Haryana

Yamunanagar

CC559/2011

Sunil Kumar Nautial s/o Pitamber Dutt - Complainant(s)

Versus

Bharti AXA General Insurance Co. - Opp.Party(s)

Vijaydeep Singh

24 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 559 of 2011.

                                                                                             Date of institution: 30.05.2011.

                                                                                             Date of decision: 24.02.2016.

SunilKumar Nautial aged about 36 years son of Sh. Pitambar Dutt, H. No. 49, Tyagi Garden, Gobindpuri Road, Yamuna Nagar City, Tehsil Jagadhri, District Yamuna Nagar. 

                                                                                                                                                                                    …Complainant.

                                                                              Versus

 

1. Bharti AXA General Insurance Company Ltd. Regional Office: SCO-350, 351, 352, 1^st Floor, Sector-34-A, Chandigarh, through its branch Manager/M.D./G.M.   
2. Khanna Car Plaza PL Jagadhri City, Distt. Yamuna Nagar through its Proprietor/M.D./Manager.                                                                                                                                                                                          …Opposite parties. 

 

Before:             SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Vijay Deep Singh Advocate, counsel for complainant.  

               Sh. Rajiv Gupta, Advocate, counsel for OP No.1.

               Ms. Seema Sehgal, Advocate, counsel for OP No.2.

 

             

ORDER

 

1.                     Complainant Sunil Kumar has filed the present complaint under section 12 of the Consumer Protection Act. 1986 praying therein that the respondents (hereinafter referred as Ops ) be directed to make the payment of repair and other expenses of Rs. 67,000/- alongwith interest and further to pay compensation as well as litigation expenses.    

2.                     Brief facts of the complaint, as alleged by the complainant, are that complainant purchased a car make Hyundai Motor India Ltd. bearing temporary No. HR-99-FX (temp) 0069 now bearing registration No. HR-02X-4154 having engine No. G4HGAM149626, Chassis No. MALAM51BLAM757415 Model No.2010 from the OP No.2 i.e. Khanna Car Plaza Jagadhri on 4.11.2010  and on the same day temporary registration number was allotted which was valid from 4.11.2010 to 3.12.2010 (Annexure R-1) and on the same day the car in question was insured with the OP No.1 insurance company vide insurance cover note No. 30467017, valid from 4.11.2010 to 3.11.2011 (Annexure C-2/R5) for a sum insured of Rs. 3,64,173/-. The car of the complainant met with road side accident on 12.12.2010 and badly damaged when the complainant himself was driving the abovesaid car.  A DDR No.10 dated 12.12.2010 (Annexure C-3) was registered in the police post Barwala. The OP No.1 was duly informed and all the necessary documents were submitted by the complainant. A surveyor and loss assessor was appointed by the OP Insurance Company who submitted his report to the OP Insurance Company. The complainant got repaired his car from the OP No.2 Khanna Car Plaza Workshop, Jagadhri on which the complainant spent a sum of Rs. 67000/- and the same was paid to the OP No.2 by the complainant vide receipt No. 8610 dated 20.01.2011 (Annexure C-4) but the insurance company failed to make the payment, so , the complainant sent a letter on 7.4.2011 and requested to make the payment of Rs. 66414, copy of which is Annexure C-5. A legal notice was also served to the OP Insurance company on dated 28.4.2011, copy of which is Annexure C-8 and Postal receipt is Annexure C-9. Despite the above all, the OP Insurance company failed to make the payment of genuine claim to the complainant which confined a deficiency in service on the part of OP Insurance Company. Hence, this complaint.  

3.                     Upon notice, OP No.1 appeared and filed its written statement whereas Op No.2 failed to appear despite service, hence it was proceeded ex-parte vide order dated 15.09.2011. Thereafter, counsel for OP No.2 filed an application for setting aside the ex-parte order and OP No.2 was allowed to join the proceedings. OP No.1 filed its written statement by taking some preliminary objections such as complainant does not fall under the definition of consumer, has not come to this Forum with clean hands, complaint is not maintainable, complainant has not disclosed that car in question was having temporary registration number which was expired on 3.12.2010 and accident took place on 12.12.2010. Meaning thereby that at the time of accident, car/vehicle was on the road without permanent registration number, being the mandatory requirement of Motor Vehicle Act. The complainant was driving the vehicle in breach and violation of terms and conditions of the Insurance policy. It has been further mentioned that temporary registration number was valid for only one month from the date of purchase and as per law laid down in section 43 of the Motor Vehicle Act drive the motor vehicle with temporary number even after lapse of one month is offence and not legal and on merit it has been stated that on intimation Sh. M.L.Garg, Surveyor & Loss Assessor was appointed by the OPs Insurance Company to assess the actual loss who submit his independent report dated 24.02.2011 (Annexure R-2) assessing the loss of Rs. 48477/-. However, the vehicle was not registered at the time of accident and the temporary number was already expired on 3.12.2010. Hence, the claim of the complainant was not paid by the insurance company. Hence, there is no deficiency in service on the part of OP No.1 insurance company and lastly prayed for dismissal of complaint.  

