State Consumer Disputes Redressal Commission
M/S Bharti Axa General Insurance ... vs Mrs. Venus on 16 August, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 446 of 2011.
Date of Institution: 08.03.2011.
Date of Decision: 16.08.2011.
M/s Bharti AXA General Insurance Company Limited, G-454, IC Towers, BRS
Nagar, Opposite Verka Milk Plant, Ferozepur Road, Ludhiana (Punjab)
Through
M/s Bharti AXA General Insurance Company Limited, Big Jose Tower, 2nd Floor,
Netaji Subhash Place, Wazirpur, New Delhi-110 034.
.....Appellant.
Versus
Mrs. Venus aged 27 years wife of Dr. Basant Garg, Resident of 76, Sector-49,
Chandigarh now residing at Bunglow No.4, Officers Colony, Ferozepur City
(Punjab).
.....Respondent.
First Appeal against the order dated
12.01.2011 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Before:-
Sh. Piare Lal Garg, Presiding Member.
Mrs Amarpreet Sharma, Member.
Present:-
For the appellant : Sh. S.M. Tripathi, Advocate with Sh. Tejinder K. Joshi, Advocate.
For the respondent : Sh. Sandeep Khunger, Advocate.
PIARE LAL GARG, PRESIDING MEMBER:-
This is an appeal filed by M/s Bharti AXA General Insurance Company Limited-appellant (in short 'the appellant') against the order dated 12.01.2011 of the District Consumer Disputes Redressal Forum, Ferozepur (in short the 'District Forum') whereby the complaint of the respondent/complainant (in short, the respondent") was accepted by the District Forum.
2. Briefly stated the facts are that the respondent purchased a car make Toyata Corolla Altis bearing Chassis No. 7614845 and Engine First Appeal No. 446 of 2011 2 No.3287665 from the authorized dealer of Toyata Motor Cars Ludhiana in the month of February, 2010. She got the said car insured with the appellant by paying a premium of Rs. 26,991/- and insurance policy bearing No. FPV/10207951/P1/02/ DIP115 was issued to her which was valid for the period from 26.02.2010 to 25.02.2011. The appellant assured the respondent to provide world class services. The respondent applied for registration of the car with the Registering Authority, Ludhiana in the month of March, 2010 and she was provided temporary registration no.PB-10-CP- TEMP-2010-7899 which was subsequently extended upto 25.05.2010 by the Registering Authority, Ludhiana. The respondent wanted to get the registration number of her choice i.e. CH-01-AC-0021 for which she applied to the Regional Transport & Licencing Authority, U.T. Chandigarh vide application dated 23.03.2010. She was informed by the Registering Authority that the new series CH-01-AC will be start in the month of May, 2010 and she was advised for the booking of the specific number in that very month. Again on 04.05.2010, the respondent deposited the requisite amount of Rs.10,000/- for the said number (paid number) with the Registering Authority, Chandigarh vide receipt No. BF-2181 dated 04.05.2010. The said special number was auctioned by the Registering Authority and the respondent could not get the said number in auction due to high price of the same and, as such, on 21.05.2010, the respondent was allotted registration No. CH-01-AC-3719 of her car by the Registering Authority, Chandigarh.
3. It was further pleaded that on the intervening night of 16/17th May, 2010, while the respondent was on her way on Zira-Ferozepur Road to her house at Ferozepur, the car met with an accident. D.D.R. No. 27 was lodged at P.S. Kulgari, District Ferozepur by the husband of the respondent on 18.05.2010 to this effect. The car in question was taken to the authorized dealer of Toyata Cars for repairs but the said dealer found First Appeal No. 446 of 2011 3 the car to be beyond repairs. The appellant appointed the surveyor, who assessed the loss. The requisite documents as demanded by the surveyor were supplied to him by the respondent. However, the appellant repudiated the claim of the respondent illegally and wrongly vide letter dated 27.08.2010. Hence, alleging deficiency in service on the part of the appellant, the respondent filed a complaint with the prayer that the appellant may be directed to pay the claim of Rs. 12,94,985/- with interest @ 18% per annum and prayed for compensation to the tune of Rs. 1,00,000/- and Rs. 10,000/- as litigation expenses.
