It is a case under section 12 of the Consumer Protection Act filed by the Complainant Shri Shri Bibak @ Bivek @ Bibek Gurung against the O.P, Manager, Reliance General Insurance Company Ltd, Siliguri Branch and another for awarding insurance claim amount of Rs. 1,32,857/-, a sum of Rs. 50,000/- towards mental pain and agony and to pay a sum of Rs.10,000/- towards cost of litigation.
The case of the complainant, in brief, inter alia, is that he is registered owner of vehicle Royal Enfield Motor Cycle bearing temporary registration No. WB-74/1312, Engine No. U3S53C1HC491394, Chassis No.ME3U3S5C1HC825870, Model Classic 350 C.C. The said vehicle was insured by the Complainant with the O.P Reliance General Insurance Co. Ltd, vide insurance Policy No. 9912972312015345 with effect from 15th March, 2017 till 14th March, 2018 covering all type of risks including theft. The said vehicle was insured against payment of Rs. 1,32,857/-. In case of accident or theft of the vehicle the O.P is liable to compensate that amount under the terms of insurance Policy. On 10.08.2017 the Complainant parked his vehicle in regular parking place at the ground-floor in the apartment at Siddhi Garden of Dhoop Company, Pradhan Nagar, Sidliguri. Surprisingly, when the Complainant went there in the morning and looked for the said bike he found that his said bike was not there in the parking lot and it was stolen by some one in the night from the parking place. Thereafter the Complainant registered an F.I.R at Pradhan Nagar Police Station, against unknown accused. When the vehicle was stolen he informed the incident of theft to the Insurance Company. In reply thereto the O.P demanded all the original documents of the bike, two sets of original keys of the stolen bike, copy of F.I.R and copy of Court Order-sheet and Final Report of the complaint. The matter came up before the Ld. Additional Chief Judicial Magistrate at Siliguri who was pleased to observe by its order dated 9.1.2018 that the motor bike was not traceable. On 11th January, 2018, the complainant submitted two sets of original keys of the motor-bike, two cancelled cheques, certified copy of Court’s order sheet, final report on untraced vehicle report, insurance policy in original, copy of the F.I.R, photo copy of relevant documents. The O.P repudiated his claim and did not refund the insurance amount. So, there is deficiency of service. The Complainant on 20.01.2018 sent legal Notice to the Opposite party through his Ld. Advocate claiming the said amount, but the O.P did not respond. The Complainant sent grievance letter to the opposite party through e-mail stating, inter alia that the insurance amount be refunded due to non-coverage of insurance Policy. On 7.12.2018 the O.P negated the claim of the complainant. So, there is deficiency of service u/s.2(1)(O) of the Consumer Protection Act because the Insurance Company when insured the vehicle against the amount claimed then he is accountable to refund the amount of insurance claimed to the Claimant. Further, he is a consumer for availing any kind of service from the O.P against payment of consideration money including theft. Further, section 2(1)(g) of the Consumer Protection Act clarifying that the O.P. is under obligation to fulfill the terms and conditions of the contract made by and between the parties. Therefore, he has made the prayer as stated herein-before.
The documents dated 11.01.2018 relied upon by the Complainant shows that all the documents and set of keys of Reliance Insurance in question has been handed over to the O.P. The case bearing G.R Case No. 2572/17 signed by the Additional Chief Judicial Magistrate speaks that he has received FRT vide no. 549/17 dated 30.11.2017, u/s.379 I.P.C and the same has been filed due to not being able to unearthing the accused involved in the theft case. The said report has been submitted by A.S.I Abu Taleb of Pradhan Nagar Police Station. Further it appears from the document of Darjeeling R.T.O that the application was made by the Complainant bearing vehicle no.WB-170600000090177 dated 1.6.2017 in respect of the stolen vehicle. The said vehicle was purchased on 26.4.2017. Therefore, expiry date of registration is 25.05.2018 Pollution Control Certificate has been relied upon. The incident of theft took place on the following morning after being parked of the vehicle on 10.8.2018. The O.P Reliance Insurance Company Ltd. has replied that the vehicle was not registered at the time of loss and as such u/s. 39 of the Motor Vehicles Act no person shall drive any motor-cycle and no owner of motor vehicle shall allow or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered and certificate of registration of vehicle has not been suspended or cancelled and the vehicle carries registration. The O.P denied to give the claim amount.
Denying the written allegation made in the complaint, the O.P states the instant case is not maintainable against the O.P. on the grounds stated by the claimant. The O.P denies that the vehicle in question was insured with Reliance General Insurance Company Limited at the material time. The said vehicle was purchased by the complainant on 25.02.2017, but the same was stolen on 10.8.2017. The said vehicle was given temporary registration number. So, there was no breach of provision of the Motor Vehicles Act. The claim of the complainant has been rightly repudiated. It does not tantamount to deficiency of service. The complaint is frivolous and fictitious and, therefore, the case may be dismissed.
Both parties in support of their averments have filed evidence in-chief and documents in support thereof.
