Chandigarh

StateCommission

CC/12/2015

Classic Bakery - Complainant(s)

Versus

Tata AIG General Insurance Co. Ltd. - Opp.Party(s)

D.P.Gupta, Adv.

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Consumer Complaint No.	:	12 of 2015
Date of Institution	:	21.01.2015
Date of Decision	:	01.04.2015

 

1. Classic Bakery near Kakkar Bakery, Village Kajheri, Sector 52, Chandigarh through its Prop. Smt. Arvinder Kaur.
2. Smt. Arvinder Kaur, Prop., Classic Bakery near Kakkar Bakery, Village Kajheri, Sector 52, Chandigarh.

 

……Complainants.

Versus

1. Tata AIG General Insurance Co. Ltd., 2^nd Floor, 232-234, Sector 34-A, Chandigarh through its Manager.
2. ICICI Bank Ltd., SCO No.128-129-130, 2^nd Floor, Sector 9-C, Chandigarh.

              ....Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

         SH. DEV RAJ, MEMBER.

         MRS. PADMA PANDEY, MEMBER.

               

Argued by:  Sh. D. P. Gupta, Advocate for the complainants.

              Sh. Rajneesh Malhotra, Advocate for Opposite

Party No.1.

Sh. Puneet Tuli, Advocate for Opposite Party No.2.

 

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainants purchased new Toyota Fortuner having Engine No.1KDU486187 & Chassis No.MBJ11JV6104-0259540214, Model 2014. It was stated that they got the said new vehicle insured with Opposite Party No.1 for the period from 26.02.2014 to 25.02.2015 and premium of Rs.51,477/- was paid. It was further stated that the IDV of the vehicle was Rs.20,92,981/-. It was further stated that Opposite Party No.1 issued a certificate of insurance and Policy schedule was enclosed as Annexure C-1. It was further stated that at that time, no Policy of Insurance was issued to the complainants. It was further stated that the terms and conditions of the Policy were neither explained nor provided to the complainants when the insurance was taken and the premium was paid. It was further stated that the vehicle was under hypothecation with Opposite Party No.2. It was further stated that the complainants were provided the temporary registration No.CH-05(T) 5669 at the time of purchase of the vehicle. It was further stated that the vehicle was finally registered with the Registering Authority and the same was given registration No.CH-01AX-7236 vide Registration Certificate (Annexure C-3) and fitness validity was granted for a period of 15 years.

2.         It was further stated that on 30.4.2014, the said vehicle met with an accident in the area of Rayya Bazar, P.S. Beas, District Amritsar, when it was being driven by Arvinder Singh and it was extensively damaged. It was further stated that the complainants lodged a claim with Opposite Party No.1, which appointed Pee Kay & Co. as Surveyors to assess the loss. It was further stated that all the documents were supplied to the Surveyor, as per his requirement. It was further stated that the Surveyor assessed the loss on total loss basis. It was further stated that the complainants also got the vehicle inspected from Motorways, Plot No.159, Industrial Area, Phase I, Panchkula, so as to determine the extent of damage suffered, which assessed the loss to the tune of Rs.21,78,868/- vide report (Annexure C-4) and it recorded that the supplementary estimate would be given after dismantling the vehicle.

3.         It was further stated that the complainants received a letter dated 26.08.2014 from Opposite Party No.1 (Annexure C-5) informing that the temporary registration had expired on 25.03.2014, road tax was paid on 5.5.2014 and the accident took place after the expiry of the temporary registration certificate. It was further informed vide the aforesaid letter, that since there was violation of Section 39 of Motor Vehicles Act, they (complainants) should furnish comments. It was further stated that the complainants replied vide letter dated 5.9.2014 (Annexure C-6). It was further stated that vide letter dated 14.10.2014 (Annexure C-7), Opposite Party No.1 showed its inability to accept liability for damage to the vehicle. It was further stated that the letter of Opposite Party No.1 declining the claim was against law. It was further stated that Opposite Party No.1 failed to consider that there was no Policy condition intimating the complainants that if the vehicle was not registered, it would be a breach of contract of insurance and, on that ground, the claim could be declined. It was further stated that the complainants had already applied for the registration of vehicle within the validity period of temporary registration and the Inspecting Authority had also inspected the same for the purpose of registration on 18.3.2014, as was clear from Annexure C-2 and, as such, they (complainants) could not be blamed for not getting the vehicle registered in time.

