Anup K. Thakur
1. This Revision Petition No.313 of 2015 challenges the order of State Consumer Disputes Redressal Commission, Punjab, Chandigarh in F.A. No.1551 of 2012 and F.A. No.1556 of 2012. The petitioner/appellants’ appeal had been disposed off by partly accepting F.A. No.1551 of 2012 and reducing the claim payable to the respondent/complainant from that awarded by the District Forum, from Rs.4,99,715/- to Rs.3,57,133/-, on non-standard basis. The other appeal, F.A. No.1556 of 2012 filed by the respondent/complainant, seeking enhancement in the compensation, had been dismissed vide the impugned order of the State Commission. In turn, the District Forum had accepted the complaint against the petitioner/OP1, setting aside the letter of repudiation of the claim and directing the petitioner/OP1 to pay Rs.4,99,715/-. As such, this revision petition challenges the concurrent findings of the District Forum and the State Commission.
2. Brief facts of the case are that the respondent/complainant (hereafter, ‘complainant’), owner of transit mixture Truck No.PB-03-T-9388, had the vehicle insured with the petitioner/OP1-United India Insurance Company Ltd. (hereafter, ‘OP1’), with effect from 9.3.2010 to 8.3.2011. The IDV of the vehicle was Rs.17,50,000/-. The said vehicle, while working on upgradation of Deodar to Nainawali road and link in District Yamuna Nagar, Haryana, met with an accident on the intervening night of 30/31.7.2010 at 1.30 a.m. The OP1 was intimated immediately and Mr. Sumit Goyal, surveyor was appointed for spot survey and the vehicle was removed with the help of recovery vehicle and shifted to Bathinda and thereafter to the authorized centre at Chandigarh. All these movements involved expenditure by the complainant. The vehicle was heavily damaged and an estimate of Rs.11,52,448/- was made for it’s repair. Thereafter, the final surveyor was appointed by OP1 from Ludhiana. Per the plaint, the final surveyor did not permit the complainant to start repair under supervision and so, compelled the complainant to hire another similar vehicle, at a cost of Rs.1,19,897/-. As his claim was not allowed by OP1, vide repudiation letter dated 21.12.2011, a consumer complaint was filed with the District Forum. As already stated, District Forum had allowed the complaint partly and the State Commission thereafter had reduced the quantum of compensation, vide the impugned order, and directed that the claim be restricted to 75% of the total permissible amount, Rs. 4,76,177.34, on non-standard basis.
3. Arguments were heard on 14.7.2020.
4. Learned counsel for the petitioner submitted that the claim of the complainant had been declined by OP1 on the twin grounds that the vehicle did not have a route permit at the time of the accident and that this was a clear fundamental violation of the Motor Vehicles Act as well as the insurance policy terms and conditions. He argued that both these aspects of law seemed to have been overlooked by the lower fora. In support, the learned counsel invoked a few citations to support the argument that lack of route permit was a fundamental breach of the contract of insurance and that therefore OP1’s repudiation was fully justified. In R.P. No.2600 of 2014, decided on 28.1.2015 by the National Commission, in the case of United India Ins. Co. Ltd. Vs. Kishore Sharma, as the vehicle was being plied as a taxi without valid permit, it had been held, in paras 18 to 24 thereof, that in view of the violation of the terms and conditions of the policy as also violation of the provisions of the M.V. Act, 1988, the petitioner was justified in repudiating the claim of the respondent/complainant. In R.P. No.2476 of 2012 decided on 6.2.2014, in the matter of New India Ass. Co. Ltd. Vs. Birbal Singh Jhakhar, it was held, in paras 9 and 11, that the vehicle was being plied without a valid permit, in violation of limitation as to use clause of the policy, and this amounted to a fundamental breach of the insurance contract, and therefore, the petitioner insurance company was justified in repudiating the claim. In R.P. No.3101 of 2013, vide decision dated 14.2.2014, New India Ass. Co. Ltd. vs. Rajesh Yadav, it was held that the insurance for a Haryana registered vehicle without a valid permit which was stolen in Delhi could not be claimed even on non-standard basis. The Apex Court in its judgment dated 17.7.2018, in C.A. No.2253/2018, Amrit Paul Singh & anr. Vs. TATA AIG General Insurance Co. Ltd. & ors., had adjudicated a case which involved a vehicle which did not have a route permit on the date of the accident but which had been applied for and became available at a later date: the Apex Court had held that this would not help as there was no permit on the date of the accident and that this was a fundamental statutory infraction, dismissed the appeal. The learned counsel concluded his arguments by essentially submitting that in the instant case, the vehicle did not possess route permit at the time of the accident, that this permit was obtained later by the complainant but that this could not help the case of the complainant. What was material was whether or not the vehicle had a valid route permit for operation in Haryana. So, the fact that the vehicle had a permit in Punjab was of no avail to the complainant. Learned counsel for the petitioner therefore basically argued that it was clear from the citations and the facts of the case that the lower fora had committed an error apparent and misinterpreted the law and that payment on non-standard basis as directed by the State Commission would amount to rewriting of the insurance contract.
