DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.217 of 19-05-2011 Decided on 17-10-2011
Jaspal Singh, aged about 27 years, son of Sh. Kehar Singh, Resident of village Balluana, Tehsil & Distt. Bathinda. .......Complainant Versus
Iffco Tokio General Insurance Co. Ltd., Iffco House, 3rd Floor, 34, Nehru Place, New Delhi-110019, through its M.D./Chairman. Iffco Tokio General Insurance Co. Ltd., 2nd Floor, Nirankari Bhawan, G.T.Road, Bathinda, through its Branch Manager. M/s Imperial Motors, Opposite Ganesha Basti, G.T.Road, Bathinda, through its Prop./Partner. (Deleted) Mahindra & Mahindra Financial Services Ltd., having its Branch Office SCO Nos.5&6, First Floor, Phase-I, Model Town, Bathinda.
......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 Present:- For the Complainant: Sh. A.S.Aulakh, counsel for the complainant For Opposite parties: Sh. Varun Gupta, counsel for opposite party Nos.1&2 Opposite party No.3 deleted Sh. K.K.Vinocha, counsel for opposite party No.4
ORDER
Vikramjit Kaur Soni, President:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant had purchased Mohindra Bolero Jeep, having temporary Registration No. PB-03(Temp.)-3927 from the opposite party No.3 for a sum of Rs.6,37,000/-, he got insured his above said vehicle with the opposite party Nos.1&2 vide policy No.39682356 after depositing the requisite amount of premium. The complainant has alleged that on 14.06.2009, one of his friend namely Ramesh Kumar S/o Sh. Mohinder Singh took his vehicle for visiting Mohali alongwith his family. The friend of the complainant parked the vehicle in question in front of the Hotel City Lenz, situated in SCF No.76-77, 3B2, Mohali on the next morning i.e. on 15.06.2009, at about 5.30 A.M., Ramesh Kumar saw that the aforesaid vehicle was not there and had been stolen. He tried his best efforts to trace the vehicle but the same could not be traced and an FIR No.255 dated 15.06.2009 u/s 379 IPC was also got registered against unknown person regarding the said theft of vehicle in Police Station Mohali. The original documents regarding the purchase of the vehicle in question were lying in the Jeep which have also been stolen. The complainant had lodged the claim with the opposite party Nos.1&2 vide claim No.31611426 and furnished all the documents including FIR regarding the loss of Jeep in question but the opposite party Nos.1&2 vide letter dated 27.01.2009 rejected the claim of the complainant on the ground that the vehicle in question was being plied without proper registration, the same was being used for hire or reward purposes and also regarding delay in lodging the claim. The complainant has further alleged that the vehicle is new one and the registration of the vehicle has nothing to do with the sanction of claim of the complainant as there was a valid insurance on the date of theft of vehicle in question. The matter regarding non registration of vehicle, is only a violation of Motor Vehicle Act and has no concern with sanction of the claim. The vehicle in question was not got registered at the time of insurance and no objection was raised by the opposite party Nos.1&2 while providing the insurance before getting the vehicle registered. The vehicle was not being used for any hire or reward purposes rather the same was being used by him for his personal use. The complainant had repeatedly requested the opposite party Nos.1&2 to admit and honor the claim of the complainant but to no effect. The complainant has also got issued a legal notice dated 22.11.2010 to the opposite parties. Hence, the complainant has filed the present complaint. 2. Notice was issued to the opposite parties. The opposite parties after appearing before this Forum, have filed their written statements. The opposite party Nos.1&2 have filed their separate joint written statement and pleaded that the alleged theft of the vehicle in question has taken place on 14/15.06.2009 from City Lenz, Mohali but the complainant lodged his claim with the insurance company after more than 7 weeks and in this way, the complainant has violated the terms and conditions of the policy. During processing of the file, the registration certificate of the vehicle was required by the opposite party Nos.1&2 but the same was not produced. The terms and conditions of the policy were duly supplied at the time of insurance. The complainant got insured his vehicle in question for the period from 22.08.2008 to 21.08.2009 but he did not get his vehicle registered with the office of District Transport Officer within specific period of one month under the M.V. Act. According to the terms and conditions of the policy, the insured is bound to intimate the insurance company immediately. The insurance was purchased by the complainant on 22.08.2008 and the vehicle was stolen on 14/15.06.2009. The complainant did not get register his vehicle with the Registering Authority for more than 9 ½ months which are breaches and latches on the part of the insured. The insured was bound to get his vehicle registered within one month as per the Motor Vehicle Act. The opposite party Nos.1&2 have further pleaded that on receipt of the claim, they deputed the Investigator namely Vigilant Detective Bureau, Batala who after thorough investigation, has submitted his report dated 18.09.2009 and found that the complainant was using the vehicle on hire basis, though he purchased the insurance policy of the vehicle for private use only which is again the violation of the terms and conditions of the policy. After considering the report of the investigator, the Police reached to the conclusion that the vehicle was plying without proper registration and it was being used for hire and reward which is in violation of limitation and there terms are contained on the overleaf of the cover note as well which are also in the possession of the complainant. The complainant had also violated the provisions of the policy by giving intimation of loss after over 7 weeks. The opposite party Nos.1&2 have further pleaded that there was no necessity to give any reply to the legal notice, sent by the complainant. 