Tripura

StateCommission

A/15/6

The Divisional Manager , The oriental Insurance Co.ltd - Complainant(s)

Versus

Sri Debasish Chakraborty & The United Bank of India. - Opp.Party(s)

P.K Debnath

07 Apr 2015

ORDER

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

 

 

APPEAL CASE No.A-15/6.

 

The Divisional Manager,

The Oriental Insurance Co.Ltd.

44/2, Central Road, Agartala,

West Tripura, Pin-799001.

                   ….    ….    ….    ….    Appellant-O.P. No-1.

                   Vs

1. Sri Debasish Chakraborty, S/O Late Dulal Chakraborty,

Vill-Madhya Banamalipur, P.O-Agartala,

District-West Tripura, Pin-799001.

               ….    ….    ….    ….    Respondent-complainant.

2. The Union Bank of India,

Laxminarayan Bari Road Branch, P.O-Agartala.

Ganaraj Chowmohani, 13 East Thana Road

District-West Tripura, Pin-799001.

     ….    ….    ….    ….    Proforma-O.P.

 

 

PRESENT :

       

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                          

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

               

 

For the Appellant    :      Mr.P.K.Debnath,Adv.

          For the respondent   :    Smt. S.Choudhury,Adv.

                                         

Date of Hearing         :     07.04.2015.

Date of delivery of Judgment  :

             

 

J U D G M E N T

 

S.Baidya,J,

            This appeal filed on 12.03.2015 by the appellant-Oriental Insurance Co.Ltd. under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and award dated 09.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-54 of 2014 whereby the Ld. District Forum directed the O.P. No-1, the appellant herein to indemnify the complainant to the extent of 95% of Rs.48,916/- of IDV and also to pay a sum of Rs.5,000/- to the complainant as compensation for causing mental agony and harassment together with Rs.2,000/- as cost of litigation with a further direction to pay the said amount to the complainant within a period of six weeks of the receipt of copy of this judgment, failing which the amount shall carry interest @ 9% P.A. from the date of judgment till the payment is made.    

2. The case of the appellant as narrated in the memo of appeal, in brief, is that the Motor Cycle Model No.Bajaj Discover 125 DR was insured with the appellant-Insurance Company vide policy No-322700/31/2013/404 w.e.f. 06.04.2012 to 05.04.2013 against the Bajaj-Bajaj Discover, 2012 Solo Body for the sum assured (IDV) total value of Rs.48,916/- and the Engine and Chassis No.JZUBUJ56162 & MD2DSJZZZUPJ42018 respectively.                                                  
3. It has also been stated that on receipt of information of theft and the survey report, the appellant issued a letter dated 18.06.2013 to the complainant to submit a valid original registration certificate etc., but the complainant could not submit the same to the appellant. It is also stated that the temporary registration certificate issued on 24.02.2012 expired after 30 days from 06.04.2012 and the said temporary registration certificate cannot be considered as relevant and valid document till the date of lost on 07.08.2012.
4. It is also stated that the complainant has committed the breach of the policy conditions and also violated the policy terms for ‘Limitation as to use’ at the relevant date and time of incident of theft and as such, the appellant has no deficiency in service and also no liability to pay any amount to the complainant and as the complainant failed to submit any valid registration certificate for the relevant period concerning his motor cycle as asked for, the claim of the complainant has been repudiated.
5. It is also stated that on receipt of the notice in respect of the filing of the complaint before the Ld. District Forum, the appellant as O.P. No-1 contested that complaint by filing written statement. It is also stated that the Ld. District Forum considering the pleadings of the parties and the evidences passed the impugned judgment, although the complainant had no valid registration certificate concerning the theft of motor bike at the relevant time.            
6.  That being aggrieved by and dissatisfied with the impugned judgment, the O.P. No-1 as appellant has preferred the instant appeal challenging the legality and propriety of the impugned judgment on the grounds that the Ld. Forum ought to have appreciated that temporary registration certificate issued on 24.02.2012 expired after 30 days from 06.04.2012 i.e. expired on 05.05.2012 and within a period of three months of the expiry of the temporary registration or before the date of theft on 07.08.2012, the owner did not make any attempt for extension of the period of temporary registration, that the Ld. Forum failed to consider that on the date of alleged incident of theft on 07.08.2012, the vehicle was without any registration, that the Ld. Forum committed gross miscarriage of justice by-passing the relevant issues of the terms of the insurance policy which covers only within the meaning of the clause ‘limitation to use’ under the Motor Vehicle Act, 1988, that the Ld. Forum has misunderstood the implication of the relevant facts and law as contemplated under Section 39, 43 and 192 of the M.V.Act, that the Ld. Forum ought to have appreciated the spirit of Section 39 of the M.V.Act which provides for necessity for registration of the vehicle by a owner in use or possession , that the Ld. Forum ought to have appreciated that by way of not securing any valid registration certificate, the complainant violated the policy conditions as well as the provision of the M.V.Act and the appellant has rightly repudiated the claim of the complainant and there has been no deficiency and negligence in service on the part of the present appellant, but the Ld. Forum erroneously passed the impugned judgment which is not sustainable in the eye of law and should be set aside and the appeal is also liable to be allowed and hence, the instant appeal has been preferred.              

