CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

      UdyogSadan, C – 22 & 23, Institutional Area

              (Behind Qutub Hotel)

     New Delhi – 110016

      Case No.164/2018

INDAL PRASAD,

S/O SH. LAL CHAND PRASAD,

R/O H.NO.S-55/D-116,

BILASHPUR CAMP, MOLAR BAND, BADARPUR,

NEW DELHI- 110044…..COMPLAINANT

Vs.

1. M/s SINGLA AGENCIES @ M/s SINGLA MOTORS,

(THROUGH ITS PROPRIETOR/OWNER)

A-4, JAITPUR ROAD, SAURABH VIHAR,

NEW DELHI - 110044                                    

ALSO AT:

RZA-1, M B ROAD, PULPEHLADPUR,

(NEAR BADARPUR) N. DELHI – 110044.

2. M/S NATIONAL INSURANCE COMPANY LTD.

(THROUGH ITS MANAGER)

DIVISIONAL OFFICE-IV, HERO MOTORCORP HUB,

N-1, BMC HOUSE, COONAUGHT PLACE,

NEW DELHI- 110001.

3. TRANSPORT DEPARTMENT, GOVT. OF NCT OF DELHI,

(THROUGH ITS SECRETARY-CUM-COMMISSIONER)

5/9, UNDER HILL ROAD,

DELHI- 110054                                          …..RESPONDENT’S/OPs

Date of Institution-25.07.2018

Date of Order-22.09.2018

       O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on part of OPs in repudiating the insurance claim on the vehicle which was stolen.

2. The complainant purchased a motorcycle ‘Splender+’ of Hero Moto Corp Ltd. having chasis No. MBLHAR077HHL72224 for a price of Rs.59,800/-. This price included exchange price of Rs.16,000/- for the previous motorcycle. A receipt no. 1781 dated 19.01.2018 for Rs.59,800/- was issued along with the gate pass bearing no.2306 by OP1, the dealer. The vehicle was delivered on the same day.

3. On 20.01.2018, the next day the complainant went to his office at 9 a.m. and parked his motorcycle in the parking lot. During his lunch hour i.e. between 1 to 1:30 p.m, the complainant walked towards the parking lot and found his motorcycle missing. He searched everywhere and calls the police helpline no.100. Thereafter, he made a call to OP1 informing him of the theft. 

4. FIR was registered on the same day and untraced report dated 26.02.2018 was issued by Delhi Police and the same was accepted by the court.

5. The complainant was handed over the tax invoice for Rs.57,578/- on the same date of theft i.e. 20.01.2018. The tax invoice included insurance premium for policy for Rs.1928/-, road tax registration etc. Under the guidance of OP1, the dealer, the complainant lodged an insurance claim with OP2. The claim was declined by OP2 stating that the insurance of the vehicle was done on 20.01.2018 at 14:51:16 hours but the vehicle was stolen between 9:00 hrs to 16:00 hrs as per the FIR. The letter further stated that vehicle was stolen prior to the commencement of insurance policy.

6. The complainant prays for refund of Rs.59,800/- along with interest @12% per annum, compensation of Rs.50,000/- and Rs. 21,000/- and Rs.11,000/- towards litigation expenses.

7. Notice was issued to OPs but none appeared for OP1 and OP3. OP1 and OP3 were proceeded Ex-parte vide Order dated 13.09.2018.

8. OP2, the insurance, in its reply has stated that the liability has to be construed strictly within the terms of the insurance policy. On facts, OP2 submits that complainant took the delivery of the vehicle on 19.01.2018 and insurance was done on 20.01.2018 at 3 pm. It is further stated that the complainant took the delivery of the vehicle without getting the insurance policy in violation of Motor Vehicle Act. This Act is in breach of policy terms and conditions.

9. OP2 has also stated that documents required for insurance was sent by OP1 on 02.05.2018. OP2 further alleges that OP1 failed to pre-inspect the vehicle before delivery. OP2 also alleges that complainant has not made any call to PCR. Moreover, the FIR of the theft did not provide the specific time.

10. OP2 further states that insurance was done on 20.01.2018 at 14:51:16 hrs but the vehicle was stolen between 9:00 hours to 16:00 hours i.e. prior to the commencement of the insurance policy. OP2 prays for dismissal of the complaint.

11. Complainant has filed evidence by way of affidavit and has exhibited the following documents:-

1. Copy of the receipt is exhibited as Annexure-‘C-1’.
2. Copy of FIR is exhibited as Annexure-‘C-2’ (Colly).
3. Copy of tax invoice, insurance premium receipt and road tax receipt is exhibited as Annexure-‘C-3’ (Colly).
4. Copy of RC of motorcycle is exhibited as Annexure- ‘C-4’.
5. The computer online extract is being exhibited as Annexure-‘C-5’.
6. Copy of the letter is exhibited as Annexure-‘C-6’.

