Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                          Complaint No. : 456

                                                          Instituted on     : 06.09.2019

                                                          Decided on       : 20.11.2023.

Sanjay Kumar age 25 years s/o Jaivir Singh R/o VPO Chhapar, District Jhajjar.

                                                                             ………..Complainant.

                                      Vs.

The New India Assurance Company Ltd. 313- Model Town, Delhi Road,   Rohtak-124001 Through its Manager.

                                                                   …….Opposite party.

COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1988

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

Present:       Sh.Sanjay Kumar Kaktan, Advocate for the complainant. 

                   Sh.A.S.Malik, Advocate for the opposite party.

                                                ORDER

NAGENDER SINGH KADIAN PRESIDENT:

1.                Brief facts of the case, as per the complainant are that he is  the owner of vehicle Hundai/Xcent bearing temporary no.HR-46TMP2019/701. The same was purchased from ShrishtiHundai  on 01.02.2019 and the official of the agency got insured his vehicle from opposite party vide policy no.35380031180300013991 and valid till midnight 31.10.2020. On 11.02.2019 a truck driver driven his truck in wrong side and very high speed in a zig-zagmanner and struck into the vehicle of the complainant and due to the impact of the said accident the said vehicle of the complainant was totally damaged. At the time of accident, vehicle was being driven by the brother of complainant Rajesh Kumar who was having a valid driving licence. Complainant intimated the same to the opposite party, who appointed a surveyor. The surveyor advised the complainant to take the vehicle to the agency and the complainant had taken his vehicle to the SristhiHundai, Rohtak and handed over the vehicle. The concerned officials of the agency told to the complainant that they will start the job work only after the approval of the surveyor. The concerned surveyor prepared his report being total loss. Complainant lodged the claim with the opposite party but the opposite party vide its letter dated 01.07.2019 has repudiated the claim on the ground that the commercial vehicle was used without the permit whereas the vehicle was not used for commercial purpose.  Complainant made repeated requests to the official of the opposite party to pass the genuine claim of the complainant but to no effect. The act of opposite party is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party may kindly be directed to disburse the insurance claim of Rs.592850/- alongwith interest, compensation and litigation expenses to the complainant.

2.                After registration of complaint notice was issued to the opposite party. Opposite party in its reply has submitted that the said vehicle is a commercial vehicle and having a commercial vehicle package policy from 01.02.2019 and it met with an accident on 11.02.2019 and complainant has not applied for permanent registration, permit and fitness with the concerned RTA. The said vehicle was operated without having a permit and fitness in apublic place which is violation of terms and conditions of policy and M.V.Act. So, claim is not payablebecause of commercial vehicle onpublic road without permit and fitness is not only an offence punishable under 1988, but also tantamounts to fundamental breach of terms and conditions of documents.  It is further submitted that Jugal Kishore Duneja, Surveyor and loss assessor was deputed by the opposite party to assess the loss of vehicle with Temp. Reg. no.HJR-46-TMP2019/701. He assessed the loss of Rs.363000/- subject to terms and conditions of policy with the remarks that “This is a commercial vehicle package policy started from 01.02.2019 i.e. date of purchase of vehicle and it met with an accident on 11.02.2019 and insured has not applied for permanent registration permit and fitness of his vehicle. Vehicle was not having valid permit, so, on the basis of above, claim is not tenable and insurer liability is “Nil”. It is submitted that Sh.Jugal Kishore Duneja Surveyor issued a letter dated 06.03.2019 to the complainant, which clearly reveals that claim is not payable. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C14 and documents Ex.C15 to Ex.C18 in additional evidence and has closed his evidence on dated 19.10.2023.Ld. counsel for the opposite party tendered affidavit Ex.R1 and documents Ex.R2 to Ex.R8and has closed his evidence on dated 07.09.2022.