4.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of registration certificate as Annexure C-1, Photo copy of cover note as Annexure C-2, Photo copy of DDR as Annexure C-3, Photo copy of receipt of amounting to Rs. 67000/- as Annexure C-4, Photo copy of letter dated 7.4.2011 alongwith photo copy of postal receipt as Annexure C-5 and C-6, Photo copy of driving license as Annexure C-7, Copy of legal notice dated 28.4.2011 as Annexure C-8, Photo copy of postal receipt as Annexure C-9, Photo copy of acknowledgement as Annexure C-10 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OP No.1 Insurance Company tendered into evidence affidavit of Sh. Akansha Kapoor, Bharti Axa Gen. Ins. As Annexure RW/A, affidavit of Sh. M.L.Garg, Surveyor and Loss Assessor as Annexure RW/B and documents such as Photo copy of temporary certificate of registration as Annexure R-1, Photo copy of Surveyor & Loss Assessor report as Annexure R-2,  Photo copy of letter dated 1.3.2011 as Annexure R-3, Photo copy of letter dated 17.3.2011 as Annexure R-4, Photo copy of letter dated 20.11.2010 as Annexure R-5 and closed the evidence on behalf of OP No.1 whereas OP No.2 filed affidavit of Sh. Rohit Khanna, Director of M/s Khanna Car Plaza.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite party reiterated the averments made in the reply and prayed for its dismissal.

7.                     It is admitted fact that the complainant purchased a car make Hyundai Motor India Ltd. bearing temporary No. HR-99-FX (temp) 0069 now bearing registration No. HR-02X-4154 having engine No. G4HGAM149626, Chassis No. MALAM51BLAM757415 Model No.2010 from the OP No.2 i.e. Khanna Car Plaza Jagadhri on 4.11.2010  and on the same day temporary registration number was allotted valid from 4.11.2010 to 3.12.2010 (Annexure R-1). It is also admitted fact that the car in question was insured with the OP No.1 insurance company vide insurance cover note No. 30467017, valid from 4.11.2010 to 3.11.2011 (Annexure C-2/R5) for a sum insured of Rs. 3,64,173/-.  It is not disputed that car in question met with roadside accident on 12.12.2010 which is evident from DDR No.10 dated 12.12.2010 (Annexure C-3) registered in police post Barwala, P.S. Chandimandir and a claim was lodged with the OPs Insurance Company by the complainant and Sh. M.L.Garg. Surveyor and Loss Assessor was deputed and who has assessed the loss to the tune of Rs. 48477/- subject to the terms and conditions of insurance policy and submitted his report on 24.2.2011 (Annexure R-2).

8.                     The only plea of the OP Insurance company is that the car in question was without valid registration at the time of accident as the complainant purchased the car in question on 4.11.2010 and temporary registration number was valid for only one month from 4.11.2010 to 3.12.2010 (Annexure R-1) whereas accident took place on 12.12.2010 and after that was registered with the registration authority on 31.12.20101 so, there is violation of section 43 of the Motor Vehicle Act wherein it has been clearly mentioned that drive the motor vehicle with temporary number even after lapse of one month is offence and not legal. Hence, the claim of complainant has been rightly repudiated and referred the case law titled as Bharti AXA General Insurance Co. Ltd. vs. B.A. Lokesh Kumar, Revision Petition No. 1834 of 2012 decided on 25^th July 2013.

