NATIONAL INSURANCE CO LTD vs Jog Raj

-JOG Raj respondent was the owner of TATA 709 truck bearing RC No. PB-07-N-6858. It was insured with the appellants for the period from 13. 9. 2006 to 12. 9. 2007. On 21. 10. 2006 this truck was being driven by its driver Surinder Pal when it met with an accident with bus bearing RC No. PB-07-K-9879. DDR was got recorded in PS-Adampur for this accident. The truck suffered the damage to the tune of Rs. 89,528. The claim was lodged with the appellants but it was repudiated by the appellants vide letter dated 26. 12. 2006 on the plea that the vehicle had no fitness certificate on the date of accident. Hence the respondent filed the complaint in the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short ''"district Forum" ).

THE appellants filed written statement. Besides pleading preliminary objections the case was also contested on merits. It was pleaded that the provisions of Motor Vehicles Act, 1988 and the rules framed thereunder have been violated. The validity of the driving licence of Surinder Pal was disputed. It was also pleaded that the fitness certificate of the vehicle was valid upto 15. 9. 2006. It was also pleaded that the truck had suffered damage to the tune of Rs. 78,039. 09 and not Rs. 89,528. A prayer for dismissal of the complaint was made. The respondent tendered in evidence his own affidavit Ex. C-1 and produced documents Ex. C-2 to Ex. C-14. On the other hand, the appellants have tendered in evidence documents Ex. R-1 to Ex. R-3 and affidavit of A. S. Kohli, Sr. Divisional Manager as Ex. R-4.

Learned District Forum considered the matter and vide impugned judgment dated 8. 2. 2008 accepted the complaint with costs of Rs. 1,000. The appellants were directed to make payment of Rs. 78,039. 09 to the respondent with interest @ 9% per annum from the date of complaint till the date of payment.

HENCE the appeal. The submission of the learned Counsel for the appellants was that the fitness certificate of the insured vehicle bearing RC No. PB-07-N-6858 was not valid on the date of accident. Therefore, the respondent was not entitled to be indemnified. Reliance was placed on the judgment of the Hon''ble National Commission reported as Aeroflot Soviet Airlines v. United India Insurance Co. Ltd. , IV (2006) CPJ 62 (NC ).

SUBMISSIONS have been considered. However, the Hon''ble National Commission has taken the view in the judgment reported as G. Kothainachiar v. United India Insurance Co. Ltd. and Ors. , IV (2007) CPJ 347 (NC), that the Insurance Company cannot repudiate the claim when there is no breach of the terms of the insurance policy because insurance is a matter of contract between the parties. It was held that the absence of fitness certificate may be a violation of the statutory provisions of the Motor Vehicles Act, 1988 but it was not violative of any term and condition of the insurance policy. It was observed by the Hon''ble National Commission as under: "findings: at the outset, it is to be stated that liability of the Insurance Company is two-fold: (i) statutory liability as provided under the Motor Vehicles Act, and (ii) liability to the insured as per the terms of the contract. From the facts stated above, it is apparent that there is no breach of policy condition, that is to say that there is no breach of the contract of insurance. Hence, on the ground of breach of condition of the policy, the claim cannot be repudiated. The alleged breach is with regard to the provisions of Motor Vehicles Act. Therefore, the question would be whether the Insurance Company can repudiate the claim on the alleged ground of breach of some provisions of the Motor Vehicles Act or some other Act. It is not the case of the Insurance Company that the policy is a statutory policy. In our view, the Insurance Company cannot repudiate the claim when there is no breach of terms of the policy, because insurance is a matter of contract between the parties. "

It was, therefore, held that the absence of fitness certificate does not entitle the Insurance Company to repudiate the claim. The judgment of three=judge Bench of the Hon''ble National Commission in G. Kothainachiar''s case shall prevail over the judgment relied upon by the learned Counsel for the appellants. Therefore, the claim of the respondent cannot be repudiated by the appellants on the ground that the fitness certificate of the vehicle was not valid on the date of accident.

ANOTHER submission made by the learned Counsel for the appellants was that the learned District Forum has awarded compensation to the tune of Rs. 78,039. 09 while the respondent has produced bills only to the tune of Rs. 59,728 and, therefore, the grant of compensation to the tune of Rs. 78,039. 09 cannot be sustained.

THIS submission has been considered. The respondent had taken the plea that the vehicle had suffered damage to the tune of Rs. 89,528 but the appellants had taken the plea in the written statement that the vehicle had suffered the damage to the tune of Rs. 78,039. 09 as per report of the Surveyor. When the appellants themselves have taken the plea that the damage to the vehicle was to the tune of Rs. 78,039. 09, they should not have made this submission at this stage that only an amount of Rs. 59,728 should be awarded. It may be that the respondent had not produced the bills for the remaining expenditure incurred on the repair of the vehicle. If the appellants want to make the payment on bill basis then any insured can produce the bills for an amount of more than Rs. 78,039. 09. But then the appellants would take the stand that loss has been assessed by the surveyor to the extent of Rs. 78,039. 09 and they would not make the payment more than that whatever be the amount of bills.

On the one hand, the appellants say that the report of the Surveyor should be made the basis for the grant of compensation. On the other hand, they want to pay the amount lower than the amount assessed by the Surveyor. The Insurance Company should have some credibility. Since the learned District Forum has awarded the compensation to the tune of the loss assessed by the Surveyor the appellants cannot have any grouse to the impugned order on that account. There is no merit in this appeal. The same is dismissed in limine.

THE appellants had deposited an amount of Rs. 25,000 with this Commission at the time of filing of the appeal. This amount of Rs. 25,000 along with interest accrued thereon, if any, be remitted by the Registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum. Remaining amount shall be paid by the appellants to the respondent immediately. Appeal dismissed.