Date of filing: 24.08.2017 Date of disposal: 27.01.2020
Complainant: Kuldeep Singh, S/o. Late Succha Singh, Panagarh Bazar, G. T. Road (Near Gurudwara), District: Burdwan, PIN – 713 148.
- V E R S U S -
Opposite Party: The Divisional Manager, United India Insurance Company Limited, 3rd Administrative Building, 2nd Floor, City Centre, Durgapur – 16, District: Burdwan, PIN – 713 216.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Shri Sailaranjan Das.
Appeared for the Complainant: Ld. Advocate, Anindita Chakraborty, Debdas Rudra & Subrata Ghosh.
Appeared for the Opposite Party: Ld. Advocate, Ahi Bhushan De.
J U D G E M E N T
This complaint is filed by the complainant against the OP alleging deficiency in service and unfair trade practice as the OP repudiated his legitimate insurance claim.
The case of the complainant in brief is that he is registered owner of one Truck bearing No. WB-39A/6297 and the said Truck on 19.05.2016 when the vehicle was kept parking on the left side of G. T. Road near his residence at about 12:35 am (mid night) got severely damaged by another vehicle which lost control while over-taking another vehicle coming from opposite direction dashed head-on and damaged the right front side of the Truck. After the accident the complainant informed the matter to the Insurance Company (OP) as the Truck having valid insurance vide Policy No. 0315003115P115455953 from 16.03.2016 to 15.03.2017.
The complainant submitted all the necessary papers of the vehicle required for claiming damage from the OP along with valid Permit Paper of National Permit For Goods Carrier valid from 16.04.2012 to 15.04.2017, Driving License, Policy Paper, Certificate for Registration, Tax Token, Authorization Certificate, Fitness Certificate, Assessment Summary, Bills & Vouchers regarding the estimate of actual expenditure accrued by the complainant in respect of repairing his damaged vehicle.
On the date of accident the vehicle was not plying on road but was parked on the left side of G. T. Road, Panagarh Bazar hear the residence of the complainant and on the very date and time of accident, the process of transferring the name of owner was going on. The complainant incurred Rs. 3, 50,000=00 for repairing work of the damaged vehicle.
Thereafter, OP engaged one Surveyor Hardev Singh who did inspection of the damaged Truck on 30.06.2016 and submitted his survey report to the OP for grant of valid claim of the complainant. Thereafter, on 11.08.2016 OP-Insurance Company sent a letter stating that the Permit of the said damaged truck was not valid at the material time of accident. Thereafter, complainant again submitted the necessary document and prayed for grant of the said amount incurred for the repairing work of his damaged vehicle but with no effect. Complainant alleges that it was a willful and blatant denial on the part of the OP on a false ground of not having a valid permit only to harass the complainant.
Thereafter, on 28.09.2016 the complainant sent a legal notice claiming the said amount. On 25.10.2016 the Advocate of the complainant received one reply from the OP denying vehemently payment of the claimed amount on the ground of not having valid Permit on the date of accident. Finding no other alternative the complainant filed this complaint before this Forum with a prayer for directing the OP to pay Rs. 3, 50,000=00 as compensation with interest.
The complaint is contested by the OP by filing written version denying all the material allegations made by the complainant in his petition of complaint.
The case of the OP is that the complainant opted a Commercial Motor Poloicy for the period from 16.03.2016 to 15.03.2017 for his vehicle. The character of the alleged vehicle is Commercial and as Per M.V. Act, 1988 there must be all valid vehicular documents including Permit in the name of the insured in respect of his vehicle at the material point of time, then insured is indemnified by the Insurer. At the material point of time of alleged accident there was no valid Permit in the name of the complainant in respect of his vehicle. It is found from the copy of permit, it was transferred on 26.05.2016 from Rabindra Agarwal to the complainant and the date of transfer as on 26.05.2016 has clearly been mentioned by the RTA and authorization certificate has also been issued on 25.05.2016 with validity from 25.05.2016 to 15.04.2017. Thus, at the material time of alleged accident on 19.05.2016, there was no valid Permit in the name of the Insured/Complainant, which is a clear case of breach of terms and conditions of the insurance policy. As such the complainant is not entitled to get any compensation from this OP as the complainant has violated the basic terms and conditions of the insurance policy.
