BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.194 of 2021

      Date of Instt. 28.05.2021

      Date of Decision: 19.01.2023

Paramjit Singh, aged about 45 years, son of Shri Surmukh Singh, SCF-86/87, Urban Estate, Phase-I, Jalandhar City.

..........Complainant

Versus

1.       National Insurance Company Limited, having its Registered     Office at 3, Middleton Street, Kolkata-700 071 through its   General Manager/Chairman.

2.       National Insurance Company Limited, Divisional Office-II,      Panesar Complex, G. T. Road, Jalandhar, through its Divisional       Manager.

3.       National Insurance Company Limited, Branch Office No.III,    Guru Ravi Dass Chowk, Nakodar Road, Jalandhar through its           Branch Manager.

….….. Opposite Parties

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. M. S. Sachdev, Adv. Counsel for the Complainant.

Sh. A. K. Arora, Adv. Counsel for OPs No.1 to 3.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that he had purchased a vehicle i.e. car make Skoda Rapid bearing Engine No.603630, Chassis No.106191. Initially the said vehicle was having Temporary number bearing CH-40-T-4844. The said vehicle was got insured from the OP No.3 on the date of purchase till one year and thereafter, the complainant was busy in his personal work, so unfortunately, he could not get the insurance done of the vehicle for the second year i.e. for the year 2018-2019 nor the car could be got registered by way of permanent registration number. It is to be mentioned herein that the complainant was in fact, wanted to have Fancy number, so he was waiting for the fancy number to be given by the Regional Transport Authority, Jalandhar. However, later on, as the Fancy number was very expensive, so the complainant got the insurance effected from the date 03.12.2019 to 02.12.2020 from the opposite party No.3 vide Insurance Policy No.404305311910001906. The complainant also applied for permanent registration number which was granted to him as per the rules bearing No.PB-08-EM-4796. At the time of insurance which was effected by the opposite party No.3 on 03.12.2019 through its agent namely Ashwani Kumar who had been duly authorized by the company for doing the insurance of the vehicles and all the formalities were completed which included the clicking of photographs and thus insurance was made valid after paying of the premium with effect from 03.12.2019 to 02.12.2020. Unfortunately, the vehicle met with an accident on 31.01.2020 at about 6 AM near under construction over bridge which was at a short distance from Phagwara on Jalandhar to Phagwara G.T. Road, District Kapurthala and the said vehicle was being driven by Shri Lakhwinder Singh son of Shri Puran Singh who was having valid driving license. The said vehicle at the time of accident was being driven by Lakhwinder Singh while his wife Sukhwinder Kaur was sitting in the car. When the car reached the spot of accident, a stray animal appeared in front of the car and in order to save the animal, brakes were applied which led to the effect that the car went out of control and turned towards the left and dashed against the divider and other construction material and it was damaged from the front and the left side. It is to be mentioned herein that the original registration number was granted by the R.T.A. Office on 24.01.2020 and at the time of registration of the vehicle also, due inspection was done by the R.T.A. Authorities. The registration is not made without inspection of the vehicle and the said vehicle was duly inspected. immediately, the DDR No.31 dated 01.02.2020 was got registered with Police Station City, Phagwara with regard to the accident and the said information was given by Lakhwinder Singh who was driving the vehicle in question. The owner of the vehicle i.e. the complainant was not in knowledge of any other person, rather he was knowing only Ashwani Kumar who was having Agency No.9000177624 and whose mobile number was known to the complainant i.e. bearing no.98141-81905. The information about the accident was given to Shri Ashwani Kumar on 01.02.2020 itself and even the photographs of the accident were also shared with Ashwani Kumar who had informed that he would inform the concerned officials of the opposite party No.3. It has also transpired that Ashwani Kumar had informed about the accident to the opposite parties on 01.02.2020 itself. Thereafter, all the formalities required for the fulfillment of the claim were completed by the complainant as per the asking of Ashwani Kumar and from time to time whatever notices were being received and the documents which were being sought, were complied with. Even some investigator had come to meet the complainant and all his formalities were completed by the complainant and the name of the said investigator was Shri Zora Singh Deol. The vehicle of the complainant was total loss. However, the complainant was shocked to receive a letter dated 23.02.2021 from the opposite party No.3 whereby it was claimed that the claim of the complainant has been repudiated on two grounds:-                                  1.                Firstly, that though the accident had taken place on 31.01.2020 but the information was given to the opposite parties as per the said letter on 25.02.2020. In fact, the said allegation is totally false because information regarding the accident was given to the agent of the parties on 01.02.2020 itself and he had also acknowledged the said information. Even the photographs of the accidental vehicle were shared with Ashwani Kumar who had been working as agent and who was only known to the complainant as he was the one who had done the insurance. Even otherwise, it was duty incumbent upon Ashwani Kumar, Agent to intimate the company and it appears that it has been wrongly mentioned because on enquiry, the agent Ashwani Kumar had admitted that he had given information to the Branch Manager of the opposite party No.3, about the accident on 01.02.2020 itself.

