Punjab

Amritsar

CC/15/369

Paramjit Singh - Complainant(s)

Versus

M/s. AB Mehta Care - Opp.Party(s)

03 Oct 2016

ORDER

 

Order dictated by:

Sh.S.S.Panesar,President.

1. Sh. Paramjit Singh complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that  opposite party No.1 is the authorized dealer of Tata Motors, opposite party No.2 is the Insurance company from where the vehicle was got insured and opposite party No.3 is the financier, from where the vehicle was got financed. The complainant in order to purchase car, approached opposite party No.1 by fulfilling all the requirements, in the month of November, 2014, who gave full assurances of its services about the Tata Safari Dicor 2.2 EX MFL Make Tata Motors. Opposite party No. 1 also told the complainant that they have the facility of finance from HDFC Bank Ltd. The complainant showed his interest to get  the facility of finance and all the formalities were completed by the complainant  as required by opposite party No.3. After fulfilling all the necessary formalities regarding the loan, an amount of Rs. 9,91,772/- was paid to opposite party No.1 and  complainant had purchased TATA SAFARI DICOR 2.2. EX 4 x 2 MFL make Tata Motors  bearing Engine No. 05446, chassis No. 03281 model 2014 having temporary No. PB 02-TC-0609 on 21.11.2014. Thereafter , permanent RC in favour of the complainant was also issued with Registration No. PB-02-CM-7499 to the vehicle in question. The complainant also made the payment of RC charges to the tune of Rs. 72,228/- , Rs. 1000/- as temporary number plate and Rs. 5000/- as Misc. expenses on 21.11.2014 to opposite party No.1. Opposite party No.1 also arranged insurance for the vehicle from opposite party No.2 and the vehicle was got insured  from 21.11.2014 to midnight of 20.11.2015  from opposite party No.2 for Rs. 9,46,940/- being its IDV vide cover note No. E6463602 dated 21.11.2014 by making premium amount of Rs. 30,597/- to opposite party No.2. On 28.12.2014 complainant was driving the vehicle  in question and he was having valid driving licence bearing No. PB0220070127020 issued on 19.7.2007 valid upto 25.8.2016 but unfortunately  the vehicle met with an accident and the vehicle in question rolled down when breaks applied at Batala Road village Jahangeer Distt. Amritsar. On 29.12.2014 complainant after making the payment of Rs. 2500/- to the recovery van of M/s. Baba Deep Singh Flat Bed Service, Transport Nagar, Amritsar , shifted the vehicle to the agency of opposite party No.1. Intimation in this respect was given to opposite party No.2. Opposite party No.2 appointed its surveyor namely Sh.Rohit Kapoor to inspect and assess the loss and all the original documents were also supplied to him. The surveyor of the opposite party No.2 after visiting the premises of opposite party No.1 and after conducting proper inspection declared it as total loss vehicle. The complainant visited opposite party No.2 so many times and even the requests were made   by him telephonically as the complainant has raised a loan from HDFC Bank, opposite party No.3 and was paying the huge interest to the bank. But opposite party No.2 did not pay any heed to the genuine requests of the complainant  and the impugned claim still remained unsettled . The complainant also served legal notice dated 18.4.2015 to the opposite parties, but the opposite parties never replied the same till date. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite parties be directed to pay a sum of Rs. 9,46,940/- being IDV or in the alternative to refund the price of the vehicle  or to deliver new car of same model alongwith charges paid by the complainant in the shape of RC, Insurance etc to the damaged vehicle.
2. Compensation to the tune of Rs. 40000/- may also be awarded to the complainant alongwith litigation expenses to the tune of Rs. 10000/-.

Hence, this complaint.

2.       Upon notice, opposite parties appeared and contested the complaint by filing separate written statements.

3.       Opposite party No.1 in its written version has taken certain preliminary objections stating therein that complainant has no locus standi to file the present complaint against opposite party No.1 ; that complainant has not filed the complaint against the proper parties. The complainant got insured the car from opposite party No.1 and obtained the loan from opposite party No.3 but the complainant filed the present complaint against opposite party No.1 unnecessarily and without any cause of action .  On merits it is submitted that  complainant had purchased a good quality car from opposite party No.1. It is pertinent to mention here that no complaint about the quality of the car was lodged. The car was delivered to the complainant in a good condition  and Insurance policy of the car was purchased by the complainant directly from opposite party No.2 and the loan for the purchased of car was directly given by opposite party No.3 to the complainant . Remaining facts mentioned in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