4. Upon notice, the appellant filed written reply taking preliminary objection that the District Forum has no territorial jurisdiction to try and decide the complaint. It was further pleaded that the claim was lodged by the respondent with the appellant but during the verification of documents, it was noticed that the vehicle in question was not registered with the registering authority at the time of accident. Though, the respondent has supplied the receipt with regard to the extension of the date of temporary registration number but the said receipt did not show whether any amount was deposited by the respondent with the competent authority or not for extension of validity of the temporary number. On further verification, it was found that the said receipt was not even issued by the competent authority. The conformation report was lying with the appellant. The respondent was plying the vehicle on road without any registration certificate and, as such, she had violated the provisions of Indian Motor Vehicle Act, 1988. The temporary number allotted to the respondent had expired on 25.03.2010 and the permanent registration number was allotted to her on 21.05.2010. As such, the vehicle was not having a valid registration certificate on the date of accident i.e. 17.05.2010. So, the claim of the respondent was rightly repudiated by the appellant. Denying all other allegations, dismissal of the complaint was prayed.
First Appeal No. 446 of 2011 4
5. After considering the pleadings of the parties and the affidavits/documents produced on the file by the parties, the learned District Forum allowed the complaint, directing the appellant to pay to the respondent the sum assured i.e. Rs.12,94,985/- along with interest @ 7% p.a. from the date which comes after two months after the date of lodging of the claim i.e. from 18.07.2010 till realization along with Rs.2000/- as litigation expenses.
6. Hence, the appeal by the appellant.
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The present appeal is filed by the appellant on the ground that the Ld. District Forum omitted to see that the car was being used without it being registered in accordance with the provisions of the Motor Vehicle Act, 1988 and there was no registration mark displayed on the vehicle at the time of accident. It was a clear violation of law by the respondent and the claim was rightly repudiated. The order of the District Forum is liable to be set-aside.
9. It is the admitted case of the appellant that the respondent insured her private car model Toyota Carola Altis bearing chassis No. 7614845, Engine No. 3287665 vide insurance policy No. I0207951 for the period of 26.2.2010 to 25.2.2011 for a sum of Rs. 12,94,985/- after paying a premium of Rs. 26,991/- to the appellant.
10. There is also no dispute between the parties that the car of the respondent met with an accident on the intervening night of 16/17.5.2010 when she was coming to her house at Ferozepur, Near Vill. Doomni Wala. DDR No. 27 dated 18.5.2010 was lodged by the husband of the respondent with P.S. Kulgari, District Ferozepur to this effect. The respondent lodged the claim with the appellant and Surveyor Bansal and First Appeal No. 446 of 2011 5 Co. was appointed by the appellant for the assessment of the loss suffered by the respondent due to accident of her car. Sh. Vijay Bansal Surveyor conducted the survey and submitted his survey report to the appellant.
11. The respondent submitted the claim form duly completed and signed in all respects with the appellant but the claim of the respondent was wrongly and illegally repudiated vide letter Ex. C-18 dated 27.8.2010 on the following grounds:-
"During the document verification it is noticed that the subject car was not registered with the concerned RTO at the time of loss and registration was applied on 21.5.2010 i.e. after the loss.
Subsequently, a receipt applied for special no. and extension of temporary no. for the said car was provided by you. This receipt doesn't state for any amount or fee deposited with the concern RTO. On verification, we came to know that this receipt is not issued by the concern RTO. Their confirmation report is kept in our record."
12. Now the dispute between the parties is only whether the appellant is liable to reimburse the amount of loss/damage caused to the vehicle of the respondent or not as the vehicle was plied without registration, which was the violation of the provision of the Motor Vehicle's Act, 1988?
13. There is no dispute that the car met with an accident in the intervening night of 16/17.5.2010; while the car was registered with the Registering and Licensing Authority, Chandigarh on 21.5.2010 and registration No. CH-01-AC-3719 was allotted to the respondent. The claim of the respondent was repudiated only on the ground that as per Section 39 of the Motor Vehicles Act, 1988, "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......... The vehicle carries a registration mark displayed in the prescribed manner". The insured car was being used without its registration in accordance with the provisions of the First Appeal No. 446 of 2011 6 Motor Vehicle's Act, 1988 and no registration mark was displayed on the vehicle at the time of accident in the prescribed manner. It was clear violation of the law by the respondent, as such, the claim was not sustainable.
14. Counsel for the appellant cited the judgment of the Hon'ble Supreme Court of India in case "National Insurance Co. Versus Challa Bharathamma", 2005(1) T.A.C. 4 (S.C.) in which it was held by the Hon'ble Apex Court that the insurer had violated Section 149(2)(a)(i) of the Motor Vehicle's Act, 1988 as the vehicle was plied without the valid requisite permit which was a breach of specific condition of the policy, as such, he was not entitled for the loss.
