IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Mr. Justice R. SUBBIAH PRESIDENT
Thiru R. VENKATESAPERUMAL MEMBER
F.A.NO.24/2017
(Against order in CC.NO.42/2015 on the file of the DCDRC, Chennai (North)
DATED THIS THE 20th DAY OF APRIL 2022
K. Kasim
No.4, Reliance Rice Mill Street M/s. V. Balaji
Kondithopu Counsel for
Chennai – 600 079 Appellant /Complainant
Vs.
1. United India Insurance Co. Ltd.,
Rep. by its Divisional Manager
No.19, Andiappa Gramani Street M/s.Nageswaran & Narichania
Royapuram, Chennai – 600 013 Counsel for 1st Respondent
2. The Regional Transport Authority M/s. T. Ravikumar
Pulianthopu, Chennai East Counsel for 2nd Respondent
Chennai – 600 012 Respondents/ opposite parties
The Appellant as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had dismissed the complaint. Against the said order, this appeal is preferred by the complainant praying to set aside the order of the District Commission dt.28.9.2016 in CC.No.42/2015.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the complainant as against the order dt.28.9.2016 passed by the District Commission, Chennai (North), in CC.No.42/2015, in dismissing the complaint.
2. The brief facts of the complaint before the District Commission are as follows:
The complainant is the owner of the lorry bearing registration No.TN04 AA5493. The Appellant/ complainant obtained National permit to operate the vehicle in the State of Pondichery, Maharashtra, Karnataka, Tamil Nadu, Andhra Pradesh and Gujarat. The complainant had renewed the permit for the period from 8.3.2009 to 7.3.2010 and subsequently for the period from 8.3.2010 to 7.3.2011. Again the complainant had paid the necessary fees for further renewal of permit on 15.3.2011. The permit validity would commence from 7.3.2011 upto 16.3.2016. Actually the permit ought to have been renewed from 16.3.2011 to 15.3.2016. In such a situation, on 16.3.2011 at about 4.00 pm., the vehicle met with an accident at Hospet- Kushtagi NH-13 Road, Gunnala Village Area, Bevoor Limits, Karnataka State. Hence the complainant had lodged a complaint and the same has been registered as a FIR under Sec.279, 338 and 304(A) IPC before Bevoor Police Station. The vehicle was completely damaged and require Rs.10,00,000/- to repair. The complainant made a claim with regard to the repair charges, since the vehicle was insured with the 1st opposite party. The 1st opposite party had sent a letter dt.16.2.2013 stating that the claim is not admissible since the permit has not been extended beyond 7.3.2009, which is blatantly false. The said statement was made by the opposite party only to escape from making payment. Hence the complainant had filed a complaint praying for a direction to the opposite parties to pay Rs.10,00,000/- towards repair charges, Rs.5,00,000/- towards loss of earning, and Rs.150000/- towards interest paid by the complainant, Rs.325000/- for mental agony alongwith cost.
3. The case of the complainant was resisted by the insurance company stating that it is true that the complainant is the owner of the vehicle bearing Regn.No.TN-04-AA-5493. The complainant being a limited company under the Companies Act 1956, and by using the vehicle for commercial purpose, the complainant is not a consumer. The complainant is put to strict proof of the validity of permit on the date of the accident i.e. 16.3.2011. The opposite party had issued a Public Carriers Package Policy bearing No.011501/31/10/01/00037233 insuring vehicle bearing No.TN-04-AA-5493 for a period from 1.2.2011 to 31.1.2012. The said policy of insurance is subject to various policy terms and conditions forming part of the policy and one of the important condition being a valid permit within the meaning of the Motor Vehicles Act 1988 or such a carriage falling under Sub-Sec.3 of Sec.66 of The Motor Vehicles Act 1988. On the date of accident i.e., 16.3.2011, there was no permit as admitted by the complainant in the complaint. Therefore no claim is admissible under the policy. Further there is an error on the part of the Regional Transport Authority in issuing the permit, and nothing prevented the complainant in rectifying the same. Without taking any remedial action, rushing before the consumer forum for alleged deficiency is not proper and showed malafide intention to cover the error on their part. The complainant is put to strict proof regarding the repair charges for the damaged vehicle, and for the expenses incurred as claimed in the complaint. The surveyor appointed by the opposite parties had conducted the survey in a proper manner and assessed the loss. The surveyor had assessed the damage @ Rs.303592/- only, therefore the claim of Rs.10 lakhs towards repairs is highly inflated. The investigator appointed by the opposite parties had categorically stated that the insured vehicle was not authorized to ply in the area where the alleged accident had taken place. Therefore the claim is not admissible. Thus sought for dismissal of the complaint.
