S.K. Kulshrestha, President:
1. This is an appeal against the order dated 30 June, 2010 of the District Forum, Rewa in case No. 387/2009 whereby the Forum has awarded damages to the vehicle of the respondent and Rs. 5,000 for monetary loss. Cost of Rs. 1,000 has also been awarded.
2. It is not disputed that the vehicle was insured for the period commencing 20.10.2005 and ending 19.10.2006. The vehicle met with an accident on 24.6.2006 of which report was made to the Insurance Company. The Surveyor was appointed who surveyed the loss in the sum of Rs. 22,125 but, finding that as on the date of the accident the truck did not have any fitness certificate as reflected by Exs. D/7, 8 and 9, the Insurance Company repudiated their liability to pay the damages.
3. Section 66 of the Motor Vehicles Act, 1988 provides for necessity for permits and Sub-section (1) lays down as under:
â66. Necessity for Permitsâ(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 authorizing 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, authorize 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, authorize 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, authorize the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.â
4. We are of the opinion that insofar as the truck in question was concerned it did not have a fitness certificate on the date of the accident as is evident from Ex. D/7 letter of the Regional Transport Officer.
5. A three-Member Bench in G. Kothainachiar v. United India Insurance Company Ltd. and Ors., IV (2007) CPJ 347 (NC), observed that the alleged breach of not having the permit was 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. It is further stated in para 14:
âFrom the settled law quoted above, it is apparent that the Insurance Company can repudiate the claim of the insured in case where there is a breach of the policy condition/conditions; and, the breach is fundamental or material so as to vitiate the insurance contract.â
6. Reference was also made to the guidelines for settlement of non-standard claims and the formula for the same in which Clause (1) provides that where a breach of warranty or policy condition arises and where such breach is of a technical nature or is evidently beyond the control or knowledge of the insured or is considered after rectifying the policy and collecting additional premium where due. In this view of the matter the Honble National Commission admitted 75% of the damage sustained.
7. Ms. Preetima Shrivastava, learned Counsel submitted that the facts of the Kothainach, supra were totally different. According to her in the latter decision in United Insurance Company Ltd. v. B. Ugandar, III (2010) CPJ 253 (NC)=2010 (3) CVR 38 (NC), the judgment of the two Learned Members though, has distinguished the Kothainachiar, supra they have observed in para 6 as follows:
âHence, the controversy raised by Insurance Company about use of vehicle contrary to the terms and conditions of policy as for capacity of vehicle for sitting of passengers had been set at rest following decision of Honble Apex Court referred to above (supra). Though two-Member Bench of this Commission, in a similar matter of violation of provisions of M.V. Act, 1988 for plying vehicle without valid fitness certificate held repudiation of claim to be valid, however, as company was willing to grant insured amount on an ex gratia basis, regard being had to the situation and also that vehicle carrying school children had suffered damages, Insurance Company was directed to pay insured amount to the respondent/complainant. Almost in the same backdrop when a claim was repudiated by Insurance Company for there being no valid certificate of fitness, a three-Member Bench of this Commission in case of G. Kotha inachiar v. United India Insurance Co. Ltd., held repudiation bad and directed Insurance Company to honour claim of petitioner/complainant. However, for appreciation of ratio of decision of case of G. Kothainachiar v. United India Insurance Co. Ltd. (supra), we may notice that in that case though insured was having fitness certificate with regard to vehicle till 30.5.1995, there was no fitness certificate beyond the aforesaid period and during this very period the accident took place on 22.6.1995. National Commission for holding repudiation of claim, took into notice the short period beyond which the vehicle did not have fitness certificate and also there being inspection report of RTO that vehicle was in good condition for it being plied at the time of accident.â
8. They have distinguished Kothainaehiar (supra), on the ground that only for a short period there was no fitness certificate and the learned Members, therefore, took into notice the period beyond which the vehicle did not have fitness certificate and also there being inspection report of RTO that vehicle was in good condition for being plied at the time of accident. It is this exception âgood conditionâ on which the learned Counsel for the appellant is trying to capitalize to stress that since in the present case such a certificate is not there, the respondent will not get benefit of Kothainachiar (supra). We are afraid, we cannot accede to the submission of the learned Counsel for the appellant. Learned Counsel for the appellant is overlooking the fact that there is no evidence whatsoever that the vehicle was not in good condition and, therefore, it was damaged. Under these circumstances, the benefit of the law laid down by the National Commission in Kothainachiar (supra), cannot be circumvented. The respondent insured has been awarded a sum of Rs. 22,125 for the damage caused to his vehicle with 8% per annum simple interest. The breach though for a very short spell but being patent, the respondent can be awarded only 75% of the assessed amount which comes to Rs. 16593.73, rounded off to Rs. 16,600. The appellant shall pay to the respondent the said amount with 8% interest from 28.7.2009. However, in the facts and circumstances of the case, we are not inclined to uphold the damages of Rs. 5,000 awarded for mental and physical agony.
9. Accordingly, the order of the District Forum is modifiedâThe complainant respondent is awarded Rs. 16,600 as damages with interest at the rate of 8% from 28.7.2009. The appellant shall be entitled to Rs. 1,000 as cost of the proceedings of the District Forum. The appeal is thus, disposed of.