DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 23^th day of April 2024

CC.320/2019

Complainant

Mariya Raj,

Asarikandiyil (HO),

Nairkuzhi.P.O, Poolakode, NIT,

Kozhikode - 673601

( By Adv. Sri. Arun Kalarikkal)

Opposite Party

The General Manager,

New India Assurance Com. Ltd,

Kozhikode, D.O.111.(763200),

Door No. 5/86P, 2^nd Floor,

Firemount Builing, Eranhipalam,

Wayanad Road, Kozhikode – 673006

( By Adv. Sri. Benny Joseph Kuruvathazha)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The complainant is the registered owner of Mahindra tourist bus bearing registration No.KL-57-T-1948. The vehicle was validly insured with the opposite party for the period from 6/12/2018 to 5/12/2019. On 13/01/2019 the vehicle met with an accident at Mukkali, Vadakara causing heavy damage to the vehicle. The accident was reported to the Chombala police station and was entered in the GD. The accident was also reported to the opposite party and the vehicle was garaged in the authorised service centre of Mahindra Company. The insurance surveyor and loss assessor inspected the vehicle and assessed the damage. The complainant had preferred the claim and submitted all the necessary documents to the opposite party. He had spent a total sum of 3,39,766/- for the repairs. But his claim was not entertained by the opposite party stating that the vehicle had no contract carriage permit at the time of the accident.  The claim was repudiated stating invalid reason. Hence the complaint for the claim amount of Rs. 3,39,766/- along with Rs. 25,000/- as compensation for the mental agony and hardship suffered and also Rs. 20,000/-  as cost of the proceedings, total being Rs. 3,84,766/-.
3. The opposite party has entered appearance and filed written version wherein they have denied all the allegation and claims made in the complaint. The policy is admitted. It was a commercial package policy. The policy is subject to the terms and conditions and exception applicable to the policy.  The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 as amended from time to time. A claim form was received from the complainant for the damage caused to the vehicle on 13/01/2019. The   surveyor and loss assessor appointed by the opposite party assessed the damage to the tune of Rs. 2,84,210/-.
4. The insured has violated the terms and conditions of the policy and also the provisions of the Motor Vehicles Act. At the time of the accident, the vehicle had no valid contract carriage permit. The claim was rejected for that reason. The complainant is not entitled to the claim. If at all it is shown that the opposite party is liable to indemnify the complainant, then the liability will be as assessed by the surveyor since the package policy is not a nil depreciation policy, but is subject to depreciation mentioned in the policy. There is no deficiency of service on the part of the opposite party. The prayers in the complaint are not allowable. It is, therefore, prayed to dismiss the complaint with costs.  
5. The points that arise for determination in this complaint are;

1. Whether there was any deficiency of service on the part of the opposite party in not entertaining the claim?
2. Reliefs and costs.