2.                Second reason, vide which the claim has been rejected, is that the vehicle remained unregistered for about 2 years and six months. In fact, such an objection cannot be raised by the insurance company because on the day when the vehicle was insured, the vehicle was registered and all the formalities were completed by the complainant for getting the permanent registration number PB-08-EM-4796 which was allotted to him on 24.01.2020. Once all the formalities were completed and all the formalities were completed before registration, such an objection could not be taken up by the insurance company. Even if there was delay in the registration, the same has ratified by the concerned department who had registered the vehicle. It is also to be mentioned herein that when the insurance was made on 03.12.2019 and the premium amount was received by the OP No.3, the vehicle was having temporary number and in case, at that stage there should have been objection that the insurance cannot be done without permanent registration then the situation would have been different but once the premium amount of insurance was received and the vehicle was having temporary number on 03.12.2019 then the opposite parties are estopped from raising such objections. Even otherwise, before accident, the vehicle in question was duly registered and the formalities for registration were fulfilled. The vehicle of the complainant is total loss vehicle and the same is lying in the garage of M/s Hans Motors. 66 Ft Road, Jalandhar and the complainant is paying Rs.300/-per day to M/s Hans Motors from the date of accident till today. Delay in deciding the claim is in fact, deficiency in service and even otherwise, it is unfair trade practice on the part of the opposite parties in repudiation of the claim of the complainant and that also on illegal and unlawful grounds. As already mentioned above, the information to the agent of the OPs, is to be considered as information to the company and the WhatsApp chat etc has already been given alongwith photographs to the company which are lying in their official file and even the said information was given to the investigator, Zora Singh Deol when he came for investigation. Frustrated with the act and conducts of the opposite parties, even before filing the present complaint, the complainant got served a legal notice dated 06.03.2021. In response to the said legal notice, a false and frivolous reply dated 20.03.2021 issued by the opposite party No.3 was sent by the OPs whereby the similar aspect was reiterated by the OPs in the repudiation letter and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay an amount of Rs.7,00,000/- to the complainant as per claim lodged by the complainant with the OPs i.e. the total IDV of the vehicle with interest @ 12% per annum from the date of lodging the claim i.e. 01.02.2020 till upto date i.e. 31.03.2021. Further, OPs be directed to pay parking fee of the damaged vehicle lying parked at M/s Hans Motors, Jalandhar @ Rs.300/- per day from 01.02.2020 to 31.03.2020 i.e. 455 days, total Rs.1,36,500/-. Further, OPs be directed to pay Rs.1,00,000/- as taxi charges paid by the complainant on account of non availability of his own car. Further, OPs be directed to pay Rs.2,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.15,000/- as legal notice charges and Rs.55,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that at the time of issuance of insurance policy for the period 03.12.2019 to 02.12.2020 of the Car of the complainant by the branch office of opposite party no.3, the car in question was without registration certificate and was not registered, with new Registering Authority and the same was not disclosed by the complainant to the opposite parties. At the time of insurance of the Car by the complainant with the opposite party, vehicle No.CH40-T-4844 was disclosed to the OP No.3 and the same find mention in the policy of insurance, placed by the complainant along with the complaint. However the policy clauses, which is a part of policy of insurance has not been placed on the record by the complainant. As per settled law and procedural manual of OD Claim, the policy of insurance of a particular vehicle cannot be renewed without a valid registration number. As per Section 39 of the Motor Vehicle Act, nobody can drive a motor vehicle at a public place without registration certificate. The car of the complainant remained unregistered for two years and six months and the temporary registration number which was disclosed by the complainant in respect of the car in question to opposite party no.3 at the time of taking of insurance policy was only for the period of one month. Thus, at the time of taking of insurance policy, the car of the complainant was without registration certificate and no insurance of the car, which was without any registration certificate can be done by the insurance company and as such at the time of insurance of the car, both the parties were under mistake of fact qua the registration of vehicle and as such the contract of insurance between the complainant and the opposite party is void and is not enforceable. Thus the complaint filed by the complainant on the basis of void contract i.e. insurance policy issued by the opposite party in favour of the complainant is not maintainable and is liable to be dismissed. It is further averred that on the receipt of information/intimation dated 25.02.2020 qua the loss caused to the vehicle i.e. car of the complainant in the alleged accident on 31.01.2020 at about 6.00 AM. Sh. Jogesh Kumar Mechanical Engineer, Surveyor and Loss Assessor, was appointed as surveyor by the OP, who has submitted their survey report 28.07.2020 assessing loss to the vehicle to the tune of Rs.6,16,290/-. Since the total IDV of the vehicle was Rs.7,00,000/- and the repair cost of the vehicle was Rs.6,16,290/-, which was more than 75% of the IDV and as such Addendum report dated 22.09.2020 was submitted by the said surveyor of the company, vide which he has advised the insurance company i.e. OP to settle the claims on the ‘Net of Salvage Basis’ with RC i.e. for Rs.4,56,790/- i.e. Wreck of the vehicle was to be kept by the complainant, whose value was Rs.2,40,000/-. Since the vehicle was not registered at the time of alleged accident and the contract of insurance was void, since the insurance policy was issued by the opposite party under a Mistake of Fact and further intimation to the insurance company qua the loss caused to the company was given by the complainant on 25.02.2020, thus the file of the claim of the complainant was filed as ‘No Claim’ and letter dated 23.02.2021 was issued to the complainant. Thus, the complaint is liable to be dismissed. On merits, the factum with regard to insurance of the vehicle by the OP is admitted and the fact regarding accident of the vehicle is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

