1. The complaint case has been filed by the complainant against the O.P. who illegally and arbitrarily repudiated the claim causing mental tension, agony, harassment, injury, loss and damages to the complainant.

2. The complainant is the registered owner of passenger vehicle bearing registration no. JH04G4229 having its engine no. 497TC73GXY840242 chassis no. MAT755051C8G29289 and the said vehicle was invoiced with HDFC ERGO General Insurance Company Ltd. under package policy bearing policy no. 2314200551797400000 valid and effective from 29.07.17 to 28.07.14 and the vehicle was new one under the column Registration no. “NEW”. It is further submitted that on 07.11.13 the driver of truck no. BR01GV8661 while driving the said truck rashly and negligently dashed behind the back of the said bus/ passenger carrying vehicle no. JH04G4229 causing injury to the occupant and damages to the vehicle when the said Bus vehicle reached on the downwards of newly constructed Gumra Culvert within the territorial jurisdiction of Kathikund Police Station. The case was also registered in kathikund Police station as Kathikund P.S. Case no. 85/13 dt. 07.11.13 in respect of the said accident and the police during the investigation found the accident true. 

3. The complainant informed the O.P. Insurance Company about the said accident and claim was registered being claim no. C230013076176 and the complainant submitted all the relevant papers filled up claim form to the O.P. The surveyor Sri S.N. Jha appointed by the O.P. Insurance Company inspected the damaged vehicle, assessed loss and damages to the tune of Rs 6.81 lacs submitted its report to the O.P. Insurance Company. The O.P. Insurance Company could not settle the claim and the complainant got pleader notice served on the manager of O.P. Insurance Company through speed post dt. 02.06.14.

4. The O.P. Insurance Company after receiving the pleader notice dt. 02.06.14 sent its reply        dt. 07.07.14 intimating complainant’s learned advocate that the claim of the complainant has been repudiated as vehicle was plying without the permit and the plying of vehicle without permit is violation of as to limitation as to use. Here it is not out of place to mention that the said insurance policy was issued covering the entire risk and liabilities under package policy including own damages claim on a NEW vehicle taking premium of Rs 44,972 from the complainant

5. It is further submitted that as per guidelines contained in the procedural manual of Motor claims clause 10 specifies Non- standard claims and any breach of warranty / condition of policy including limitation as to use comes under non – standard claims and 75% of claim amount is admissible under Non – standard claim but the insurance company has repudiated the entire claim which is in gross negligency and deficiency in services and thereby the O.P. Insurance Company has caused mental tension, agony, harassment, injury, loss and damages to the complainant for which the complainant is entitled to get Rs 1,00,000 as an amount of compensation also. The complainant has claimed following amounts :-

1. Principal Amount of Rs 6,81,000
2. Compensation of Rs 1,00,000
3. Cost of Litigation of Rs 10,000

Total Rs 7,91,000

Beside the said complainant is also entitled to get 18% interest on the claim till its payment.

6. The cause of action arose on 07.11.13 on which date the accident took place and damages has been caused to the vehicle in question and it further arose on 02.06.14 when pleader notice was sent and it also arose on 07.07.14 on which date the O.P. Insurance Company has given reply. The following points has been claimed by the complainant :-

1. To direct the O.P. No. 1 to make payment of Rs 6,81,000 to the complainant as an amount of claim on account of damages caused to the vehicle.
2. To direct the O.P. No. 1 to make payment of Rs 1,00,000 to the complainant as an amount of compensation.
3. To direct the O.P. No. 1 to make payment of interest @ 18% p.a. on awarded amount to the complainant from the date of accident till its realization.
4. To direct the O.P. No. 1 to make payment of Rs 10,000 as per the cost of Litigation to the complainant.
5. And any other relief or reliefs for which the complainant is entitled may be awarded.

7. The O.P. No. 1 HDFC Ergo General Insurance Company Ltd. appeared and filed his WS/so cause on 06.07.15 stating therein that the complainant has no bonafide cause or reason to file this instant complaint case. The present complainant cannot be considered as Consumer as defined u/s 2(1)(d) under the Consumer Protection Act 1986. The present complaint case is frivolous, malafide, baseless and motivated one and the same is liable to be rejected with exemplary cost. The complainant has suppressed the material facts in this case and the complainant has not come to this Learned Forum with clean hands as such he is not entitled to get any relief.

