ORDER
MRS. NEENA SANDHU, PRESIDENT
Sh. Khushwinder Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-
i) To make payment of the expenses of Rs.2,98,000/-, required for repair of the vehicle in question,
ii) To pay Rs.1,00,000/- as compensation on account of mental agony & physical harassment suffered by him, due to deficiency in service on their part,
iii) To pay Rs.5000/- as litigation expenses,
iv) To award any other relief, which this Forum may deem fit, in the interest of justice.
2. In brief, the case of the complainant is that he is working at Punjab Electrician Factory, Industrial Area, Phase-2, Mohali. In the month of July 2013, he bought a Maxximo Van, Make Mahindra, from the O.P. No. 2. At the time of purchase of the said vehicle bearing No. PB-12-T-4213, the O.P. No. 2 got it fully insured with the O.P. No. 1 i.e. Oriental Insurance Company vide insurance cover No. 947217 for the period from 17.07.2013 to 16.07.2014 for a sum of Rs.3,65,492/-. He had also paid the full premium amount of Rs.19,370/- to the O.P. No. 1 at that time and it was also assured by the O.P. No. 2 that the insurance policy is a cashless policy. The said vehicle was got financed from Mahindra & Mahindra Financial Services Limited and the loan amount is yet to be paid by him. It is further stated that on 10.02.2014, when he was coming from his duty along with Kulbir Kaur, Sarabjit Kaur, who also work with him, the said vehicle met with an accident in the area of Bus Stand, Lutheri, due to which it was badly damaged. In that regard FIR No. 41 dated 11.02.2014 was registered with the P.S. Morinda. He got injuries and suffered multiple fractures in the said accident and was referred to GMC Hospital, Sector 32, Chandigarh, where he remained admitted till 3rd March 2014. The information regarding damage caused to the vehicle was given to the O.P. No. 1 on 11.02.2014, by his wife. The O.P. No. 1 assured her that surveyor would be deputed and claim amount would be passed according to the loss caused to the said vehicle. He remained under treatment for a long time, as he had received multiple fractures on his body and was unable to move or walk. The vehicle was sent to the O.P. No. 2 on 05.06.2014 for doing necessary repairs, who prepared an estimate of Rs.2,98,000/- for repairing the same, which was sent to the O.P. No. 1, but till date, neither the O.P. No. 1 has made payment of the claim amount nor the O.P. No. 2 has repaired the vehicle, as such, the same is still lying in possession of the O.P. No. 2, in a damaged condition. The O.P. No. 2 again got the said vehicle insured with ICICI Lombard, forcibly, and forced him to pay the premium amount of Rs.18,073/- for the said purpose, although the vehicle was lying in a damaged condition. As per requirement of the O.Ps., he submitted all the documents to them, who assured him that they would finalize the bill and make payment of the same shortly, but to no use. He had visited the office of the O.P. No. 1 time & again and requested it to make payment of the claim amount, so that he could get his damaged vehicle repaired, but its employees refused to accede to his request. Finally, the claim has been repudiated, illegally & arbitrarily, due to which he has suffered mental agony, physical harassment and financial loss. Hence, this complaint.
3. On being put to notice, the O.P. No. 1 filed written version in the form of affidavit of Sh. V.K. Bhoocher, Manager Inchrage, taking preliminary objections; that the present complaint is not maintainable in the present form; that there was breach of policy condition because the driving license of the driver, who was driving the vehicle at the relevant time, was valid for driving only MCWG/LMV (Non-Transport)/LMV-GV, whereas the insured vehicle was a passenger vehicle; that the Maxxima Mahindra No. PB-12-T-4213 in question is a passenger vehicle for which permit is required, but the owner of the said vehicle had not applied for the route permit; that driving of the vehicle on road, without permit is also breach of one of the policy conditions; that there is no deficiency in service on the part of the insurance company and it has already repudiated the claim on account of violation of policy conditions; that this Forum has no jurisdiction to decide the instant complaint, as it involes so many complicated facts, which cannot be decided in the summary nature, without recording the evidence and cross examination, for which only civil court has the jurisdiction. On merits, it is admitted that the complainant had taken the policy in question from the answering O.P., after payment of requisite premium. It is stated that the answering O.P., after receipt of intimation regarding the accident of Maxxima Mahindra No.PB-12-T-4213, immediately deputed an independent surveyor duly licensed by IRDA to assess the loss caused to the said vehicle. The said surveyor inspected the damaged vehicle and had also taken its photographs. After conducting survey, the said surveyor had submitted report to the answering O.P. As per the said report, the damaged caused to the vehicle was Rs.2,02,492/- and after deducting the salvage amount of Rs.7116/- + Rs.1000/- under excess clause, the said amount came to Rs.1,94,316/-. The said amount includes tax of Rs.25,357.78/-. The complainant has not submitted the bills of repair. It is further stated that the vehicle was overloaded at the time of alleged accident as per FIR, as such, after deducting the requisite amount on that account, the assessed claim amount came to Rs.1,45,737/-. It is reiterated that the answering O.P. got verified the driving license of the driver, who was driving the vehicle at the time of accident, from the licensing authority and it was found that the said driving license was valid for driving MCWG/LMV (non transport)/LMV/GV only, whereas the insured vehicle was a passenger vehicle, therefore, the said DL was not valid for driving the said vehicle, which amounted to breach of policy condition. The answerint O.P. has, thus, repudiated the claim after applying its impartial mind, due to violation of the policy conditions and repudiation letter was also sent to the complainant. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with cost.