3. The opposite party No.3 has already been deleted. 4. The opposite party No.4 has filed its separate written statement and pleaded that the complainant got finance against the vehicle in question from the opposite party No.4 of Rs.4,90,000/- and agreed to repay the amount of Rs.6,86,100/- in 60 equal installments of Rs.11,435/- each and other charges also in case of default etc. The loan agreement No.852029 dated 23.08.2008 was signed by the complainant and his other co-executants after admitting its terms and conditions to be correct. The complainant has committed default in making the payment of due installments. As per record of the opposite party No.4, only cover note of insurance stands issued, complete terms and conditions are not issued by the opposite party Nos.1&2. The opposite party No.4 has further pleaded that as per law settled by Hon'ble Apex Court, various Hon'ble High Courts, National Commission, State Commissions under C.P. Act and also as provided by agreed terms and conditions of loan agreement, Insurance claim amount is to be paid to Financier Company in discharge of its out-standing dues against insured vehicle. In the present case, the vehicle in question stands lost, so the entire claim amount should have been ordered to be paid to the opposite party No.4 being their first charge on insured vehicle in question. 5. Parties have led their evidence in support of their respective pleadings. 6. Arguments heard. Record alongwith written submissions submitted by the parties perused. 7. The vehicle of the complainant Mohindra Bolero Jeep bearing temporary Registration No. PB-03(Temp.)3927, insured with opposite party Nos.1&2 vide policy No.39682356 was stolen on 15.06.2009 when it was parked in front of the Hotel City Lenz, situated in SCF No.76-77, 3B2, Mohali. An FIR No.255 dated 15.06.2009 was lodged and all the original documents regarding the purchase of the vehicle in question also stolen which were lying in the Jeep. The complainant had lodged the claim with the opposite party Nos.1&2 vide claim No.31611426 and furnished all the documents including FIR regarding the loss of Jeep but the claim of the complainant has been rejected by the opposite party Nos.1&2 vide letter dated 27.01.2009 on the ground that the vehicle was being plied without proper registration and the same was being used for hire or reward purposes and had lodged the claim after much delay. The complainant has submitted that the vehicle in question was not registered but at that time, the opposite party Nos.1&2 raised no objection regarding the registration of the vehicle. 8. The non registration of the vehicle, is a violation of the Motor Vehicle Act and has no concern with sanctioning of the claim. The vehicle has not been used by the complainant for hire or reward purposes rather the same was being used by him for his personal use and he had repeatedly requested the opposite party Nos.1&2 to settle his claim. He has also got issued a legal notice dated 22.11.2010 to the opposite parties. 9. The opposite parties have submitted that the complainant had lodged the claim with the company after more than 7 weeks and the complainant has violated the terms and conditions of the policy. While processing the claim, the registration certificate of the vehicle was required by the opposite party Nos.1&2 but the same was not produced. The terms and conditions of the policy were supplied at the time of issuance of insurance policy. The complainant did not get his vehicle registered with District Transport Officer within stipulated period of one month under the M.V. Act. As per terms and conditions of the policy, the insured is bound to intimate the theft of vehicle, to the insurance company immediately but he has intimated the insurance company after 7 weeks. The date of purchase of the vehicle is 22.08.2008 and the vehicle was stolen on 14/15.06.2009. The complainant did not get register his vehicle for more than 9 ½ months which are breaches and latches on the part of the insured. On receiving the claim, the opposite party Nos.1&2 had deputed the Investigator namely Vigilant Detective Bureau, Batala and after thorough investigation, Jagsir Singh, Chief Executive had submitted his report dated 18.09.2009 vide Ex.R-9. The Investigator found that the complainant was using the vehicle on hire basis, though he purchased the insurance policy of the vehicle for private use only which is the violation of the terms and conditions of the policy. After considering the report of the investigator, the Police reached to the conclusion that the vehicle was being plied without proper registration and was being used for hire and reward purposes, are in violation of terms and conditions mentioned overleaf of the cover note. This insurance cover note is in the possession of the complainant. 