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2014 DIGILAW 998 (JHR)

United India Insurance Company Ltd. , Jamshedpur v. Md. Azeem

2014-09-20

SHREE CHANDRASHEKHAR

body2014
Order Aggrieved by a direction to pay Rs. 2,54,000/- with interest at the rate of 14% per annum, the petitioner-United India Insurance Company Ltd. has preferred the writ petition challenging order dated 01.02.2007 in PLA Case No.51 of 2006 passed by Permanent Lok Adalat, Jamshedpur. 2. The narration of facts in the writ petition discloses that, the respondent namely, Md. Azeem preferred a claim case being PLA Case No. 51 of 2006 in the Permanent Lok Adalat at Jamshedpur claiming payment of total loss claimed on account of the accident of the insured vehicle. The Complainant is the registered owner of the vehicle (Tata PickUp Van) vide Registration No. JH05E8829 and the said vehicle was insured vide Insurance Police No. 210801/31/05/01537 which was valid for a period of one year between 26.10.2005 to 25.10.2006. The insured vehicle met with an accident on 29.11.2005 at about 5.30 am and the vehicle was seriously damaged and the khalasi died on the spot. A case being Ranchi Sadar P.S. Case No. 105 of 2005 dated 29.11.2005 under Sections 279, 304A and 427 of the Indian Penal Code was registered. The Complainant informed the Insurance company and the vehicle was surveyed by the surveyor of the Insurance company. An estimate for repair of the damaged vehicle was obtained by the Complainant however, the Insurance company advised the complainant not to get the vehicle repaired because the estimate for repair was found excessive. Considering the insured value for Rs.2,30,000/, the Insurance company declared the total loss to the vehicle as Rs. 2,29,000/and processed the claim for the same amount. However, inspite of repeated request by the Complainant, the claim was not settled and vide letter dated 05.09.2006, the Insurance claim, that is, Insurance Claim No. 210801/31/5/00115 was repudiated by the petitioner-Insurance company on the ground that the vehicle was plying without Fitness Certificate when the accident occurred. In response to letter dated 05.09.2006, the Complainant submitted his reply vide letter dated 12.09.2006 informing the Insurance company that vide Reference no. 819 dated 18.08.2005, the Complainant had deposited fee for grant of Fitness Certificate and the Fitness Certificate was issued on 29.11.2005. However, the Insurance company repudiated the Insurance claim on the ground that at the time of accident the vehicle was plying without valid Fitness Certificate. 3. 819 dated 18.08.2005, the Complainant had deposited fee for grant of Fitness Certificate and the Fitness Certificate was issued on 29.11.2005. However, the Insurance company repudiated the Insurance claim on the ground that at the time of accident the vehicle was plying without valid Fitness Certificate. 3. The Insurance company appeared before the Permanent Lok Adalat and filed written statement taking the plea that the insured vehicle violated the terms and conditions of the policy and therefore, the Insurance company was not bound to indemnify the Complainant for damage caused to the vehicle. The Fitness Certificate of the vehicle had expired on 22.07.2005 and a fresh certificate for the insured vehicle was issued on 29.11.2005. The complainant was not authorized to ply the vehicle on road merely after filing application with requisite fee for grant of Fitness Certificate. The Fitness Certificate was issued after 10 am on 29.11.2005 whereas, the accident had occurred at about 5.30 am and thus, it is apparent that, at the time when the vehicle met with an accident, it was plying without a valid Fitness Certificate. It is further stated that the Permanent Lok Adalat committed an error in law in adjudicating the dispute because once the claim of the insured vehicle is contested and the liability is denied by the Insurance company, the matter should have been referred to the civil court for adjudication. The assessment in the surveyor's report cannot be construed as admission of the liability by the Insurance company. The Permanent Lok Adalat has no jurisdiction to take evidence because the Permanent Lok Adalat cannot be said to be a court within the meaning of the Code of Civil Procedure. The Permanent Lok Adalat has no jurisdiction to declare the repudiation of Insurance claim by the Insurance company, null and void because the Permanent Lok Adalat cannot assume the power, jurisdiction and authority of civil court. 