Andhra Pradesh

Chittoor-II at triputi

CC/29/2015

G.Kesavulu, S/o. G.Shanmugam - Complainant(s)

Versus

The Senior Divisional Manager, National Insurance Company Ltd., - Opp.Party(s)

K.Ajey Kumar

19 Aug 2016

ORDER

Filing Date: 16.07.2015

Order Date:19.08.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

FRIDAY THE NINTEENTH DAY OF AUGUST, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.29/2015

 

 

Between

 

G.Kesavulu,

S/o. G.Shanmugam,

D.No.6-1-64/A24, Varadaraja Nagar,

K.T.Road,

Tirupati  517 507.                                                                          … Complainant

 

 

 

And

 

 

The Senior Divisional Manager,

National Insurance Company Ltd.,

Divisional Office,

D.No.241, 1^st Floor, G.N.Mada Street,

Tirupati  517 501.                                                                         …  Opposite party.

 

 

 

 

            This complaint coming on before us for final hearing on 28.07.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Ajey Kumar, counsel for complainant, and Sri.Gotti Gajendra, counsel for opposite party, and having stood over till this day for consideration, this Forum makes the following:-

 

 

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section - 12 of C.P.Act 1986, by the complainant for the following reliefs against the opposite party 1) to direct the opposite party to settle the claim of Rs.1,35,000/- being the vehicle cost with interest at 24% p.a. till the date of payment, 2) to direct the opposite party to pay Rs.2,00,000/- towards compensation for damages and deficiency in service on the part of the opposite party, 3) to direct the opposite party to pay finance dues of the vehicle paid by the complainant with accrued interest and 4) to direct the opposite party to pay Rs.5,000/- towards costs of the litigation.

            2.  The brief averments of the complaint are:-  that the complainant purchased Yamaha R-15 motorcycle for Rs.1,35,000/- from R.K.Enterprises, Tirupati, under hire purchase agreement with Sriram City Union Finance Ltd, Tirupati, on 06.10.2011. The vehicle is insured with the opposite party under policy No.55220031116200004086. The cost of the said motorcycle was Rs.1,09,990/-, but it was financed for Rs.1,35,000/-, that the said motorcycle was stolen by some strangers during the night of 12.07.2012. In this regard, a case in Crime No.298/2012 was registered under Section-379 of IPC in Alipiri Police Station. The complainant intimated about the theft of the vehicle to the opposite party staff. Police gave final report subsequently. That the opposite party issued claim forms vide reference No.552200 dt:20.03.2014. The complainant submitted the claim form to opposite party, but so far his claim was not settled, despite his legal notice to opposite party dt:22.08.2014. The opposite party gave reply on 27.08.2014 demanding production of certain documents for processing the claim. The complainant submitted required documents again to the opposite party on 02.03.2015, but the opposite party till today did not settle the claim, as such there is deficiency in service on the part of the opposite party. Hence the complaint.

            3.  The opposite party filed its written version contending that the Yamaha- R15 motorcycle was under temporary registration No.AP-03-TVTR-4694. That the vehicle was insured with opposite party under policy No.552200/31/11/620000486. Policy is covered the period from 05.10.2011 to 04.10.2012. Thus the policy is in force by the date of theft. That the opposite party received notice dt:22.08.2014 and rejoinder dt:01.09.2015, for which the opposite party gave suitable reply dt:27.08.2014 and 22.09.2014 respectively. That the complainant intimated the opposite party, that his motorcycle was stolen by unknown person on 21/22-07-2012 at his residence. He gave a complaint before police on 22.07.2012 and Alipiri police registered a case in Crime No.298/2012 dt:13.09.2012. That the opposite party addressed a letter dt:20.03.2014 requesting the complainant to confirm whether the vehicle is registered or not, as it was under temporary registration, and further requested the complainant to furnish all the documents including the R.C. of the vehicle, but so far the complainant did not supply the documents of the vehicle as required, temporary registration of the vehicle is valid only for 30 days i.e. from 06.10.2011 to 04.11.2011, within the said period the complainant has to get his vehicle registered under Section-39 of the M.V.Act, else it amounts violation of terms and conditions of the insurance policy and the provisions of Section-192 of the M.V.Act. Complainant violated Sections-39, 43 and 192 of MV Act. Therefore, he is not entitled to the claim. There is no cause of action for filing this case, complaint is not maintainable and prays the Forum to dismiss the complaint with costs.