10. The opposite party No.4 has submitted that the complainant had purchased the vehicle after availing finance/loan from the opposite party No.4 of Rs.4,90,000/- and had agreed to repay the amount of Rs.6,86,100/- in 60 equal installment of Rs.11,435/- each as per terms of Loan Agreement dated 23.08.2008 which he and his other executants duly signed and executed after admitting its terms and conditions to be correct. The complainant has committed default in making the payment of due installments. As per record of the opposite party No.4, only cover note of insurance issued. Complete terms and conditions were not issued by the opposite party Nos.1&2. As per law settled by Hon'ble Apex Court, Hon'ble High Courts, National Commission, State Commissions under the 'Act' and also as provided by agreed terms and conditions of loan agreement, Insurance claim amount is to be paid to Financier Company in discharge of its out-standing dues against insured vehicle. The vehicle in question stands lost, the entire claim amount should have been ordered to be paid to the opposite party No.4. 11. A perusal of Investigation report dated 18.09.2009 Ex.R-9 issued by Vigilant Detective Bureau, Batala shows that the insured Jaspal Singh had been plying the vehicle without getting permanent R.C. The Temporary R.C. had expired on 22.09.2008 as well mentioned in the main Investigation report. Plying of vehicle after expiry of temp. RC without application to the Registering Authority for permanent RC for a pretty long period, is quite illegal & violation of the motor vehicle rules. “Further, the insured does not have any driving licence to drive the financed/insured class of vehicle under claim.” As per para Nos.6&7 of the Investigation report which is read as under:- “6. The insured does not have status to enjoy luxury of vehicle under claim. He had been plying it on hire to earn even his livelihood and thereby had been violating the policy rules as he took policy for private vehicle and using the vehicle commercially. Under such circumstances, he had also been betraying the Income-Tax Deptt. on account of concealment of his actual source of income. He also betrayed the financiers for not repaying the loan installments as entire cheques paid by him in advance for his monthly installments bounced. 7. In the episode of loss, he handed over the vehicle to one Shri Ramesh Kumar son of Mahinder Singh, Suniar, VPO Gidderbaha, Distt. Muktsar without driver through some surety. On theft of vehicle, he took compensation of Rs.3 Lacs from the said Ramesh Kumar who took the vehicle on hire through some known of insured/owner. Insured took such compensation from the said person delcaring falsely that the vehicle was not insured anywhere and hence, the theft of vehicle was direct loss to him. In fact, in view of symposium of fraudulent tactics, neither he can boldly persue the claim nor did he expect payment of claim, hence, he took an amount of Rs.3 Lacs from his customer Ramesh Kumar.” 12. According to India Motor Tariff Ex.R-6 which is read as under:- “The Tariff Advisory Committee (herein after called TAC) has laid down rules, regulations, rates, advantages, terms and conditions, as contained herein, for transaction of motor insurance business in India in accordance with the provisions of Part-II B of the Insurance Act, 1938. The Tariff Supersedes the provisions of the India Motor Tariff in existence upto 30th June, 2002. The provisions of this tariff, are binding on all concerned, any breach of the tariff shall be a breach of the provisions of the Insurance Act, 1938.” 13. The claim of the complainant has been rejected by the opposite parties on following grounds vide Ex.C-3:- (i) At the time of incident/theft, the vehicle had not been registered with DTO. (ii) The complainant has been plying the vehicle for hirer and reward purposes whereas he had taken the policy for his vehicle for private use only but he has given the vehicle in question on hirer to one person namely Ramesh Kumar S/o Mahinder Singh and intimation of the claim has given after the period of 7 weeks. As per Motor Vehicle Act, it is mandatory to get the vehicle registered within a period of one month from the date of purchase but in the present case, the complainant has got registered his vehicle after the period of 9½ months. Hence, the complainant has violated the rules and regulations of the Motor Vehicle Act. (iii) The complainant was using his vehicle for commercial purposes. The Investigator has submitted in para no.7 of his investigation report that the complainant had handed over the vehicle in question to one Ramesh Kumar S/o Sh. Mahinder Singh without driver through some surety. On theft of vehicle, he took compensation of Rs.3 Lacs from the said Ramesh Kumar who took the vehicle on hire through some known of insured/owner. The complainant has given an intimation regarding the theft of his vehicle after delay of 7 weeks whereas the terms and conditions which are not disputed by the complainant at any stage. Moreover, these terms and conditions, the intimation with regard to loss of vehicle/theft is to be given to the insurance company immediately but in the present case, the complainant has given the intimation regarding theft of his vehicle after delay of 7 weeks. 14. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi has held in Revision Petition No.1362 of 2011, decided on 01.09.2011 in para no.5 that :- “In the present case, the respondent did not care to inform the insurance company about the theft for a period of nine days, which could be fatal to the investigation. The delay in lodging the FIR after two days of the coming to know of the theft and nine days to the insurance company can be fatal, as in the meantime, the car could have travelled a long distance or may have been dismantled by that time and sold to kabaadi (scrap dealer)”. 15. As per terms and conditions, the intimation with regard to theft, is to be given to the insurance company immediately. The word 'immediately' has not been defined under the 'Act'. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.321 of 2005, decided on 09.12.2009 has explained the word 'immediately' elaborately as under:- “Word 'immediately' has not been defined under the Act. Resort has to be made to the dictionary meaning assigned to it. As per Oxford Advanced Learner's Dictionary, the word 'immediately' means 'at once'. As per Stroud's Judicial Dictionary, Firth Edition, word 'immediately' is defined as under:- (1) The word 'immediately', although in strictness it excludes all mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing. As per Black's Law Dictionary, Sixth Edition, word 'immediately' means:- “Immediately. Without interval of time, without delay, straightway or without any delay or lapse of time. When used in contract is usually construed to mean “within a reasonable time having due regard to the nature of the circumstances of the case”. Although strictly, it means, “not deferred by any period of time. The words “immediately” and “forthwith” have generally the same meaning. They are stronger than the expression “within a reasonable time” and imply prompt, vigorous action without any delay.” According to Mitra's Legal and Commercial Dictionary, Fifth Edition, word 'immediately' is defined as under:- “Immediately. “Immediately” is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsbury's Laws of England, 4th Ed. Vol.23, para 1618, p. 1178. The word 'immediately' is stronger than the expression 'within a reasonable time', and imply prompt, vigorous action, without any delay. It means all convenient speed. The word 'immediately' should not be construed so as to require doing something which is impossible.” As per Oxfor Advanced Learner's Dictionary, the word 'immediately' means 'at once' whereas Stroud's Judicial Dictionary, Fifth Edition, word 'immediately' in the context of contract has to be taken as reasonable requisite time for doing the thing. As per Black's Law Dictionary, Sixth Edition, word 'immediately' means doing of a thing straightway or forthwith but when used in the context of contract, it is usually construed to mean “within a reasonable time having due regard to the nature of circumstances of the case.” More or less to the effect, is the same meaning assigned in Mitra's Legal and Commercial Dictionary, Fifth Edition. Since, in the present case, there was a contract between the insured and the insurer and the word 'immediately' under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case.” Hon'ble Apex Court has laid down the law in case titled United India Insurance Company Limited Vs M/s Harchand Rai Chandan Lal, reported in IT 2004 (8) SC 8 that the terms and conditions have to be construed as it is and nothing can be added or subtracted from the same. The Policy provides that in the case of theft, the matter should be reported 'immediately'. In the context of theft of the car, word 'immediately' has to be construed strictly to make the insurance company liable to pay the compensation. The same has been held by Hon'ble National Commission, relying upon by Apex Court in case titled The New India Assurance Company Limited Vs Shri Dharam Singh and Another in First Appeal No.426 of 2004, decided on 04.07.2006 and case titled National Insurance Company Limited Vs Nitin Khandelwal reported in (2008) 11 SCC 256. 16. In the present case, the intimation of the incident of the vehicle/theft was given to the Insurance Company after lapse of 7 weeks which is the violation of condition No.1 of the Policy whereas the complainant should have given intimation immediately to the insurance company. The complainant has failed to give intimation immediately and in this time period, the vehicle may have travelled a long distance or it may has been dismantled by the thieves sold as scraps to the Kabaadi or must have altered its body or has changed its colour and shape etc. 17. Therefore, in view of what has been discussed above, this Forum is of the considered view that there is no deficiency in service on the part of the opposite parties. Hence, this complaint is dismissed without any order as to cost. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ' Pronounced in open Forum 17-10-2011 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member |
