Sri Subhra Sankar Bhatta, Judicial Member

The present appeal under Section 15 of the Consumer Protection Act, 1986 has been directed at the behest of the Appellant viz. Bajaj Allianz General Insurance Company Limited, Khargapur Branch who was the Opposite Party No. 1 before the District Consumer Disputes Redressal Commission, Paschim Medinipur (hereinafter referred to as the “District Commission” for short) challenging the impugned judgment and order dated 14.08.2019 passed by the Ld. District Commission in connection with Consumer Complaint Case No. CC/21/2018 wherein Ld. District Commission was pleased to pass the following order:-

“that the complaint Case No. CC/21/2018 be and the same is allowed on contest against the OP No. 1 and ex parte against OP No. 2 with a litigation cost to be paid by OP No. 1. The Complainant is entitled to get Rs. 5,25,021/- towards repairing cost and Rs. 40,000/- towards compensation. The O.P No. 1 is directed to pay Rs. 5,25,021/-+Rs.10,000/-+Rs.40,000/- i.e. Rs. 5,75,021/- in total by A/C Payee Cheque in the name of the complainant within one month from this day, failing which the said amount shall carry interest at the rate of 9% per annum from the date of filing of this case i.e. on and from 22.2.2018 till realization and shall also deposit a sum of Rs. 10,000/- in the Savings Bank A/C of Consumer State Welfare Fund, W.B. towards penalty for the benefit of deprived consumers at large. The complainant will be at liberty to realise the entire amount by putting this order into execution in accordance with law.

Let the original documents, if any and the extra sets, if any be returned to the parties on proper receipt and identification.

Let a plain copy of this order be supplied to the parties free of cost on proper acknowledgment or be sent by Speed Post, if not collected by the parties within 10 days from the date of order.”

Respondent Sri Mani Sankar Maity as Complainant instituted the petition of complaint under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties viz. Bajaj Allianz General Insurance Company Limited (Appellant herein) and Punjab National Bank (Respondent No. 2 herein) and prayed for redressal as sought for in the prayer portion of the complaint.

Case of the Complainant, in a nut-shell, is that he is the registered owner of one vehicle/Bolero having registration no. OD-01R/3299.  OP no. 1/Bajaj Allianz General Insurance Company Ltd., and  OP no. 2/Punjab National Bank, Keshiary Branch are respectively the Insurer and  the Financer of the said vehicle.  It is the specific case of the Complainant that the said Insured vehicle met with a road traffic accident on 01.09.2017 near Aguiboni under Garhbeta Police Station and as a result of which the vehicle was badly damaged.  The said vehicle was shifted to the Garage namely Star India Agency Pvt. Ltd., in a damaged condition for repairing.  It is also the case of the Complainant that he informed the factum of accident to the Opposite parties and also submitted claim application before the OP no. 1. The OP no. 1 appointed Surveyor for enquiry and after spot survey the damaged vehicle was shifted in the show room of Mahindra & Mahindra Company, Khargapur.  The Expert Mechanic of Mahindra & Mahindra Company submitted an estimation of Rs. 7,76,232/- for the damage.  Thereafter, the Complainant deposited damaged estimated cost along with copy of Blue Book, Route Permit and Driving Licence before the authority concerned.  It has been candidly contended that the Complainant was the Driver of the said vehicle having valid Driving Licence. Despite depositing all the relevant papers in the office of the OP no. 1/Insurance Company they did not pay any heed and act upon the claim of the  Complainant.  Complainant  also went to the office of the Insurance Company time and again but they did not act upon the claim of the Complainant.  Ultimately, OP no. 1/ Insurance Company repudiated the claim of the Complainant by sending letter dated 05.01.2018. Under such circumstances and finding no other alternative the Complainant instituted the petition of complaint before the District Consumer Disputes Redressal Forum at Paschim Medinipur on 22.02.2018 for redressal and relief.

OP no. 1 /Bajaj Allianz Insurance Company Ltd., contested the complaint case by filing written version wherein they denied all the material allegations brought against them in the body of the petition of complaint.  Specific version of OP no. 1 is that the vehicle in question is a tourist vehicle and used for commercial purposes and as such the Complainant cannot be treated as a Consumer under the Consumer Protection Act.  It has been alleged that the Complainant has no cause of action or reason to file the petition of complaint against the OP; that the petition of complaint filed by the Complainant is not at all maintainable in its present form and prayer; that the petition of complaint is hopelessly barred by the Law of Limitation; that the Ld. DCDRF, Paschim Medinipur has had no territorial jurisdiction to try the complaint petition as per provision of the Consumer Protection Act.  It has been categorically stated that despite repeated demand the Complainant did not produce valid route permit relating to that vehicle in question. Ultimately,  the OP no. 1/Insurance Company repudiated the claim of the Complainant following the terms and conditions of the policy.  According to the OP/Insurance Company there was no deficiency in service from the part of OP no. 1.  Non-submission of valid permit of the said vehicle in spite of receipt of letters dated 20.11.2017, 04.12.2017, 19.12.2017 & 05.01.2018 has created adverse presumption against the Complainant.

