NATIONAL INSURANCE CO LTD vs Toofani Hati

THIS revision petition has been filed by the petitioner against the order dated 31.10.2013 passed by the learned State Consumer Disputes Redressal Commission, Odisha, Cuttack (in short, ''the State Commission'') in Appeal No. 923/2012 National Ins. Co. Ltd. Vs. Toofani Hati by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent got his truck OR -06 -F -7886 insured from OP/petitioner for a period of one year from 19.4.2011 to 18.4.2012. On 28.10.2011, truck met with a accident and extensive damage was caused to the vehicle. OP was intimated and surveyor was appointed who surveyed vehicle in the garage. Complainant got it repaired and submitted bills of Rs.3,98,000/ - to OP, but OP vide letter dated 7.5.2012 asked for copy of last permit of the vehicle to harass the respondent. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that surveyor assessed loss and obtained signatures of complainant on acceptance sheets which were not blank. It was further submitted that permit submitted by complainant was from 29.10.2011 to 28.10.2016, but vehicle met with an accident on 28.10.2011 and as per RTO information submitted by complainant, he was having temporary permit from 25.10.2011 to 31.10.2011 under Section 66 (3) (p) of the Motor Vehicle Act. It was further submitted that purpose of temporary permit was to shift empty vehicle for repair whereas at the time of accident vehicle was loaded with bricks which was violation of the terms of permit; so, claim was rightly repudiated and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,79,863/ - and further directed to pay compensation of Rs.10,000/ - towards deficiency. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.

HEARD learned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the petitioner submitted that as vehicle was driven against the terms of permit on the date of accident claim was rightly repudiated, but learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

IT is not disputed that complainant''s vehicle was insured by OP and during currency of insurance, vehicle met with an accident on 28.10.2011. It is also not disputed that RTO, Dhenkanal granted the permission to the complainant under Section 66(3) (p) of Motor Vehicle Act for shifting his vehicle from Meramundali to Dhenkanal Town for the purpose of repair and this permission was valid from 25.10.2011 to 31.10.2011. It is also not disputed that State Regional Transport Authority granted permit to complainant for a period of 5 years from 29.10.2011 to 28.10.2016.

THUS , it becomes clear that on the day of accident complainant was possessing permit for shifting the vehicle for the purpose of repair. Perusal of record further reveals that at the time of accident, vehicle was loaded with bricks. Learned Counsel for the respondent submitted that loading of vehicle was made on 18.10.2011 and thereafter remained on the spot and after getting permission for repairs vehicle was taken which met with an accident on 28.10.2011. It was further submitted that permit for repair nowhere mentioned that vehicle was to be carried empty.

AS per letter of complainant given to OP, vehicle was loaded on 18.10.2011 and his permit had expired so he applied and got temporary permit from 25.10.2011 to 31.10.2011. Complainant has not placed permit on record to ascertain its validity on 18.10.2011. It was further mentioned in the letter that load could not be cleared from the vehicle due to labour problem. By no stretch of imagination, it can be presumed that vehicle loaded on 18.10.2011 will remain loaded due to labour problem upto 28.10.2011, the day on which accident occurred. No doubt, it has not been mentioned in the temporary permit that vehicle is to be brought empty from Meramundali to Dhenkanal Town for repair, but had it been loaded before grant of this temporary permit it must have been mentioned in temporary permit that vehicle was loaded and to be shifted for repair. It appears that after obtaining permit for repair vehicle was loaded by complainant and while plying vehicle it met with an accident on 28.10.2011 and on that day he was not having regular permit for plying the vehicle.

AS vehicle was driven without permit on the day of accident, complainant violated terms and conditions of policy and OP has not committed any error in repudiating claim. Learned Counsel for the petitioner has placed reliance on judgment delivered by me in Manoj Banerjee Vs. Oriental Ins. Co. Ltd. and Anr, 2013 1 CPJ 542 in which repudiation of claim was held justified as complainant had obtained route permit only for Haryana, Punjab, UP and Uttrakhand whereas vehicle entered in the area of Meghalaya without any valid route permit and suffered damages in accident. He has also placed reliance on judgment of this Commission in Pal Singh Vs. Oriental Ins. Co. Ltd, 2012 3 CPJ 489 in which repudiation of claim on account of breach of policy condition regarding route permit was held proper. As there was violation of terms of permit for repair, claim was rightly repudiated by OP. On the other hand, learned Counsel for the respondent placed reliance on judgment of this Commission in R.P. No. 1224 of 2014 Dinesh Kumar Shah Vs. National Ins. Co. Ltd. in which claim was upheld as Insurance Company did not insist production of permit duly transferred in the name of the complainant at the time of issuing insurance policy. This case does not help to the respondent as in the aforesaid case Insurance Co. did not insist for transfer of permit in his name at the time of issuance of policy; though, permit was issued in the name of earlier owner.

LEARNED Counsel for the respondent submitted that even if there is violation regarding terms of permit respondent is entitled to get claim on non -standard basis as held by Hon''ble Apex Court in Amalendu Sahoo case and in Nitin Khandelwal case. In both the cases vehicle was used as a taxi, though, insurance was for personal use, but in the case in hand, there was no permit for plying vehicle with goods and in such circumstances, aforesaid cases are not applicable to the facts and circumstances of the present case.

IN the light of above discussion, revision petition is to be allowed.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and order dated 31.10.2013 passed by learned State Commission in Appeal No. 923 of 2012 National Insurance Co. Ltd. Vs. Toofani Hati and order of District Forum dated 14.9.2012 passed in Consumer Complaint No. 65/2012 - Toofani Hati Vs. National Insurance Co. Ltd. is set aside and complaint stands dismissed with no order as to costs.

AMOUNT deposited by the petitioner with District Forum for obtaining stay may be released to the petitioner.