BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.455 of 2014

Date of Instt. 30.12.2014

Date of Decision :09.07.2015

Dinkar Nayyar aged about 30 years son of Narinder Kumar Nayyar, R/o Mohalla Sikhan, Sultanpur Lodhi, District Kapurthala.

..........Complainant Versus

1. National Insurance Company Limited. B.O.Natwar Business Hub 20, G.T.Road, Panesar Complex, Jalandhar City through its Branch Manager.

2. Maruti Insurance Broking Pvt Ltd, Plot No.1, Nelson Mandela Marg, Vasant Kunj, New Delhi-110071 through its authorized signatory.

3. Lovely Autos, Lovely Mall, Dr.Ambedkar Chowk, Jalandhar through its Authorized Signatory.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.SC Sood Adv., counsel for complainant.

Sh.Raman Sharma Adv., counsel for OP No.1.

Sh.Arun Gupta Adv., counsel for OPs No.2 & 3.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant is aggrieved by the unlawful conduct on the part of the opposite parties, on account of whom the claim of the complainant has not been paid. The complainant purchased Maruti Swift VDI, white colour, having chassis No.672454, engine No.2382321 vide delivery memo dated 16.6.2014 and at the purchase of the said vehicle, the complainant paid the total amount to the opposite party No.3 (including the finance amount), which was received by the opposite party No.3. Initially one hand written quotation was also given by the opposite party No.3, stating therein the total price of the vehicle under various heads;-

(i) Rs.6,13,227/- vehicle cost,

(ii) Rs.35,000/- Logistic charges,

(iii) Rs.22,650/- Insurance (Dap Cap),

(iv) Rs.34,246/- Registration Charges/RC

(v) Rs.500/- Temporary number charges and

(vi)Rs.350/- Auto.

2. Thus, at the time of purchase of the vehicle the complainant paid the aforementioned charges and the vehicle was received by the complainant vide delivery memo dated 16.6.2014. The complainant had paid the sale consideration towards the vehicle, the amount towards the insurance policy and also for preparation of the registration of the vehicle to the opposite party No.3. The opposite party No.3 informed that as per government policy and said procedure the complainant is bound to pay the registration charges to them, who in turn will get the same deposited with the registering authority and accordingly, as per the government policy and as mandated the opposite party No.3 received the amount towards the registration charges and it was incumbent upon them to deliver the original registration certificate within the period, for which the temporary registration bearing No.PB-08-BY(Temp)-5255 was valid. It is pertinent to mention that the complainant completed all the formalities/paper work regarding registration and it was after being satisfied with all the conditions the opposite party No.1 delivered the vehicle. however, the opposite party No.3 kept on dilly delaying the matter regarding preparation of registration certificate on one pretext or other. Unfortunately, the vehicle of the complainant met with an accident on 31.7.2014 and the said fact was brought into the knowledge of the opposite parties and surveyor was also appointed who made the estimate, took the photographs and assured that the claim would be settled as the insurance was Dep Cap insurance. Thereafter, the vehicle was taken to M/s Handa Motors which is authorized Maruti Service Station, Talwandi Road, Sultanpur and eventually final bill dated 23.8.2014 was raised by the said service station. The vehicle was surveyed by the surveyor Jyoti Taneja and the claim was assessed to the extent of Rs.1,27,532/-. Some of the claim has wrongly been disapproved as the insurance was Dep Cap and the same was to cover the entire loss. Thus, the complainant is entitled to total amount of Rs.1,45,463.80/-. Inspite of report of the surveyor, the opposite parties No.1 and 2 for strange reasons repudiated the claim of the complainant on the ground that the accident of the vehicle took place on 31.7.2014 and the registration of the car had been done on 1.8.2014, which was to be done by opposite party No.3, once the charges of the same had been paid by the complainant at the time of purchase of the vehicle. The opposite party No.3 in particular, has acted in the secretive and clandestine manner without informing the complainant about the payment towards the registration charges. The complainant has now come to know that the opposite party No.3 did not deposit the registration charges for all the while and it was subsequently that the opposite party No.3 rushed into operation mode and deposited the amount as late as on 1.8.2014 at 3:43:02 PM, only as per the online record. The opposite party No.3 has wrongly withheld the amount with them and there was inordinate delay and latches on their part. The complainant can not be made to pay for negligence of opposite party No.3, even if the contention of opposite party No.1 is correct and the complainant has abided by the statutory provisions and has paid to the opposite parties No.1 & 3, thus, opposite parties No.1 and 3 are jointly liable. Even the insurance was done through opposite parties No.1 and 3 at the time of purchase of the vehicle. On such like averments, the complainant has prayed for directing the opposite parties to pay him Rs.1,45,463.80/- alongwith interest. He has also claimed compensation and litigation expenses.