15. Counsel for the appellant further cited the judgment of the Hon'ble National Commission titled as "Aeroflot Soviet Airlines Versus United India Ins. Co. Ltd.", IV (2006) CPJ 62 (NC) wherein it was held by the Hon'ble Court in paras 5 & 6 as follows:-
"5. A combined reading of Sections 39 and 56 of the Motor Vehicles Act makes it abundantly clear that the vehicle could not have been driven in any public place unless the provisions of Chapter IV of the Motor Vehicles Act were observed. Section 56(1) with proviso makes it abundantly clear that, no vehicle would be deemed to be "Validly registered for the purpose of Section 39 unless it carries a Certificate of Fitness........"
6. It is admitted position, that on the date when the vehicle was set on fire, there was no valid certificate of fitness, account of which this vehicle could not have been brought on road, which is a clear case of violation of conditions of warranty of the policy in view of which we see no ground to interfere with the well-reasoned order passed by the State Commission."
16. It is also pleaded in the grounds of appeal in para No. 3.3 that the District Forum has omitted to guide itself by the law laid down by the Hon'ble Supreme Court in case "Oriental Ins. Co. Ltd. Versus Soni Cherian" II 1999 CPJ 13 SC as under, which is the binding precedent:-
"The insurance policy between the insurer and the insured represents a contract between the parties. Since the Insurer undertakes to compensate First Appeal No. 446 of 2011 7 the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein."
17. We have gone through the judgments cited by the counsel for the appellant but these judgments are not applicable to the facts of the present case. In the above cited judgments, the insured had violated the terms and conditions of the policy but in the present case it is not the pleaded case of the appellant that there was any term and condition in the policy that if the insured had failed to register the vehicle with the registering authority within one month as per Section 39 of the Motor Vehicle's Act, 1988, then he will not be entitled for the claim. Even the appellant had not produced the terms and conditions of the policy. The arguments as well as stand of the appellant for the repudiation of the claim is imaginary. Non producing the copy of the terms and conditions, which were settled between the parties, shows that there was no violation of any term and condition of the policy by the respondent.
18. The counsel for the appellant also cited judgment of the Hon'ble National Commission passed in Revision Petition No. 2926 of 2010 titled as "Niranjan Kumar Yadav Versus National Ins. Co. Ltd." decided on 29.3.2011 wherein it was held in paras No. 4 & 5 as follows:-
"4. From the averments of the Revision Petitioner/Complainant in the revision petition itself, we find that the vehicle was being used for the purpose of election at the time of the incident. The State Commission has observed that from the records, including those of the investigation into the F.I.R., it is clear that on 23.2.2005 the vehicle was standing near booth No. 101 of Amarpur, in violation of the order of the Election Commission preventing taking any vehicle near the polling booth, which was declared to be a prohibited area. On the contention of the present revision petitioner that the registration was already applied for and was pending with the registering authority, the State Commission has made the following categorical observations:-First Appeal No. 446 of 2011 8
"If permanent registration cannot be done for the delay of the office of the registering authority then it must have temporary registration. Legality is the essence of all agreement. If it is violative of law any contract or agreement is bound to fail, may there be otherwise expressed provision in the terms and condition of the agreement or not. The appellant failed to show any temporary registration number. He also failed to show any receipt of the application for registration to prove that he had applied for registration before the mishap."
5. In view of this observation of the State Commission, the claim of the Revision Petitioner/ Complainant that the registration was pending before the Registering Authority, loses all credibility."
19. But this authority is also not applicable on the facts of the present case. In the above noted case, the insured/appellant was failed to show any temporary registration number and to show any receipt of the application for registration to the effect that he had applied for registration before the mis-happened done. But in the present case the respondent had applied for the registration of the car with the Registering Authority, Ludhiana and temporary registration number PB-10-CP-Temp.-2010-7899 was provided to the respondent, which was extended upto 25.5.2010 by the Registering Authority, Ludhiana. The respondent also applied to the Regional Transport & Licencing Authority, U.T., Chandigarh for providing her special registration No. CH-01-AC-0021 vide application dated 23.3.2010 of her choice.
