V.K. Gupta Vs. M/S. Icici Lombard General Insurance Company Ltd., Through Its Managing Director and Another - Court Judgment

Sham Sunder (Retd.), President:

1. This appeal is directed against the order dated 13.01.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).    2. The facts, in brief, are that the complainant being an Engineer and Contractor by profession, got a contract from the Public Works Department of the State of Uttar Pradesh, to construct an Inter-State Link Bridge between Saharanpur (Uttar Pradesh State)/Karnal (Haryana State), over Yamuna River, under the Central Government Scheme. It was stated that, with a purpose to carry out the said work, the complainant purchased a transit mixture, in June, 2010, from M/s Ashoka Leyland Ltd., for the aforesaid purpose. The said vehicle was registered vide Regd. No.CH-01-TA-9498, and was got was insured with the Opposite Parties, as Private Carrier, vide Insurance Policy, Annexure C-1, valid for the period from 06.07.2010 to 05.07.2011, for the sum insured, to the tune of Rs.22,59,379/-, on payment of premium of Rs.30,360/-

3. It was further stated that on 27.04.2011, while construction work was going on, at the site of bridge, the said vehicle i.e. transit mixture, while carrying/ transporting the concrete mixture, from the Batching Plant of the complainant, to the concreting site, while crossing the bridge over the river (which falls between Batching Plant and the said site), slipped and fell down, in the same (river), with the loaded material. However, no casualty took place, except the loss of material and vehicle. Intimation with regard to the said incident/ accident was given to the Opposite Parties. Thereafter, a claim alongwith all the requisite documents, was filed with the Opposite Parties. It was further stated that the Opposite Parties, demanded additional documents, such as claim form duly stamped and signed, indemnity form, permit/contract and load challan. The complainant replied to the Opposite Parties, that the permit/contract licence was required only, in the case of public vehicles and not for private vehicles.

4. However, inspite of all that the Opposite Parties, vide letter dated 22.02.2012 (Annexure C-10), intimated the complainant that due to non-submission of permit, in respect of the vehicle, in question, they were unable to process the claim, and, as such, rejected the same. It was further stated that the genuine claim of the complainant was repudiated, by the Opposite Parties, illegally and arbitrarily. The complainant made a number of requests to the Opposite Parties, to settle his genuine claim, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay the amount of Rs.13,12,066/-, i.e. the claim amount; and Rs.1,50,000/-, towards compensation and litigation costs.

5. The Opposite Parties, in their joint written version, admitted that the complainant got insured the said vehicle, from them, vide Annexure C-1, valid for the period from. 06.07.2010 to 05.07.2011, for the sum insured, to the tune of Rs.22,59,379/-, on payment of premium of Rs.30,360/-. It was also admitted that intimation with regard to accident of the vehicle, in question, was given by the complainant, to the Opposite Parties. It was stated that the transit mixture fell within the definition of a transport vehicle, and, as such, it required permit, for being driven on the public road. It was denied that the vehicle, in question, did not require any permit. It was further stated that merely because the vehicle was being used as a private carrier, as alleged by the complainant, did not mean that it did not require the permit. It was further stated that the vehicle was being plied, at a public place/road, where the public always had the right of entry and usage being a public passageway/road, and, as such, it could not be said that it was used for private purposes. It was further stated that since the complainant was not having any valid permit, for plying the vehicle, on the public road, it constituted violation of the terms and conditions of the Policy, as also transgression of the provisions of the Motor Vehicles Act, 1988. It was further stated that the Surveyor and Loss Assessor, was appointed, which assessed the net loss to the tune of Rs.4,68,529/-. It was further stated that, it was for the Insurance Company, to decide, as to whether, the claim lodged by the complainant was payable, as per the terms and conditions of the Policy, or not. It was further stated that, under these circumstances, the claim of the complainant was legally and validly repudiated by the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6. The Parties led evidence, in support of their case.

7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.

8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

9. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.

10. The Counsel for the appellant, submitted that, since the vehicle was a transit mixture, being used by the complainant, for private purpose, for carrying on the construction work, in pursuance of the contract, aforesaid, awarded to him, it (transit mixer), did not fall within the definition of a transport vehicle. He further submitted that, under these circumstances, the vehicle, in question, did not require any permit, for being plied even on the public road. He further submitted that the Opposite Parties, illegally repudiated the claim. He further submitted that the District Forum was wrong, in dismissing the complaint, only on the ground that the vehicle, in question, was being driven, without a permit, on the public road, at the time of accident. He further submitted that the order of the District forum, being illegal and invalid, is liable to be set aside.

11. On the other hand, the Counsel for the respondents/Opposite Parties, submitted that the vehicle, in question, was a transport vehicle, and it was being plied on the public road, regularly, for carrying on the commercial activities, i.e. for carrying/transporting mixture, from the batching site to the construction site. He further submitted that, as such, the vehicle, required a valid permit, for plying the same, on public road, to which the public had entry at any time, as per Section 66 of the Motor Vehicles Act, 1988, and, as per the terms and conditions of the Policy. He further submitted that claim of the complainant, was, thus, legally and validly repudiated by the Opposite Parties.

