APPEARED AT THE TIME OF ARGUMENTS

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.02.2015, passed by the Chhattisgarh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. FA/13/690, “Bajaj Allianz General Insurance Co. Ltd. versus Ramesh Patel & Anr.”, vide which, while allowing the appeal, the order dated 02.12.2013, passed by the District Forum Bastar at Jagdalpur, in consumer complaint No. 13/10, allowing the said complaint, was set aside.

2.       The facts of the case are that the complainant/petitioner Ramesh Patel purchased a Bolero vehicle from the OP-2/Respondent-2, Silver Line Automobiles, on 17.01.2013 for a sum of ₹6,38,729/-, and obtained an insurance policy from the OP-1/respondent No.1, Bajaj Allianz General Insurance Company for the period from 17.01.2013 to 16.01.2014.  it is stated that the said dealer had taken certain money from the complainant for the purpose of getting the insurance and registration done, and for preparing other documents.  On 07.02.2013, the son of the complainant Rahul Patel was going to Naimed from Jagdalpur, and the vehicle was being driven by the driver Bhajan Thakur, when the vehicle turned turtle and was badly damaged in the ensuing fire.  As per the complainant, he alongwith his son went to the Police Station to lodge a report, where he was told that he should bring the relevant documents and only after that, the report shall be lodged.  The complainant asked for the documents from the respondent No. 2/OP-2 dealer, who gave him the temporary registration certificate for the vehicle, according to which, the temporary registration had been done on 18.02.2013.  The report in writing was then lodged with the Police on 21.02.2013.  It is also stated that intimation about the incident was given to respondent No.1/OP-1 Insurance Company on telephone through the OP-2 dealer and the claim was also lodged with them.  The OP-1 Insurance Company, appointed a surveyor to assess the loss, but the claim was repudiated vide letter dated 25.07.2013 on the ground that intimation to the insurance company was given late.  The consumer complaint in question was then filed, seeking directions to the OPs to pay the IDV of the vehicle, i.e., ₹6,06,793/- alongwith interest @18% p.a. from the date of incident, i.e., 07.02.2013 and ₹50,000/- as compensation for mental harassment.  It was also stated that in the alternative, the claim may be decided on non-standard basis. 

3.       In their reply to the complaint, the OP-1 Insurance Company admitted that the vehicle had been insured with them for the period from 17.01.2013 to 16.01.2014 after accepting the insurance premium of ₹21,202/- but they stated that on the date of the accident, the driver did not have a valid and effective driving licence.  Therefore, the claim was in violation of the terms and conditions of the policy.  Moreover, the complainant had not filed any documents like the registration certificate, insurance policy etc., in the absence of which, the OP-1 was not liable to pay the claim.  Moreover, the intimation about the incident was also not given to the insurance company immediately, as required under the terms and conditions of the policy.

4.       The District Forum, after taking into consideration the version of the parties, allowed the consumer complaint and directed the OP-1 Insurance Company to pay a sum of ₹6,06,793/- to the complainant alongwith interest @7% p.a. from 25.07.2013 till payment.  They also directed payment of ₹5,000/- as compensation for mental harassment and ₹5,000/- as cost of litigation.  The District Forum concluded that the OP-2 dealer had taken some amount from the complainant for registration etc. at the time of purchase of vehicle, but they had not got the registration done immediately, but did so after the incident had taken place. However, the District Forum held that only OP-1 was liable to pay the claim.  Being aggrieved against the order of the District Forum, the OP-1 Insurance Company challenged the same by way of an appeal before the State Commission.  The said Commission allowed the appeal on the ground that at the time of the accident, the vehicle was being driven without any valid registration certificate, which amounted to a fundamental breach of the terms and conditions of the policy and hence, the claim in question, was not payable.  Being aggrieved against the order of the State Commission, the complainant is before this Commission by way of the present revision petition. 

5.       It was argued by the learned counsel for the complainant/petitioner that at the time of purchase of the vehicle, they had given the charges for registration etc. to the OP-2 dealer.  It was, therefore, their duty to obtain registration certificate, whether temporary or permanent, in time.  The District Forum has also observed in their order that the temporary registration certificate was obtained by the OP-2 dealer on 18.02.2013.  There was no fault of the complainant, therefore, and he is entitled to the payment of claim. 

