Punjab

StateCommission

A/507/2017

Future Generali India Insurance Co. Ltd. - Complainant(s)

Versus

Gurmeet Singh - Opp.Party(s)

Sachin Ohri

02 Nov 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,        PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   First Appeal No.507 of 2017

 

 

                                                          Date of Institution: 30.06.2017

                                                          Order Reserved on :30.10.2017    

                                                          Date of Decision  : 02.11.2017

 

Future Generali India Insurance Co. Ltd, 3rd Floor, SCO 128, Nagpal Tower-1, Ranjit Avenue, Amritsar through its authorized Signatory Sandeep Kapoor, Legal Officer, 3rd Floor, Kailash Building 26, KG Marg, Connaught Place, New Delhi

 

                                                               Appellant/Opposite party no.3

                   Versus

 

1.      Gurmeet Singh son of Surinder Singh resident of H.No. L6/915, Near Shaheed Udham Singh Nagar, Bazar no. 4, Gali No. 4, Tarn Tarn  Road, Amritsar.

                                                          Respondent no.1/Complainant

 

2.      Renault India Private Limited, Head Office, ASV Ramana        Towers, # 7-38, 4th Floor, Venkatanarayana Road, T-Nagar,        Chennai, Tamil Nadu, through its CEO/Managing Director.

 

3.      Renault Amritsar, A unit of Padam Car Private Limited, G.T     Road, Bye Pass Chownk, Amritsar through CEO/Managing     Director.

 

                               Respondents no.2&3/Opposite parties no.1 and 2

 

 

First Appeal against order dated 05.04.2017 passed by the District Consumer Disputes Redressal Forum,  Amritsar

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

Present:-

 

          For appellant                   : Sh.Sachin Ohri, Advocate

          For respondents no.1&2  : Sh.K.S Cheema, Advocate

          For respondent no.3     : Sh.Aditya Dassaur, Advocate

 

 

 ………………………………………………………………………..

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          Challenge in this appeal by appellant is to order dated 05.04.2017 of District Consumer Disputes Redressal Forum Amritsar, directing the appellant to pay Rs.9,98,450/- to respondent of this appeal, subject to furnishing letter of subrogation, power of attorney for transfer of RC of the vehicle in question in favour of the appellant, whereas the complaint was dismissed against  remaining opposite parties no.1 and 2. Appellant of this appeal is opposite party no.3 in the complaint and respondent no.1 of this appeal is complainant in the complaint and respondent no.2 and 3 of this appeal are opposite parties no.1 and 2 in the compliant before District Forum  and they be referred as such, hereinafter for the sake of convenience.

2.      The complainant has filed complaint U/s 12 of Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he purchased one Renault Duster RXL car from OP no.1 bearing temporary registration no. PB03-AB (T)-2990 and permanent registration no.  PB02-CU-0687 for personal use and he got this vehicle insured with OP no.3, vide policy no. 2015-V3886825-FPV covering the period from 28.07.2015 to 27.07.2016 against premium of Rs.28,768/-. On 21.10.2015, the complainant returned from his business and parked his vehicle in the vacant plot in front of his house. He heard hue and cry from outside the house and at about '1' of clock during intervening night of 21/22.10.2015, he discovered that his above insured vehicle was burning. He tried to extinguish the fire with the assistance of neighbours. The above vehicle was engulfed in fire due to technical defect in the wiring of the vehicle on account of short circuit. He intimated this loss of vehicle to OP no.3, as it  was fully insured. Engineer Kaplesh Bayala was appointed as surveyor to assess the loss by the insurer. All documents were provided by complainant to him, as demanded. Official of OP no.3 intimated that vehicle caught fire due to manufacturing defect in the wiring of the vehicle and OPs no.1 and 2 would bear the loss caused to the vehicle alone. The vehicle was taken to workshop of OP no.2, where it was inspected by the official of OP no.2 and they refused to bear the loss thereto. OP no.3/insurer has not made the payment of loss to complainant and stated that it was liability of OPs no.1 and 2 only.  The vehicle was fully insured with OP no.3. OP no.3 has not paid the insured claim, despite lodging the claim with it by insured. The complainant has filed complaint directing the OPs no.1 and 2 to refund the price of the vehicle. The complainant also sought compensation of Rs. 1 lac for mental harassment from OPs no.1 and 2. The complainant also prayed that OP no.3/insurer be directed to release the amount of insurance claim covered under the policy in question to the extent of Rs. Rs.9,98,450/- with interest @ 24% p.a.

3.      Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant. It was averred that  the dispute is between the complainant and OPs no.2 and 3 only for repair of the  vehicle and repayment of the claim, therefore, OP no.1 has been falsely implicated in this complaint by him. The vehicle in question met with an accident, which was not covered within the warranty period, so OP no.1 was neither liable for repair nor replacement of the vehicle in question. It was averred that on 22 October 2015, it was festival of Dusshera and it was very well known that during this festival, most of children burn crackers in open park and some of them also pay pranks with crackers, which sometimes go amiss and thereby cause an accident. Therefore, possibility of a spark or catching the fire is impossible. The mere possibility of the cause of fire is a misfire of cracker, which might have resulted in the complainant's car catching the fire. It was further averred that there is no deficiency in service on the part of answering OP and it prayed for dismissal of the complaint.

