STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.  Oriental Insurance Company Limited, Nangal, Nangal Dam-140124, Tehsil Anandput Sahib, District Ropar.

2.  Oriental Insurance Company Limited, Regional Office SCO No.109-111, Surendra Building, Sector 17-D, Chandigarh.

Both 1 & 2, through the Chief Regional Manager, The Oriental Insurance Company Limited, SCO No.109-111, Surendra Building, Sector 17-D, Chandigarh.                                               

……Appellants.

V E R S U S

1.  Pearls Buildwell Infrastructure Ltd., having registered office at 409-410, PADMA Tower-II, Rajindra Place, New Delhi and Regional Office at SCO No.76, Phase-IX, Mohali, through its Authorized Representative Sh. Ajay Kumar Sharma (Assistant Manager-HR & Legal).

2.  M/s Goel Motors (P) Ltd., B-55, Phase-VI, Indl. Area, Opposite Verka Milk Plant, SAS Nagar, Mohali.

3.  M/s Snow View Automobiles Pvt. Ltd., Opposite Govt. Printing Press, National Highway No.22, Ghora Chowki, Shimla, Himachal Pradesh

....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER

Argued by:  Sh.Aftab Singh, Advocate proxy for Sh.Ashwani                Talwar, Advocate for the appellants.

              Sh.Navdeep Singh, Advocate for respondent no.1.

              Respondents No.2 and 3 (Service already dispensed          with vide order dated 18.05.2011)

PER JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 08.04.2011, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint and directed OP-1 as under:-

“(i)   The OP No.1 shall pay the full IDV (Insured Declared Value) of Rs.5,46,820/- to the Complainant, as the vehicle in question was a brand new vehicle and had hardly been used by the Complainant, as the same was stolen within one month of its delivery to the Complainant.

(ii)   The OP No.1 shall further pay a compensation of Rs.50,000/- to the Complainant for gross deficiency in service and indulgence in an unfair trade practice on account of totally unfair and illegal repudiation of the theft claim of the Complainant.

     (iii)    The OP No.1 shall also pay a sum of Rs.7,000/- as litigation costs to the Complainant.

              The aforesaid order be complied with by the OPs, within a period of 45 days from the receipt of its certified copy, failing which OP No.1 shall pay the amount of Rs.5,96,820/-, as stated at (i) and (ii) in the foregoings, along with interest @18% per annum, from the date of repudiation of the claim i.e. 18.09.2009, till the date of realization, besides paying the costs of litigation of Rs.7,000/-”.

2.               The facts, in brief, are that the complainant, intended to purchase a Mahindra & Mahindra Bolero LX Sport DI 7STR 2WD vehicle, from OP No.2. For the said purpose, the complainant, got the quotation of the vehicle, from OP No.2 on 06.11.2008, for the amount of Rs.5,75,600/- (Annexure C-2). Thereafter, the complainant, gave Purchase Order to OP No. 2 on 10.11.2008, alongwith a demand draft of Rs.5,75,600/- (Annexure C-3). The same was duly acknowledged by OP No.2, vide receipt (Annexure C-4), with a promise, that the said vehicle, shall be delivered within two weeks. It was stated that even after making the full payment, for the delivery of aforesaid vehicle, it(OP-2), refused to deliver the same, on the pretext of non-availability of the same, with it. It was further stated that instead, OP No.2, proposed to the Complainant, to get the vehicle delivered through some other Agency, on the same price for which it (Complainant), agreed, and, accordingly, it(OP No.2) informed the Complainant, that the vehicle, in question, shall be arranged from OP No.3, within two weeks. It was further stated that, with a view to obtain the vehicle from OP No.3, as desired by OP No.2, the complainant once again got prepared a revised demand draft of the same amount, in the name of the former, as the latter had returned the amount, deposited by it earlier, to him, by way of cheque. It was further stated that, finally the said vehicle was delivered to the complainant, at Mohali, by OP No.2, on 11.12.2008, vide its Gate Pass no. 1641, dated 11.12.2008 (Annexure C-7). It was further stated that, with a view to meet the requirements of OP No.2, the complainant, prepared a revised purchase order, in the name of OP No.3, on 20.12.2008, alongwith payment of Rs.5,75,600/- vide DD(demand draft) dated 24.12.2008, in its (OP No.3) favour. Subsequently, OP No.3, supplied the back dated invoice of 01.12.2008, as well as, sale certificate of the same date to the Complainant, to complete the process of sale by it. Accordingly, the complainant, got the vehicle, insured from OP No.1 vide cover note dated 11.12.2008, for the period from 11.12.2008 to 10.12.2009, for an IDV of Rs.5,46,820/-. The complainant, also filled up form no. 22, for getting his vehicle registered with the Registering Authority. It was further stated that while issuing the insurance cover note, OP No.1 had insured the vehicle, only with Engine no. and Chassis no. and marked the same as ‘New’ against the column Registration Mark & Place.

