Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.96 of 2018 Date of Instt.09.03.2018 Date of Decision: 20.04.2021 Komal daughter of Sh. Suresh Chander, resident of H. No.NN-219, Gopal Nagar, Jalandhar. ….. Complainant Versus 1. M/s National Insurance Company Ltd., Hero MotoCorp Vertical, Delhi DO Z, 803A, 8th Floor, Tower C Konnectus Building, Opp. New Delhi Railway Station, Bhavbhutti Marg, New Delhi. 2. M/s Goyal Automobiles Pvt. Ltd., G. T. Road, Paragpur, Opp. Big Bazar, Jalandhar. ..…Opposite parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) Present: Sh. Devinder K. Gupta, Adv. Counsel for Complainant. Sh. Darshan Singh, Adv. Counsel for the OP No.1. Sh. Vikas Sood, Adv. Counsel for the OP No.2 Order Kuljit Singh (President) The present complainthasbeen filed by complainantagainst the OP on the averments thatthe complainant purchased car Grand I10 Magna 1.2 BS IV(Solid) having Chasis No.MAL851CLHM697012, Engine No.G4LAHM554319, Polar While colour on 09.09.2017 for sum of Rs.4,83,218/- from OP No.2 vide invoice No.4397. That at the time of its purchase, OP No.2 got the aforesaid vehicle insured from OP No.1 and sum of Rs.12,638/- was paid towards insurance premium amount with period of insurance from 23.09.2017 to 22.09.2018. That on 03.10.2017, aforesaid car met with an accident and was badly damaged and immediately, OP No.1 was informed about the accident and car being damaged and claim was lodged. Further all requisite documents are submitted to OP No.1 which were required for processing the insurance claim. That inspite of the fact of lodging of claim by complainant and personal visits, OP No.1 has failed to release the claim amount and as such, vehicle could not be got repaired. That aggrieved with the deficient services of OP No.1, complainant got served a legal notice dated 07.10.2017, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to make payment to the tune of Rs.5,20,000/- together with interest @ 18% per annum alongwith compensation @ Rs.1,00,000/- towards legal expenses, mental agony and tension suffered by the complainant for deficient services on the part of the OPs, in the interest of justice. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared and filed reply and contested the complaint of the complainant by raising preliminary objections thatthe complainant has suppressed material facts and this complaint is wholly baseless and unsustainable in the eyes of law. In present complaint, complainant even has not mentioned the “place of the accident” in this respect of the accident. The complaint is totally vague imaginary, hypothetical and ambiguous. Therefore, the same is liable to be dismissed with special cost. The present complaint is not maintainable under law. The dispute raised by the complainant in the present complaint is manifestly outside the preview of the Consumer Protection Act. That the present complaint is baseless and a flagrant abuse of law to harass the answering OPs, the complainant has filed the complaint with ulterior motive. The complainant has no locus-standi to initiate the present proceedings. That the complainant dragged the answering OPs into unnecessary, uncalled and unwarranted litigation. That the complaint is reflecting misrepresentation. Because, the complainant has a multifariously violated the terms and conditions of the insurance policy and also insurance regulatory and development authority regulations 2002 and 2007.The complainant has not mentioned the registration number of the vehicle in question in present complaint. This reason is best known to the complainant. The complainant has not mentioned the place of accident. In FIR registered in the policy station Adampur, Jalandhar and stated vehicle 120 in the name of Smt. Komal W/o ManavKochar R/o Haripur Road, Adampur, District Jalandhar, but in record, the vehicle is 110. In present complaint, violation of terms and conditions of policy, as per the report of A. S. Grover to Tilak Raj Pushp on dated 05.12.2017 that:- The claim form sent by you is blank, we require claim form completely filled and signed by insured. The estimated loss mentioned by you in mail sent earlier was mentioned as Rs.5,80,000/- + GST which now has been overwritten as Rs.6,80,000/- on the intimation hard copy. PL Clarify. The invoice of the vehicle is seen dated 09.09.2017, where the insurance is seen commencing from 23.09.2017. PL give reasons of this gap & send the pre-inspection report. 64 VB form is not seen attached with papers. PL provide the same.
