DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.362 of 04-09-2015

Decided on 05-12-2017

Jot Singh S/o Nirmal Singh R/o Street No.2, Paras Ram Nagar Near Aroma Palace, Bathinda.

........Complainant

Versus

1.The New India Insurance Company Limited, Divisional Office, 2090, The Mall, Bathinda, through its Divisional Manager.

2.Cholamandlam Investment & Finance Co. Ltd. (Formally Cholamandlam DBS Finance Ltd.), having its Registered office at Dera, House No.2, NSC Bose Road, Parris Chennai and having its Branch Office at Jindal Complex Near Hanuman Chowk Opposite Madan Hospital, G.T Road, Bathinda, P.S Civil Lines, Bathinda through its Power of Attorney Holder & Process Incharge Legal Co-ordination Mr.Sameer Ahmed.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the complainant: Sh.Rajesh Bansal, Advocate.

For opposite party No.1: Sh.M.L Bansal, Advocate.

For opposite party No.2: Sh.K.K Vinocha, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Jot Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties The New India Insurance Company Limited and Other (here-in-after referred to as opposite parties).

2. Briefly, the case of the complainant is that he was owner of canter bearing registration No.PB-03V-0757. It was registered in his name. He was plying this vehicle for carriage of the goods to earn the livelihood of his family. He is having a valid all India route permit for carriage of goods vide permit No.PB-03/022014/33618/NP/RTA/BTI, which was valid w.e.f. 31.5.2011 to 30.5.2016.

3. It is alleged that the complainant got his vehicle insured with opposite parties vide insurance policy No.36060131120100006363, which was valid w.e.f. 23.3.2013 to 22.3.2014. He deposited the requisite premium with opposite parties. The total I.D.V of the vehicle was Rs.7 lakhs.

4. It is further alleged that on 26.1.2014, the driver of the vehicle namely Naresh Kumar S/o Chiman Lal had taken the canter to Delhi for unloading the wooden logs. After unloading the wooden logs at the destination, he was scheduled to return back from Delhi to Bathinda on 27.1.2014 after loading some goods from Delhi Punjab Goods Carrier Transport Near Aakhira Fly over. The driver reached near the fly over on 27.1.2014 at about 10:30 P.M for loading the goods. He was told that during night, the vehicle will not be loaded and it will be loaded on the next morning. As such, he parked the vehicle by the side of the road on Rohtak-Zakira road. After having meal, he was lying asleep inside the cabin of the canter. At about 3:45 A.M, three unknown persons boarded the cabin of the canter and after giving merciless beatings to the driver, took the canter alongwith driver after kidnapping him. After sometime, they dropped the driver and took the canter. They also took purse of the driver containing Rs.15,000/- in cash, driving licence and other documents including the documents of the canter.

5. It is further alleged that on the basis of statement of the driver Naresh Kumar, F.I.R No.63 dated 28.1.2014 was registered against unknown persons U/s 365/392/34 I.P.C with P.S Moti Nagar, West Delhi. The complainant intimated opposite parties about the occurrence and snatching of his vehicle. He lodged the insurance claim with opposite parties vide claim No.3606013110190000391 and supplied them all the requisite documents and requested them to honour his claim. As per complainant, his vehicle has not been traced by the police till date. He also procured the untrace report from the concerned S.H.O, P.S, Moti Nagar on 6.10.2014 and submitted the same to opposite parties. He also supplied the copy of the final report form U/s 173 Cr.P.C, but opposite parties have failed to honour his claim. After putting off the matter on one or other pretext, they repudiated his lawful claim vide letter dated 15.7.2014 on the ground of non validity of permit as on the date of snatching.

6. It is further alleged that the repudiation letter dated 15.7.2014 is totally wrong, illegal, null and void, ineffective and inoperative as against the rights of the complainant and it is based upon false facts in order to avoid liability by opposite parties. The vehicle in question was having a valid permit of carriage of goods in all India vide permit No.PB-03/022014/33618/NP/RTA/BTI, which was valid w.e.f. 31.5.2011 to 30.5.2016. The complainant also obtained the verification for the permit from the office of Registration Authority, Bathinda vide letter dated 13.7.2015. He also supplied the copy of the verification to opposite parties with the request to honour his claim, but they have flatly refused to his request.

