Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.107/22.10.2021
Sitender Ratan
Prop of M/s Brham Tour and Travels
Having its office at C-18, Third Floor
Gali No.3, Village Kotala, Delhi-110091 …Complainant
Versus
OP. The Oriental Insurance Co. Ltd.
[through its Manager / Director]
Office at - 4E/14, Jhanewala Extension,
Ground Floor, Azad Bhawan, Delhi-110055
[Service Centre, (NRO-2)] ...Opposite Party
Date of filing: 22.10.2021
Coram: Date of Order: 21.10.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.1)
1.1. (Introduction to case of parties) - The complainant has grievances of unfair trade practice and deficiency of services against Insurer/OP that complainant got insured his bus/vehicle by paying huge premium amount against insurance policy but when the unfortunate incident of accident happened during the currency of insurance policy, the OP failed to settled the valid claim of the complainant on one pretext or the other by invoking frivolous grounds. It caused immense harassment and agony too. That is why the complaint has been failed seeking insured/IDV amount of Rs. 32,30,000/-, against total accidental loss, compensation of Rs.7,00,000/-, parking charges at the rate of Rs. 5,000/- per month, litigation expenses of Rs.1,00,000/- and other relief.
1.2. The complaint is opposed by OP, that, neither there is unfair trade practice nor deficiency of services since it was the complainant, who was plying the vehicle without having valid documents for commercial vehicle, which was in violation of the provisions of Motor Vehicle Act, 1988 and breach of terms and conditions of the policy. Since, the complainant is involved in commercial activities and he is not a consumer.
2.1. (Case of complainant) – The complainant operates tour and travel agency under a proprietorship firm namely M/s Brham Tour and Travel, it is registered owner of vehicle/Bus UP-15 DT 9419, make Ashok Leyland [hereinafter referred as the ‘vehicle’ or ‘bus’]. It is a sleeper bus. The vehicle was insured from OP and insurance policy No. 272591/31/2020/796 valid from 06.08.2019 to 05.08.2020 (hereinafter referred the ‘insurance policy’) was issued by the OP against payment of premium.
Moreover, RTO Meerut, UP, Department of Transport, also issued fitness certificate on 06.10.2018, it is valid upto 05.10.2020 and this certificate was issued after completion and compliance of all legal formalities, norms, circulars and rules of the government. The RTO Uttar Pradesh, Department of Transport also issued registration certificate of the vehicle on 06.10.2018 besides All India Tourist Permit by the Transport Department of Meerut, UP. The complainant complied with the fitness certificate from time to time of said vehicle and plied the vehicle on road in public place.
2.2. On 15.06.2020 the vehicle met with an accident, the local police was informed immediately where general diary no. 30 dated 16.06.2020 PS Bilhor, District Kanpur Shahar, Uttar Pradesh was registered. The complainant also got registered another general diary no. 30 dated 15.07.2020 PS Bilhor, District Kanpur Shahar, Uttar Pradesh. The vehicle was also taken to show-room/agency/ mechanic for repairs, who advised that costs of repair would be more than the value of vehicle, it declared the vehicle as 100% damaged. The agents/officials of OP visited the show-room to inspect the vehicle and they found it was 100% damage after inspection.
2.3. The complainant lodged accident claim loss with the OP and he furnished all requisite documents vis-à-vis the OP assured the complainant that claim of 100% accidental damages will be provided.
However, despite furnishing all documents and his contacting the OP office to ascertain status of his claim but OP always gave false assurances that the claim is under process and it will take time; the OP has been lingering on the claim on the one pretext or the other. Since, the OP did not clear the claim, therefore, the complainant was constraint to consult a lawyer and then sent legal notice dated 26.08.2021 while asking the OP to clear the claim of Rs. 32,30,000/- being IDV mentioned in the policy. The legal notice was served on 06.09.2021 but there is no reply by the OP.