6.       The learned counsel for respondent No.1 argued that intimation about the incident had been given to them after a delay of about 2 weeks, which amounted to violation of the terms and conditions of the policy.  The learned counsel also stated that the complainant did not have any registration certificate at the time of the accident and hence, the insurance company was not bound to pay the claim.  Under the provisions of the Motor Vehicles Act, 1988, no vehicle could be allowed to be driven, unless it was properly registered with the concerned authority.  The learned counsel has drawn attention to section 192 of the Motor Vehicles Act in support of her argument, saying that a person driving a motor vehicle without getting it registered, was liable for punishment under the Act.  The learned counsel has drawn attention to an order passed by the Hon’ble Supreme Court in “Narinder Singh versus New India Assurance Company Ltd. & Ors.” [Civil Appeal No. 8463/2014, decided on 04.09.2014], saying that using a vehicle on public road without registration is not only an offence punishable under section 192 of the Motor Vehicles Act, but also a fundamental breach of the terms and conditions of the policy contract.  By virtue of this judgment, the order passed by this Commission in the same case, i.e., “Narinder Singh versus New India Assurance Company Ltd. & Ors.” [RP No. 4951/20102 decided on 12.04.2013], was confirmed.  The learned counsel has also drawn attention to an order passed by this Commission in “Kaushalendra Kumar Mishra vs. The Oriental Insurance Co. Ltd.” [RP No. 4043/2008, decided on 16.02.2012], in support of her arguments.  Attention has also been invited to two more cases decided by this Commission on the issue in “Niranjan Kumar Yadav vs. National Insurance Co. Ltd.” [RP No. 2926/2010 decided on 29.03.2011] and “Bhagwat vs. United India Insurance Co. Ltd.” [RP No. 3044/2014 decided on 05.11.2014].

7.       The learned counsel for the OP-2 dealer stated, however, that it was the primary duty of the owner of the vehicle to obtain registration certificate from the competent transport authority.  The learned counsel admitted that the OP-2 had accepted money from the owner for getting done various jobs like registration, insurance policy etc., but they just wanted to provide assistance to their customer in getting the needful done.  The learned counsel denied that they had carried the papers to the office of the Regional Transport Officer for getting the registration done.

8.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9.       It is an admitted position of the parties that the vehicle was purchased by the complainant from the OP-2 dealer on 17.01.2013 for ₹6,38,729/- and the insurance policy was issued by the OP-1 Insurance Company valid from 17.01.2013 to 16.01.2014.  It is also clear that the said vehicle was damaged in the incident on 07.02.2013.  The temporary registration of the vehicle was got done on 18.02.2013, i.e., a number of days after the said incident had taken place.  It is to be determined in the light of these admitted facts if the complainant is entitled for getting the claim from the insurance company or not. 

10.     The Motor Vehicles Act, 1988 provides that no person 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 any other place, unless the vehicle is registered.  Section 39 of the Motor Vehicles Act, 1988 states as follows:-

“39. Necessity for registration .- No person 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 this 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.”

11.     It has further been provided in section 43 of the said Act that a vehicle can be registered temporarily in the prescribed manner and such temporary registration shall be valid only for a period not exceeding one month.  Further, section 192 prescribes punishment if the vehicle is driven or allowed to be driven in contravention of section 39 of the Act.  The matter has already been considered in a catena of judgments passed by the Hon’ble Supreme Court and this Commission as well.  In “Narinder Singh versus New India Assurance Company Ltd. & Ors.” (supra), it was held by this Commission as follows:-

“it is also clear from the facts on record that the temporary registration of the vehicle done by the Registration Authority of UT, Chandigarh had expired on 11.01.2006. At the time of accident on 02.02.2006, the vehicle was being driven without registration, which is prohibited under Section 39 of the Motor Vehicles Act, 1988 and is also an offence under Section 192 of the said Act. The State Commission have rightly quoted the judgements given by the National Consumer Disputes Redressal Commission in Kaushalendra Kumar Mishra Vs. Oriental Insurance Company Ltd. as reported in II (2012) CPJ 189 (NC), saying that the damaged vehicle, although insured, is not entitled to claim indemnification under the insurance policy.”

