DATE OF FILING: 16.10.2013
DATE OF DISPOSAL: 04.12.2017.
Dr. N. Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against the Opposite Party (in short the O.P.) and for redressal of her grievance before this Forum.
2. The relevant facts that are briefly required for disposal of this consumer dispute are that the complainant is a consumer of the O.P. who has insured her passenger Bus bearing Registration No.OR-07-V-3873 vide policy No.345400/31/ 2011/2413 that was valid from 08.10.2010 to 07.10.2011 on payment of Rs.33,229/- as annual premium. When the policy was in force on 01.07.2011 at about 4.05 P.M. the insured Bus was met with an accident near village Jilundi, Main Road, while going to Phulbani to lift pilgrim passengers from Berhampur as a result it caused death of a third party. Under the said comprehensive insurance policy, the O.P. has undertaken to cover the statutory risk including the O.D. claim of the insured Bus in the event of any loss. It is also stated that due to the said accident the nearby angry mob damaged the body of the vehicle which caused loss to the complainant an amount of Rs.2,60,000/- towards repairing charges of damaged bus. The insured intimated the matter to the insurance company verbally and in writing and submitted documents like claim form, bills and vouchers of spare parts, for repairing charges and cost of mechanic. The O.P. on receipt of the claim intimation deputed a surveyor who assessed the loss and did the needful at his end. It is also stated that the O.P. also deputed a second surveyor to inspect the vehicle to make it ready to move on public road. After elapse of eight months, on 01.03.2012 the O.P. repudiated the claim of complainant on the ground that the vehicle at the material time of accident was not having a valid permit. It is also claimed that the complainant intimated the insurance company that in fact no passengers were travelling in the said bus at the time of accident and it was plying empty towards Phulbani to lift pilgrim passengers on the next day of early morning on 02.07.2011 as the route permit was issued from 01.07.2011(6PM) to 07.07.2011 for a circuitous route from Berhampur via Phulbani and back to Berhampur with pilgrims. It is also stated in the complaint that to corroborate her submissions, the complainant also submitted all the police papers of the S.D.J.M. Court, Bhanjanagar vide G.R. No. 310/2010 to show that actually there was no passenger in the Bus at the material time of accident. But the O.P. did not consider the show cause reply of the complainant and repudiated the claim on the ground of ‘not having valid permit’ as per their letter dated 21.03.2012. Being aggrieved by the said letter of repudiation of the O.P., the complainant filed a complaint before the Regional Manager, Oriental Insurance Company Ltd., Bhubaneswar submitting the foregoing facts to make good of her loss of own damage claim under the comprehensive policy of insurance but there was no response. When the O.P. did not give any heed to her grievances, she has filed this consumer dispute alleging deficiency in insurance service on the part of the O.P and prayed to direct the O.P. to pay the loss amount of Rs.2,60,000/- with 9% interest and Rs.5,000/- as cost of litigation in the best interest of justice.
