Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 506.
Instituted on : 31.08.2017.
Decided on : 16.04.2019.
M/s Satyam Associates, through its Proprietor, Anoop Gupta, Resident of 197/34, Rakesh Nagar, Janta Colony, Rohtak.
………..Complainant.
Vs.
1 IFFCO Tokio General Insurance Company Ltd., Service through Office of IFFCO TOKIO, S.C.O. 1, First Floor, Sector-14, Rohtak through its Branch Manager.
2 IFFCO TOKIO General Insurance Co. Ltd., through its Manager, Office at :IFFCO Sadan, C-I, Distt. Center, Saket, New Delhi.
3 M/s Insurance Solutions, Office at SCO-08, First Floor Center Complex, Chottu Ram Chowk, Rohtak, through its Branch Manager (Insurance work agent of IFFCO TOKIO General Insurance Company Ltd.).
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER.
Present: Sh. Devender Hooda, Advocate for the complainant.
Sh. R.K. Behl, Advocate for opposite parties No. 1 and 2.
Opposite party No. 3 given up.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. The present complaint has been filed by the complainant with the averments that the complainant is owner and insured of vehicle JCB bearing registration No. HR-46C-4040 as per the comprehensive insurance vide policy No. 68125580 from 15.11.2016 to 14.11.2017 and IDV of the vehicle is Rs.9,70,000/-. That on 08.02.2017, the vehicle in question was stolen by some unknown persons. FIR in this regard was registered and copy of the same was duly submitted to the opposite parties. Police has filed the untraced report in the concerned Court. Complainant has submitted the all documents to the insurance company for getting the claim of vehicle. The complainant had immediately intimated to the respondent insurance company regarding the theft of his vehicle. The respondent had deputed investigator Mr. Dheeraj Sood who submitted his report to the insurance company that the theft loss is genuine one and the claim of the complainant is payable. The complainant had visited to the office of opposite parties for getting the claim but opposite parties had repudiated the claim of the complainant vide letter dated 05.07.2017 on the ground that the fitness of the vehicle was expired on 19.01.2016. That the complainant had submitted the details regarding the absence of fitness of vehicle at the time of availing the insurance policy of respondent and the insurance official submitted that there is no clause of fitness in the insurance policy and the same is not required for insurance claim. That the opposite party has wrongly repudiated the claim of the complainant. That the act and conduct of the opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that the opposite parties may kindly be directed to pay the amount of Rs. 9,70,000/- alongwith interest @ of 18% per annum from the date of theft of vehicle and Rs. 2,00,000/- as harassment and Rs. 11,000/- as litigation expenses as explained in relief clause to the complaint.
2. On notice, the opposite parties appeared and filed their written reply submitting therein that this Forum has got no jurisdiction to entertain and decide the complaint and complainant can go to the Civil Court. It is further submitted that as per report of loss assessor and verification of RTA Rohtak, the fitness of the vehicle in question has been expired on 19.01.2016 and the same was plying without fitness. It is further submitted that there is no valid fitness certificate as on the date of loss i.e. 08.02.2017. Since the fitness is mandatory part of registration for transport vehicle as prescribed by the Motor Vehicle Act 1988. This is the duty of the owner to obtain the fitness etc. It is further submitted that when the driver parked the vehicle after completion of the work that means that the vehicle was in a running condition and was being used, hence the fitness is mandatory as per the provisions of Motor Vehicle Act. All the other contents of the complaint were stated to be wrong and denied and opposite parties prayed for dismissal of complaint with cost.
3. Whereas, opposite party No. 3 was given up being unnecessary by learned counsel for the complainant vide his recorded statement dated 10.01.2018.
4. Both the parties led evidence in support of their case.
5. Learned counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C24 and after that evidence of the complainant was closed by order dated 27.08.2018 of this Forum. On the other hand, ld. Counsel for the opposite parties No.1 & 2 in their evidence tendered affidavits Ex.RW1/A & Ex.RW1/B, documents Ex.R1 to Ex.R5 and has closed his evidence on dated 20.12.2018.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. After perusal of the documents placed on file it is observed that the vehicle of the complainant was insured with the opposite party for the period from 15.11.2016 to 14.11.2017 and had been stolen by the unknown persons on 08.02.2017. The complainant filed the claim with the opposite party but the opposite party has repudiated the claim vide letter Ex.R4 on the ground that the fitness of the vehicle in question has been expired on 19.01.2016 and the same was plying without fitness for the last year. That there is no valid fitness certificate as on the date of loss i.e. 08.02.2017. It is a gross violation of terms and conditions of policy and Motor Vehicle Act-1988. To prove its contention, ld. counsel for the opposite party has placed reliance upon the 2010(4)CPJ 321 of Hon’ble National Commission in case titled as United India Insurance Co. Ltd. Vs. Trilok Kaushik and order dated 16.09.2016 of Hon’ble National Commission in case titled as Baghel Singh Vs. National Insurance Co. Ltd. But the law cited above are not fully applicable on the facts and circumstances of the case as opposite party has not placed on record any terms and conditions of the policy to prove that absence of fitness certificate was violation of terms and conditions of the policy. We have also placed reliance upon the law cited in 2009(1)CLT 665 titled National Insurance Co. Ltd. Vs. Jog Raj whereby Hon’ble Punjab State Commission, Chandigarh has held that: “The absence of fitness certificate may be a violation of the statutory provisions of MVA but it was not violative of any terms and conditions of the Insurance Policy- Absence of fitness certificate does not entitle the Insurance Company to repudiate the claim” as per 2008(1)CLT 55 titled G.Kothainachiar Vs. United India Insurance Co. Ltd. & Ors., Hon’ble National Commission has held that: “Insurance Claim-Repudiation-Ground that on the date of accident the vehicle plied without ‘fitness certificate’ which is in violation of the M.V.Act, 1988- Held that 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- Order passed by the State Commission dismissing the complaint liable to be set aside the order of the District Forum allowing the claim restored”. We have also placed reliance upon the law cited by ld. counsel for the complainant in II92017)CPJ 122(HP) titled as National Insurance Co. Vs. Suresh Kumar whereby Hon’ble Commission has held that: “Fitness certificate is not a contributory factor, so breach of policy conditions are not germane”, as per 2015(4)CPJ493 titled as Oriental Insurance Co. Ltd. Vs. Vinod Shandhi and others Hon’ble National Commission has held that: “Fitness certificate is not required in JCB as vehicle is not transport vehicle”, Hon’ble Punjab & Haryana High Court in case titled NIC V.s Sandeep and others decided on 17.12.2016 whereby Hon’ble High Court has held that : “The court would like to impress upon the IRDA to look into the matter and take appropriate remedial measures, at an early date, so as to ensure that the real object of insurance is achieved and innocent citizens/insured may not keep on suffering. Another laudable object which can be achieved to a great extent would be curtailing the increasing trend of this type of avoidable litigation”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that Insurance company is not an appropriate authority to look upon or be judgmental upon the violation of laws. Hence the repudiation of claim by the opposite party is illegal and amounts to deficiency in service and the complainant is entitled for the claim as per IDV of vehicle amounting to Rs. 9,70,000/- mentioned in the insurance policy Ex.R5.
8. As such, complaint is allowed and we hereby direct the opposite party to pay the amount of Rs.9,70,000/-(Rupees nine lac
seventy thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 31.08.2017 till its realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as litigation expenses and compensation to the complainant within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
16.04.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
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Renu Chaudhary, Member.