OP no. 2/Punjab National Bank did not contest the complaint case and as such the complaint case was proceeded ex parte against OP no. 2/Punjab National Bank.

Considering the pleadings of the respective parties and having considered the submissions of both sides and keeping in mind the materials and evidence (both oral and documentary) available on record Ld. District Commission was pleased to allow the complaint case on contest against OP no. 1/Insurance Company and ex parte against OP no. 2/Punjab National Bank with litigation cost to be paid by OP no. 1.  Ld. District Commission was further pleased to give certain directions upon OP no. 1 as embodied in the ordering portion of the Judgment.

Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Commission OP no. 1/Insurance Company as Appellant has preferred the present appeal on various grounds as highlighted in the body of the memorandum of appeal.  It has been contended that the Ld. District Commission erred in passing the impugned judgment and order; that the Ld. District Commission overlooked the vital aspect of the case as pleaded by the Appellant/OP; that the Ld. District Commission failed to appreciate the pre-requisite condition to ply a commercial vehicle on road under the Motor Vehicles Act; that the Ld. District Commission failed to appreciate that the vehicle in question had no valid permit to ply on road at the relevant point of happening the accident; that the Ld. District Commission failed to appreciate that the vehicle in question owned by Respondent no. 1 had also no temporary permit for plying the vehicle in question on road.  On all such grounds the Appellant/Insurance Company has prayed for allowing the present appeal after setting aside the impugned judgment and order.

POINTS FOR DETERMINATION

1. Whether the Ld. District Commission was justified in passing the impugned judgment and order.

2. Whether the Ld. District Commission has committed any error illegality or irregularity in arriving at the ultimate conclusion.

3. Whether the impugned judgment and order deserve interference of this Appellate Commission.

4. Whether the impugned judgment and order can be sustained in the eye of Law.

DECISIONS WITH REASONS

All the above four points are taken up together for the convenience of discussion and in order to avoid unnecessary repetitions.

Ld. Counsel appearing for the Appellant/Bajaj Allianz General Insurance Company Limited has submitted that the Ld. District Commission overlooked the fact that a commercial vehicle plying on the road has to comply with the provisions of the Motor Vehicles Act and must have a valid permit under Section 66 of the M.V. Act. It has been argued that the vehicle in question had no valid permit or temporary permit at the relevant time of happening the accident. The permit to ply on road was obtained by the owner on 21.09.2017 i.e. after 21 days of the alleged accident. Ld. Counsel has further argued that the Ld. District Commission failed to appreciate that the Respondent No. 1 (owner of the vehicle) had been plying the vehicle in question on road illegally without paying Government duty fees. It has been also argued that if such type of trend continues then the road will be filled up with such type of accidents and also hampered the general public at large. Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned judgment and order.

In support of above contention Ld. Counsel for the Appellant/Insurance Company has relied on the following decision:-

i) Revision Petition nos. 1933 and 1934 of 2016……..Ghanshyam Sahu (Petitioner)—vs.—National Insurance Company Limited (Respondent).

To refute the above contention Ld. Counsel appearing for the Respondent No. 1 has advanced a marathon argument and submitted that he is the registered owner of the vehicle in question which was insured with the Appellant/Insurance Company being Policy No. 00-17-2410-1812-00000060 with the validity period from 22.03.2017 to 21.03.2018.  The said vehicle met with an accident on 01.09.2017 i.e. within the coverage period and got badly damaged. It has been also argued that the Respondent No. 1/Complainant duly intimated the acident to the Insurance Company and also submitted claim form for realisation of the repairing cost. The appointed surveyor inspected the spot at the showroom of Mahindra and Mahindra at Khargapur and submitted one quotation amounting to Rs.7,76,232/-as the vehicle in question was badly damaged and accordingly assessed the total loss of the vehicle at Rs. 6,48,776/- but the insurance company repudiated the claim of the Respondent/Complainant on the ground of non-submission of required documents. Ld. Counsel has boldly urged that the Ld. District Commission after hearing both sides allowed the complaint petition with the direction upon the insurance company for payment of Rs. 5,25,021/- towards the repairing cost and Rs. 40,000/- towards the compensation and cost of Rs. 10,000/- totalling a sum of Rs.5,75,021/-. Ld. Commission below was pleased to direct the insurance company to deposit Rs. 10,000/- as penalty in the account of SCWF. According to the Ld. Counsel the Ld. District Commission arrived at the conclusion with justified observations and there is no illegality or irregularity in the impugned judgment and order. Ld. Counsel has prayed for outright dismissal of the present appeal with exemplary cost.