8. It is further submitted that the surveyor S.N. Jha has assessed loss or damages to the tune of Rs 6.81 lacs. He denies this fact. This averment of the complainant is wrong and incorrect. The present suit does not disclose any cause of action and the O.P. submits that insurance is a contract in between the insurer and insured upon certain terms and conditions and in case of violation of any terms and conditions of the policy schedule by the insured, the insurer will not be held liable to indemnify the insured. It is further submitted that the complainant is guilty of deliberate suppression of various material facts which were to the complainant’s knowledge and also has deliberately misrepresented the true facts only to seek favorable order from this court.

9. There is no deficiency on the part of O.P. and the present case is fit to be rejected. It is further submitted that the complainant case is of alleged deficiency in services on the part of opposite party Insurance Company for arbitrarily repudiating the insurance claim in respect of the Passenger carrying Bus vehicle no. JH04G/4229 which met with an accident on 07.11.13. The Insurance claim was repudiated on the ground that on the date of accident, the vehicle was not having route permit as required u/s 66 of the Motor Vehicle Act. The complainant got his vehicle insured with this Insurance Company under certain terms and conditions were the essence of the contract.

10. Insurance is a contract in between the insurer and insured upon certain terms and conditions and there should not be breach of any of the conditions of the contract. In case of violation of any of the terms and conditions of the policy schedule by the insured, the insurer will not be held liable to indemnify the insured and to compensate such deficient complainant.

11. In the instant case the policy schedule it is mentioned as under –“ Limitation as to use – The policy covers use of the vehicle only under a permit within the meaning of the MV Act, 1988 or such carriage falling under sub- section(3) of section 66 of MV Act. And it is specifically mentioned that in this policy that the insured is not indemnified if the vehicle is used for driven otherwise than in accordance with this schedule. Copy of the policy schedule and the terms and conditions are annexed as Annexure A and B.

12. It is further submitted that the complainant on receipt of the claim intimation had appointed an independent surveyor duly licensed with IRDA (Insurance Regulatory Development Authority) Govt. of India was appointed for survey who in his turn found that the vehicle neither had a valid route permit as required u/s 66 of the MV Act nor did the person driving it possessed a valid and effective driving license to drive this vehicle which required a PSC endorsement by the competent authority. The copy of this surveyor’s report is annexed as Annexure C. It is further submitted that the surveyor requested the complainant to furnish the document of effective route permit and valid driving license but till the process of claim the complainant did not submit the said documents. The complainant has himself filed the letter addressed to the complainant dt. 14.11.13 wherein the route permit and repairer’s estimate was sought.     

13. The complainant being the registered owner of the insured vehicle is under a legal obligation to ascertain that all the mandatory documents necessary for plying the vehicle on the road and non adherence of the same reflects the malafide intent of the insured. It is further submitted by the O.P. that there is no deficiency in services and hence the present complaint case is fit to be rejected. It is further submitted that plying of the insured vehicle without permit being a breach of the terms and conditions of the policy forced the O.P. to treat the said claim as no claim as because the insurance company was unable to process the claim in absence of the said documents. And the complainant has not suffered any injury or harassment and he has not submitted any evidence in respect of the claim on account of mental agony rather all are nothing but a cock and bull story. 

14. The O.P. No. 2 HDFC Bank Ltd. Dumka Branch has appeared and filed his so cause/ ws on 30.05.17. And he has further submitted that the O.P. no. 2 HDFC Bank ltd. a corporate body having its registered office at HDFC bank Ltd., HDFC Bank House, Senapati Bapat  Marg, Lower Parel (west), Mumbai 400013 is licensed by the Reserve Bank of India to carry on the banking services in India and is widely acclaimed for its reputation and services. The borrower of the loan and the lender are bound by the terms and conditions applicable for the loan stipulated under the agreement.

15. It is further submitted that the present complainant is not a Consumer within the meaning of Consumer Protection Act, 1986. That since the complainant had availed only loan facility from the answering O.P. and hence the relation was that of debtor and creditor. The law is well settled that where the relationship between the parties is that of debtor and creditor as in the instant case the Consumer Protection Act, 1986 cannot apply and as such the complaint is liable to be dismissed. It is further submitted that there is no specific allegation against the O.P. and the claim of the complainant is against the Insurance Company only which is O.P. No. 1.

