| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB)
CC No. 229 of 25-05-2011 Decided on : 13-12-2011
Reema Jain W/o Abhey Jain aged about 44 years R/o #4386, Street Vidhya Mandir, Kikkar Bazar, Bathinda. .... Complainant Versus Bharti AXA General Insurance Co. Ltd., Ist Floor, SCO 350-352, Sector 34-A, Chandigarh 160 022 through its Branch Manager. M/s. A B Motors Pvt. Ltd., (Bhagat Ford) Opposite ITI Mansa Road, Bathinda, through its Owner/M.D./Incharge State Bank of Patiala, ADB Branch, Opposite Civil Hospital, Water Works Road, Mansa through its Branch Manager
..... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member For the Complainant : Sh. Naresh Garg, counsel for the complainant For the Opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1. Sh. Balkaran singh, counsel for opposite party No. 2. Opposite party No. 3 exparte
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT The instant complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainant is that he is the owner of New Ford IKON Black 1.4D Flair Diesel Model 2010 car bearing registration No. PB-10-CT-Temp/2010-2510 which was purchased by him from opposite party No.2 for an amount of Rs. 5,61,228/-. The said car is hypothecated with opposite party No. 3. At the time of releasing the car, the opposite party No. 2 issued comprehensive insurance of opposite party No. 1 of the said car vide Cover Note. No. 30311403 w.e.f. 09-07-2010 to 08-07-2011 for the IDV of Rs. 5,33,167/- and charged Rs. 14,157/- from the complainant. The insurance of the car is first insurance and the same was issued by opposite party No. 2 at Bathinda being the corporate agent of opposite party No. 1 and the insurance is cashless. The opposite parties never supplied any Insurance policy to the complainant and only cover note was supplied to him. On the intervening night of 18/19-01-2011, the said car was stolen in the revenue limits of Jallandhar near Tanda Chowk alongwith all the original papers i.e. Service Book, Delivery Challan, Temp, R.C. Invoice, Cover Note, Form No. 21 and Form No. 22 etc., In this regard, FIR No. 07 was duly registered in the P.S. Division No. 3, Jallandhar on 19-01-2011. Since all the original documents of the car were stolen with the car, the complainant after obtaining photocopies of the said papers from the office of opposite party No. 3, lodged claim with opposite party Nos. 1 & 2 through mail and registered/speed post dated 21-01-2011 under intimation to opposite party No. 3. The complainant also submitted claim form with opposite party Nos. 1 & 2. The complainant received a letter dated 29-01-2011 from the office of opposite party No. 1 vide which they demanded certain documents although most of the documents have already been supplied to them. The opposite party Nos. 1 & 2 with malafide intention changed the date of intimation from 21-01-2011 to 24-01-2011 without any reason. The complainant vide her letter dated 02-02-2011 sent the remaining necessary documents i.e. supplementary correction sheet of FIR No. 7 etc., The complainant also informed the opposite party Nos. 1 & 2 that the original keys of the car are still lying with her and they can collect the same on receipt at any time. The opposite party Nos. 1 & 2 vide their letter dated 29-01-2011 demanded some un-necessary documents i.e. copy of Tax Waiver Letter of Public Service or Commercial Vehicle and detail of previous insurance etc., whereas the complainant's vehicle is private car and the insurance is its first insurance as mentioned in the cover note. Thereafter the opposite party No. 1 & 2 appointed M/s. Bee Vee Investigators and Mr. H S Bedi of said Investigating agency wrote a letter dated 10-02-2011 to the son of the complainant and demanded some documents which were already in possession of opposite party Nos. 1 & 2. He also demanded irrelevant documents i.e. Service History Sheet, PAN Card, Voter Card, Ration Card etc., The demanded documents were supplied by the son of the complainant vide letter dated 15-02-2011 to the said Investigator under intimation to opposite party No. 1. The opposite party Nos. 1 & 2 and their Investigator again and again demanded Untraceable Report and Final Police Report although the Non-traceable report was submitted to the opposite parties. The complainant also registered her theft with National Crime Record Bureau, New Delhi, as per directions of opposite party Nos. 1 & 2 vide letter dated 15-02-2011 under intimation to opposite party No. 1. The complainant received two letters dated 2-4-2011 and 25-4-2011 in one envelop demanding some documents out of which of some have already been supplied to opposite party No. 1 and remaining were not in the possession of the complainant. Thereafter the opposite party Nos. 1 & 2 neither replied nor paid a single penny to the complainant and hence, she got issued legal notice to opposite party Nos. 1 & 2 on 17-05-2011 and demanded her claim as per IDV, but all in vain. The complainant alleged that Permanent Registration of the Car is not the reason or contributed to the loss in this case. As per rules of the Indian Motor Tariff and the guidelines of the Tariff Advisory Committee, if