4.         It was further stated that Opposite Party No.1 failed to consider that the complainants could only apply to the concerned Authority for registration and the date of actual registration was not in their hands. It was further stated that the aforesaid acts of Opposite Party No.1, not only amounted to deficiency, in rendering service, but also indulgence into unfair trade practice.

5.         When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to Opposite Party No.1, to pay Rs.20,92,981/- as IDV of the vehicle alongwith interest @18% per annum from the date of accident till the date of payment; Rs.2 Lacs  as compensation for physical harassment and mental agony besides costs of litigation.

6.         Opposite Party No.1, put in appearance, on 27.02.2015. In its written statement, Opposite Party No.1 took-up certain preliminary objections to the effect that the complainants had no locus standi to file the complaint; that the complainants were not the consumers as defined under the Consumer Protection Act, 1986; that the present dispute was time barred; that the disputed questions of fact and law were involved in the complaint, which could not be decided in a summary procedure; and that the complainants approached the Commission with unclean hands by concealing the material facts.

7.         On merits, it was stated that complainant No.1, in whose name the temporary registration number was issued, is a commercial entity and is engaged in commercial activities and, as such, being not covered under the Act, the complaint is liable to be dismissed on this ground alone. It was admitted that the vehicle was insured by Opposite Party No.1 vide Insurance Policy No.015290215500 (Annexure R-1) for the period from 26.02.2014 to 25.02.2015 for the IDV of Rs.20,92,981/-. It was denied that the Insurance Policy and its terms and conditions were not supplied to the complainant at the time of issuance of the Policy, in question. It was further stated that the complainants did not place, on record, any letter/email, written to Opposite Party No.1, to show that they ever complained with regard to non-receipt of the terms and conditions of the Insurance Policy.

8.         It was further stated that at the time, when the Insurance Policy was issued, the vehicle was under temporary registration and no permanent registration number was intimated to the Insurance Company till the time of accident. It was further stated that copy of the application for the registration of vehicle did not inspire confidence as the same was not stamped by the authorized signatory of the Registration Authority. It was further stated that the intimation with regard to the accident was received on 5.5.2014 and copy of the intimation log was annexed as Annexure R-2. It was further stated that the accident took place on 30.4.2014, whereas Opposite Party No.1 was informed on 5.5.2014 i.e. after a lapse of 5 days without any reasonable explanation for such delay, which was in violation of Condition No.l of the Policy. 

9.         It was further stated that on receipt of intimation regarding the accident, Opposite Party No.1 appointed Sh. P. K. Bansal of M/s Pee Kay and Co., as Surveyor to assess the loss. It was further stated that the Surveyor wrote letter dated 5.6.2014 (Annexure R-3) to the complainants, to submit the requisite documents for processing the claim, which they did not supply. It was further stated that the Surveyor wrote another letter dated 24.6.2014 (Annexure R-4) and sought comments as there was violation of Section 39 of Chapter IV of the Motor Vehicles Act. It was further stated that the complainants replied vide letter dated 12.7.2014 (Annexure R-5). It was further stated that the claim form was submitted by the complainants on 18.6.2014 (Annexure R-6). It was further stated that none of the documents, as asked for by the Surveyor, were supplied by the complainants. It was further stated that the Surveyor submitted his detailed Survey Report dated 8.9.2014 alongwith the documents provided by the complainants (Annexure R-8 Colly.).