16. It is further submitted that the answering O.P. being the financer has no role in the issuance of the policy to the complainant. It is further submitted that HDFC and HDFC Ergo General Company Ltd. are two separate business entities and one cannot be held liable for the act of the other and the O.P. No. 1 and 2 has principal and principal relationship and that the answering O.P. being the financer has no role in issuance of the Insurance policy. This for any grievance of the complainant concerning the alleged insurance policy the O.P. No. 1 is only answerable for the same. It is further prayed that the case may be dismissed with respect to the insured O.P. and the name of insured O.P. be expunged from the instant complainant case.

17. The main point for the determination in this case is that whether the complainant is entitled to get any relief or reliefs as claimed !

                                       Findings

The complainant in support of his case has filed oral and documentary evidence both to establish his case which are as follows.

 CW1 – Ramanand Jha, his affidavit was filed as an evidence

And apart from that some documentary evidence has  been filed which are as follows :-

Exhibit 1 – is the reply of legal documents by HDFC Ergo Company Ltd. dt. 07.07.14

Exhibit 2 – is the certificate cum policy schedule issued by HDFC Ergo General Insurance Co. Ltd. from the period of 29.07.13 to 28.07.14

Exhibit 3 – is the letter issued by S.N. Jha, surveyor to Ramanand Jha dt. 14.11.13

Exhibit 4 – is the photocopy of estimates given by Sarju Mistry

Exhibit 5 – is the legal notice by the complainant to the O.P. dt. 02.06.14

Exhibit 6 – is the photocopy of surveyor’s copy of order sheet of G.R. Case No. 1620/13, Kathikund P.S. Case No. 85/13.

Exhibit 7 – is the photocopy of certified copy of F.I.R. of Kathikund P.S. Case No. 85/13 dt. 07.11.13. Total 3 sheets.

Exhibit 8 – is the charge sheet filed of Kathikund P.S case No. 85/13 in G.R. Case No. 1620/13.

Exhibit 9 – is the confirmation of publication notice regarding permit.

The O.P. No. 1 has filed oral and documentary evidences in support of his case which are as follows :-             

O.P. witness No. 1 – Shyamanand Jha and also filed an affidavit.

O.P. witness No. 2 – Shaswat Banerjee, his affidavit was also filed as a witness in this case.

Apart from that no other oral or documentary evidence has been filed on behalf of the O.P. No. 1 although in his so cause he has described about some annexus but that annexus has not been found on record and also not with the so cause.

18. From carefully scrutinizing and analyzing the evidence and documents adduced on behalf of both the parties and also after hearing the arguments advanced by Learned Lawyer of both the parties and I have also gone through the case record. It is admitted fact that complainant’s vehicle no. JH04G4229 was insured by O.P. No. 1 i.e; HDFC Ergo General Company Ltd. as corroborated with Exhibit 2 which is insurance policy valid during 29.07.13 to 28.07.14. It is also admitted fact that the said vehicle met with an accident on 07.11.13 as it is apparent from Exhibit 6, 7 and 8 which is photocopy of certified copy of order sheet of G.R. Case No. 85/13, photocopy of certified copy of the F.I.R. of Kathikund Case No, 85/13 dt. 07.11.13 and photocopy of charge sheet filed in Kathikund P.S. Case No. 85/13 corresponding to G.R. case No. 1620/13 respectively.

19. It is further admitted fact that the complainant claim was registered as claim no.  C 230013075176. The dispute is simply that claim of the complainant was repudiated by the O.P. No. 1 that is HDFC Ergo General Insurance Company Ltd. Therefore, repudiating the claim of the complainant merely on the ground that vehicle was plying without permit which is violation of limit to use clause. It is also argued that on behalf of the O.P. No. 1 that he appointed the surveyor regarding the loss and damages caused to the vehicle. He, S.N. Jha was the surveyor who inspected and assessed the total reasonable expenses of the said vehicle to be Rs 2,25,000 and he also submitted as total surveyor’s report to the O.P. No. 1