6.                The complainant is the owner of the vehicle Skoda Rapid as per Ex.C-2. It is not disputed that the vehicle was got insured from the OP as per Ex.C-1. As per the submission of the complainant earlier the vehicle was got insured for one year from the date of purchase, but he could not get the insurance done for the second year i.e. for 2018-19. He got the vehicle insured from 03.12.2019 to 02.12.2020. The complainant has alleged that the vehicle met with an accident on 31.01.2020 when Lakhwinder Singh was driving the vehicle. He was having valid driving license at the time of accident. The driving license of Lakhwinder Singh has been proved as Ex.C-3. The matter was reported to the police and the DDR was registered vide Ex.C-4. The same was registered on 01.02.2020. The complainant lodged the claim, but the same was repudiated on the ground that the accident took place on 31.03.2020, whereas the OP was intimated about the accident on 25.02.2020 as such there is a delay in reporting the matter to the insurance company. Another reason for repudiating the claim was that the vehicle remained un-registered for about two years and six months. The repudiation letter has been proved on record Ex.C-5. As per Ex.C-5, admittedly the policy was issued on 03.12.2019 and the vehicle met with an accident on 31.01.2020. The vehicle was allegedly having temporary number. This is a breach of terms and conditions of policy. Legal notice has been proved as Ex.C-6 and reply to the application has been proved as Ex.C-10.

7.                To rebut the case of the complainant, the OP has produced on record the Standard Form for Private Car Package Policy Ex.OP1-3/1. Ex.OP1-3/2 is the document, wherein it has been specifically mentioned in the Provision-M Clause 2, ‘in no case should a policy be renewed without a valid registration number’. Further, in Provision-N, it has been made mandatory for the OPs to inspect the vehicle which is called Pre-Acceptance Inspection when there is a break in insurance.

