Haryana

Ambala

CC/388/2018

Manoj Bansal - Complainant(s)

Versus

NIA Co. - Opp.Party(s)

Adit Aggarwal

31 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case No.         :  388 of 2018.

                                                          Date of Institution           :    28.11.2018.

                                                          Date of decision              :    31.03.2021.

Manoj Bansal son of Shri Vinay Kumar Bansal, R/o 5, Preet Nagar, Ambala Cantt.

                                                                                      ……. Complainant.

                                                     Versus

1.       The New India Assurance Co. Ltd., New India Assurance Building, 87 MG         Road, Fort, Mumbai-400001, through its Chairman cum Managing Director.

2.       The New India Assurance Co. Ltd, 5406, Shree Complex, 2^nd Floor, Cross          Road No.3, Punjabi Mohalla, Ambala Cantt, through its General Manager.

               ..…. Opposite Parties.         

Before:       Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

       Shri Vinod Kumar Sharma, Member.                                 

Present:       Shri Adit Aggarwal, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for the OPs.           

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.7,20,000/- i.e. the Insured Declared Value (IDV) of the vehicle No.HR-45A-7220 to the complainant.
2. To pay Rs.2,00,000/- as compensation for the mental agony and physical harassment suffered by him.
3. To pay Rs.11,000/- as litigation expenses.

 

Brief facts of the case are that the complainant is a Law abiding citizen of India and was getting his vehicle/truck make TATA Model no.2515 bearing registration No.HR-45A-7220 insured from the OP No.1 for the past many years. He got insured his vehicle vide policy number 35350131150100011550 for the period from 11.03.2016 to 10.03.2017, by premium of Rs.30,411/-, vide receipt No.35350181150000015018, dated 11.03.2016. The OP No.1 is an insurance company and OP No.2 is its branch office. He had purchased the above mentioned insurance policy from the OP No.1, through OP No.2. On 03.10.2016, the insured vehicle/truck was stolen by some unknown person, within the area of police station Panjokhra and when he could not trace his vehicle, the he lodged an FIR No.108 dated 09.10.2016, u/s 379 IPC with the PS Panjokhra. The police had investigated the matter and arrested the culprit and filed investigation report before the Ld. Court and the trial is still pending for adjudication. The stolen truck (insured vehicle) could not be traced by the police and he got lodged a claim with the OPs for indemnification of the loss suffered by him vide claim No. 35350131160190000660. He provided all the documents and other articles like keys etc of the vehicle as demanded by the OPs but they instead of paying the claim amount had closed the claim file as ‘NO CLAIM’ and informed the complainant vide letter dated 27.09.2017. Complainant contacted the OPs several times, but of no use. On 28.08.2018, a legal notice was served upon the OPs, but of no avail. By closing the claim as no claim and by not paying the genuine claim amount, OPs have committed deficiency in service. Hence, the present complaint.

2.                 Upon notice, OPs No.1 and 2 appeared through counsel and filed written version, raising preliminary objections regarding maintainability and not coming to this Forum with clean hands. On merits, it is stated that the truck No.HR-45A-7220 was insured with the OPs for the period from 11.03.2017 to 10.03.2017, the said insurance policy was issued subject to certain terms and conditions and the insured was legally bound to follow the same without any failure. It is further stated that FIR No.108 dated 09.10.2016, was lodged after an inordinate delay of five days. It is further stated that the complainant gave intimation to the OPs only on 06.10.2016 i.e. after a delay of 2 days, as such has violated the terms and conditions of the insurance policy. Mr. Sachin Gulati was deputed as investigator to give his fact finding report. Said investigator met the complainant and asked him to provide certain documents, as he being insured could get the said papers from the Court concerned. OPs also wrote several letters dated 05.04.2017, 15.05.2017, 31.05.2017, 04.07.2017, 09.07.2017 & 27.09.2017 to the complainant for supply of requisite document, but of no avail. The competent authority was compelled to close the claim file as ‘no claim’. The Ops have done so within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws. The complainant was duly informed about the fate of his claim vide letter dated 27.09.2017. The claim of the complainant was also found to be not maintainable and liable to be repudiated since the vehicle was being plied without any fitness certificate, because the fitness certificate got expired much before the date of alleged theft i.e. 05.07.2016. Apart from plying the said truck without a valid fitness certificate, the driver of the complainant who was having the custody of the insured truck at the relevant time behaved negligently and failed to take responsible care to safeguard the vehicle from the any loss as was legally expected from him as he left the alleged insured truck in question carelessly unattended at an isolated place in night hours at the mercy of god and thus has violated the condition No.5 of the Motor Policy. Under the insurance contract an insured is supposed to behave and take all responsible care and precautions to save the insured vehicle from any loss or damage as if the same is not insured. But in the present case, the complainant behaved negligently and failed to take reasonable care as was legally expected from him, by parking the same at an isolated place and left it unattended in the night hours. Thus legally the present claim of the complainant is liable to be repudiated, which was held to be no claim due to non supply of requisite documents. There is not deficiency on their part and complaint filed against them is liable to be dismissed with costs. 

