MRS. NEENA SANDHU, MEMBER

            This is an appeal, filed by the appellants/OPs, against the order, dated 16.9.2010, passed by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 1465 of 2009, vide which, it allowed the complaint and directed the OPs to pay Rs.3,30,000/- to the complainant, spent by him, on the repair of the bus. The OPs were further directed to pay Rs.10,000/-, as compensation, for wrongly repudiating the claim, as well as for costs of litigation, within 45 days, failing which, the OPs were to pay the amount of Rs.3,40,000/- alongwith interest @12% p.a., from the date of the order, till its actual payment to the complainant.

2.         Briefly stated, the facts of the case, are that the complainant being in the business of transport, was running its bus, on Moga-Faridkot route. It got insured its bus, bearing registration No.PB-29-E-9541, from the OPs, under the ‘Comprehensive Passenger Carrying Package Policy’ bearing No.3004/55133207/00/B00, which was issued on 8.10.2008. It was stated in the aforesaid policy, certain exclusion clauses were incorporated, mentioning about certain IMT endorsements. However, copy of the said IMT endorsements, or the detailed terms and conditions of the policy, were never supplied to the complainant, when the same was sent to him.   It was further stated that the required route permit for the aforesaid bus, was issued by the Regional Transport Authority, Ferozepur, which was valid upto 4.4.2011.  The requisite noting given by the Regional Transport Authority, Ferozepur, on the route permit is reproduced as under :

“Permit renewed upto 4.4.2011 and increase of return trip from 1 to 2 on Moga-Faridkot via Ghallkalan-Dagru-Darapur-Talwandi Bhai-Kotkaror-Mudki vide STC Punjab meeting dated 19.5.2006 item no. 36.” 

It was further stated that, at the time, when the vehicle was got insured, on 8.10.2008, from the OPs, the necessary fitness certificate, with regard to the vehicle, in question, was in force, which was got renewed on 5.8.2009 and was valid upto 4.8.2009. It was further stated that on 27.2.2009 at around 8.20 PM, when driver Gurmail Singh was taking the vehicle to Barnala for some repair, the same met with an accident near Sub-Jail Barnala in a head on collusion with another bus of PRTC, Faridkot, bearing Regd. No.PB-04-L-9904.  It was further stated that, at the time of accident, driver Gurmail Singh had a valid driving licence and there was no passenger, in it. It was further stated that an FIR No.56, dated 28.2.2009, was lodged with Police Station Barnala. It was further stated that the vehicle was badly damaged. Therefore, the OPs were informed about the occurrence of the said accident dated 27.2.2009, on their Customer Care number on 28.2.2009, in the morning itself. It was further stated that after persistent efforts, made by the complainant, and its employees, at last, the OPs appointed a surveyor namely Sh.B.L.Goyal on 7.3.2009, who inspected the vehicle on that day, while the said vehicle was parked in the Police Station. It was further stated that the complainant after following the due procedure of law, got the vehicle, in question, released on Supardari from the Court/Police Station on 20.4.2009, and, thereafter, it got toed the damaged vehicle to Bhadaur for repairs and, accordingly, the surveyor namely Sh.B.L.Goyal, was once again informed from the HB Body Builders, Bhadaur, for necessary inspection. However, Sh.B.L.Goyal informed the complainant that he was out of station and, in his place, Sh.Rakesh Kumar Aggarwal was appointed as a surveyor, to inspect the vehicle and verify the claim.  The complainant once again handed over all the necessary documents required in the case, to the second surveyor. It was further stated that on 6.5.2009 the vehicle was toed to Moga for framing/reframing of the chassis, as well as necessary engine repairs of the vehicle, in question, which was badly damaged in the accident.  The repair bills of the vehicle at Bhadaur as well as at Moga amounted to Rs.3,30,000/-. The complainant requested the OPs, to honour the said bill, so that the complainant could get possession of the vehicle, but the OPs flatly refused to pay the said bills, at the relevant time, on the ground that “the claim file was pending final decision and the claim could only be allowed/passed after final decision in the case.” On account of the said refusal of the OPs, the complainant paid the amount of Rs.3,30,000/- to the respective mechanics. It was further stated that the complainant requested the OPs for payment of claim and supply of copies of the Surveyor’s reports but they did not supply the same. It was further stated that the complainant was surprised to receive the repudiation/rejection letter dated 3.10.2009, but it did not carry the surveyor’s report. The reason for repudiation of claim was that “At the time of accident the vehicle was not on permitted route.” It was further stated that while issuing the policy, the OPs had neither asked for any route permit, nor the same was required, to be submitted, by the complainant, as per the terms and conditions of the insurance policy, agreed to between the parties. The abovesaid acts of the OPs amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         Reply was filed by the OPs, wherein they stated that the Bus involved, in the accident, was insured, only for a specific route, and, as such, the complaint was not maintainable. It was not disputed that the accident took place near Barnala. It was, however, stated that this place was not on the permitted route sanctioned by the STC.  It was admitted that the complainant had taken a Comprehensive Passenger Carrying Package Policy from them but the bus was not being taken to Barnala for any repair work and at the time of accident, the bus was carrying passengers, which was evident from the newspaper and the FIR.  It was further stated that Sh.B.L.Goyal, Surveyor & Sh.Rakesh Kumar Aggarwal, Surveyor were appointed by the OPs, to assess the loss.  It was further stated that the investigation was also done by Er.Sachin Gulati and report of all the surveyors had been placed on record. It was further stated that the act of the complainant by plying the bus, on a different route, was in gross violation and fundamental breach of the contract.  All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OPs, and indulgence into unfair trade practice.

