Haryana

Ambala

CC/310/2018

Kulwinder Kaur - Complainant(s)

Versus

NIC - Opp.Party(s)

G.S. Bawa

26 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case No.:  310 of 2018.

                                                          Date of Institution         :    21.09.2018.

                                                          Date of decision   :   26.08.2021.

 

 

Kulwinder Kaur, aged about 53 years, wife of Sh. Amrik Singh, r/o H.No. 1, Vita Enclave, Ambala City, Haryana.

 

                                                                                      ……. Complainant.

                                                     Versus

 

National Insurance Co. Ltd.,115, Guru Nanak Colony, Rajpura, Distt. Patiala, through its Branch Manager.

 

               ..…. Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri G.S. Bawa, Advocate, counsel for the complainant.

Shri Mohinder Bindal, Advocate, counsel for the OP.            

 

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.17,00,000/- i.e. the insured declared value of the vehicle No.HR-37C-6885.
2. To pay Rs.2,00,000/- as compensation for non-plying the vehicle w.e.f 11.05.2015, i.e. the date of the theft of the vehicle.
3. To pay Rs.50,000/- as compensation for mental agony and physical harassment suffered by him.

 

Brief facts of the case are that the complainant is the registered owner of the Truck/Tipper Model-2011, bearing registration No. HR-37C-8885, registered with the Registering Authority, Ambala. The said vehicle was duly insured with OP vide Policy No. 401402/31/14/6300001558 w.e.f. 24.06.2014 to Midnight of 23.06.2015 having insured declared value of Rs.17 lacs. On the intervening night of 10.05.2015 and 11.05.2015,the said vehicle was parked under Highway Bridge, Baldev Nagar, Ambala City and got stolen from there. On 11.05.2015, in the morning it was noticed that the truck got stolen and intimation to this effect was given to Police control room, Ambala immediately and a letter in this regard was issued by District Radio Officer, Police Control Room, office of DCP, Ambala and information of the theft of the aforesaid vehicle was given to the police which was further communicated for all the police stations, all PCRs and Riders at 12:56 hours through VT. Information about the theft of the vehicle was also given to the OP and lateron, an application in this regard was also submitted with the OP. On 28.05.2015, FIR No. 159, under Section 379 of IPC was lodged with the P.S., Baldev Nagar. After lodging the FIR, complainant kept on waiting that the police will trace out her vehicle but it failed to trace the same and finally submitted the untrace report before the Ld. Court of Ms. Neha Yadav, which was duly accepted by the Ld. Court on 31.07.2016, upon the statement of complainant that she is satisfied with the untraced report submitted by Police. The statement of Harmeet Singh, son of the complainant, who lodged the FIR with the police was also got recorded while accepting the untrace report. After theft, FIR was lodged on 28.05.2015 and complainant filed an application with the Registering Authority, Ambala, stating therein that her vehicle got stolen and FIR No.159 dated 28.05.2015 got lodged with the police and requested to put the registration file of her vehicle in safe custody and not to transfer the vehicle to any person without her consent. Thereafter, complainant moved an application to the OP for payment of the claim amount, for the loss suffered by her on account of theft  of aforesaid vehicle but it repudiated the claim on 18.04.2018 on the ground that vehicle was not transferred  in the name of complainant on the date of theft. The OP had wrongly repudiated the claim because the application moved to the RTA, Ambala, by the complainant, for confirming the date of transfer of the vehicle in the name of complainant, was returned in original to her alongwith endorsement by the Secretary, RTA, Ambala that the vehicle is transferred in the name of complainant w.e.f. 11.05.2015. By repudiating the genuine claim of the complainant, the OP has committed deficiency in service.  Hence, the present complaint.