6. Evidence consists of oral evidence of PW 1 and Exts A1 to A5 on the side of the complainant. No oral evidence was let in by the opposite party. Exts B1 to B4 were marked. 
7.   Argument note was filed by the opposite party.
8. Point No.1:- The complainant has approached this Commission with a grievance that the claim put in by him in connection with the damage caused his vehicle in an accident was not entertained by the complainant, without assigning valid reason.
9. The complainant got himself examined as PW1 and he has filed proof affidavit and deposed in terms of the averments in the complainant and in support of the claim. Ext A1 is the copy of the policy, Ext A2 is the copy of the general diary abstract, Ext A3 is the copy of the  invoice dated 16/03/2019, Ext A4 is the copy of the registration certificate and Ext A5 is the copy of the repudiation letter dated 01/07/2010. 
10. RW1 is the insurance surveyor and loss assessor and he deposed that he had inspected the vehicle in question and assessed the damages. Ext B1 is the copy of the survey report, Ext B2 is the insurance policy with terms and conditions of the policy, Ext B3 is the contract carriage permit dated 15/01/2019 and Ext B4 is the repudiation letter.
11. The complainant is the registered owner of KL-57-T-1948 Mahindra Tourist Bus. The vehicle met with an accident on 13/01/2019 which resulted in heavy damage to the vehicle. This is evidenced by Ext A2 general diary abstract. The vehicle was validly insured with the opposite party at the relevant time as per Ext A1 policy. At the time of the accident, the vehicle was not having contract carriage permit. The claim preferred by the complainant was not entertained by the opposite party for the reason that the vehicle was not having permit to ply as a contract carriage at the time of the accident.   There is no serious dispute on the above aspects.
12. Ext A4 shows that the claim was not entertained for the reason that the vehicle was not having permit to ply as a contract carriage at the time of accident. Admittedly, the complainant has no case that there was contract carriage permit for the vehicle covering the date of the accident. On the other hand, he has admitted that the vehicle was not having contract carriage permit at the relevant time. Ext A1 policy is subject to terms and conditions and exceptions applicable to the policy. The policy covers use only under a permit within the meaning of the Motor Vehicles Act. The vehicle in question is a mini bus which is insured under Commercial Vehicle Package Policy and for plying such a vehicle, permit is mandatory either contract carriage permit or stage carriage permit. According to PW1, the bus was coming after repair work and hence the absence of permit is of not much significance and the opposite party was not justified in not entertaining the claim on the ground of absence of permit. According to us, such a contention cannot be sustained. Ext B3 reveals that it was only on 15/01/2019 that contract carriage permit was taken. It was taken only on the second day of the accident. The evidence of RW1 and Ext B1 show that as per the odometer reading the vehicle had covered a distance of 2734 kilometres of run at the time of the accident. The inference is that the vehicle was plying without valid permit in contravention of the terms and conditions of the policy and the relevant provisions of the Motor Vehicles Act.
13. As per the definition of “permit” as provided in Section 2(31) of the Motor Vehicles Act, permit means a permit issued by a State or Regional Transport Authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle.  Section 66(1) of the Motor Vehicles Act deals with necessity for permits. It reads as follows “ 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”. Thus there is a total bar on use of a vehicle in any public place whether or not such vehicle is carrying any passenger or goods unless the owner of the vehicle holds a valid permit.
14. In Amrit Paul Singh V/s Tata Aig General Insurance Co. Ltd. – AIR 2018 SC 2662 – the Hon’ble Apex Court has held at paragraph 23 of the judgment as held as follows:

“In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction.”

15. The decision of the Hon’ble National Consumer Disputes Redressal Commission in New India Assurance Company V/s Deepak Jayoti Sharma (decided on 29/09/2015) in Revision Petition No. 1180/2010   preferred against the order dated 26/11/2019 passed by the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission supports the above position. It was held in paragraph 6 of the order as follows :

“ Bare reading of this provision would show that it creates a total bar on use of a vehicle in any public place whether or not such vehicle is carrying any passenger or goods unless the owner thereof holds a permit as defined in Section 2(31). It is not in dispute that respondent was not possessing a permit of the said vehicle on the date of accident. Said sub-section would, thus, be applicable even if vehicle in question was used by the respondentfor his personal work i.e. to return empty 5/6 milk tanks as alleged in para no. 2 of the complaint. Insurance policy represents a contract between the insurer and the insuredand the insured has to act strictly in accordance with the statutory limitations and/or the terms of policy. Since use of vehicle in question at the time of incident was in contravention ofaforesaid Sub-section (1) of Section 66 and conditions of policy, the respondent is not entitled to any amount under the policy. Orders passed by Fora below being legally erroneous cannot be sustained and deserve to be set aside”

16. Here in this case, at the time of the accident the vehicle had no contract carriage permit and so there is violation of the conditions of the policy and also the provisions of the Motor Vehicles Act. That being so, the claim was validly rejected by the opposite party and no deficiency of service can be attributed against the opposite party in repudiating the claim.
17. From the above discussion, what emerges is that there is no proof of any deficiency of service on the part of the opposite party in not entertaining the claim and consequently the complaint must fail.
18. Point No. 2:- In view of the finding on the above point,  the complainant is not entitled to claim and get any relief.

     In the result, the complaint is dismissed. However, no order as to costs.  

    Pronounced in open Commission on this, the 23^rd  day of April, 2024.

Date of Filing: 04.10.2019

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APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the policy.

Ext.A2 – Copy of the general diary abstract.

Ext.A3 – Copy of the invoice dated 16/03/2019.

Ext.A4 – Copy of the registration certificate. 

Ext.A5 – Copy of the repudiation letter dated 01/07/2010. 

Exhibits for the Opposite Party

Ext.B1 – Copy of the survey report.

Ext.B2 – Insurance policy with terms and conditions of the policy.

Ext.B3 – Contract carriage permit dated 15/01/2019.

Ext.B4 – Repudiation letter.

Witnesses for the Complainant

PW1 -  Mariya Raj, (Complainant)

Witnesses for the opposite parties 

RW1 – Abhilash. A. N

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