Tamil Nadu

StateCommission

A/48/2019

Branch Manager, - Complainant(s)

Versus

Vellamuthu, - Opp.Party(s)

M/s. Ashok Rajaraaman-applt

31 Jul 2024

ORDER

 

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT

            

F.A. No.48 of 2019

 

(Against the Order, dated 26.07.2018, in C.C. No.61 of 2017, on the file of  the DCDRF, Ariyalur)

 

                                                     Orders, dt:   31.07.2024

 

Branch Manager,

New India Assurance Company Limited,

56/125,

T.S.R. Peria Theru,

Kumbakonam,

Thanjavur District.                … Appellant/Opp. Party

 

vs.

 

Vellamuthu,

Son of Kandan,

Door No.2/158, Colony Street,

Poyyathanallur Village,

Ariyalur Taluk & District.      … Respondent/Complainant

 

             For Appellant           :  Mr.Ashok Rajaraman

             For Respondent       :  Mr.A.Jotheeswaran

This First Appeal came up for final hearing on 31.03.2023 and, after hearing the arguments of the counsels appearing for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

R.Subbiah, J. – President.   

 

             The appellant herein/Insurance Company challenges the order, dated 26.07.2018, passed by the DCDRF, Ariyalur, in C.C. No.61 of 2017, whereby, the complaint filed by the respondent herein as complainant came to be allowed in part by the District Forum with a direction to the Insurance Company to pay a sum of Rs.68,000/- for the damages happened to the insured vehicle in the accident and another sum of Rs.5,000/- for the mental agony resulted to the complainant/respondent due to the service deficiency on the part of the Insurance Company, besides a sum of Rs.3,000/- towards the litigation expenses.

 

             2. The respondent herein filed the complaint before the District Forum inter alia stating that he owns the Auto-Rickshaw – APE D3S Passenger III Model,  bearing Registration No.TN-61 K-4378, that was insured with the appellant herein/Insurance Company/OP covering the period between 29.08.2016 and 28.08.2017; that, on 16.09.2016, he took the said new Auto for Seat and Top-Lining Works at a Service Centre in Villupuram; that Centers executing such works were available either at Villupuram or Trichy or Kumbakonam and no such Centre was available in Ariyalur, where the complainant was permitted to ply the vehicle; that, for the said purpose, while he was proceeding on the aforesaid date via Ariyalur-Chennai National Highway within the limits of Veppur P.S., a Santro Car that was coming behind in a rash and negligent manner dashed against the Auto at its rear side, damaging the vehicle and causing severe injuries to the respondent’s wife and son, who accompanied him in the Auto; that a case in that regard was registered in Veppur P.S.; that thereafter, due information was given to the Insurance Company at whose instructions, the Auto was taken to a workshop at Kumbakonam, where the vehicle was repaired for a sum of Rs.68,000/-; that, seeking to settle the said sum, the respondent addressed the Insurance Company, which repudiated the claim on the premise that there is a violation of the policy condition in plying the vehicle beyond the permitted route; and that a legal notice was issued by the complainant which yielded no positive outcome, causing mental agony and pain as well as financial loss to him, hence, the complaint, for a direction to the Insurance Company to pay to him a total compensation of Rs.2.32 lakh and to pay the repair charges of Rs.68,000/-  and to award costs.     

             The Insurance Company/OP filed a written version before the District Forum stating inter alia that the insured vehicle/auto in question had a valid permit to ply only within Ariyalur District, but, the vehicle met with the accident at a route in Cuddalore District which was not covered by the Permit; as such, there is a fundamental breach of terms and conditions of the Insurance Policy that served as the basis for the repudiation and hence, there is no question of any service deficiency so as to raise a claim against the Insurer.

             In order to substantiate the claim and counter claim, both sides filed their respective proof affidavits and, while on the side of the insured, 8 documents were marked as Exs.A1 to 8, at the instance of the Insurance Company, 4 documents were marked as Exs.B1 to B4 and the District Forum, after consideration, passed the impugned order allowing the complaint in part, as stated supra and, aggrieved thereby, the Insurance Company is before us with this Appeal.

 

         3. Learned counsel for the Appellant/Insurance Company projected a two-fold submission in his endeavour to assail the impugned order passed by the District Forum – Firstly, the vehicle had the Permit for operation only at Ariyalur District and it suffered accident at a different place viz., Cuddalore District, where obviously it had no permit to ply, therefore, plying of the vehicle beyond the route for which the Permit had been granted is a clear violation that constitutes a valid defence in favour of the Insurance Company for its act of repudiating the claim; as such, no issue or allegation of service deficiency arises -  Secondly, Section 66(1)(3)(p) of the Motor Vehicles Act, 1988 (in short MV Act), which is taken as the basis by the lower Forum to hold that there was no permit violation, cannot be applied for the simple reason that the vehicle was not empty at the time of accident.  That being so, the District Forum is not only carried away by the obscure reason assigned by the respondent to the effect that the vehicle was taken only for the purpose of carrying out repairs, but also failed to take note of the vital fact that the vehicle was carrying passengers and that it was plying without proper route permit covering the place where the accident had taken place and ultimately, liability was wrongly fastened upon the Insurer which is not sustainable both in law and on facts and hence, the impugned order is liable to be set aside by allowing the appeal; learned counsel pleaded ultimately.

 

             4. Per contra, learned counsel appearing for the respondent/complainant submits that the District Forum correctly applied the legal provision and held on facts that the vehicle was not in use as a “passenger or transport vehicle” at the time of accident, since it was taken only for some specific lining & seat works at an exclusive Service Centre in Cuddalore District; therefore, the question of permit violation does not arise at all and secondly, the family members of the respondent viz., his wife and son, alone had accompanied him at that time, therefore, the Insurance Company cannot twist the facts once again before this Commission as if the vehicle was on a business trip or that it was carrying passengers for rent, so as to escape the liability that was rightly fastened upon them by the lower forum and accordingly, seeks to affirm the award.