5. Counsel for the respondent/complainant confined his arguments to whether non possession of the route permit at the time of the accident was a fundamental breach of the insurance contract, and so fundamental that the repudiation was the only option left to the insurance company. He argued that the allegation of fundamental breach of contract could not be sustained. In the instant matter under consideration, it was not the case at all that the vehicle did not have a route permit; rather, it was the case that it did have a route permit for Punjab and that in the course of its work, it diverted to Yamuna Nagar, Haryana, and was engaged in work there when the accident happened. It was further the case that as soon as the complainant became aware after the accident that the accident site was in Haryana and that a route permit in Haryana was also required, he immediately took steps to obtain a temporary permit, and this temporary permit was granted by the Haryana Government and was made effective from 01.07.2010 to 30.09.2010. As such, it cannot be said that the vehicle did not have a route permit on the date of the accident, even though it may have been obtained subsequent to the accident. This would make it clear that there was no intention of the complainant to be without a route permit; rather, it was an inadvertent error and the moment it was realized, remedial steps followed immediately. Thus, the complainant’s conduct would show clearly that the non-possession of route permit was at best an irregularity, and certainly not a fundamental breach. Further, he argued that it was nobody’s case that the fact of there being no route permit had any nexus with the accident that took place.
6. In support the learned counsel for the complainant invoked some citations.
7. In R.P. No.1870 of 2015, decided by this Commission on 14.8.2018, in the matter of New India Ass. Co. Ltd. Vs. Thirath Singh Brar, the Commission upheld the concurrent findings of the lower fora favouring the complainant, holding that the twin facts viz. the vehicle was not being put to commercial use ( as specifically pleaded by the complainant) and that there was no nexus of the damage caused to the vehicle with the factum of non-possession of the route permit, and modified the order of compensation to settlement on non-standard basis, relying upon the Hon’ble Apex Court’s judgement in the case of Amlendu Sahu vs Oriental Insurance Co. ltd. (2010) 4 SCC 536. In R.P. No.1739 of 2017, National Insurance Co. Ltd. Vs. Narender Gupta, the Commission decided vide judgment dated 27.7.2017 that repudiation of the claim was not proper simply because the route permit expired on 28.6.2014 while the accident had taken place on 16.7.2014 which had been subsequently renewed with retrospective effect. In 2013 ACJ 1213, the Hon’ble High Court of Punjab and Haryana, in a matter in which the insurance claim had been repudiated because the vehicle had permit for Rajasthan but not for Haryana, it was held that since the transport authority of the Rajasthan had found the vehicle fit for being run as a goods carriage, it could not be said that the vehicle was plied without a route permit. The violation of bringing the vehicle to Haryana without a valid route permit for plying the same in that state would not amount to violation of the conditions of the insurance policy. The court had also remarked that the case before it was not a case of where there was no route permit at all.
8. After hearing the learned counsels, carefully perusing the record including citations furnished, I am of the view that this revision petition cannot sustain.
9. Admittedly, the vehicle did not have a valid route permit for Haryana. While OP1 has found in this a fundamental violation of the terms and conditions of the insurance policy, as it is in violation of section 66 of the Motor Vehicles Act, and on that basis, has repudiated the claim entirely, the complainant’s case is that an inadvertent error on its part, without any intent, cannot be adjudged to be a fundamental breach. I am inclined to agree with the complainant.
10. There is a huge distinction between not having a route permit at all and having a route permit but not having the relevant route permit at a point of time. Latter is the situation in the case at hand. It is reasonable to say that the complainant, as soon as it became aware that it did not possess a route permit for the accident site, took immediate steps to rectify the situation. Nothing greatly amiss was found in such conduct by the concerned Haryana authorities either as such a permit was granted with retrospective effect. This suggests that non-possession of a route permit was not an act of intent, with any malafide motive; indeed, it could not be as it is hard to imagine how the complainant would have gained by not having a route permit. The
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very fact that the complainant had a route permit for Punjab, it was surely not a problem to have one for Haryana also. As argued by the counsel, the vehicle wandered into Haryana without realizing the fact, a reasonable proposition given the contiguity of the two states. The error in not having a route permit was admitted; that this was an error of such seriousness is hard to digest. 11. There is also the fact that whether or not the vehicle had a route permit had nothing whatsoever to do with the fact of the accident and the damage caused thereby. The insurance cover was taken for damage due to unforeseen events. The accident was unforeseen and unexpected. No malafide on the part of the complainant with a view to gain pecuniary advantage from the insurance company has been alleged. The conduct of the complainant has not been called in question. In such circumstances, OP is bound to provide insurance cover and honour the cover, in the instant case involving what can at best be called a technical irregularity and not a fundamental breach. 12. In view of the discussion above, this revision petition, after consideration, stands dismissed.