there is any breach of condition of policy, although in this case there is no breach of condition of policy/insurance, 75% of the claim has to be paid on non-standard claim and the claim should never be rejected in toto. In support of his version, the complainant has mentioned in her complaint various authorities on different aspects of matter. The complainant alleged that the opposite party Nos. 1 & 2 have failed to provide service and sitting over the total claim of the complainant in connivance with each other, hence she has filed the present complaint. The opposite party No. 1 filed its separate written reply and admitted that the vehicle in question was insured vide Policy No. I0308656 for the period from 09-07-2010 to 08-07-2011. It has been pleaded that the complainant has concealed material facts and documents from his Forum. She has not disclosed as to why she kept using the vehicle in question on public places without getting the same registered from the date of purchase i.e. 10-07-2010 till the date of loss. The opposite party No. 1 deputed M/s. Bee Vee Investigating Agency for investigating the matter who thoroughly investigated the matter and submitted investigation report dated 28-02-2011. The opposite party No. 1 has pleaded that present complaint is not tenable as the vehicle was not registered as per the provisions of Section 39 of the Motor Vehicle's Act on the date of incident. In this respect letter dated 7-6-2011 was sent to the complainant and this fact was admitted by the complainant herself vide her letter dated 02-02-2011. The opposite party No. 2 filed separate written reply and pleaded that the opposite party No. 2 has sold the vehicle in question to the complainant and apart from this, it has no role in indemnification of insurance. The dispute, if any, is between the complainant and the Insurance Company and opposite party No. 2 has been un-necessarily made party in the complaint. The Insurance policy was issued by the Insurance Company directly, so deficiency, if any, is on the part of Insurance Company. Notice of complaint was sent by registered post to opposite party No. 3, but none appeared on its behalf and as such, exparte proceedings were taken against it. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that the complainant purchased Ford Ikon Car on 10-07-2010 vide Ex. C-2 for a sum of Rs. 5,61,228/- from opposite party No. 2 and got it comprehensively insured with opposite party No. 1 vide Insurance Cover Note Ex. C-6 for the IDV of Rs. 5,33,167/- and the complainant paid Rs. 14,157/- being the premium. The temporary registration Number of the Car is PB-10 CT/Temp/2010 – 2510 valid for 30 days from 10-07-2010 as per Ex. C-5. The car in question was stolen on the intervening night of 18/19-01-2011 in the revenue limits of Jallandhar near Tanda Chowk. An FIR Ex. C-7 was lodged by the complainant in this regard. The complainant intimated the loss to opposite party No. 1 and opposite party No. 1 deputed the Investigator Bee Vee Investigating Agency, Patiala, to investigate the matter, who sought some documents from the complainant which was submitted by her and the said Investigator after due investigation submitted his report dated 28-02-2011 with opposite party No. 1 vide Ex. R-3. The opposite party No. 1 repudiated the claim of the complainant vide Ex. C-34 on the ground that at the time of loss, the car in question was not registered with RTO. The learned counsel for the complainant submitted that the opposite party No. 1 has repudiated the claim of the complainant on the ground that at the time of loss, the car was not registered with RTO whereas the Permanent Registration of the car is not the reason or contributed to the loss. He further submitted that as per rules of the Indian Motor Tariff and the guidelines of the Tariff Advisory Committee, if there is any breach of condition of policy, although in this case there is no breach of condition of policy/insurance, 75% of the claim has to be paid on non-standard claim and the claim should never be rejected in toto. On the other hand, the learned counsel for opposite party No. 1 submitted that the complainant did not get registration of the vehicle and used the same without Registration Certificate and hence, claim lodged by the complainant for theft of vehicle was repudiated on account of non-registration of the vehicle and violation of Section 39 of Motor Vehicle's Act. He submitted that as per 2010(3) CLT 580 NC it has been held that if violation of statutory provisions of Motor Vehicles Act, can constitute an offence then why they cannot be pressed into action for rejecting the claim. The learned counsel for opposite party No. 1 further submitted that if this Forum comes to the conclusion that the complainant is entitled to any relief, although the complainant is not entitled to any relief, only in that case, the complainant is not entitled to any amount in excess of 75% of IDV i.e. Rs. 5,33,167/- on non-standard basis and only after executing documents and handing over the keys of the vehicle. To investigate the claim of the complainant, the opposite party No. 1 deputed Bee Vee Investigating