4.         The parties led evidence, in support of their case.

5.       The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of this order.  

6.            Aggrieved by the order, passed by the learned District Forum, the appellants/OPs, filed the instant appeal. 

7.         We have heard Sh.Mrigank Sharma, Advocate, for the appellants, Sh.Rajesh Sehgal, Advocate, for respondent, and, have perused the record, carefully.

8.         An application for condonation of delay of 102 days, was filed alongwith the appeal. The learned Counsel for the applicant/appellant submitted that the order was pronounced on 16.9.2010 by the learned District Forum, but its certified copy was prepared and delivered to the applicants/appellants on 21.9.2010. It was further stated, that no doubt, the appeal could be filed within 30 days, from the date of delivery of the certified copy of the order, yet a delay of 102 days occurred, in filing the same, because after receiving the certified copy of the order on 21.9.2010, the branch office, Chandigarh, immediately forwarded it to the Legal Department at Mumbai for getting official approval and necessary action, wherein decision was taken to file the present appeal, after consultation with the Counsel for the company. In this process a delay of 102 days occurred which was unintentional. 

9.       The Counsel for the respondent/complainant did not contest the application for condonation of delay. The delay in filing the appeal, in our considered opinion, was on account of the cumbersome procedure, which was required to be adopted for processing the case. The decision to file the appeal, was not to be taken by one man. The case had to pass through many channels, before taking the final decision, whether the appeal was to be filed or not. The applicants/appellants throughout acted, in a bona-fide manner. There was no inaction and lack of bonafides on the part of the applicants/appellants, in filing the appeal, in time. The grounds, set up, on the application constitute sufficient cause, for condonation of delay. The application is, accordingly, accepted and the delay of 102 days, in filing the appeal is condoned.

10.     On merits, the learned Counsel for the appellants/OPs argued that, in fact, the complainant had taken a false plea that the vehicle was being taken to Barnala for repairs and, at that time, there was no passenger sitting in the bus, whereas, it was clear from the news, in the newspaper Annexure R/1 that at the time of accident, the bus was carrying around 15 passengers. It was submitted that the fact that the bus was not carrying any passengers and was being taken for repairs was further negated on going through the contents of the FIR attached with the complaint as Annexure C-5. It was further submitted that it was, thus, proved that the complainant was plying the bus for commercial purpose and, that too, not in the area, for which the route permit had been granted. It was further submitted that, as per Section 66 of Motor Vehicle Act, 1988, no transport vehicle could be plied at any place, unless and until, it was in accordance with the permit granted by the State Transport Authority. In support of his contention, the learned Counsel for the OPs placed reliance on the National Insurance Company Vs. Challa Brathama, reported as 2004(8) SCC 517 wherein it was held that for a commercial vehicle not having route permit is a violation and it has to be treated at par with that of not having a valid driving licence.  It was further submitted that this act of the complainant by plying the bus, on a different route, was a gross violation and fundamental breach of contract. It was further submitted that the OPs rightly repudiated the claim of the complainant.

11.     In rebuttal, the learned Counsel for the respondent/complainant, contended that there is no illegality, in the order, passed by the learned District Forum, because at the time of accident, the driver of the bus was taking it to Barnala for repairs and he was not carrying any passengers. It was further submitted that at the time of the accident, the driver of the bus had valid driving licence, and an FIR, was duly lodged, with the Police Station. It was further submitted that the abovesaid bus was repaired, after it was inspected by two surveyors, and the bill (Annexure C-6) of Rs.3,30,000/- were duly submitted to the OPs  but they refused to pay this amount, as a result of which, the complainant paid the amount of Rs.3,30,000/- to the mechanics himself and took possession of the said bus. Even thereafter, the complainant requested the OPs to supply a copy of the surveyor’s report, to him, but they, on 3.10.2009, sent a rejection/repudiation letter Annexure C-7, without the surveyor report, vide which, his claim was repudiated, on the ground, that “at the time of accident, the bus was not plying on the permitted route.” It was further submitted that the act of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice.