3.               On the intervening night of 3rd/4th Jan.,09, the said vehicle, was stolen and information, in this regard, was given to the Police, as well as, OP No.1 on 04.01.2009. F.I.R. No.7 dated 05.01.2009, Annexure C-12, in this regard was also got  registered by the complainant, at Police Station Mohali. It was further stated that, thereafter, the complainant filed the theft claim with OP No.1 on 07.01.2009 (Annexure C-13). After a thorough investigation, the Police Authority, failed to trace the vehicle. Accordingly, the untraced report was submitted by the Police on 23.04.09 (Annexure C-14). It was further stated that after the filing of the theft claim, by the complainant, with it(OP No.1), it got the matter investigated through Investigator Sh. A.P. Singh. Later on, the claim was rejected by OP-1, vide letter of repudiation dated 18.09.2009 (Annexure C-15), on the ground, that, he had purchased the vehicle on 01.12.2008, and the temporary number allotted to the same, at the time of purchase, was valid for one month only, and expired on 31.12.2008. It was further stated that since, the vehicle was not registered at the time of theft, therefore, the claim was untenable. On receipt of the said letter of repudiation, the complainant wrote back to OP No.1, explaining the entire position again, that there was no mention of temporary registration number, in the cover note, and in the column of Registration, Mark & Place, only ‘New’ was mentioned by them. He also explained to them, that it was only on 11.12.2008, that the delivery of the vehicle, was given to him vide Gate Pass referred to above, but even after re-examining the matter, the claim of the complainant, was repudiated by OP-1. It was further stated that the aforesaid acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice.

4.               When the grievance of the complainant was not redressed, left with no other alternative, a Complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed by the complainant.

5.               OP-1, in its reply, stated that the claim of the complainant, was re-considered and finally repudiated, on the ground, that at the time of theft of the vehicle, it was not registered with the Registering Authority. It was further stated that the vehicle, was delivered to the complainant on 1.12.2008 and not on 11.12.2008. It was further stated that the temporary registration number was given by OP-3, M/s Snow View Automobiles Pvt. Ltd., Shimla, Himachal Pradesh, to the complainant, in respect of the vehicle on 01.12.2008 and, as such, it could not be imagined, that the delivery of the vehicle, was given on 11.12.2008. It was further stated that since, the temporary number of the vehicle, expired on 30.12.2008 and the said vehicle, was not got registered thereafter, there was a breach of terms and conditions of the policy, as also, of the provision of law and accordingly, the claim was rightly repudiated. It was further denied, that there was any deficiency, in rendering service, or indulgence into unfair trade practice, on the part of the OP-1.Remaining allegations, were denied, being wrong.

6.               On 15.03.2010, Sh.Mukesh Vaid, Authorized Agent appeared on behalf of OP-3, and on 27.04.2010, Sh.Simarnjeet Singh, Advocate, appeared on behalf of OP-2, but did not file reply and evidence. Thereafter, neither they nor any duly authorized representatives, on behalf of OP-2 and OP-3, appeared. Accordingly, OP-2 and OP-3, were proceeded against ex-parte, by the District Forum.

7.               The complainant, as well as, OP-1, led evidence, in support of their case.

8.               After hearing the Counsel for the complainant, as well as, OP-1 and, on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

9.               Feeling aggrieved, the instant appeal, has been filed by the appellants/OPs.

10.            We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

11.            The Counsel for the appellants, submitted that the vehicle was purchased by the complainant on 01.12.2008, and the delivery of the same, was also given to him, on that day, alongwith temporary registration number of the even date issued by OP-3, which expired on 30.12.2008. He further submitted that when the theft of the vehicle was committed, it was not registered, and, as such, there was a breach of the terms and conditions of the policy, as also, of the provisions of Section 43 of the Motor Vehicles Act, 1988. He further submitted that, in this view of the matter, when the claim was filed by the complainant, it was considered and repudiated. He further submitted that, on the basis of the application moved again by the complainant, his claim was reconsidered, but found to be untenable. He further submitted that the District Forum, fell into a grave error, in coming to the conclusion, that the repudiation of claim of the complainant, by OP-1, was illegal. He further submitted that the order of the District Forum, against the appellants/OPs, being illegal, is liable to be set aside.

12.            On the other hand, the Counsel for the respondent/complainant, submitted that the delivery of the vehicle, was made to the complainant on 11.12.2008, vide gate pass Annexure C-7 and not on 01.12.2008. He further submitted that the vehicle, was got insured by the complainant, with the appellant/OP-1 vide insurance cover note C-11 w.e.f. 11.12.2008, for a period of one year. He further submitted that, in the said cover note, it was mentioned that the insurance was in respect of the new car and there was no mention of temporary number therein. He further submitted that the temporary registration number was to expire, within one month from 11.12.2008, but even before that on the night intervening 3rd /4th Jan, 2009, the vehicle was stolen. He further submitted that, as such, the repudiation of the claim of the complainant, on the ground that the vehicle was not registered, on the date of theft, was illegal. He further submitted that, even if, it was assumed, that the vehicle  was not registered, on the date of commission of theft, the same, as per Section 43 of the Motor Vehicles Act, 1988, could be got registered, by making payment of late fee of Rs.100/- and therefore, on this ground, repudiation was illegal. He further submitted that the order of the District Forum, being legal, and valid, deserves to be upheld.