   It is also pleaded that due to this act and conduct of opposite parties, the complainant is suffering from great mental tension, agony and botheration etc. He has claimed insurance claim to the tune of Rs.7 lakhs; compensation to the tune of Rs.1 lakh and cost of litigation to the tune of Rs.22,000/-. Hence, this complaint.

7. Upon notice, opposite party No.1 contested the complaint by filing the written version. Opposite party No.2 has suffered statement that it did not want to file written version as its dues have been cleared by the complainant.

8. In the written version, opposite party No.1 has raised the legal objections that the complaint has been filed by the complainant only to injure its goodwill and reputation. The complaint is false, frivolous and vexatious to the knowledge of the complainant. Opposite party No.1 is entitled to special costs from the complainant U/s 26 of 'Act'. The intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act'. The appropriate remedy, if any, lies only in the civil court. The complainant has concealed the material facts and documents from this Forum. He is not entitled to any relief.

   As per opposite party No.1, on receiving the intimation regarding theft, which allegedly took-place on 28.1.2014 at Delhi, it deputed the investigator. He submitted his report. Thereafter the complainant was asked to submit the relevant documents required for processing and settlement of claim, but he has failed to submit the relevant documents. Ultimately, opposite party No.1 closed the claim file of the complainant. The intimation was given to the complainant vide registered letter dated 27.10.2014. Thereafter he moved an application dated 5.1.2015 with the request to re-open his claim file. Earlier he could not submit the relevant documents as these were not in his possession. Accordingly, his claim file was re-opened. On submission of relevant papers, his claim was processed and while perusing the relevant documents submitted by him, it transpired that he has submitted all India route permit No.PB-03/022014/33618/NP/RTA/BTI valid up to 30.5.2016.

9. It is pleaded that opposite party No.1 got the permit verified from the office of issuing authority. They have clearly stated that this permit has been issued on 14.2.2014 and it is valid up to 30.5.2014, which clearly shows that as on the date of loss i.e. 28.1.2014, this permit was not valid and as on the date of loss, insured was not having valid permit for Delhi. Accordingly, his claim was repudiated on the basis of non-validity of permit as on the date of loss. The intimation in this regard was given to the complainant vide registered letter dated 15.7.2015.

   Further legal objections are that complainant is not 'consumer as defined under 'Act'. He has violated the terms and conditions of the policy. He is not entitled to any claim. He has no locus-standi or cause-of-action to file this complaint. The complaint is not maintainable. There is no deficiency in service or unfair trade practice on the part of opposite party No.1. It is reiterated that the insured vehicle was plied for the commercial purpose i.e. to earn the huge profits. As such, this dispute does not fall within the ambit of 'Act'. The complaint is liable to be dismissed on this ground alone.

10. On merits, it is not denied that the complainant is registered owner of vehicle in question, but it is stated that it is matter of record. It is further reiterated that the insured vehicle was being plied by the insured for the commercial purpose to earn the huge profits. It is denied that the route permit was valid at the time of loss or is valid from 31.5.2011 to 30.5.2016. All other averments of the complainant are denied. Opposite party No.1 has reiterated its stand as taken in the legal objections and detailed above and prayed for dismissal of complaint.

11. Parties were asked to produce the evidence.

12. In support of his claim, the complainant has tendered into evidence his affidavits dated 4.9.2015 and 17.11.2015, (Ex.C1 and Ex.C2) photocopy of R.C, (Ex.C3); photocopy of permit, (Ex.C4); photocopy of policy schedule, (Ex.C5); photocopy of F.I.R, (Ex.C6); photocopy of final report form, (Ex.C7); photocopy of untraceable report, (Ex.C8); photocopy of fresh untrace report, (Ex.C9); photocopies of letters, (Ex.C10 and Ex.C11); photocopy of national permit, (Ex.C12) and closed the evidence.

13. On the application of the complainant, clerk of Secretary, RTA Office, Bathinda was summoned with record. He has deposed that national permit, copy of which is Ex.C12, was issued on 14.2.2014 and valid up to 30.5.2014. It is further deposed by the witness that national permit was issued for 5 years subject to validity of national permit authorization. He has also proved the report on application, (Ex.C11).

14. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Ashwani Kumar dated 16.10.2015, (Ex.OP1/1); photocopies of letters, (Ex.OP1/2 to Ex.OP1/5 and Ex.OP1/15); photocopy of circular, (Ex.OP1/6); photocopies of letters, (Ex.OP1/7 and Ex.OP1/8); photocopies of verification of permit, (Ex.OP1/9 to Ex.OP1/11); photocopy of route permit, (Ex.OP1/12); photocopy of investigation report, (Ex.OP1/13); photocopy of verification of R.C, (Ex.OP1/14); photocopies of insurance policy, (Ex.OP1/16 and Ex.OP1/17); photocopy of collection receipt, (Ex.OP1/18) and closed the evidence.

15. We have heard learned counsel for parties and gone through the file carefully.

16. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the material facts are not in dispute. It is not disputed that the complainant is owner of canter bearing registration No.PB-03V-0757. It is not disputed that the vehicle was insured with opposite party No.1. The insurance was valid from 23.3.2013 to 22.3.2014.

17. It is further submitted by learned counsel for complainant that as per complainant, on 27.1.2014, some unknown persons took the canter forcibally and kidnapped the driver. FIR No.63 dated 28.1.2014 was registered against unknown persons at Police Station Moti Nagar, West Delhi. The complainant lodged the claim with opposite party No.1 and completed all the requisite formalities. Opposite party No.1 has repudiated the claim vide letter dated 15.7.2015, (Ex.C10) on the ground of non-validity of permit on the date of snatching.

18. It is further submitted by learned counsel for complainant that the act of opposite party No.1 in repudiating the claim is illegal. The complainant has produced on record copy of permit, (Ex.C4). It was valid up to 30.5.2016 for all India. The complainant has also obtained the verification report regarding validity of permit, copy of which is Ex.C11. It was verified that all India permit was valid up to 30.5.2016. The complainant has also produced on record permit, (Ex.C12), which proves that state permit was valid up to 30.5.2014. The theft is dated 27.1.2014. Therefore, all these documents prove that the complainant was having valid permit.

19. It is further submitted by learned counsel for complainant that although, as per CW Vivek Rattan, authorization of permit was not valid on 28.1.2014, but this fact will not make the permit invalid.

20. It is further submitted by learned counsel for complainant that opposite party No.1 has also placed on record copy of letter (circular), (Ex.OP1/6) of regional office in reference to liability of company in Motor OD Claim in the absence of permit. As per Paragraph No.2 where the commercial vehicle was having permit, but incident occurred after expiry of permit, claim can be considered for settlement on compromised basis up to 75% amount of admissible claim and in case of total loss due to theft or accident, renewed permit shall not be insisted upon. Therefore, if opposite party No.1 was of the opinion that the complainant was not having valid permit, his case was covered under this circular, but opposite party No.1 has totally declined the claim, which is not sustainable. Opposite party No.1 has illegally repudiated the claim. Therefore, the complainant is entitled to compensation as claimed for.

    To support these submissions, learned counsel for complainant has cited following case law:-

    i) 2007(1) CPJ 90 Om Parkash Baghel Vs. Oriental Insurance Co. Ltd.;

    ii) 2012(3) CPR 169 National Insurance Company Ltd. Vs. Sh.Krishan Chand & Anr.;

    iii) 2010(1) CPC 653 (SC) Amalendu Sahoo Vs. Oriental Insurance Co. Ltd.;

    iv) 2008 (7) SCALE 351 National Insurance Company Limited Vs. Nitin Khandewal;

    v) 2013(2) CPC 297 (NC) National Insurance Company Limited Vs. Jaswant Singh;

    vi) 2017(2) CPR 252 (NC) National Insurance Company Limited Vs. Jogesh Roy & Anr.

21. On the other hand, learned counsel for opposite party No.1 has submitted that the insurance is contract. The parties are bound by terms and conditions incorporated in the policy. The complainant himself has relied upon the policy schedule-cum-certificate of insurance, (Ex.C5). The limitations as to use of the vehicle are briefed in this document. It is categorically mentioned that the policy covers use only under a permit within meaning of Motor Vehicles Act 1988 or such a carriage falling under Sub-section 3 of Section 66 of the Motor Vehicles Act 1988. Therefore, liability of opposite party No.1 is only in case the complainant was having a valid permit. As per complainant himself, incident took-place in Delhi. Therefore, he was required to have permit for carrying the vehicle in the area of Delhi. He has produced verification, (Ex.C11) and permit, (Ex.C12). Although, as per verification, (Ex.C11), the complainant was having all India permit valid up to 30.5.2016, but CW Vivek Rattan has deposed on his examination-in-chief that the validity of permit is subject to validity of national permit authorization and he has also admitted that the authorization of permit was not valid on 28.1.2014 i.e. date of incident. Opposite party No.1 has also obtained verification report, (Ex.OP1/9). As per this report also, permit authorization was valid from 14.2.2014 to 30.5.2014 meaning thereby permit authorization was not valid on 28.1.2014. Therefore, there was violation of the terms and conditions of the policy. As such, opposite party No.1 was not liable as per terms and conditions of the policy. Therefore, there is no illegality in the order of repudiation.