12.     The above order of this Commission was challenged by way of Civil Appeal No. 8463/2014, “Narinder Singh versus New India Assurance Company Ltd. & Ors.” (supra) before the Hon’ble Supreme Court of India.  Vide order dated 04.09.2014, passed by the Hon’ble Supreme Court, the order of this Commission was upheld and it was stated that using a vehicle on public road without any registration is not only an offence punishable under section 192 of the Motor Vehicles Act, but also a fundamental breach of the terms and conditions of the policy contract.  Keeping in view the legal proposition contained in the said judgment and other orders passed from time to time, it is abundantly clear that the OP-1 Insurance Company is not liable for making payment of claim to the complainant, because the said vehicle did not have either temporary or permanent registration on the date of the accident.

13.     Now, coming to the role played by the OP-2 Dealer in the episode, it is established from the facts on record that the vehicle was delivered by the said dealer without ensuring that the vehicle was registered in any manner with the concerned authority. In this regard, Rule 42 of the  Central Motor Vehicles Rules, 1989 is relevant and is reproduced as under:-

“42. Delivery of vehicle subject to registration — No holder of a trade certificate shall deliver a motor vehicle to a purchaser without registration, whether temporary or permanent.”

14.     It is evident that the OP-2 dealer acted in contravention of Rule 42, as they delivered the motor vehicle to the complainant without registration.  Moreover, the version of the complainant is that the OP-2 dealer had taken money from them at the time of selling the vehicle for the purpose of insurance, registration and for preparing other documents.  This version has nowhere been denied by the OP-2 Dealer, rather, the learned counsel for the said dealer stated during arguments that they had taken money from the complainant, but the purpose was just to assist the complainant in getting the required documents.  The learned counsel stated that it was the primary duty of the complainant to get the registration of the vehicle done.  The material on record brings out that the temporary registration certificate was issued by the registering authority Jagdalpur (Bastar) on 18.02.2013, i.e., much after the accident had taken place.  The FIR recorded by the Police also indicates that the delay in filing the FIR occurred as the necessary papers for the vehicle were not available.  It is also not clear from record whether the papers for obtaining the temporary registration were presented to the Registering Authority by the OP-2 dealer, or by the complainant.  In any case, the papers could be submitted only after the complainant had signed the same.   It was the duty of the complainant also to ensure that the temporary registration was obtained, before plying the vehicle or allowing anybody else to use that vehicle. 

15.     From the position discussed above, it becomes evident that the OP-1/respondent No. 1 Insurance Company cannot be held liable in any manner for payment of claim, as the vehicle did not have a valid registration at the time of the incident.  We are supported in this view from the judgment delivered by Hon’ble Apex Court in ““Narinder Singh versus New India Assurance Company Ltd. & Ors.” (supra)”, in which it was held that non-registration of the vehicle, temporary or permanent, amounted to a fundamental breach of the terms and conditions of the policy and hence, the insurer was not liable to pay the claim.  However, it is evident from the material on record that the OP-2 dealer was clearly negligent in releasing the vehicle in contravention of Rule 42 of the Central Motor Vehicle Rules, 1989 and not getting the registration done, even after obtaining money from the complainant.  On the other hand, the complainant is equally guilty for plying the vehicle in contravention of section 39 of the Motor Vehicles Act, 1988.  Since both the complainant as well as the OP-2 Dealer, are guilty of negligence in the matter, it is considered appropriate that 50% of the amount payable under the Insurance Policy in question is paid by the OP-2 Dealer to the complainant.  The complainant shall have to bear the loss of rest of 50% of amount, because of his own negligence in using the vehicle without registration. 

16.     This revision petition is, therefore, allowed.  The orders passed by the Consumer Fora below are set aside and it is directed that 50% of the IDV of the vehicle as stated in the Insurance Policy shall be paid by the OP-2 Dealer to the complainant within four weeks from today.  It is also stated that if the said payment is not made within the aforesaid period, it shall carry interest @9% p.a. from the date of filing the complaint till realisation.  There shall be no order as to costs.