Further submitted that the vehicle in question was without registration at the time of accident on 02.10.2017 but complainant has got registration of vehicle on dated 05.10.2017 which violated the Motor Vehicle Act 1988. On merits, the factum in regard to insurance of the vehicle is admitted and further submitted that the vehicle in question met on accident on 02.10.2017, but complainant got the registration of the vehicle on dated 05.10.2017 which is acknowledged as Ex.OP-1. This reflects that registration of vehicle is late and violated the section 39 of the Motor Vehicle Act. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and the present complaint has been filed just to extract money from the answering OP. That there is no cause of action against the answering OP. That the complainant has not come before the Forum with clean hands and has suppressed the true material facts from the Forum. The true facts are that initially the complainant approached the answering OP for the purchase of Grand Hyundai Car. The amount was paid by the complainant and the complainant took delivery of the car on 23.09.2017. At that time also the complainant signed the satisfaction note. It is pertinent to mention here that at that time the complainant herself had asked the answering OP to wait for 10-12 days for applying the RC as she was interested in the VIP number. So, on the asking of the complainant, the answering OP waited for the same. Hence the present complaint is barred and complainant is stopped by her own act, conduct and acquisitions. Nobody can take advantage of his/her own wrongs. So, the present complaint is liable to be dismissed. On merits, the factum in regard to purchase of the vehicle is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed. In order to provehercase, the counsel for the complainant tendered into evidence affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-11 and closed the evidence. In order to rebut the evidence of the complainant, the counsel for the OP No.1 tendered into evidence affidavits as Ex.OPA, Ex.OPB & Ex.OPC alongwith some documents Ex.OP-1 to Ex.OP-14 and closed the evidence and counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith some documents Ex.O-1 to Ex.O-7 and closed the evidence. We have heard the learned counsel for the respective partiesand have also gone through the written arguments submitted by counsel for the OP No.1 as well ascase file very carefully. The insurance of the vehicle admitted by the opposite parties. The accident of the vehicle also admitted by the opposite parties. The grievances of the complainant is that the opposite parties repudiated the claim of the complainant wrongly and illegally, on the ground that “According to report RC fee/Tax deposited with registration authority on 05.10.2017 i.e. after the date of accident and R/C was not valid at the time of accident. Hence claim is not payable. On the recommendation of investigation report, Net of Salvage Committee was also of the opinion that at the time of accident insured does not has valid/effective registration Certificate (RC) and claim merits for repudiation….. claim repudiated.” Vide letter Ex.OP-14. The version of the opposite parties is that at the material time of loss the Registration Certificate of the vehicle was not valid. As per section 39 of Motor Vehicle Act, “No person shall driver 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 prescribed manner”. It has been pleaded in the para No.2 of the preliminary objection of the written reply that it was also conveyed to the complainant that you have not been submitted the following documents to the opposite parties
Complainant has not mentioned registration Number of vehicle in question Complainant has not mentioned the place of accident. In FIR registered in the police station Adampur, Jalandhar and stated Vehicle I20 in the name of Smt.KomalW/oManavKochar R/o Haripur Road, Adampur, District, but in record, the vehicle is I10. In complaint is violation of terms and conditions of policy as per report of AS Groper to Tilak Raj Pushp on dated 05.12.2017 Claim form sent by you is blank, we require claim form completely filled & signed by insured The estimated loss mentioned by you in mail sent earlier was mentioned as Rs.580000/- + GST which now has been overwritten as Rs.680000/- on the intimation hard copy. Pl clarify. The invoice of the vehicle is seen dated 09.09.2017 where the insurance is seen commencing from 23.09.2017. Pl give reason of this gap & send the pre-inspection report. 64 VB form is not seen attached with papers. Pl provided the same.
