STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH
First Appeal No. | 185 of 2013 |
Date of Institution | 03.05.2013 |
Date of Decision | 08.07.2013 |
HDFC Ergo General Insurance Company Ltd., having its Office at SCO No.124-125, Sector 8-C, Chandigarh, through its Manager.
….…Appellant/Opposite Party No.1.
Versus
1. Tejinder Singh Bhatia s/o Sh.Mohinder Singh Bhatia, SCO No.123-124, 3rd Floor, Sector 17-C, Chandigarh, through his duly appointed attorney Mr.Rajesh Kumar, R/o #1553-A, Sector 41-B, Chandigarh.
….Respondent No.1/Complainant.
2. ARG Marketing Pvt. Ltd., having its Office at SCO No.142-144, Basement, Sector 17-C, Chandigarh through its Manager.
3. Pioneer Toyota, Plot No.177-H, Phase-I, Industrial Area, Chandigarh, through its Managing Director.
.…..Respondents No.2 and 3/Opposite Parties No.2 and 3.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT
SH.DEV RAJ, MEMBER
Argued by:Sh. Sandeep Suri, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for respondent No.1.
Service of respondents No.2 and 3 already dispensed
with vide order dated 6.6.2013.
DEV RAJ, MEMBER
This appeal is directed against the order dated 13.02.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant against Opposite Party No.1 only and directed it (now appellant) as under:-
“15] In view of the foregoing and settled position of law on the subject matter, we are of the opinion that the OP No.1 has wrongly & illegally repudiated the claim of the complainant. Hence, the deficiency on the part of the OP No.1 is proved. The complaint must succeed. The same is accordingly allowed. The OP NO.1 – Insurance Company is directed to pay the Insured Declared Value of Rs.19,23,750/- to the complainant and shall retain the salvage. The OP No.1 is also directed to pay Rs.25,000/- as compensation and Rs.10,000/- towards cost of litigation to the complainant.”
However, the complaint against Opposite Parties No.2 and 3, was dismissed by the District Forum.
2. The facts, in brief, are that the complainant purchased a Toyota Fortuner MUV from Opposite Party No.3 for Rs.20,55,465.54Ps vide Ann.C-2 and a temporary No.CH-05-T-9842 was issued. It was stated that the said vehicle was duly insured by Opposite Party No.1 through Opposite Party No.2 vide policy (Ann.C-4) valid from 26.12.2011 to 25.12.2012. It was further stated that unfortunately, the said vehicle met with an accident on 02.04.2012, in which, the same was extensively damaged and a DDR was duly got registered with the Police (Ann.C-5). The criminal case was subsequently compromised. It was further stated that Opposite Party No.1 was duly intimated about the loss and the claim was filed. It was further stated that the complainant had applied for the permanent registration number of the said vehicle, which was issued only on 11.5.2012 (Ann.C-7) as CH-01-AM-5901. It was further stated that the vehicle, in question, was taken for repairs to Opposite Party No.3, which gave an estimate of repair of Rs.17,71,867/- (Ann.C-7-A). It was further stated that the complainant was expecting that the Opposite Party-Insurance Company, would declare the vehicle as a total loss, as the estimate of repairs was more than 75% of the IDV but it vide letter dated 24.7.2012 (Ann.C-8) repudiated the claim, on the ground, that the vehicle was not registered at the time of accident and reference was made to Section 39 of the Motor Vehicles Act, 1988. It was further stated that the terms & conditions of the policy were never supplied to the complainant and only a single page (Ann.C-4) was supplied to him. It was further stated that Opposite Party No.1 was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), seeking directions to Opposite Party No.1, to pay Rs.19,23,750/- on total loss basis; Rs.35,000/- as compensation for mental agony and harassment and Rs.33,000/- as costs of litigation, was filed.
3. Opposite Party No.1, in its written version, admitted the factum that the vehicle was insured with it. It was stated that the vehicle insured with the Company, was purchased for commercial purpose; and as such, the complainant was not covered under the definition of consumer under Consumer Protection Act. It was further stated that the complainant had violated the provisions of the Motor Vehicles Act, 1988, as the permanent registration number was to be applied for within one month of the purchase of the vehicle but he did not do so. It was further stated that the complainant also violated the terms and conditions of the insurance policy. It was further stated that the complainant had not intimated about the accident to Opposite Party No.1 within time. It was further stated that on receipt of intimation of the accident, Surveyor Er. Mohit Sharma was appointed, who in turn requested the complainant to furnish the requisite documents to enable him to process the case and, in the process, a letter dated 11.6.2012 was also written (Ann.R-1). It was further stated that the complainant failed to furnish the information as requested in the said letter. It was further stated that since the breach aforesaid was committed by the complainant and, as such the Insurance Company was justified in repudiating the claim. It was further stated that, the Opposite Party No.1, was neither deficient, in rendering service, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, in its written version, stated that since, it had no role to play in processing and settling the claim, therefore, the complaint against it, be dismissed. It was further stated that Opposite Party No.2 was neither deficient, in rendering service, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong. Subsequently, vide order dated 10.1.2013, Opposite Party No.2, was proceeded against exparte.
