State Consumer Disputes Redressal Commission
New India Assurance Company Limited vs Munish Bajaj on 12 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.1169 of 2014
Date of institution : 14.08.2014
Reserved on : 04.05.2017
Date of decision : 12.05.2017
New India Assurance Company Limited, through its Divisional
Manager, Divisional Office, Dalhousie Road, Pathankot, through
its Manager (Legal), Regional Office SCO 36-37, Sector 17-A,
Chandigarh.
....Appellant/Opposite Party
Versus
Munish Bajaj son of Sh. Janak Raj Bajaj, resident of Prem Nagar,
Madhopur, Tehsil and District Pathankot (PB).
....Respondent/Complainant
First Appeal against the order dated
29.05.2014 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. B.S. Taunque, Advocate For the respondent : Sh. R.D. Sharma, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/opposite party against the order dated 29.05.2014 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, "the District Forum"), whereby the complaint filed by the respondent/complainant, under Section 12 of the First Appeal No.1169 of 2014 2 Consumer Protection Act, 1986, was disposed of and the opposite party was directed to pay 75% of the admissible claim, in accordance with the terms and conditions of the related insurance policy, within 30 days of the receipt of copy of the order, failing which the settled amount would carry interest at the rate of 9% per annum from the expiry of 30 days till actual payment.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. The relevant facts for disposal of the present appeal are that the complainant filed the complaint, making the averments that he purchased a truck bearing No.PB-35-Q-1845, which was got comprehensively insured with the opposite party for the period 09.04.2012 to 08.04.2013, by paying ₹40,366/- towards premium. On 05.05.2012, the said truck met with an accident. Intimation of the accident was duly sent to the opposite party, who deputed the surveyor to assess the loss/damage caused to the vehicle in the accident. The complainant had to spend ₹3,50,000/- for getting the truck repaired, in order to make it roadworthy. The surveyor assessed the loss at ₹3,49,000/- payable to the complainant. The complainant requested the opposite party to pay the claim amount directly to M/s Sundaram Finance Limited Company, who had financed the vehicle, in question. However, the opposite party repudiated his claim, vide letter dated 28.09.2012, on the frivolous ground that permit and fitness certificate of the truck was issued First Appeal No.1169 of 2014 3 on 10.05.2012, whereas the accident took place on 05.05.2012. The opposite party took another frivolous excuse that the basic driving licence of the driver was not issued in favour of Surti Masih, whereas the driving licence No.222/NDI was renwed, vide No.46259/R and before employing the driver, Surti Masih, the complainant had got the renewal of licence verified, which was confirmed as genuine. The opposite party rejected the claim of the complainant on false and frivolous grounds; due to which he suffered mental agony and harassment. Accordingly, the complainant approached the District Forum, seeking directions to the opposite party to pay insurance claim of ₹3,50,000/- and ₹1,00,000/- towards damages, along with interest at the rate of 12%, on account of mental harassment, agony, inconvenience and litigation expenses.
4. Upon notice, the opposite party appeared before the District Forum and filed reply to the complaint, raising preliminary objections that the complaint is not maintainable and there is no deficiency in service on its part. The complainant has violated the terms and conditions of the insurance policy and he is estopped by his act and conduct from filing the complaint. The claim of the complainant was filed, as "No Claim" on the grounds that at the time of accident, the vehicle was not having valid 'goods carriage for hire and reward' permit, whereas at that time the vehicle was loaded with the boulders, belonging to M/s Khera Construction Co. as per GR of Durga Enterprises, Jammu Road Madhopur, First Appeal No.1169 of 2014 4 Pathankot. The vehicle in question met with an accident on 05.05.2012, whereas the 'goods carriage for hire and reward' was issued for the vehicle in question for the period 11.05.2012 to 10.05.2017. Further, the vehicle in question was not having valid fitness certificate at the time of accident. The fitness certificate produced by the complainant was issued on 10.05.2012, whereas the accident occurred on 05.05.2012. Further the driver of the vehicle in question, Mr. Surti Masih, had no valid and effective driving licence at the time of accident. As per verification of DTO, Gurdaspur, the basic driving licence No.222/NDL having renewal DL No.46259/R was not issued in favour of Surti Masih. It was further averred that the vehicle in question was used by the complainant for commercial purpose and, thus, the complainant is not a consumer. On merits, similar pleas, as raised in the preliminary objections, were reiterated and it was further pleaded that as per the terms and conditions of the policy, the claim was not payable to the complainant. Other allegations of the complainant were denied and it was prayed that the complaint be dismissed with costs.
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, disposed of the complaint, vide impugned order. Hence, this appeal.
First Appeal No.1169 of 2014 5
6. We have heard learned counsel for the parties, perused the written arguments submitted on behalf of the appellant/opposite party and have carefully gone through the records of the case.
7. Learned counsel for the appellant/opposite party vehemently contended that the truck in question was not having valid fitness certificate at the time of accident, which occurred on 05.05.2012. Moreover, the vehicle was only temporary registered at that time. Running the vehicle on the road, without having valid fitness certificate, is violation of the provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder. He further contended that the driver of the vehicle, in question, was also not having a valid driving licence at the time of the accident. He further contended that the vehicle was being used for hire and reward i.e. for commercial purposes. The claim of the complainant was rightly repudiated on the above referred grounds and the District Forum wrongly passed the impugned order, which is liable to be set aside. In support of his arguments, learned counsel relied upon the following authorities:
i) M/s BHS Industries v. Export Credit Guarantee Corp. & Anr. 2015 (4) CLT 225 (SC);
ii) New India Assurance Co. Ltd. v. Meenakshi Jarial II (2016) CPJ 53 (NC); and
iii) Reliance General Insurance Co. Ltd. v. Dharwin K. David II (2011) CPJ 266 (NC).First Appeal No.1169 of 2014 6
8. Per contra, learned counsel for the respondent/complainant contended that the case of the complainant is squarely covered by the judgment of Hon'ble Supreme Court rendered in Amalendu Sahoo v. Oriental Insurance Co. Ltd. 2010 (1) CPC 653 (SC). At the time of accident, the vehicle was temporarily registered and this was a valid registration. The complainant did not commit any violation of the terms and conditions of the policy or the Motor Vehicles Act. The District Forum has passed a well reasoned order and there is no ground to interfere with the same. The appeal is liable to be dismissed.
9. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
10. Admittedly, the vehicle, in question, was insured with the opposite party, vide policy Ex.C-5, for the period 09.04.2012 to 08.04.2013. It met with an accident on 05.05.2012 and the claim lodged by the complainant was repudiated by the opposite party, vide letter dated 28.09.2012, Ex.OP-2, on the grounds that at the time of accident, the vehicle in question was not having a valid registration certificate and valid fitness certificate; the driver was not having valid driving licence at that time; and the vehicle was not having valid 'goods carriage for hire and reward' permit at the time of accident.
11. Perusal of temporary certificate of registration Annexure A-2, which has been annexed by the appellant/opposite First Appeal No.1169 of 2014 7 in the appeal, shows that it was valid from 09.04.2012 to 08.05.2012. The accident of the vehicle in question occurred on 05.05.2012. As such, at the time of accident, the vehicle in question was duly registered, though temporarily, with the competent authority and the accident occurred during the subsistence of that said certificate. In case the accident occurred after the expiry of the temporary registration certificate of the vehicle, then the position would have been different.
12. There is no dispute that the vehicle in question was purchased for carriage of goods on hire and reward basis. So far as the validity of the driving licence of the driver is concerned, no authentic document has been produced by the opposite party on the record to show that it was not a valid licence. Rather the fact remains that the licence has been renewed by the competent authority.
13. The Hon'ble National Commission in case National Insurance Company Limited v. Jogesh Roy & Anr. 2017 (2) CPR 252 (NC), held that the claim could not have been repudiated on the ground that the vehicle did not possess a permit on the date it met with an accident.
14. Hon'ble National Commission in case United India Insurance Co. Ltd. v. Diwan Chand Revision Petition No.2341 of 2014, decided on 16.07.2014, while relying upon the decision of the Hon'ble Supreme Court in Amalendu Sahoo's case (supra), upheld the order of the State Commission, vide which 75% of the First Appeal No.1169 of 2014 8 assessed amount of claim was allowed to be paid by the insurance company to the complainant. In that case, the claim was repudiated by the insurance company, on the ground that route permit had not been submitted by the insured.
15. Even in case National Insurance Company Ltd. v. Jaswant Singh I (2013) CPJ 389 (NC), Hon'ble National Commission held that the cause of accident has nothing to do with the vehicle being brought in State of Punjab, for which there was no permit, and allowed the claim on non-standard basis to the extent of 75%.
16. Hon'ble Supreme Court in Amalendu Sahoo's case (supra), considered the similar question and held in paras No. 12 to 15 as follows:-
"12. Reference in this case may be made to the decision of National Commission rendered in the case of United India Insurance Company Limited v. Gian Singh reported in 2006 CTJ 221 (CP) (NCDRC). In that decision of the National Consumer Disputes Redressal Commission (NCDRC) it has been held that in a case of violation of condition of the policy as to the nature of use of the vehicle, the claim ought to be settled on a non-standard basis. The said decision of the National Commission has been referred to by this Court in the case of National Insurance Company Limited v. Nitin Khandelwal reported in 2008 (7) First Appeal No.1169 of 2014 9 SCALE 351. In paragraph 13 of the judgment, in the case of Nitin Khandelwal (supra) this Court held:-
"...The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis.
13. In the case of Nitin Khandelwal (supra) the State Commission allowed 75% of the claim of the claimant on non-standard basis. The said order was upheld by the National Commission and this Court refused to interfere with the decision of the National Commission.
14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the insurance company about First Appeal No.1169 of 2014 10 settling all such non-standard claims. The said guidelines are set out below:-
Sr. No. Description Percentage of
settlement
(i) Under declaration of Deduct 3 years'
licensed carrying difference in
capacity premium from the
amount of claim or
deduct 25% of claim
amount, whichever
is higher.
(ii) Overloading ofPay claims not
vehicles beyond exceeding 75% of
licensed carryingadmissible claim.
capacity
(iii) Any other breach of Pay upto 75% of
warranty/condition of admissible claim.
policy including
limitation as to use
15. From a perusal of the aforesaid guidelines it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached."
17. In view of the law laid down by the Hon'ble Supreme Court as well as Hon'ble National Commission in the above noted authorities, the claim of the complainant is liable to be settled on non-standard basis, even though there was violation of the terms and conditions of the policy. The occurrence of accident has no direct relevance with the permit. In view of the above settled law, the authorities relied upon by the learned counsel for the opposite party are not applicable to the facts and circumstances of the present case. The order passed by the District Forum is legal and valid and there is no ground to interfere with the same. First Appeal No.1169 of 2014 11
18. In view of above discussion, the appeal is dismissed and the impugned order is upheld.
19. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. It deposited another sum of ₹1,06,449/- vide receipt dated 16.09.2014, in compliance of the order dated 26.08.2014. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
20. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 12, 2017.
(Gurmeet S)