State Consumer Disputes Redressal Commission
1. National Insurance Co. Limited, ... vs Gurbakksh Singh on 8 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 368 of 2014 Date of Institution : 26.11.2014 Date of Decision : 08/01/2015 1. National Insurance Co. Limited, Motor Claims Hub, SCO 332-334, Regional Office-1, Sector 34-A, Chandigarh, through its Manager. 2. National Insurance Co. Limited, Nangal Chowk, Rupnagar, through its Branch Manager. Now both through their Authorized Signatory, Priya Dhawan, A.O., Regional Office-II, SCO No.337-340, Sector 35-B, Chandigarh. Appellants/Opposite Parties V e r s u s Gurbakksh Singh son of Sh. Gulzar Singh, resident of New Abadi, Ward No.9, Anandpur Sahib, District Ropar. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER
Argued by: Sh. J.P. Nahar, Advocate for the appellants.
Sh. Sukaam Gupta, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 26.09.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
We thus allow the present complaint and direct the Opposite Parties to settle the rightful claim of the Complainant in terms of the assessment made by the Surveyor. The Opposite Parties are accordingly directed, jointly and severally, to pay to the Complainant as under:-
[a] Rs.1,39,000/- as assessed by the Surveyor; [b] Rs.20,000/- towards harassment caused in unnecessary denial of claim; [c] Rs.7,000/- towards the costs of litigation. This
order be complied with by the Opposite Parties within 45 days from the date of receipt of its certified copy, failing which, the Opposite Parties shall be liable to pay the awarded amount in Para 11[a] & [b] above along with interest @9% per annum from the date of this order, till it is paid, besides the costs of litigation of Rs.7,000/.
2. The facts, in brief, are that the complainant being the owner of Tipper bearing Registration No. PB-12-J-4622, got the same comprehensively insured, from the Opposite Parties, vide Policy Annexure C-1, valid for the period from 12.07.2012 to 11.07.2013, for the Insured Declared Value, to the tune of Rs.8,96,000/-, on payment of premium. It was stated that the said vehicle met with an accident, on 01.12.2012, at Kurali, Punjab. As such, the vehicle was taken to M/s Pasco Motors, District Ropar, for service and general maintenance repairs. It was further stated that, the vehicle was empty, when the accident took place. It was further stated that the said vehicle, was also not being used for transport of any material/goods, which fact had been confirmed by Er.Shingara Singh, Surveyor and Loss Assessor, in his survey report, when he was appointed by the Opposite Parties, to conduct spot survey. Thereafter, another Surveyor and Loss Assessor, Sh.Kuldeep Singh, conducted the final survey. He assessed the loss, to the tune of Rs.1,39,000/- i.e. for repairs. It was further stated that all the necessary documents required for settlement of claim, were supplied by the complainant, to Opposite Party No.1.
3. It was further stated that, on the other hand, the Opposite Parties vide letter dated 26.04.2013 Annexure C-4, closed the claim of the complainant as No Claim, on the ground, that the vehicle, in question, was being plied, in the public place, without any valid route permit. It was further stated that, the provisions of Section 66 of the Motor Vehicles Act, 1988, were not applicable to the present case, as the vehicle, in question, was not being used for commercial purpose/ transport of any material/goods, at the time of accident, but was being plied empty, for the purpose of servicing and general maintenance repairs. It was further stated that even as per the claim procedure manual of the Opposite Parties, under the head Non Standard Claims, in the event of any breach of warranty/condition of the Policy, including limitation as to use, the complainant was entitled to 75% of the admissible claim. It was further stated that the complainant also made representation to the Grievance Cell of the Opposite Parties, for the settlement of his claim, but to no avail. It was further stated that repudiation of the genuine claim of the complainant, was completely illegal and arbitrary.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the claim amount of Rs.1,39,000/-, as assessed by the Surveyor; compensation, to the tune of Rs.50,000/-, for deficiency, in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.22,000/-.
5. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer. It was not disputed that the complainant got the said vehicle comprehensively insured, from the Opposite Parties, vide Policy Annexure C-1, valid for the period from 12.07.2012 to 11.07.2013, for the Insured Declared Value, to the tune of Rs.8,96,000/-, on payment of premium. It was also not disputed that the said vehicle met with an accident on 01.12.2012, at Kurali, Punjab, and, as such, was taken to M/s Pasco Motors, District Ropar, for repairs. It was stated that the claim of the complainant was repudiated, due to the fact that the vehicle, in question, at the time of accident, did not have a valid route permit. It was further stated that no commercial vehicle, could be plied, on the road, without a valid route permit. It was further stated that, on account of non-holding of a valid route permit, on the date of accident, the complainant not only contravened the provisions of the Motor Vehicles Act, 1988, but also breached the fundamental condition of the Insurance Policy. It was further stated that that the said act of the complainant also amounted to the commission of an offence under Section 192-A of the Motor Vehicles Act, 1988, which carried a fine of Rs.5,000/-, alongwith imprisonment up to one year. It was further stated that the claim procedure manual consisted of internal guidelines of the Company, which were subject to periodic changes, through Circulars, issued by the Head Office. It was further stated that the Manual was issued more than 10 years ago, and had been superseded by Circular HO/MOT/0607/004 dated 27.09.2006. It was further stated that, as such, the claim of the complainant was legally and validly repudiated by the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants, submitted that that, no doubt, the vehicle, in question, was got insured by the complainant, from the Opposite Parties, yet, at the time of accident, it was not having a valid route permit, for plying the same, in the State concerned, and, as such, there was contravention of the provisions of the Motor Vehicles Act, 1988, as also breach of the fundamental condition of the Insurance Policy. He further submitted that the District Forum, failed to take into consideration, this aspect of the matter, and fell into a grave error, in accepting the complaint. He further submitted that since repudiation of the claim of the complainant was legal and valid, no deficiency, in rendering service, or indulgence into unfair trade practice, could be attributed to the Opposite Parties. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
11. On the other hand, the Counsel for the respondent/complainant, submitted that the provisions of Section 66 of the Motor Vehicles Act, 1988 were not applicable to the present case, as the vehicle, in question, was not being used for commercial purpose/transport of any material/goods, at the time of accident, but it was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs . He further submitted that, as such, route permit was not required at the relevant time, when the vehicle met with an accident. He further submitted that the District Forum was right, in accepting the complaint.
12. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons, to be recorded hereinafter. There is, no dispute, with regard to the factum that the vehicle, in question, was got insured, by the complainant, from the Opposite Parties, vide Policy Annexure C-1, valid for the period from 12.07.2012 to 11.07.2013, for the Insured Declared Value, to the tune of Rs.8,96,000/-, on payment of premium. It is also not disputed that the vehicle, in question, fell within the category of a commercial vehicle i.e. Heavy Goods Vehicle/transport vehicle. For plying the said vehicle, on the road, in the State of Punjab, where the accident took place, the same required a valid route permit. The accident, in the instant case, took place on the night intervening 31/01.12.2012.
13. The core question, that falls for consideration, is, as to whether, on 31/01.12.2012, the complainant was having a valid route permit, for plying the vehicle, in question, on road, in the State of Punjab, or not. The answer to this question, is in the negative. The Opposite Parties produced, on record, Annexure OP-1, a photo-copy of the Goods Carrier Permit, issued by the Regional Transport Authority, Patiala, Punjab, in respect of the vehicle, in question. It is evident, from copy of the permit aforesaid that it was valid for the period from 22.01.2013 to 21.01.2018. Whereas, as stated above, the accident took place on the night intervening 31/01.12.2012. It means that on the night intervening 31/01.12.2012, the complainant had no valid route permit, for plying the vehicle, in question, on road, in the State of Punjab. Section 66(1) of the Motor Vehicles Act, 1988, reads as under:-
66.
Necessity for permits.
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer-semi-trailer not owned by him, subject to such conditions as may be prescribed.
Provided that the holder of a permit of any articulated vehicle may use the prime- mover of that articulated vehicle for any other semi-trailer.
(3) The provisions of sub- section (1) shall not apply--
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
(h) to any transport vehicle owned by, and used solely for the purposes of, any educational institution which is recognised by the Central or State Government or whose managing committee is a society registered under the Societies Registration Act, 1860 (21 of 1860 ) or under any law corresponding to that Act in force in any part of India;
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;
(l) to any motor vehicle which is operated by electric battery, compressed natural gas or solar energy;
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
(4) Subject to the provisions of sub-section (3), sub- section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver.
14. From the afore-extracted Section 66 of the Motor Vehicles Act, 1988, it is clear that no transport vehicle can be used in any public place, without a valid permit. In other words, a transport vehicle, without a valid permit, cannot be plied on the road. Further, the Insurance Cover Note Annexure C-1, issued in respect of the vehicle, in question, contains a condition regarding Limitation as to use which reads as under:
The Policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage fall under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988.