13.            After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and the evidence and record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. The first question, that arises for consideration, is, as to on which date, the delivery of the vehicle, was given to the complainant. Annexure C-2, is the Performa Invoice issued by OP-2, which is dated 06.11.2008. In this document, a note was appended to the effect that the vehicle would be delivered in two weeks, after receiving the DD(demand draft). C-4 is the letter, which was written to the complainant, by Goel Motors Pvt. Ltd., OP-2, reiterating the facts, that the delivery of the vehicle, shall be given in 2 weeks. However, the delivery was not given to the complainant in 2 weeks, due to the non-availability of the vehicle with OP-2. C-7 is a copy of the gate pass dated 11.12.2008, showing the delivery of the vehicle, to the complainant, on that date. It is signed by the Manager Sales of Goel Motors Pvt. Ltd., OP-2. Since, delivery of the vehicle, was given to the complainant on 11.12.2008, vide gate pass C-7, the same was got insured on the same day, as is evident from C-11, copy of the insurance cover note. Under the column of Registration, Mark & Place, word “New” was mentioned in the cover note. Under the heading of Engine and Chassis number, figures “40988” and “41081”, were mentioned. Under the heading of Make and Model of the vehicle Mahindra & Mahindra-Bolero XLS, were mentioned. In the cover note, C-11, temporary number of the vehicle, was not mentioned. Had the vehicle been given a temporary number on 01.12.2008, as per the version of OP-1, this fact would have certainly been mentioned in the cover note at the time of issuance of the same. In that event word “New” would not have been written therein. OP-1, however relied upon R-1, a document allegedly issued by the representative of Snow View Automobiles Pvt. Ltd, OP-3, which is a Temporary Certificate of Registration. It is evident from this document, that it was valid for 30 days from 01.12.2008. The engine number and chassis number of the vehicle in question are mentioned in this document. However, this document is of doubtful authenticity. No affidavit of the person, who issued R-1, was submitted by way of evidence, to prove the correctness thereof, Even otherwise, once it was proved, from C-7, gate pass, that the vehicle was delivered to the complainant on 11.12.2008, the question of issuance of Temporary Registration Certificate on 01.12.2008, by OP-3, in respect of the said vehicle, did not at all arise. This document was belied from the cover note of the insurance policy of the vehicle, which is C-11. No reliance, therefore, can be placed on R-1. The District Forum, was, thus, right in holding that the delivery of the vehicle, was given to the complainant, on 11.12.2008 and the complainant was required to get the vehicle registered, as per Section 43 of the Motor Vehicles Act, 1988, within one month from that date. But before that date, the vehicle was stolen on the night intervening 3rd/4th, Jan, 2009. It was further rightly held by the District Forum, that since the vehicle was stolen during the currency of the insurance policy, and before the arrival of the date, within which the same was required to be got registered, as per the provisions of law, the claim of the complainant, was illegally repudiated by the Insurance Company. The District Forum was also right, in holding that OP-1 was deficient in rendering service to the complainant. The findings of the District Forum, in this regard, being based on the correct appreciation of evidence and law, on the point, do not suffer from any illegality and are liable to be upheld.

14.            Even if, it is assumed, for the sake arguments, that the vehicle was allegedly given a temporary number on 1.12.2008, as per R-1, and the period of temporary registration expired on 30.12.2008, but it was not registered with the Registering Authority, when the theft of the same was committed, in our considered opinion, the rightful claim of the complainant, could not be legally repudiated by OP-1, as according to the proviso engrafted of Section 43 of the Motor Vehicles Act, 1988, even after the prescribed period, on payment of such fees, if any, as may be fixed by the Registering Authority, the vehicle could be got registered. Similar principle of law, was laid down, in Rajendra Prasad Tiwary Vs. New India Assurance Company & Ors. I (2007) CPJ 391. Even otherwise, there was no nexus or connection between the theft of the vehicle, which was duly insured, and non-registration thereof­­­­­­­­­­­­. The registration of the vehicle and the incident of theft, were two different matters, and there was no connectivity or linkage or any connection between the two. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed.

15.            No other point, was urged, by the Counsel for the parties.

16.            In view of the above discussion, it is held that the order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The order of the District Forum, being legal and valid, is liable to be upheld.

17.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.5000/-.

18.            Certified Copies of the order be sent to the parties, free of charge.

19.            The file be consigned to Record Room, after completion

Pronounced.

3^rd October, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

 MEMBER