The complainant failed to respond the letter dated 05.12.2017 and in the absence of any response from the complainant the opposite parties was left with no option except to repudiate the claim and the same was conveyed to him through letter dated 11.07.2018.In the circular No. HO/MTD/OD/CIR No.10/IBD:ADMN:268, the fact of non registration vehicle on OD claims under Motor Insurance Policies is reproduced:-
“As you are aware, the issue of admissibility of a claim in respect of a vehicle lost/damaged at a time when the vehicle was being driven without any valid registration, as contemplated under section 39 and Section 43 of the Motor Vehicles Act, has been a subject matter ofdebate in the past in the wake of various orders of NCDRC and judgments from the Apex Courts touching this aspect from time to time. In the latest judgment on the subject delivered by the Hon’ble Supreme Court of India on 4thy September, 2014, in the matter between the appellant Narinder Singh Vs. respondent New India Assurance Company Limited in Civil appeal No.8463 of 2014, arising out of SLP (Civil) No.26303 of 2013, the Hon’ble Division Bench had dismissed the appeal filed by the insured, expressing their view that, “Using a vehicle on the public road without any registration is not only an offence punishable under section 192 of MV Act but also a fundamental breach of the terms and conditions of policy contract.” Accordingly, some GIPSA Member companies had issued circulars statingthat, Motor OD Claims for vehicles not registered with RTO, at the time of accident, are not admissible. However, these companies have been receiving representations from their operating offices and insured with different views regarding admissibility of such claims against the backdrop of the court order with the request to re-visit the issue. Some of these representations also made out a case in favor of the insured in circumstances under which the insured could not be blamed for the lack of registration at the time of loss of/damage to the vehicle. It was also reported that most of the private insurers are not straightaway rejecting the claims in all cases of non registration of vehicles at the material time of occurrence of the loss/ damage to the vehicle, and are deciding such cases on individual merit basis. In the background, and the issue affecting the public at large, the matter was deliberated at length amongst the GMs (Motor) of the four GIPSA member companies at GIPSA level on 24th February, 2015 for discussing the finer points involved in the issue and arrive at a common understanding on treatment of such claims. It was, interalia, observed in the said meeting that lack of registration cannot always be attributed to the insured, as there could be circumstances beyond the control of the insured leading to such lack of registration. For example, the insured might have paid the charges towards registration fee either at the RTO or even at the dealers point but the registration certificate could be pending/in process at the time of loss of /damage to the vehicle leading to a claim with insurer. In fact,it was noted that even the Hon’ble Supreme Court, in its aforesaid judgment has observed in para 14, as under:-
“Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of vehicle either applied for permanent registration as contemplated under section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons”. Following the spirit of the Hon’ble Supreme Court to look into the specific reasons before taking a decision, it was also felt that there could also be instances where, at the time of the accident to the vehicle, even the registration feeand Road Tax might not have been deposited by the insured, either with the RTO or with the dealer, but the facts and circumstances of the case point out that there were genuine reasons for his failure to even deposit the registration fee and Road Tax before the accident taking place, and therefore, penalizing the insured by an outright repudiation of the claim solely on the ground of lack of registration, without going into the reasons for the same, could be too harsh a penalty upon him.At the same time, requirement of registration of the vehicle before its use at a public place being statutory in nature, it cannot be altogether ignored while considering an insurance claim on such a vehicle. Keeping in view the totality of situation and striking a fair balance between the interests of various stake-holders, in the spirit of the aforesaid judgment of the Hon’ble Supreme Court, therefore, the GMs (Motor) decided to treat claims on Motor Vehicles meeting with accident at a time when there was no valid registration on the vehicle in the following manner:-