20. O.P. witness No. 1 is none other but S.N. Jha, the said surveyor. Exhibit 3 is a letter by S.N. Jha dt. 14.11.13 to the complainant by which he has asked the informant regarding root permit and reports estimates. The O.P. witness no. 2 who is legal manager of HDFC Ergo General Insurance Co. Ltd. has supported this fact in Para 5, 6, 7, 8 and 9 that vehicle was plying on the road and on receiving all the information regarding accident the company appointed S.N. Jha and duly licensed IRDA to survey and assess the loss if any of the said vehicle. S.N. Jha conducted the survey and assessed the total reasonable repairing responses of the said vehicle to the tune of Rs 4,55,000 only and repeatedly demanded the vehicular documents from the insured Ramanand Jha but he failed to submit the valid route permit. The driver, Prayag Mahto who was driving the vehicle at the time of the accident was not holding valid PSV License at the material time of loss and the insured Ramanand Jha failed to submit the valid route permit till the disposal of the claim.

21. In para 11 this witness has clearly stated that insured Ramanand Jha was not holding valid route permit at the material time of loss as reported and hence the insurer’s liability does not arise in this case. On the other hand the complainant has submitted that the said Insurance policy was issued by covering risk and liabilities including own damages claim at a new vehicle taking premium of Rs 44,972 from the complainant. And as per guidelines, terms and conditions in the procedural manual of Motor Vehicle Act claimant clause 10 specifies non standard claim and any breach of warranty/ condition of the policy including limitation as to use comes under non standard claims and 75% of the claim amount is admissible under non standard claim but the Insurance Company has repudiated the entire claim which is in the gross negligence and deficiency in services.

22. On the other hand, the Learned Lawyer for the O.P. No. 1 has submitted and also drew the attention of this Forum towards Exhibit – 2 which is certificate of Insurance – cum – policy – schedule relating to the vehicle concerned, it is apparent that this vehicle was insured from 29.07.13 to 28.07.14 and the said vehicle was met with an accident on 07.11.13 during the insured period. From going through the limitation to use clause it is specifically mentioned that the policy covers use of the vehicle only under a permit within the meaning of the Motor Vehicle Act, 1988. So far as permit is concerned it is clear and also admitted by the complainant that at the time of the accident there was no valid permit. It is submitted on behalf of the complainant that he had applied for route permit to the office of the said transport officer on 12.09.13. And he has also drew the attention of the court towards Exhibit – 9 which is justification notice regarding route permit.

23. Apparently this was applied on 12.09.13 which is after 4 days of the said accident and case has been filed to this Forum on 12.12.14. It means after lapse of more than 1 year he has not got or received the permit from the competent authority. He has clearly filed the terms and conditions of the policy schedule that is limitation as to use. Plying the vehicle without valid terms as required u/s 66 of Motor Vehicle Act is also violation of Motor Vehicle Act. The surveyor by his letter which is Exhibit 3 has also asked from the complainant regarding the route permit but he has failed to submit the route permit till the filing of this case from applying from route permit there was sufficient time which was for more than 1 year. In that period he could not get the route permit from the competent authority.  And repeatedly asking by the O.P. regarding the route permit the complainant could not file or produce the route permit before him and lastly O.P. No. 1 repudiated the claim of the complainant.

24. In support of this contention O.P. No. 1 has filed certain case law which is pronounced by National Commission and also by Hon’ble Apex court of India which are as follows : -

1. Revision No. 969 of 2011 of National Commission decided on 29.08.12
2. Kalyan Singh Chauhan Vs. National Insurance Company Ltd. decided by National Commission on 20.05.14
3. Narinder Singh Vs New India Assurance Company Ltd. decided by Hon’ble Supreme Court on 04.09.14
4. New India Assurance Company Ltd. Vs Meenakshi Jarial decided by National Commission on 15.12.15
5. Amrit Paul Singh Vs TATA AIG General Insurance Co. Ltd. decided by Supreme Court on 17.05.18.

25. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in revision no. 969 of 2011 decided on 25.11.10 clearly held in Para 6 that it is established beyond doubt that on the date of accident, the vehicle neither had a fitness certificate nor did the person driving it possesses a valid and effective certificate driving license to drive the vehicle which required a special endorsement by the competent authority. In this view of the matter the ratio laid down by their Lordships of the Hon’ble Supreme Court in the cases of Angag Kol and Ors, Prabhu Lal, Kusum Rai and Chandanma II Jain and Anr. (Supra) is fully applicable and hence the claim of the respondents cannot be allowed even on non – standard basis.