10.       It was further stated that keeping in view the terms and conditions of the Insurance Policy and the provisions of the Motor Vehicles Act, the Company sent letter dated 26.8.2014 to the complainants, whereby they were asked to submit explanation/comments. It was further stated that, in response, the complainants wrote letter dated 5.9.2014 (Annexure R-10). It was further stated that since the vehicle was not having a valid registration certificate on the date of accident, the claim of the complainants was repudiated vide letter dated 14.10.2014 (Annexure R-11) after due application of mind and keeping in view the judgment of the Hon’ble Supreme Court of India in Narinder Singh Vs. New India Assurance Co. Ltd., Civil Appeal No.8463/14 decided on 4.9.2014. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

11.      On 13.03.2015, Counsel for Opposite Party No.2 submitted that since there was no allegation against Opposite Party No.2, therefore, he did not want to file any reply.

12.       The complainants filed replication, wherein they reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of Opposite Party No.1.

13.       The complainants, in support of their case, submitted the affidavit of Smt. Arvinder Kaur (complainant No.2), Proprietor of complainant No.1, by way of evidence, alongwith which, a number of documents, were attached.

14.       Opposite Party No.1, in support of its case, submitted the affidavit of Sh. Azhar Wasi, its Branch Claims Manager, by way of evidence, alongwith which, a number of documents were attached. 

15.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully as also the written arguments of Opposite Party No.1. 

16.       The Counsel for the complainants submitted that Toyota Fortuner car was insured with Opposite Party No.1 and the insured declared value was Rs.20,92,981/-. He further submitted that as per certificate of insurance, insurance was valid from 26.2.2014 to 25.2.2015. He further submitted that only certificate of insurance viz. Pages 4 and 5 were supplied and no terms and conditions were supplied. He further submitted that the application,  Annexure C-2 was submitted for permanent registration of the vehicle alongwith which, certificate regarding inspection of the vehicle from the Inspecting Authority on 18.3.2014 was attached. He further submitted that certificate of registration (Annexure C-3) was valid up to 25.2.2029. He further submitted that Opposite Party No.1 declined the claim on the ground that the vehicle was not registered at the time of accident. He further submitted that the temporary certificate of registration dated 25.02.2014 was valid till 25.03.2014. He further submitted that the Surveyor in his survey report dated 8.9.2014 (Annexure R-8), did not challenge the fact of inspection of the vehicle on 18.03.2014 and attached the same alongwith his report. He further submitted that since complainant No.2 was admitted in the hospital, she could not immediately inform the Opposite Parties about the accident but after discharge, she gave intimation as regards the same on 3.5.2014 (Annexure C-8). He further submitted that as per IRDA Regulations (Annexure C-10), intention of prompt intimation could not be stretched to such an extent even if one was incapacitated.  He further submitted that conditions attached with Annexure R-1, were not part of Annexure C-1 as only page 4 of Annexure R-1 was enclosed. The Counsel placed reliance on Silversons Vs. Oriental Insurance Company Ltd. & Anr, IV (2011) CPJ CPJ 9 (SC).

17.       The Counsel for Opposite Party No.1, submitted that, no doubt, the complainants filled in the application for registration of vehicle (Annexure C-2), which is undated alongwith which, certificate regarding inspection of the vehicle on 18.3.2014 by the Inspecting Authority, was appended. He further submitted that until and unless such application was submitted to the Registering Authority, it could not be accepted that the complainants applied for permanent registration of the vehicle. He further submitted that receipt on account of payment of road tax for the  registration of car etc. in the sum of Rs.1,18,021/- being dated 5.5.2015, which meant that the complainants after getting the vehicle inspected did not apply for the same (Registration) as they deposited the road tax and registration charges on 5.5.2014. He further submitted that show cause notice was issued to the complainants (Annexure R-9) seeking certain clarifications, to which they never replied. He further submitted that no permanent registration number was intimated to the Insurance Company till the time of the accident. He further submitted that intimation with regard to the accident was received on 5.5.2014 vide Annexure R-2, whereas, the accident took place on 30.4.2014 and, as such, there was delay of five days in intimating Opposite Party No.1, which amounted to violation of the terms and conditions of the Insurance Policy. He further submitted that the complainants did not supply the requisite documents, as demanded by the Surveyor, vide letter dated 5.6.2014, for submitting the final survey report. He further submitted that since the vehicle met with an accident after the expiry of temporary registration and the complainants had not applied for permanent registration by that time, there was violation of Section 39 of Chapter IV of the Motor Vehicles Act.  He further submitted that the claim was rightly repudiated vide letter dated 14.10.2014 (Annexure R-11) as the vehicle did not have the valid registration certificate, on the date of accident.  In support of his contentions, the Counsel placed reliance on Narinder Singh Vs. New India Assurance Company Limited and others, 2014 STPL (Web) 567 SC.

18.       The Counsel for Opposite Party No.2 submitted that since no allegation was levelled against Opposite Party No.2, in the complaint, the same deserved to be dismissed against it (Opposite Party No.2).

19.       It is evident that the complainants got their new Toyota Fortuner having Engine No.1KDU486187 & Chassis No.MBJ11JV6104-0259540214, Model 2014, insured with Opposite Party No.1 vide Certificate of Insurance and Policy Schedule (Annexure C-1), valid for the period from 26.02.2014 to 25.02.2015, on payment of premium of Rs.51,477/-. The insured declared value of the vehicle was Rs.20,91,981/. The vehicle, in question, met with an accident on 30.04.2014, intimation whereof was given by the complainants to the Opposite Parties and FIR No.90 dated 30.04.2014 was lodged at P.S. Beas. The claim was lodged by the complainants on 5.5.2014 vide Annexure R-2. It is also evident from Annexure C-7, which is letter dated 14.10.2014, that Opposite Party No.1 showed its inability to accept any liability for the alleged accident as the temporary certificate of registration of the subject vehicle had expired on 25.03.2014 i.e. prior to the date of accident and further there was violation of Section 39 of Chapter IV of the Motor Vehicle Act 1988.

20.         First coming to the contention of the  complainants that the terms and conditions of the Policy were not supplied to them, it may be stated here that the complainants have themselves placed, on record, Certificate of Insurance and Policy Schedule (Annexure C-1), wherein a specific stipulation under the heading “IMPORTANT NOTICE”, was given, which, inter-alia is extracted hereunder:-

“This Schedule, the attached Policy and Endorsements mentioned herein above shall read together and word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.”

From perusal of the aforesaid stipulation, it becomes apparently clear, that the Policy and Endowments were duly supplied to the complainants alongwith the Schedule. Though the complainants have stated, in their complaint, they did not receive the terms and conditions, yet there is nothing, on record, by way of documentary evidence, wherefrom it could be said that the complainants ever agitated the matter regarding non receipt of the Policy terms and conditions on receipt of the Certificate of Insurance and Policy Schedule. Therefore, the contention of the complainants that they were not supplied the Insurance Policy, being afterthought, stands rejected.

21.       As regards the contention of Opposite Party No.1 that intimation with regard to the accident was received late i.e. on 5.5.2014, the case of the complainants is that since complainant No.2, Proprietor of complainant No.1, was admitted in Amandeep Hospital for the period from 30.04.2014 to 03.05.2014, the fact of accident of the vehicle on 30.04.2014, could not be intimated in time to Opposite Party No.1. The Discharge Summary of Amandeep Hospital of Mrs. Arvinder Kaur, complainant No.2, has been placed, on record, by Opposite Party No.1, itself. Perusal of this Discharge Summary makes it abundantly clear that complainant No.2, who is the Proprietor of complainant No.1, got admitted in Amandeep Hospital on 30.04.2014 where she was diagnosed as “(Rt.) Tibia” and the “Operation Notes” were stated as “Closed ILN Rt. Tibia”. Admittedly, she was discharged on 03.05.2014 from the said hospital. Immediately, after her discharge, intimation of accident of the vehicle, in question, was given to Opposite Party No.1 on 5.5.2014 vide Annexure R-2. Therefore, late intimation of accident to Opposite Party No.1, was apparently due to bonafide reasons, which were beyond the control of the complainants, and the same cannot be said to have any adverse effect on the claim. Therefore, the contention of Opposite Party No.1, in this regard, being devoid of merit, stands rejected.