Points for consideration.

7.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment  and (2) whether the judgment under challenge should be set aside or otherwise as prayed for.      

                         Decision with Reasons.

8.       Both the points are taken up together for the sake of convenience and brevity.

9. The learned counsel for the appellant-O.P. No-1 submitted that the purchase of motor bike bearing No-TR01 N 0353 (Bajaj Discover 125 DR) by the complainant-respondent No-1 on 06.07.2012 from Priya Motors Pvt. Ltd. for an amount of Rs.51,490/- is an admitted fact. He also submitted that the said motor cycle was insured with the appellant-Oriental Insurance Co.Ltd. on 06.04.2012 for the period from 06.04.2012 to midnight of 05.04.2013. He also submitted that the registering of the said motor bike mentioning therein the Engine number and the Cassis number temporarily by issuing a temporary registration certificate on 24.02.2012 under Section 43 of the M.V.Act, 1988 for a period of 30 days only w.e.f. 06.04.2012 is also an admitted fact. He also submitted that under Section 39 of the M.V.Act, 1988, the registration of a motor vehicle by the owner thereof is mandatory. He also submitted that the validity of the temporary registration certificate in respect of the said bike expired with the expiry of 05.05.2012 as the same was issued only for 30 days w.e.f. 06.04.2012.
10. The learned counsel for the appellant-Insurance Company submitted that the temporary registration certificate was issued under Section 43 of the M.V.Act and under that Section it is not renewable. He also submitted that although the validity of the temporary registration certificate expired with the expiry of 05.05.2012, but the said vehicle was not registered regularly. He also submitted that it is true that the alleged incident took place within the coverage-period of the insurance policy, but the said motor bike had no valid registration certificate on the date of happening of the alleged incident of theft. He also submitted that when the respondent No-1-complainant submitted his claim application before the appellant-Insurance Company prior to the lodging of the complaint before the Ld. District Forum, the Insurance Company asked the complainant to submit valid registration certificate and the tax token concerning that motor bike, but the complainant miserably failed in this regard and as such, the Insurance Company finding no alternative repudiated the claim of the complainant. He also submitted that the issuance of the insurance policy concerning a motor vehicle is always subject to the provisions of the M.V.Act, 1988 as the complainant failed to produce any valid registration certificate of the relevant period as provided under Section 39 of the M.V.Act, 1988, the Insurance Company rightly repudiated the claim of the complainant. But the Ld. District Forum erroneously thought that as the motor bike was parked in the rented house of the complainant wherefrom the motor bike in question was stolen away by unknown miscreants, the absence of valid registration certificate concerning that motor bike is no bar to get compensation equivalent to the assured amount of the said bike from the Oriental Insurance Co.Ltd. on the ground that theft of motor bike was not committed on the road while using.
11. He also submitted that the motor bike was insured concerning its Engine number and Cassis number on the basis of temporary registration certificate. He also submitted that the Insurance Company issued the policy for a period of one year in good faith on the presumption that the owner of the bike shall obtain the valid registration certificate from the registering authority under the M.V.Act. He also submitted that the valid registration certificate is a document of title concerning the vehicle. He further submitted that on the strength of insurance policy covering the period of alleged incident of theft, the provision of law as provided under Section 39 of the M.V.Act cannot be by-passed. He also submitted that in that view of the matter, it is palpable that the Ld. District Forum failed to understand that the M.V.Act, 1988 always requires a valid registration certificate and as the insurance policy in respect of the vehicle is issued subject to the provision of the M.V.Act, 1988, so, the awarding of the compensation by the impugned judgment cannot be sustained in the eye of law and it should be set aside and the appeal should be allowed.
12. The learned counsel for the appellant in support of his contention has referred to a decision of the Hon’ble Supreme Court pronounced on 04.09.2014 in Civil Appeal No-8463 of 2014 (arising out of Special Leave Petition (Civil) No. 26308 of 2013) between Narinder Singh (appellant) Vs. New India Assurance Co.Ltd. and others (respondents) and submitted that in the referred case the concerned vehicle which had temporary registration certificate, had no valid registration certificate on the date of incident as the validity of the temporary registration certificate already expired. He also submitted that in the said referred case, the Hon’ble Supreme Court has been pleased to hold that the using a vehicle on the public road without any registration is, not only an offence punishable under Section 192 of the M.V.Act, but also a fundamental breach of the terms and conditions of policy contract and therefore, the Hon’ble Supreme Court by the said judgment has been pleased to reject the revision petition upholding the judgment of dismissal of the complaint passed by the State Commission, Shimla after setting aside the order of the District Consumer Dispute Redressal Forum, Shimla granting the claim of non-standard basis. He also submitted that in the referred case, the incident took place while the vehicle was on road, but in the instant case, the motor bike was parked in the rental house of the complainant. Although the said vehicle had valid insurance coverage, but having no valid registration certificate of the vehicle in the referred case, the complainant was not allowed any relief by the Hon’ble Supreme Court. He also submitted that in the instant case also, complainant had no valid registration certificate concerning the motor bike and as such in spite of having the insurance coverage, the complainant is not legally entitled to get any compensation equivalent to the assured sum and therefore, as the impugned judgment passed by the Ld. District Forum allowing the compensation is against the principle of law enunciated by the Hon’ble Supreme Court in the above reported case, it is not sustainable in the eye of law and is liable to be set aside. 
