FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
The case of the complainant in brief is that, complainant is the owner of a luxury taxi being registration No. WB-05-5742, which was registered on 22.02.2018, and is insured with the OP1 under the policy No. 0301003117P115965424 for the period from 07.02.2018 to 06.02.2019(mid night). The complainant deposited Rs.10,000/- to the R.B.I. Kolkata vide challan for obtaining permit from OP2. Meanwhile, the said car met with an accident on 28.04.2018 at New Alipore area and the car was damaged due to knock down by another vehicle. The complainant intimated the OP1 about the said accident on 23.05.2018 and on the same date wrote a letter to the OP1 requesting them to survey the vehicle. State Transport Authority issued luxury permit to the complainant vide No. LT/52139/2018 on 30.05.2018. The complainant submitted all the necessary papers to OP1 on 04.06.2018 and submitted the total claim of Rs.41,970/-. The OP1 has repudiated the claim on the ground that there was no road permit at the time of accident. The complainant then sent a letter to OP2 under the R.T.I. Act requesting them to furnish some vital clarifications in respect of route/area permit of the said car and from the reply of OP2, the complainant came to know that the permit of the said car is valid upto 29.05.2023. Therefore, the complainant informed the matter to the OP1 vide letter dated 29.01.2019 with a request to reimburse his the claim. But the OP1 remained silent over the matter. Therefore, the complainant has no other option to come before this Commission to get relief.
The OP-1 has contested the case by filing W/V denying and disputing all the allegations made out in the complaint petition. The positive case of the OP1 is that the complainant has no cause of action against the OP1 and the said application is defective, incomplete, suppression of material facts and particulars , frivolous and is not maintainable either in law and in facts in its present form, as well as it is also bad for non-joinder and mis-joinder of necessary parties including the OP1.
Despite service of notice, the OP2 did not turn up to contest the case. Therefore, the case is fixed for ex-parte hearing against the OP2.
To prove their case both the parties have adduced evidence on affidavit. They have also filed questionnaires and reply vis-à-vis relevant documents in support of their respective cases. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us .
Fact remains that the complainant is the owner of Luxury Taxi being Registered No. WB-05-5742, registered on 22.02..2018 and holding an insurance policy for the abovementioned vehicle under OP1 being Policy No. 0301003117P 115965424 dated 07.02.2018 for the period of 07.02.2018 - 06.02.2019. It is also true that the car was used by the complainant for commercial purpose for their livelihood by means of self- employment. There is no doubt that the complainant deposited an amount of Rs. 10,000/- (Rupees ten thousand) only to the R.B.I., Kolkata , vide T.R. Challan on 06.03.2018 for obtaining license from the OP2 and deposited the original T.R. Challan along with LT-Permit to the OP2 at their office at 45, Ganesh Chandra Avenue , Kolkata 700013 on 09.03.02018 for the purpose of issuance of LUXURY TAXI PERMIT and the said permit was issued by the OP2 vide NO. LT/52183/2018 on 30.05.2018. The admitted fact is that the car met with an accident at New Alipore area and was damaged due to knock down by another vehicle being No. WB/02AE-2155 at the back side of the car of the complainant on 28.04.2018. The matter was reported to the O.C. New Alipore P.S. vide M.C.R. No. 72/2018 dated 28.04.2018. There is also no dispute that the complainant intimated the said incident to the OP1 and on 23.05.2018 requested them in writing to survey the vehicle, which was duly received by the OP1 , so that the complainant could get repaired the damaged car after receiving reimbursement and all necessary documents was submitted by the complainant to the OP1 along with total claim of Rs.41,970/- on 04.06.2018. The claim was repudiated by the OP1 vide letter dated 13.06.2018 on the ground that route permit being NO. LT/52138/2018 was issued by the OP2 on 30.05.2018 i.e. after the date of accident.
