Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  31.12.2015

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to pay Rs. 5,98,264/- ( Rs. Five Lac Ninety Eight Thousand Two Hundred and Sixty Four only ) i.e. total insured declared value i.e. I.D.V. along with interest @ 12% to the complainant from the date of loss i.e. 15.01.2009 till its final realization/payment.
2. To direct the opposite parties to pay Rs. 1,00,000/- ( Rs. One Lac only ) for gross deficiency in service, mental agony and cost of litigation.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The present complaint petition has been filed by the complainant for setting aside the letter dated 17.06.2010 by which complainant’s claim for total loss due to theft of his vehicle i.e. Mahindra Bolero bearing No. BR – 1PA – 1711 was repudiated on the ground of not having valid permit at the time of theft.
2. The complainant bought his Mahindra Bolero bearing no. BR – 1PA – 1711 from Sonali Autos Pvt. Ltd. on 24.10.2008. The aforesaid vehicle was hypothecated with Mahindra & Mahindra Financial Services Ltd. , Patna Branch. ( Annexure – 1, 1/A and 1/B )
3. On the very same day i.e. on 24.10.2008, he got his vehicle comprehensively insured from National Insurance Co. Ltd. vide Policy No. 170801/31/08/6300003711 for the period 24.10.2008 to 23.10.2009 under Passenger Carrying Commercial vehicle policy B Package. ( Annexure – 2 series )
4. On 13.01.2009 the complainant applied for fitness of his vehicle by paying Rs. 300/- before the D.T.O., Patna through his agent. The said agent after getting the fitness done applied on 20.01.2009 for registration of his vehicle by paying Rs. 500/- before the D.T.O., Patna along with late fee fine. D.T.O., Patna gave likely registration no. as BR – 1PA – 1711.
5. It has been further asserted that in the case of commercial vehicle, firstly the fitness certificate has to be taken from the M.V.I. i.e. Motor Vehicle Inspector and then registration of the vehicle is permissible and after registration, permit can be issued by the appropriate authority. This is the procedure with regard to the commercial vehicle. as such, no permit can be issued before the Fitness and the Registration is done. ( Annexure – 3 and 3/A )
6. unfortunately in the night of 14-15/01/2009 the aforesaid vehicle of the complainant was stolen from his residence and immediately thereafter police was informed and an F.I.R. bearing Kankarbagh P.S. Case No. 12/09 dated 15.01.2009 was registered U/s 379 I.P.C. against unknown. Thereafter, the police after concluding his investigation submitted charge – sheet bearing no. 106/09 dated 29.03.20098 U/s 379 I.P.C. The police concludes investigation and in the report it is stated that the “ case found true but clueless”. ( Annexure – 4 and 4/A )
7. On the very same day i.e. on 15.01.2009, the National Insurance Co. Ltd. was also informed regarding the said theft. ( Annexure – 5 )
8. Vide letter dated 19.01.2009, the Insurance Company asked he complainant to deposit the intimation letter of D.T.O. In response to the aforesaid letter, the complainant informed the D.T.O., Patna on 28.02.2009 and a copy of the same was given to the Insurance company. ( Annexure – 6 and 6/A)
9. Insurance company sought from the complainant copy of permit, Tax Token and fitness certificate but the complainant was not in a position to submit those documents because of the fact that before the vehicle could have been registered, it was stolen.
10. After long exchanges of letter and correspondences, the Insurance Company finally vide its letter dated 17.06.2010 repudiated the claim of the complainant on the ground that there is no valid permit of the vehicle. ( Annexure – 7 )
11. It is relevant to state that all the documents which were relevant for the purpose of setting the claim was already submitted before the opposite parties for processing the claim. Delay in getting the vehicle registered is only for bonafide reason of getting choice number and for that late registration gee was also paid. Otherwise, the agent in the D.T.O. office was already provided the relevant papers and money for getting the vehicle registered.
12. Under the aforesaid facts and circumstances, opposite parties should be held responsible for committing gross deficiency in service by repudiating the genuine claim of the complainant on the flimsy ground of not having the valid permit at the time of theft. As stated earlier, since vehicle was about to be registered as Fitness was done on 13.01.2009 and no permit can be issued unless vehicle is registered and for getting his vehicle registered, complainant has already applied.         

