Chandigarh

DF-I

CC/407/2023

JASVINDER SINGH - Complainant(s)

Versus

ORIENTAL INDIA INSURANCE COMPANY LIMITED - Opp.Party(s)

DEVINDER KUMAR

03 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/407/2023
Date of Institution	:	23/08/2023
Date of Decision	:	03/06/2024

 

Jasvinder Singh @ Jaswinder Singh (age 53 years) son of Sh.Sarwan Singh r/o Village Jalalpur, Post Office Dappar, Police Station Lalru, Tehsil Derabassi, District SAS Nagar (Mohali) Punjab.

… Complainant

V E R S U S

Oriental India Insurance Company Limited, Regional Office through its Regional Manager, SCO No.109-111, Sector 17-D, Chandigarh

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Devinder Kumar, Advocate for complainant
	:	Sh. Arjun Kundra, Advocate for OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Jasvinder Singh, complainant against the aforesaid opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that the complainant is the registered owner of an Eicher Canter bearing registration No.PB-65-AZ-6437 (hereinafter referred to as “subject vehicle”), which was got insured from the OP vide insurance policy (Annexure C-2) valid w.e.f. 29.1.2023 to 28.1.2024.  On the morning of 6.3.2023, at around 6:00 a.m. complainant was going from Lalru to Kanpur (UP) by driving the subject vehicle and reached near village Alampur, within the jurisdiction of Police Station Sikandra, District Kanpur Dehat (UP), the subject vehicle met with an accident when a stray cattle/cow came on the road all of a sudden and the complainant tried to save them, as a result of which the subject vehicle struck against the wall of the divider of the road and was badly damaged. The matter was reported to the police in pursuance to which DDR (Annexure C-3) was recorded. Thereafter, complainant brought the subject vehicle from the place of accident to Swami Auto Care Private Limited, Derabassi, District SAS Nagar (Mohali) through Satnam LCV Operator Union-Lalru on payment of ₹21,500/-.  On 10.3.2023 the OP was informed about the accident by the complainant and after that a surveyor was deputed.  As the OP was taking time in taking decision qua reimbursement of the claim, complainant had to make arrangement and paid a sum of ₹3.00 lacs to the repairer through account payee cheque in order to start the repair work. Thereafter complainant supplied all the documents to OP and when the OP did not pay any amount to the repairer, complainant finally paid a sum of ₹6,06,891/- i.e. the total cost of repair to the repairer on 29.5.2023. Copies of bills issued by Satnam LCV Operator Union and Swami Auto Care Private Limited are Annexure C-4 & C-5.  Even some body parts of the subject vehicle were also got repaired by the complainant from M/s V.S. Steels, Lalru Mandi and M/s Kiran Pal Budh Ram, Lalru who also raised bills of ₹13,700/- and ₹20,000/- (Annexure C-6 & C-7). Even after providing all the relevant documents required for processing the claim, OP did not settle the claim for quite some time and finally vide letter dated 17.7.2023 (Annexure C-8) OP repudiated the claim on the ground that the RC fitness of the subject vehicle was not valid at the time of accident and also that the DL of the driver was not valid to drive a transport vehicle and the complainant was asked to submit his representation/clarification  within seven days, which was accordingly submitted by him vide reply dated 1.8.2023 (Annexure C-9).  It is further alleged that as the law is settled on this point that a person holding a licence to drive light motor vehicle can drive light goods vehicle whereby the unladen weight of a transport vehicle does not exceed 7500 kgs. and further that the complainant had already applied for transport licence on 21.9.2022 and was issued with a learner’s licence as per rules by the Licensing Authority w.e.f 21.9.2022 to 20.3.2023 and the complainant had also undergone training programme for transport licence, OP has wrongly repudiated the claim of the complainant on flimsy grounds. In this manner, the aforesaid act of the OP amounts to deficiency in service and unfair trade practice. OP was requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts, limitation and jurisdiction.  However, it is admitted that the complainant got the subject vehicle insured from the answering OP vide insurance policy (Annexure R-2), which was valid w.e.f. 29.1.2023 to 28.1.2024.  It is alleged that as the complainant was not possessing a fitness certificate of the subject vehicle at the relevant time i.e. at the time of accident, claim of the complainant was repudiated as there was fundamental breach of the terms and conditions of the policy. It is further alleged that the complainant was also not possessing a valid driving licence as the laden weight of the subject vehicle was 11990 Kgs. at the time of accident and the complainant could not have driven a commercial vehicle by having light motor vehicle licence. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant is the registered owner of the subject vehicle, which met with an accident on the relevant date, time and place and he was having LMV licence to drive a commercial vehicle and was not having fitness certificate at the time of accident i.e. 6.3.2023 and the claim lodged by him was repudiated by the OP vide letter dated 17.7.2023 on the ground that RC fitness of the subject vehicle was not valid at the time of accident and also that the DL of the driver was not valid to drive a transport vehicle, the case is reduced to a narrow compass as it is to be determined if the OP is unjustified in repudiating the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OP has rightly repudiated the claim of the complainant and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP.
   2. So far as the first ground on which the consumer complaint of the complainant has been resisted is concerned, it is the defence of the OP that since the laden weight of the subject vehicle was 11990 Kgs. i.e. above 7500 Kgs., as provided under the Act and further it is an admitted case of the parties that the complainant was possessing LMV licence at the time of accident, there is no merit in the defence of the OP as the law is settled on this point by the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., 2017 ACJ 2011 in which it has been held that –