4. A counter-affidavit has been filed supporting the impugned order dated 01.02.2007. It is stated that the terms and conditions of the Insurance policy do not provide that if the Certificate of Fitness is issued on the date of accident, no claim would be settled. In fact, the application for grant of Certificate of Fitness was made much prior to the date of accident. It is stated that the terms and conditions of the Insurance policy do not provide that if the Certificate of Fitness is issued on the date of accident, no claim would be settled. In fact, the application for grant of Certificate of Fitness was made much prior to the date of accident. The petitioner having participated in the proceeding and after filing written statement and leading oral evidence for contesting the claim of the Complainant, cannot be permitted to take a plea that the Permanent Lok Adalat has no power to enter into the merits of the case. 5. The learned counsel appearing for the petitioner has submitted that admittedly when the insured vehicle met with an accident, it was not carrying a valid Fitness Certificate and thus, the claimant violated the terms and conditions of the policy. It is further submitted that when a claim is repudiated for violation of terms and conditions of policy, the claim cannot be settled only on nonstandard basis. The learned counsel has relied on a decision in “National Insurance Company Ltd. Vs. Nitin Khandelwal”, reported in (2008) 11 SCC 259 and submitted that the Permanent Lok Adalat erred in granting the full Insurance claim to the Complainant. Per contra, the learned counsel for the respondent has supported the impugned order. It is submitted that in “Bar Council of India Vs. Union of India”, reported in (2012) 8 SCC 243 , the Hon'ble Supreme Court has held that the power conferred on Permanent Lok Adalat under Section 22C(8) to adjudicate the disputes between the parties cannot be said to be unconstitutional and irrational. Chapter VIA has been enacted to provide for institutional mechanism, through the establishment of Permanent Lok Adalats for settlement of disputes. In the event of failure to reach any settlement, the Permanent Lok Adalat is empowering to adjudicate the dispute. 6. By the Amendment Act, 2002 in the Legal Services Authorities Act, 1987, Section 22A(a) was inserted. The Permanent Lok Adalat constituted under Section 22B(1) has conciliatory as well as adjudicatory function. Every Permanent Lok Adalat constitutes of (a) a person who is or has been a District Judge or Additional District Judge or has held judicial office higher in rank than that of District Judge and, (b) two other persons having adequate experience in public utility service. Every Permanent Lok Adalat constitutes of (a) a person who is or has been a District Judge or Additional District Judge or has held judicial office higher in rank than that of District Judge and, (b) two other persons having adequate experience in public utility service. Section 22C of the Legal Services Authorities Act, 1987 provides for the procedure for raising a dispute before the Permanent Lok Adalat. 22C. “Cognizance of cases by Permanent Lok Adalat (1) Any party to a dispute may, before the dispute is brought before any court, make an application to the Permanent Lok Adalat for the settlement of dispute: Provided that the Permanent Lok Adalat shall not have jurisdiction in respect of any matter relating to an offence not compoundable under any law: Provided further that the Permanent Lok Adalat shall not have jurisdiction in the matter where the value of the property in dispute exceeds ten lakh rupees: Provided also that the Central Government, may, by notification, increase the limit of ten lakh rupees specified in the second proviso in consultation with the Central Authority. (2) After an application is made under subsection (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute. (3) Where an application is made to a Permanent Lok Adalat under subsection (1), it (a) shall direct each party to the application to file before it a written statement, stating therein the facts and nature of dispute under the application, points or issues in such dispute and grounds relied in support of, or in opposition to, such points or issues, as the case may be, and such party may supplement such statement with any document and other evidence which such party deems appropriate in proof of such facts and grounds and shall send a copy of such statement together with a copy of such document and other evidence, if any, to each of the parties to the application; (b) may require any party to the application to file additional statement before it at any stage of the conciliation proceedings; (c) shall communicate any document or statement received by it from any party to the application to the other party, to enable such other party to present reply thereto. (4) When statement, additional statement and reply, if any, have been filed under subsection (3), to the satisfaction of the Permanent Lok Adalat, it shall conduct conciliation proceedings between the parties to the application in such manner as it thinks appropriate taking into account the circumstances of the dispute. (5) The Permanent Lok Adalat shall, during conduct of conciliation proceedings under subsection (4), assist the parties in their attempt to reach an amicable settlement of the dispute in an independent and impartial