2.4 On 03.09.2021, the complainant received pre-repudiation letter dated 04.08.2021, which is on false and frivolous ground that “fitness of the vehicle was cancelled under section 56(4), vehicle did not confirm to specific construction, equipment and maintenance requirements of AIS-119 mandatory for sleeper coaches, fitness of said vehicle was cancelled by the RTO Meerut due to non-existence of standard body design of vehicle for registration of vehicle fit to plying in public places”. Further, “in view of the above, plying of a commercial vehicle in a public place without holding valid and effective RC, fitness and permit tantamount to violation of Motor Vehicle Act,1988 and terms and conditions of the policy”. The complainant gave proper reply dated 06.09.2021 through his counsel to OP not to repudiate the genuine claim of complainant.
The pre-repudiate letter dated 04.08.2021 is wrong, misconceived, biased, arbitrary and it is without cogent proof. There is no violation of any law at the date/time of incident on 16.06.2020 since complainant had complied with all the requirement of law and document. The complainant suffered a lot financial, physically and mentally since the said vehicle was source of his livelihood as well as to repay EMI of loan of vehicle, besides the officials of the showroom are asking to remove the vehicle from parking lot vis-a-vis the complainant has been paying parking charge at the rate of Rs. 5,000/- per month, which further add financial losses and harassment to the woe of the complainant because of want of settlement of claim. This all happened for want of settlement of valid claim and the circumstance makes out case for claim compensation of Rs. 5,00,000/-. That is why present complaint.
2.5 The complaint is accompanied with documents/copies of - Insurance policy, certificate of fitness, certificate of registration, permit/ authorization for tourist vehicle, GD 30/16.06.2020, GD 30/15.07.2020, legal notice dated 26.08.2021, pre-repudiation letter dated 04.08.2021, complainant reply dated 06.09.2021 and identity proof of the complainant.
3.1 (Case of OP)- The complaint is opposed by the OP that complainant is engaged in the commercial activities, therefore, the complainant is not a consumer; he is not within the purview of the Consumer Protect Act, 2019. Moreover, there is neither cause of action, nor deficiency of services nor unfair trade practice on the part of the OP but it is a frivolous complaint filed by the suppressing material fact, it is liable to be dismissed.
3.2. The OP had issued insurance policy in respect of vehicle/bus but the risk covered under the insurance policy was subject to strict terms and conditions, clauses, warranties and schedules mentioned under the policy read with the Motor Vehicle Act and its rules.
The complainant submitted claim intimation form to the OP’s issuing office at Noida, then immediately surveyor/investigator was appointed for spot survey, motor survey and own damage investigation of the vehicle including RC, permit, fitness, driving license etc. The surveyor/ investigator also furnished its detailed report at the issuing office of OP, which were also sent to complainant.
3.3 The complainant’s claim was rightly considered by the OP, however, it was found that “fitness of the vehicle was cancelled under section 56 (4), vehicle did not confirm to specific construction, equipment and maintenance requirements of AIS-119 mandatory for sleeper coaches, fitness of said vehicle was cancelled by the RTO Meerut due to non-existence of standard body design of vehicle for registration of vehicle fit to plying public places”. Thus, plying of the commercial vehicle in a public place without holding valid fitness is violation of Motor Vehicle Act and breach of policy terms and condition by the insured. The complainant was also informed that his claim is not tenable and it merits for repudiation but OP had given an opportunity to the complainant to defend claim. The OP issued letter dated 04.08.2021 seeking information, the complainant gave reply but he failed to clarify those issues, except deniable of reports and facts. Thereafter, the OP scrutinized the documents after discussion at length and also observed that complainant had not given any convincing reply, it was recommended to repudiate the claim because of breach of policy terms and conditions and Motor Vehicle Act, then the claim was repudiate by letter dated 29.09.2021 and the complainant was informed accordingly. Therefore, the complainant is not entitled for any relief or claim. The complaint is liable to be dismissed.
3.4. The written statement is accompanied with copies of - insurance policy, report of investigator coupled with RC with remarks by the RTA, vehicle particulars, vehicle registration status and repudiation letter.