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure-CA along with documents as Annexure C-1 to C-7 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Shri K.K.Sachdeva S.D.M, authorized signatory, The New India Assurance Company Limited, Divisional Office, Ambala Cantt. as Annexure OP-A alongwith documents Annexure OP-1 to OP-12 and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel for parties and have carefully gone through the case file.

5.                It is not disputed that the subject vehicle was duly insured with the OPs for the period from 11.03.2016 to 10.03.2017. It got stolen on 03.10.2016. Accordingly, the complainant lodged the claim with the OPs. In order to settle the claim the OPs vide letter dated 05.04.2017, Annexure OP10, asked the complainant to supply the following documents:-

1.       Copy of Invoice

2.       Untrace report of police duly accepted by the Court.

3.       Latest NCRB report

4.       Keys of the vehicle

5.       Original Policy

6.       Copy of the fitness of the vehicle.

At the outset the Ld. counsel for the OPs vehemently argued that the loss had occurred on 04.10.2016, but inspite of many reminders, the complainant did not supply the requisite documents, as such the OPs left with no other alternative, but to close the case file as ‘no claim’ and the complainant was duly informed vide letter dated 27.09.2017 Annexure C-5. He further argued that even otherwise claim is not payable, because there is violation of terms and conditions of the policy because firstly the driver parked the vehicle in an isolated place and left it unattended, secondly the said vehicle was being driven without the fitness certificate as the fitness certificate got expired much before the date on which the vehicle got allegedly stolen. In support of his version he has placed reliance on the case titled as Bagnel Singh Versus National Insurance Co Ltd. Revision Petition No.622 of 2013 decided on 16.09.2016, wherein Hon’ble National Commission has held that absence of fitness certificate of transport vehicle is fundamental breach of terms and conditions of the insurance policy for which the repudiation of the claim was justified. In the absence of a certificate of fitness, a transport vehicle shall not be deemed to be validly registered for the purpose of Section 39 of the Motor Vehicle Act, 1988 which deals with the registration of the Motor Vehicles. In the absence of the fitness certificate, the truck in question shall not be deemed to be validly registered as per the provisions of the Motor Vehicles Act.

                   On the contrary, the Ld. counsel for the complainant argued that on receiving the letter dated 04.07.2017, Annexure OP5 from the OPs he sent a letter dated 06.07.2017 Annexure OP4, which was duly received by the OPs on 11.07.2017, whereby he explained his position that he purchased the subject vehicle in re-sale, therefore he is not in possession of the invoice. He assured the OPs that he will submit the untrace report on receipt of the same from the police, duly accepted by the Court and also the keys of the vehicle. Inspite of that the OP closed the case as ‘no claim’. After receiving the untrace report, he approached the OPs, for its submission along with keys, but they refused to accept the same. He further argued that the driver parked the vehicle in question in the parking of Panjokhra Sahib Gurudwara, and not at an isolated place and he locked the vehicle properly. It is a case of theft and in the absence of fitness certificate of a transport vehicle there is no fundamental breach of terms and conditions of the insurance policy as the fitness certificate had no nexus with the alleged incident. By not paying the claim amount, the OPs have committed deficiency in service. Ld. counsel for the complainant has placed reliance on case titled as United India Insurance Company Limited Versus Harjinder Kumar, 2019 (1) CLT 541, passed by Hon’ble State Commission Chandigarh, wherein it has been held that vehicle got damaged due to fire, which occurred due to some mechanical failure and not due to any fault or act or omission of the driver, therefore insurance company could not have repudiated the claim of the appellant.

It may be stated here that once the OPs have issued the policy in question, Annexure OP1, after assessing the IDV of the vehicle, then for what good reason the Ops have asked the complainant to provide the invoice. In the FIR Annexure C-3, it is mentioned that the complainant had parked the vehicle in question, in the parking lot of the Panjokhra Sahib Gurudwara, as such the plea of the OPs that the vehicle in question was parked at an isolated place is not tenable. The Ld. counsel for the OPs has contended that plying of vehicle without fitness certificate is violation of Section 39 of the M.V. Act, 1988, therefore insurance company is not liable to pay any claim to the complainant. The Section 39 of M.V. Act, 1988 is reproduced as under:-

“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: 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”. 

