Punjab

StateCommission

FA/1434/2013

National Insurance Company Limited. - Complainant(s)

Versus

M/s Mars Traders - Opp.Party(s)

Gaurav Jindal

29 Jan 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,   PUNJAB  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

           First Appeal No.1434 of 2013                                                   

                 Date of institution  :    23.12.2013   

     Date of decision     :    29.01.2015

 

National Insurance Company Limited, Divisional Office, Gurdaspur Road, through Raj K. Goel, Manager at CHRO (I), Chandigarh.

…….Appellant/Opposite Party

Versus

M/s Mars Traders, opposite Mela Devi School, near New Chakki Bridge, Pathankot, through its Partner Amit Kumar S/o Sh. Roshan Lal.

                                                          …Respondent/Complainant

First Appeal against the order dated 11.10.2013 of the District Consumer Disputes Redressal Forum, Gurdaspur.

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Vinod Kumar Gupta, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

          For the appellant            : Shri Gaurav Jindal, Advocate.

          For the respondent        : Ex Parte

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The appellant/opposite party has preferred the present appeal against the order dated 11.10.2013 passed by District Consumer Disputes Redressal Forum, Gurdaspur (in short, “District Forum”), vide which the complaint filed by the respondent/ complainant under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”), was allowed and the parties were directed to reach at an amicable settlement, by partly allowing the complaint and ordering the opposite party to settle the claim on “Non-standard Basis” in accordance with the relevant guidelines of  I.R.D.A. and to pay Rs.5,000/- as cost of litigation within 30 days of receipt of copy of the order and failing that, to pay interest @ 9% per annum on the total amount from the date of filing of the complaint.

2.           The complainant is a firm and filed the complaint through its partner Sh. Amit Kumar, alleging therein that it is owner of the truck bearing registration No.PB-06M-2006, which was got insured with the opposite party, vide policy No.6300003501/2010 for the period 07.10.2010 to 06.10.2011. On 06.11.2010, this truck met with an accident, regarding which the intimation was given to the opposite party on 08.11.2010, who deputed a surveyor for assessing the loss. As per the advice of the surveyor, the truck was shifted to the workshop and the estimate of loss was prepared to the tune of Rs.80,000/-; which was handed over to the surveyor, along with the other documents.  After the truck was dismantled, it was found that the outer rod (tube) of the jeck was also damaged; which was not added in the estimate and after the addition of the cost of that tube, the estimate was enhanced to Rs.96,500/- and accordingly, supplementary estimate of that amount was handed over to the surveyor. After the repairs of the truck, the bills were submitted to the opposite party and the vehicle was also inspected by it. Inspite of repeated visits of the partner of the firm to the office of the opposite party, the claim was not settled and ultimately, the same was repudiated, vide letter dated 27.08.2012, on the ground that there was no route permit of the truck. As per the standing instructions of I.R.D.A., the claim could not have been repudiated on that ground, as it had no nexus with the accident or the loss. As per those guidelines, the claim was to be settled to the tune of 75%.  Prayer was made for issuance of directions to the opposite party for the payment of Rs.96,500/-, along with interest @ 12% per annum; Rs.50,000/-, as the compensation for harassment and mental agony suffered by the complainant; and Rs.20,000/- as litigation expenses.
3.           The complaint was contested by the opposite party by filing a written reply before the District Forum. In that written reply, it did not deny that the truck was insured with it, vide the policy mentioned in the complaint, for the period mentioned therein. It admitted that the factum of accident was intimated to it, upon which the surveyor was appointed for assessing the loss and that the claim submitted by the complainant was repudiated. While denying the other allegations made in the complaint, it pleaded that the surveyor assessed the loss at Rs.52,962.50P, vide his report dated 08.01.2011. While going through the documents submitted by the complainant, it was found that the route permit filed by it, was valid only from 15.11.2010 to 14.11.2015 and, thus, at the time of accident, the vehicle was being plied on the road for commercial purposes, without any route permit.  The complainant was requested, vide letters dated 04.02.2011, 16.03.2011 and 28.04.2011, to submit his reply in respect thereof and otherwise, his claim would be filed, but he did not submit any reply and ultimately, it closed the file, vide letter dated 23.05.2011, on the ground that there was no valid route permit on the date of loss to the vehicle and that non-possession of the route permit was violative of the conditions of the policy. The complainant requested, vide letter dated 06.07.2011, that it is ready to accept 75% of the claim and the same be treated as settled amount and it also requested, vide letter dated 10.08.2011, to re-open its claim. On that request, the claim was re-opened and processed, but in the absence of the route permit, the same was found to be inadmissible and ultimately, the same was repudiated, vide letter dated 27.08.2012. When the claim was rightly repudiated, it cannot be said that there was any deficiency in service on its part.  The complainant has no cause of action to file this complaint and is estoped by its act and conduct from filing the same.  It prayed for dismissal of the complaint with costs.
4.           Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly allowed the complaint, vide aforesaid order.
5.           We have heard learned counsel for the appellant/ opposite party, as the complainant did not appear before the Commission  in  spite  of  his  service  and was proceeded against ex parte. We have also carefully gone through the records of the case.
6.           It was submitted by the learned counsel for the opposite party that the District Forum erred, while issuing direction for settling the insurance claim of the complainant on “Non-standard Basis”. It was proved on the record, by cogent and convincing evidence, that on the date of the accident, there was no route permit with complainant for plying the truck on the road and the same was violative of the fundamental condition of the policy. The complainant was given sufficient time for proving such a route permit, but it failed to do so. In these circumstances, the opposite party was justified in repudiating its claim, by invoking the conditions of the insurance policy itself.  The District Forum committed an illegality, by wrongly invoking the ratio of (NICL Vs. Nitin Khandelwal) 2008 (7) SCALE 351. In that case, the possessing of the route permit was not a condition germane to the theft, whereas such a condition was germane to the case, where the loss to the vehicle was on account of accident. The non-possessing of the route permit was a valid ground for repudiating the claim. In support of that argument, he relied upon the judgment of the Hon’ble National Commission, rendered in Revision Petition No.1911 of 2011 decided on 03.07.2012 (Pal Singh Vs. Oriental Insurance Company Limited). He also submitted that the District Forum committed an illegality, by directing the parties to reach at an amicable settlement. Such a direction is not permissible u/s 14 of the Act. He prayed that the appeal be accepted, the order of the District Forum be set aside and the complaint filed by the complainant be dismissed.
7.           The only question to be decided for the disposal of the present appeal is, as to whether the opposite party was justified in repudiating the claim of the complainant, on the ground that there was no route permit for plying the truck at the time of accident? The District Forum relied upon Nitin Khandelwal’s case (supra), while issuing the directions to the opposite party to settle the insurance claim on Non-standard Basis. The facts of that case were different. In that case, the complainant had sent the vehicle to bring his children from Jaipur and on the way, some unknown persons stopped that vehicle and snatched away the same from the driver.  The insurance company took up the defence that the vehicle was used as a taxi in violation of the terms and conditions of the policy and, as such, the claim made by the complainant was correctly rejected on that ground. It was held by the Hon’ble Supreme Court that in the case of theft of vehicle, breach of the condition to have a permit to ply the vehicle as a taxi, is not germane and that the insurance company was liable to indemnify the owner, who had obtained  the  comprehensive policy for  the loss caused to him. It was also held that the insurance company cannot repudiate the claim in toto in case of loss of vehicle due to theft. The ratio of that ruling cannot be applied to the facts of the present case, in which loss/damage was caused to the truck in the accident, which was being plied on the road without route permit in violation of the terms of the insurance policy. Similar question came up for consideration before the Hon’ble National Commission in Pal Singh’s case (supra). It was held therein that if the insured was not holding a valid route permit at the time of accident, he was not entitled to the insurable benefits.  While recording that finding, the Hon’ble National Commission relied upon the judgment of the Apex Court  reported in 2011 CTJ 11 (SC) (CP) (Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Company Limited & Anr)..
8.           In view of the law so laid down by the Hon’ble Supreme Court and the Hon’ble National Commission, we conclude that the claim of the complainant was validly repudiated by the opposite party, on the ground that at the time of accident, the truck was being plied without a valid route permit. The District Forum committed an illegality by recording a finding to the contrary.
9.           In the result, the appeal is allowed, the order of the District Forum is set aside and the complaint filed by the complainant is dismissed.
10.           The sum of Rs.25,000/- deposited at the time of filing of the appeal, along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant  by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
11.           The arguments in this appeal were heard on 27.1.2015 and the order was reserved.  Now, the order be communicated to the parties.
12.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

 

                                                          (JUSTICE GURDEV SINGH)

                                                                         PRESIDENT

 

                                                             (VINOD KUMAR GUPTA)

                                                                          MEMBER                                                       

 

 

                                                        (MRS. SURINDER PAL KAUR)

January 29, 2015                                         MEMBER

(Gurmeet S)