12.     It is an admitted fact, that, at the time of accident, the bus was not plying, on the permitted route. The complainant was plying the bus, in violation of the provisions of Section 66(1) of the Motor Vehicles Act, 1988, but at the same time, it is also true that the violation of such a provision was certainly not germane to the accident, and, as such, there was no nexus between the breach of condition and the occurrence of accident. However, in B.V.Nagaraju Vs. Oriental Insurance Co. Ltd. II(1996) CPJ 28 (NC), the principle of law, laid down, was to the effect, that the Insurance Company cannot escape its liability, completely, where the misuse of vehicle was in somewhat irregular manner, but not so fundamental, in nature, as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. The Hon’ble Apex Court held in the case titled as National Insurance Company Limited Vs. Nitin Khandelwal, IV(2008) CPJ 1 (SC), in which theft of the insured vehicle took place that, there was a breach of a condition of the policy, which was not germane to the theft. In these circumstances, it was held that total repudiation of claim, by the insurer, was unjustified. The Insurance Company was held liable to pay 75% of the claim amount on non-standard basis. The Hon’ble National Commission also followed the aforesaid principle of settling the claim, on non-standard basis, in OIC Vs. S.Sanjeev Kumar II(2009) CPJ 356 (NC). 

13.     We have also gone through the judgment rendered by the Hon’ble Supreme Court upon which, the appellant has placed reliance and also made a mention of the same, in the appeal titled as National Insurance Co. Limited Vs. Challa Upendra Rao and Others (2004) 8 SCC 517 in which, it was held that “A person without a permit to ply a vehicle cannot be placed in a better position vis-à-vis one who has a permit, but has violated any condition thereof.”  As, in the present case, there is also a violation of the condition of the Motor Vehicles Act, 1988, because the complainant at the time of accident was plying the bus on another route than the sanctioned route. Thus, there is clear-cut violation of the condition of the Motor Vehicles Act, 1988. So, in our opinion, the principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the present case, as in this case, there was a violation of the provisions of Section 66(1) of the Motor Vehicles Act, 1988, i.e. non-plying of the bus, on the permitted route. However, the plying of bus, on another route, than that of the permitted route, was neither fundamental to the accident nor it had any nexus with the same. Under these circumstances, we have come to the conclusion that on the basis of principle of law, laid down, in the aforesaid cases, compensation on non-standard basis, was required to be granted, to the complainant. Therefore, the OPs are liable to pay, to the complainant, 75% of the amount of total expenses, incurred for the repair of the bus. 

14.    As regards the other contention, advanced by the Counsel for the appellants/OPs that while granting the amount for the repair of the vehicle, the learned District Forum ignored the report of the surveyor dated 18.8.2009 (Annexure A-4), wherein, the loss assessed was at Rs.1,25,241/- subject to the terms and conditions of the insurance policy, and the salvage on repair basis, which was as per the IRDA Guidelines, it may be stated here that the assessment of loss, by the surveyor, to the tune of Rs.1,25,241/- cannot be taken into consideration, at this stage, because on the perusal of reports of both the surveyors, Annexures R/2 and R/3, attached with the reply filed by the OPs, in the learned District Forum, we do not find any document/paper pertaining to the estimate of repairs. Rather, the appellants/OPs attached the calculation of assessment prepared by the second surveyor namely Sh.Rajesh Aggarwal alongwith the appeal as Annexure A-4, who assessed the loss to the tune of Rs.1,25,241/-. The same cannot be taken into consideration as no permission was sought by the appellants nor granted by this Commission to adduce additional evidence, in respect of this document. Therefore, it was proved that the report of the surveyors did not contain any document pertaining to the calculation of assessment in terms of money. However, the learned District Forum directed the OPs to pay to the complainant the actual amount spent by the complainant i.e. Rs.3,30,000/-, as per bills, attached with the complaint. In our view, the breach of a condition of the policy was not fundamental to the accident. On the basis of the principle of law laid down, in the aforesaid cases, the Insurance Company was required to settle the claim of the claimant, on non-standard basis. The OPs are liable to pay 75% of the claimed amount. In the present case, the total amount spent by the complainant, on the repair of the bus, is Rs.3,30,000/- and 75% of this amount comes to be Rs.2,47,500/-. Thus, the OPs are liable to pay to the complainant a sum of Rs.2,47,500/- to the complainant, as the cost of the repair of the abovesaid bus.

15.    With the foregoing discussion, we have come to the conclusion that there was deficiency, in service, on the part of OPs and indulgence into unfair trade practice, by not settling the claim of the complainant on non-standard basis. The appeal filed by the appellants, is dismissed with the aforesaid modification and rest of the order passed by the learned District Forum is upheld. The parties are left to bear their own costs.

16.          Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

25^th May, 2011.