            4.  The complainant filed his chief affidavit as P.W.1 and got marked Exs.A1 to A12. For the opposite party R.W.1 and R.W.2 filed their evidence affidavits and got marked Exs.B1 to B4. Both the parties have filed their respective written arguments.

            5.  Now the points for consideration are:-

            (i)  Whether there is deficiency in service on the part of opposite party?

            (ii)  Whether the complainant is entitled for the reliefs sought for?

            (iii) To what relief?

            6.  Point No.(i):- before answering this point, admitted facts are to be noted. That the complainant has purchased Yamaha-R15 motorcycle for Rs.1,35,000/- from R.K.Enterprises, under hire purchase agreement with Sriram City Union Finance Ltd. Tirupati, on 06.10.2011 undisputedly. That the vehicle is insured with opposite party under policy No.55220031116200004086. The policy is covering the period from 05.10.2011 to 04.10.2012. The vehicle was stolen during the night of 12.07.2012. By the date of theft of the vehicle, the vehicle is under temporary registration bearing No.AP-03-TVTR4694 admittedly. The main dispute that was raised by the complainant is after the theft he has given complaint with Alipiri police, on the basis of which a case in Crime No.298/2012 under Section-379 IPC was registered in Alipiri police station, that the complainant also informed the opposite party about the theft of his motorcycle, which is also not in dispute. That the police has given a final report under Ex.A2 dt:31.10.2013. The complainant has made his claim as per the claim forms issued by the opposite party vide reference No.552200 dt:20.03.2014, but so far the opposite party did not settle the claim.

7.  The opposite party on the other hand contending only one point i.e. the vehicle Yamaha-R15 vehicle in question was under only temporary registration on the date of theft, since the complainant has not registered his Yamaha vehicle as required under Section-39 of the M.V.Act, it amounts violation of the terms and conditions of the policy and also violation of Sections-39, 43 and 192 of M.V.Act. As the complainant violated the terms and conditions of the policy and also the provisions of M.V.Act, he is not entitled for the claim amount / insured amount. The complainant either before the date of theft i.e. after expiry of 30 days of temporary registration period or even subsequent to date of theft no attempts were made to get his vehicle registered with the registration authorities, as such his claim could not be settled and he is not entitled for the claim.

8.  The learned counsel for the complainant while advancing arguments reproduced the complaint averments and further contended that the complainant gave complaint on 13.09.2012. The police gave final report on 31.10.2013 stating that the vehicle could not be traced-out. The complainant approached the opposite party after final report on 20.03.2014 and gave claim form along with all documents, but the opposite party failed to settle his claim, as such notice was given by the complainant requesting the opposite party to settle his claim. Inspite of the said notice, opposite party failed to settle his claim, as such there is deficiency in service on the part of the opposite party, with whom the vehicle was insured and premium amount was paid, though the vehicle was stolen by some unknown persons during the period the policy is in existence. Therefore, the opposite party is liable to pay the claim amount as well as compensation for the deficiency in service on their part.

9.  The learned counsel for the opposite party argued that the vehicle is on temporary registration and it is valid from 06.10.2011 to 04.11.2011. The vehicle was purchased on 06.10.2011, theft is on 22.07.2012, complaint was registered on 13.09.2012, with a delay of two months, and vehicle is not registered with the competent authority. The opposite party sent Ex.B1 letter dt:20.03.2014 requesting the complainant to furnish R.C of the vehicle. Admittedly, vehicle is not registered. Therefore, the complainant has violated the provisions of Section-39, 43 and 192 of the M.V.Act, that the opposite party is not aware of the installments said to have been paid by the complainant and the opposite party is in no way concerned for the loan amount.