4.      Opposite party no.2 appeared and filed its separate written statement and contested the complaint of the complainant vehemently. It was averred that answering OP is only service station and as and when the complainant came to get his vehicle repaired or for service, the services were provided accordingly. OP no.2 is not liable for any manufacturing defect in the vehicle or any claim due to fire as vehicle in question was insured with OP no.3, therefore, OP no.3 is liable to pay claim to complainant. It was averred that there is no deficiency in service on its part and it prayed for dismissal of the complaint.

5.      OP no.3 filed its separate written reply and contested the complaint of the complainant raising preliminary objections that the complainant has not come to the Forum with clean hands. The complainant has not supplied the requisite documents despite letter issued to him in this regard by OP no.3. This fact is admitted that the vehicle was insured with OP no.3 and fact of lodging the claim for loss was also admitted by OP no.3. It was averred that vehicle got fired due to manufacturing defect in the wiring of the vehicle, hence the liability was of the manufacturer of the vehicle only. The insurance claim was closed as "no claim" by OP no.3. OP no.3 prayed for dismissal of the complaint.

6.      The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-11. As against it; OP  No.1  tendered in evidence affidavit of Sh. Dhiman Gignoux Authorized Signatory of Renault India Pvt. Ltd Ex.OP-1/1. OP no.3 tendered in evidence affidavit of Sh. Abhilesh Chander Deputy Manager Ex.OP-3/1. On conclusion of evidence and arguments, the District Forum Amritsar accepted the complaint of the complainant by virtue of order dated 05.04.2017 against OPs no.3. Dissatisfied with the order of the District Forum Amritsar, opposite party no.3 now appellant, carried this appeal against the same.

7.      We have heard learned counsel for the parties at considerable length and have also examined the record of the case. Evidence on the record has been adverted to by us with the able assistance of counsel for the parties for resolution of this dispute. The complaint has been instituted by complainant against OPs no.1 and 2 for claiming amount of price of vehicle on account of fire caught by it due to some manufacturing defects in it. The complainant also filed this complaint against OP no.3 its insurer for reimbursement of the claim of loss sustained by him due to fire, which overtook the vehicle in this case. The pleadings of the parties have been weighed by us with the able assistance of counsel for the parties. Affidavit of complainant is Ex.C-1 on the record in support of his case. He deposed that he took policy of his insured vehicle from OP no.3 against premium of Rs.28,768/- for the period 28.07.2015 to 27.07.2016. He further deposed that on intervening night of 21/22.10.2015 on hearing some noise, he found that his insured vehicle, which was parked outside of his house, was on fire. He put out fire with the help of the neighbours. He came to know that due to some technical/manufacturing defect in the wiring of the vehicle and due to short circuit, the above vehicle was destroyed in it. He claimed from the manufacturer of the vehicle as well as from the insurer of the vehicle for indemnification of the loss sustained by him. Ex.C-2 is copy of insurance policy proving this fact that complainant got his vehicle insured with OP no.3 for the period from 28.07.2015 to 27.07.2016 against premium of Rs.28,567/-. Ex.C-3 is copy of certificate of registration. Ex.C-4 is letter of OP no.2 to addressed to complainant to the effect that it is difficult for the vehicle to catch fire in the manner, as prescribed. Ex.C-6 and C-7 are request letters from Padam Car addressed to complainant. Ex.C-8 and C-9 are Tata Capital Financial Services Ltd Cardex I (Contract Details) dated 03.03.2016 supplied by Padam Car Pvt.Ltd in the name of Gurmeet Singh of this vehicle and price paid for purchase of vehicle. Ex.C-10 is statement of account by Punjab National Bank in favour of Gurmeet Singh/Complainant. Ex.C-11 is Aadhar Card of the complainant. The complainant relied upon his above-referred evidence to prove his case. OP no.1 tendered in evidence affidavit of Damien Gingnous Authorized Representative on the record to the effect that where problems recorded in the job cards have not pointed out any manufacturing defect in the vehicle and report of independent expert has shown that damage to the engine oil chamber and engine's cylinder blocks was due to the hitting of the frontal lower/beneath of the vehicle with some external foreign body and damage to the car was due to an accident and not due to any manufacturing defect. This witness denied any manufacturing defect in the vehicle. OP no.3 insurer tendered in evidence affidavit of Abhilash Chander Deputy Manager Future Generali India Insurance Company Ltd Ex.OP-3/1 on the record. This witness testified in his statement that the vehicle caught fire due to manufacturing defect only and that case is not covered under the  insurance policy for indemnification of the  loss thereof.