12. Admittedly, the vehicle, in question, i.e. the transit mixture, when it was transporting concrete mixture, from the batching plant/site of the complainant, to the construction site, while using the public road, met with an accident, on 27.04.2011. The submission of the Counsel for the appellant/complainant that since the vehicle, in question, was being used for private purpose, therefore, it did not require any permit, does not appear to be correct. In exercise of the powers conferred by Sub-Section (4) of Section 41 of the Motor Vehicles Act, 1988 (59 of 1988) and in supersession of the Notification of the Government of India, in the erstwhile Ministry of Surface Transport No. S.o. 451 (E), dated the 19th June, 1992, the Central Government, vide Notification dated 05.11.2004, specified the types of motor vehicles. Rule 2 (ca) (e) of the Central Motor Vehicles Rules, 1989, stipulates as under:-:-

œ*(e) Under rule 2(ca), use of public road by Construction Equipment Vehicles is incidental to the main off-road function. However, when the public road is being used regularly for carrying on commercial activities, then Construction Equipment Vehicles such as dumpers and excavators being used for such activities, shall be deemed as transport vehicles.?

13. It is not the case of the complainant, that the vehicle was not plied, on the public road, regularly, for carrying on the commercial activities. On the other hand, it was the admitted case of the complainant, that the transit mixture, in question, was being used regularly for transporting the mixture from the batching plant/site to the construction site, by using the road, for construction of bridge, referred to above. This clearly proved that the public road was being used regularly, for plying the transit mixture, for carrying on the commercial activity. Thus, the vehicle, in question, fell within the definition of a transport vehicle, as defined under Section 2(47) of the Motor Vehicles Act, 1988. The District Forum was also right, in holding so.

14. The next question, that falls for consideration, is, as to whether, the permit was required for the transit mixture, which has been held to be a transport vehicle. Admittedly, when the transit mixture met with an accident, the complainant was not holding permit, for plying the same, on the road. Section 66 of the Motor Vehicles Act 1988, reads as under:-

 œ66. 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:

Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:

Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:

Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.

(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer-semi-trailer not owned by him, subject to such conditions as may be prescribed.

Provided that the holder of a permit of any articulated vehicle may use the prime-mover of       that articulated vehicle for any other semi-trailer.

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

(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;

(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;

(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;

(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;

(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;

(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;

(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;

(h) to any transport vehicle owned by, and used solely for the purposes of, any educational institution which is recognised by the Central or State Government or whose managing committee is a society registered under the Societies Registration Act, 1860 (21 of 1860 ) or under any law corresponding to that Act in force in any part of India;

(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;

(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;

(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;

(l) to any motor vehicle which is operated by electric battery, compressed natural gas or solar energy;

(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;

(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;

(o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or

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

(4) Subject to the provisions of sub-section (3), sub- section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver?.

15. It is evident, from the afore-extracted Section 66 of the Motor Vehicles Act 1988, that no owner of a motor vehicle, shall use or permit the use thereof, 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 same, in that place, in the manner, in which the same (vehicle) is being used. Not only this, it is evident, from Annexure C-1, copy of the Insurance Policy, valid for the period from 06.07.2010 to 05.07.2011, that limitation, as to the use of the vehicle was provided therein. According to condition œLimitation as to Use? of the Policy, Annexure C-1, it (Policy) covered use of the vehicle, only under a permit, within the meaning of the Motor Vehicles Act 1988, or such a carriage falling under Sub-section (3) of Section 66 of the Motor Vehicles Act 1988. According to Section 66 of the Motor Vehicles Act 1988, extracted above, no transport vehicle could be plied on the road, without a route permit. Since, on 27.01.2011, when the transit mixture met with an accident, the complainant was not holding a permit, for plying the same, on the road, he not only violated the provisions of Section 66 of the Motor Vehicles Act 1988, but also breached the fundamental condition, referred to above, of the Insurance Policy Annexure C-1.

16. The next question, that falls for consideration, is, as to whether, on account of non-holding of a permit, for plying the said transit mixture, on the public road, on the date of accident, the claim of the complainant could be repudiated completely or he was required to be compensated on non-standard basis. In Pal Singh Vs. The Oriental Insurance Co. Ltd., Revision Petition No.1911 of 2011 decided on 03.07.2012, by the National Consumer Disputes Redressal Commission, New Delhi, the petitioner (complainant) was not holding a valid route permit, for plying the vehicle, on road. The said vehicle met with an accident. The claim submitted by the petitioner (complainant) was repudiated, by the Insurance Company. He filed a Consumer Complaint, which was accepted by the District Forum. Aggrieved against the order of the District Forum, the Insurance Company filed First Appeal, before the State Consumer Disputes Redressal Commission, which was accepted. Feeling aggrieved, the petitioner (complainant), filed Revision Petition, which was dismissed, holding that since the vehicle was being plied, on the road, without any valid route permit, which was in contravention of the provisions of Section 66 of the Motor Vehicles Act 1988, as also in breach of the fundamental condition of the Insurance Policy, the claim was rightly repudiated. Similar principle of law, was laid down, in United India Insurance Co. Ltd. Vs. Dharam Raj, IV (2005) CPJ 115 (NC) and United India Insurance Co. Ltd. Vs Trilok Kaushik, IV (2010) CPJ 321 (NC). Under these circumstances, in our considered opinion, the Opposite Parties were right, in repudiating the claim of the complainant. The repudiation of claim, therefore, could not be said to be illegal or arbitrary. The District Forum, was, thus right, in holding that the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice.

17. No other point, was urged, by the Counsel for the parties.

18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.

20. Certified copies of this order, be sent to the parties, free of charge.

21. The file be consigned to Record Room, after completion.