4. The Regional Transport Authority, Chennai (East) also had filed their version stating that the complaint has to be dismissed against them as there is no service provider and consumer relationship between them. The Goods Carriage TN 04 AA 5493 was covered by National Permit had five years validity issued from 8.3.2007 to 7.3.2012 and authorisation to ply in the states of Tamilnadu, Andrapradesh, Karntaka and Pondichery. The said authorisation was issued by the opposite party u/r 87(2) & (3) of Central Motor Vehicles Rules 1989. The authorisation shall be renewed and its validity is of one year from the date of its issue. If National Permit validity expires the authorisation is no longer valid, so if the validity of National Permit expires before the validity of authorisation, then the validity of authorization to be restricted to the validity of National Permit. In the present case the complainant applied for the renewal of authorization and the same was renewed for the period from 8.3.2008 to 7.3.2009 and 8.3.2009 to 7.3.2010. For further renewal the complainant had remitted the fee on 15.3.2011, hence the permit shall commence from 16.3.2011 is totally wrong. The authorization will be issued to any vehicle after due scrutiny of records, verification of fee by the vehicle owner/ permit holder on production of original challan in which the banks write the journal number after the banks unloaded the payment details on website. The act of the opposite party is not illegal, thus they sought for dismissal of the complaint.
5. In order to prove their case, proof affidavits were filed by the parties alongwith documents, which were marked as Ex.A1 to A37 on the side of the complainant and Ex.B1 to B5 on the side of the opposite parties, and Ex.B6 to B10 on the side of the 2nd opposite party.
6. The District Commission, after analysing the evidence and on hearing the detailed submission, had dismissed the complaint on the ground that the complainant is not a consumer, since the vehicle is being used by the complainant for commercial purpose. Secondly on the date of accident, there is no valid permit. Aggrieved over the said order, this complaint is filed by the complainant praying for granting of relief by allowing the complaint.
7. The learned counsel for the appellant/complainant submitted that he is the owner of Lorry bearing Regn.No.TN04 AA5493. The said lorry was having insurance coverage with the 1st opposite party for the period from 8.3.2009 to 7.3.2010 and for a further period from 18.3.2010 to 17.3.2011. The lorry also had a national permit to operate the vehicle in the state of Tamilnadu, Andrapradesh, Karnataka and Pondichery. The said national permit had expired on 7.3.2011. Hence the complainant had paid the necessary fees for renewal of the permit on 15.3.2011, and the permit was issued on 17.3.2011. In the meantime on 16.3.2011, the vehicle met with an accident in the Karnataka State, and the vehicle was completely damaged. Hence the complainant had submitted a claim with the 1st opposite party/ insurance company, but the insurance company had repudiated the claim vide letter dt.16.2.2013 marked as Ex.A37, on the ground that on the date of accident there is no valid permit. Hence the complaint.
8. This complaint was opposed by the insurance company mainly by taking two defences viz. (i) the complainant is not a consumer, since he was carrying on the business for commercial purpose, secondly on the date of accident viz. 16.3.2011 there was no valid permit to ply the vehicle, therefore there is a fundamental breach of policy.
9. With regard to first defence of the opposite party that the complainant is not a consumer, the learned counsel for the complainant would submit that taking insurance is only for indemnification, and no commercial purpose involved, moreover it is not intended to generate profit. Therefore dismissing the complaint by the District Commission by holding that the complaint is not maintainable since the lorry is used for commercial purpose is not correct.
In support of their contention the appellant/ complainant had relied upon a judgement of the Hon’ble Supreme Court held in Harsolia Motors Vs. National Insurance Company reported in 1 (2005) CPJ 27 (NC), wherein it has been held that “Person who takes insurance policy to cover envisaged risk not takes policy for commercial purpose- Policy is only for indemnification of actual loss, not intended to generate profit”.
10. Countering the statement the learned counsel for the Respondents/ opposite parties would contend that the very reading of the statement of the complainant in para 9 of the proof affidavit to that effect that “the lorry is used only for commercial purpose” and the further statement of the complainant that he suffered heavy financial loss since he was unable to repair the vehicle on time would go to show that the insured vehicle was exclusively used for commercial purpose. Further a perusal of factual aspects of the judgement cited by the appellant is totally different from the factual aspects of this case. Therefore, the said judgement cannot be made applicable to the fact of this case.