4.       Opposite party No.2 in its written version has taken certain preliminary objections stating that complainant has concealed true and material facts from this Court and has not come to the court with clean hands, therefore, the complainant is not entitled for any relief and the complaint is liable to be dismissed ;  that complainant lodged claim with the replying opposite party. After receiving the claim , an independent IRDA approved licensed surveyor Er.Rohit Kapoor was appointed to assess the loss. The complainant provided the copy of policy valid from 21.11.2014 to 20.11.2015, tax invoice which was issued on 23.11.2014.  The accident took place on 28.12.2014 after more than one month from the purchase of vehicle . The surveyor demanded temporary RC, or registration certificate from the complainant but the same was not provided.  After few days, complainant again submitted the delivery note dated 6.12.2014 of the vehicle and also provided the temporary registration certificate of the vehicle bearing No. PB-02-BW(T)-9101 showing the validity from 6.12.2014 to 5.1.2015. When the contradictory documents were provided by the complainant, the surveyor found that at the time of accident, the vehicle was carrying trade certificate No. PB-02-CT-0609  and the registration of the vehicle was applied on 30.12.2014 to 29.12.2029. It was also found that the vehicle was brought to the workshop on 5.12.2014 for its first free service and odo meter reading was noted as 1489 KMS. From the copy of account statement of loan, it was found that it has been issued on 24.11.2014 and the policy has also been issued on 21.11.2014 to 20.11.2015. From all the above mentioned facts, it was found that the vehicle was purchased by the complainant on 23.11.2014 and he did not apply for registration certificate within the period required to apply the same The temporary number was also expired on the date of accident, therefore, the vehicle was being plying on the road without RC, therefore, it was violation of provisions of section 39 of Motor Vehicle Act. As such it was found that the complainant was not entitled for the claim ; that  in this case complainant with the connivance of dealer forged various documents to cover the period of accident  in the validity of temporary number and provided the delivery note showing dated 6.12.2014, Form receipt of tax showing dated 30.12.2014, form receipt of society fee showing dated 30.12.2014, temporary certificate of registration from 6.12.2014 to 5.1.2015, provisional registration certificate  valid from 30.12.2014 to 30.1.2015, application for registration of motor vehicle dated 1.1.2015, sale certificate showing delivery of vehicle 29.12.2014, registration detail in which the insurer of the vehicle has been shown as Bajaj Allianz Gen.Insu.Co. Branch Bathinda issued from 21.11.2014 to 20.11.2015. As per verification of temporary No. PB-02-BW(T) 9101 to 9400, it was found that the amount was deposited on 6.12.2014   for the said temporary numbers and the temporary  number of the vehicle in question shows that it was allotted temporary No. PB-02-BW(T) 9101 whereas tax invoice shows that the vehicle was sold on 23.11.2014, how it is possible that the number allotted on 6.12.2014 alloted to the vehicle purchased on 23.11.2014. It shows that all these documents have been manipulated to get the claim ; that opposite party No.2 has been made party being the insurer of the vehicle  and in the form of registration detail, the insurance particulars of vehicle have been given as Bajaj  Allianz Gen.Insu.Co. Branch Bathinda issued from 21.11.2014 to 20.11.2015 bearing policy No. 25252512  dated 1.2.2015 which shows that the vehicle was also insured from Bajaj Allianz Gen. Insu.Co.  and in case any liability arises at any point of time that is required to be divided between the replying opposite party and Bajaj Allianz Gen.Insu.Co., who is also insurer of the vehicle at the relevant time and it is necessary party which is also required to be impleaded ; that replying opposite party issued various letters  demanding the documents and information from the complainant dated 14.1.15, 4.2.2015, 4.3.2015, 17.4.2015, 25.5.2015 but the complainant never complied with the  same. Therefore,  vide letter dated 25.5.2015 the claim was declared as not maintainable and due information was sent to the complainant.  On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

5.       Opposite party No.3 in its written version has taken certain preliminary objections stating that present complaint does not disclose any cause of action against opposite party No.3, hence present complaint is liable to be dismissed against opposite party No.3 ; that opposite party No.3 has been dragged into unwanted litigation  for that opposite party No.3 reserve its legal right to take appropriate action available to them under the law  ; that present complaint is legally not maintainable against opposite party No.3 .On merits  it is admitted that complainant has availed loan from opposite party No.3. Opposite party No.3 has no concern of whatsoever facts pleaded in this complaint and a prayer for dismissal of complaint was made.

6.       In his bid to prove the case , Sh.Neeraj Brahmi,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-20, additional affidavit of the complainant Ex.C-20/A and closed the evidence on behalf of the complainant.

7.       To rebut the aforesaid evidence opposite party No.1 tendered into evidence affidavit of Sh. Varun Sharma, Manager Ex.OP1/1 and closed his evidence.