2.       Upon notice, OP appeared through counsel and filed written version, raising preliminary objections regarding maintainability and suppression of material facts.  On merits, it is stated that truck involved was having registration No.HR-37C-6885 and not HR37C-8885 as stated and the complainant was having no right, title or insurable interest in the truck, at the time of theft of the vehicle.  It is further stated that the complainant had taken the policy by misrepresentation.  The alleged insurance policy was initially issued with wrong registration No. HR-37C-8885 which was rectified later on and the said insurance policy was issued subject to that specific condition/capping that complainant will not be entitled to any own damage claim benefit under the policy till the RC is transferred in her name. The complainant is legally bound to abide by the terms of the policy but she did not care to get registered the truck in her name and plied the same without any legal RC and permit. Thus the insurance policy was not effective for the loss as allegedly took place in the intervening night of 10/11.05.2015. The complainant herself is responsible for the whole situation. As a matter of fact, the claim of complainant with regard to the theft of her alleged truck bearing registration No.HR37C-8885 in the intervening night of 10/11.05.2015, was duly entertained in due course but after scrutinizing and elaborating the whole facts, records and evidence, the competent authority was compelled to repudiate the claim. Since the complainant has taken the policy by misrepresentation thus the Op has rightly repudiated the claim within the ambit and purview of the terms and conditions of the policy.  It is relevant to mention here that the complainant approached the office of OP for insurance of truck bearing registration No. HR-37C-6885, which was registered in the name of her husband Sh. Amrik Singh, who died on 19.07.2013. Accordingly, she was advised to get the truck transferred in her name first, since no insurance policy can be issued in the name of a dead person, whereupon complainant informed that she has started the process for transfer of registration of the vehicle in her name. It was specifically told to the complainant that own damage claim will not be payable till the time, registration is transferred in her name. After going through the terms of the insurance policy, complainant submitted the proposal form wherein it was specifically mentioned that her husband had expired and she is getting RC transferred in her name and she know that no benefit will be payable under the policy, till RC is transferred in her name. On the basis of the proposal form, insurance policy in question was issued to her for the period from 24.06.2014 to 23.06.2015. But after getting the insurance policy by misrepresentation, complainant did not care to get the vehicle registered in her name. Thus legally the claim of complainant was not found to be payable because at the time of loss, the complainant was not the registered owner of the vehicle and the permit of vehicle was also not in her name.  Since she was having no right, title or insurable interest in the said vehicle at the relevant time, thus her claim was rightly repudiated by the competent Authority, as per terms of insurance policy. Since, the registered owner of vehicle in question, Sh. Amrik Singh, died on 19.07.2013 and registration and permit of said vehicle were not got transferred in the name of any living person, within a specified period, thus the vehicle was legally unregistered and was similarly, having no permit at the time of its loss. Insurance contract is based on utmost good faith but the complainant firstly managed to get the insurance policy by misrepresentation and secondly, tried to have compensation deceitfully from the OP on the basis of false facts. There is no deficiency in service on the part of OP and complaint may be dismissed with costs. 

3.                The ld. counsel for the complainant tendered affidavit of complainant as Annexure-CA and affidavit of Shri Surjit Singh son of Shri Suhawa Singh, R/o H.No.67, Vita Enclave Ambala City as Annexure-CB along with documents as Annexure C-1 to C-17 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP tendered affidavit of Shri S.C Das, Asstt. Manager & Authorized Signatory, National Insurance Company Limited, Divisional Office, Ambala. as Annexure OP-A alongwith documents Annexure OP-1 to OP-11 and closed the evidence on behalf of OP.

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

5.                From the policy document Annexure C-10, it is apparent that the insurance company issued the policy in question in the name of Smt. Kulwinder Kaur having validity period from 24.06.2014 to 23.06.2015. In the letter dated 10.02.2016 Annexure C-12, it is mentioned that on 11.05.2015, information was given to the SPIO-cum-ACP Ambala that a truck No. HR-37C-6885 got stolen yesterday evening i.e 10.05.2015 from Baldev Nagar, Ambala Cantt. This fact got fortified from the FIR, Annexure C-15, wherein it was mentioned that vehicle in question was stolen on the intervening night of 10.05.2015 and 11.05.2015. In the form No.24 (M.V Registered) Annexure C-16, the transfer date has been mentioned as 11.05.2015, whereas the vehicle got stolen on the intervening night of 10.05.2015 and 11.05.2015. Meaning thereby on the intervening night of 10.05.2015 and 11.05.2015, the vehicle was not registered in the name of the complainant. Vide letter dated 27.02.2018, Annexure C-2/OP-1, the OP repudiated the claim on the ground that the complainant had taken the insurance policy by misrepresentation. At the time of the occurrence of incidence neither the vehicle was registered in the name of the complainant nor was the permit in her name.

