, are quite distinguishable from the facts of the above cases cited by the appellant (complainant).
16. In Oriental Insurance Company Limited Vs. Dharnidhar Sharma, I (2016) CPJ 136 (NC), Hon'ble National Commission has observed that "in the absence of fitness certificate, the Insurance Company, is not liable to pay compensation to the complainant and repudiation of claim by the Insurance Company is justified."
17. In the instant case, the fitness certificate of the vehicle in question was expired on 22.04.2014 and the accident took place on 28.04.2014. At that time the appellant (complainant) was not possessing fitness certificate. The appellant (complainant) has deposited the amount for renewal of fitness certificate and renewal of the fitness certificate was under process. It cannot be held that the appellant (complainant) was possessing fitness certificate at the time of accident and the appellant (complainant) was using the vehicle in question without fitness certificate, which is fundamental breach of terms and conditions of the insurance policy as well as provisions of Motor Vehicles Act, 1988, hence // 14 // the Insurance Company, has rightly repudiated the claim of the appellant (complainant).
18. Therefore, the impugned order dated 20.01.2016, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality and does not call for any interference.
19. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 21 /06/2016 21 /06/2016 21 /06/2016 21 /06/2016