JUSTICE A.P. SAHI, PRESIDENT

1. The petitioner is the owner of a bus bearing registration no. RZ15PA1718 that was insured with the United India Insurance Company, the respondent herein. The policy was effective from 12.10.2014 to 11.10.2015. Unfortunately the bus caught fire on 20.05.2015 due to a short circuit in the wiring as a result whereof it got completely gutted, and an owner’s claim for indemnifying the loss was made before the Insurance Company.
2. The vehicle was taken to the garage namely, Rajesh Motors at Jodhpur where the damage assessed was of Rs.12,91,985/-.
3. A surveyor was appointed who conducted the survey and submitted a report on 01.07.2015.
4. The claim was repudiated by the Insurance Company on 01.03.2016 by the following communication:

“UNITED INDIA INSURANCE CO. LTD.

REGD & HEAD OFFICE -24,

WHITES ROAD, CHENNAI, -600014

WEBSITE- http/www.uiic.co.in

OFFICE CODE140093

OFFICE NAME- UNITED INDIA INSURANCE CO. LTD.

ADDRESS- OD HUB, JODHPUR, 4/A, BHATI N PLAZA, BARKATULLAH KHAN STADIUM, LANE NEAR BANK OF BARODA, JODHPUR, RAJASTHAN, JODHPUR, PIN-342003

TELEPHONE-+91 02912772046

WITHOUT PREJUDICE                          COURIER SERVICE-REGD A/D

REF NO.14050631150050047001

SL NO.1 ON POLICY NO. 14050630049105434698

Please note that your file stands closed on account of Sr. No. 1 and 3 below:-

1. Inspite of letters/reminders sent to you, you have not complied with the required papers/documents.

2. As you have withdrawn you claim by giving your consent through your letter dated.. we are closing your claim file as NO Claim.

3. We are closing your claim file on account of following reasons:- Breach of policy conditions Material to loss At the time of accident vehicle in question was having permit to ply on a route between Jaisalmer to Falsund only, whereas at the time of accident vehicle was being plied on Barmer- Nokhra- Hondu Road of which there was no permit with the insured vehicle.

Since the vehicle was not having permit at the time of accident as per terms and conditions of Insurance policy, the Insurance company is not liable.

Thanking you.

Yours faithfully

ADMN OFFICER

Signature

Dr. A K Majumdar

Manager

OD HUB JODHUR”

5. The complainant alleged that the vehicle had caught fire when there were no passengers and it was not plying for business at the time of the accident. In fact the vehicle was returning from the garage where it had gone for repairs and it was being taken by the driver, who went home via Barmer- Nokhra- Hondu Road. The vehicle had an existing valid permit on the date of accident.
6. There is no dispute that the vehicle had a valid permit for plying and to carry passengers on Jailsalmer to Falsund Road. The Insurance policy was valid on that date and there was no other violation or breach of the policy when the accident occurred. The Insurance Company repudiated the claim on the ground that since the vehicle was not plying on the route for which the valid permit had been granted when the accident occurred, the complainant was not entitled for any indemnification. The District Commission Barmer vide order dated 09.03.2017 in CC/102/2016 allowed the complaint holding that the risk was covered and when the vehicle was being plied on Barmer- Nokhra- Hondu Road. There were admittedly no passengers in it and it was the driver alone Mr. Sona Ram who was returning with an empty vehicle after getting the work done in the garage towards his village. It was during this journey that the vehicle caught fire due to a short circuit and the entire vehicle was consumed in the fire. The District Commission also referred to the surveyor’s report.
7. The District Commission after deducting salvage and after assessing the net loss as depicted by the surveyor awarded a sum of Rs.8,24,000/- and 9% interest with effect from 16.05.2016. In addition thereto a sum of Rs. 50,000/- for mental agony and costs of Rs.5,000/- was also imposed.
8. Aggrieved the Insurance  Company filed an Appeal no. 86 of 2017 before the State Consumer Disputes  Redressal Commission that has been allowed on 18.12.2020 on the ground that since the vehicle was plying on a different route as against the route for which permit has been granted, the Insurance Company had rightly repudiated the claim. The State Commission accordingly reversed the order of the District Commission and dismissed the complaint.
9. Aggrieved the petitioner has come up contending that the order of the State Commission is erroneous, in as much as the vehicle was not carrying any passenger and it was coming back from the garage which finds support from the surveyor’s report as well. It is urged that there is no dispute on facts except the allegation of the vehicle being plied on a different route. The ground of repudiation is invalid, in as much as vehicle was on a journey for repairs that is allowed under the Motor Vehicles Act, 1988 and is lawful and protected under law.
10. Vehemently opposing the revision petition, Mr. Gupta has urged that in view of the provisions of Section 66 of the Motor Vehicles Act, 1988, the permit does not allow the vehicle to be plied contrary to the terms and conditions thereof, and since in the present case the accident has occurred while being driven in violation of the permit conditions, the same amounts to a breach of the terms and conditions of the policy. He has relied on the order of this Commission in the case of Puneet Kumar Vs. National Insurance Company Ltd. & Anr., 2016 SCC OnLine NCDRC 949  to advance his submissions. He has also cited the orders passed in the case of Untied India Insurance Co. Ltd. Vs. Jarnail Singh B.M.R. Transport Parasad Bilaspur Chhattisgarh, 2016 SCC OnLine NCDRC 1803, as well as the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Challa Upendra Rao, (2004) 8 SCC 517 to buttress his submissions on the aforesaid grounds.
11. He has then urged that the terms of contract of Insurance cannot be altered and has to be strictly construed for which he has relied on  the judgment of the Apex Court in the case of United India Insurance Company Ltd. Vs.  Pushpalaya Printers, (2004) 3 SCC 694. He therefore contends that the vehicle was being driven contrary to the terms and conditions of the permit hence the State Commission was justified in allowing the Appeal.
12. Mr. Gupta vehemently urged that the vehicle ought to have been taken back after repairs to the route for which there was a valid permit and there was no occasion for the driver to have taken it to his village. Hence, the accident which occurred on account of this deviation by the driver, which was impermissible under the permit, disentitles the petitioner from any relief. The claim therefore was rightly repudiated by the Insurance Company.
13. Having heard learned counsel for the parties the judgment cited by Mr. Gupta  in the case of Puneet Kumar (Supra) is a two member decision of this Commission that has proceeded on the premise that the vehicle in question was being driven without a permit and the order mentions only one of the provisos to Section 66 without referring to the other provisions. The said order in our assessment omits to consider section 66 (3) (p) of the Motor Vehicles Act, 1988 which is applicable on the facts of the present case. Resultantly, the decision in the case of Puneet Kumar (Supra) is clearly distinguishable not only on facts but also on law as the ratio thereof is without considering the provisions of Section 66 (3) (p) of the Motor Vehicles Act, 1988. The decision therefore is clearly distinguishable and is inapplicable herein. For this it would be relevant to extract section 66 (3) (p), which is extracted herein:

