Raghunath Kakkarh complainant through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that a direction be issued to the opposite party to pay Rs.13,02,002/- alongwith interest @ 18% P.A. from the date of accident till actual realization of the amount to the applicant and litigation expenses and other expenses, in the interest of justice.
- The case of complainant in brief is that he purchased one Verna CRDi SX 1.6 BSIV Pure White Car from the opposite party no.1 vide Invoice No.H201300649 dated 28.2.2014 for Rs.10,12,002/- and delivery of the said vehicle was made on 23.2.2014 vide Delivery Receipt No.719. As per the law, the opposite party no.1 was bound to get the R.C. prepared in his name and also get the vehicle insured before the release of the said vehicle to him. He paid the entire expenses for the preparation of R.C. and Insurance and the opposite party no.1 received the extra amount and after the receipt of the extra amount, the opposite party no.1 issued temporary Registration no.PB08-Temp-9073 from the opposite parties no.2 to 4 and the said vehicle was duly insured with the opposite parties no.2 to 4 by the opposite party no.1. He has further pleaded that on 29.3.2014, he was driving the vehicle and proceeded from Gurdaspur to Batala alongwith his family member via Tibri Road and at about 11.30 P.M. when the said car reached near Joban Dhaba, Near Babehali Road, the animal/buffaloes came in front of the car and in order to save the life of the animal, the car struck with the tree with the result that the said vehicle was totally damaged and his son namely Chetan and his nephew namely Deepak were seriously injured and both were admitted in Amandeep Hospital, Amritsar. He informed the opposite parties about the said accident and on receipt of the said intimation the enquiry was duly conducted by the opposite parties no.2 and 3 and after conducting the enquiry, the opposite parties nos. 2 to 4 repudiated his claim vide letters dated 16.9.2014, 25.9.2014, 4.10.2014 and 4.11.2014 by the opposite party no.4 on the following grounds:-
- At the time of accident, vehicle was being driven by Mr.Chetan Kakkar son of Sh.Raghunath Kakkar instead of yourself(complainant) as intimated.
- Temp RC of the vehicle was valid for 30 days from 23.2.2014 at the time of loss on 29.3.2014 neither temp RC was valid nor the road tax was paid for permanent registration of the vehicle.
He has next pleaded that the letters issued by the opposite party no.4 are illegal, ultravires, null and void, inoperative, and ineffective and the same have been issued on the false and baseless grounds. It was denied that the said vehicle was being driven by Chetan Kakkar. He was driving the said vehicle and the said Chetan Kakkar was sleeping on the back seats of the car and said car was struck with the tree on the conductor side and he was saved by the grace of the god. Besides this it was the duty of the opposite party no.1 to issue the permanent Registration number of the car within time as he had already paid the entire Registration Expenses to the opposite party no.1. The opposite party no.1 issued the Permanent Registration Number on 3.4.2014 after the accident took place and there is no negligence on his part. He had paid the Road Tax etc. for permanent Registration of the vehicle to the opposite party no.1. Hence the repudiation of his claim is illegal, ultravires, null and void and the said letters have got no binding force on his rights. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed the written reply by taking the preliminary objections that complaint is not maintainable against the opposite party no.1; the complainant has no locus standi to file the present complaint against opposite party no.1 and the complainant has not approached this Hon’ble Forum with clean hands and has suppressed the material facts from this Forum as such the complaint is liable to be dismissed. On merits, it was submitted that the complainant paid the amount of insurance and also certain amount for the preparation of the Registration Certificate. However, he has not paid the full amount for the preparation of the Registration Certificate on the plea that the complainant is to get fancy number and also from the new series for his car and for that purpose he instructed the opposite party no.1 not to deposit the amount of Tax with the Registration Authorities till he advice the opposite party. However the temporary registration number was issued as is mandatory. The complainant has not informed the opposite party to deposit the Taxes for the preparation of the Registration Certificate within the period of 30 days for which the temporary number was valid. However, the opposite party no.1 deposited the Taxes for the preparation of the Registration Certificate and Registration Certificate was issued in the name of the complainant by the Registering Authority on 03.04.2014 and the same was delivered. The Registration number PB-06-Y-5462 was allotted. The insurance cover note for the insurance of the Verna Car purchased by the complainant was got issued from opposite parties no.2 to 4 and handed over to the complainant then and there. It was further submitted that there was no occasion for the complainant to inform the opposite party no.1 about the accident as the Car purchased by complainant was duly insured with opposite parties no.2 to 4 and it is opposite parties no.2 to 4 who are to pay the amount of alleged loss. It was next submitted that the car was insured with its Engine No and Chassis No and the alleged claim was also in respect of said Car. The opposite parties no.2 to 4 insurance company has nothing to do with the Road Taxes etc. It is for the Traffic Police Authorities to check or impose fine for non-payment of road taxes only. Insurance Company is bound to pay the claim of loss of the vehicle which they have insured. The alleged repudiation of the claim by the opposite parties no.2 to 4 on this ground is illegal. The Insurance Company is legally liable to pay the genuine claim after its assessment from their surveyors to the complainant. It was further submitted that the complainant is not entitled for any claim from opposite party no.1. However, he is entitled to claim compensation from Insurance Company for loss from opposite parties no.2 to 4 if he fulfills the conditions of the policy. The complainant is not entitled for any interest or alleged damages from the opposite party no.1. All other averments made in the complaint have denied and lastly the complaint has been prayed to be dismissed with costs.
