1. The complaint petition has been filed against the O.P. who illegally, improperly and arbitrarily repudiated the claim causing loss and damages to the complainant to the tune of Rs 3,70,752.

2. The complainant’s case in brief is that the complainant is the registered owner of Goods Carrier vehicle bearing registration no. JH04G2526 whereas the O.P. is the insurer of the said vehicle and under the contract of indemnity there was relation between the complainant and O.P. as insured and the insurer. The complainant has purchased the package policy having sum assured to the tune of Rs 17,71,608 being policy no. 552700311363212526 for the period from 28.02.14 to 27.02.15 covering entire risk of the vehicle including damages in accident from the O.P. National Insurance Company Limited, Dumka Branch.

3. It is further submitted that prior to 07.11.2014 the said vehicle was stationed in the garage of Bishwakarma Auto Centre for its painting works but in the night of 7/8-11-2014, the said vehicle was used as a conveyance of corpses and mourners and after facilitating the cremation ceremony of Fakir Baidya S/o Late Tilak Baidya of village Daulatpur who was the uncle of the driver of the said vehicle truck and dropping the mourners at village Daulatpur the said vehicle while proceeding empty towards Dumka for its same painting works, it turned turtle near village Manjhi Tanr before sunrise as because due to light reflection by another vehicle the driver lost his control over vehicle. The information regarding the accident was immediately given to the Jarmundi Police Station by the driver of the vehicle namely Promod Baidya upon which SDE No. 09/14 dt. 08.11.14 was instituted.

4. In the said accident the vehicle was badly damaged and hence the information was also given to the insurance company about the said accident and accordingly the complainant submitted all the relevant documents and papers duly filled up claim form to the O.P. The O.P. appointed its surveyor and in the light of the same the complainant got his vehicle repaired by expensing huge amount worth more than  Rs 4,00,000. The complainant lodged the claim before the Insurance Company and submitted all the requisite papers but after lapse of a considerable period the Insurance company vide letter no. Nil dt. 21.09.15 repudiated the entire claim of the complainant on the flimsy ground by saying, “in spite of several reminders you have failed to submit the permit, hence your claim is repudiated and closed.” As such the O.P. Insurance company wrongly and illegally repudiated the entire claim of the complainant on the basis of the baseless, concocted, false and frivolous observations.

5. It is further submitted that at the time of the accident the vehicle was proceeded empty and that too after discharging the corpses and dropping the mourners and it is submitted that at that moment, the vehicle was not used as transport vehicle. It is settled principle of law as provided u/s 66(3)(d) of MV Act that no permit is required for any transport vehicle used for the conveyance of corpses and mourners accompanying the corpses.

6. And it is further submitted that in case of any breach of policy conditions including limitation as to use the Insurance Regulatory Development Authority of India has set out the procedure for settlement of claim on non- standard basis according to which the 75% of the claim amount is payable. The act of the O.P. is nothing but a patent and glaring deficiency in services rendered by the O.P. and it is a patent negligent act of the O.Ps for which the complainant has suffered mental tension, agony, harassment to the tune of Rs 50,000. Due to willful act of deficiency and negligency of the O.Ps the complainant has been deprived of from availing the amount worth of Rs 370,752 and the O.Ps has enjoyed the said amount and is also enjoying the same causing loss of interest to the complainant.

7. It is further submitted that O.P. maybe directed to pay Rs 370,752 on account of cost of repairing of accidental vehicle and further submitted that O.P. may be directed to pay Rs 1,00,000 as compensation on account of mental tension, agony, harassment and also directing the O.P. to pay the interest upon Rs 370,752 @ 12% p.a. and also O.P. may be directed to pay cost of litigation worth Rs 10,000.

8. The O.P National Insurance Company Ltd. appeared and filed his show cause on 23.08.16 stating therein that the complainant case is not maintainable as same has been filed u/s 12 of Consumer Protection Act which is related to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided. While the present case is related to so called accident. It is further submitted that as per Para 4(iii) of the complaint petition it is submitted that the vehicle was never carried corpse as stated in this paragraph. This fact will be clear from the information given to the Jarmundi Police station on 08.11.14 i.e; immediately after the so called accident by the driver of the vehicle. In this information the driver has not mentioned that he was carrying a corpse. The cause of the accident shown therein was the loss of balance and dashed with a tree due to strong beam of light of another vehicle coming from opposite direction.

9. It is further submitted that admittedly the vehicle was in the garage for repairing purpose then the question arises here that is that under what circumstances a damaged vehicle was taken away from the garage by the driver. In fact this amounts to negligence on the part of the driver of the vehicle solely.

10.  It is further submitted that the O.P. has appointed a surveyor to ascertain the loss and the surveyor performed his duties. It is further submitted that the complainant failed to submit the permit before the present answering O.P. Moreover, the complainant never informed the O.P. that the driver was carrying corpse. From the perusal of Annexure information given to the driver to the Jarmundi Police station with SDE No. 09/2014 dt. 08.11.14. It is submitted that the vehicle under consideration was plying without having permit to ply the vehicle has got no authorizing letter to ply the vehicle also. Thus, the present answering O.P. i.e; National Insurance Company is not liable to indemnify the liability of the owner of the vehicle and hence the claim made by the claimant was rightly repudiated by the present answering O.P. i.e; National Insurance Company Ltd.