In support of the above contention Ld. Counsel appearing for Respondent No. 1 has referred the following decisions:-

a) 2019 (3) CPR 661 (NC) National Insurance Company Limited (Petitioner)—vs.—Tarlok Singh (Respondent)

b) iii (2019) CPJ 146 (NC) Sriram General Insurance Company Limited—vs.—Mohan Lal (Respondent)

c) 2021 (1) CPR 520 (NC) National Insurance Company Limited (Appellant)—vs.—Ramsurat Paswan (Respondent)

d) 2018 (1) CPR 910 (SC) Mahjeet Singh (Appellant)—vs.—National Insurance Company Limited and Anr.(Respondents)

Herein the present case the following facts are admitted:-

1. That the Respondent No. 1/Complainant is the registered owner of the vehicle in question (Bolero) having Registration No. OD-01R/3299.

2. That the Appellant/OP No. 1 Bajaj Allianz General Insurance Co. Ltd., is the Insurer and Respondent No. 2/OP No. 2  Punjab National Bank, Keshiary Branch is the Financer respectively  of the said vehicle in question.

3. That the said insurance policy of the vehicle was valid for the coverage period of 22.03.2017 to 21.03.2018 under Policy No. 00-17-2410-1812-00000060.

4. That the said insured vehicle met with a road traffic accident on 01.09.2017 near Aguibony under Garhbeta Police Station and consequently the vehicle was damaged badly and shifted to garage viz. Star India Agency Pvt. Limited for repairing.

It is the specific case of the Respondent no. 1/Complainant that he duly informed the factum of such accident to the Appellant/OP No. 1 and Respondent No. 2 the Financer. The Complainant/Respondent No. 1 also submitted claim Form for realisation of the repairing costs. Accordingly, the insurance company appointed one surveyor for spot inspection. After such spot inspection, the vehicle in question was shifted to the showroom of Mahindra and Mahindra at Khargapur named Star India Agency Private Limited for repairing. It is apparent from the materials and evidence on record that the expert/surveyor issued one quotation assessing damage amounting to Rs. 7,76,232/-. The Respondent No. 1/Complainant submitted his claim Form before the Insurance Company along with the quotation and other allied documents but the insurance company repudiated the claim of the Respondent/Complainant on the ground of non-submission of required documents towards the settlement of claim.

During the course of hearing argument Ld. Counsel appearing for the Appellant/Insurance Company has vehemently urged that the impugned judgment and order passed by the Ld. District Commission cannot sustain in the eye of law. It has been boldly argued that the Ld. District Commission overlooked the vital fact that the vehicle in question had no valid permit to ply on the road under the provisions of Motor Vehicles Act. It has been also argued that the vehicle in question had also no temporary permit to ply on the road at the relevant date of happening the accident.

The repudiation letter dated 05.1.2018 goes to establish that claim of the Respondent/Complainant under the policy in question was repudiated on the very ground of non-submission of requisite documents towards the settlement of claim. It has been categorically written in that repudiation letter that “due to non-cooperation and non-submission of documents the claim of the Complainant was repudiated”.

The letters dated 20.11.2017, 04.12.2017, 19.12.2017 and 05.01.2018 which were issued from the end of the Insurance Company go to indicate that the insurance company requested the Complainant to deposit the valid permit of the vehicle. On such very ground the Appellant/Insurance Company repudiated the claim of the Respondent No. 1/complainant with the presumption that the said vehicle in question had no valid route permit at the time of happening the accident. Undisputedly, the Respondent No. 1/Complainant did not produce any valid route permit of the vehicle before the Insurance Company in spite of several requests. It is evident from the evidence on record that the Respondent/Complainant obtained the permit to ply on road on 21.09.2017 i.e. after 21 days of happening the accident.

