Exh. 23
BEFORE THE DISTRICT CONSUMER DISPUTES REDFESSAL FORUM, SANGLI
Hon’ble President – Mr.A.V. Deshpande
Hon’ble Member - Mr. K.D. Kubal
CONSUMER COMPLAINT NO. 1955/09
Date of Filing : 23/07/2009
Date of Admission : 28/07/2009
Date of Judgment : 14/06/2013
---------------------------------------------
Vasant Chandra Zimbal
Age 34 years, Occup.- Transport
R/o Chorochi, Tal. Kavathemahankal,
Dist. Sangli ……. COMPLAINANT
Versus
National Insurance Co.Ltd., Mumbai
Branch Vakharbhag, Sangli ……. RESPONDENT
Advocate on behalf of complainant – Mr. M.D. Pawar Advocate on behalf of Opponent - Mr. M.D. Wagh
J U D G M E N T
Delivered by Hon’ble Mr. A.V. Deshpande, President
1. The instant complaint u/s 12 of the Consumer Protection Act, 1986 has been filed by the complainant, alleging a deficiency and defective service on the part of the Respondent, in repudiating his Own Damage Claim by the Respondent.
2. The facts in nutshell are : That the complainant owned a truck No. MH 10/Z-541. It was insured with the Respondent Insurance company vide policy No. 260201/31/07/6300001215. The said policy was valid from 8/8/07 to 7/8/08. It was a comprehensive insurance policy. The said truck was involved in an accident which took place on Pune-Bangalore Highway on 7/5/2008 and it was damaged totally. The complainant had submitted his claim for the loss of the said vehicle. However, the said claim was repudiated by the insurance company on the ground that there was a violation of the permit condition, in as much as there were passengers travelling in the said truck at the time of accident. The complainant has contended that the said repudiation of the claim was illegal and thus, the insurance company has rendered defective service to him. On such contentions, the complainant has claimed an amount of Rs.3,39,168/- being the expenses incurred for the repairs to his truck, Rs.89,413/- being the compensation for wrongful rejection, Rs.50,000/- being the compensation for keeping the claim undecided by the insurance company for a period of about 8 months, Rs.5419/- being the fees of the surveyor which the complainant has paid, Rs.6,000/- being the crane charges and Rs.10,000/- being cost of this complaint. Thus, the complainant has claimed a total amount of Rs. 5 lakhs from the respondents.
3. In support of the contentions in the complaint, the complainant has filed his affidavit at Exh.3 and has also filed as many as 13 documents alongwith the list at Exh.5.
4. The respondent has appeared in response to the notice duly served on it and has filed its written statement at Exh.9. It has denied the claim and the allegations levelled against it by the complainant. Most of the facts including the insurance policy covering the risk of the said truck issued by it, have been admitted by the respondent insurance company. The factum of accident is also not disputed. The fact that the said truck was totally damaged is also not disputed. The insurance company has admitted that the complainant had submitted the claim and the said claim was repudiated on the ground of permit violation. According to the insurance company, the said repudiation was just, proper, valid and on legal grounds. According to the insurance company, the said truck was registered as a goods carrying commercial vehicle. In the goods vehicle, apart from the goods, only the driver, cleaner and certain number of coolies are allowed to be carried. No other person is allowed to travel in a goods vehicle. Under Section 66 of the Motor Vehicles Act, the insured vehicle must be used in conformity with the provisions of the Motor Vehicle Act and the terms and conditions of the insurance policy and the permit conditions. In case of any violation of such terms and conditions, the insurance company can legally repudiate the claim. That in the instant case, during the investigation of the said accident, from the statement of the Truck driver who was driving the said truck, at the time of accident, it is revealed that there were two unknown passengers travelling in the said truck. Those persons were not known to the driver and hence, they were neither coolies nor the cleaners of the said truck. Thus, there was a willful breach of specified condition of insurance policy and on that count, the claim of the complainant was rightly repudiated. As such, there was no deficiency in service committed or defective service rendered to the complainant. The complaint is liable to be rejected. It is contended that it is not liable to pay any amounts whatsoever as prayed in the complaint. On such contentions, the insurance company has prayed for rejecting the complaint with cost.
5. The insurance company has filed the affidavit of Branch Manager of its Sangli branch at Exh.10 in support of its written statement and has also filed the statements of the driver of the said truck namely Hari Govind Sargar and his son Dhananjay Hari Sargar recorded by the policy during the course of investigation alongwith list at Exh.12.
6. The complainant has filed rejoinder, after the w.s. of the insurance company was received and the said is at Exh.13. The complainant has contended that all the statements made by the Respondent in the w.s. are false.
7. Neither party has led any oral evidence in this case.
8. We have heard the submissions of the learned counsels for both the sides at length. The counsel for the complainant has also filed his written notes of arguments at Exh.14.
9. The following points arise for our consideration in this case.
Points Findings
1) Whether by repudiating the claim of the
Complainant, the opponent insurance company
has rendered defective service to the complainant ? No.
2) Whether the complainant is entitled to the
amounts as claimed in the complaint ? No.
3) What order ? As per final order.
10. The reasons for our findings above are as follows.
-: REASONS :-
Point No.1 to 3
11. All the facts being admitted in this case, we need not detain ourselves much on the facts. The facts remains that the complainant had owned a truck. It was insured with the Respondent Insurance company and on a fateful day, it met with an accident and was a totally loss. Admittedly, the policy was a comprehensive policy covering the risk of own damage and in pursuance thereof, the complainant had submitted his claim and the said claim was repudiated by the insurance policy, on the ground that there was a violation of the vehicle permit pertaining to the said truck, in as much as at the time of accident, there were two passengers travelling in the said truck. According to the complainant and his learned counsel, carrying of the two passengers in the vehicle is not a breach so fundamental, which would afford a ground to the insurer to eschew the liability altogether. In fact, this is the crux of the matter and the entire case reveals around this question of law and it has evoked a considerable debate based on the citations which have been relied upon by the parties in this case.