“66 (3) The provisions of sub-section (1) shall not apply—

(p) to any transport vehicle while proceeding empty to any place for purpose of repair.”

14. A perusal of the said provisions would demonstrate that sub section (1) of Section 66 would not apply to any transport vehicle while proceeding empty to any place for the purpose of repair. This provision has been quoted in extenso in the judgment of the Apex Court cited by Mr. Gupta himself in the case of National Insurance Company Limited Vs. Challa Upendra Rao (supra).
15. Mr. Gupta vehemently urged that the provisions quoted aforesaid provide for non-applicability of the provision only while a vehicle is proceeding empty to any place for the purpose of repair, whereas in the present case the vehicle was returning from the garage and the driver took it to his village. He therefore submits that the vehicle was not moving or being plied for the purpose of repair. This argument is being noted for being rejected, in as much as, when a vehicle is taken for repair it has also to return back. The return journey is a necessary adjunct of the journey commenced. This is logical and rational. The phraseology used in the Section therefore does not confine the movement only when a vehicle is going to the garage. It equally applies when it returns from the garage.
16. It is not the case of the Insurance Company that there is any other violation of the Motor Vehicles Act by the driver or he having acted in breach thereof. Admittedly the vehicle had an existing valid permit as such this is not a case where there was no permit at all. It was plying on a different road and returning from repairs. It was not plying with passengers to infer violation of the permit conditions.  The movement in question was legally protected. The act of the driver in driving the vehicle after getting it repaired towards his village is neither an unlawful act nor is it prohibited under any law nor can any such construction of interpretation be placed as suggested by Mr. Gupta to prohibit the movement of the vehicle after returning from the garage. The diversion undertaken for and after repairs, stands protected and saved in terms of Section 66 (3) of the Motor Vehicles Act, 1988 quoted above.
17. The vehicle was admittedly empty and this finds support from the report of the surveyor which is on record. The cause of accident as described by the surveyor and the details therein support the contention raised on behalf of the petitioner. The State Commission has completely omitted to refer to the  relevant statutory provisions as quoted above and by simply relying on the decision of the Puneet Kumar (Supra) has dismissed the complaint, which is a clear irregularity and therefore the impugned order is unsustainable.
18. Accordingly the revision petition is allowed and the impugned order of the State Commission dated 18.12.2020 is set aside. The order of the District Commission dated 09.03.2017 is upheld and restored. The complaint is accordingly allowed.