Delhi

North

CC/27/2018

KAPIL DEV SHARMA - Complainant(s)

Versus

M/S. BALAJI AUTO & ANR. - Opp.Party(s)

CHANDERKANT TYAGI

03 Oct 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 27/2018

In the matter of

Sh. Kapil Dev Sharma   

S/o Sh.B.P. Sharma

R/o 1710-D/123, Shanti Nagar, Tri Nagar

New Delhi-1100035                                                                ...Complainant

Versus

M/s Balaji Auto

Through Authorized Representative

Office at: E-2/244, Shastri Nagar,

Opp. Metro Pillar No. 168,

•  

 

M/s TATA AIG General Insurance Co. Ltd.

Through Director

Office at 301-308, 3^rd floor,

Aggarwal Prestige Mall. Plot no. 02,

Road no. 44, Near M2K Cinema, Rani Bagh,

Pitampura, Delhi-110034

Also at:

15.  

Peninsula Business Park,

Ganpatrao Kadam Marg, Lower Parel,

Mumbai- 400013…Opposite Party -2

 

ORDER
03/10/2023

Harpreet Kaur Charya, Member

1. Jurisdiction of this commission has been invoked by Sh. Kapil Dev Sharma, the complainant against M/s Balaji Auto, OP-1 (seller) and M/s TATA AIG General Insurance Co. Ltd., OP-2 (insurer) with the prayer for directions to OPs to pay Rs. 73,364/- ,the IDV ; interest at the rate of 18% p. a. from the date of filing of claim ; Rs. 15,000/- as litigation expenses; Rs. 5,000/- each for physical and mental harassment as well as  compensation for deficiency in service .
2. Facts as per the complaint, on 24/02/2017, the complainant purchased a motorcycle “Apache 160DD” bearing Chassis No.MD634KE41G2B81855 and Engine No. 0E4G2929320 from OP-1 for a sum of Rs.87,213/- including VAT, Road Tax, Smart Card, Enhancement Cover Insurance, extra warranty and other misc. expenses.
3. The said vehicle was insured with OP-2 from 24/01/2017 (seems to be a typographical error, as per policy document it is 24/02/2017) for an IDV of Rs. 73,364/-. On 28/02/2017, the vehicle was stolen when it was parked outside the house of the complainant. An FIR bearing no. 006414 dated 01/03/2017 was registered with P.S. Keshav Puram and OP-2 was also duly intimated.
4. The said vehicle was registered on 02/03/2017 with RTO but the insured vehicle was having a valid temporary number as provided by OP-1. The untraced report was accepted by the competent court. It has been stated that the claim along with the requisite documents was filed with OP-2 however, the same was repudiated vide letter dated 27/09/2017, on the ground of violation of Condition No. 39, stating that the act of theft occurred on date 28/02/2017, whereas the date of registration of the insured vehicle is 02/03/2017, which is 02 days after the date of theft, which clearly indicate that the vehicle was being used without any registration for that time.
5. Feeling aggrieved by the repudiation of the genuine claim, the complainant issued a Legal notice dated 03/12/2017, which was duly served upon OPs but the same was neither replied nor complied with. Hence the present complaint.
6. The complainant has annexed the detail invoice issued by OP-1 which is of date 26/02/2017, payment receipt bearing no. 16900, registration certificate, copy of letter issued by OP-1, a copy of FIR dated 01/03/2017 with P.S. Keshav Puram, copy of untraced report dated 02/06/2017, copy of policy schedule, claim registration and repudiation letter and Legal notice along with speed post receipt and aadhar card have been annexed with the complaint.
7. Notice of the present complaint was issued to OP-1 and OP-2. However, neither anyone appeared nor any reply was filed on behalf of OP-1, hence, they were proceeded ex-parte vide order dated 03/07/2018.
8. Written Statement was filed on behalf of OP-2. They have taken preliminary objection that the present complaint is totally devoid of merits. The factum of insurance cover, intimation regarding theft and repudiation of the claim have been admitted. It has been submitted that on perusal of the registration certificate, it was found that the vehicle was registered on 02/03/2017 i.e. after two days of the alleged theft. As there is violation of Condition 39 of Chapter IV, of Motor Vehicle Act, 1988 which is being reproduced hereunder :

Condition no. 39

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 :

