Sh. Puran Chand son of late Sh. Tul Chand resident of village Dhamsu Post Office Karjan, Tehsil Manali, District Kullu, H.P.
Branch Manager , National Insurance Company Ltd Mandi town District Mandi, H.P..
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986
( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The complainant stated that he has purchased Maruti Alto LX BS –III car bearing temporary No. HP-33-9659 ( T), engine No.FBDN-3521412 for his self employment from the Competent Automobile Gutkar vide bill No.B-301-600127 on 16-4-2008 The said vehicle was insured with the opposite party vide comprehensive insurance policy No.4056832 in the sum of Rs.2,51,957/- with effect from 16-4-2008 to 15-4-2009 as per Annexure C-2 . The vehicle was financed by the Megma Shrachi Finance Limited as per sale certificate Annexure C-3. The complainant averred that he was busy in completing the codal formalities and could not apply for registration of the vehicle with the Motor Vehicle and Registration Authority. The complainant averred that he engaged Sh. Pawan Kumar son of Sh. Om Chand as driver of the vehicle who was duly authorized to drive the category of the vehicle as per driving license Annexure C-4. The complainant further averred that on 10-5-2008 when Sh. Pawan Kumar was driving the vehicle in question and was coming from his native village Sari alongwith his wife to Manali , it went out of the road and met with accident at about 5.30 AM. The driver of the vehicle died on the spot and his wife Smt. Kanchan Devi who was travelling in the vehicle sustained injuries and First Information Report No.220/2008 was registered in police station Mandi which is Annexure C-5. The complainant alleged that the vehicle in question badly got damaged i.e. total loss and was carried by the complainant on 12-5-2008 in Recovery van to Competent Automobiles by spending Rs.4000/- as per bill Annexure C-6 Due intimation of the accident was also given to the opposite party on 19-5-2008 and he had also supplied the relevant documents for settlement of the own damage claim. It has further been alleged that vide letter Annexure C-7 the opposite party had repudiated the claim illegally which amounts to deficiency in service and unfair trade practice as accident of the vehilce had occurred only after 25 days of its purchase and under the law, the complainant can register the vehicle within 30 days and as such there is no breach of the policy. The complainant had suffered loss of Rs.300/- per day as the vehicle was financed by Megma Finance Limited. With these allegations the complainant had sought direction to the opposite party to settle the claim on total loss basis , to pay the sum insured to the complainant , to pay the interest amount as claimed by Megma Sharchi Finance limited , to waive off the interest and penal interest after the accident of the financed vehicle, to pay Rs.25,000/- for harassment , Rs.20,000/- as litigation charges, and Rs.10,000/- as costs
2. The opposite party had filed reply wherein it had admitted that the vehicle was insured with the opposite party as passenger carrying vehicle under the policy and it met with an accident . It has been contended that the vehicle was put on road without registration , route permit and the same is complete violation as per section 66 of the M.V.Act. The opposite party had admitted that the vehicle was totally damaged and had placed on record report of Surveyor Annexure OP1. It has further been contended that as per the M.V. Act no owner of the vehicle shall use or permit to use of vehicle as a transport vehicle in any place whether or not such vehicle is actually carrying any passengers or goods and the insurer was right in repudiating the claim. The complaint had been sought to be dismissed.
3. The complainant had filed rejoinder reiterating the contents of the complainant and controvert those as made in the reply.
4. We have heard the ld. counsel for both the parties and have carefully gone through the record.. It has not been disputed by the opposite party that the vehicle in question was temporarily registered and was bearing registration number HP-33-9659 . It has also been admitted by the opposite party that the vehicle was duly insured with the opposite party with effect from 16-4-2008 to 15-4-2009 and during the currency of the insurance policy it met with an accident on 10-5-2008. The only ground on which the claim has been repudiated by the opposite party is that the vehicle was put on road without registration and route permit in violation of the section 66 of the Motor Vehicles Act. Now the only question which arises for determination before this Forum is as to whether the repudiation of the claim by the opposite party was justified on the aforesaid ground . The case of the complainant is that at the time of the accident i.e. on 10-5-2008 the vehicle was being driven by his driver Sh. Pawan Kumar and he was coming from his native village Sari alongwith his wife to Manali and on the way it met with an accident. The aforesaid fact is corroborated by the first information report No.220/2008 dated 10-5-2008, Police Station Sadar, District Mandi wherein it has been mentioned that the vehicle was being driven by Sh. Pawan Kumar who died on the spot and at the time of the accident his wife was also travelling in the vehicle in question. The vehicle was having temporary registration number. As per section 43 of the Motor vehicle Act, temporary certificate of registration is valid for a period of one month. As per sale certificate Annexure C-3 the vehicle was purchased by the complainant on 16-4-2008 . It met with an accident on 10-5-2008 i.e. within a period of one month from its sale. The opposite party had repudiated the claim of the complainant on the ground that at the time of accident driver alongwith his wife were travelling in the vehicle which is a breach of Section 66 of the Motor Vehicles Act and the complainant could not justify the plying of the vehicle on road without registration and route permit .At this juncture , it would be relevant to refer to the relevant portion of section 66 of the Motor Vehicles Act , 1988 which 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 counter signed by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used …….”