 

             5. Considered the rival submissions advanced on either side and perused the materials made available.  In our view, the only question that needs to be decided is –

          “ Whether the argument of the Insurance Company –

       since the repudiation letter is based on a clear-cut permit violation on the part of the respondent, it does not give rise for any cause of action to file a consumer complaint on the allegation of service deficiency,

is well founded or not, so as to interfere or not with the impugned order passed by the lower forum?”   

 

             6. It is not in dispute that the vehicle was insured with the appellant and that the policy was in force at the relevant point of time.  According to the Insurer, from a reading of Section 66 (1)(3) (p) of the MV Act, 1988, which reads as follows:-

    “ 66. Necessity for permits. - (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:

………

(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.”

it is obvious that, while sub-Section (1), which mandates the necessity of Permits for a transport vehicle that carries passengers or goods to ply only in the place and manner as allowed by the Transport Authority concerned under the permit issued by them, sub-section (3) (p), which is an exclusionary provision, allows the transport vehicle to proceed without permit only while proceeding “empty” to any place for the purpose of “repair”.  While so, factually speaking, there were two more individuals travelling in the Vehicle at the time of accident which means that the vehicle was not empty; as such, sub-section 3(p) is not attracted.  Therefore, the District Forum seemingly misjudged the facts and wrongly applied the exclusionary provision as if the vehicle was proceeding ‘empty’ without passengers, which is a glaring factual flaw that would render the impugned order, as a whole, invalid in the eye of law. 

             But, we are not able to endorse the said argument of the Insurer since it appears to us that they have completely misread the facts probably with a pre-judged mindset to repudiate the claim in some way or the other.   In this regard, at the first instance, it must be highlighted that it is settled legal position that the Insurance Company cannot travel beyond the reasons and grounds mentioned in their repudiation letter and further, they cannot argue additional grounds beyond those mentioned in such letter.  From a perusal of the repudiation order, we find, the single reason assigned therein is the use of the vehicle beyond the route permitted by the authority. Nowhere, the repudiation letter mentions or deals with the individuals travelling along with the respondent nor it describes them as ‘passengers’.  Similarly, it neither deals with nor refutes the claim that the vehicle was taken for repair work to Cuddalore.  Therefore, it is not for the Insurance Company to raise and argue an additional ground beyond the scope of their repudiation letter, particularly when such ground appears to be vague and flimsy in the given set of facts that speak otherwise. Now, the records clearly show that the individuals accompanied the respondent in the vehicle were none else than his wife and son, who are said to have suffered injuries in the accident, for which, they got settlement from the Motor Vehicle Cases Tribunal concerned.  The Insurance Company has not filed any material to show availability of any Service Centre in Ariyalur District undertaking the lining work for which, the auto was taken to Cuddalore.   Under such circumstances, the present argument of the Insurer as if the auto was used at that time as a transport vehicle carrying two “passengers” is nothing but a highly ill-conceived notion that would in no way help them or advance their case.

             Secondly, coming to the main point of permit violation, in our view, instead of reading sub-section (3) (p) of Section 66 (1) in isolation, it would be apt to add sub-section (3)(j) also, which runs to the following effect:-

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

…………….

         (j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;

A conjoint reading of the above provisions makes it clear that if the vehicle is not used for the purpose for which it was intended to be used under the permit, namely, to carry passengers or goods on a particular route, the permit is not required. In other words, if the vehicle was used without carrying passengers or goods ‘for which it was meant to be used under the permit”, but merely was proceeding to some other place for the purpose of repair, along with family members, who cannot be termed as ‘passengers’, the requirement of permit, as contemplated under Section 66 (1) of the MV Act, does not apply by virtue of the exclusionary clauses.  In this instance, the facts reveal that –

• The vehicle was taken to Cuddalore for carrying out repair and lining works;
• The Vehicle was not occupied by any passenger on commercial trip but only by the family members of the respondent, who cannot be termed as passengers or customers;
• Both the above aspects indicating that the vehicle was not used then as a transport vehicle give room to draw a legal inference for applying the exclusionary clauses, as mentioned above, particularly when there is no material placed either before the District Forum or this Commission to show that service centres carrying out particular works that were required to be done to the vehicle in question, were very much available at that point of time in Ariyalur District itself.

As such, at the time of accident, the Auto was not carrying any passenger or goods ‘for any commercial or business purpose” for which it was meant to be under the permit but it was being taken to Cuddalore for undergoing lining-repair works; as such, sub-sections 66 (3) (j) (p), which exclude the operation of Section 66 (1), come into play, thereby, no defence is available to the Insurance Company for anchoring the repudiation upon permit violation.In the absence of a single piece of acceptable material to show that the vehicle was in operation at the relevant point of time as a passenger vehicle so as to attract the issue of permit violation under Section 66 (1) of the MV Act and that it was carrying passengers on rent, which theory is falsified by records since the persons accompanying were none else than the wife and son of the respondent, we find no justification whatsoever for the Insurance Company to repudiate the claim which is a clear instance of service deficiency, for which, rightly, the District Forum concluded to fasten the liability upon them and, looking at the quantum also, we do not find it either excessive or unreasonable. As such, we are not inclined to interfere with the order passed by the said Forum.

 

7. In the result, the appeal fails and it is dismissed by confirming the impugned order, dated 26.07.2018, passed by the DCDRF, Ariyalur.

                                                                             Sd\-   

                                                                      R.SUBBIAH, J.

                                                                      PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/JULY/2024.