Delhi

New Delhi

CC/44/2019

SHAKUNTLA DEVI - Complainant(s)

Versus

M/S. HDFC ERGO GENERAL INSURANCE CO. LTD. - Opp.Party(s)

27 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-44/2019

IN THE MATTER OF:

Shakuntla Devi

C-6, Gaurav Apartment,

Plot No.1, I. P. Extension,

Patparganj, Delhi – 110092.

…Complainant

Versus

 

1. HDFC ERGO Insurance Company Limited

Ground Floor, Ambadeep Building-14,

Kasturba Gandhi Marg,

New Delhi – 110001.

 

2. The authorized signatory,

HDFC ERGO Insurance Company Limited

1^st Floor, HDFC House,

165-166, Backbay Reclamation,

H.T. Parekh Marg, Churchgate,

Mumbai – 400020.

... Opposite Parties

 

 

Quorum:

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

Date of Institution:13.02.2019

Date of Order   :27.07.2023   

 

ORDER

BARIQ AHMAD, MEMBER

1. The present case has been filed under the provision of the Consumer Protection Act, 1986 (in short CP Act). Briefly stated the facts of the case are that the complainant is owner of Hundai – Santro,  bearing permanent registration no. DL-02-CW-1891, which was insured on 01.09.2018, invoice no. 200342240506000, on insurance total premium of Rs.4575/-, Customer ID: 100048814290, for a period from 17.09.2018 - 00:01 hrs.  to 16.09.2019 – Midnight, which was covered by a policy of insurance issued by the insurer/ Opposite Party  being policy No. 2311200342240506000, effective for the period from 17.09.2018 to 16.09.2019  for an IDV  of Rs.72,171/-.
2. It is alleged that the above said vehicle was stolen on 15.10.2018 in between 03:00 AM to 10:00 AM from Sai Chowk, I.P. Extention, Patpargang,  Madhu Vihar, Delhi, after searching the nearby areas & enquired surrounding people but found no clue about the subject vehicle, the insured immediately informed at 100 number to the PCR from his cell & lodged the complaint at police station Madhu Vihar, Delhi about the subject incident vide FIR/Case Crime No.036816/2018 U/S 379 IPC on 16.10.2018 and intimation of theft to the HDFC ERGO Insurance Company/OP the same day i.e. 15.10.2018 and also information was given to the Transport Department on 17.10.2018. On receipt of intimation of theft  of the subject vehicle, the OP allotted the claim No.C-230018232997 with respect to the claim of the complainant and appointed  investigator to investigate the claim.
3. It is alleged that investigator namely Sh. Neeraj Malhotra, who visited at the address of complainant on 19.10.2018 and took the claimant’s statement and the original RC and the key of the Car.
4. It is stated that investigator opinioned that the vehicle had actually been stolen, during investigation, the investigator found that the registration validity of the insured vehicle Hyundai Santro LE, bearing registration No.DL2CW-1891 was valid till 17/09/2017, which is already expired.
5. It is alleged that the fact finder ( investigator)  failed to find that the official who ensured the vehicle has the pre-knowledge that the registration of the vehicle in question and its model is not renewed and the insured vehicle was pre inspected (this is as per your policy’s  - Important Notice) and accordingly the value of the vehicle was insured for Rs.72,171/- with validity till 16.09.2019, after accepting the total premium of Rs.4575/- .
6. It is alleged that the OP/ insurer on 26.12.2018 repudiated the claim of the complainant, on the allegation that “on 2012 you had purchased second hand vehicle from used dealer, wherein RC provided by you was having a validity till 17/09/2017,, however you have not applied for the renewal of registration of vehicle. There are violations of the terms & conditions of the policy. And closing the claim as “No Claim”.