13. The learned counsel for the respondent No-1-complainant submitted that the complainant was not using or driving his motor bike on the public road at the relevant time i.e. at the time of commission of theft of the said bike, rather it was then parked in the rented house of the complainant wherefrom it was stolen away by the miscreants. He also submitted that theft is one of the grounds for getting the compensation as per terms and conditions of the insurance policy granted by the Oriental Insurance Co.Ltd.(appellant) in favour of the complainant. He also submitted that as the theft of the motor bike of the complainant was committed within the coverage period of the insurance policy, the Insurance Company is legally liable to make compensation to the complainant. He also submitted that the Ld. District Forum rightly thought that as the motor bike of the complainant was then not in used or driven in the public road or in any other place, the registration certificate concerning his motor bike was not a precondition for granting compensation to the complainant for the theft of his motor bike during the insurance coverage period. He also submitted that in the case referred to by the learned counsel for the Insurance Company, the vehicle was in the road at the time of incident, but in the instant case, the motor bike of the complainant was not in the road, rather it was in parked condition in the rented house of the complainant at the time of commission of theft of his bike and therefore, the principle of law enunciated by the Hon’ble Apex Court referred to above is not applicable in the instant case.  
14. The learned counsel for the respondent No-1 also submitted that the Ld. District Forum meticulously considered all aspects of the case and having the insurance coverage at the relevant time granted compensation by the impugned judgment which being proper, legal and justified, is liable to be affirmed and the appeal is also liable to be dismissed.   
15. We have gone through the pleadings of the parties, the evidences both oral and documentary, the impugned judgment, the memo of appeal and the referred case-law. We have also considered meticulously the submissions made by the learned counsels of both sides made in support of the respective cases of the parties. Going through the same, we find there are certain admitted facts. Admittedly, the motor bike containing the Engine No.JZUBUJ56162 and the Chassis No.MD2DSJZZZUPJ42018, model of BAJAJ-BAJAJ DISCOVER manufactured in 2012 with SOLO BODY was insured on and from 06.04.2012 to midnight of 05.04.2012 in favour of the insured Debasish Chakraborty with the Oriental Insurance Co.Ltd., the appellant herein (Ext.4). It is also admitted fact that a temporary registration certificate (Ext.10) with temporary registration mark concerning the above mentioned Engine number and Cassis number was granted on 24.02.2012 for a period of 30 days w.e.f. 06.04.2012 which was long before the alleged purchase of the motor bike by the complainant from the dealer Priya Motors Pvt. Ltd. . It is also admitted fact that at the relevant time i.e. on the date of commission of theft (in the night of 07.08.2012) while the motor bike bearing No-TR01 N 0353 was parked at stair-case room in the rented house of the complainant at North Banamalipur wherefrom it was stolen away, at that time the said motor bike had no valid registration certificate.
16. From the sale certificate (Ext.3) it transpires that the motor bike of the complainant was delivered to him by the dealer Priya Motors Pvt. Ltd. on 06.07.2012 and the validity of the said sale certificate was expired with the expiry of 04.08.2012. It also goes to establish that when the motor bike concerned was delivered to the complainant by the dealer-Priya Motors Pvt. Ltd. on 06.07.2012 on the basis of the said sale certificate, the validity of the temporary registration certificate (Ext.10) already expired with the expiry of 05.05.2012.     
17. Admittedly, the complainant had no valid registration certificate concerning his motor bike while it was stolen away by the miscreants at any time in the night of 07.08.2012 from the stair-case room of his rented house at North Banamalipur. But the fact remains that the appellant –Oriental Insurance Co.Ltd. granted insurance policy (Ext.4) in favour of the complainant concerning his motor bike for a coverage-period commencing from 06.04.2012 to 05.04.2013 on the basis of the temporary registration certificate (Ext.10). It goes without saying that the motor bike of the complainant was within the insurance coverage period when it was stolen away by the miscreants at any time in the night of 07.08.2012 from the stair-case room of the rented house of the complainant.
18. The learned counsel for the appellant submitted that for getting the compensation from the Insurance Company for the theft of the motor bike, a valid registration certificate as required under the M.V.Act, 1988 was highly essential, but the complainant neither obtained any valid registration certificate after the expiry of the temporary registration certificate nor applied for getting a valid registration certificate from the registering authority under the Motor Vehicle Act,1988. He also submitted before us that as asked for by the Insurance Company, the complainant could not produce the valid registration certificate and the tax token concerning that motor bike of the complainant. He also submitted before us that for want of those documents the Insurance Company could not settle the claim of the complainant as submitted by him through claim application made before the Insurance Company and therefore, the learned counsel for the appellant in course of hearing before us made a tremendous attempt to justify the repudiation of the claim of the complainant by the Insurance Company relying on the decision of the Hon’ble Apex Court mentioned earlier.
19. We find it appropriate to reproduce the provision of law provided in Section 39, 40 and 43 of the M.V.Act, 1988. Sections 39, 40 and 43 of the M.V.Act, 1988 read as follows :-