Agency, Patiala, and the Proprietor Sh. H S Bedi, of the said Investigating Agency, after investigations, submitted his report Ex. R-3 with opposite party No.1. At page 5 of his report he has concluded :- “Conclusion : On the basis of our inquiries conducted from insured's brother Sh. Surinder Singla, from the shopkeepers of the market and the telephonic discussions had with I.O. We are of the opinion that Ikon Ford Flair Car bearing temporary registration Number PB-10-CT-TEMP-2010-2510 had been stolen on the night intervening 18/19-01-2011 from Rahian Wali Gali Tanda Chowk, Jalandhar. Though the insured had purchased the said car on 10th July, 2010 but had not applied for the permanent registration number and had been using the car even after the expiry of certificate of temporary registration number which was valid for one month only from the date of purchase i.e. upto 09-08-2010, which is violation of Motor Act.” The claim of the complainant has been repudiated by opposite party No. 1 vide Ex. C-34, which reads as under :- “Ref. Claim No. C0083649 – Under Policy No. 10308656 Vehicle No... .Date of Theft 18-01-2011 We solicit reference to your claim, intimated to us on 21-01-2011 and registered with us on 24-01-2011 and regret to note the theft of your said vehicle. During the document verification it is noticed that the subject car was not registered with the concerned RTO at the time of loss i.e. on 21-01-2011. From the above evidence it is clear that on the date of loss the vehicle was plying on the road without valid registration certificate violating the Motor Vehicle Act, 1988. Since, according to MV Act Rule 39 appended below, the vehicle must to be registered before plying in the public place. 39. Necessity for registration “No personal shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner ; Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government”. Please note that as per the declaration in the Cover Note/Proposal Form, the Cover Note/Proposal form, the Cover note is issued in accordance with the provisions of chapter XI of the Motor Vehicle, 1988. Declaration in Cover Note as below : “I/We hereby certify that this Cover Note is issued in accordance with the provisions of chapter XI of the Motor Vehicle, 1988.” In the light of the above, we regret our inability to consider your claim and look at this as an opportunity lost to serve you. The repudiation of the claim has been done keeping in view the available facts & policy terms and conditions.” The complainant purchased the vehicle on 10-07-2010 vide Ex. C-2. The temporary registration certificate of the vehicle Ex. C-5 was valid for 30 days from 10-7-2010 meaning thereby that it was valid till 9-8-2010. The theft of the vehicle in question took place on the intervening night of 18/19-01-2011. Thus, the complainant has not applied for permanent registration certificate although a period of six months had elapsed from the expiry of temporary registration certificate of the vehicle. The complainant has not alleged or produced any document on file to prove that she has applied for permanent registration certificate of the vehicle with concerned RTO. Hence, the vehicle was being plied on road without valid registration certificate violating the Motor Vehicle Act, 1988. Since, according to MV Act Rule 39 reproduced above, the vehicle must be registered before plying in the public place and the complainant has violated the statutory provisions of Motor Vehicles Act, she is entitled to claim on non-standard basis and repudiation of claim by opposite party No. 1 in toto amounts to deficiency in service on its parts. The Hon'ble Punjab & Haryana High Court held in 2007(3) RCR 78 titled Zile Singh Vs. Mukesh Kumar that the insurer would not be allowed to avoid his liability unless the alleged breach of condition is so fundamental as are found to have contributed to the cause of accident. In such circumstances, where there is any breach of policy, the loss can be paid on non-standard basis. The support can be sought by the precedent laid down by the Hon'ble National Commission in the case 2005(3)CPR 124 (NC) New India Assurance Company Limited Vs. Surinder Singh Khurana, wherein it was held that even if there is violation of provision of Motor Vehicles Act, it could be termed to be breach of warranty and claim is to be settled on non-standard basis. Reliance can also be put on the observations of the Hon'ble State Commission, Chandigarh in First Appeal No. 120 of 2008 decided on 05-03-2010 titled National Insurance Company and others Vs. M/s. Anil Trading Company wherein it has been observed that :-
“The alleged breach is with regard to the provisions of Motor Vehicles Act. Therefore, the question would be whether the Insurance Company 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. In our view the Insurance Company cannot repudiate the claim when there is no breach of terms of the policy, because insurance is a matter of contract between the parties. Therefore, the appellants are not entitled to repudiate the claim merely on the ground that the vehicle involved in the accident was not having the fitness certificate on the date of accident.
