NEW INDIA ASSURANCE CO LTD Vs. PUKHRAJ MEHLA

JUDGEMENT

(1.) THESE two separate appeals have been filed against order dated 16.7.2009 passed by the District Consumer Forum (DCF), Nagaur. As the points involved are the same, they are being disposed of by this single order. The Complainant has filed the appeal bearing No.1525/2009 on the ground that entire amount as assessed by the Surveyor should have been allowed whereas 75% of the amount has been awarded with interest @ 9% per annum besides Rs. 2,000 as cost of litigation.

(2.) THE Assurance Company has filed the appeal bearing No. 1117/2009 on the ground that since the Complainant had no permit to ply the vehicle in question, therefore, no compensation was allowable.

(3.) ADMITTEDLY , the dumper was insured which over -turned and sustained damage. The claim was not passed by the Assurance Co. on the ground that at the time of accident, the vehicle had no permit and therefore on account of violation of terms and conditions, the claim was repudiated. It has been admitted by the learned Counsel for the Complainant that the accident took place on 3.8.2007 and the permit was obtained on 8.8.2008 showing clearly that the vehicle had no permit on the day of accident. The learned Counsel for the Assurance Co. has cited United India Assurance Co. Ltd. V/s. Dharam Raj, 2005 4 CPJ 115, wherein it has been held that Section 66 of the Motor Vehicles Act creates a total bar on use of a vehicle in any public place whether or not such vehicle is carrying any passenger or goods unless the owner thereof holds a permit as defined in Section 2(31). The learned Counsel also cited ruling of the Hon'ble Supreme Court reported in National Insurance Co. v. Challa Bharathamma, 2004 3 ACC 292 wherein it has been held that plying of a vehicle without a permit is infraction and therefore in terms of Section 149(2) defence is available to the insurer on that aspect. In that particular case, the insurer was not held liable for payment of compensation. Insurance policy represents a contract between the insurer and the insured and insured has to act strictly in accordance with the statutory limitations/terms of policy. Since the use of vehicle in question at the time of incident was in contravention of Section 66 of the Motor Vehicles Act and conditions of policy, the Complainant is not entitled to get any amount under the policy. While issuing the policy, it was made clear in the policy itself that it will cover use of vehicle only under a permit. The orders passed by the learned DCF being legally erroneous cannot be sustained and deserves to be set aside. Resultantly while allowing the appeal filed by the Assurance Co., the impugned order is set aside and the complaint is dismissed. Consequently, the appeal filed by the Assurance Co. is allowed and the appeal filed by the Complainant is dismissed. There will be no order as to costs. Appeal No. 1177 allowed. Appeal No. 1525 dismissed.