8.                In the present case, it is alleged by the complainant that earlier he got insured the vehicle from the date of its purchase, but could not get the insurance for the second year i.e. for the year 2018-19, meaning thereby that there is a break in insurance. The insurance was done on 03.12.2019 and on 03.12.2019, the vehicle was having temporary number, meaning thereby that it was not having permanent registration number at that time. As per the Provision-N, the policy cannot be renewed without valid registration number, so this is a fault on the part of the OP to renew or to issue a fresh policy without verifying about the permanent registration number. The vehicle met with an accident on 31.01.2020 as per Ex.C-4 and the information was given to the police on 01.02.2020 i.e. on the very next day. As per Ex.C-2, the vehicle was registered on 24.01.2020 having permanent registration number. This shows that on the day of the accident, the vehicle was having permanent registration number, therefore, the provisions referred by the OPs are not applicable in the present case. The ground taken by the OPs that at the time of accident, the vehicle was having temporary number is without any basis and the same is wrong and illegal. The OP can take the benefits of their own wrongs.

9.                So far as the ground for repudiating the claim that the vehicle remained un-registered for about two years and six months is concerned, it is again not a legal ground as if the vehicle has remained unregistered for such a long period, then the action is to be taken by the Transport Authorities or the concerned authorities. The insurance company has nothing to do as on the day of accident the vehicle was registered and when the policy was issued, the OPs were satisfied that is why the policy was issued, therefore this ground again is wrong and illegal and is not available with the OP.

10.              With regard to another ground for repudiating the insurance claim that the information was given late by the complainant to the OP is again of no value as per the submission of the complainant and affidavit of the complainant, the complainant informed Ashwani Kumar, their agent to inform the OPs regarding the accident and as per Ashwani Kumar, he duly informed the OP, but the OP has denied this fact. There is no document or no affidavit on the record to rebut this contention of the complainant. Even otherwise, if the information is given on 25.02.2020 as alleged, the same was thoroughly considered and vehicle was duly inspected by their surveyor. As per the report of the Surveyor, appointed by the OP, Ex.OP1-3/3 dated 28.07.2020, he found the claim of the complainant coincides with the cause of accident. There is no exaggeration and no ground that inspection could not be done due to delay nor there is any allegation that there is any tampering of the vehicle. The surveyor has inspected the vehicle damage, RC, driving license and took photographs also. He found everything in order and he has specifically reported that none of the assessed losses pre-existed except front bumper. With regard to RC and permanent registration number also, he gave his opinion that the vehicle was duly registered. He has given the opinion and assessed the total loss with having RC and without RC also. In the present case, the complainant was having RC and there was a total loss of the vehicle. The defence taken by the OP that the surveyor assessed the loss to the tune of Rs.6,16,290/- was more than 75% of the IDV of vehicle, is not tenable as as per Ex.OP1-3/3 the loss of Rs.6,16,290/- was assessed on total loss basis without RC, but in the present case, the loss is with RC and the same is Rs.4,92,790/- as per Ex.OP1-3/3 which is less than 75% of the IDV. The report given by the surveyor on 22.09.2020 for Rs.4,56,790/- was with RC, but this report was given after two months of the previous assessment as the buyers have offered to buy accident vehicle at higher value, the wreck was to be kept by the complainant. There is no ground to discard the previous report given by the surveyor. So from all the angles, the case of the complainant is fully proved and he is entitled for the relief.

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed. Since, the vehicle is of total loss and OPs are directed to pay insured amount of Rs.7,00,000/- as per policy Ex.OP1-3/1 to the complainant with interest @ 6% per annum from the date of lodging the claim i.e. 01.02.2020, till its realization. The complainant is directed to handover salvage and cancelled RC to the OP. After receipt of salvage and RC, the OPs directed to pay the amount within 10 days. Further, OPs are directed to pay a compensation to the complainant for causing mental agony and harassment, to the tune of Rs.10,000/- and further directed to pay litigation expenses of Rs.5000/-. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                             Jaswant Singh Dhillon                    Dr. Harveen Bhardwaj     

19.01.2023                    Member                                 President