manner. (6) It shall be the duty of every party to the application to cooperate in good faith with the Permanent Lok Adalat in conciliation of the dispute relating to the application and to comply with the direction of the Permanent Lok Adalat to produce evidence and other related documents before it. (7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned. (8) Where the parties fail to reach at an agreement under subsection (7), the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute. 22D. Procedure of Permanent Lok Adalat The Permanent Lok Adalat shall, while conducting conciliation proceedings or deciding a dispute on merit under this Act, be guided by the principles of natural justice, objectivity, fair play, equity and other principles of justice, and shall not be bound by the Code of Civil Procedure, 1908(5 of 1908) and the Indian Evidence Act, 1872(1 of 1872). 22E. Award of Permanent Lok Adalat to be final (1) Every award of the Permanent Lok Adalat under this Act made either on merit or in terms of a settlement agreement shall be final and binding on all the parties thereto and on persons claiming under them. (2) Every award of the Permanent Lok Adalat under this Act shall be deemed to be a decree of a civil court. (2) Every award of the Permanent Lok Adalat under this Act shall be deemed to be a decree of a civil court. (3) The award made by the Permanent Lok Adalat under this Act shall be by a majority of the persons constituting the Permanent Lok Adalat. (4) Every award made by the Permanent Lok Adalat under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding. (5) The Permanent Lok Adalat may transmit any award made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.” 7. The Hon'ble Supreme Court in “Bar Council of India” case after analysing different provisions of the Legal Services Authorities Act and the judgment in “S.N. Pandey Vs. Union of India & Anr.”, reported in (2012) 8 SCC 261, held that the Permanent Lok Adalat has power to adjudicate a dispute relating to public utility services. It has been held thus: 27. “Can the power conferred on Permanent Lok Adalats to adjudicate the disputes between the parties concerning public utility service up to a specific pecuniary limit, if they do not relate to any offence, as provided under Section 22C(8), be said to be unconstitutional and irrational? We think not. It is settled law that an authority empowered to adjudicate the disputes between the parties and act as a tribunal may not necessarily have all the trappings of the court. What is essential is that it must be a creature of statute and should adjudicate the dispute between the parties before it after giving reasonable opportunity to them consistent with the principles of fair play and natural justice. It is not a constitutional right of any person to have the dispute adjudicated by means of a court only. Chapter VIA has been enacted to provide for an institutional mechanism, through the establishment of Permanent Lok Adalats for settlement of disputes concerning public utility service before the matter is brought to the court and in the event of failure to reach any settlement, empowering the Permanent Lok Adalat to adjudicate such dispute if it does not relate to any offence.” 8. In the present case, the petitioner-Insurance company filed a written statement and examined one witness also for contesting the claim of the claimant. In the present case, the petitioner-Insurance company filed a written statement and examined one witness also for contesting the claim of the claimant. The petitioner-Insurance company therefore, cannot be permitted to raise a plea that the Permanent Lok Adalat has no jurisdiction to adjudicate the dispute between the parties. From the documents brought on record, it appears that the claimant had already applied for Fitness Certificate on 18.11.2005 and the Fitness Certificate was issued on 29.11.2005. It is not the case of the petitioner-Insurance company that the Fitness Certificate dated 29.11.2005 is a forged one or that the claimant applied for the Fitness Certificate on 29.11.2005 and obtained the same on the same day. It further appears that initially the Insurance company assessed the extent of damage to the injured vehicle and advised the claimant to get a estimation for repair. About ten months after the occurrence, the Insurance claim has been repudiated on the ground that the vehicle was not plying with a valid Fitness Certificate. The Permanent Lok Adalat has awarded the claim of Rs. 2,29,000/- and an amount of Rs. 25,000/has been awarded on account of harassment, mental torture, etc. The provision under Section 22 of the Legal Services Authorities Act is intended at providing speedy redressal of the grievances of the consumers of public utility services. 9. I do not find any infirmity in the impugned order dated 01.02.2007 warranting interference by this Court. 10. In the result, the writ petition fails and accordingly, it is dismissed.