9. As, the vehicle was being used without registration certificate on the alleged date of incident of theft, hence, the claim was not payable. Rest of the contents of the complaint has been denied. OP-2 has annexed the policy schedule along with terms and conditions and repudiation letter dated 27/09/2017 with their Written Statement as Annexure 1.
10. Rejoinder to the Written Statement was filed by the complainant where the complainant has stated that a temporary certificate no. DL1STC0094 was issued by OP-1, which was valid. It has been further submitted that the vehicle was parked outside the house of the complainant and the same was not being driven at the time of theft. Rest of the contents of the Written Statement have been denied and those of the complaint have been reaffirmed.
11.  Evidence by way of affidavit has been filed by the complainant, where, the complainant has reiterated the contents of his complaint and has got exhibited the invoice and receipt as Ex.CW-1/1 and Ex.CW-1/2. He has got exhibited the policy certificate as Ex.CW-1/3; copy of FIR as Ex.CW-1/4; the registration certificate, letter issued by OP-1 and Form-17 as Ex.CW-1/5 to Ex.CW-1/7. The untraced report and demand letter for claim are Ex.CW-1/8 and Ex.CW-1/9. The repudiation letter is Ex.CW-1/10. Legal Notice dated 03/12/2017 along with postal receipt as Ex.CW-1/12 to Ex.CW-1/14. The complainant has also deposed that OP-1 had issued a letter dated 06/02/2018, dispatched on 28/02/2018 ,by admitting his liability and offered a less amount during the pendency of the complaint and the complainant also found one Photograph of the stolen motorcycle and has got the same exhibited as Ex.CW-1/15 and Ex.CW-1/16 respectively.
12.  OP-2 have got examined Sh. Amit Chawla, Chief Manager-Legal Claims on their behalf. He has repeated the contents of the Written Statement and has got the policy along with terms and conditions exhibited as Ex.R-1, the copy of RC as Ex.R-2 and copy of repudiation letter dated 27/09/2017 as Ex.R-3.
13.  We have heard the arguments of the complainant who is appearing in person and the Ld. Counsels for OP-1 and OP-2 who are appearing through Video Conferencing. We have also gone through the Written Arguments filed on behalf of complainant and OP-2.
14. The complainant is aggrieved by the repudiation of his theft claim by OP-2 on the ground of violation of Condition no. 39, of the Motor Vehicle Act, 1988, which stipulates the necessity for registration and is being reproduced hereunder :

Section 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 :

15. As per repudiation letter (Ex.CW1-10) and Ex.R-3, wherein it has been stated that :- “ on perusal of the report received, it has been noted that the act of theft occurred on date 28^th February 2017, whereas the registration date of vehicle is 2nd March 2017, which is 02 days after the date of theft, which clearly indicate that the vehicle was being used without any registration for the time which is clear violation of Condition no. 39, Chapter IV of the Motor Vehicle Act, 1988 regarding the registration  of Motor Vehicle.”
16. If we look at the complaint as well as the letter issued by OP-1, the date of purchase of the insured vehicle is mentioned as 24/02/2017, however as the retail invoice Ex.CW1/1 is of  26/02/2017 and the receipt bears the date 24/02/2017 (Ex.CW1/2). As per FIR no. 006414, PS Keshav Puram (Ex.CW-1/4) it has been stated by the complainant that his vehicle bearing registration no. DL1ST0094 was stolen on 28/02/2017, which is within the four days from the date of purchase.
17. As per Section 43(2) of the Motor Vehicle Act, 1988 which deals with the temporary registration states that the registration made under this Section shall be valid only for a period not exceeding one month, and shall not be renewable. Thus, the temporary registration of the insured vehicle was valid till 26^th March 2017.
18. Further, the ground of repudiation with respect to violation of Condition no. 39 of the Motor Vehicle Act is concerned, it stipulates that no Person shall drive any Motor Vehicle and no owner of the motor vehicle shall cause or permit the vehicle to be driven… ,which can be distinguished in the present case as the insured vehicle was parked outside the residence of the complainant and was not being driven at that time of theft. OP-2 has also not averred that the insured vehicle was being driven at the time of incident of theft. The rejection of the claim on the ground that the insured vehicle was being used without registration does not hold ground as the vehicle was having temporary registration, which was valid for one month from the date of purchase i.e. 24/02/2017 to 26/03/2017. The genuine claim of complainant was repudiated by non application of mind.
19. The complainant has also placed on record the letter dated 26/02/2018 (Ex.CW1/15) which bears the subject ‘Regarding rejection of claim cheque in absence of documents submission’, issued by OP-1 stating that insurance company has settled the claim for Rs. 53,200/- through cheque no. 671731 dated 02/01/2018 drawn on Deutsche Bank. If you don’t provide the document to settle the claim in time validity of the cheque may expire’.
20. The rejection of the claim is based ground of violation of Condition no. 39, of the Motor Vehicle Act, 1988 and not on the ground of non submission of the documents. Hence, we are unable to appreciate the basis of settlement of the claim for Rs. 53,200/-, which is less than the IDV i.e. Rs. 73,344/-.
21. Therefore, in the fact and circumstance of the present complaint we observed that the genuine claim of the complainant was repudiated by OP-2 by non application of the mind and arbitrary ground. No liability can be fastened on OP-1 as they are mere seller of the insured vehicle. 
22. Hence, we direct OP-2 to pay the IDV of the vehicle i.e. Rs.73,344/- alongwith interest @7% p.a. from the date of filing of the claim till realization.  We further award a compensation of Rs.15,000/- on account of mental harassment and agony, inclusive of litigation expenses.
23. The order be complied within a period of 30 days from the date of receipt of this order.  In case of non-compliance Rs.88,344/-(Rs.73,344/-+Rs.15,000/-) shall carry interest @9% p.a. from the date of order till realization.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya) Member

(Ashwani Kumar Mehta)                                     Member

(Divya Jyoti Jaipuriar)

President