          “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.”

          “40. Registration, where to be made- Subject to the provisions of section 42, section 43 and section 60, every owner of a motor vehicle shall cause the vehicle to be registered by a registering authority in whose jurisdiction he has the residence or place of business where the vehicle is normally kept.”

          “43. Temporary registration-(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark.

          (2) A registration made under the section shall be valid only for a period not exceeding one month, and shall not be renewable;

          Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted [with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.

          [(3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner.]”   

20.     Section 39 of the M.V.Act provides the necessity for registration of a motor vehicle. Admittedly, the motor bike for the complainant comes within the purview of the definition of motor vehicle. Section 39 of the M.V.Act provides the necessity for registration for driving any motor vehicle in any public place or in any other place. But in the instant case, the motor bike of the complainant was not being driven at the time of commission of the theft, rather it was then parked in the stair-case of the rented house of the complainant at North Banamalipur and as such, the motor bike of the complainant cannot be said under any stretch of imagination that when the motor bike was stolen away, it was then the public place or in any other place in driving condition.

21.     Section 40 of the M.V.Act only provides for ascertaining the territorial jurisdiction of the registering authority in whose jurisdiction the owner of the motor vehicle has the residence or place of business where the vehicle is normally kept.

22.     Section 43 of the M.V.Act deals with the temporary registration certificate. Admittedly, the motor bike had temporary registration certificate and temporary registration mark (Ext.10) as provided under Section 43(1) of the said Act and the temporary certificate of registration concerning that vehicle was valid for a period of one month. Section 43(2) of the M.V.Act provides that temporary certificate of registration is not renewable, but there is a proviso to that sub-section as quoted above.