11. The next point is with regard to the validity of the permit, the insurance company would submit that there is no valid permit for the vehicle on the date of accident. The national permit covering the period had expired on 7.3.2011, whereas the complainant had paid the amount for renewal of the premium on 15.3.2011 only. Based on which the policy permit was issued for the period from 17.3.2011 to 16.3.2012. The learned counsel for the complainant would submit that since the amount for renewal was paid on 15.3.2011 the permit issued will take effect from the date of expiry i.e, on 7.3.2011. In this regard, the learned counsel for the appellant had also relied upon a judgement of the High Court of Karnataka, in MFA No.100463/2018 (MV) dt.13.2.2020, wherein it was held that once renewal is granted by the Regional Transport Authority, the renewal of such permit shall have the effect from the date of expiry.
12. Countering the submissions the learned counsel for the Respondent would submit that the complainant had not renewed the permit in time and paid the fees only on 15.3.2011. The 2nd Respondent/ RTO authority forwarded the file to the appropriate authority to verify the records before issue of permit. Only after verification, the permit was issued on 17.3.2011. For the delay on the part of the complainant, the transport authorities cannot be faulted. Since the amount was paid on 15.3.2011 it does not mean that the permit will be validated from 16.3.2011 itself. The 2nd Respondent had specifically issued permit for the period from 17.3.2011 to 16.3.2011. Therefore it is clear that there was no valid permit on the date of accident.
13. We have heard the submissions on either side and perused the documents. The following questions are framed for deciding the appeal:
1. Whether the complaint will fall within the ambit of Consumer Protection Act, 1986?
2. Whether the permit issued on 17.3.2011 will have the effect from the date of expiry of the permit?
14. POINT NO.1:
As far as this question is concerned, a perusal of the proof affidavit of the complainant would clearly show that the “the lorry is used only for commercial purpose”. The complainant himself had admitted that the vehicle was being used as a goods carrier, and he also obtained permit for plying the lorry in the state of Taminadu, Andhrapradesh, Karnataka and Pondichery, which itself shows that the vehicle was being used for commercial purpose viz. carrying goods interstate. The complainant also had not proved that the vehicle was being used only for his livelihood and it was not used for earning profit. Further perusal of the policy would denote that the policy is issued for public carrier, and the name of the policy is “Package Policy – Goods Carrying (Other than 3-WH)-Public Carriers” .
Therefore it is clear that the policy itself issued for commercial purpose, was admitted by the complainant himself. The complainant had very cautiously drafted the complaint without disclosing the factual nature of the business and the purpose of the vehicle. Eventhough it is obvious that the vehicle is used for commercial purpose. It is also a common knowledge that no one will buy a lorry for personal use and obtain permit for carrying the goods interstate.
In the National Commission judgement referred by the appellant it has been held that taking insurance is only for indemnification and no commercial purpose is involved. There cannot be any quarrel in accepting the said principle. But the question in the instant case is that as to whether the complaint was maintainable and whether the complaint can be entertained in view of the admission made by the complainant in the proof affidavit that he was exclusively using the lorry for commercial purpose. Here the complaint is not maintainable due to the admission of the complainant that the insured vehicle was involved in commercial activities. Therefore the holding of the District Commission that the complainant is not a consumer is upheld. Point No.1 answered accordingly.
15. POINT NO.2:
As seen from Ex.B6 the National Permit was issued for the period from 17.3.2011 to 16.3.2016. Whereas as seen under Ex.B7, the Authorisation certificate it is mentioned as “the national permit is authorised throughout the territory of India (17.3.2011 to 16.3.2011). Therefore, it is clear that the validity of authorisation to ply the vehicle interstate was subject to renewal and was given only from the date of issuance, though the period of validity for permit was valid throughout. Thus it is clear that since the complainant had opted for renewal of authorisation only on 15.3.2011, the validity of authorisation to ply the vehicle between the states was granted only from 17.3.2011. Therefore, since the vehicle was taken to Karnataka on 16.3.2011, without any valid authorisation, the claim was rightly rejected by the opposite parties.
The learned counsel for the Respondents had drawn the attention of this commission to a judgement of the Hon’ble National Commission held in Sudarshal Giri Vs. United India Insurance Co. Ltd. & Another reported in IV (2020) CPJ 3 (NC), wherein it was held that the “Vehicle was being used without valid permit is fundamental breach of terms and conditions of the policy”
Since, the vehicle was taken to Karnataka, without valid authorisation which is also considered to be a breach of terms and conditions of the policy. Therefore, the finding of the District Commission in this regard also need to be confirmed. Point No.2 answered accordingly.
Accordingly, we find no error or infirmity in the order of the District Commission, which deserves confirmation.
16. In the result, the appeal is dismissed by confirming the order of the District Commission, Chennai (North) in CC.No.42/2015 dt.28.9.2016. There is no order as to cost throughout.
R. VENKATESAPERUMAL R. SUBBIAH
MEMBER PRESIDENT