5. Opposite Party No.3, did not appear before the District Forum, despite service, and, accordingly, it was proceeded against exparte vide order dated 09.10.2012.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties and, on going through the evidence and record of the case, the District Forum, allowed the complaint, qua Opposite Party No.1 only, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the Opposite Party No.1.
9. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
10. Admittedly the vehicle was insured with the appellant/opposite party No.1, for which policy (Ann.C-4) valid from 26.12.2011 to 25.12.2012 was issued. As per the policy, the Insured Declared Value of the vehicle was Rs.19,23,750/- and the premium paid was Rs.45,859/-. The temporary registration number CH-05-T-9842 (Ann.C-3) was valid up-to 20.11.2011. The accident took place on 2.4.2012 whereas the vehicle was registered on 11.5.2012 (Ann.C-7). Thus the vehicle was without any valid registration for about six months i.e. from 20.11.2011 till 10.5.2012. The core question, that requires determination, is, as to whether, in the absence of a valid registration of the vehicle, at the time of accident, the insurance claim was tenable or the same was rightly repudiated. The contention that the respondent No.1/complainant had applied for registration before the accident took place, was not established as no evidence in support thereof was produced. The complainant even did not indicate the date, on which, he applied for the permanent registration. The temporary registration issued, at the time of purchase of the vehicle, was valid only for a period of one month i.e. up to 20.11.2011. As per DDR No.13, which was regarding compromise arrived at between the complainant and the accused, the vehicle, at the time of accident, was having temporary registration No.CH-05(T) 9842. Had the complainant actually applied for registration, before the accident took place, there would have been no reason for him to have the temporary registration number, validity of which, stood expired, on 20.11.2011, i.e. much before the accident on 2.4.2012. Therefore, the contention of the Counsel for respondent No.1/complainant not worthy of acceptance.
13. The Counsel for Appellant/Opposite Party No.1, placed reliance on Nisha Vs. ICICI Lombard General Insurance Co. Ltd. and Others, Revision Petition No.3394/2011 decided on 04.09.2012 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, Rikhi Ram and another Vs. Smt. Sikhrania and Others, AIR 2033 SC – 1446, Kaushalendra Kumar Mishra Vs. Oriental Insurance Co. Ltd., Revision Petition No.4043 of 2008 decided by the Hon’ble National Commission on 16.02.2012 and Narinder Singh Vs. New India Assurance Co. Ltd., Revision Petition No.4951 of 2012 decided by the Hon’ble National Commission on 12.04.2013, and submitted that in case of accident of the vehicle, if the owner was not holding the registration certificate at the relevant time, then the repudiation of the claim of the complainant, could be legally and validly made by the Insurance Company.
14. In Nisha Vs. ICICI Lombard General Insurance Ltd’s case (supra), the vehicle was got registered with the concerned transport authority on 22.03.2007 i.e. after about 14 days of the accident, in which the vehicle, in question was damaged. The Hon’ble National Commission held that plying of a non-registered vehicle, was an offence prescribed under the Rules framed under the Motor Vehicle Act, 1988 and in terms, could be seen as a fundamental breach of the terms and conditions of the policy.
15. In Narinder Singh Vs. New India Assurance Co. Ltd. and others’ case (supra), the vehicle was temporarily registered for a period of one month, which expired on 11.01.2006. On 02.02.2006, the vehicle met with an accident and got damaged. The licence, possessed by the driver, had been endorsed for HGV w.e.f 20.04.2002, and for LMP – Transport also w.e.f. 07.06.2003. Both the endorsements were valid for thee years. Though the Driver was having a valid and effective licence, yet at the time of accident on 02.02.2006, the vehicle was being driven without registration, which was prohibited under Section 39 of the Motor Vehicles Act, 1988. The Hon’ble National Commission, upheld the order of State Commission, vide which the order of District Forum below, allowing the complaint, was set aside. The Revision Petition filed by the complainant Sh. Narinder Singh, was dismissed.
