FINAL ORDER/JUDGMENT

Presented by:

Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case:     This case is filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant purchased an Escort tractor for his agricultural purpose being vehicle model and variant No.PT 439 BS+, being Engine No.E3257062 and Chasis No.T05-3232389 from the O.P.No.3’s showroom at the address mentioned above on 30.05.2014 at Rs.6,60,515/- through the financer, L&T. Finance Co. Ltd. and the O.P no.2 is a servicing branch office and carrying on insurance business throughout India having its head office at 6^th & 7^th Floor, City 2 Plot No-177, CST Road, Kalina Santacruz (E), Mumbai-400098, The State of Maharashtra i.e. the O.P no.1 and the O.P.no.3 is an agent of O.P. No.2 having its showroom at G.T. Road, Boso, Niala, Pandua, P.O & P.S-Pandua, Dist-Hooghly, Pin-712149. The vehicle was delivered on 28.08.2014 to the complainant by the showroom through a tax invoice to the complainant and all the papers with an assurance that registration of the said vehicle  be rendered by the said office of the O.P.no.3  which was under process and your complainant took an insurance policy of the said tractor from the O.P.no.2 through the office of the O.P.no.3 on 08.09.2014 being policy no.915106003863430000, policy valid from 08.09.2014 to 07.09.2015 and sum assured of the vehicle was made on the value of Rs.6,15,825/-.  When the vehicle was handed over to your complainant, the registration of the said vehicle was not completed.  As such, the complainant after receiving the said vehicle which was kept in his  garage within the house premises of your complainant at Vill – Ilampur, P.O-Tinna, P.S-Pandua, Dist-Hooghly and the vehicle had not been plied on the road or in the field  and your complainant on 22.09.2014 at about 10:30 p.m. lastly saw the said tractor in the garage and when going for sleeping but at the dawn at about 3:00 a.m. when the complainant went for urinal, saw that the tractor had been missing. After searching hither and thither, the complainant understood that the vehicle was stolen and no chance of recovery of the said vehicle the complainant rushed to the Pandua P.S for lodging a specific criminal case against the said theft and lodged a criminal case being case no.498/14 dated.23.09.2014 U/s 379 of the I.P.C.  The police of Pandua P.S. then came to the house of the complainant and made thorough investigation about the said theft and every possible attempt were made to recover the said vehicle.  But all their efforts were ended in smoke.  At last, the Pandua P.S. submitted final report (F.R.T) on 21.12.2014 which was accepted by the Ld. C.J.M, Hooghly Sadar on 28.01.2015 in which the investigation officer opined that the case was totally clueless and no chance of recovery in near future.  Hence due to unnecessary dragging of the case and without fruitful result, he submitted final report U/s.379 I.P.C though the case is true, if any vehicle be detected in future, the case would be reopened and the complainant then informed to the O.P.no.1’s office and lodged a claim against the said loss of theft being claim no.93510600038232 and R.T.O., Hooghly for the above theft.  The O.P. no.1’s office sent one surveyor and investigated the said matter and received some original documents and keys of the vehicle from your complainant and assured that loss would be compensated under the coverage of insurance policy but since then the O.P.no.1’s office did not pay any heed to that matter nor settled the claim till today and lastly on 16.02.2016. O.P. no.1’s office sent a letter to the complainant repudiating the claim due to non-registration of the said vehicle which is necessary for registration U/s.39 of the Motor Vehicles Act.

           Complainant filed the complaint petition praying direction upon the opposite party no. 4 to pay of Rs.6,15,825/- along with  Rs.10,000/- as litigation cost and direction upon the opposite party no. 1 to pay the said amount in favour of the complainant.

Defense Case:-     The opposite party Nos. 1 and 2 contest the case by filing written version denying inter-alia all the material allegations  leveled against them and states that during the investigation, it was revealed that the complainant had no registration for the said vehicle and the same was informed by the complainant himself in the FIR lodged with the police authorities and the O.P No.1&2 after receipt of the report and on the basis of the investigation and examination of the submitted documents O.P.No.1 &2 found that according to the documents submitted by the petitioner it was observed that the registration of the vehicle was not done on the alleged date of loss  though the vehicle was delivered on 30/05/2014.  Hence the complainant had not applied for registration of the vehicle which amounts to violation of general condition of the policy as mentioned in the schedule of policy “Limitations as to use: As per Motor Vehicle Rule 1989”.  In the said Rules Section 39 speaks as Follows : 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 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 carriers a registration mark displayed in the prescribed manner” and in view of the above conjunction with condition of policy is that “Due to the observance and fulfillment of terms, conditions and endorsement of this policy in so far as they relate to anything to be done or compiled with by the insure and the truth of the statement and answer in the said proposal shall be conditions precedent to any liability of the company  to make any payment under the said policy” and the above fact was duly communicated to the petitioner by this OP NO.1 and 2 vide its letter dated 16/02/2016 and thereby this OP No.1 and 2 thus repudiated the claim which is as per law and equity for which this OP No.1 and 2 have caused no deficiency in service as alleged.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

The O.P. Nos.1,2,4 have filed a joint evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

           Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:    In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1)(d) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.