Having regard to the submission of the respective parties it appears that the O.P has admitted that the claimant has made insurance policy in respect of the vehicle against payment of Rs.1,32,857/- to the O.P and the claimant has been assured that if the claim arises, then they will honour the claim within the validity period of said policy.
In this regard it reveals from the record that the insurance was made on the date of registration as on 26.4.2017. Period of Insurance remain valid from 25.3.2017 to 24.3.2018. The incident of theft took place on 10.8.2017. Therefore, the vehicle in question was stolen during the insurance coverage Policy period. It is covered by the terms of insurance policy that the O.P shall be liable to refund the insurance claim amount of Rs.1,32,857/-. As per doctrine Approbate and Reprobate the O.P cannot retract from terms and conditions of insurance policy. Rather the O.P is liable to pay the insurance claim amount. Application u/s. 39 of the Motor Vehicles Act does not apply here-at in view of the fact that motor-bike was stolen at the parking place i.e. the Ground Floor of the apartment. Section 39 of the Motor Vehicles Act prohibits to ply the vehicle after expiry of the period of registration. In other words section 39 of the Motor Vehicles Act will squarely not be applicable in the instant case, as the same was not stolen on the road or no accident took place on the road, but the Reliance Insurance Company during the insurance period is accountable to pay the insured amount. Moreover, they have acknowledged all stated that all original documents, set of keys of the Royal Enfield Bike on 11.8.2018 by putting signature on behalf of the O.P. As per maxim of law of equity the Complainant will not suffer wrong without remedy. Rather, the O.P has dragged the Complainant to the Court for which he is liable to pay compensation for mental pain and agony including the interest thereon. Furthermore, he is liable to pay litigation cost.
In National Insurance Co.Ltd.-Vs-M/s. Shyam Indus in Revision Petition No.449 of 2018 it has been held by the Hon’ble National Commission in the judgement that section 39 of the Motor Vehicles Act has no application, as the same prohibited driving of unregistered motor vehicle. In that case it appears that the vehicle was stolen while parked in the parking place of tourism complex. The insurance company provided the insurance cover to the subject service vehicle without insisting for its registration, temporarily or permanent, before accepting the proposal for insurance. On perusal of section 43 of the Motor Vehicle Act it would show that even in case of a vehicle having temporary registration such a registration is valid for a period not exceeding one month. Despite that the insurance company instead of providing the insurance cover for one month issued the insurance policy for full one year and charged premium for an year without making it clear to the insured that in case the insured failed to get the vehicle registered within a month from the the date of purchase, the insurance cover would stand withdrawn. If at all there was any intention on the part of the insurer that in the event of any single violation of section 39 of the Act, the insurance cover to the subject vehicle would stand withdrawn, the insurance company was expected to make a clear stipulation in this regard in the insurance contract. The Hon’ble National Commission has gone to the terms and conditions of insurance contract as well as the Motor Vehicle Act . There is nothing in the contract or the Act to provide that in the event of any single violation of provision of section 39 of the Act, the insured shall loose insurance cover if violation of provision of section 39 of the Act, the insured shall loose insurance cover if loss/damage of the vehicle is caused subsequent to the commission of said violation punishable u/s. 192 of the Act. Therefore, the insurance company cannot take advantage of the offence u/s.192 read with section 39 of the M.V Act committed by the insured by driving the vehicle from his residence to the hospital much earlier to the theft of the vehicle which was parked in the parking lot of the hospital. As such repudiation of the claim is not justified.
In the instant case the vehicle has not been plied on the road. Therefore, question of violation u/s. 39 of the M.V Act does not arise at all. Moreover, we are of view that it is an unfortunate event taken place due to theft of the motor-bike. Here insurance coverage is there. The O.P has taken the risk to compensate for theft of the motor-bike belonging to the petitioner, then it has obligation on the part of the complainant to pay the insurance claim amount in question for which it was insured. Repudiation of claim during insurance coverage is illegal in consideration of the fact that the insured will be guided by the terms and conditions of policy but not on the plea of having lapsed the temporary registration period. Fact remains that they have applied for registration before the Regional Transport Authority. which is liable to pay damage the claimant has been dragged to the Court for which he is liable to pay damage, litigation cost, mental pain and agony. Besides that, he shall pay 9% interest on the insured amount of Rs.1,32,857/-.
Accordingly, it is
O R D E R E D
That the Complaint case be and the same is allowed on contest. The O.P Reliance General Insurance Company Ltd. shall pay a sum of Rs.1,32,857/- with interest thereon @ 9% per annum from the date of receiving the information by the O.P as on 11.8.2018 till the date of realization. Besides that, he shall pay a sum of Rs.10,000/- towards mental pay and agony to the Complainant. Further, the O.P shall pay a sum of Rs. 10,000/- towards cost of litigation. Over and above , they shall pay
a sum of Rs. 10,000/- under the head of the Consumer Legal Aid Account, DCDRF, Jalpaiguri. The O.P shall comply with the above order within one month from the date hereof , failing which the O.P shall pay punitive charges @Rs.500/-per day till the date of realization.
Let a copy of this judgment be delivered to the Complainant and the Opposite Party at free of cost for compliance of order as directed herein-above.