3. The Opposite Party no. 1 and 2 in their written statement has submitted as follows :-

1. The present complaint as filed by the complainant is not sustainable against these answering opposite parties for the reason that the vehicle which was stolen was being used without any permit at the time of occurrence and the vehicle was carrying passenger. Therefore the opposite party has rightly repudiated the claim of the complaint on the ground of non availability of permit.
2. It is further submitted that the complainant in his letter dated 01.04.2010 has accepted that he never applied for the permit of the vehicle which was stolen although the stolen vehicle was registered and insured as passenger carrying vehicle and the permit is essential for commercial use of the vehicle. ( Annexure – 1 )
3. It is also important to point out that the vehicle was purchased in the month of October 2008 and was stolen in the night of 14/15.01.2009 i.e. after the laps of three months and in those period the vehicle was plying on the road without registration because he applied for registration on 22.01.2009 i.e. after the occurrence took place and this fact is very much clear from the D.T.O. certificate issued vide memo no. 1198 dated 19.02.2010. The D.T.O. has specifically pointed out in his note that the vehicle has already been stolen prior to the application made for registration. ( Annexure – 2 )
4. The brief fact of the case of the complainant as per the complaint case is that on 14.01.2009 the insured parked his jeep on the road side infront of his residence gate which is situated in Bank Road at R.M.S. Colony, Kankarbagh. When he woke up in the morning of 15.01.2009 at about 5 A.M. he saw his Bolero jeep was not on the parking place. He tried to search at his own level but all in vain.
5. Thereafter he lodged the F.I.R. vide Kankarbagh P.S. No. 12/09 dated 15.01.2009 in writing about the theft of vehicle against the unknown and also informed the Insurance Company about the occurrence. The Insurance Company immediately appointed the investigator Sri Dinesh Kumar Sinha to investigate the matter. During investigation, the said investigator found that the stolen vehicle was plying on the road without registration for the last three months and since there was no registration, there was no question of permit although the vehicle was a commercial vehicle and to use the vehicle in a Public Place the permit is required.
6. The said investigator submitted his report dated 16.03.2009 which was minutely examined by the authority of the Insurance Company and observed that there is violation of permit clause of the policy terms and condition as the vehicle does not fall under sub Section 3 of Section 66 of the MV Act and accordingly repudiated the claim of the complainant and the repudiation letter was send to the complainant on 17.06.2010 which is annexure – 7 of the complaint petition.
7. It is also important to point out that as per the own statement of the complainant the vehicle was parked on the road side in the night of 14.01.2009 meaning there by that the vehicle was left un attended on the road side for whole night which is also violation of policy term and condition No. 5 which prohibits to left the vehicle unattended and without taking any reasonable care and hence the claim of the complainant must be rejected on this account itself.
8. There is no deficiency on the part of the Insurance Company and the repudiation is bonafide and based on a reasoned ground.
9. There is no question of any deficiency of service on the part of this opposite party as per the facts mentioned in above paragraphs.

The facts asserted by both parties have been narrated in the aforementioned paragraphs but in order to record our finding certain facts are narrated again even at the cost of repetition.

It is the case of the complainant that he has purchased a Mahindra Bolero Vehicle after being financed by opposite parties. Annexure – 1 is sale certificate dated 24.10.2008 and Annexure – 1A is also retail invoice. These documents clearly prove the aforesaid assertion of the complainant that the complainant vehicle was hypothecated. Annexure – 1B is only gate pass of Sanali Auto Pvt. Ltd. which shows that after the purchased the vehicle was taken out from the custody of the seller.

It further transpires from Annexure – 2 series that the aforesaid vehicle was insured with opposite parties and the covering period was from 24.10.2008 to 23.10.2009. From annexure – 3 series it appears that the complainant applied to D.T.O. through agent for Fitness and the aforesaid agent after getting the fitness certificate has applied to D.T.O. ( Annexure – 3A ) for registration of aforesaid vehicle.

It is further case of the complainant that the aforesaid vehicle was parked near the residence of the complainant in the night of 14-15.01.2009 and when complainant and his family members woke up in the morning of 15.01.2009 it came to light that aforesaid vehicle was stolen and thereafter F.I.R. was lodged in this connection in the Kankarbagh Police Station on 15.01.2009 it self which will appear from Annexure – 4. From Annexure – 4A it is crystal clear that the Police after investigation has filed the charge sheet bearing no. 106/09 dated 29.03.2009 stating therein that occurrence is true but clueless.

From perusal of Page – 27 of the complaint petition it is crystal clear that aforesaid final report was accepted by Learned C.J.M., Patna. It further appears from Annexure – 5 that the complainant immediately informed to the Insurance Company ( Opposite parties ) about the aforesaid theft and thereafter certain documents were demanded from the complainant Vide Annexure – 6 by opposite parties.