15. From the afore-extracted relevant condition of the Insurance Cover Note, issued in respect of the vehicle, in question, it is clear that, under the insurance contract between the parties, insured was to be indemnified, if the vehicle is used or driven, 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. In Manoj Banerjee Vs. Oriental Insurance Company Limited and another, I (2013) CPJ 542 (NC), the truck, in question, which was insured with the Insurance Company, met with an accident, at Shillong in Meghalaya State, and, as such, was burnt. The report, which was 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, whereas, the vehicle had entered into Shillong in Meghalaya State, without any route permit. In these circumstances, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that since the vehicle was being plied, on the road, without any valid route permit, for plying the same, in the State of Meghalaya, repudiation of the claim of the insured was legal and valid. In New India Assurance Company Limited and another Vs. Birbal Singh Jhakhar, Revision Petition No.2476 of 2012, decided on 06.02.2014, by the National Consumer Disputes Redressal Commission, New Delhi, it was clearly held that since the vehicle, in question, was being used by the complainant, in violation of a Limitation as to use, Clause, which was a fundamental breach of the insurance contract, as such, the Insurance Company was justified in repudiating the claim. Similarly, in United India Insurance Co. Ltd., Vs. Trilok Kaushik, IV (2010) CPJ 321 (NC), the National Consumer Disputes Redressal Commission, New Delhi, held that plying of commercial vehicle, on road, without a valid route permit, not only amounted to contravention of the provisions of the Motor Vehicles Act, 1988, but also breach of the fundamental terms and conditions of the Insurance Policy, and, as such, repudiation in such cases by the Insurance Company, could be said to be legal and valid. In National Insurance Co. Ltd. Vs Chella Bharathamma and Ors. Appeal (Civil) 6178 of 2004, decided on 21.09.20 0 4, by the Hon`ble Supreme Court, it was held that the claim could be validly repudiated by the insurer, on the ground that the commercial vehicle was being plied, in a public place, without any valid route permit. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Thus, the claim of the complainant was legally and validly repudiated by the Opposite Parties. It, therefore, could not be said that the Opposite Parties were deficient, in rendering service, or adopted unfair trade practice. The findings of the District Forum, to the contrary, being erroneous, are reversed.
16. No doubt, the Counsel for the respondent/ complainant, placed reliance on G.Kothainachiar Vs. The Branch Manager, United India Insurance Co.Ltd. and another, Revision Petition No.1503 of 2004, decided on 29.10.2007 and United India Insurance Co. Ltd. Vs. Diwan Chand, Revision Petition No.2341 of 2014 decided on 16.07.2014 by the National Commission, to contend that even if, it was assumed that the complainant was not holding a valid route permit, at the time of accident of the vehicle, in question, it could not be said that there was any breach of the fundamental condition of the Insurance Policy, and, as such, the claim could not be repudiated legally and validly in toto. The contention of the Counsel for the respondent/complainant, in this regard, does not appear to be correct. In G.Kothainachiar`s case (supra), the insured was not holding fitness certificate, in respect of the vehicle, when it met with an accident, and damage was caused to the same. It was held that non-holding of fitness certificate, only constituted violation of a non-fundamental condition of the Insurance Policy, and, as such, the claim could not be repudiated. Similarly in United India Insurance Co. Ltd.`s case (supra), it was held that violation of a limitation as to use Clause in the Insurance Policy constituted breach of a non-fundamental condition and the claim could not be legally repudiated in toto. The facts and circumstances of the cases, referred to above, in this paragraph, and relied upon by the Counsel for the respondent/ complainant, being entirely different and distinguishable from the facts and circumstances of the instant case, no help can be drawn, by the respondent, from the principle of law, laid down therein. The submission of the Counsel for the respondent/ complainant, to the effect that the claim could not be legally repudiated, therefore, being devoid of merit, must fail, and the same stands rejected.