26. Another case, National Commission Redressal Forum, Kalyan Singh Chauhan Vs. National Insurance Company decided on 29.02.12 has clearly held that it is clear that in this case fundamental breach of terms and conditions of the insurance contract. Therefore, we do not find any jurisdictional error or material irregularity in the order of the State Commission which may call for interference by this Commission. In this case the said vehicle has violated section 39 of Motor Vehicle Act. The section also casts an obligation on the owner of the Motor Vehicle not to permit the vehicle to be driven at a public place without registration.

27. The Hon’ble Supreme Court of India in a case of Narinder Singh Vs New India Assurance Company Ltd. which was decided on 4^th September 2014 he has clearly stated that in Para 5 that after hearing parties on either side and scanning the record of the case meticulously, the District Forum allowed the complainant and directed the respondent Company to indemnify the complainant to an extent of 75% of Rs 4,30,037 along with interest @ 9% p.a. thereon with effect from the date of filing of the complainant. Aggrieved by the decision of the District Forum, respondent company as well as appellant complainant approached State commission by its common order disposed of both the appeals allowing appeal of the company and dismissing the complaint of the complainant due to which the appeal preferred by the appellant complainant was dismissed as infructuous. During discussion the Hon’ble Supreme Court also held that at the time of accident the vehicle was being driven without registration which is prohibited u/s 39 of Motor Vehicle Act, 1988 and also an offence u/s 192 of the said act. After discussion it was held by the Hon’ble Court, “In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable u/s 192 of the Motor Vehicle Act but also a fundamental breach of the terms and conditions of policy contract.”

28. The National Consumer Dispute Redressal Commission, New Delhi in case revision no. 1888 of 2013 decided on 05.02.13 in New India Assurance Co. Ltd. Vs. Meenakshi Jarial it is held that the registration of the vehicle was carried out on 20.03.07 and the permit for the same was granted w.e.f 05.03.07. The case of the complainant/ respondent is that following some dispute with the dealer, the sale letter of the vehicle was issued on 11.12.06.It was made by the Hon’ble Apex Court and this commission that it has been held from time to time that the claims are not payable if there is no valid registration certificate, fitness certificate or route permit for the said vehicle it is quite evident that there is violation of the statutory provisions of law contained in the Motor Vehicle Act on the part of the complainant. Relying upon the judgment it is clear that there is no justification for allowing the complainant even on a non standard basis. The violation of the statutory provisions of law cannot be permitted and hence the claim cannot be allowed even to a limited extent.

29. In another case the Hon’ble Supreme court has decided in Amrit Pal Singh Vs. TATA AIG Genral Insurance Company Ltd. on 17.05.18 the Hon’ble Supreme Court has clearly held that in the case at hand it is clearly demonstrable from the material brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out u/s 66 of the Motor Vehicle Act needless to emphasize are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without the permit is a fundamental statutory infraction. We are disposed to think so in view o the series of exceptions carved out in section 66. The said situation cannot be equated with absence of license or a fake license or a license for different kind of vehicle or for that matter violation of a condition of carrying more number of passengers and the appeal was dismissed.                

30. From carefully going through the above case laws, it is clearly stated that plying the vehicle without permit is a fundamental breach of terms and conditions and complainant cannot be compensated for any loss caused due to accident. On behalf of the complainant although some case has been cited but he has not produced or filed his case before the commission before its perusal.

31. Considering the above discussion we come to the conclusion that complainant has violated the terms and conditions of the policy like limitation as to use in which it is clearly mentioned that for plying the vehicle the route permit is mandatory and the complainant deliberately surpassed this fact which is very material and also deliberately misrepresented the true facts only to seek the favorable order. The complainant has violated the terms and conditions of the policy schedule and for this act insurer will not be held liable to indemnify the insured and to compensate such deficient complaint.

32. It is therefore,              

                                             Ordered

That this complaint case is here by dismissed on contest without cost.

                 Let the copy of this judgment be supplied to both the parties free of cost.

The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

File to be consigned to record room along with copy of this judgment.