It further transpires that pursuance to Annexure – 6 issued by opposite parties, the complainant has also deposited intimation letter and finally the complainant has also annexed annexure – 7. From perusal of annexure – 7 it appears that the claim of the complainant stands repudiated by opposite parties on the ground that there was no permit issued by competent authority. It has been asserted by opposite party that the complainant in his letter dated 01.04.2010 ( the copy of which has also been annexed by opposite parties as annexure – 1 ) has accepted that he never applied for the permit of vehicle which was stolen although the stolen vehicle was registered and insured.

The second ground of the opposite parties as will appears from Para – 2 and 3 of written statement is that the vehicle was plying on the road without registration because the complainant applied for registration on 22.01.2009 as will appear from annexure – 2 annexed by the opposite parties in their written statement. It has been further asserted that during the investigation it was found that the aforesaid vehicle was plying on road without registration certificate.

It has been submitted by the learned counsel for the complainant that in the case of commercial vehicle firstly the fitness certificate has to be taken from MVI ( Motor Vehicle Inspector ) and thereafter registration of vehicle is permissible and after registration the permit can be issued by appropriate authority.

It has been further submitted that unfortunately in the night of 14-15/01/2009 the vehicle was stolen and hence the permit could not be obtained. He further submits that this fact is also clear from registration certificate of the D.T.O. dated 19.02.2010 the copy of which has already been annexed with the written statement of the opposite parties.

It is needless to say that in written statement of opposite parties the aforesaid procedure of issuing permit has not been disputed or challenged by the opposite parties.

It is needless to say that from annexure – 3 of complaint petition it is crystal clear that the complainant has applied through agent for fitness certificate on 13.01.2009 but the agent applied for registration on 20.01.2009 ( Vide annexure – 3A of the Complaint petition ) after obtaining the fitness certificate and in the meantime the aforesaid vehicle was stolen in the night of 14-15/01/2009. it is also crystal clear from annexure – 2 annexed by the opposite parties in their written statement the aforesaid registration certificate was granted on 19.01.2010.

It appears that as the vehicle was stolen prior to issuing registration certificate hence there is no question of issuing permit for the vehicle of the complainant.

It further transpires that the complainant applied through agent on 13.01.2009 as will appear from receipt ( vide annexure – 3 of complaint petition ) and after receiving the fitness certificate the agent applied for registration on 20.01.2009 hence the fitness certificate must have been received between these period ( covering from 13.01.2009 to 20.01.2009 ). There is no assertion that when the fitness certificate was granted but this delay of more than 7 days is not alarming so as to throw the complaint of complainant.

The complaint has relied on citation reported in “ (2014) CJ 565 NC i.e. the New India Assurance Company Ltd. Vrs. Rajesh Yadav”.

In this context it would be appropriate to refer a citation reported in Civil Appeal No. 3409 of 2008 ( Arising out of SLP ( Civil ) No. 20902 of 2006) 08.05.2008 National Insurance Company of India ………… Appellant. Vrs. Nitin Khandelwal ………………… Respondent.

It is true that the case relates to theft of vehicle without driver having proper D.L. but in Para – 13 of the aforesaid judgment the Hon’ble Court have been pleased to observe as follows :

“In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant – Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the Insurance Policy, the appellant – Insurance Company ought to have settled the claim on non – standard basis. The Insurance Company cannot repudiate the claim in tot in case of loss of vehicle due to theft”.

So far the citation referred by the Insurance Company is concerned with due respect it is stated that the facts of the aforesaid citation does not apply in the facts and circumstances. In my opinion the law declared by Hon’ble Apex Court in the aforementioned citation is applicable in the case.

It goes without saying the vehicle was stolen not from any mid way but the same has been stolen from the door of the complainant hence there is no fault of the complainant.

In view of the facts and circumstances we find and hold that by not redressing complainants grievance on the pretext of not filling permit etc. the opposite parties have committed deficiency. No purposewill be served in repeating the facts again and again.

For the reason made above we direct the opposite parties to pay the claim of the complainant on non standard basis by paying the 75 % insured of amount within the period of three months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 12% per annum to the complainant on the aforesaid amount till the final payment is made.

The opposite parties are further directed to pay Rs. 15,000/- ( Rs. Fifteen Thousand only ) to the complainant by way of compensation and litigation costs within the aforesaid period of three months.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                                   President