4. Opposite parties no.2 to 4 appeared through their counsel and filed their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint; there is no deficiency in services on the part of the opposite party. The claim of the complainant has been repudiated due to breach of the terms and conditions of the policy vide letter dated 4.11.2014. The first ground on which the claim has been repudiated is delay in intimation. The alleged loss took place on 29.3.2014 but the claim has been reported 11.4.2014. As per condition no.1 of the policy “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all the information and assistance as the company shall require. Every letter claim…………………………..” The second ground of the repudiation is that the vehicle of the complainant was not registered at the time of alleged accident i.e. on 20.3.2014. As per registration certificate date of registration is 3.4.2014 i.e. after the alleged loss and this fact clearly shows that the vehicle was not registered and the complainant was failed to register the vehicle within a period of 30 days. And third ground of repudiation is the concealment of the true facts. At the time of accident the vehicle was being driven by Mr.Chetan Kakkarh son of Raghunath Kakkarh. But the wrong intimation has been given to the insurance company. The matter has been investigated by the Royal Associates and he also took the statements of the various persons and from its report it becomes clear that Chetan Kakkarh was driving the car. So the claim of the complainant has rightly been repudiated on these grounds. The lot of reminders dated 16.9.2014, 25.9.2014 and 4.10.2014 has been sent to the complainant before repudiating the claim. So there is no deficiency in services on the part of the opposite parties. On merits, it was submitted that the report of the Investigator Royal Associates makes its clear that Chetan Kakkarh was driving the vehicle, but no driving license of Chetan Kakkarh has been provided/produced for verification. The complainant has filed claim with the opposite party with wrong facts and concealed the material facts. It has further submitted that the claim has rightly been repudiated vide letter dated 4.11.2014 after giving several opportunities by sending lot of reminders. The claim has been repudiated due to breach of the terms and conditions of the policy. The claim has been repudiated on the ground of delay in intimation, non registration of vehicle at the time of alleged accident and concealment of true facts. So there is breach of the terms and conditions of the policy and of the provisions of the motor vehicle Act. All other averments made in the complaint have denied and lastly the complaint has been prayed to be dismissed with costs.
5. Complainant tendered into evidence his own affidavit Ex.CW1/A alongwith other documents Ex.C1 to Ex.C13 and closed the evidence.
6. Counsel for the opposite party no.1 tendered into evidence affidavit of Sunil Kumar Authorized Signatory Ex.OP-1/1 and copy of Resolution Ex.OP-1/2 and closed the evidence.
7. Counsel for the opposite parties no.2 to 4 tendered into evidence affidavit of Shivali Sharma Authorized Signatory Ex.OP-2 to 4/1, alongwith other documents Ex.OP-2 to 4/2 to Ex.OP-2 to 4/42 and closed the evidence.
8. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute has prompted at the opposite party (OP2 to OP4) insurer’s claim repudiation (Ex.C6/Ex.OP2to4/4) of 04.11.2014 in response to the complainant’s insurance claim of 29.03.2014 for the full IDV of Rs.9.79 Lac (of the Policy) to cover the ‘total-loss’ repair-estimates of the accident-meted out insured car. Further, the OP insurers have duly admitted in the written statement & also in the related affidavit (Ex.OP1/1) that the impugned claim repudiation was duly conveyed in terms of Ex.C6/Ex.OP2to4/4 of 04.11.2014 on account of the following 3 nos of counts: reading as:
Count (1): Claim reported on 11.04.2014 vide date of loss 29.03.2014, there is delay in reporting the claim to underwriters which is violation of condition no 1 of the policy.