It is palpable from the repudiation letter that the Insurance Company repudiated the claim of the Complainant on the very ground of non-submission of relevant documents. This is the sole ground which has been taken by the Insurance Company as a breach of the policy terms. In the case of GALADA Power and Tele Communication Ltd.—vs.—United India Insurance Co. Ltd. and Anr, 2016 14 SCC 161, the Hon’ble Supreme Court has observed that the Insurance Company cannot proceed beyond the reasons specified in the repudiation letter. The Hon’ble Apex Court has held as follows: -

It is evincible, the insurer had taken cognizance of the Communication made by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in favour under the duration clause.

It is the settled position of law that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. In the case at hand the repudiation letter goes to show that the alleged repudiation was made only on the ground of non-submission of relevant documents and non-cooperation from the end of the Complainant. Curious enough to note here that there is no mention within the four corners of the repudiation letter that the said repudiation was made due to non-production of the valid route permit from the end of the Complainant. Such aspect certainly creates adverse presumption. It is also the settled proposition of law that the Insurance Company can only take the recourse as mentioned in the repudiation letter. It is an admitted position that the repudiation letter is beautifully silent on this aspect. There is no doubt that the Insurance Company appointed the surveyor for assessing the loss of damage caused in the vehicle in question and the said surveyor after inspection submitted the report. Such aspect speaks a lot against the Insurance Company.  Why the Insurance Company appointed the Surveyor for holding inspection of the damaged vehicle at the garage basing upon the claim of the Complainant; why the Surveyor assessed the damage of the vehicle in question.  Undisputedly, Insurance Company did all such acts in order to settle the claim of the Complainant.  There is nothing on record to think otherwise.

The moot point which falls for consideration in this case as to whether a vehicle which does not have the relevant route permit as on the very date of happening the accident can be indemnified by the insurance policy. The insurance policy specifies that the said vehicle would be used only under a valid permit within the meaning of Motor Vehicles Act.

It is relevant to reproduce the clause relating to limitation as to use; the policy covers use only under a permit within meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub-Section (3) of Section 66 of the Motor Vehicle’s Act, 1988. The policy does not cover use for; organised racing, pace making, reliability trials, speed testing, use whilst drawing a trailer except the towing (other than for reward) of anyone disabled mechanically propelled vehicle. No cogent or satisfactory evidence has come on record to prove the commercial use of the vehicle in question till the date of happening the accident and also as on the particular date of accident. Considering the pleadings and evidence (both oral and documentary) on record it can be safely concluded that the accident in which the vehicle got badly damaged 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 Respondent No. 1/Complainant not possessing a valid route permit. Thus, we are constrained to hold that there is no irregularity, illegality or infirmity in the findings of the Ld. District Commission below.

We have meticulously gone through the observations of the Hon’ble National Commission reported in 2018 (3) CPR 658 (NC) New India Assurance Company Limited.. (Petitioner)—vs.—Thirath Singh Brar…(Respondent). The said judgment is very much relevant and applicable in the present facts and circumstances of the case. Placing reliance upon the above cited decision Ld. District Commission was pleased to award compensation in favour of the Complainant on non-standard basis and accordingly held that the Insurance Company shall pay 75% of the total claim amount to the Complainant. Ld. District Commission further held that there was deficiency in service on the part of the Insurance Company for repudiating the entire claim of the Complainant. With my profound respect to the above decision and also the judgment of the Hon’ble Apex Court in Amalendu Sahoo—vs.—Oriental Insurance Company Limited (2010) 4 SCC 536 and National Insurance Company Limited—vs.—Nitin Khandelwal (2008) 11 SCC 259 we are of the clear 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 claimed amount to the Complainant. We do not find any irregularity, illegality or infirmity  in the judgment and order passed by the Ld. District Commission. Thus, we have no hesitation to conclude that the observation and ultimate conclusion arrived at by the Ld. District Commission were totally correct and justified. The impugned judgment and order of the Ld. Commission below deserve to be sustained in the eye of law. No interference is called for.

All the points are thus answered against the Appellant/Insurance Company and in favour of the Respondent No. 1/Complainant.

Resultantly, the present Appeal fails.

It is, therefore,

O R D E R E D

That the present First Appeal being no. A/814/2019 be and the same is dismissed on contest against Respondent no. 1 and ex parte against Respondent no. 2 but considering the circumstances without any order as to costs.

The impugned judgment and order passed by the Ld. District Commission, Paschim Medinipur in connection with Complaint Case No. CC/21/2018 on 14.08.2019 are hereby affirmed.

Let a copy of this judgment and order be transmitted to the Ld. District Commission forthwith for information and taking necessary action.

Let free copy of this judgment and order be supplied to both the contesting parties free of costs.

Interim order, if any, be vacated at once.

Thus, the Appeal stands disposed of.

Note accordingly.