4. (Replication of complainant) – The complainant filed rejoinder as a reply to the allegation of the written statement of OP; he affirms all the facts, circumstance and documents mentioned in the complaint to be correct. In addition he also filed copy of repudiation letter dated 29.09.2021 by denying its grounds, vis-a-vis it is a valid claim of complainant.
5.1. (Evidence)- In order to prove the complaint, the complainant Sh. Sitender, Proprietor, M/s Brham Tour and Travel led evidence by filing detailed affidavit of evidence with support of documents filed with the pleading.
5.2. Similarly to prove the defense version, the OP also led evidence of Sh. Naval Singh, Manager, by filing his detailed affidavit of evidence with support of documents filed with written statement.
6.1 (Final hearing)- At this stage, the parties filed their written arguments. The parties were also given opportunity to make oral submission, thence Sh. Pradeep Kumar, Advocate for the complainant and Sh. Sujeet Kesari, Advocate for OP made their respective submissions.
6.2. In order to fortify the plea taken by the OP, Ld. Counsel for OP relies upon Preeti Dubey and 6 Others Vs. UOI through its Secretary of Surface Road Transport ( Writ-A No. 7774/2020 dod 24.02.2021), wherein for it was held that for want of compliance of AIS regarding body building and its approval, the claim was declined. Further, reliance is placed on Bhagu Ram Vs. National Insurance Co. Ltd ( Revision Petition dod 24.08.2016 N/C), wherein the dismissal of complaint for want of fitness certificate by the District Commission was reaffirmed against the order Hon’ble State Commission.
7.1 (Findings) – The contentions of both the sides are considered, keeping in view the material made available on the record, inclusive of documentary record, the contemporary circumstances, the provision of the Consumer Protection Act, 2019, the Motor Vehicle Act, 1988 and the case law presented. However, it does not require to re-writing the contention of the parties since their case in detail has already been mentioned in paragraphs 2 and 3 above but their arguments will be considered and appreciate by analyzing them while returning the findings.
7.2.1 The OP took objection that the vehicle is commercial in nature and complainant is using it for commercial activities, therefore, the complaint is not maintainable. But the complainant has reservation that he is not dealing in re-selling of the vehicle but OP had provided servicing of insurance to indemnify the eventuality of losses. Otherwise, the complainant is sole proprietor of the firm, he suffered the losses/ livelihood which was mentioned in the complaint itself. The complainant is covered under the Consumer Law.
7.2.2 The submission and counter submission are self explanatory. The case of complainant is throughout that he was plying the vehicle to earn his livelihood but because of accident he suffered losses vis-à-vis there is no evidence by the OP that complainant is dealing in fleet of the vehicle or its sell and purchase to earn the profits. Therefore, it is held that the complainant is a consumer, he is covered under the definition of consumer. Since, the vehicle is being commercial in nature would not ipso-facto non-suit the complaint, since the vehicle was being used to earn the livelihood as well as it was insured to indemnify the losses in the eventuality of the contingency. In National Insurance Co. Ltd. Vs. Harsolia Motors and Others Civil Appeal No (S) 5352-5353 of 2007 dod 13.04.2023 (SC), it was held that hiring of insurance policy is an act for indemnifying a risk of loss/damage and there is no element of profit generation.
7.3. So far other dispute between the parties are concerned, they are confining to the documents of registration certificate, fitness certificate, permit, insurance cover and other allied aspect and after considering the feature of case alongwith the provision of law and rules, the following conclusions are drawn :
(a) The complainant and the OP have proved insurance policy schedule that the policy was effective 06.08.2019 to 05.08.2020. The type of vehicle mentioned in the policy is diesel, make Ashok Leyland, it is bus body having seating capacity (including driver) of 40+2.
(b) The complainant and the OP have also proved certificate of registration dated 08.10.2018 in respect of the vehicle/ UP 15 DT 9419, it mentions type of body-bus, having seating capacity (in all)-12 and sleeping capacity-30.
(c) The complainant has also proved certificate of fitness issued on 06.10.2018 in respect of the vehicle No. UP 15 DT 9419, having seating capacity-12 [including driver and the fitness certificate is upto 05.10.2020 with next due of inspection on 29.09.2020]. The complainant has also proved authorization for tourist vehicle permit issued on 10.02.2018 and date of expiry of permit is 09.10.2023 vide permit No. UP/15/A/TP/2018/579, for seating capacity-12.
