Himachal Pradesh

Shimla

CC/194/2021

Kapil Sharma - Complainant(s)

Versus

NIAC - Opp.Party(s)

Suman Thakur

10 Aug 2023

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA (H.P.

                                                                                                                                                                                                       Complaint No.:   194/2021

                                                                                                                  Presented on:   13.09.2021

Kapil Sharma, Son of Shri Megh Ram Sharma,

Resident of Village Kuffer,

Post Office and Tehsil Chopal, District Shimla, H.P.

 

                                      Versus

          The New India Assurance Company Limited,

          Through its Senior Manager,

          Branch Office (351401) Shimla,

          Bhagra Niwas, The Mall, Shimla-171001.

….Opposite party

Coram :

                   Dr. Baldev Singh, President.             

For the Complainant:          Ms. Suman Thakur, Advocate. 

For the Opposite Party:      Mr. Jagdish Thakur, Advocate.   _________________________________________________________________________________________________

O R D E R:

                   Present complaint has been filed by Kapil Sharma (hereinafter referred to as the complainant) under Section 12 of the Consumer Protection Act 1986 (hereinafter referred to as the Act) against The New India Assurance Company Limited (hereinafter referred to as the OP) on account of unfair trade practice and deficiency in service, seeking relief therein that the OP be directed to pay Rs.4,21,000/- alongwith interest, to pay Rs.3,24,000/- on account of loss of income, to pay Rs.50,000/- as compensation, to pay Rs.25,000/- as costs of litigation etc.

2.                The case of the complainant in brief is that the complainant is registered owner of Vehicle (Tractor) bearing registration No. HP-62-4635 and the same duly insured with the OP w.e.f. 08.04.2018 to 07.04.019. It is stated that on 23.09.2018, the complainant alongwith his driver parked the vehicle in question at Mashrah Tharoch Road due to tyre bursting, but on fateful day of 24.09.2018, when complainant reached the place where they had parked the tractor, did not find the vehicle, in question, on the spot and on verification, he found that the vehicle, in question, had fallen down from the hill due to land slide and is lying below the hill. It is stated that vehicle in question got badly damaged and was divided in two parts. It is stated that complainant lodged a complaint about the incident at Police Station Nerwa and during investigation the police found that the accident occurred due to heavy rain and land slide. It is stated that the complainant submitted his claim with the OP for settlement, alongwith all the documents of vehicle. It is stated that on 14.11.2018, the OP asked the complainant to submit some more documents to proceed further with the matter and the complainant accordingly submitted the entire relevant documents to the OPs. It is stated that on 31.12.2018, the complainant again received another letter from one Sh. Kamal Narain, investigator of OP, to submit permit of tractor. It is stated that thereafter complainant requested the OP many times to settle the claim, but to no avail. It is stated that aforesaid acts on the part of the OP amount to deficiency in service and unfair trade practice. It is prayed that the complaint may be allowed as prayed for.     

3.                After admission of complaint, notice was issued to the OP. The complaint so filed has been opposed by the OP by filing reply taking preliminary objections therein regarding  maintainability, complainant is not a consumer, suppression of facts etc. It is stated that the complainant has purchased the Tractor in question for commercial purpose and was not for earning his livelihood by self employing himself. It is stated that the complainant has submitted that he has suffered loss to his tractor on account of rolling down of boulders from uphill side of road, whereas as per spot survey report, final surveyor report and investigation report, the chances of boulders rolling down from the hill are ruled out, as there is dense forest cover on uphill side and further there were no sign of boulders that roll down and hit the parked tractor. It is stated that the tractor, in question, is a commercial one and the same was being plied by the complainant without any route permit, which is otherwise necessary in respect of commercial/transport vehicle as per mandate of 66 of Motor Vehicle Act. It is stated that tractor in question was insured for a sum of Rs.4,21,000/- on IDV basis and the insurance was effective w.e.f. 8.4.2018 to 7.4.2019. It is stated that on receipt of information with respect to accident, the OP immediately appointed Er. Suresh Sharma, surveyor and loss assessor to conduct the spot survey of the tractor in question and after the receipt of spot survey report, the OP requested the complainant to submit copy of detail estimate of repair, fitness certificate of tractor, route permit of tractor and affidavit stating that there is no third party loss in the accident. It is stated that after the receipt of the spot survey report the opposite party appointed Sh. Dinesh Kumar, Surveyor and Loss Assessor, to conduct the final survey, who conducted the same on 25.10.2018 and submitted his final survey report and recommended a sum of Rs.3,55,500/- on net of salvage basis after deducting Rs.65,000/- on account of salvage value and Rs.1,000/- on account of excess clause from the sum insured. It is stated that in the meanwhile, the OP appointed Sh. Kamal Narayan, Retd. HPS to investigate the claim, who investigated the same and submitted the report. It is stated that the investigator investigated the matter from the office of RTO Shimla and it was transpired that no route permit as per mandate of Section 66 of Motor Vehicle Act, has been issued in respect of tractor in question, which is otherwise mandatory as per mandate of Section 66 of Motor Vehicle Act. It is stated that vehicle in question is hypothecated with Mahindra and Mahindra Financial Services, Shimla and the complainant to the reasons best known to him has not arrayed the same as respondent. It is stated that according to the terms and conditions of the insurance policy, Financer has the first right over the insured sum. It is stated that after the receipt of all the papers/documents the claim of the complainant was processed by the OP and after due application of mind repudiated the claim of the complainant vide letter dated 25.06.2019. It is stated that Annexure C-5 is the goods permit for road tax/token fees, which has been charged from the complainant by the RTO Shimla under the provisions of Motor Vehicle Act and not the route permit. It is stated that the perusal of the same shows that the Road tax/token tax was taken with effect from 1.4.2018 to 31.3.2019, whereas the validity of the route permit issued under the provisions of Motor Vehicle Act, particularly under Section 81 is five years and as such by no stretch of imagination Annexure C-5 can be interpreted as route permit. It is stated that complainant ought to have submitted the route permit of the tractor in question but has miserably failed to do so. It is stated that there is no deficiency in service or unfair trade practice on the part of the OP. It is prayed that the complaint may be dismissed.   