8.       On the other hand Sh.R.P.Singh,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Sh.Abhilash Chander, Deputy Manager Ex.OP2/1 alongwith documents Ex.OP2/2 to Ex.OP2/27, affidavit of Sh.Rohit Kapoor,Surveyor Ex.OP2/28, survey report Ex.OP2/29, copy of policy  Ex.OP2/30, terms and conditions  Ex.OP2/31 and closed the evidence on behalf of opposite party No.2.

9.       Whereas Sh.Anil Sharma,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh.Bhupinder Kumar, Asstt.Manager (Legal) Ex.OP3/1 and closed the evidence on behalf of opposite party No.3.

10.     We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by complainant as well as opposite party No.1.

11.     Ld.counsel for opposite party No.1 has vehemently contended that opposite party No.1 is a dealer, who has sold the vehicle in dispute in favour of the complainant vide invoice No. CRN-CR01-14-123363935762 dated 23.11.2014, copy whereof is Ex.OP2/15 on record. Opposite party No.2 is the insurer and the claim of the complainant is directed against opposite party No.2 only. Opposite party No.1 has been arrayed as party to the present complaint without any reasonable cause. If the vehicle of the complainant met with an accident or on that account he had to incur expenses for repair of the same, the claim has to be filed against opposite party No.2 only i.e. insurer . In such a situation opposite party No.1 is entitled to be deleted from the array of the parties and opposite party No.1 is also entitled for compensation to be awarded against the complainant for  involving it unnecessary litigation.

12.     Similarly counsel for opposite party No.3 has vehemently contended that opposite party No.3 has been wrongly arrayed as party to the present complaint. Opposite party No.3 is the financier   of the vehicle in dispute in favour of the complainant. There is no deficiency in service attributed to opposite party No.3 in the complaint  and  even the relief sought by the complainant pertain to opposite party No.2 only. In such a situation opposite party No.3 is liable to be scored off from the record  and opposite party No.3 is entitled to be compensated from the complainant by order of this Forum.

13.     On the other hand ld.counsel for opposite party No.2 has vehemently contended that the vehicle in dispute was not having valid registration certificate when it met with alleged accident on 28.12.2014. The temporary registration certificate which was allegedly issued on 21.11.2014 was valid uptil 20.12.2014. Registration certificate was issued in favour of the complainant regarding the vehicle in dispute only on 30.12.2014, copy form of receipt tax Ex.C-10 & copy of registration certificate Ex.C-11  bear witness to the same. The accident in dispute involving the vehicle in dispute took place on 28.12.2014, which established that at that time, the vehicle was not having a valid registration certificate. As such the opposite party No.2 was justified in repudiating the claim of the complainant. Reliance in this connection has been placed on United India Insurance Co.Ltd.-Petitioner Vs. Kishore Sharma-Respondent 2015(1)CPJ 760 wherein it has been laid down that a combind and harmonious reading of provision of section 84 of the MV Act read with section 39, 59 and 60 would show that transport vehicle was required to have a fitness certificate impliedly for safety of passengers or goods. These are statutory requirements of M.V. Act, 1988 in violation of which, vehicle was put to use on road. Authority of Insurance company to resist claim of the insured taking recourse to provisions of section 149(2)(a)(i) was held to be valid by Hon’ble Apex Court in the case of National Insurance Co.Ltd. Vs. Challa Bharathamma and Ors. V(2004)SLT 825 , there being violation of statutory requirements of the Act. Fora below was in error in upholding claim by respondent, which is not sustainable. Revision petition in the circumstances succeeds, however with no order as to cost.

14.     Not only that the vehicle in dispute was also got insured from Bajaj Allianz General Insurance Co. Branch Bathinda. That Insurance company was also required to be arrayed as party to the present complaint. But for the reasons best known to the complainant , that Insurance company has not been arrayed as party to the present complaint . In such a situation, the complaint  was liable to be dismissed for want of impleading the same as necessary party. Further more, it has been also contended that there are other documents relating to the registration of the vehicle in dispute on record produced by the opposite party No.2 which also pertained to the vehicle in dispute which are conflicted documents produced by the complainant. Since there are intricate question of law and fact involved in this case, therefore, this Forum should not proceed with the disposal of this case and the parties may be relegated to the civil court for disposal of the case in accordance with law because case required voluminous evidence. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-

“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”

Their lordships have further held that :-

“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”

15.     The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the Hon'ble Supreme Court in the judgement supra. A similar view has been taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page 101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors. in para No.7 of the judgement  which reads as under:-

“After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.”