10.  The learned counsel for the complainant relied on a decision reported in     I (2014) CPJ 4 (Punj.) and also another decision of the Hon’ble Supreme Court in Civil Appeal No.2703/2010 (arising out of SLP(C) No.11227/2009) and stated that the opposite party cannot repudiate or reject the insurance claim on the ground that the vehicle was not registered as required under Section-39 and 43 of M.V.Act  In the above referred decision of Punjab State Consumer Disputes Redressal Commission their Lordships held that “on merits, the insurance of the vehicle by the answering respondents and theft of the same was admitted”. The insurance company cannot repudiate the claim merely on the ground that the vehicle had not been registered, and for this proposition a case reported in II(2012) CPJ 512 NC was relied on. In this Hon’ble National Commission judgment it was observed in para.8 and 9 that “in the revision petition, the petitioner has emphatically urged the point of violation of Section-39 of the Motor Vehicles Act, which prohibits use of an unregistered vehicle. It has also referred to the consequences, which can flow under Section-177 from non-registration. According to the appellant, Section-43 of the Motor Vehicles Act, also lays down that a temporary registration shall be valid only for a period of one month, except under certain circumstances allowed in the provision. It is contended that if there is violation of law as contained n the above mentioned provisions, the contract or agreement would fall whether there is an express provision in this effect in the terms and conditions to that effect, or not. That the above stand in the revision petition, in our view is an unconvincing attempt on the part of the revision petitioner to circumvent a concurrent finding of fact given by both the Fora below. We therefore have no hesitation in rejecting it at threshold itself. We may point out that in HDFC Chubb General Insurance Co. Ltd. Vs. ILA Gupta and Ors. This Commission had held that the insurance company is not entitled to repudiate the claim merely on the ground that the vehicle had not been registered. This view has again been affirmed by this Commission in Oriental Insurance Co. Ltd. Vs. Swami Devi Sayal Hi Tech Education Academy”. Relying on the above decisions of Hon’ble National Commission, the Hon’ble Sate Commission, Punjab held that repudiation passed by the insurance company is not justified as it was only on the ground that at the time of theft, the car was not been plied by the owner, no nexus between Section-39 of M.V.Act and cause of theft. The facts of another decision of the Hon’ble Supreme Court are not attracted by the facts of the case on hand, as the car was used as taxi instead of personal use as mentioned in the insurance policy.

11.  In the case on hand, it is not the case of opposite party that the complainant did not lodged complaint before the police immediately after the theft of motorcycle, that it is not the case of opposite party that complainant did not intimate to the opposite party about the theft of the vehicle in question and that it is not the case of opposite party that the complaint was lodged in delay or intimation about theft was made to the opposite party with delay. On the other hand, the opposite party has admitted the insurance of vehicle and the policy in force as on the date of theft. Therefore, in our opinion opposite party insurance company cannot reject the claim of the complainant only on the ground that the motorcycle was not registered with the competent authority on the date of theft. In the above circumstances, even after temporary registration was expired, either rejecting the claim of the complainant or keep the claim of the complainant pending with the opposite party for years together or repudiating the claim of the complainant certainly amounts to deficiency in service on the part of the opposite party. Accordingly, this point is answered.

12. Point No.(ii):-  to answer this point, it is pertinent to state that the vehicle was insured for a sum of Rs.1,00,000/- only and the IDV (insured declared value) is shown as Rs.1,07,841/-. In the complaint, the complainant himself mentioned that the cost of the vehicle is Rs.1,09,990/- but it was financed for Rs.1,35,000/-, irrespective of the cost of the vehicle or the total amount financed for the vehicle or the insured declared value, the complainant is only entitled to either insured amount or IDV of the vehicle, but not the financed amount. The date of theft is during the night of 12.07.2012. In the written version, the opposite party mentioned that the date of theft of the vehicle in question is during the night of 21/22-07-2012. In the FIR under Ex.A12 also the date of theft is noted as 12.07.2012, the date of complaint is shown as 13.09.2012, but the opposite party did not raise any plea that there was delay in lodging FIR or there is delay in intimating about theft of the vehicle to the opposite party. On the other hand, the opposite party has admitted that vehicle was stolen away by unknown person and that the complainant has lodged complaint before Alipiri police station and also that the opposite party was intimated about the theft of the vehicle. Having admitted all these facts, insurance company still keeping the claim form pending with them for the reasons best known to it. In the above circumstances, we are of the opinion that since the opposite party has admitted the insurance of the vehicle in question and payment of premium, the opposite party has to indemnify the loss that was caused to the complainant due to the theft of the vehicle. So far as other claims relating to the complainant and financier Sri Ram City Union Finance Ltd., Tirupati, is in no way concerned to the opposite party. As such the opposite party is need not pay the loan amount or loan installments that were availed by the complainant from the said Sri Ram City Union Finance Ltd., and the opposite party is also not liable to pay the loan installments due or already paid by the complainant.