Bare reading of Section 39 of M.V. Act, 1988 suggest that driving of un-registered motor vehicle by any person in any public place or any other place is prohibited. The Section casts an obligation on the owner of the motor vehicle, not to permit the vehicle to be driven in any public place or any other place. Violation of this provision is an offence as defined under Section 192 of the M.V. Act. The case of the OPs is that since the vehicle was not having fitness certificate, the insured has violated the Section 39 of the M.V. Act, 1988 which is an offence punishable under Section 192 of the M.V. Act. Undoubtedly, on the date of theft of the vehicle in question, the complainant was not having the fitness certificate, as such, there is violation of Section 39 of the M.V. Act, 1988, which is punishable under Section 192 of the M.V. Act. However, from the contents of the FIR, it is clear that vehicle was stolen while parked in the parking of Panjokhra Sahib Gurudwara. Thus, the question arises, whether the commission of offence under Section 192 of the M.V. Act, 1988 prior to the theft would justify repudiation of insurance claim.

Answer to the above question is in negative.

Nothing has been placed on record by the OPs to establish that in the event of any single violation of provision of Section 39 of M.V Act, 1988 the insured shall loose insurance cover, if loss/damage to the vehicle is caused, subsequent to the commission of said violation punishable under Section 192 of the M.V Act, 1988. Therefore, we are of the view that insurance company cannot take advantage of the offence under Section 192 r/w Section 39 of the Act, committed by the insured by driving the vehicle much earlier to the theft of the vehicle, which was parked in the parking lot of the Panjokhra Sahib Gurudwara. As such the insurer cannot be said to be justified in repudiating the claim. In the instant case admittedly at the time of theft, subject vehicle was not being driven by anyone, thus, at the time of theft, complainant was not violating Section 39 of M.V. Act, 1988. In view of the aforesaid distinction of the facts in the matter of Bagnel Singh (supra) and the instant case, the above noted judgment of Hon’ble National Commission is not applicable to the facts of this case, as it was a case of accident of the subject vehicle, which was being driven without fitness certificate. Therefore, we are of the view that the OPs cannot repudiate the claim on the ground that vehicle was not having fitness certificate at the time of theft. Our view is duly supported by the judgment passed by the Hon’ble National Commission in the case of National Insurance Co. Ltd. Versus M/s Shyam Indus, decided on 15.02.2018, wherein it has been held that basis of repudiation is that the respondent has violated the mandate of Section 39 of the M.V. Act, which is punishable under Section 192 of M.V. Act, 1988. On perusal of Section 192 of the M.V. Act, 1988 we find that violation of Section 39 of the M.V. Act, 1988 in the event of first offence is punishable with a fine which may extend to Rs.5,000/-, but shall not be less than Rs.2,000/- and for the second or the subsequent offence, it is punishable with imprisonment upto one year or with fine which may extend to Rs.10,000/-, but not less than Rs.5,000/-. It is not clear from the record whether the alleged offence of driving the vehicle from the house of the complainant to the hospital was the first offence or the subsequent offence. Thus, for prosecution under Section 192 r/w Section 39 of the M.V. Act the complainant could be fined between Rs.2,000/- to Rs.5,000/-, denial of the insurance cover to the extent of Rs.6,31,750/- for violation of Section 39 r/w Section 192 of M.V. Act to the complainant would thus amount to imposing a punishment much higher than the punishment prescribed under Section 192 of the M.V. Act. Therefore, also repudiation of the claim is not justified.

6.                In view of the aforesaid law, which is fully applicable to the facts of the present case, we held that complainant is entitled for the claim as per the IDV of the vehicle. Accordingly, we allow the present complaint and direct the OPs in the following manner:

1. To pay Rs.7,20,000/- i.e. IDV of the vehicle along with interest @ 5% p.a. from the date of filing of the present complaint till its realization.
2. To pay Rs.5,000/- for causing mental agony and physical harassment to the complainant.
3. To pay Rs.3,000/- as litigation expenses to the complainant.

 

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of certified copy of this order, failing which the OPs shall be liable to pay further interest @ 7% p.a. on the awarded amount from the date of decision 31.03.2021. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 31.03.2021.

 

 

 

          (Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

              Member                                  Member                       President