16. In case Kaushalendra Kumar Mishra Vs. The Oriental Insurance Co. Ltd., (supra), the Hon’ble National Commission, after quoting the provisions of Section 39 of the Motor Vehicles Act, 1988, held the view that till the vehicle receives the certification of registration, from the competent authority, it was not legally useable on roads and the Insurance Company was justified in repudiating the claim.
17. The ratio of law laid down in the cases, relied upon by the Counsel for the appellant/Opposite Party No.1, is fully applicable to the facts of the instant case, as the validity of the temporary registration number, allotted to the vehicle, in question, had expired, on 20.11.2011, i.e. much before the accident on 2.4.2012. In these circumstances, the order of the District Forum, directing the appellant/Opposite Party No.1, to pay the Insured Declared Value of Rs.19,23,750/- to respondent No.1/complainant, is contrary to law as also documents, on record.
18. Reliance placed by the District Forum on Oriental Insurance Company Ltd. Vs. Pearls Buildwell Infrastructure Ltd. & Ors., (2012) CPJ 102 (NC), pertained to repudiation of claim when the vehicle did not have permanent registration at the time of theft and it was held that the insurance company was not entitled to repudiate the claim on the ground that the vehicle was not registered. Further, in case Iffco Tokio General Ins. Company Ltd. & Anr. Vs. Pratima Jha, II(2012) CPJ 512 (NC), it was held that the contention that there was violation of law, which prohibited the use of unregistered vehicle, was not acceptable. The Insurance Company was not entitled to repudiate the claim merely on ground that the vehicle had not been registered.
19. In the cases, referred to in para no.18 above, the claims pertained to the loss of vehicle eon account of theft, whereas, in the instant case, the claim repudiated was not pertaining to theft but related to the damage caused to the vehicle in an accident. No help, therefore, can be drawn by the Counsel for respondent No.1/complainant from ratio of law laid down in these cases.
20. No other point, was urged, by the Counsel for the parties.
21. In view of the above discussion, it is held that the order, passed by the District Forum, suffers from illegality and perversity, warranting the interference of this Commission.
22. For the reasons recorded above, the appeal filed by the appellant/Opposite Party No.1, is accepted, with no order as to costs. The order, passed by the District Forum, is set aside. The complaint filed by respondent No.1/complainant is dismissed.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
8th July, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.185 of 2013)
Argued by:Sh. Sandeep Suri, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for respondent No.1.
Service of respondents No.2 and 3 already dispensed
with vide order dated 6.6.2013.
Dated the 8th day of July, 2013.
ORDER
The applicant/appellant has filed an application for condonation of delay of 44 days, which as per the office report, is 43 days. It has been submitted that certified copy of the order dated 13.02.2013, was prepared on 20.02.2013, which was collected by the Counsel and posted to the office of the appellant/Opposite Party situated at Noida. Thereafter, several correspondence/emails were exchanged and on receiving envelope, on 13.04.2013 by the Counsel, it was found that the same was open and the affidavits etc. were missing. It was further submitted that on 14.04.2013, the Counsel again requested vide email dated 14.4.2013 to the Company, to sign Vakalatnama/appeal etc. The Company dispatched the packet on 17.4.2013, which reached the Counsel around 19th/20th April, 2013. It was further stated that the Counsel was undergoing treatment/tests at AIIMS, Delhi from 18th to 24th April, 2014 (In fact 2013 as is apparent from copy of Hospital Card dated 23.4.2013 annexed with the application) and after his discharge, the appeal was filed on 3.05.2013.
2. Respondent No.1, opposed the application for condonation of delay pleading that the ground put forth by the applicant/appellant, was totally false.
3. The application for condonation of delay is duly supported by an affidavit of Sh. Shyama Charan Vats, Assistant Manager (Legal) of the applicant/appellant Company and photocopies of e-mails/correspondence, which took place between the applicant/appellant and the Counsel, during the period, in question. The submission of the Counsel that he was undergoing treatment, is also supported by a copy of the Hospital Card dated 23.4.2013 annexed with the application for condonation of delay. The delay in filing the appeal is not so huge. It is settled principle of law that every lis should normally be decided on merits, than by default. The main purpose of the Consumer Foras, is to dispense substantial justice. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. There is, therefore, sufficient cause, for condoning the aforesaid delay.
4. For the reasons, recorded above, the application for condonation of delay is allowed and the delay aforesaid, in filing the appeal, is condoned.
5. Admitted. It be registered.
6. Arguments, in the main appeal already heard.
7. Vide our detailed order of the even date, recorded separately, the appeal has been accepted with no order as to costs. The impugned order, passed by the District Forum has been set aside, and the complaint has been dismissed.
8. Copies of the order be sent to the parties free of charge.
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(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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