4.                Rejoinder to the reply of OP was filed on behalf of the complainant and the allegations as contained in the complaint were reasserted after refuting those of reply filed by OP contrary to the complaint.  

5.                The parties adduced evidence in support of their contentions. On behalf of the complainant affidavit of complainant was tendered in evidence. The complainant has also filed documents in support of his contentions. On behalf of the OP affidavits of Dinesh Kumar,  Suresh Kumar, Pankaj Kumar Dua and Kamal Narain were tendered in evidence. OP has also filed documents in support of its contentions.

6.                We have heard learned counsels for the parties and have also gone through the entire record carefully.

7.                After hearing the submissions made by Ld. Counsels for the parties and perusing the entire record carefully, it is pertinent to mention at the outset that in the present matter the claim of the complainant was repudiated by the OP on the ground of misrepresentation of material facts and for want of route permit of vehicle. However, it is not in dispute that the complainant was the registered owner of the vehicle at the time of accident and it was duly insured with the OP and the accident took place during the currency of the insurance policy. The stand of the complainant is that the complainant supplied all the necessary documents to the OP, but even then the claim was not settled by the OP. The stand of the OP on the other hand is that no doubt the vehicle was insured with the OP and the accident took place during the currency of the policy, but the complainant has not disclosed the true facts about the alleged accident and at the same time, the complainant failed to produce the route permit of the vehicle in question. The OP after receiving the information of accident deputed the spot surveyor and thereafter final surveyor & investigator also. After receiving the reports of spot surveyor, final surveyor and investigator, the competent authority of the OP reached at a conclusion that there is misrepresentation regarding material facts and complainant has failed to produce route permit of the vehicle and the claim was repudiated. However, if we go through the record carefully, then the spot Surveyor Er. Suresh Sharma in his report Annexure OP-3 has specifically mentioned in the relevant column that the condition of route permit is not applicable in the present case. Moreover, the investigator has specifically mentioned in his report that he came to know from the concerned RTO office that no route permit was issued in favour of the vehicle in question and there was a necessity of route permit as per Section 66 of the MV Act. Section 66 of the MV Act is reproduced below:

66. Necessity for permits.—

(1)               No owner of a 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 carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

(2)               The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: 1[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.]

(3)               The provisions of sub-section (1) shall not apply

(a)               XXXXX

(b)               XXXXX

(c)               XXXXX

(d)               XXXXX

(e)               XXXXX

(f)                XXXXX

(g)               XXXXX

(i)               to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;

8.                The bare perusal of relevant provisions of MV Act clearly goes to show that if gross vehicle weight is less than 3000 kg. then there is no need of route permit. In the present case, the laden and unladen weight of vehicle in question is 2055 Kgs, therefore, there was no necessity of route permit in the present case. It appears that report of spot surveyor was not gone through carefully by the competent authority of the OP as well as investigator, who has submitted his report without taking into possession any relevant document as a proof from the office of RTO, therefore, we are of the considered opinion that as per provisions of Section 66 of the MV Act and as has been held by the Hon’ble Supreme Court and Hon’ble NCDRC in various cases, there is no need of route permit for the vehicle having gross vehicle weight less than 3000 kg.