That, there is a breach of ‘Limitation as to use – Section’ – “The policy covers nly under a Permit within the meaning of Motor vehicles Act, 1988”. Mere application for Permit does not qualify any vehicle to ply on road. Furthermore, the alleged claim of the complainant is also not admissible since the vehicle in question was parked at a public place without valid Permit.
That, the OP further stated that Permit transfer was allowed in the name of the Insured/Complainant from 26.05.2016 onwards. The claim of the complainant is not at all admissible since Permit was not in the name of the Vehicle Owner at the material time of Accident, as mentioned in the Policy in ‘Limitation as to Use – Section’. Moreover, the complainant did not take due care in safeguarding the vehicle when not in use, which is breach of policy Condition – “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage”. As such the Claim Docket was fit for repudiation and closed.
That, the claim of the complainant with interest is untenable, misconceived and vexatious. The complainant is not entitled to claim and/or recover anything from this OP. furthermore, there is no deficiency in service, negligence and unfair trade practice on the part of this OP and as such the instant complaint is liable to be summarily dismissed against this OP with cost as per provisions of Section 26 of the C. P. Act, 1986.
Decision with reasons:-
To prove this case complainant has filed his evidence-on-affidavit stating the facts, which he has already stated in his petition of complaint. That the vehicle in question got severely damaged on 19.05.2016 by another vehicle on-going vehicle overtaking another dashed head on and damaged the right front side of the complainant’s truck. The truck was at the relevant time was kept parking at the left side of G. T. Road near the complainant’s residence. On the very time of accident, the process of transferring of the vehicle in the name of the complainant was going on, though the permit was valid at the said time of accident. The complainant has incurred expenses for repairing of his damaged vehicle at sum of Rs. 3, 50,000=00. He filed documents to that effect. The complainant submitted all the necessary documents along with bills, vouchers and challans to the Divisional Office of OP after detailed assessment of the damage by the experts. Before that after giving information, the Insurance Company surveyed the vehicle by Hardev Singh, the Surveyor of OP-Insurance Company. The Surveyor had done inspection of the truck on 30.06.2016. On 11.08.2016, OP made correspondence with the complainant stating the facts that permit of the said damaged truck of the complainant was not valid at the material time of accident. Then complainant again submitted necessary documents but with no result. The complainant then sent legal notice on 28.09.2016. Thereafter on 25.10.2016, a reply was received from the OP-Insurance Company that the claimed amount on the ground of not having valid permit on the date of accident was denied. Therefore, complainant filed this complaint before this Forum claiming total compensation of Rs. 3, 50,000=00 along with interest from the OP-Insurance Company.
OP-Insurance Company admitted that complainant Kuldeep Singh opted a Commercial Motor Policy being Policy No. 0315003115P115455953 for the period from 16.03.2016 to 15.03.2017. That the alleged accident took place on 19.05.2016 but the permit being No. NP/WB39/638 was transferred in the name of the complainant on 26.05.2016 from Rabindra Agarwal to the present complainant, i.e., insured Kuldeep Singh and the date of transfer is clearly mentioned as 26.05.2016. The permit was issued on 25.05.2016 with validity from 25.05.2016 to 15.04.2017. Thus, it is found that the material time of alleged accident on 19.05.2016 there was no valid permit in the name of the insured-Kuldeep Singh. Therefore, the complainant is not entitled to get any compensation from the OP. That merely application for permit does not quantify any vehicle to ply on road and the claim is not admissible and therefore OP is not liable to make payment beyond the terms and conditions of the policy. OP prays for dismissal of this case.
After hearing argument from both sides and on perusal of the documents submitted by the complainant we find that authorization of certification of NP (Goods) and validity of basic goods permit was up to 15.04.2017. The authorization was issued on 06.05.2015 and valid throughout the territory of India up to 15.04.2016. It was in the name of Rabindra Agarwal, the previous owner thereafter authorizing of service of NP (Goods) in the name of Kuldeep Singh, the present complainant, validity of NP authorizing was up to 15.04.2017 and validity of basic goods permit also on 15.04.2017. This authorization is issued on 25.05.2016. The name of the permit holder Kuldeep Singh on transfer allowed on 26.05.2016 and valid from 16.04.2012 to 15.04.2017.