4. The complainant has also filed replication to the written version filed by the O.P., reiterating the averments made in the complaint and denying the facts mentioned in the written version, further stating that the transport authority has allotted the commercial number in “T” series to the vehicle in question and the said number has been written on yellow number plate.
5. None having appeared on behalf of the O.P. No. 2, inspite of issuance of notice through registered A.D. cover, it was proceeded against ex-parte vide order dated 5.10.2015.
6. On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. CW1/A, affidavit of Smt. Kulbir Kaur wife of Sh. Kulwinder Singh Ex.CW2/A, photocopies of documents Ex.C1 to Ex.C6 and closed the evidence. On the other hand, the learned counsel for the O.P. tendered affidavit of Sh. V.K. Bhoocher, Manager Insurance of OIC, Ex.OP-1, photocopies of document Ex.OP-2 to Ex.OP-8 and closed the evidence.
7. We have heard the learned counsel for the complainant and the O.P. No. 1 and gone through the record of the file carefully.
8. The learned counsel for the complainant submitted that the duly insured Maxximo van of the complainant met with an accident on 10.2.2014 i.e. during the validity period of the insurance policy in question, regarding which FIR was lodged with the police station, Morinda. Since the complainant had got injuries in the said accident, therefore, his wife gave intimation to the O.P. No. 1 regarding the same, on 11.2.2014. On 5.6.2014, the said vehicle was sent to the O.P. No. 2 for its repair, who gave an estimate of Rs.2,98,000/- to repair the same. The said estimate was sent to the O.P. No.1, but the O.P. No.1 has not made payment of the said amount, therefore, the O.P. No. 2 has not repaired the vehicle and the same is still lying with the O.P. No. 2 in the damaged condition. He further submitted that the O.P. No. 2 had again got the vehicle insured with the ICICI Lombard, and forced him to pay the premium of Rs.18,073/- for the same, inspite of the fact that the vehicle was in a damaged condition. All the requisite documents have already been submitted to the O.Ps. by the complainant, but the O.P. No. 1 has illegally and arbitrarily repudiated the claim. The aforesaid acts of the O.Ps. amount to deficiency in service & adoption of unfair trade practice, due to which, he has suffered mental agony, physical harassment and financial loss. Therefore, the reliefs, as prayed for in the complaint, may be granted to him.
9. On the contrary, the learned counsel for the O.P. No.1 submitted that after receipt of intimation regarding accident of the vehicle in question, the O.P. No. 1 immediately deputed an independent surveyor, who after inspecting the damaged vehicle submitted his report. He had assessed the loss of the damaged vehicle to the tune of Rs.2,02,492/-. After deducting the salvage value of Rs.7176/- & Rs.1000/- towards excess clause, the said amount came to Rs.1,94,316/-. Since the vehicle was found overloaded at the time of alleged accident as per the FIR, therefore, the said surveyor had assessed the loss at Rs.1,45,737/-, after deducting 25% of the said amount of Rs.1,94,316/-, on account of overloading. After receipt of the above said report from the surveyor, the insurance company got verified the driving license of the driver, who was plying the vehicle at the relevant time of accident and it was found that the said license was valid to drive only MCWG/LMV (Non-Transport)/LMV-GV, whereas the insured vehicle was a passenger vehicle, therefore, the said license was not valid for driving the said vehicle, which amounted to breach of policy condition. He further submitted that the vehicle in question is a passenger vehicle and to ply the same, permit is required, but the complainant was found plying the same without permit, which also amounted to breach of policy condition. Therefore, the claim has been rightly repudiated. The learned counsel has also relied upon the judgment passed by the Hon’ble Punjab & Haryana High Court in the case—‘Jamil Khan and another vs. M/s Bajaj Allianz General Insurance Company Ltd. and others’ 2013(1) RCR (Civil) 111 wherein it has been held that plying of vehicle without route permit is a violation of terms & conditions of the insurance policy.
10. The O.P. No.1 has repudiated the claim vide letter dated 18.9.2015(Ex.OP-8) on the following grounds:-
1) Vehicle being a passenger carrying vehicle and was used for the same purpose at the time of accident/mishap and the complainant was asked to produce the route permit, but the same was not produced, as he had not applied for the same,
2) At the time of accident, the vehicle was driven by Khushwinder Singh insured/owner and his license was issued by DTO, Jalandhar for MCWG/LMV(Non-transport)/LMV-GV only and as per registration certificate the vehicle is registered as Maxi-cab, hence, the license holder was not authorized to drive the said vehicle.