9.                Now comes the question of misrepresentation of material fact of case. The plea of the complainant is that he and his driver parked the vehicle at a safe place on 23.09.2018 and when on 24.09.2018 they came to the spot, where the vehicle had been parked, then they found that it has rolled down from the hill and there was total damage. It is plea of the complainant that it happened due to land sliding and boulders also came from the upper side, which hit the vehicle due to which the vehicle rolled down about 200 meters below the road. The spot surveyor, final surveyor and investigator have stated that there was a dense forest  and there was no possibility of coming of boulders from the upper side and doubted the version of the complainant. However, the complainant has lodged rapat Annexure C-2 with PS Nerwa and the perusal of the same clearly goes to show that the cause of damage to the vehicle was land-sliding due to heavy rains for the last two days and police verified that there were boulders on the spot and marks regarding hitting with stone were there on the body of the tractor.  The report was lodged after accident, but the spot surveyor visited the spot and conducted the survey on 08.10.2018. The report of final surveyor is dated 08.11.2018 and investigator is dated 31.03.2019. It is on the basis of these three reports that the OP reached at a conclusion that the mode and manner, in which the accident has been narrated by the complainant in the complaint, has not taken place and accident has taken place in some other manner and it is also not known who was driver of the vehicle at the time of accident. It appears to us that when the complainant after accident lodged the report and police had verified the facts, only then the police decided not to proceed further with the matter, otherwise there would have a case of rash and negligent driving and the police was under obligation to take cognizance and register a case. The plea of the OP and evidence on record is not sufficient to establish that the story of the complainant in respect of mode and manner of accident is not genuine. Reason being that if the story of the complainant is doubtful, then it is for the OP to prove by leading reliable and cogent evidence that in what manner the accident has taken place, but by simply doubting the story of complainant, the OP cannot absolve from its liability under the terms and conditions of the policy. Moreover, neither any spot map nor the photographs of the spot were placed on record in support of plea of dense forest. Therefore, it appears to us that the OP by appointing spot surveyor, final surveyor and after a long time an investigator, has tried its best to escape from its liability, but has forgotten to go through the provisions of the law so far want of route permit is concerned and has, therefore also, failed to establish through evidence on record that version of the complainant in regard to damage caused to vehicle is doubtful. Rather, we are of the considered opinion that the version of the complainant is to be accepted so far damage to vehicle is concerned. Reason being that complainant has lodged report with the police and when the police was satisfied with the spot situation, only then police decided not to proceed further with the matter, because there was no loss, except damage to the vehicle. Hence, we are considered opinion that the OP has wrongly repudiated the claim of the complainant and the OP is liable to indemnify the loss caused to the complainant.      

10.              Now comes the question of quantum of compensation. The IDV of vehicle in question is Rs.4,21,000/- as per policy Annexure OP-1. The OP as per its own plea, appointed the surveyor on receipt of intimation regarding accident. On perusal of survey report, Annexure OP-4, it is clear that the surveyor has assessed the liability of the insured to the tune of Rs.4,21,000/- on total loss basis and to the tune of Rs.3,55,500/- on net of salvage basis after deducting a sum of Rs.65,000/- on account of value of salvage without RC and Rs.500/- on account of excess clause. It has been held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in United India Insurance Co. Ltd. vs. Deen Dayal, II (2009) CPJ 45 (NC) that Surveyor’s report being important document cannot be brushed aside lightly without any material contrary on record. The Hon’ble Apex Court in Venkateshwar Syndicate versus Oriental Insurance Company Ltd. & another,  II (2010)CPJ 1 (SC) has held that reports of the surveyors have to be given due importance and there should be sufficient grounds to dis-agree with the assessment made by the surveyors.  Similarly, in Khimji Bhai and sons vs. NIA,  IV (2011) CPJ 458 (NC), the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that report of the surveyor cannot be ignored without giving cogent reasons.

11.              In view of the aforesaid binding precedents, the report of the surveyor has to be accepted and has to be taken into consideration for determining the amount of compensation liable to be paid to the complainant by the OP to the complainant. 

12.              In view of the foregoing discussion and reasons assigned therein the complaint is ordered to be allowed and the OP is directed to pay Rs.4,21,000/- to the complainant alongwith interest @ 9% per annum from the date of filing of complaint till its payment subject to depositing of salvage and cancelled RC by the complainant with the OP. However, it is made clear that in case the complainant fails to deposit the salvage and cancelled RC with the OP then the value of the salvage to tune of Rs.65,000/- and amount of Rs.500/- on account of excess clause, shall be deducted from the aforesaid amount of Rs.4,21,000/-. The OP is also directed to pay a sum of Rs.50,000/- to the complainant as compensation for mental harassment and agony and sum of Rs.25,000/- as costs of litigation. The OP is directed to comply this order within 45 days from the date of passing of the order. Copy of this order be supplied to the parties free of cost as per rule. The file after its due completion be consigned to the Record Room. 

          Announced on this the 10^th day of August, 2023.

 

                                                                                                            (Dr. Baldev Singh)

                                                                                            President

 

                                                                         (Yogita Dutta)            (Jagdev Singh Raitka)

*GUPTA*                                                                                      Member                             Member