Issue no.2:     With regard to the point of jurisdiction O.P nos. 1 & 2 have taken assistance of section 11 of the C.P. Act 1986 and lastly have come to the decision that the petitioner has not fulfilled the conditions laid down therein and by suppressing the actual material facts and with mala fide intention the petitioner has taken chance to institute the present proceeding before the Ld. Commission and as such the same deserves to be dismissed.

On perusal of receipt no. 257 dt. 30/5/14 along with receipt no. 512 dt. 28/8/14 there appears reason to believe that the tractor in question was delivered to the petitioner on 28/8/14 and it appears that both the documents help this commission to come to the conclusion that the date of delivery of the vehicle was made on 28/8/14 by the proprietor Saket Motors whose office has been shown within the jurisdiction of this commission.

In view of the position stated above the allegation leveled against the petitioner relating to jurisdiction of this commission is of no avail.

The tractor has been purchased for Rs.6,60,519/ only.

Thus both the issues are disposed of in favour of the petitioner

Issue nos. 3 & 4:      Both the issues are taken up simultaneously for the sake of convenience.

It is apparent on the face of the record that as the registration of the vehicle was not completed the complainant kept the vehicle in his garage which is within his house premises in an enclosure and confined. The vehicle did not a ply on the road. The specific case of the complainant is that on 23/9/14 at about 3.00 am he found the tractor missing which was kept in his house for which he understood that the vehicle was stolen and he rushed to Pandua P.S to lodge a criminal case. Accordingly, Pandua P.S case no 498/14 dated 23/9/14 under section 379 IPC was lodged and a thorough investigation about the said theft was made to recover the said vehicle which ultimately could not yield any fruitful result for which final report was submitted n 21/12/14 and the same was accepted by Ld. CJM Hooghly sadar on 28/1/15. The photo copies of the petition of complaint and the investigation report along with the copy dated 20/3/15 of Ld. CJM Hooghly have been filed.

This petition of complaint has been challenged on two grounds of which the 1 st relates to non registration of the vehicle and the second one is that the matter of theft was not intimated to the insurance company immediately after the occurrence of theft. Motor Vehicle Rules 1939 lays down the 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 carriers a registration mark displayed in the prescribed manner”. Be it mentioned herein that registration is a must when the vehicle requires to be plied in any public place or in any other place. That the vehicle in question was kept within the premises of the complainant and nothing has been shown on behalf of the O.Ps that the tractor was driven in any public place and as such this point does not help the O.Ps in any way.

Let us now discuss the matter relating to second point i.e the issue of theft. In this connection we may refer to written version of the answering O.P 1 & 2 which this commission cannot but quote para 12 of the same which runs as “Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim, and, thereafter the insured shall give all such information and assistance as the company shall require.”

It has been decided by a catena of decisions by the Honble Apex Court that an insurance company cannot repudiate a claim merely on the ground that there was a delay in intimating about the occurrence of theft. In the present case the tractor in question was insured with the HDFC Egro General Insurance Co. Ltd erstwhile L & T General Insurance Co. Ltd which repudiated the claim of the complainant stating that there was a breach of the condition of the policy which mandated immediate notice to the insurer of the accidental loss. In the instant case the complainant has intimated about the occurrence of theft after seven days of the loss and the O.P1 & 2 alleged that such an incident of theft could have been intimated to the company immediately upon the occurrence of the theft. Both the O.P 1 & 2 have admitted in para 12 of their W.V that the incident of theft was intimated to them after 7 days of the occurrence and that is a breach of the condition of the policy and that is the reason the insurance company has disowned its liability on the claim of the claim of the complainant.

Admittedly, object of giving notice to the police appears to be for giving a notice to the police so that it can be set in motion and the complainant appears to have lodged FIR immediately after the theft of his tractor and after completion of investigation when the same could not be traced out police submitted FRT. In that view of the matter as per admission of the O.P 1 & 2 in their written version in para 12 the mere delay in intimating the insurance company of seven days relation to the occurrence of the theft cannot be said to be a genuine ground to deny the claim of the insured  .

Both the issues are thus disposed of.

Hence

ordered

that the complaint case no.100 of 2016 be and the same is decreed on contest against O.P ! & 2 and dismissed against O.P 3.

The O.P 1 & 2 do pay Rs. 6,15,825/ along with Rs. 10000/for litigation cost and also do pay Rs.10000/ for mental agony. The entire amount will have to be paid within 45 days from date failing which the complainant is at liberty to take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.