9                      On the other hand, learned counsel for the complainant hotly argued that insurance company i.e. OP No.1 Company has illegally repudiated the genuine claim of the complainant on the false/ flimsy ground that temporary registration was expired on 12.12.2010 and permanent number was allotted on 31.12.2010 i.e. after 18-19 days of the alleged accident and in this regard the counsel for the complainant  referred the case law titled as New India Assurance Co. Ltd. versus Bimlesh, 2014(4) CPJ page 569 (NC) wherein it has been held that Accident of vehicle- Non registration- Insurable interest- Claim repudiated- Deficiency in service- District Forum allowed complaint- State commission dismissed appeal- Hence revision- Obligation casts upon transferor and transferee to report factum of transfer of authority arises only after transfer of vehicle has already taken place- Ownership of vehicle is transferred on execution of sale letter and requirement of informing transfer to registering authority is only a post transfer statutory requirement- Complainant became owner of vehicle and had insurable interest at the time it got damage- Repudiation not justified. Further referred the case law titled as Bharti AXA General Insurance Company Limited versus Venus, 1 (2012) CPJ page 207 State Consumer Disputes Redressal Commission Punjab wherein it has been held that Non registration of vehicle cannot be ground of repudiation of just claim under the policy- Order passed Forum is legal and valid- No interference required.

10.                   After hearing both the parties, we are of the considered view that the OP No.1 i.e. insurance company has wrongly repudiated the claim of the complainant. It is totally admitted case of the insurance company that insurance policy as well as temporary registration number was stands in the name of complainant. Further the permanent registration number was also issued in the name of complainant by the Registering Authority just after 18-19 days from the alleged accident and 27-28 days from the expiry of temporary registration number which was expired on 3.12.2010. So, there is no question arise that the complainant was not having any insurable interest at the time of accident. Moreover, due to the delay in office work, it cannot be held that the complainant is not entitled to get his genuine claim. The arguments advanced by the counsel for the OP is not tenable and law referred also not applicable to the facts of the present case whereas on the other hand, law referred by the counsel for the complainant titled as Bharti AXA general Insurance Co. Ltd. vs. Venus (supra) is fully applicable to the present case wherein it has been held that Consumer Protection Act 1986-Sections 2(1)(g), 14(1)(d), 15- Insurance- Accident- Surveyor appointed- Claim repudiated- Plying vehicle without any registration certificate- Forum allowed complaint- Hence appeal- Contention, car being used without being registered and thus clear violation of law by respondent- Not accepted- Appellant had not produced terms and conditions of policy- Not producing copy of terms and conditions, which were settled between parties, shows that there was no violation of terms and condition of policy by respondent- There is also nothing on record that non registration of car has in any way contributed to the accident- Non registration of car has got no nexus with the accident- Not each and every violation of any provision, however slightest it may be, which can be labelled as committing breach of law- Non registration of vehicle cannot be ground of repudiation of just claim under the policy- Order passed by Forum is legal and valid- No interference required. Further the latest pronouncement of our Hon’ble National Commission, New Delhi has held in case titled as National Insurance Company Versus Ram Diya, 2015(2) CLT page 543 that theft of unregistered vehicle, while parked in the parking- offence under section 39 read with section 192 of Motor Vehicle Act- Insurance claim cannot be repudiated on this ground. Further in this case Hon’ble National Commission held that for the prosecution under section 192 read with section 39 of the Act, the complainant could be fined between Rs. 2000 to 5000 – denial of insurance cover for violation of section 39 of the Act to the complainant would this amount to imposing a punishment much higher than the punishment prescribed under section 192 of the Act- Repudiation of the claim is not justified- Revision petition dismissed.

11.                   In view of the discussion above, we are of the opinion that the OP Insurance Company has wrongly repudiated the genuine claim of the complainant. The insurance company is not supposed to get only premium but it is also liable to act fairly without taking the benefits of weakness of the assured and it is also liable to indemnify all the responsibility for which the premium has been received. The act and conduct of the insurance company reveals that instead of acting fairly the insurance company is trying to befool its customers. In the present case instead of acting fairly the insurance company is trying to escape from its liability by making one pretext or the other, which cannot be allowed to do so.

14                    Now, question arise what amount the complainant is entitled to get from the OP Insurance Company on account of damages. We have perused the report dated 24.02.2011 of surveyor and loss assessor Sh. M.L.Garg deputed by the OP insurance company in which an amount of Rs. 48477/- has been assessed. However, argument of the learned counsel for complainant that complainant is entitled to get an amount of Rs. 67,000/- is not tenable as the complainant has totally failed to file any expert report to rebut the surveyor report otherwise. It is a settled law that credence should be given to the surveyor report being an authentic document as only surveyor is best person to assess the loss ( If any).

15.                   Resultantly, we partly allow the complaint of complainant and direct the OP No.1 insurance Company to pay a sum of Rs. 48477/- alongwith interest at the rate of 9% per annum from the date of filing of complaint till its realization and further the OP No.1 is also directed to pay a sum of Rs. 10,000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order, failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 24.02.2016.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,                             

                        (S.C.SHARMA )

                         MEMBER.