Finding (1): The OP insurers have failed to produce any cogent evidence of the claim having filed/ reported on 11.04.2014 except Ex.OP2to4/10 which is an unsigned, ambiguous single sheet (motor claim notification) with the caller’s name as: Anil Kumar and date of intimation as: 11.04.2014; as such the same cannot be relied upon in deciding the issue. It is neither understood nor explained as to why the OP insurers have not produced the copy of claim itself to remove all ambiguity etc. Thus, the OP alleged date of claim intimation as: 11.04.2015 stands ‘not proved’.
Count (2): As per registration certificate; date of registration is 03.04.2014 i.e., road tax paid date, which is after the loss and the subject car was not registered with the concerned RTO at the time of loss i.e., 29.03.2014.
Finding (2): We further find that at the time of purchase (23.02.2014) of the ‘insurance’ policy (Ex.OP2to4/8) the said Car in question was duly registered (Ex.C11) vide Temporary Registration # PB 08 BV 9073 valid up to 25.03.2014. As per section 43(2) of the Motor Vehicles Act 1988, the validity of the temporary registration is only for a period of 30 days and it is not renewable. “Section 43(2): A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable : Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or [any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or Periods as the registering authority or other prescribed authority, as the case may be, may allow. Thus, the proviso to section 43 clarifies that period of ‘30 days’ may be extended by the Registering Authority for any unforeseen circumstances beyond the control of the owner. The evidence/documents as available on records establish that there have been ‘unforeseen circumstances’ faced by the complainant such as: Pre-accident: Occurrence of delay on account of complainant’s endeavor in procuring a VIP/Fancy RC No. otherwise the registration fee and road-tax were admittedly deposited with the vendor, for the requisite purpose and there is no rebuttal to this effect from complainant side. Post-accident: i) Serious accident injuries to the complainant’s son and nephew as a result of road-accident, ii) Serious car-accident (total car loss), iii) Urgent liabilities prompted out of the car accident etc; coupled with the casual attitude of the OP1 Car Vendor who in fact was liable to arrange and deliver the Car Registration to the complainant who had already paid him the registration fees/ charges etc. Leaving all these compulsions/situations aside, admittedly the accidental car was not ‘registered’ (permanent registration) as on the date of ‘accident’ & thus there has been indeed a violation of S-39 of the M V Act’ 1988. Here, we are inclined to refer to the legal proposition as transpired by virtue of the judgment pronounced by the honorable NCDRC in RP # 3794 of 2013 (D/d 28.04.2015) titled: NIC Ltd., vs. Ram Diya [2015(2) AICJ 660: 2015(2) CLT 543] that the insurance company cannot take advantage of offence under section 192 r/w section 39 of the MV Act’ 1988 committed by the insured and as such the repudiation of the claim is not justified. Quote: “14. Answer to the above question is in the negative. ….. As such, the repudiation of the claim is not justified.” “16. Looking from a different angle ….. Therefore, also, repudiation of the claim is not justified.” Thus, we are strengthened to set-aside the OP insurers’ impugned repudiation on this count, also.
Count (3): At the time of accident vehicle was being driven by Chetan Kakkarh S/o Raghu Nath Kakkarh instead of Mr Raghunath Kakkar as intimated.
Finding (3): The OP insurers have simply raised the said allegation which otherwise in the absence of any supporting evidence shall amount to nothing more but a ‘bald’ statement, only. The surveyor has also failed to produce the ‘police’ investigations along with Chetan Kakkarh’s own statement to support his concurrent ‘findings’ that have duly failed.
9. To sum it up all, we find that the OP insurers have arbitrarily repudiated the insurance claim in question and have since failed to produce any cogent evidence to support the above grounds/basis of repudiation and in its absence these shall amount to ‘bald’ statements, only. Even, there is no evidence of late intimation of accident and that has been unnecessarily conjoined as ‘co-basis’ of the impugned repudiation. Thus, the OP insurers’ impugned repudiation of the insurance claim does not entail legality under the applicable law and need be set-aside.
10. In the light of the all above, we partly allow the present complaint and thus ORDER the OP insurers to pay the impugned insurance accident claim to the full IDV as applicable under the related Policy to the complainant besides Rs.5,000/- as compensation (for the harassment inflicted) and Rs.3,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% P.A. from the date of filing of this complaint till actual payment.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
June 24, 2016 Member.
*MK*