7. It is stated that there are no violations of terms and conditions of policy because the vehicle was pre-inspected even after knowing the facts that the registration of the said vehicle is not renewed and an insurance policy no.2311200342240506000 was issued by suppressing facts that the insurance of the vehicle can’t be renewed but OP renewed the policy for want of premium of Rs.4575/- which amounts to deficiency in service & unfair trade practice.  Therefore the claim is legitimate and the ensured amount shall be released.
8. It is alleged that the complainant also sent mails dated 20.01.2019 and 30.01.2019 sent to OP  to release claim but they replied on 28.01.2019 and 30.01.2019 in negative.
9. It is further alleged that the above vehicle in question has been insured by the Opposite Party comprehensively and for which the complainant paid amount to the Opposite Party as demanded by them. After accident, refusal the amount as spent by the complainant is clearly unjust, illegal and unfair trade practice. The Opposite Party trying to run away from their liabilities, due to non-payment of the total amount, the complainant is in great tension, mental agony and pain. It is prayed that OP be directed to pay claim amount alongwith interest to the complainant, and compensation for harassment, mental agony and pain with as cost of litigation.
10. Notice of the complaint was issued to OP. OP filed written statement contesting the complaint. Written statement filed alleging inter alia stating that the complainant had approached the OP and made various requests for the issuance of the insurance policy for her vehicle and thereafter on the basis of the repeated requests made by the complainant, the OP has issued an insurance policy vide policy no. 2311200342240506000 for the vehicle i.e. Hyundai Santro having registration no. DL-02-CW-1981 and chassis no. 63088.  It is further submitted that the above mentioned insurance policy was valid from 17.09.2018 to 16.09.2019 (midnight) with an IDV of Rs.72,171/- (Rupees Seventy Two Thousand One Hundred Seventy One only), hereinafter known as the “Said Policy”,  during the continuance of the above said policy, the complainant on 15.10.2018 reported to the OP that the mentioned insured vehicle got stolen on 15.10.2018 from Sai Chowk at Madhu Vihar, Delh – 110092.  It is submitted that the complainant further informed the OP that an FIR dated 16.10.2018 for the theft has also been filed at Madhu Vihar vide FIR No. 036816 under section 379 of the IPC, 1860.
11. It is submitted by the counsel for OP that on receiving the alleged intimation of theft from the complainant, the OP has immediately allotted the claim no. C230018232997 with respect to the claim of the complainant and further promptly appointed an independent investigator to investigate the claim of the complainant thoroughly. It is further submitted that the investigator has submitted their report after thoroughly investigating the claim of claimant and, as per the report of the investigator, the registration of the above mentioned insured vehicle was already got expired on 17.09.2017 and after going through all the requisite documents and the report of the investigator, the OP has repudiated the claim of the claimant on the grounds that the registration of the insured vehicle has already been expired and the same was also communicated to the complainant vide letter dated 26.12.2018.  It is submitted that there was violation of the terms and conditions of the insurance policy and also applicable act and rules.
12. It is further submitted that as per the above mentioned submissions and in the light of the requisite documents like registration certificate and investigation report, the registration of the above mentioned insured vehicle was already got expired on 17.09.2017, therefore the above mentioned vehicle was not registered on the date of theft. It is further submitted that as per Section 39 of the Motor Vehicle Act, 1989 which talks about the 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 the chapter and the certificate of the 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. ”