In cases where the material on record available show that the insured had deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer/ sub-dealer, from where the vehicle was purchased. Before the vehicle meets with an accident, while the registration is still in process/ pending after such deposit of registration fee and road tax claims arising outof such an accident may be settled on standard basis, subject to submission of the RC Book by the insured. In cases where the insured had not deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer4/sub-dealer, from where the vehicle was purchased, before the vehicle meets with an accident, but the facts and circumstances of the case do point out that there were genuine reasons for his failure to even deposit the registration fee and road tax before the accident taking place, such cases could be settled on non-standard basis (not exceeding 75% of the normally admissible amount of the subject claim) by the Competent Authority as provided under the Financial Standing Orders of the Company for the time being in force, takinginto account the overall facts and circumstance of the case, subject to submission of the RC Book by the insured. In cases where the insured had neither deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer/ Sub-dealer, from where the vehicle was purchased, before the vehicle meets with an accident, nor there were genuine reasons for his failure to even deposit the registration fee and road tax before the accident taking place, such claims should be repudiated in the normal course by the usual Competent Authority. “The complainant has specific pleaded in the complaint that he applied for the registration certificate of the vehicle through Dealer. The complainant has placed on file copy of registration certificate which was issued on 05.10.2017 and the accident took placed 03.10.2017. The version of the complainant is fully supported with his affidavit i.e. Ex. C-A. In the para No.2 of the notification, it is mentioned that: “In cases where the insured had not deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer4/sub-dealer, from where the vehicle was purchased, before the vehicle meets with an accident, but the facts and circumstances of the case do point out that there were genuine reasons for his failure to even deposit the registration fee and road tax before the accident taking place, such cases could be settled on non-standard basis (not exceeding 75% of the normally admissible amount of the subjectclaim) by the Competent Authority as provided under the Financial Standing Orders of the Company for the time being in force, taking into account the overall facts and circumstance of the case, subject to submission of the RC Book by the insured. “ The vehicle of the complainant met with an accident on 03.10.2017 and registration certificate Ex. C-8 was prepared on 05.10.2017 after 2 days of the accident. It means that the registration of the vehicle was in process when the vehicle met with an accident. From the pleading and evidence of the complainant it is proved that there is genuine reason for not obtaining the Registration Certificate at the time of accident by the complainant. This condition was not mentioned in the insurance policy that if the complainant did not have the registration number, the complainant is liable to be punished Under Section 192, which provides that, whosoever drives a motor vehicle, or causes or allows a motor vehicle, to be used in contravention of the provisions of Section 39, shall be punishable for the first offence, with a fine, which may extend to five thousand rupees, but shall not be less than two thousand rupees,for a second or subsequent offence, with imprisonment, which may extend to one year or with fine, which may extend to ten thousand rupees, but shall not be less than five thousand rupees or with both. The Insurance Company does not enjoin the power of traffic police. They cannot dismiss the claim under the guise of Section 192 of Motor Vehicles Act, 1988. It is mere negligence and in action on the part of the complainant. The Insurance Company is not affected by the said negligence on his part. In our view, claim of the complainant cannot be repudiated on the ground that the vehicle of the complainant was not registered with the Registration Authority at the time of accident. If the vehicle of the complainant was not registered with the Registration Authority, even then complainant is entitled to receive the claim of the vehicle on sub-standard basis. Reliance can be made in M/s. Aroma Paints Ltd. V. The New India Assurance Com. Ltd., III(2013) CPJ635(NC). The Surveyor assessed the loss of vehicle was Rs.3,16,058/- as mentioned in Ex. OP-10. The complainant is entitled to receive 75% claim of the vehicle on sub-standard basis. In view of what has been discussed above, this complaint is partly allowed and the opposite parties are directed to pay 75% claim amount of Total IDV i.e. 4,97,058/-. Further, the opposite parties are directed to pay a sum of Rs.7000/- as compensation for mental harassment including litigation expenses to the complainant. The compliance of the order be made within 45 days from receipt of copy of this order. Copies of the order be sent to the parties, as permissible, under the rules. This complaint could not be decided within stipulated time frame due to rush of work and spread of Covid-19. File be indexed and consigned to the record room after due compliance.
Announced in open Commission 20th of April 2021 Kuljit Singh (President) Jyotsna (Member) | |