16.     But,however, from the appreciation of the facts and circumstances of the case, it becomes evident that the plea taken by opposite party No.2 to the effect that the vehicle in dispute was also insured  with Bajaj Allianz General Insurance Co. during the relevant time has no takers because no document of the sort has been produced on record to substantiate those allegations and it is held that plea taken in that regard is not sustainable in law. The other plea taken by opposite party No.2 that the vehicle was not having effective and valid registration certificate at the time when the accident took place, though proved on record, is not a valid ground for  denying the insurance claim to the complainant. The complainant had deposited the sale price alongwith registration charges at the time of purchasing the vehicle in dispute with opposite party No.1. Opposite party No.1 has committed the default and has not deposited requisite charges with the registering authority. It is opposite party No.1, who is deficient in service & is liable to pay compensation to the complainant for blatant deficiency. However, the plea that since the vehicle in dispute was not having  proper registration certificate at the time of accident , therefore, the complainant is not entitled to be indemnified by opposite party No.2, is not sustainable at law . In that context reference can be made to authority titled as Aroma Paints Ltd. & Anr-Petitioners Vs. New India Assurance Co.Ltd.& Ors-Respondents 2013(4) CLT 28 (NC) wherein it has been laid down that otherwise too, the whole gamut of the facts and circumstances leans on the side of the consumer. First of all, this is not a condition laid down in the insurance policy. If the complainant did not have the registration number, he 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.

It is difficult to fathom as to why section 192 can be made applicable under the circumstances . The Insurance company does not enjoin the powers of traffic police. They cannot dismiss the claim under the guise of section 192 of Motor Vehicle Act, 1988. Section 192 of the said Act, pertains to the powers of the traffic police and the court. It does not give any power to the Insurance company to press this section into service, while dismissing the claim of the claimant/complainant……Under these circumstances, we accept the revision petition and restore the order of the District Forum, with the modification that the petitioner/complainant will get the claim as per surveyor’s report, in the sum of Rs. 6,85,941/- without any interest or compensation. He has to be punished for his negligence. The law of land has to be followed strictly. The said amount be paid, within 90 days, from the receipt of this order, otherwise, it will carry interest @ 9% p.a. till realization. It is also made clear that the Insurance company will not pay the said amount to the complainant, unless and until he produces the original registration certificate, alongwith its photocopy, to the Insurance company. The complainant will be entitled to retain the original registration certificate, after showing it to the Insurance company.

17.     Further reliance can be had on Iffco Tokio General Insu.Co. Ltd. Vs. Pratima Jha in Revision Petition No. 171 of 2012 decided on 27.4.2012 of the  Hon'ble National Commission ,wherein it has been held that the insurance company is not entitled to repudiate the claim merely on the ground that the vehicle had not been registered and this view has also been affirmed by the Hon'ble National Commission in case Oriental Insurance Company Ltd Vs. Swami Devi Dayal Hi Tech Education Academy (Revision Petition No. 497 of 2012) decided on 14.2.2012 has held  that there was nothing in insurance policy to discharge the insurer from its liability under the policy on the ground of non-registration. The plea taken by the opposite party that the vehicle did not have permanent registration number, could not be accepted. Hon'ble National Commission further held that non registration of the vehicle did not lead to accident if opposite party were so strict about said conditions they should have cancelled the policy within reasonable time after bringing it to the knowledge of the complainant. But the same was not done by the opposite party. Hon'ble National Commission held that the repudiation is unjustified and the insurer is liable to pay the loss to the owner of the vehicle.

18.     It is usually seen that insurance companies show green pastures to the insured persons at the time of selling  the insurance policy and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.       

The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

19.     Since the  surveyor has already been appointed by opposite party No.2, who inspected the vehicle in dispute and also submitted his survey report, copy whereof is Ex.OP2/29 vide which amount of 5,29,355/- was assessed as compensation payable to the complainant under the Insurance policy in dispute . The report of the surveyor is binding on the parties. The repudiation has been wrongly made by opposite party No.2 without any valid reason. Authority relied upon by opposite party No.2 in United India Insurance Co.Ltd. Vs. Kishore Kumar (supra) is not applicable to the facts of the present case because in that case the insurance claim was declined on account of absence  of fitness certificate of the commercial vehicle and reference regarding non registration of the vehicle has been made as an obiter dicta and the factum of non registration of the vehicle was not directly & substantially in issue in that case.

20.     From the aforesaid discussion, it transpires that complainant has been able to prove his case . As such complainant is allowed compensation to the tune of Rs. 5,29,355/- as assessed by the surveyor alongwith interest @ 9% p.a. from the date of filing of the complaint until full and final recovery.  Besides that opposite party No.1 is directed to pay Rs. 10000/- as compensation to the complainant for its deficient service. Cost of litigation are assessed at Rs. 2000/-. Complaint against opposite party No.3 fails and is ordered to be dismissed. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, complainant shall be at liberty to get the order executed through the indulgence of this  Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

 

Dated:  3.10.2016.