12.  OP2 has filed evidence by way of affidavit but not filed or exhibited any documents.

13. This Commission has considered the pleadings and documents placed on record. It is undisputed that the complainant took delivery of the Hero Motorcycle model no. SPL+135 Frame No. 72224 on 19.01.2018 after payment of Rs.59,800/-. Complainant has filed receipt no.7181 dated 19.01.2018 for Rs.59,800/- and delivery challan/ gate pass bearing no 2306 dated 19.01.2018. It is undisputed that the vehicle was stolen on 20.01.2018 from Mohan Cooperative Industrial Estate, New Delhi. The FIR was also registered on the same day i.e. 20.01.2018.

14. Perusal of the documents shows that a tax invoice was issued by OP1 on 20.01.2018 at 14:35:20. The said tax invoice is for Rs.57,578/- which also includes insurance for Rs.1982/-.  The insurance policy shows that it was valid from 20.01.2018, 14:51:16, to midnight of 19.01.2019.

15. OP has rejected the claim of the complainant on following grounds:

This is in reference to your intimation received by us on 21/01/2018 informing theft of your vehicle on 20/01/2018.

Please note that the Insurance of the vehicle was done on dated 20/01/2018 at 14:51:16 hrs. but vehicle was stolen on dated between 09:00 hrs till 16:00 hrs (as per the FIR) i.e. prior to commencement of our insurance policy no. 39010231176204165031. Therefore liability of the said theft claim is not covered in our Insurance Policy, as the Insurance of the vehicle was done after the time of theft of the vehicle.

16. We may mention here that Hon’ble National Commission in Fauzdar Motors vs Lok Nath Kushwaha & Ors. 2020 SCC online NCDRC 492 has observed that:

If OP1 had sold the vehicle and accepted the arrangement implicit in the Ikararnama, it has to bear the consequences.  This is certainly not a normal practice.  What is however clear beyond any doubt is that as a responsible dealer, OP1 could not have delivered the vehicle without the original documents.  Such a delivery was illegal, to begin with.  No vehicle can legally ply without these documents. This is the law and OP1, as the dealer, ought to have been well aware of this.  It follows that the factum of delivery without documents was illegal per se and certainly a deficiency in service.  It is not important nor relevant as to what informal arrangement existed between OP1 and the complainant.  Whatever may have been the arrangement, it cannot justify the action of OP1. OP-1 has to be held to have been deficient in service.

In this matter, the dealer had withheld registration certificate and insurance documents.  

17. Hon’ble Supreme Court of India in Ashatai vs Shriram City Union Finance Ltd. Civil Appeal No.3962 OF 2019 decided on 16.04.2019 has observed that:

The deceased husband of the Appellant had fulfilled his part of the transaction, by depositing Rs. 400/­ by way of the Demand Draft towards the insurance premium, and also the charges of Rs. 2,120/­ towards processing of the loan transaction.

3.6. The Respondent – Finance Company however delayed in forwarding the amount to the Insurance Company for obtaining the insurance policy, which was issued on 30.03.2015 for the period 30.03.2015 to 29.03.2016. Hence, there was a clear deficiency of service by the Respondent – Finance Company in delay in obtaining the insurance policy from its sister concern.

………………

The Appellant has made out a clear case of deficiency of service on the part of the Respondent – Finance Company.

18. In the light of the Fauzdar Motors vs Lok Nath Kushwaha & Ors. (Supra), it is clear that no vehicle can ply without the documents like registration and insurance. It has also been held that such a delivery without original documents was illegal to begin with and dealer is deficient in service for this irresponsible act.

19. As it was held by the Hon’ble Apex Court in Ashatai Vs. Shriram City Union Finance (Supra) it is clear that once an insurance premium is paid to a financer, and the financer fails to forward this premium to the insurance company, the financer will be liable for any deficiency due to non-payment of this premium.

20. In the present complaint, complainant paid Rs.59,800/- towards the price of the motor cycle inclusive of insurance premium, road tax etc. The OP1, the dealer, accepted the same and issued a receipt and gate pass on 19.01.2018. The complainant went to his office on the motorcycle in question on 20.01.2018. Around lunch time, between 1 and 1:30 pm the complainant found the vehicle in question to be missing/stolen. He informed OP1 who issued a tax invoice dated 20.01.2018 at 14:35:20. The details of invoice are as follows:-

21. The insurance policy also shows the validity starts from 20.01.2018 at 14:51:16. From the chronology of events it appears that OP1 accepted the money towards the price of the motorcycle, insurance, registration fees, road tax on 19.01.2018 and released the motorcycle to the complainant. It was only after receiving a call from the complainant about the theft of the motorcycle, OP1 issued a tax invoice and got the insurance.

22. In the light of judgments above, OP1 is liable for deficiency in service in not supplying the original documents like insurance policy, registration certificate along with the vehicle at the time of issuing the gate pass. Hence, the Commission finds OP1 guilty in deficiency of service and direct it to pay the IDV of the vehicle i.e. Rs.49,316/- with 7% interest from date of theft till payment. This Commission also direct OP1 to pay a compensation of Rs.10,000/- and litigation expenses of Rs.5,000/-.

23. This order be complied with within 90 days from the date of the order.  This entire amount is payable to the complainant within a period of 90 days from the date of order failing which the entire amount will further carry an interest @9% per annum till it is paid to the complainant.
24. File be consigned to record room.