Ld. Lawyer for the OP submits the decision of Hon’ble NCDRC reported in I (2015) CPJ 760 (NC) that the vehicle, which was plying at the time of accident without registration certificate, permit and fitness against terms and conditions of policy and provisions of Motor Vehicles Act was violated and repudiation of claim was justified by Hon’ble NCDRC.
Ld. Lawyer for the OP also submitted reference of Hon’ble NCDRC passed on 29.07.2015 in the case of New India Assurance Co. Ltd. Vs. Deepak Jayoti Sharma wherein Hon’ble NCDRC hold that on the date of accident the vehicle was used without route permit and permit was later obtained. The owner of the vehicle in question used the vehicle as claimed by the owner for his personal purpose but strictly since use of vehicle in question at the time of accident was in contravention of Sub-section (1) of Section 66 of conditions of policy, the insured was not entitled to any amount under the policy and awarded amount received by the Respondent/Insured was directed to be refunded to the Petitioner/Insurance Company. This reference is not of use in this case as in this case the OP-Insurance Company failed to prove by any cogent evidence that the vehicle was being used at the time of accident and it was proved by the complainant and also by the report of the Surveyor that the vehicle in question was not in use, rather it was parked at the material point of time of accident.
On the other hand, Ld. Lawyer for complainant submitted the decision of Hon’ble NCDRC in Revision petition No. 1870 of 2015 decided on 14.08.2018 and argued that the accident for which the vehicle got damage cannot be attributed to its being plied without a route permit and therefore, no prejudice would be caused to the Insurance Company on account of the complainant not possessing a route permit. For all the afore-noted reasons we are of the considered view that there is no illegality or infirmity in the concurrent finding of deficiency of service by the Forum. In that judgement with reference to the Apex Court judgement Amalendu Sahoo Vs. Oriental Insurance Co. Ltd. & National Insurance Co. Ltd. Vs. Nitin Khandelwal, the Hon’ble NCDRC considered that the claim could be settled on non-standard basis directing the Insurance Company to pay 75% of the total claim amount to the complainant.
Ld. Lawyer further submits the decision of Hon’ble Apex Court as reported in 2010 (2) Supreme 674 that even assuming that there was a breach of condition of insurance policy, the Insurance Company ought to have settled the matter on non-standard basis as the complainant has obtained comprehensive policy for loss caused to the insurer and company is liable to indemnify the owner. Herein also on the basis of relying on Nitin Khandelwal decision the State Commission allowed 75% of the claim.
In our case, there is no other concrete evidence that the vehicle in question was plying on the relevant time of accident, even from the report of the Surveyor it is clearly found that the vehicle in question was kept on the left side of the road near the residence of the insurer. One vehicle from opposite direction while overtaking another vehicle lost control and dashed head on front side of the insured vehicle. The extensive damages were also reported and summary of assessment comes to the tune of Rs. 3, 53,840=00 by the Surveyor attended by the OP – Insurance Company. There is no other evidence to discard the report of the Surveyor.
After hearing arguments from both sides and on the basis of findings of Hon’ble NCDRC as reported in RP/1870/2015, we are of the view that the vehicle got damage cannot be attributed to its being plied without a valid route permit. We are also with the view that the claim of the complainant can be settled on a non-standard basis and the Insurance Company shall pay 75% of the total claim amount to the complainant, i.e., 75% of Rs. 3, 50,000=00.
With the above observation, hence, it is
O r d e r e d
that the present Consumer Complaint being No. 156/2017 be and the same is allowed on contest in part with a direction to the OP – Insurance Company to pay Rs. 2,62,500=00 (75% of Rs. 3,50,000) along with 8% interest per annum from the date of repudiation, i.e., 11.08.2016 to the complainant within 45 days from the date of passing of this award, failing which, the amount (Rs. 2,62,500 + 8% interest) will carry penal interest @10% per annum for the default period. The complainant is at liberty to put the award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Jayanti Maitra (Ray)
Dictated and corrected by me. President
D.C.D.R.F., Purba Burdwan
(Jayanti Maitra (Ray)
President
D.C.D.R.F., Purba Burdwan
(Sailaranjan Das) (Nivedita Ghosh)
Member Member
DCDRF, Purba Bardhaman DCDRF, Purba Bardhaman