4.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                We have perused the documents placed on record by both the parties. In the present case complainant had purchased the policy on 01.02.2019 and the vehicle in question met with an accident on 11.02.2019 and the IDV of the vehicle was Rs.592850/-.  After receiving the claim intimation, insurance company deputed the surveyor Sh. Jugal Kishore Duneja to assess the loss in the vehicle in question. As per the assessment the surveyor has assessed the loss of Rs.363000/- in the vehicle in question as per the terms and conditions of the policy. He further submitted that “This is a commercial vehicle package policy started from 01.02.2019 i.e. the date of purchase of vehicle and it met with an accident on 11.02.2019 and insured has not applied for permanent registration, permit and fitness of his vehicle. Vehicle was not having valid permit so on the basis of above, claim is not tenable and insurer liability is ‘Nil”.  After receiving the surveyor report the insurance company issued a letter to the complainant placed on record Ex.C1 dated 06.03.2019. The insurance company has submitted that “After going through the documents produced by you, it is observed that your vehicle was not eligible for plying on road without permit and fitness of the vehicle. Undersigned is to say that why not your claim file should be submitted as no claim”. Meaning thereby the claim of the complainant has been repudiated by the insurance company on the above mentioned grounds. We have minutely perused the documents placed on record. As per Ex.C17 the estimate repair cost  of the vehicle is Rs.564745/-. Photographs Ex.C15 & Ex.C16 shows that the vehicle is in damaged condition and it seems that vehicle is in total damage condition and not repairable. Now the main contention is that whether the consumer can ply the vehicle without permit and fitness on the date of accident i.e. 11.02.2019. No doubt the insurance policy has been purchased for ‘commercial vehicle enhancement coverage policy’ but the same was  not used for commercial purpose on the date of accident. In this regard, ld. Counsel for the complainant has placed reliance upon the law of Hon’ble National Commission in Revision Petition no.313 of 2015 titledas United India Insurance Co. Ltd. Vs. Shinghla Engineers & Contractors Pvt. Ltd. &Anrs., law of Hon’ble Punjab State Commission, Chandigarh in first appeal No.462 of 2010 titled as New India Assurance Co. Vs. Yogesh Gupta,law of Hon’ble High Court of Punjab & Haryana in FAO No.1223 of 2016 titled as The GharaundaSaraswati Coop. Transport Society Ltd. Vs. IffcoTolio Gen. Ins. Companyand law of Hon;ble National Commission in MA No.108/2012 titled as National Insurance Company Ltd. Vs. M/s Rash Builders Civil Contractors and Suppliers, whereby Hon’ble National Commission has held that: “A reading of the aforesaid provision of Section 66 (3) (j) of the Motor Vehicles Act, 1988 would indicate that if the vehicle was not used for the purpose for which it was intended to be used i.e., to carry passenger or goods on a particular route, the route permit is not required. Thus, if the vehicle was used without carryingpassengers or goods for which it was meant to be used, but merely was being shifted from one place to another place as mentioned under Section 66 (3) (j), requirement of permit as contemplated under Section 66 (1) does not apply. We have taken note of the submission advanced by the learned counsel for the claimant that on the date when the accident occurred, the vehicle was not carrying any passenger or goods for any commercial or business purpose which it was meant to be, but it was being shifted to office/workshop located at Chandimar, Surankote, Jammu for its safe custody and as such, no route permit was required for shifting the vehicle to his office. We are also satisfied that in view of the provisions of Section 66 (3)(j) of the Motor Vehicles Act, 1988, route permit will not be necessary as the vehicle was not engaged in any commercial or official use and was not carrying any passengers or goods, but was merely being shifted to the office of the claimant for safe custody after the vehicle was purchased. We have noted that the vehicle was purchased on 03.01.2007 and temporary registration was obtained on 04.01.2007 and the vehicle met with an accident on 10.01.2007 i.e. within a week of the purchase of the vehicle”. After considering the above mentioned authoritieswhich are fully applicable on the facts and circumstances of the case, it is observed that the requirement of route permit and fitness is not required in this case also as the complainant was not using the same for commercial purpose. The vehicle in question is totally damaged in the accident hence the complainant is entitled for the claim. A bare perusal of policy Ex.C9 shows that IDV of the vehicle is Rs.592850/- and the vehicle was hypothecated with HDFC  bank Ltd.. At the time of arguments, complainant has placed on record two documents ‘Annexure-JNA’ and ‘Annexure-JN-B’ which shows that loan agreement stands closed and the amount has been paid on 16.03.2022. Hence the complainant is entitled for the IDV of vehicle after deducting the scrap value which we have assessed as Rs.80000/- i.e. Rs.512850/-(Rs.592850/- less Rs.80000/-).

6.                In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party to pay Rs.512850/-(Rupees five lac twelve thousand eight hundred and fifty only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 06.09.2019 till its realization, to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed that he can only sell the vehicle in scrap and cannot use the same further for personal or commercial use.

7.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

20.11.2023.

                                                          ........................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          TriptiPannu, Member.