23.     The learned counsel for the appellant vehemently submitted before us that the insurance policy (Ext.4) was issued in favour of the complainant subject to the limitation as to its use. We have gone through the relevant portion of the insurance policy regarding “limitation as to use”. It says that the policy covers use only under a permit within the meaning of the M.V.Act, 1988 or such a carriage following under sub-section 3 of section 66 of the M.V.Act, 1988. Going through the Section 66 of the M.V.Act, we find that this Section deals with the necessity for permit which is in no way connected with the registration of the motor vehicle. The insertion of the condition mentioned in the insurance policy i.e. “limitations as to use” have made it clear that it is not connected in any way with the registration of the motor vehicle. It is only in respect of its use by the owner of the vehicle. When the Insurance Company granted insurance policy (Ext.4) in favour of the complainant covering the period of incident on the basis of the temporary certificate of registration (Ext.10), it cannot be said under any stretch of imagination that the said insurance policy has become invalid for want of a subsequent valid certificate of registration. That being the position, the production of the valid registration certificate cannot be a pre-condition to settle the claim of the complainant. Similarly, tax token is a Government revenue matter. It has also no connection with the insurance policy issued without any tax token. The valid registration certificate and the tax token are essential for using or driving the motor vehicle in the public place or in any other place as provided under Section 39 of the M.V.Act.

24.     Going through the referred case, we find that after the expiry of the temporary certificate of registration the vehicle met with an accident and got damaged. It goes to show that the said vehicle met with an accident while it was being used or driven and in the facts and circumstances of that case, the Hon’ble Apex Court did not grant any relief to the owner of the vehicle for violating Section 39 and Section 192 of the M.V.Act. But in the instant case, the fact and circumstances is altogether different from the facts and circumstances of the referred case. In the present case, the motor bike of the complainant was in parked condition in the stair-case room of his rented house at North Banamalipur when and wherefrom the motor bike of the complainant was stolen away at any time in the night of 07.08.2012 when that motor bike was within the coverage-period of insurance policy. It is amply clear that at the relevant time the motor bike of the complainant was not being used or driven in any manner. That being the position, it is palpable that the facts and circumstances of the instant case differ from the facts and circumstances of the case referred to above by the learned counsel for the Insurance Company and as such, the principle of law enunciated therein by the Hon’ble Apex Court is not applicable in the present case.

25.     It has become palpable that after the grant of insurance policy in respect of a motor vehicle on the basis of temporary certificate of registration, the Insurance Company cannot claim any other valid registration certificate and tax token for settling the claim of the owner of the vehicle arising out of any incident concerning that vehicle happened within the insurance coverage-period. So, it is found that the demand of the Insurance Company for production of the valid registration certificate and the tax token for settling the claim of the complainant is found not legal and justified and taking the ground of non-production of the said registration certificate and the tax token for repudiating the claim of the complainant is also found totally unjustified and not sustainable in law. Therefore, we are of the view that the Insurance Company was not justified in repudiating the claim of the complainant. The Insurance Company has compelled the complainant to lodge the complaint before the Ld. District Forum seeking his redress. Be that as it may, as the Insurance Company repudiated the claim of the complainant unjustly, it is well established that the appellant-Insurance Company was negligent and deficient in service in respect of settling the claim of the complainant and as such, the complainant is legally entitled to be compensated by the appellant-Insurance Company.

26.     Going through the impugned judgment, we find that the Ld. District Forum properly considered all aspects of the case and arrived at the right conclusion and accordingly, passed the impugned judgment which, according to us, calls for no interference by this Commission. Therefore, the impugned judgment should be affirmed and the appeal is also liable to be dismissed.

27.     In the result, the appeal fails with cost. The impugned judgment dated 09.01.2015 passed by the Ld. District Forum, West Tripura, Agartala in case No.C.C.54/2014 is hereby affirmed.

28.     The appellant-O.P. No-1, the Oriental Insurance Co.Ltd. is directed to deposit a sum of Rs.5,000/- as cost in the Legal Aid Account of this Commission within 30 days from the date of judgment, failing which the amount shall carry interest @ 9% p.a. after the expiry of 30 days till the payment is made.         

 

          

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura