Orissa

Cuttak

CC/141/2015

Swatirekha Parishya - Complainant(s)

Versus

M/s OSL Prestige Pvt Ltd - Opp.Party(s)

G Patra

30 May 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.141/2015

Swatirekha Parikshya,

W/o:Debabrata Parikshya,

Res. of C-684,Sector-8,C.D.A,,

Near River rine hospital,Cuttack.                                                      … Complainant.

 

                Vrs.

 

1.       Manager/Service Advisor.

      M/s. OSL Prestige Pvt. Ltd.,

      Branch office at Bhanpur,National Highway No.5,

      Gopalpur,Cuttack.

 

2.      HDFC ERGO General Insurance Co. Ltd.,

     (Represented through its Claims Manager),

     Office at: 3rd Floor,Hotel Pal Regency,J-7,

     Jaydev Vihar,Khurda.                                                                          … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     10.12.2015

Date of Order:  30.05.2017

 

For the complainant:      Smt. G.Patra,Adv. & Associates.

For Opp.Party No. 1 :      Sri H.R.Kar,Adv. & Associates.

For the O.P No.2       :      Sri Ranjan Pati,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

The complainant having attributed deficiency in service and unfair trade practice to the O.Ps has filed in this case seeking appropriate relief against them in terms of the prayer of his complaint petition.

1. The consequence of events that lie in narrow compass of this case is that complainant had purchased a BMW car for her personal use from O.P.1 on 14.5.14 for Rs.36,71,042/-.  Annexure-1 is the copy of the invoice dt.14.5.14 and Annexure-2 is the copy of the sale certificate of the said vehicle.  Annexure-3 is the copy of the temporary registration certificate dt.15.5.14 issued by O.P.1.  It is further stated that at the time of purchase, the said car was issued by the O.P.2 vide Policy No.2311200767434900000 on 19.5.14 which was valid up to 18.5.15.  Annmexure-4 is the copy of the insurance policy issued by O.P.2 for the said vehicle.
2. The said car met with an accident on 15.4.15 and thereafter it was given in the garage of O.P.1 at Cuttack for repair.  The fact of accident was also intimated to O.P.2 on the said date. Mr. Amar Das, the surveyor was deputed by the O.P.2 to conduct survey and inspection of the damaged vehicle on 22.4.15.  The surveyor thereafter intimated the O.P.1 to undertake necessary repair of the damaged vehicle.  He was also monitoring the repair work constantly and   enquiring into the final price of the repair vide E.Mail dt.11.6.15.  Copy of the said E.Mail have been filed and marked as Annexure-5.  Subsequently the complainant got permanent registration number of the said car from the R.T.O,Cuttack on 22.4.15 and registration number allotted to that vehicle was OD-05N-2280.  Annexure-6 is the copy of the said registration number.
3. On 22.6.15, O.P.1 intimated the complainant that the repair of the said vehicle was over and the total bill for repair came to Rs.3,71,352/-.  This fact was intimated to the O.P.2 who was requested to indemnify the complainant.  Annexure-7 is the copy of the E.Mail dt.2.6.15 sent by O.P.1.
4. Subsequently the complainant received a letter dt.14.6.15 from the said surveyor wherein it was intimated that he returned her claim file to O.P.2 to close the claim as ‘No claim’ since the above vehicle was driven without permanent registration number and the temporary registration number of the vehicle was no longer valid as on the date of accident.  Annexure-8 is the copy of the surveyor’s letter dt.24.6.15.  On 14.9.15 O.P.2 intimated the complainant that her claim was repudiated for the reasons as stated above.  Annexure-9 is the copy of the repudiation letter dt.14.9.15 issued by the O.P.2.  The complainant then protested against the illegal repudiation of her claim by the O.P.2 vide her letter dt.16.9.15. May be on the ground that her claim should not have been repudiated when she has not violated any terms and conditions of the insurance policy.  Annexure-10 is the copy of the said letter of protest of the complainant dt.16.9.15.
5. It is specifically stated that violation if any of the provisions of Motor Vehicle Act,1988, may entail appropriate consequence under the said Act by the competent authority and O.P.2 being the insurance company has not been authorized to take action against her for any such violation.  As such, it is stated that repudiation of her claim is grossly arbitrary, illegal and absolutely unjustified.  Since there is no violation of the terms and conditions of the agreement, it is tantamount to deficiency in service and unfair trade practice on the part of the O.P.2 for which this case has been filed against both the O.Ps for appropriate relief.
6. It is therefore prayed that the O.P.2 may be directed to allow the accident claim lodged by the complainant to the tune of Rs.3,71,352/- as per the report of the surveyor and he also be directed to pay the parking charges of the said vehicle as claimed by the O.P.1 in its garage.  It is further prayed that his vehicle lying in the garage of the O.P.1 be forth with released after due repair and the O.P.2 be directed to pay compensation of Rs.50,000/- for causing mental agony and harassment to her and Rs.10,000/- towards cost of litigation in the interest of justice.  The total amount claimed by the complainant comes to Rs.4,31,352/-/
7. Both the O.Ps entered appearance, filed their written version respectively and contested the case.  O.P.1 in its written version has raised question about maintainability of the case as it is not sustainable both in fact and law.  It is specifically stated that substantial reliefs as claimed by the complainant are against the O.P.2.  So far as the reliefs against it are concerned, it is stated that the complainant has already taken back her vehicle from the workshop after making full payment of the bill amount to the tune of Rs.3,71,352/- on 14.10.15 and as a good will and gesture it has already waived out the parking charges amounting to Rs.29,000/-.
8. The main contesting O.P. is O.P.2 and like O.P.1 it has also challenged the very maintainability of the case mainly on the ground that there is no substance in the allegation of the complainant that there was any deficiency in service or unfair trade practice on its part in any manner.  It is interalia stated that the insurance policy under which the claim was made by the complainant has been issued in terms of the Motor Vehicle Act,1988 and violation of any provision of the said Act by her is tantamount to violation of the policy conditions.  In the instant case there was gross violation of Sec-39 & 43 of the Motor Vehicle Act by the complainant as she was no permanent registration number nor was the temporary registration was valid till the date of such accident.  In that view of the matter repudiation of her claim is absolutely legal and justified.  Accordingly it is prayed that the reliefs claimed for by the complainant are devoid of merit and may be dismissed.
9. O.P.2 has filed a series of documents in support of contentions of its case.  The copies of insurance policy and the policy conditions issued to the complainant have been filed and marked as Annexure-A & Annexure/A/1 respectively.  Annexure-B is the copy of the FIR lodged in this case by the concerned police.  Annexure-C is the claim lodged by the complainant with the O.P.2.  The copy of the survey report submitted to O.P.2 has been filed and marked as Annexure-D.  Annexure-E & F are respectively the copies of registration certificate and repudiation letter filed in this case.  Annexure-G is the copy of the letter dt.24.6.2015 issued by the surveyor.
10. We have heard the learned counsel from both the sides on this point at length and gone through the annexures filed by them in support of their respective contentions.
11. It is an admitted fact that the vehicle in question while driven by the complainant met with an accident on 15.4.15.  It is also equally admitted that the said vehicle did not have permanent registration number and the temporary registration in respect of the said vehicle was no longer valid as on the date of accident.  In the above premises the bone of contention between the parties is that while the learned counsel for the complainant relying upon a decision  delivered by the Hon’ble Presiding Member in Revision Petition No.626 of 2013 (M/s. Aroma Paints Ltd. and Mr. Trajiv Sethi Vrs. The New India Assurance Co. Ltd.) has stated that Insurance Company cannot repudiate the claim of the complainant merely on the ground that she does not have the permanent registration certificate as required U/S-39 of M.V.Act.  It is further argued that insurance company had no power of a traffic police and as such it can impose punishment for violation of any provision under the Motor Vehicle Act and ultimately repudiate her accident claim.  On the other hand, the learned advocate for O.P.2 has categorically taken the stand that using a vehicle on the public road without any registration is not only an offence punishable U/S-192 of the Motor Vehicle Act but also  a fundamental breach of the terms and conditions of policy contract.  His submission is fortified by the decision of the Hon’ble Apex Court delivered by Hon’ble Justice M.Y.Eqbal in Civil Appeal No.8463 of 2014 decided on 4.9.14(Narinder Singh Vrs. New India Assurance Company Ltd. and others) and still another decision of the Hon’ble NCDRC reported in 2016(4) CPR 222(NC) (Baghel Singh Vrs. National Insurance Company Ltd. & others.) it has been held that absence of valid registration certificate of a motor vehicle amounts to fundamental breach of terms and conditions of the insurance policy.  With regard to decisions relied upon by the learned advocate for the complainant Supra, it has held that the later two decisions relied upon by the learned advocate for O.P.2 is acceptable keeping in view the fact and circumstances of the present case.  In that view of the matter, the case of the complainant is found devoid of merit.  Hence ordered;

ORDER

                                The case of the complainant be and the same is dismissed on contest against the O.Ps 1 & 2.  No cost.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 30^th   day of May, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                         President.

                                                             

                                                                                                                 (Sri B.N.Tripathy )

                                                                                                                         Member.

 

                                                                                                                  (Smt. Sarmistha Nath)

                           Member(W)