Delhi

StateCommission

FA/741/2013

HDFC ERGO GIC LTD. - Complainant(s)

Versus

RAJIV KUMAR AGGARWAL & ANR. - Opp.Party(s)

11 Sep 2017

ORDER

IN THE STATE COMMISSION : DELHI

 

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:11.09.2017

 

First Appeal No. 741/2013

 

(Arising out of the order dated 3.04.13 passed in Complaint Case No.1823/08 passed by the District Consumer Dispute Redressal Forum-VI, New Delhi)

 

In the matter of

HDFC ERGO General Insurance Co. Ltd.

N-22, 2^nd Floor, Sector-18, Noida

Uttar Pradesh

 

……Appellant

 

Versus

1. Rajiv Kumar Agarwal

R/o H.No. A-222, DDA Flats

Near P.S. Vivek Vihar

Jhilmil, Delhi-95

 

 

2. M/s. Regent Automobiles

B-1/H-1, Mohan Cooperative Industrial Estate

New Delhi-44

 

…Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.       Whether reporters of local newspaper be allowed to see the judgment?

2.       To be referred to the reporter or not?

Justice Veena Birbal, President

1.          This is an appeal under Section 15 of the Consumer Protection Act (in short, ‘the Act’) wherein challenge is made to order dated 3.4.13 passed by the Consumer Dispute Redressal Forum-VI, New Delhi (in short, the “District Forum”) in CC No. 1823/08 whereby the aforesaid complaint case has been allowed and the appellant/OP-1 has been directed as under:-

         “OP-1 is directed to pay Rs.6,57,000/- alongwith 9% interest from date of filing of claim till realization and we also award Rs.25,000/- as compensation for harassment and litigation charges.”

2.          Briefly the facts relevant for the disposal of the present appeal are as under:

         A complaint under Section 12 of the Act was filed by the respondent No.1 herein i.e. the complainant before the District Forum stating therein that he had purchased Chevrolet TAVERA, Engine No.3LF49097 Chasis No.MA6AB6G 766 MH48408 on 23.1.2007 from the appellant/OP-1 on Hire Purchase Agreement through ICICI Bank Ltd. The said vehicle was insured with appellant/OP-1 for Rs.6,57,000/- and respondent No.1/complainant had paid premium of Rs.19,107/- by cheque No.201269 dated 23.1.07. The said vehicle was handed over to the respondent No.1/complainant by respondent No.2/OP-2 on 23.1.2007. It is alleged that on 22.2.07 the car was parked in the parking lot of respondent No.1’s/complainant’s residence i.e. A-222, DDA flats, near Vivek Vihar Thana, Jhilmil, Delhi-110095 from where it was stolen. Immediately a report was lodged at P.S. Vivek Vihar. The intimation was also given to the appellant/OP-1 through telephone/through letters. However, by letter dated 11.1.08, the appellant/OP-1 had repudiated the claim on the ground that the vehicle was driven on the public road without any valid registration at the time of the theft as such respondent No.1/complainant had no claim. It was alleged that as the vehicle was not registered with the concerned authority at the relevant time, the mandate of the policy was not complied with and hence, the appellant/OP-1 was not liable to honour the claim of the respondent No.1/complainant. Thereupon legal notice was served upon the appellant/OP-1. Since no payment was made by appellant/OP-1, the respondent No. 1/complainant preferred a complaint before the District Forum praying therein to give directions to appellant/OP-1 to pay the insurance amount along with compensation and litigation costs.