22. We have given careful consideration to the rival submissions and gone through the case law cited by learned counsel for complainant.

23. Some facts are not disputed. It is not disputed that the complainant is owner of canter bearing registration No.PB-03V-0757. It was got insured with opposite party No.1 and insurance policy was valid w.e.f. 23.3.2013 to 22.3.2014. The theft of the vehicle took-place on the night of 27.1.2014. The claim of the complainant was repudiated by opposite party No.1 vide letter dated 15.7.2015, (Ex.C10). A perusal of this letter reveals that opposite party No.1 got verified all India permit of the complainant from the issuing authority and on the date of loss i.e. 28.1.2014, permit was not valid for Delhi. Opposite party No.1 has repudiated the claim on the basis of non-validity of permit as on date of snatching. Therefore, the entire controversy involves around the fact that whether opposite party No.1 is justified on the basis of non-validity of permit or not.

24. It is also worth mentioning that the complainant has placed on record copy of permit, (Ex.C4) to prove that the permit was valid up to 30.5.2016. When this permit alongwith verification report, (Ex.OP1/11) is examined in the light of statement of Vivek Rattan, clerk of the office of RTA It is clear that national permit is issued for 5 years subject to validity of national permit authorization. Therefore, permit was valid up to 30.5.2016, but subject to validity of national permit authorization and authorization is for 3 months. Vivek Rattan has also stated that authorization of the permit was not valid on 28.1.2014. Therefore, it is not case of validity of permit, but case of validity of authorization.

25. Opposite party No.1 has also relied upon letter dated 3.4.2013, (Ex.OP1/6) which relates to liability of company in Motor OD Claim in the absence of permit. Paragraph 2 of this letter will also help to solve the controversy. For sake of convenience, this paragraph is reproduced as under:-

    “Where a commercial vehicle has a valid permit but the accident has occurred after the expiry of this permit, the claims can be considered for settlement on compromised basis up to 75% of the admissible claim subject to submission of renewed permit.

    However for the total loss claims (due to theft or accident) the renewed permit shall not be insisted upon.”

26. In case of Amalendu Sahoo (Supra), Hon'ble Supreme Court of India has considered the matter in issue and observed that in case of violation of conditions of policy as to nature of use of vehicle claim ought to be settled on non-standard basis.

    Hon'ble National Commission in case of Jaswant Singh (Supra) also observed that permit for plying of vehicle has no connection with the cause of accident and claim is payable on non-standard basis to the extent of 75% with interest.

    Similarly, in recent decision rendered by Hon'ble National Commission in case of Jogesh Roy & Anr. (Supra), it was held that the claim could not be repudiated on the ground that the vehicle did not possess permit on the date it met with accident.

27. Therefore, keeping in view the legal position and circular of opposite party No.1, it can be safely concluded that opposite party No.1 was not justified to repudiate the claim for want of permit authorization and it was to be settled on non-standard basis. The policy schedule-cum-certificate of insurance shows that I.D.V of vehicle is Rs.7 lakhs. The complainant is entitled to 75% of I.D.V of Rs.7 lakhs i.e. Rs.5,25,000/-. Opposite party No.1 has repudiated the claim illegally vide letter dated 15.7.2015. Therefore, the complainant is also entitled to interest @ 9% per annum on this amount from the date of repudiation of claim till payment.

28. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party No.2. Opposite party No.1 is directed to pay Rs.5,25,000/- ( 75% of I.D.V of Rs.7 lakhs) with interest @ 9% per annum from the date of repudiation of claim till payment, to the complainant. Opposite party No.1 is at liberty to get signed the required documents regarding transfer of ownership of vehicle in question from the complainant and complainant is bound to do the same.

29. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

30. The complaint could not be decided within the statutory period due to heavy pendency of cases.

31. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    05-12-2017

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member