3. Upon notice, opposite parties appeared and filed their written replies. In its written reply, opposite party No.2, inter-alia, pleaded that at the time of accident on 31.7.2014, the insured vehicle was being used without registration number violating the Motor Vehicle Act and policy terms and conditions. Even the temporary registration No.PB-08-BY(Temp)-5255 allotted to the vehicle for the period 18.6.2014 to 17.6.2014 (17.7.2014) had expired. The vehicle was got registered by the complainant after the accident and the permanent registration number was allotted to the car is PB-09-V-7866 and the fee for registration of the vehicle was deposited by the complainant on 1.8.2014. Vide letter dated 6.10.2014 answering opposite party No.1 informed the complainant that at the material time of accident, insured vehicle was not having valid registration certificate as car met with an accident on 31.7.2014, whereas date of deposit of registration fee and registration of the car is 1.8.2014 and the claim of the complainant is not payable in terms of section 39 and section 43 of Motor Vehicle Act. The intimation of the loss to car in accident on 31.7.2014 was given to opposite party No.1 on 1.8.2014 and on receipt of intimation of loss to the car Mr.Jyoti Taneja, Surveyor & Loss Assessor was deputed by the insurance company to assess the loss who after conducting the survey submitted Motor Survey Report dated 3.9.2014 with the answering opposite party No.1 assessing the loss to the tune of Rs.1,28,358/-. It denied other material averments of the complainant.

4. In its separate written reply, opposite party No.2, inter-alia, pleaded that the complaint under reply is not maintainable against the opposite party No.2 because as per the insurance policy Dinkar Nayyar son of Narinder Kumar Nayyar, is insured of the Swift New VDI/Maruti Swift VDI BS IV bearing engine No.2382321, chassis No.672454 date of issue 16.6.2014 to midnight of 15.6.2015and the insurer of the said vehicle is National Insurance Company Limited and the opposite party No.2is the only broking agent and has nothing to do with the present claim of the complainant, as such the present complaint against opposite party No.2, is liable to be dismissed. It denied other material averments of the complainant.

5. In its separate written reply, opposite party No.3 pleaded that the complainant purchased Maruti Swift VDI car from the opposite party No.3 and paid the amount of the said car including insurance and registration charges. It is correct that as per government policy the complainant is bound to pay the registration charges to the opposite party No.3 who will get the same deposited with the registering authority. The opposite party No.3 received the registration charges from the complainant. It is pertinent to mention that the complainant wanted the choice number. In order to get the choice number, the complainant has to pay Rs.5000/- extra amount for which the complainant agreed to deposit the extra amount at the time of purchase of the vehicle, but the complainant did not deposit the said amount and promised to deposit the same within few days. The registration charges was deposited on 1.8.2014 by opposite party No.3 because the complainant deposited Rs.5000/- on 1.8.2014 for getting the choice number. It denied other material averments of the complainant.

6. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA and Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C14 and closed evidence.

7. On the other hand, learned counsel for the opposite party No.1 has tendered affidavit Ex.OP1/A alongwith documents Ex.OP1/1 to Ex.OP1/7 and closed evidence. Further learned counsel for opposite parties No.2 has tendered affidavits Ex.OP2/A and closed evidence. Further learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A alongwith copy of document Ex.OP3/1 and closed evidence.

8. We have carefully gone through the record and also heard the learned counsels for the parties.

9. It is not disputed that complainant purchased the car in question from opposite party No.3. It is admitted by opposite party No.3 in its written reply that complainant paid the entire amount including insurance and registration charges. The opposite party No.3 issued temporary registration certificate Ex.C3 which was issued on 18.6.2014 and valid for 30 days from the date of invoice i.e 17.6.2014. It is not disputed that car of the complainant met with an accident on 31.7.2014 i.e after the expiry of the temporary registration certificate. The complainant lodged the claim with opposite party No.1 insurance company who deputed the surveyor and loss assessor who submitted his report Ex.OP1/4. The insurance policy was Dep Cap policy meaning thereby it was zero depreciation policy. This fact is mentioned by the surveyor in his report Ex.OP1/4. The surveyor assessed the net loss at Rs.1,31,358/-. The surveyor has not deducted any depreciation. However the claim of the complainant was repudiated by the insurance company vide letter dated 6.10.2014 Ex.C14 on the ground that the vehicle was being used on the public place without any registration certificate which is fundamental breach of the terms and conditions of the policy. Admittedly, at the time of accident, the complainant was not having any permanent certificate of registration and temporary registration certificate which was valid for one month only has already expired. In its written reply opposite party No.3 has admitted that it deposited the registration charges on 1.8.2014 i.e after the accident. So far as insurance company is concerned it has rightly been repudiated the claim of the complainant as the complainant was plying the car at public place without certificate of registration. In support of this view reference may be made to Ms.Saleena Rani Vs. United India Insurance Company Limited and another, Revision Petition No.4235 of 2014 decided by Hon'ble National Commission on 18.12.2014.