12. We have already pointed out above that the respondent has produced on record the copies of the statement of the driver of the said truck namely Hari Govind Sargar and his son Dhananjay Hari Sargar who were driving and travelling respectively in the said truck at the time of accident. It appears that the said Dhananjay was working as a cleaner on the said truck. It has been pointed by the learned counsel for the Respondent Adv.M.D.Wagh that in these two statements, there is categorical statement made by these two witnesses that there were two unknown passengers travelling in the said truck at the time of accident. The learned counsel for the Respondent insurance company, Sh. Wagh was at pains to take us through the provisions of Section 66 of the Motor Vehicles Act which speak about the necessity of having a vehicle permit, particularly in respect of the goods vehicle. Mr. Wagh has also laboriously taken us through the regulations which permit travelling of a driver of the goods vehicle, a cleaner of the goods vehicle and only 4 coolies in a goods vehicle, in pursuance of the permit issued to a goods vehicle. The learned counsel Mr. Wagh was very emphatic in contending that both the cleaner as well as driver of the said truck have categorically stated that there were two passengers traveling in the said truck at the time of accident. That the passengers do not fall into the category of either the driver, cleaner or the coolies who are permitted to travel in a goods vehicle and as such there was a flagrant breach of the conditions of the permit and therefore, the insurance company was quite justified in repudiating the claim of the complainant for the said breach.
13. The learned counsel for the complainant Mr. M.D. Pawar, on the contrary, argued that mere two passengers in a vehicle is not so severe a breach of condition of the permit due to which the insurance company can resile from its liability under the insurance policy. He also contended that at any rate, considering the fact that at the time of accident, only a driver and the cleaner were travelling in the said truck alongwith two passengers, the total number of the persons travelling in the said truck was below the permissible limit or the persons who can travel in a goods vehicle even as per the permit, and therefore, the insurance company could not have validly repudiated the claim. In support of this contention, the learned counsel for the complainant relied on the dictum of the Apex court in the case of V.S. Nagaraj Vs. The Oriental Insurance Co.Ltd. reported in 1996 ACJ 1178 wherein it is held by the Apex Court that a breach of carrying persons in a goods vehicle more than the number permitted in terms of the insurance policy, is not so fundamental a breach, so as to afford ground to the insurer to eschew the liability altogether. The said dictum has been followed by the Hon’ble National Commission in New India Assurance Co.Ltd. Vs. G.J. Ashok reported in 2009 (2) CPR 10 (NC).
14. For contra, reliance was placed by the Respondent insurance company on the later dictum of the Apex Court in the case of National Insurance Company Vs. Challa Bharathamma and Ors. Reported in 2004 ACJ 2004 wherein the owner of the Auto rickshaw which had met with an accident resulting in death of two persons and 3 sustained injuries, had not obtained a permit to ply the vehicle and in such circumstances, the insurance company was not liable. The Apex Court has held therein that the persons without permit to ply a vehicle, cannot be placed at a better pedestal vis-à-vis the one who has a permit but has violated any conditions thereof. In the facts of the said case, since the Auto Rickshaw had no permit, the Hon’ble High Court had taken the view that the question of violation of any condition of the permit does not arise. On the background of this, the Apex Court has held that the person without permit to ply a vehicle, cannot be placed at a better pedestal vis-à-vis a person who has a permit but has violated the conditions thereof. Plying of a vehicle without a permit is a infraction. Therefore, in terms of section 149(2) of the Motor Vehicles Act, the said defense is available to the insurer. The Apex Court has further held therein that the question of policy being operative, has no relevance for the issue regarding liability of the insurer and therefore, the High Court was not justified in holding the insurer liable.
15. Reliance was also placed by the learned counsel for the respondent insurance company on the decision of the Hon’ble Himachal Pradesh High Court at Shimla in the case of The Oriental Insurance Co.Ltd. Vs. Nilamkumari and Ors. Reported in 2012 ACJ 1711 wherein it is held that when there are gratuitous passengers travelling, the insurance company is not liable and in such cases, the insurance company cannot be directed to satisfy the award and to recover the amount from the insured.
16. We venture to speak with respect to it that the view laid down by the Apex Court in the case of National Insurance Company Vs. Challa Bharathamma (cited supra) is the latest view expressed by the co-equal strength bench of the Apex Court than in the case of B.B.Nagaraj reported in 1996 ACJ 1178. By the rules of precedence, the later view of the Apex Court binds as the law of land. Thus, when there is a breach of the vehicle permit, the insurance company is entitled to repudiate the claim and in such cases, the insurance company cannot be directed to first pay and then recover the insurance amount from the insured also. Viewed in that context and when admittedly, there were two passengers travelling in the goods vehicle owned by the complainant, at the time of accident, the insurance company was entitled to repudiate the claim and when it has done so, it cannot be held that it has rendered any deficiency in service or has rendered any defective service to the complainant. Therefore, we hold accordingly and find that the complaint filed by the complainant is mischievous and is liable to be dismissed. We have therefore, answered the points No.1 and 2 in the negative and we proceed to pass the following order :
O R D E R
The complaint stands dismissed. However, in the circumstances of the case, the parties shall bear their own costs.
SANGLI
Dated : 14/06/2013
( K.D. Kubal ) ( A.V. Deshpande )
Member President