13. Point No.(iii):-  in view of our holding on points 1 and 2, we are of the opinion that the complainant is entitled to the IDV (insured declared value) of the motorcycle Yamaha – R15 under temporary registration No.AP-03-TVTR-4694, for a sum of Rs.1,07,841/-, that the complainant is also entitled for the compensation of Rs.20,000/- for deficiency in service on the part of the opposite party and also complainant is entitled to the costs of the litigation.

In the result, complaint is partly allowed directing the opposite party to pay a sum of Rs.1,07,841/- (Rupees one lakh seven thousand and eight hundred and forty one only) towards insurance amount i.e. IDV, with interest at 9% p.a. from the date of claim i.e. 20.03.2014, till realization, that the opposite party is also directed to pay Rs.20,000/- (Rupees twenty thousand only) towards compensation for the deficiency in service on the part of opposite party and also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite party is further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the compensation amount of Rs.20,000/- shall also carry interest at 9% p.a. from the date of order, till realization. Rest of the claim of the complainant is dismissed.   

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 19^th day of August, 2016.

 

       Sd/-                                                                                                                      Sd/-           

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

 

Witnesses Examined on behalf of Complainant.

 

PW-1: G. Kesavulu (Evidence Affidavit filed).

 

Witnesses Examined on behalf of Opposite Parties.

 

RW-1: B. Somla Naik (Affidavit filed)

RW-2: K.S.R.C.S. Vidya Sagar (Chief / Evidence Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

 

Exhibits (Ex.A)	Description of Documents
	Letter issued by National Divisional Office. Dt: 20.03.2014.
	Photo copy of final report issued by Alipiri P.S. ,Tirupati. Dt: 31.10.2013.
	Photo copy of Vehicle Registration Certificate bearing Regd. No.AP-03/TVTR-4694. Dt: 06.10.2011.
	Photo copy of Tax Receipt for vehicle bearing Regd.No.AP-03/TVTR-4694. Dt: 06.10.2011.
	Photo copy of Sale Certificate in Form No. 21.  Dt: 06.10.2011.
	Photo copy of VAT Invoice issued by R.K. Enterprises. Dt: 06.10.2011.
	Photo copy of Insurance Policy for the vehicle bearing No.AP-03/TVTR-4694. Dt: 05.10.2011.
	Office copy of Legal Notice issued by the Complainant. Dt: 22.08.2014.
	Office copy of Reply Notice issued by the Opposite Party. Dt: 27.08.2014.
	Office copy of Rejoinder to Reply Notice. Dt: 01.09.2014.
	Office copy of Reply Notice to Rejoinder. Dt: 22.09.2014.
	First Information Report (F.I.R). FIR No. 298/2012 Dt: 13.09.2012.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

 

Exhibits   (Ex.B)	Description of Documents
1.	Letter issued by opposite Party to the complainant. Dt: 20.03.2014.
2.	True copy of Policy under policy No.552200/31/11/6200004086 valid for 05.10.2011 to 04.10.2012.
3.	Reply Notice to the rejoinder Notice. Dt: 22.09.2014.
4.	Postal Acknowledgement.  Dt: 26.09.2014.

 

 

 

                                                                                                                      Sd/-                                                              

                                                                                                               President

           // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

  

Copies to:-     1.  The complainant.

                        2.  The opposite party.