On perusal of record, it appears that OP-1 received an intimation on 02.05.2018 that the said vehicle of the complainant met with an accident and immediately an independent and licensed surveyor of IRDA, namely, Mr. Gautam Roy was entrusted to cause survey of the reported loss of the said vehicle and who in turn made preliminary survey on 03.05.2018 and thereafter final survey was made on 24.05.2018 and re-inspection of the same vehicle was made on 30.05.2018. Subsequently, the final Motor Survey Report was published by the surveyor on 06.06.2018 observing inter-alia that :
“Insurer please note that the Permit effective date is after the date of accident as per the Terms and condition of the policy this claim is not payable.”
The total loss was assessed by the surveyor of Rs.40,828.55/- as per IRDA Regulations, as imperative, without any prejudice and subject to terms and conditions of the said policy.
Ld. Advocate for the OP1 argued that the said policy contains ‘Limitation as to use’ clause which in turns provide :
The policy covers use only under a permit within the meaning of Motor Vehicle Act , 1988 or such a carriage falling under subsection of section 66 of the motor Vehicle Act , 1988.
“The policy does not cover for use for :
- Organized Racing
- Pace Making
- Reliability Trials
- Speed Testing
- Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle .”
IT is also mentioned by the OP1 that the Section 66 and sub section 3 of the Motor Vehicle Act .Secction66 of the Motor vehicle Act , 1988defines the Necessity for permits as :
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 a 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 :
Sub-section 3 of section 66 of the Motor Vehicle Act,1988 says :
(3) The provisions of sub-section (1) shall not apply—
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; 2[***]
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; 3[***]
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
It is therefore manifest and apparent that by said Act , the owner of a commercial vehicle should not use or permit to use of the vehicle in any public place without valid permit .
In this context the Ld. Advocate of the OP1 refers a decision of the Hon’bleNational Commission in the case of Kalyan Singh Chowhan –vs – National Insurance Co. Ltd . through Divisional Manager as reported in 2014(2) CPR 757(NC) and in the said case the stand of the Insurance Co. for repudiating claim on the ground that petitioner was playing the vehicle at a public place in violation of terms and conditions of Insurance policy without having valid route permit inasmach as under the condition of Limitation as to use clause of Insurance policy is affirmed by the Hon’ble Commission . While considering the said judgement the Hon’ble Commission relied on the judgement of the Apex Court in the case of VikramGreentech India Ltd &Anr – vs – The New India assurance Co. Ltd as reported in (2009) 5SCC 599 in Which it is observed by the Hon’ble Supreme Court :
“An Insurance contract is a species of commercial transaction and must be construed like any other contract to its own terms and by itself . In a contract of Insurance , there is requirement of uberimma fides i.e. good faith on the part of the insured . Except that in other respects there is no difference between a contract of insurance and any other contract . Since upon issuance of insurance policy , the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the insurance policy , its terms have to be strictly construed to determine the extent of liability of the insurer . Extra liberalism may result in re-writing and/or re-casting of the contract in other words substituting the terms which are not intended by the parties.”
Ld. Advocate for the OP1 further submitted that deposit of amount of Rs.10,000/- to R.B.I. for the purpose of obtaining permit by the complainant is not sacrosanct as to the date of issuance of the permit and which has been issued 3 months later from the date of deposit of such fees and hence the OP1 is not liable for such non validity of permit at the material point of time of reported accident of the vehicle. We found logic in these submissions .The fact is that the accident took place one months before the issuance of valid permit .Moreover it is not specified by the complainant in which necessity / circumstances the car was to be plied at the public place by the complainant without valid permit . It is also observed by us that the OP1 took necessary measures on their part after receiving the information of the reported accident.
In light of the observation of the Hon’ble Apex Court ,Hon’ble National Commission ,Motor vehicle act,1988 and Limitation as to be use clause of the Insurance Policy , we are of the opinion that neither OP1 is deficient in service nor any kind of unfair trade practice is found by us on the part of the OP1 .
Ex-parte board was fixed against the OP2. But there is no grievances made against them and no relief is sought for by the complainant. As such, we are restraining ourselves to deliver any direction against the OP2.
In result, the consumer complaint fails on merit.
Hence,
ORDERED
That the consumer complaint be and the same is dismissed on contest against the O.P.-1 and ex-parte against the O.P.-2 without any order as to costs.