8.      The submission of counsel for the  appellant before us is that the vehicle was not registered with the Registering Authority at the time of this incident of loss and hence the insured is not entitled to any claim for unregistered vehicle under Motor Vehicle Act, 1988. Counsel for OP no.3 now appellant relied upon law laid down by Apex Court in Narinder Singh versus New India Assurance Company Ltd and others, reported in 2013(3) CLT 82. We have examined this authority on the anvil of the factual matrix of the case. The complainant mainly relied upon Ex.C-3 certificate of registration to the effect that vehicle was not registered permanently with the Registering Authority on the date of loss. The vehicle must have been purchased when it was got insured by the complainant on 28.07.2015.  The incident of fire took place by overtaking this vehicle on the intervening night 21/22 October 2015. The complainant has produced permanent registration certificate Ex.C-3 on the record showing that the vehicle was permanently registered on 26.10.2015 only. Section 43 of Motor Vehicle Act 1988 deals with temporary registration certificate. Under Section 43 of Motor Vehicles Act, the owner of the vehicle may apply to the Registering Authority for temporary registration and a temporary registration mark - if such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The period of one month may be extended for such a further period by the Registering Authority only in case where a temporary registering is granted in respect of chassis to which body has not been attached and same is detailed in a workshop. Onus is on the complainant to prove the circumstances were beyond his control being unforeseen, necessitating the extension of the temporary registration certificate. Temporary registration certificate has come to an end after one month as per mandate of Section 43 of Motor Vehicles Act in this case. Permanent registration certificate was issued on 26.10.2015 and loss of the vehicle took place on 21/22 October 2015, prior thereto. The vehicle was not registered with the Registering Authority on 21/22 October 2015 the date of this loss, because temporary registration certificate has already been expired, which was valid for one month period only under law. The vehicle is, thus, proved to be unregistered on the date of this loss by fire to it.

9.      The forceful submission of counsel for the complainant in this case is that vehicle was not in a driving state, as mandated by Section 39 of Motor Vehicles Act and hence Narinder Singh's case (supra) is not applicable in this case. We find no force in the submission of counsel for the complainant on this point. The National Commission has held in Branch Manager Oriental Insurance Company Ltd and another versus Vikram Kanda reported in 2017 (1) CPJ 386 that irrespective of the fact, whether, the vehicle is parked or plying, it is mandatory that the vehicle be registered. It has been held in this authority that non-registration of the vehicle by registering authority is fundamental breach of the policy and insurance company has rightly dishonoured the claim. The law has been enunciated by National Commission in this authority by holding that irrespective of the fact, whether, the vehicle is parked or plying, it is mandatory that the vehicle be registered. Non-registration of the vehicle is fundamental breach of the policy. The authorities cited  by counsel for complainant against it in case Ifco Tokio Insurance Company Ltd  versus Gaurav Bhargava reported in 2015(2) CPJ 196 by National Commission and Future Generali India Insurance Company Ltd versus Paramjit Singh and others in F.A No. 917 of 2016 decided on 02.06.2017 passed by this Commission are entirely on different factual footings. In the cited authorities by complainant, it was held that on verification, it was found that the owner deposited tax for registration certificate within a period of one month on 06.12.2014, hence it was held that the owner of the vehicle was not at fault when the vehicle met with an accident and it was fault of the registering authority not to issue the certificate of registration. The factual situation of the case is on different footing. There is no such evidence of deposit of tax by the complainant on the date of loss of the vehicle due to fire. This authority relied upon by complainant is distinguishable from the fact situation of the case. Similarly, law laid down by National Commission in National Insurance Co. Ltd versus Ram Diya reported in Revision Petition no. 3794 of 2013 decided on 28.04.2015 has been relied upon by counsel for the complainant. In view of law laid down by Hon'ble Supreme Court in Narinder Singh's (supra) and law laid down by National Commission in Oriental Insurance versus Vikram Kanda (supra), wherein Narinder Singh case has been relied upon as laid down by Hon'ble Supreme Court. This authority would not advance the case of the complainant, as relied upon by him in the teeth of law laid down by Apex Court in Narinder Singh's case (supra).

10.    We have, thus, come to this conclusion that this is immaterial whether vehicle was parked or plying and it is mandatory that it should be registered with the Registering Authority under Motor Vehicles Act.  The vehicle was unregistered, although it was parked at the time of loss. This is fundamental breach of the insurance policy violating the mandate of Section 39 of Motor Vehicles Act in this case. The District Forum has not appreciated this controversy in proper perspective and proceeded to grant insurance claim to complainant despite non-registration of the vehicle by the Registering Authority on the date of its loss. The order of District Forum, is, thus, held to be erroneous and unsustainable in the eyes of law.

11.    As a result of our above discussion, we accept the appeal of the appellant and set aside the order of the District Forum Amritsar dated 05.04.2017 resulting into dismissal of complaint against OP no.3 now appellant in this appeal.

12.    The appellant had deposited the amount of Rs.25,000/-with this Commission at the time of filing of the appeal and further deposited Rs.4,99,225/-. Both these amounts with interest, which accrued thereon, if any, be remitted by the registry to appellant/ opposite party no.3 by way of a crossed cheque / demand draft   after the expiry of 45 days.

          A sum of Rs.5000/- was deposited, in compliance with the order dated 04.07.2017 passed by this Commission. This amount be remitted to respondents  with interest, if any, if not already remitted.

13.    Arguments in this appeal were heard on 03.10.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

November 2  2017                                                              

(ravi)