“Motor Vehicles Act, 1988, sections 3 and 10 (2) (d)-Driving licence-Light motor vehicle-Whether a person holding driving licence to drive 'light motor vehicle' is competent to drive transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7,500 kg or a motor car or tractor or road-roller, the unladen weight of which does not exceed 7,500 kg- Held: yes; no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class; a licence issued under section 10(2)(d) continues to be valid after amendment vide Act 54 of 1994 in MV Act and in Form 4 under rule 14(1) of Central Motor Vehicle Rules, 1989, w.e.f. 28.3.2001.”

3. In the case in hand, as it stands proved on record that the unladen weight of the subject vehicle was 4487 Kgs. and at the time of accident the subject vehicle was only carrying 97 packages of furniture items weighing 1967.068 kgs., as has been mentioned in the surveyor report (Annexure R-4), and the total laden weight of the subject vehicle comes to 6454.068 Kgs., which is much below the prescribed unladen weight of 7500 kgs., it is unsafe to hold that the complainant was driving the subject vehicle without possessing the proper driving licence for the same. 
4. The second ground on which the OP has resisted the claim of the complainant is that he was not having fitness certificate of the subject vehicle at the time of accident. Admittedly, the accident had taken place on 6.3.2023 and perusal of certificate of fitness (Annexure A-15), having been proved by the complainant, clearly indicates that the complainant had applied for renewal of fitness certificate on 28.3.2023 and the subject vehicle was inspected on 29.5.2023 and the certificate was issued on the same day which was valid upto 28.5.2025, making clear that, at the time of accident i.e. on 6.3.2023, complainant was not possessing certificate of fitness of the subject vehicle and was driving the subject vehicle without the same. 
5. The learned counsel for the complainant has relied upon various judgments passed by the Hon’ble Apex Court, Hon’ble High Courts and Hon’ble National Commission by contending that as it has come on record that the complainant could not apply for renewal of the fitness certificate due to the challan of the vehicle and later on obtained the same, OP has wrongly repudiated the claim of the complainant.  In support of his contention, learned counsel for the complainant has relied upon the judgment of the Hon’ble Apex Court in the case of Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., 2010 (4) SCC 536 in which it was held that –

Owner of car obtained Comprehensive Insurance Policy - Allowed the use of car for hire in breach of terms of Insurance Policy - Car met an accident - Insurance Company cannot repudiate the claim in toto.

However, the ratio laid down in the aforesaid case is not applicable in the present case as same does not relate to the issue of fitness certificate of vehicle.