13.   That it is further submitted that after the repudiation of the above mentioned claim, the complainant has again raised and written objections with respect to the repudiation of her claim with the OP. After receiving the objections raised by the complainant, the OP again thoroughly investigated the above mentioned claim of the complainant, however, due to the above mentioned reasons, the same was repudiated. It is submitted that as per the investigation report, the complainant was found to be not complying with the terms and condition of the above mentioned insurance policy and not adhering in accordance with the section 39 of the Motor Vehicle Act, 1989.
14. It is further submitted that at the time of the issuance of the above mentioned insurance policy, the complainant has neither revealed or disclosed the facts with the OP, that the registration or the above mentioned vehicle has already been expired nor has provided the registration certificate to the OP. The complainant has obtained the above mentioned insurance policy after keeping the OP in dark about the above the said facts. It is submitted that in the light of the above mentioned facts, it is clear that the complainant has with the malafide intention not only cheated the OP but also causes the wrong full gain to her and causes wrongful loss to the OP. It was also stated that the complainant had no insurable interest at the time of alleged loss as registration of vehicle not renewed. It was prayed that complaint is liable to be dismissed.
15. Both the parties filed their evidence by affidavit.
16. We have heard the Ld. counsel for Parties and perused the record.
17. It was argued on behalf of complainant  that the complainant who is senior citizen aged about 88 years, running from pillar to post for her rightful claim, it was submitted that all the relevant documents have been submitted along with the RC of the vehicle at the time of inception of the policy for the year 2018 to 2019, after accepting premium amount, OP have issued policy after thoroughly inspection of the Car, RC and the pollution certificate and after having knowledge of all the documents the insurance policy was issued, therefore, claim is legitimate. She argued that in the present case, it could not be said that the policy holders vehicle was an unregistered one.
18. It was argued on behalf of OP that at  the time of theft, the vehicle was not having valid registered certificate then the claim was not payable to the complainant. The repudiation of claim by the insurer did not amount to deficiency in service on its part.
19. We have perused the record Certificate of Registration of the vehicle/Vehicle Particulars (Annexure-G filed by complainant) in question, the name of the complainant Shakuntla Devi  is/was recorded as registered owner and the Registration of the car valid upto 17^th September 2017 and the Insurance Policy was issued on 01.09.2018 in the name of Complainant/Shakuntla Devi for the period from 17.09.2018 to 16.09.2019. Looking to the above documents, it appears that the vehicle in question was still recorded in the name of Complainant till 17.09.2017, although, OP issued insurance policy from the OP/Insurance Company on 01.09.2018. the complainant never alleged that she applied/sought extension of the registration beyond 17.09.2017.
20. The Car insurance Pre-inspection service in India is mandatory service. The need for pre-inspection for car insurance arises if there is an ownership transfer, or switch from the third party to comprehensive, increased coverage at the time of claim. The pre-inspection is required or mandated by the insurance company in cases where the policy has expired and the car is running without a valid insurance policy. This case is known as an insurance break-in and the car insurance is renewed only after a satisfactory inspection report. It is the insurance company to decide on the acceptance of the risk. In the present case the registration of the car was expired on 17.09.2017 as find out by investigator at conclusion part para 3 at page No.8 in his report dated 12.12.2018. The investigator also mentioned that the current policy is the renewal of the previous policy. The complainant had not opted for the Bumper to bumper insurance cover last year and the previous policy was expired on 16.09.2017. The pre-inspection is required or mandated by the insurance company in cases where the policy has expired or the registration of car expired and the car is running without a valid insurance policy as well as renewed registration.
21. It would also be pertinent to note the difference between the definition of owner in Section 2 (30) of the Motor Vehicles Act, 1988 and the definition of owner in Section 2 (19) of the Motor Vehicles Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Under the old Act owner meant the person in possession of a motor vehicle. The definition has undergone a change. Legislature has consciously changed the definition of owner to mean the person in whose name the motor vehicle stands.
22. In Naveen Kumar vs. Vijay Kumar and Others, a three-Judge Bench of hon`ble supreme Court held that in view of the definition of the expression owner in Section 2(30) of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purposes of the said Act, would be treated as the owner of the vehicle. Where the registered owner purports to transfer the vehicle, but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of his liability as owner.
23. In Surendra Kumar Bhilawe vs The New India Assurance Company ... CIVIL APPEAL NO. 2632 OF 2020 on 18 June, 2020, Hon`ble Supreme Court held "If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, the Insurer cannot evade its liability in case of an accident.” In view of the definition of owner in Section 2(30) of the Motor Vehicles Act, the complainant remained the owner of the said vehicle on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of renewed the registration.
24. In our opinion, Sections 19 and 20 of the Sale of Goods Act, 1930, which deal with the stage at which the property in movable goods passes to the buyer, is of no assistance to the Insurer. There can be no doubt that property in a specific movable property is transferred to the buyer at such time as parties to the contract intend it to be transferred, provided such immovable property is free to be transferred, and/or in other words capable of being transferred. It is not the case that the claim application filed by the complainant was time barred, theft is not genuine. Moreover, the Insurer had, in any case, duly sent its Surveyors/ Assessors to assess the loss. The claim of the complainant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an Accident Information Report, or on the ground of delay in making a claim. In the facts and circumstances, as mentioned hereinabove, it is very much clear that the OP/insurance company had issued insurance policy without pre inspection of the car/vehicle and not followed the MISP guidelines issued by IRDA dated 31.08.2017.
25. We therefore hold OP guilty of deficiency in service & unfair trade practice, OP is directed to pay the compensation/punitive damages for mental agony and harassment of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) to the complainant for issuance of policy without pre-inspection of the vehicle/verification of documents.
26. The order shall be complied within 30 days of the receipt of the copy of the order; otherwise action can be taken against OP under the provision of the Consumer Protection Act.
27. A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission (www.confonet.nic.in).
28. File be consigned to the record room along with a copy of the order.

 

(Poonam Chaudhry)

President

 

 

 

(Bariq Ahmad)                                                                                  (Shekhar Chandra)

    Member                                                                                                      Member