First Appeal No.47 of 2011

13th October, 2011

Petitioner Counsel: R P BAFANA
Respondent Counsel: ASHUTOSH MARATHE

Cases Cited:
National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, 2004(5) ALL MR 1184 (S.C.) =2004-ACJ-2094 [Para 6]

JUDGMENT

Mr. NARENDRA KAWDE, Hon'ble Member :- Heard Adv. Rajendra P. Bafna on behalf of the Appellant/ original Opponent and Adv. Ashutosh Marathe on behalf of the Respondent/original Complainant.

2. This appeal is directed against an order dated 30/11/2010, passed by the District Consumer Disputes Redressal Forum, Kolhapur ('the District Forum' in short) in Consumer Complaint No.475 of 2010, J. K. Transport Corporation Vs. The New India Assurance Co. Ltd.

3. With the consent of the parties heard the appeal for sometime on the point of admission and an order to dismiss the appeal was pronounced in open Court on 13/10/2011 for the reasons summarized here-in-below:-

4. Admitted facts on record are that the Respondent/original Complainant subscribed to insurance policy No.151104/31/06/01/ 00000418 issued by the Appellant/original Opponent to provide insurance cover to his truck No.KA-35-7417 owned by the Respondent/original Complainant for the period commencing from 22/4/2006 to 21/4/2007. During the validity period of insurance policy, the insured truck met with an accident on 28/5/2006. Surveyor appointed by the Appellant/original Opponent Insurance Company assessed the damage caused to the truck to the extent of an amount of '64,000/-. Insurance claim was repudiated on 18/12/2006 by the Appellant/original Opponent Insurance Company on the ground that the Respondent/original Complainant did not possess valid permit to ply the insured vehicle on the road which was breach of condition incorporated in the policy document. Aggrieved with rejection of insurance claim, the Respondent/original Complainant filed a consumer complaint before the District Forum, Kolhapur. Said consumer complaint was allowed by the Forum and directed the Appellant/original Opponent Insurance Company to pay to the Respondent/original Complainant an amount of '64,000/- together with interest thereon @ 9% p.a., with effect from 18/12/2008 alongwith an amount of '5,000/- by way of compensation towards mental agony and costs of '2,000/-. Dissatisfied and aggrieved with this order, the Appellant/original Opponent Insurance Company has preferred this appeal.

5. Contention of the Appellant/original Opponent Insurance Company is that valid permit was not produced by the Respondent/ original Complainant inspite of reminders. Truck was plying for carrying goods from 22/4/2006 in breach and violations of terms and conditions of the insurance policy. Mere payment of necessary charges for obtaining carriage permit does not allow the Respondent/original Complainant to ply the vehicle on road to carry the goods. Consumer complaint filed before the Forum was time-barred as the accident occurred on 28/5/2006 whereas consumer complaint was filed on 5/8/2010.

6. We have perused the record and relevant documents adduced by the parties. Mr. Rajendra P. Bafna, Learned Advocate for the Appellant/original Opponent pleaded that the Respondent/original Complainant did not satisfy the provisions of Section-66 of the Motor Vehicles Act, 1988 as on the date of accident of ill-fated insured truck did not possess valid permit to ply the same on the road and to support this contention, he relied upon the decision of the Hon'ble Supreme Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and Others ~ 2004-ACJ-2094 : [2004(5) ALL MR 1184 (S.C.)].

7. In the present case, there was a valid fitness certificate in respect of insured truck for the period 5/5/2006 to 4/5/2008 and the permit effective from 29/5/2006 till 28/5/2011 as recorded by the Appellant Insurance Company's surveyor. As the insured truck was brand new, the Respondent/original Complainant paid fees of '850/- on 3/5/2006 to obtain permit. The said truck was taken for inspection by Regional Transport Office on appointed date i.e. on 28/5/2006 and after inspection was over, the truck, while in its return journey, met with an accident on the same date i.e. 28/5/2006 and sustained damage. Valid permit was issued on 29/5/2006 by the Regional Transport Office on the very next day. Motor Vehicles Act, 1988 does not provide to deal with such an eventuality as in the present case. Therefore, the submission advanced by the Learned Advocate for the Appellant that the ill-fated insured truck did not possess valid permit as contemplated under Section-66 of the Motor Vehicles Act, 1988 is not acceptable. The facts and circumstances in the present case are altogether different than the citation relied upon (supra) by the Learned Advocate for the Appellant, and therefore, said decision will not be applicable to the present case.

8. As regards point of limitation raised by the Appellant/ original Opponent Insurance Company about filing of the consumer complaint before the District Forum, it is observed that the Appellant/original Opponent did not raise this objection in the first instance at the stage of first opportunity available while filing the written version and affidavit before the District Forum and this issue has been raised subsequently for the first time in the appeal and hence, this objection cannot be considered in appeal.

In view of the foregoing reasons, we find no merits in the appeal and it deserves to be dismissed. We hold accordingly and proceed to pass the following order:-

ORDER

Appeal stands dismissed.

No order as to costs.

Appeal dismissed.