10. Counsel for the complainant contended that opposite party No.3 was at fault in not depositing the registration charges within time and due to inaction of opposite party No.3, the claim of the complainant has been repudiated. On the other hand, counsel for the opposite party No.3 contended that the complainant wanted choice number for which Rs.5000/- were required to be deposited but the complainant did not deposit the same at the time of purchase of the car and same were deposited by him on 1.8.2014 and as such the registration charges were deposited on 1.8.2014. Counsel for the complainant contended that he never wanted any choice number and opposite party No.3 has concocted this story in order to evade its liability. As per notification No.8/1/98-1T2/1107 dated 28.6.2014 issued by Government of Punjab Department of Transport, the opposite party No.3 was required to deposit the registration charges on the same day in State Bank of India online but admittedly it did not do so. There is no application or any other document on record to show that the complainant had opted for choice number at the time of purchase of the car. If the complainant wanted choice number and had paid the price of the car and amount of insurance/registration charges etc then he could also pay Rs.5000/- on the same day. The opposite party No.3 has placed on record one receipt Ex.OP3/1 for Rs.5000/- to show that he deposited Rs.5000/- on 1.8.2014. Counsel for the complainant contended that complainant never opted for choice number nor paid the above said amount to opposite party No.3 and opposite party No.3 has deposited the above said amount on 1.8.2014 just to evade its liability. The complainant has placed on record hand written calculations Ex.C6 wherein there is no mention of Rs.5000/- on account of choice number. The car was purchased by the complainant on 17.6.2014 and registration charges were deposited by opposite party No.3 after the accident on 1.8.2014 but opposite party No.3 has not shown if it ever sent written intimation to the complainant to deposit Rs.5000/- for choice number. So the above version of opposite party No.3 in this regard can not be accepted. So in the above circumstances, we have no hesitation to hold that opposite party No.3 company was deficient in its service in depositing the road tax/registration charges on 1.8.2014 i.e after the accident. It was required to deposit the registration charged on the date of purchase itself in State Bank of India online as per notification of State Government in this regard. So due to fault of opposite party No.3 also the claim of the complainant was repudiated by the opposite party No.1 insurance company on the ground that at the time of accident, the car in question was being plied on public place without any valid registration certificate. Counsel for the opposite party No.3 contended that complainant was also at fault in plying the car without valid certificate of registration. Counsel for the complainant contended that the plea of contributory negligence can not be considered without any specific plea in this regard. In support of this contention, he has relied upon Darshan Kumar Vs. Parvesh Kumar Gupta, 2011(3) Law Herald 2854, U.P.State Road Transport Corporation Vs. Km.Sarita, 1985 AIR (Allahabad) 272, Pongiammal and others Vs. R.Chinnarasu and others, 2014 AAC 557.

11. We have carefully considered the above contentions advanced by learned counsel for the opposite party No.3. The above cited decisions of Hon'ble High Court are relating to cases decided by Motor Accident Claims Tribunal and are on its own facts. The present proceedings are summary in nature. No doubt plea of contributing negligence is specifically required where the determination of contributory negligence depends upon factual position to be decided by evidence. In the present case, no evidence is required to decide that complainant was also at fault as he used the car at a public place without certificate of registration. It is admitted case of the parties that at the time of accident the complainant was not having any permanent certificate of registration. So factual position in this regard is admitted. In our opinion, the complainant was also at fault in plying the vehicle at the public place without having any valid certificate of registration. So in our opinion, complainant as well as opposite party No.3 are to be blamed equally for repudiation of the claim of the complainant by the insurance company. So in the above circumstances, the complainant is held entitled to 50% of the amount as assessed by the surveyor as compensation from opposite party No.3.

12. In view of above discussion, the present complaint is partly accepted against opposite party No.3 and opposite party No.3 is directed to pay 50% of the loss assessed by the surveyor i.e Rs.1,31,358/- to the complainant alongwith 9% interest from the date of filing of the present complaint till the date of payment. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

09.07.2015 Member Member President