17. The next question, that falls for consideration, is, as to whether, the plea taken up by the complainant, in the complaint, to the effect, that at the relevant time, when the accident took place, the vehicle, in question, was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, is true or an afterthought After the accident, the complainant submitted motor claim form, copy whereof is Annexure OP/5. There is a specific column 2(c) in the said motor claim form, according to which, the insured was required to state, as to for what purpose was the vehicle used, at the time of accident. Against this column, the complainant neither wrote yes nor no. He kept this column intentionally blank, so as to concoct a plea, at a later stage, as to for what purpose, the vehicle was being used, at the time of accident. The motor claim form was submitted, first in point of time, immediately after the accident. Non-mention of the fact therein, as to for what purpose the vehicle was being used, at the time of accident, by the complainant, in itself goes to prove that he wanted to conceal the same. Had the vehicle been proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, at the time of accident, the complainant would have certainly mentioned this fact, against column 2(c) of the motor claim form, copy whereof is Annexure OP/5. Even, the Surveyor was appointed immediately, who submitted his motor spot survey report, copy whereof is Annexure C-2 dated 10.12.2012. Column 7 of the motor spot survey report, dated 10.12.2012, relates to the nature and cause of accident. Under this column, it was recorded by the Surveyor that as explained by the insured at spot-Suddenly a stray animal came in front of ahead going truck no.PB13Z 2860 and driver of that truck applied brakes, but the insured truck driver could not stop his vehicle due to short distance and struck into back of the truck no.PB 13Z 2860. No doubt, under the heading Details of load challan the Surveyor stated that as per the information supplied by the complainant, the vehicle was empty. The complainant did not state before the Surveyor that, at the time when the vehicle met with an accident, it was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs. Thereafter, another Surveyor Mr. Kuldeep Singh, was appointed by the Insurance Company, who submitted his motor final survey report dated 02.02.2013 copy whereof is Annexure C-3. In Annexure C-3, the cause of accident was described As reported by the insured that ft. going truck PB-13Z-2880 suddenly applied brakes to save stray animal, driver of insured tipper could not control the vehicle ft left side of his tipper dashed behind the ft going truck causing damaged to insured tipper Under the column observations/comments, Mr. Kuldeep Singh, Surveyor, reported that As per request received from your office, I contacted insured at repairers shop and inquired about the nature & cause of loss. We carefully inspected the subject vehicle and arranged few photographs for the purpose of claim record. Few Photographs during repair were also arranged. There is nothing, in Annexure C-3, that during the course of survey, the complainant ever stated that the vehicle was proceeding empty, for the purpose of servicing and general maintenance repairs, when it met with an accident. The complainant had sufficient opportunity while filing the claim; at the time of spot survey by the Surveyor; and at the time of final survey, by another Surveyor, to state that the vehicle was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, at the time of accident, but he failed to do so. It means that such a fact did not exist, at that time, and that was why, it was not disclosed by the complainant. It is evident from letter dated 13.09.2013, copy whereof is Annexure OP/4, that for the first time, vide letter dated 30.08.2013, that the complainant took up such a plea, that the vehicle, in question, was proceeding to the workshop of M/s Pasco Motors, NH 21, Village Khabra, P.O. Singh Bhagwant Pura, Opp. Solkhian Gurudwara, District Ropar, for servicing and general maintenance repair. Such a plea taken by the complainant on 30.08.2013, i.e. after about nine months of the accident was rightly held to be an afterthought by the Insurance Company. Thus, the plea taken up by the complainant, in the consumer complaint, which was filed on 02.05.2014, that the vehicle was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, at the time of accident, could certainly be said to be an afterthought and concocted one. No explanation was furnished by the complainant, as to why he did not disclose the alleged factum, earlier to 30.08.2013 that the vehicle was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, at the time of accident. Such a plea was taken, in his letter dated 30.08.2013, after about nine months of the accident, and, thereafter, in the complaint, just with a view to bring his case, within the purview of the provisions, contained in Section 66 (3) (p) of the Motor Vehicles Act, 1988, which lay down that there is no necessity of carrying any valid permit, for plying a transport vehicle, while it was proceeding empty to any place for the purpose of repairs. The District Forum, without properly appreciating the factual position of the case, on the basis of the evidence and record, and without deciding, as to whether, the plea taken by the complainant, after about nine months of the accident, in his letter dated 30.08.2013, that the vehicle was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, was correct or an afterthought, placed reliance on Section 66 (3) (p) of the Motor Vehicles Act, 1988. Since the plea of the complainant that the vehicle was proceeding empty to the workshop, for the purpose of servicing and general maintenance repairs, at the time of accident, has been held to be a concocted one, no help can be drawn, by the Counsel for the respondent/complainant, therefrom. Under these circumstances, we are of the considered opinion, that the Insurance Company was right, in repudiating the claim of the complainant, not only on the ground of breach of the terms and conditions of the Policy, but also due to violation of the mandatory provisions of Section 66 of the Motor Vehicles Act, 1988. As held above, there was, therefore, no deficiency, in rendering service, on the part of the Opposite Parties.
18. No other point, was urged, by the Counsel for the parties.
19. In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and warrants interference of this Commission.
20. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
January 8, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Rg