6. Learned counsel for complainant has further relied upon the judgment of Hon'ble Punjab and Haryana High Court at Chandigarh in the case of New India Assurance Company Limited Vs. Sushil Kumar & Ors., 2021:PHHC:076478 in which it was held that where route permit has been renewed at a later date, the same takes effect from the date it had expired.  However, the ratio laid down in the aforesaid judgment is also not applicable as the issue in the present case is of fitness certificate and not route permit. 
7. Learned counsel for the complainant has further relied upon order passed by the Hon’ble National Commission the case of New India Assurance Co. Ltd. Vs. Balbir Banshtu, 2023(1) CPR 292 in which it was held that –

“Consumer Protection Act, 1986 Section 21 Vehicle Insurance - Damage to vehicle due to accident - Repudiation of claim by Insurance Company on ground that the Fitness Certificate of the vehicle was not valid - Consumer complaint filed before District Forum - Said complaint was allowed - Appeal filed against same dismissed by State Commission - Hence present revision petition has been filed - Held, petitioner has challenged the order of State Commission on the very same grounds which were raised before the District Forum as well as the State Commission in appeal - Concurrent findings on facts of foras below are based on evidences led by the parties and documents on record - Hence, no interference warranted - Revision petition dismissed.

 

However, from perusal of the entire order passed by the Hon’ble National Commission one thing is clear that the Hon’ble National Commission has primarily dismissed the revision petition by holding that the concurrent findings on facts of Foras below are based on evidences led by the parties and documents on record, hence no interference warranted by also discussing the judgment passed in the case of Amalendu Sahoo (supra).

8. The aforesaid judgment in the case of Amalendu Sahoo (supra) is countered by the learned counsel for the OP by relying upon the judgment of Hon’ble Apex Court in the subsequent case titled as Narinder Singh Vs. New India Assurance company Ltd., (2014) 9 SCC 324, in which the aforesaid judgment has also been discussed, and it was held that –

if the vehicle is not validly registered as per the provisions of the Motor Vehicles Act, 1988, it amounted to a fundamental breach of terms and conditions of the policy and the claim is not payable. As laid down in Section 56 of the said Act regarding certificate of fitness of transport vehicles, it is clearly stated that a vehicle shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a certificate of fitness as per the prescribed proforma.

 

9. The aforesaid judgment has also been relied upon by the Hon’ble National Commission in the case titled as United India Insurance Co. Ltd. Vs. Surinder Kumar, R.P. No.2340 of 2013 decided on 23.9.2016 as well as in the case of Bhagu Ram Vs. National Insurance Company Ltd., R.P. No.2283 of 2016 decided on 24.8.2016.
10. Not only this, even the said question of requirement of fitness certificate has also been discussed by the Hon’ble Kerala High Court in its five Hon’ble Judges Bench judgment in the case of Pareed Pillai Vs. Oriental Insurance Co. Ltd., MACA No.2030 of 2015 decided on 9.10.2018, in which Section 39 and 56 of the Motor Vehicle Act were discussed at length and it was held that the fitness of the vehicle put to use as a transport vehicle is of paramount importance and where a transport vehicle does not have fitness certificate, it will be deemed as having no certificate of registration and such lapse, if any, can only be regarded as a fundamental breach and not a technical breach. The relevant paragraphs of the aforesaid judgment are reproduced below for ready reference:-

                     “13. Fitness of the vehicle to be plied on the road as a 'transport vehicle' is very important, especially in relation to the lives and limbs of the persons travelling in the vehicle, the pedestrians, other vehicles and properties of persons who are also using the road. It is with this intent, that a specific provision has been incorporated under the Statute as Section 84, prescribing the general conditions attached to all permits. Clause (a) of Section 84 reads as follows :

84. General conditions attaching to all permits-

The following shall be conditions of every permit-

(a) that the vehicle to which the permit relates carries valid certificate of fitness issued under section 56 and is at all times so maintained as to comply with the requirements of this Act and the rules made thereunder;