From the copy of registration certificate, Ex. OP-4, it is evident that the vehicle in question, having registration No. PB-12-T-2213, is a Maxximo Minivan and its gross weight is 1750 kilograms and its unladen weight is 1090 kilograms and total seating capacity of the same has been mentioned as ‘8’. As per Section 2(21) of the Motor Vehicle Act, 1988 a “light motor vehicle” means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller, the unladen weight of any of which does not exceed 7500 Kgs. Since the unladen weight of the insured vehicle of the complainant is 1090 kilograms only, therefore, it is a light motor vehicle, as per the aforesaid provisions of the Motor Vehicle Act. As per sub Section 22 of Section 2 of the Motor Vehicle Act, a “maxicab” means any motor vehicle constructed or adapted to carry more than six passengers but not more than twelve passengers, excluding the driver, for the hire or reward. Since the sitting capacity of the vehicle in question is of 8 passengers, therefore, it falls under the category of “maxicab” and as per provisions of Motor Vehicles Act, a person, who possesses a driving license to drive an LMV is capable to drive a “maxicab” . From the perusal of driving license of the driver i.e. Khushwinder Singh, Ex.C2/Ex.OP-5, who was plying the insured vehicle at the time of accident, it is apparent that he was holding a license to drive MCWG/LMV/LMV-GV, which was valid for transport till 23.3.2017 & for non transport till 01.10.2021, therefore, it cannot be said that he was not holding a valid driving license to ply the vehicle in question. As such, the O.P. No. 1 was not justified in repudiating the claim of the complainant on the ground that the license holder was not authorized to drive the said vehicle. So far as the other ground taken for repudiation of the claim that the complainant is not having route permit to ply the said vehicle as a passenger carrying vehicle, is concerned, it may be stated that while giving reply to para No. 2 of the preliminary objections taken by the O.P. No. 1, the complainant has stated in the replication filed by him that the transport authority has allotted a commercial number to the vehicle in question i.e. ‘T’ series PB 12-T-4213 and the same has been written on the yellow plate. Thus, it is admitted by the complainant himself that the said vehicle is being used as a commercial vehicle. Consequently, to ply the said vehicle, permit was required to be obtained as per Section 66 of the Motor Vehicles Act, 1988, which reads as under:-
“66. Necessity of permits—(1) No owner of a motor vehicles shall use or permit the use of the vehicles 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 vehicles in that place in the manner in which the vehicle is being used…….”
However, neither the complainant has averred/pleaded, anywhere in the complaint or in his affidavit or in the replication filed by him that he has obtained the requisite route permit to carry passengers in it, nor any document has been placed on record, on the basis of which it can be said that the necessary route permit has been obtained to ply the said vehicle to carry passengers, from the competent authority concerned. As such, there was violation of Section 66 of the Motor Vehicles Act. Moreover, in the policy document, Ex. OP-7, a specific note regarding limitations to use of the vehicle has been mentioned, which reads as under:-
“Limitations as to Use
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 Vehicles Act,1988”
The complainant has failed to prove that the requisite route permit was obtained by him qua the said vehicle, as such, there was fundamental breach of the aforesaid condition of the policy, therefore, the insurance company cannot be liable to indemnify the loss caused to the vehicle in question. In the Revision Petition No. 308 of 2016, titled-‘Puneet Kumar vs. National Insurance Co. Ltd. & Anr. decided on 11.2.2016, the Hon’ble National Commission, by placing reliance on the decision dated 04.09.2014 given by the Hon’ble Supreme Court in the case—‘Narinder Singh vs. New India Assurance Co. Ltd.’ Civil Appeal No. 8463 of 2014, wherein it has been held that using a vehicle on the public road, without any registration is not only an offence under Section 192 of the Motor Vehicles Act, but also a fundamental breach of the terms and conditions of the policy contract, has held that the view taken by the Hon’ble Supreme Court in a case of driving a vehicle without registration shall equally apply to a case of driving a transport vehicle without the requisite permit, both being offences punishable under the provisions of the M.V. Act and has held that use of a vehicle without permit will be in violation of Section 66 of the Motor Vehicles Act. In this view of the matter, the repudiation of the claim made by the O.P. No.1 cannot be said to be illegal. Accordingly, the complaint filed qua it, is liable to be dismissed, being without any merit. So far as the complaint filed against the O.P. No.2 is concerned, the same is also liable to be dismissed because neither the complainant nor the insurance company had agreed/paid any amount to it for repair of the vehicle in question, as such, it cannot be said to have committed any deficiency in service.
11. In view of the aforesaid discussion, the complaint is dismissed, however, with no order as to costs.
12. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.
ANNOUNCED (NEENA SANDHU)
Dated 14.03.2016 PRESIDENT
(SHAVINDER KAUR)
MEMBER.