 

22.       The principle question, which arises for consideration, is, as to whether the complainants had applied for permanent registration, after expiry of temporary registration on 25.03.2014 and by 30.04.2014 when the vehicle met with an accident. No doubt, the complainants got the vehicle inspected from the Inspecting Authority on 18.03.2014, as is evident from the certificate (at page 87) but the application form for the registration of motor vehicle being undated, meaning thereby that it did not specify the date on which the same, after getting the inspection of vehicle, was submitted to the Registering Authority. In Annexure R-2, which is a copy of ‘Tata AIG Call Centre – Auto Own Damage & Partial Theft) claims Notification’, against the column “Vehicle Make & Registration Number”, “TOYOTA – FORTUNER FY 4X2 MT” had been written, It means that, as on 5.5.2014, the complainants either did not apply for permanent registration or, if applied, they were not aware of the same but the mere fact that the vehicle was got inspected on 18.03.2014 did not establish that the complainants applied for permanent registration on 18.03.2014. On the other hand, as per high security plate authorization slip (page 96), the registration date was indicated to be 5.5.2014. As per fee receipt No.EF9403 dated 5.5.2014, road tax, registration of car and smart card fee, totalling Rs.1,18,021/- were deposited on 5.5.2014. The registration certificate (at page 88) also shows the date of issuance of registration certificate as 5.5.2014. In FIR No.90 dated 30.04.2014 lodged at Police Station Beas, there is no mention of the vehicle registration number, which proved that the complainants applied for the registration of vehicle after 30.04.2014. Even letter dated 12.7.2014 of the complainants written to Sh. P. K. Bansal, Surveyors and Loss Assessors (Annexure R-5), indicates that when they (complainants) allegedly produced documents for the purpose of registration certificate, it was informed that new series was being released and, therefore, the number of choice was to be given in the auction of the same to be held very soon. Accordingly, registration No.CH-01-AX-7236 was given on 5.5.2014. No cogent evidence in support of this contention has been produced. The fee receipt does not reveal any charges for the choice number and, therefore, the contention of the complainants is apparently devoid of truth. From the aforesaid narration of facts and documents, it is proved that the complainants had not actually applied for permanent registration of the vehicle, in question, by 30.04.2014 when it met with an accident especially when the temporary registration had expired on 25.03.2014. The complainants were not having valid registration certificate on the date of accident.

23.       In Narinder Singh Vs. New India Assurance Co. Ltd.’s case (supra), the Hon’ble Supreme Court of India, held as under:-

“11. We have perused the order passed by the three Forums. The only issue for consideration is, as to whether the National Commission is correct in law in holding that the appellant is not entitled to claim compensation for damages in respect of the vehicle when admittedly the vehicle was being driven on the date of accident without any valid registration as contemplated under the provisions of Section 39 and Section 43 of Motor Vehicles Act. For better appreciation, Section 39 and Section 43 which are relevant are quoted herein below:-

“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.  

"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 this 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.”

12. A bare perusal of Section 39 shows that no person shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act.  

13. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which 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 unforeseen circumstances beyond the control of the owner.

14. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract.” 

24.       In view of the law settled by the Hon’ble Apex Court in Narinder Singh Vs. New India Assurance Co. Ltd., case (supra), either the complainants should have applied for extension of temporary registration of the vehicle or should have applied for permanent registration, before the expiry of the validity period of temporary registration of the same (vehicle), which they did not do. As discussed above, the vehicle, in question, was permanently registered on 5.5.2014. Thus, there was clear violation of Section 39 of Chapter IV of the Motor Vehicles Act, 1988 and Opposite Party No.1, rightly repudiated the claim of the complainants vide letter dated 14.10.2014 (Annexure R-10).  Therefore, no deficiency, in rendering service or indulgence into unfair trade practice, is attributable to the Opposite Parties.

25.       For the reasons recorded above, the complaint, being devoid of merit, is dismissed, with no order as to costs.

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

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

Pronounced.

1^st April, 2015.

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 [DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

MEMBER

 

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