11.  It is further submitted that O.P. has rightly repudiated the claim of the complainant and that the surveyor has submitted its report and assessed the loss and on this basis the present answering O.P. from the loss of Rs 84,954 and the reliefs sought by the complainant granted as answering O.P. is not responsible and there is no deficiency in the services of the O.P. and the demand of the complainant is illegal and the same is fit to be rejected.

12.  The main point for the determination in this case is whether the claim repudiated by the O.P. on the ground of permit is justifiable !

                                           Findings

           The complainant in support of his case filed oral and documentary evidence both. As oral witness he has filed the affidavit of following persons –

CW1 – Rana Rakesh Pratap Singh

CW2 – Gopal Mandal

       CW3 – Promod Vaidya

 CW4 – Kali Prasad Vaidya

         He has also adduced a letter of the National Insurance Company dt. 21.09.15 by which the claim was repudiated and also photocopy of SDE No. 9/14 dt. 08.11.14 and also filed the policy certificate issued by the National Insurance Company.

Apart from that he has also filed the death certificate of Fakir Vaidya and temporary permit of the vehicle no. JH04G2526 and photocopy of driving license of Promod Vaidya.

Apart from that no other oral or documentary evidence has been filed by the complainant in support of his case.

13. The O.P. in support of his case has filed some oral and documentary evidence which are as follows –

Exhibit A -is the information by the complainant to the O.P. regarding the accident dt. 10.11.14

Exhibit B – is the SDE No. – 9/14 dt. 08.11.14

Exhibit C – is the Motor claim form

Exhibit D – is the surveyors report dt. 17.11.14

And one affidavit of his witness has been filed as O.P. witness no. 1 Abhishek Kumar Nicky and apart from that no other oral or documentary evidences has been filed on behalf of the O.P.

14. Heard the Learned Counsel of both the parties and also gone through the case record thoroughly and after carefully scrutinizing and analyzing the documents and evidence adduced on behalf of both the parties the main point for the determination in this case is that the repudiation of the claim by the O.P. is whether justified or not.

15. As per section 66 of the Motor Vehicle Act it is clearly mentioned that no owner of the Motor Vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually save in accordance with the conditions of a permit granted or countersigned by a Regional or state transport authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used.  It is admitted fact that the vehicle in question was goods carrier vehicle bearing registration no. JH04G2526. Accident of the vehicle is admitted fact and vehicle was insured with the O.P. company is also admitted fact. The Learned Counsel of the complainant has taken the plea in Para 4(x) that it is settled principal of law as provided u/s 66 (3)(d) of the MV Act that no permit is required for any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses.

16. We have also gone through the provisions of section 66 (3) (d) which clearly says, “ to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses.” Here in this case the word used solely for the conveyance but the complainant vehicle is not meant to be only used solely as this vehicle is goods carrier vehicle.

17. It is further submitted that on behalf of the complainant that all the 4 CWs has clearly corroborated this fact that the vehicle was taken from the garage to take the corpse and other mourners to that place and after performing the rituals the vehicle was empty returning to Dumka. But this fact has not been mentioned in Exhibit A and B which is the information to the O.P. dt. 10.11.14 and SDE No. 09/14 dt. 08.11.14 which was the first information to the Police station. This fact has not been mentioned and when the claim was repudiated by the O.P. then the thought applying the legal brains the conveyance of corpses story was added because the accident took place on 07.08.14 and the case was filed on 27.02.17 and the evidence of CW 1,2,3 and 4 was filed on 24.07.17 which is totally after thought and to make the defense for claim. On the other hand the learned counsel of the O.P. has submitted that in Policy Certificate issued by the O.P. there is a limitation to use clause which clearly states as follows :-

The Policy covers use only under a permit within the meaning of the Motor Vehicle Act, 1988 or such a carriage falling under sub- section 3 of section 66 of the Motor Vehicle Act, 1988. The policy does not cover use for -

1. Organized Racing
2. Pace Making
3. Reliability Trails
4. Speed Testing    

18.  It is further submitted that the O.P. has given several reminders and letters requesting him to file  the permit before him but the complainant failed to submit the permit hence his claim was repudiated and closed which is apparent from letters dt. 21.09.15

19.  Some documents were also filed by the complainant in which he has filed the temporary permit of the vehicle in question and from the perusal of this temporary permit it appears that this temporary permit was from 13.11.14 to 12.03.15. And the accident took place as per Exhibit B is the SDE – 09/14 dt. 08.11.14 took place on 08.11.14. Apparently there was no permit of the vehicle in question at the time of occurrence that is on accident.

20.  Keeping in mind the provisions of limitation as to use clause of the insurer policy and also section 66 of the MV Act it is mandatory for the owner to get the permit before plying his vehicle. Plea taken by the complainant is an exception clause of 66 (3)(d) is not at all acceptable as the vehicle in question was purely the goods carrier vehicle which does not come within the purview of section 66 (3)(d) of the MV Act. It is also admitted fact that at the time of occurrence there was no permanent or temporary permit of the vehicle in question and the O.P. repeatedly asked the complainant to produce the permit but he failed and in that circumstances the insurer company that is O.P. is not at all responsible to indemnify any damages to the complainant.   

21. From the aforesaid discussion, we come to the conclusion that there is no deficiency or negligency on the part of the O.P. to provide his services to the complainant. Rather the complainant is found negligent because he permitted his driver to ply the vehicle without permit on the route and the O.P. rightly and justifiably repudiated the claim of the complainant. We therefore,

                                    Ordered

      That this case and the same is dismissed on contest without cost.

      Let a copy of this order be served to both the parties without cost.

      Let this document be deposited in the record room and also to be shown on the website of the commission.