5. The perusal of aforesaid section of Motor vehicles Act, 1988 shows that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place save in accordance with the permit granted by the competent authority. As per section 2(47) of the M.V. Act, “transport vehicle ” means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle . In the present case, the vehicle in question is neither a goods carriage nor an educational institution bus . As per sale certificate Annexure C-3 seating capacity of the vehicle including driver is five . Therefore, it cannot be said to be a private service vehicle . According to the opposite party, the vehicle in question was insured with it as a passengers carrying vehicle and the complainant has not denied this fact. Therefore , as per the admitted case of both the parties, it is a public service vehicle. As per section 2( 35) of the M.V. Act “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage . Therefore, in these circumstances it was incumbent upon the opposite party to establish that the vehicle was carrying passengers for hire or reward at the time of the accident. However, as per the first information report and as per the repudiation letter of the opposite party dated 1-9-2008, at the time of the accident driver was travelling in the vehicle alongwith his wife . The opposite party has failed to prove that at the time of the accident , the vehicle was being used for carrying passengers for hire or reward. Therefore, it cannot be said that the vehicle was being used as a transport vehicle for hire or reward without the permit at the time of the accident . Hence , in our opinion there is no violation of section 66 of the M.V. Act as the vehicle was not being used as “transport vehicle” without permit or route permit .As per section 39 of the M.V. Act , no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter. In the present case, it is the admitted case of the opposite party that the vehicle was registered and was provided a temporary registration number . As per section 43 of the Motor Vehicles Act,1988 temporary registration is valid for a period of one month . Admittedly the vehicle in question met with an accident within a period of one month from the date of its purchase and was bearing temporary registration number . Therefore , it is clear that at the time of the accident neither the vehicle was being plied in contravention of the provisions of the Motor Vehicles Act nor in violation of the terms and conditions of the insurance policy. Hence we have no hesitation to conclude that the opposite party had repudiated the claim of the complainant illegally which amounts to deficiency in service and the complainant is entitled for compensation on this count .
6 Now the next question which arises for consideration before this Forum is as to what amount the complainant is entitled on account of loss suffered by him due to accident of the vehicle . The complainant in his complaint had sought settlement of the claim of the vehicle on total loss basis . Be it stated that as per the certificate cum policy schedule Annexure C-2 , the insured declared value of the vehicle was Rs.2,51,957/-. The opposite party has adduced in evidence the photocopy of report of Surveyor Sh. Mohinder K Sharma dated 11-7-2008 who had assessed the Net Loss liability on total loss basis in the sum of Rs.2,41,957/- and after deducting the salvage value of Rs.85,000/-, net loss assessed is in the sum of Rs.1,56,957/- . The report of Surveyor is an important document and it cannot be brushed aside without sufficient reasons. The Hon’ble National Consumer Disputes Redressal Commission in United India Insurance company vs Jadhav Kirana Store , III (2005)CPJ-79(NC) has held that the Surveyor report is an important document and it should not be shunned without sufficient reasons. Therefore, in the absence of any satisfactory evidence to the contrary , we accept the report of Surveyor dated 11-7-2008 and in view of the same , we hold that the loss suffered by the complainant with respect to the damage caused to the vehicle is Rs. 2,41,957/- subject to deposit of salvage , value of which had been assessed by the surveyor at Rs.85,000/-.
7 The complainant had claimed Rs.25,000 as compensation besides Rs.10,000/- as costs of litigation . As discussed above, since the claim of the complainant had been repudiated illegally by the opposite party and he had suffered harassment Therefore, in such circumstances , an amount of Rs.10,000/- will be sufficient to meet the end of justice on this score and Rs.2000 /- as costs of litigation.
8 In the light of above discussion, the complaint is allowed and the opposite party is directed to pay to the complainant Rs.2,41,957/-. with interest at the rate of 9% p.a. from the date of filing of the complaint till realization subject to the deposit of salvage . In case, the complainant fails to deposit the salvage within a period of one month from today , the opposite party is at liberty to deduct Rs.85,000/- on account of salvage from Rs.2,41,957/- .The opposite party is further directed to pay Rs..10,000/- as compensation and Rs.2000/- as costs of litigation .
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