On the same analogy, the appellants had no right to repudiate the insurance claim on the ground that by driving the vehicle without route permit, the respondents have violated the statutory provisions.” The support can be sought from the law laid down by the Hon'ble State Commission, Punjab, Chandigarh, in First Appeal No. 1508 of 2005 decided on 01-09-2010 case titled The National Insurance Co. Ltd., Chandigarh Vs. Daljit Singh son of Balwant Singh R/o Moga, wherein the Hon'ble State Commission has held in para No. 12 :- “In this context, reference can be made to the judgement of the Hon'ble Supreme Court reported as “National Insurance Company Ltd., Vs. Nitin Khandelwal IV (2008) CPJ I(SC) in which it was held by the Hon'ble Supreme Court that if there was no nexus between the cause of claim with the breach of the terms and conditions of the policy, then the insured is entitled to insurance claim to the extent of 75% on Non-Standard basis. It was held by the Hon'ble Supreme Court as under :- “13. In the instant case, the State Commission allowed the claim only on non-standard basis, which has been upheld by the National Commission. On consideration of the totality of the facts and circumstances in the case, the law seems to be well settled that in case of theft of vehicle, nature of use of the vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis. 14. In the facts and circumstances of the case, the real question is whether, according to the contract between the respondent and the appellant, the respondent is required to be indemnified by the appellant. On the basis of the settled legal position, the view taken by the State Commission cannot be faulted and the National Commission has correctly upheld the said order of the State Commission.” 13. This judgement was followed in the subsequent judgement of the Hon'ble Supreme Court reported as “Amalendu Sahoo Vs. Oriental Insurance Co. Ltd., II (2010) CPJ 9 (SC) in which the law laid down by the Hon'ble Supreme Court in Nitin Khandelwal's case (supra) was reiterated........ 14........While granting claim on non-standard basis, the National Commission set out in its judgement the guidelines issued by the insurance company about settling all such non-standard claims. The said guidelines are set out below : Sr. No. Description Percentage of settlement 1. Under declaration of Deduct 3 years difference in premium licensed carrying capacity from the amount of claim or deduct 25% of claim amount whichever is higher. 2. Overloading of vehicles Pay claims not exceeding 75% of beyond licensed carrying of admissible claim. Capacity. 3. Any other breach of warranty/ Pay upto 75% of admissible claim condition of policy including limitation as to use. 15. From a perusal of the aforesaid guidelines, it is clear that one of the cases where 75% claim of the admissible claim was settled was where condition of policy including limitation as to use was breached.” The support can also be sought from the law laid down by the Hon'ble Supreme Court in the case titled National Insurance Co. Ltd., Vs. Nitin Khandelwal 2008(3) RCR (Civil) wherein it has been held :- “...Even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company, ought to have settled the claim on non-standard basis – The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.” In view of what has been discussed, the complainant is entitled for claim on non-standard basis i.e. 75% of the IDV. It is the admitted fact of the parties that the car in question was hypothecated with opposite party No. 3. The opposite party No. 3 did not contest the complaint and produce any evidence regarding outstanding loan of the complainant. In these circumstances, the direction cannot be given to opposite party No. 1 for payment of claim amount to opposite party No. 3. Hence, this complaint is accepted with cost and compensation of Rs. 10,000/- against opposite party No. 1 and dismissed qua opposite party Nos. 2 & 3. The parties are directed to do as under :- i) Complainant would execute Letter of Subrogation as per requirements of the opposite party No. 1 in their favour conferring all the rights of the car in question including ownership and would deliver keys of the vehicle in question to the opposite party No. 1, within 15 days from the date of receipt of copy of this order. ii) After the complainant executes Letter of Subrogation and delivers keys of the vehicle in question as mentioned above, opposite party No. 1 would pay 75% of the IDV Rs. 5,33,167/- i.e. Rs. 3,99,875/- as per Insurance Cover Note Ex. C-6. alongwith Rs. 10,000/- being compensation and cost to the complainant within next 30 days. The total compliance of this order be made within 45 days from the date of receipt of copy of this order. In case of non-compliance within the stipulated period, an amount of Rs. 3,99,875/- would carry interest @ 9% P.A. from the date of institution of this complaint i.e. 25-05-2011 till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
Pronounced 13-12-2011 (Vikramjit Kaur Soni) President (Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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