                   The learned counsel for the OP has contended that the complainant had taken the insurance policy in question from it by misrepresentation, as such, insurance company is not liable to pay any claim amount to her. To this effect the learned counsel for the complainant has contended that nothing has been produced by the OP to prove that the complainant had taken the policy by misrepresentation. It may be stated here that it is the bounded duty of the insurer, to issue a policy after verifying the facts and after its full satisfaction. Once the insurer had issued a policy in favour of the insured then it cannot avoid its liability.  There is no iota of evidence to prove that the policy has been taken by misrepresentation thus we do not find any force in this contention of the learned counsel for the OP.                   With regard to the plying of a vehicle without registration it may be stated here that bare reading of Section 39 of M.V. Act, which reads 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”. 

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, 1988. Undoubtedly, on the date of theft of the vehicle in question was not registered in the name of the complainant, 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 under Highway Bridge, Baldev Nagar, Ambala City.

          It may be stated here that in column No.16 of the report of the Motor Claim Hub, Annexure OP-4, it is mentioned that permit was valid upto 10.11.2016 and was in the name of Shri Amrik Singh.

Regarding the requirement of a valid permit we have to go through the Section 66 (1) of the Motor Vehicles Act, 1988 which reads as follows:

          " No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used."

 

The violation of Section 66 of M.V. Act, 1988 is punishable under Section 192-A of M.V. Act, 1988, which reads as under:-

192A Using vehicle without permit. —

(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of sub-section (1) of section 66 or in contravention of any condition of a permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, shall be punishable for the first offence with a fine which may extend to five thousand rupees but shall not be less than two thousand rupees and for any subsequent offence with imprisonment which may extend to one year but shall not be less than three months or with fine which may extend to ten thousand rupees but shall not be less than five thousand rupees or with both: Provided that the court may for reasons to be recorded, impose a lesser punishment.

 

It may be stated that the prosecution under Section prosecution under Section 192 r/w Section 39 and Section 192-A r/w 66 of the M.V.Act, 1988, the complainant could be fined maximum for Rs.10,000/-. In the case of National Insurance Co. Ltd. Versus M/s Shyam Indus, decided on 15.02.2018, the Hon’ble National Commission, New Delhi, 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. Further in the case of M/s Aroma Paints Limited & Other Vs. The New India Assurance Company Limited & Ors. 2013 (4) CLT 28 (NC), the Hon’ble National Commission has held that condition of obtaining registration number not laid down in insurance policy. If the complainant did not have the registration he is liable to be punished under Section 192 of the MV Act but insurance claim cannot be repudiated for that contravention. The Insurance company did not enjoy the power of traffic police, it cannot dismiss the claim under the guise of Section 192 of M.V. Act. Section 192 of M.V. Act pertains to the power of the traffic police and the Court, it does not give any power to press this Section into the service while dismissing the insurance claim. Not obtaining registration number is mere negligence and in action on the part of the complainant but it has no effect upon the insurance claim before insurance company. Negligence cannot be acquitted with means-rea, insurance company cannot effected by said negligence of the complainant. Complainant has to be punished for his negligence. Law of the land has to be followed strictly. The law laid down by the Hon’ble National Commission, in the cases referred to above, is fully applicable to the facts of the present case. Even otherwise, non-registration of the vehicle in the name of the complainant and non-holding of the vehicle permit could not have contributed, in any manner, to the theft of the vehicle. In the case of National Insurance Company Limited Vs. Nitin Khandewal, (2008 (11) SCC 256), the Hon’ble Supreme Court, held that since the vehicle in question had been stolen, therefore, in the case of theft of the vehicle, the breach of condition is not germane. 

 In view of the aforesaid discussion, we hold that complainant is entitled for the claim as per the IDV of the vehicle. From the policy document Annexure C-10, it is evident that the IDV of the vehicle in question of Rs.17,00,000/-, thus the OP is liable to pay the said amount to the complainant. OP also liable to compensate the complainant for the mental agony and physical harassment suffered by her.

                   In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP in the following manner:-

1. To pay Rs.17,00,000/- i.e. IDV of the vehicle, to the complainant. 
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant.

 

 

                   The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, the OP shall be liable to pay interest @ 5% per annum on the awarded amount from the date of filing of decision i.e. 26.08.2021, till its realization. Certified copy 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: 26.08.2021.

 

 

 

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