14. It is pertinent to note, that power is conferred upon the Transport Authority who has granted the 'Permit' to cancel the Permit or suspend the same on the grounds specified under Section 86; among which Clause (a) is in respect of the breach involving any conditions specified in Section 84 or any condition contained in the Permit. Section 86 (1) (a) and (c), to the extent, it is relevant here, is extracted below :

86. Cancellation and suspension of permits-

(1)The Transport Authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-

(a) on the breach of any condition specified in section 84 or of any condition contained in the permit, or

(b) xxxxx

(c) if the holder of the permit ceases to own the vehicle covered by the permit, or

15. As mentioned above, fitness of a vehicle, to be used as a transport vehicle, is of paramount importance. The necessity to have 'Fitness Certificate' is prescribed under Section 56 of the Act. Sub- section (1) of Section 56 clearly stipulates that, a transport vehicle [subject to the provisions of Section 59 (power to fix the age limit of motor vehicle) and Section 60 (registration of the vehicles belonging to the Central Government)] shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a 'Certificate of Fitness' as prescribed. By virtue of Section 84 (a), as mentioned already, it is a mandatory requirement of every Permit, that the vehicle to which the Permit relates, shall carry valid 'Certificate of Fitness' issued under Section 56 at all time, absence of which will automatically lead to a situation that the vehicle will not be deemed as having a Permit [if it is not having a 'Fitness Certificate' on a given date]. Using a motor vehicle in an unsafe condition in any public place itself is an offence under Section 190 of the Act. Separate penalty is prescribed under Section 192 for driving or using the motor vehicle in contravention of Section 39 of the Act [i.e. without registration]; which at the first instance by fine upto Rs.5000/- [not less than Rs. 2000/-] and for the second or subsequent offences, it may be with imprisonment, which may extend to one year or fine upto Rs.10,000/- [not less than Rs.5000/-] or with both; of course, conferring power upon the Court to impose a lesser punishment, for reasons to be recorded. Similarly, separate punishment is provided for using vehicles without 'Permit' as provided under Section 192A [first offence with fine upto Rs.5000/- which shall not be less than Rs.2000/- and for any subsequent offence with imprisonment upto one year [which shall not be less than 3 months or with fine upto Rs.10.000/- which shall not be less than Rs.5000/-] or with both; here again conferring power on the Court to impose lesser punishment, for reasons to be recorded. Reference is made to the above provisions only to illustrate the utmost requirement to have a valid 'Registration, Permit and Fitness Certificate'.

16. Importance of the fitness/road worthiness of a vehicle, right from the time of registration of the vehicle, is further discernible from Rule 47 of the Central Motor Vehicles Rules 1989 [referred to as Central Rules]. The said Rule deals with application for registration of motor vehicles, which, among other things, stipulates that it shall be accompanied by various documents. Under sub-rule (1) (g), it is mandatory to produce road worthiness certificate in Form 22 from the manufacturers [Form 22A from the body builders]. On completing the formalities/procedures, 'Certificate of Registration' is to be issued in terms of Rule 48 of the Central Rules in Form 23/23A, as the case may be. The said Rule contains a proviso, insisting that, when Certificate of Registration pertains to a transport vehicle, it shall be handed over to the registered owner only after recording the Certificate of Fitness in Form 38. Validity of the Certificate of Fitness is only to the extent as envisaged under Rule 62 of the Central Rules, which mandates, as per the proviso, that the renewal of a Fitness Certificate shall be made only after the Inspecting Officer or authorised Testing Station as referred to in sub Section 1 of Section 56 of the Act has carried out the test specified in the table given therein.

17. The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.”

11. In view of the foregoing discussion and the ratio of law laid down above, one thing is clear that by not having a valid fitness certificate of the vehicle at the time of accident, amounts to fundamental breach of the terms and conditions of the insurance policy and the claim is liable to be repudiated.  Hence, it is safe to hold that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of OP and the OP is justified in repudiating the claim of the complainant.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed, leaving the parties to bear their own costs.
5. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

03/06/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member