3.          Complaint was contested by the appellant/OP-1 by filing written statement wherein it was admitted that the respondent No.1/complainant had taken the insurance policy for the aforesaid vehicle from the appellant/OP No.1. It was alleged that the respondent No.1/complainant was entitled for claim strictly subject to the terms and conditions of the policy issued to the respondent/complainant and also subject to the provision of M.V. Act.  It was alleged that since the vehicle was driven on public road without any valid registration at the time of the theft, the respondent-1/complainant was not entitled for the claim.  It was alleged that no reason was given by respondent-1/complainant as to why he did not get the vehicle registered with the authority after its purchase. It was alleged that respondent No.1/complainant had been plying the vehicle in clear violation of the provisions of MV Act and the terms and conditions of the insurance policy as such he was not entitled for the claim amount.
4.          Rejoinder was filed by the respondent No.1/complainant reiterating the averments made in the complaint case and those made in written statement were controverted. It is also alleged that the vehicle was stolen from the parking lot of the respondent No.1/complainant and it was not being plied on the road as was alleged. It was stated that even the said fact had been mentioned in the FIR also. It was alleged that appellant/OP-1 had issued the insurance policy knowing fully that the vehicle was not having any registration number nor it had informed the respondent No.1/complainant that registration of the vehicle was mandatory for getting the policy. It was alleged that the respondent No.2/OP-2 had given the vehicle to respondent-1/complainant without any registration number.
5.          Both the parties had filed their evidence in the form of affidavits.
6.          After hearing the Counsel for the parties and considering the material on record, the Ld. District Forum allowed the complaint by holding that no evidence was given by the appellant/OP-1 that the respondent No1/complainant was plying the vehicle on road. It was also observed that the vehicle was stolen from the parking lot of the respondent No.1/complainant and not while plying as was alleged.  Ld. District Forum held deficiency in service on the part of appellant/OP-1 and directed it to pay insurance amount along with interest to respondent No.1/complainant.  Ld. District Forum also awarded compensation for harassment and litigation charges to the respondent No.1/complainant as has been stated above.
7.          Aggrieved with the aforesaid order present appeal is filed.
8.          Ld. Counsel for the appellant/OP-1 has contended that Ld. District Forum has failed to appreciate that the appellant/OP has rightly repudiated the claim. It is contended that the vehicle without registration in any case could not have been used by the respondent No.1/complainant. It is contended that the vehicle was being plied by respondent No.1/complainant in contravention of Section 39 of Motor Vehicle Act.  It is contended by not registering the vehicle with the concerned authority, there was also contravention of the Motor Vehicle Act and contravention of terms & conditions of the policy also. It is contended that repudiation is justified and the Ld. District Forum has committed illegality in passing the impugned order.
9.          On the other hand, Ld. Counsel for the respondent No.1/complainant has contended that the vehicle was not plied as is alleged. It is contended that the same was parked at the residence of respondent No.1/complainant at the time of theft. It is contended that the same is recorded in the FIR 87/07 dated 22.2.07 at P.S. Vivek Vihar registered by the respondent No.1/complainant immediately after the theft of the vehicle. No evidence is filed by the appellant/OP-1 that the said vehicle was plied by the respondent No.1/complainant on road as is alleged. It is contended that the Ld. District Forum has rightly appreciated the material on record and thereafter has given its finding.  It is contended that the appeal is liable to be dismissed.
10.          We have heard the Counsel for the parties and perused the material on record.
11.          It is admitted position that the vehicle in question was insured with  appellant/OP-1 as referred above for the period from 23.1.07 to 22.1.08 vide insurance policy issued in favour of respondent No.1/complainant on 23.1.07. It is also admitted position that the appellant/OP-1 had accepted the payment of premium of Rs.19,107/- for issuance of aforesaid policy.
12.          As per allegations of the respondent No.1/complainant, the aforesaid vehicle was stolen on 22.2.07 at around 7.30 A.M. when it was parked in the parking lot of his residence i.e. A-222, DDA Flats, near Vivek Vihar Thana, Jhilmil, Delhi-110095. Respondent-1/complainant has placed on record copy of FIR-87/07 dated 22.2.07, Ex.CW-1/D registered with P.S. Vivek Vihar which is recorded on the statement of respondent No.1/complainant wherein he has stated that in the night of 21.2.07 the said vehicle was parked outside of house and on the next day at about 7.30 A.M. when he came out he saw that the vehicle was not there and somebody had stolen it. As per FIR, the vehicle was parked near his house and from there somebody had taken it away.
13.        The claim is repudiated by appellant/OP on the ground that on investigation it has been noticed that vehicle was driven on public road. The relevant portion of repudiation letter is as under:

         “On investigation being conducted, it has been noticed that the above             captioned vehicle was driven on the public road without any valid            registration at the time of the theft giving rise to claim having occurred.”

14.          Reading the repudiation letter, it is noticed that an investigator was appointed by appellant/OP-1 to investigate the claim and relying upon the findings of the investigator the claim has been repudiated by observing that the vehicle was being driven on public road without any valid registration. It is the stand of the respondent No.1/complainant that the vehicle was not being plied but was parked outside in the parking lot near his house. The appellant/OP-1 has not placed on record the investigator report or the material on the basis of which it has been alleged that the vehicle was being driven on the public road at the time of theft. No such report was filed before the District Forum or before us during the pendency of the appeal. The District Forum has also observed that no evidence has been led by the appellant/OP-1 to substantiate that the vehicle was being plied on the road. The burden was on the appellant/OP-1 to show that the respondent No.1/complainant was plying the vehicle on public road. However, no such evidence is placed on the record. 
15.        Ld. Counsel for respondent-1/complainant has also relied upon judgement of Himachal Pradesh State Commission titled National Insurance Co. Ltd. & Anr. vs Suresh Kumar reported in II (2017) CPJ 122 (HP) wherein at the time of theft of vehicle, the insurer was not having valid registration certificate and fitness certificate, the claim was allowed.  The relevant portion of judgement is as under:

“Submission of learned Advocate appearing on behalf appellants that vehicle was plied without registration certificate and without fitness certificate and Insurance Company has legally repudiated claim and on this ground appeal be allowed is rejected being devoid of any force for reasons hereinafter mentioned.  Complainant claimed compensation on the ground of theft of vehicle during intervening night of 30/31.7.2012.  It is held that registration certificate and fitness certificate are not contributory factors for theft.  It is held that in case of theft of vehicle breach of conditions of insurance policy are not germane and it is also held that insurer is liable to indemnify owner.  [See II (2010) CPJ 9 (SC)=II (2010) SLT 672=2010 Vol.II CPJ Apex Court 9, Amalendu Sahoo v. Oriental Insurance Company Limited., [See IV (2008) CPJ 1 (SC)=2008 Vol.IV CPJ 1 Apex Court, National Insurance Company Ltd. v Nitin Khandelwal].”

 

16.         In view of the above discussion, we find no illegality in the impugned order. There is no merits in this appeal. Accordingly, the same stands dismissed.
17.          A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the District Forum–VI, New Delhi.

                     File be consigned to record room.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)​

Member