3. Upon notice, the O.P. appeared on 24.04.2014 through learned counsel Shri P.C. Panigrahi, Advocate, and filed version on 04.11.2015 and written argument on 19.0.2016 respectively. In the written version/argument it is stated that the averments made in the complaint are not true and correct. The complainant has to prove the same which are not specifically admitted herein and they are deemed to be denied. The averment made in para-1 of the complaint is partly true. It is true that the bus bearing No.OR-07-V- 3873 was insured under this O.P. vide policy No.345400/31/2011/2413 but it is not true that the complainant was insured her vehicle to ensure the privilege of getting damage in case of any accident. The averments made in para-2, 3 & 4 of the complaint are not true and correct. It is not true that while the bus was proceeding to Phulbani without carrying passengers to lift pilgrim passengers from Berhampur it met with an accident on 01.07.2011 at about 4.05 P.M. Further, it is not true that the O.P. undertake to cover the statutory risk including the O.D. claim of the bus after insured in the event of any loss. The averments made in Para 5 & 6 of the complaint are not true and correct. It is not true that due to the alleged accident the complainant has sustained loss of Rs.2,60,000/- and she has submitted all bills and documents in support of her expenditure of the vehicle. The averments made in Para 7, 8 & 9 of the complaint are not true. It is a fact that after getting intimation about the alleged accident from the insured, this O.P. deputed a surveyor for making spot survey. Thereafter another surveyor was deputed for making assessment of loss of the damaged vehicle. Similarly, it is true that the O.P. repudiated the claim of the complainant on the ground that the insured vehicle had no permit at the time of the alleged accident. The second surveyor after making inspection of the damaged vehicle and verifying the bills and vouchers has assessed the net loss of Rs.1,17,000/- to which the complainant has given her consent to the surveyor. The said surveyor after completion of survey submitted its report along with the consent letter of the complainant and photocopies of vehicular documents such as policy copy, permit, fitness certificate etc. received from the owner of the vehicle by the O.P. for processing the claim. After getting final survey report, the O.P. while processing the claim found that the above insured vehicle had no permit at the time of alleged accident. Further, on perusal of certified copy of the permit alleged vehicle and on close scrutiny of the papers submitted by the complainant in support of her claim by the O.P. it is noticed that the complainant has obtained special permit vide No. SPL/TP/07/717/11 valid from 01.07.2011(6.00P.M.) to 07.07.2011 for the area from Berhampur to Berhampur via Aska, Bhanjanagar, Phulbani, Raikia, Boudh, Puri, Cuttack, G.Tarini etc. As per the permit issued by the R.T.O. Ganjam, Chhatrapur, the insured vehicle had to start from Berhampur towards Phulbani at 6 P.M. on 01.07.2011. But prior to the schedule time the complainant was allowed to ply her vehicle in between Berhampur to Bhanjanagar without permit by violating the prime condition of policy as well as the statute as laid down under the Indian Motor Vehicle Act. The accident could be averted if the vehicle would have started from Berhampur in schedule time as granted by the RTO, Ganjam. The O.P. after came to know about this fact has repudiated the claim of the complainant on the ground of no permit after giving opportunity to the complainant and the same was intimated to her. The O.P. has not committed any deficiency in service in dealing with the claim of the complainant. Further it is submitted that the complainant has more number of buses and dealing with the transport business for commercial purpose with profit orientation. So she can not be a consumer within the definition of Consumer Protection Act, 1986. It is also contended that the complaint filed by the complainant is otherwise not maintainable under law and is barred by limitation. Therefore, the O.P. prayed to dismiss the complaint with exemplary cost in the interest of justice.
4. On the date of hearing we have heard the learned counsel for the complainant as well as for the O.P. We have also gone through the case record and verified the documents. During the course of hearing of the consumer dispute, the learned counsel for the complainant submitted that in this case the complainant obtained insurance policy in favour of her vehicle bearing No.OR-07-V-3873 for the period 08.10.2010 to 07.10.2011 on payment of the premium as stated above. During the policy is in force, the vehicle met with an accident on 01.07.2011 at about 4.05 P.M. The complainant furnished the estimated cost of repairing charges of the vehicle amounting to Rs.1,17,000/- as per the survey report. However, the claim of the complainant was repudiated on 01.03.2012 and 21.03.2012 on the ground that the said vehicle was not having permit at the time of accident. The learned counsel for the complainant in support of his arguments has also cited a decision of Hon’ble Supreme Court of India, New Delhi reported in 2016 (2) T.A.C. 731 (SC) in the case of Lakhmi Chand versus Reliance General Insurance and prayed to direct the O.P. to settle her insurance claim.