(d) The certificate of registration proved by the OP (being part of investigation report), which is mentioned in sub clause (b) above, also bears appended with manual note/report by the registration authority that seating capacity of vehicle is 12 & 30 sleeper, the total number are 42 but this is not so mentioned in the fitness certificate. On 11.09.2020 the fitness certificate was cancelled in terms section 56 (4) of the Motor Vehicle Act read with ASI 119.
(e) The OP has also proved particulars of the vehicle, being part of surveyor/investigation report that the vehicle was black listed by Meerut, RTA, Uttar Pradesh because of decision of the Government that the bus body was not as per ASI-119.
(f-i) According to complainant the insurance policy schedule mentions the capacity of vehicle as 40+2=42 and the registration certificate also mentions the capacity of 12+30=42 and when there is fitness certificate and vehicle was duly insured, the OP was liable to settle the valid claim. The OP’s stand that the fitness was cancelled on 11.09.2020, would not disentitled the complainant from the claim since episode of accident was of 15.06.2020 much prior to cancellation of the fitness certificate.
On the other side, the OP’s plea is that the body of the vehicle was not as per ASI 119, there is breach of section 56 (4) of the Motor Vehicle Act and it is also breach of policy condition, it would not make out the claim in favour of the complainant, the claim was properly repudiated by the OP.
(f-ii) These contentions of the parties are to be seen from the record. There are appropriate requirement of law of registration of vehicle, its insurance and then permit/ fitness to ply the vehicle on the road. When the vehicle was purchased, its potential capacity was of 12 and sleeper of 30 was mentioned in the registration certificate. However, in the insurance cover the capacity mentioned was also 40+2.
Since, the vehicle was commercial in nature, it could not be plied just by obtaining RC and insurance but it further means fitness certificate and permit to ply on the public road. However, the certificate of fitness issued mentions seating capacity 12 and the tourist vehicle permit also mentions seating capacity 12. To say neither in the certificate of fitness nor in the tourist vehicle permit, there was permission or provision for sleeper capacity. This documentary record corroborates the manual note appended by RTA, Meerut on the registration certificate that there was no mentioning of sleeper seat in the fitness certificate. Therefore, it is concluded that the complainant had not obtained fitness certificate or permit for sleeper capacity of 30.
(g) The section 56 (4) of the Motor Vehicle Act also mentions about the compliance for certificate of fitness and ASI-119 are the norms which are to be observed in respect of structure and body building of the vehicle, to ensure safety, security and fitness of the vehicle while plying on the road. This vehicle was black listed [as recorded in the particulars of vehicle by the Department of Transport, duly proved by the OP] since the body was not as per ASI 119, it means the vehicle was not fit to ply on the road for want of complying the norms/standards of automobile industry standards -119. It is also manifest the when at the time of registration of vehicle and insurance, the body of the vehicle was not meant for sleeper but the same is got designed and fabricated subsequently, which should as per standard, which was ASI-119 at that material time.
The complainant can-not drive any benefit that the episode of accident took place on 15.06.2020 but the certificate of fitness was cancelled on 11.09.2020 since the mandatory standard of ASI 119 was to be complied, when the body of the vehicle was got structured and fabricated. In case the fitness was cancelled subsequently it would not construe that body was deemed to be as per standard of ASI-119, on 15.06.2020, which is being intended/projected to say by the complainant. The case law presented on behalf of OP and the ratio thereof applies to the situation in hand.
(h) When the complainant was filed on 22.10.2021, it was based on pre-repudiation letter dated 04.08.2021 but OP had relied upon repudiation letter dated 29.09.2021, which has also been mentioned by the complainant in his replication.
In view of the conclusion drawn from the record, the complaint fails. The complaint is dismissed. No order has to cost.
8. Announced on this 21st day of October 2024 [अश्विन 29, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[ijs-129]