5. On the contrary, the learned counsel for the O.P. in his submissions contended that it is beyond any doubt or dispute that the insurance policy was valid at the time of accident but as per documents submitted by the complainant after survey by the O.P. and on processing of the claim of complainant it was found that the said vehicle had no route permit at the time of alleged accident. On careful perusal of certified copy of the permit of above said vehicle it has come to the notice of insurance Company that the complainant had obtained the special permission vide No.SPL/TP/07/717/11 valid from 01.07.2011 (6 P.M.) to 07.07.2011 for the area from Berhampur to Phulbani via Aska, Bhanjanagar, Phulbani, Raikia, Boudh, Puri, Cuttack and Ghatagaon Tarini. As per the said permit issued by the Regional Transport Authority (RTO), Ganjam, Chhatrapur, the insured vehicle had to start from Berhampur towards Phulbani at 6.00 P.M. on 01.07.2011 but prior to the scheduled time the complainant was allowed to ply her vehicle in between Berhampur to Bhanjanagar without permit and for that it was met with an accident near Bhanjanagar on 01.07.2011 at about 4.05 P.M. which is violation of the prime conditions of the policy. Since the vehicle was running on the public road without having valid route permit the insurance company is not liable to compensate the loss due to violation of policy conditions. The learned counsel for the O.P. in support of his arguments also cited a few decisions of Hon’ble National Commission, New Delhi in the case of New India Assurance Co. Ltd. versus Deepak Jayoti Sharma decided on 29.09.2015 vide Revision Petition No. 1180 of 2010, in the case of Western Railway versus Vinod Sharma reported in 2017 (1) CPR 130 (NC), in the case of United India Insurance Co. Ltd. versus Trilok Kaushik reported in IV (2010) CPJ 321 (NC) and in the case of IDBI Home Finance Ltd. versus Ajoy Kumar Mallick IV (2010) CPJ 324 (NC) respectively. He has also cited a decision of Hon’ble Madhya Pradesh State Commission in the case of New India Assurance Co. Ltd. versus Jitendra Bhai Patel reported in II (2015) CPJ 164 (SCDRC,MP) and prayed that on the basis of aforesaid decisions the case of the complainant may be dismissed due to violation of the policy conditions.
6. We have heard the submissions of both parties at length and thoughtfully considered the same. We have also verified the documents and gone through the policy conditions and report of the surveyor. On perusal of materials on the case record especially Route Permit of the alleged vehicle, it reveals that the special permission was granted by the Regional Transport Authority (RTA), Chhatrapur , Ganjam on 01.07.2011 which was valid from 01.07.2011 (6 P.M.) to 07.07.2011. In this case the alleged accident of the vehicle in dispute was occurred on 01.07.2011 at about 4.05 P.M. From the foregoing discussions it is clear that the alleged accident was occurred two hours prior to the grant of the permission since the permit was granted on 01.07.2011 at about 6.00 P.M. and the alleged accident was occurred at about 4.05 P.M. on the same day. Since the vehicle was plying on the public road without a valid route permit it is held to be gross violation of term and conditions of the policy in dispute. In our considered view when the alleged vehicle violated the policy terms and conditions, the complainant is not entitled to any insurance claim. Our finding is fortified with the decision of Hon’ble National Commission, New Delhi in case of United India Insurance Company versus Trilok Kaushik reported in IV (2010) CPJ 321 (NC) where it was held ‘no transport vehicle can be used at any public place without a valid permit which is breach of fundamental conditions and breach of law. In view of the above discussions and considering the fact and circumstances of the case since during the material time of accident the alleged vehicle was not having a valid rout permit, the O.P. insurance company is justified repudiating the claim of the complainant since the insurer is liable to compensate the loss of the vehicle on the ground of fundamental breach of policy conditions.
7. In this case, the learned counsel for the complainant has cited an authority of Hon’ble Supreme Court of India as stated above in support of his argument. However, on careful perusal of the said decision we find the said decision is not applicable to this case since the fact and circumstances of the said decision is distinguishedly different from that of the present case. In the said case it was held that ‘insurer in order to avoid liability must not only establish defence claimed but also establish breach on part of owner for which burden of proof would rest on insurer’. Accordingly, in the instant case, the document i.e. the route permit speaks for itself that prior to issue of route permit the vehicle was plying on the public road without a valid route permit which is fundamental breach of policy conditions and breach of law. We are, therefore, not inclined to accept the authority of Hon’ble Supreme Court of India as it is not applicable to this case due to factual differences of both cases hence the said decision is rejected. In view of the foregoing discussions and considering the fact and circumstances of the case, the complaint of the complaint is dismissed against the O.P. due to devoid of any merit.
8. In the result, the complaint of the complainant is ordered to be dismissed due to devoid of any merit. However, in the peculiar fact and circumstances, parties are directed to bear their own cost. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this day of 4th December 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