20. The counsel for the appellant also relied upon the law laid down by the Hon'ble National Commission in Revision Petition No. 2976 of 2006 titled as "United India Ins. Co. Versus Trilok Kaushik" decided on 9.11.2010 wherein in para No. 10 it was held as follows:-
"10. From the above, it is clear that a transport vehicle shall not be deemed to be validly registered for the purpose of Section 22 of the Motor Vehicle Act, unless it carries a certificate of fitness. The vehicle in question did not have a fitness certificate on the date of the accident and as such the vehicle in question is deemed to be not validly registered. For the breach of these provisions, penal provision is contained in Section 123 of the Act. In addition road taxes had been paid only upto 30.9.1986." First Appeal No. 446 of 2011 9
21. But this citation is also not applicable to the facts of the present case. In this case there is no dispute that the vehicle was not fit to ply or any fitness certificate was required to ply the same as the vehicle was new one. The respondent also applied for the registration of the vehicle with registration authority, Ludhiana, which provided temporary No. PB-10-CP-Temp.-2010-7899 to the respondent, which was valid upto 25.5.2010 as per receipt Ex. C-6. The version of the appellant is that certificate Ex. C-6 was not issued by the District Transport Authority, Ludhiana and the confirmation report is lying with the appellant but the same was not produced in evidence by the appellant before the District Forum. On the other side, the respondent submitted the verification of receipt issued by District Transport Officer as Ex. C-19 bearing No. 8744 dated 6.9.2010, in which it was mentioned as follows:-
"Reference your application dated 03/09/2010 on the subject cited above.
In this regard it is to be informed that this receipt has been issued by this office on dated 26/03/2010. The receipt is bearing the signature of Sh. Gurmeet Singh, Junior Assistant the then registration clerk."
22. On the other hand, the version of the respondent is that no copy of the terms and conditions of the policy was supplied by the appellant to the respondent nor she had violated and term and conditions of the policy. She applied for the registration of the car with the Registration Authority, Ludhiana and temporary registration No. PB-10-CP- Temp.-2010-7899 was provided by the District Transport Authority, Ludhiana, which was extended upto 25.5.2010 and the confirmation regarding the extension of the same is Ex. C-19. She also applied for registration No. CH-01-AC-0021 of her choice with the Registering Authority, U.T., Chandigarh on 4.5.2010 and deposited Rs. 10,000/- with the Transport Department vide fee receipt Ex. C-9. As she earlier made an application to the Registering and Licencing Authority, Chandigarh vide First Appeal No. 446 of 2011 10 application Ex. C-7 for the allotment of special number CH-01-AC-0021 and submitted the documents with the Registration Authority. In response to letter dated 23.3.2010, the Registering and Licencing Authority, U.T., Chandigarh had replied that new series CH-01-AC-0021 will start in the month of May, 2010 as such, the office was not able to book the special number CH-01-AC-0021 as requested by her in advance and it was requested that she should apply for booking of the said special number in the month of May, 2010 and as per the reply/advise of the Registration Authority, U.T., Chandigarh she had applied on 4.5.2010 for the special number of her choice vide application Ex. C-9 and deposited Rs. 10,000/-. If the registration number was not issued by the Registration Authority, U.T., Chandigarh after depositing of the requisite fee on 4.5.2010, then there was no fault on the part of the respondent. The respondent had also applied for the registration of the Car with the Registration Authority, Ludhiana and the temporary number was provided by the Registering Authority, Ludhiana, which was also valid upto 25.5.2010. The respondent had not got issued the registration number from the Registering Authority, Ludhiana as she wants the allotment of Registration number CH-01-AC- 0021 of her choice from the Registration Authority, U.T., Chandigarh. But the respondent could not get the said number in auction due to high price on 21.5.2010 of her choice; then registration No. CH-01-AC-3719 was allotted by the Registering Authority, U.T., Chandigarh to the respondent.
23. The accident took place on the intervening night of 16/17.5.2010 but the respondent had already applied and deposited Rs. 10,000/- with the Registering Authority, U.T., Chandigarh on 4.5.2010 i.e. prior to the date of accident, as such, there was no violation of the provision of Motor Vehicle Act, 1988 nor the violation of any term and condition of the policy.
First Appeal No. 446 of 2011 11
24. It is also the version of the respondent that the appellant company illegally repudiated the claim of the respondent when there was no breach of and term and condition of the policy as the insurance is a matter of contract between the parties. The appellant had not produced the terms and conditions of the policy nor produced any evidence to show which term and condition of the policy was violated by the respondent. The counsel for the respondent cited the judgment of the larger Bench of the Hon'ble National Commission titled as "G. Kothainachiar Vs. United India Insurance Company Ltd.", 2008 (1) CPC 186 in support of his contention.
25. In the above noted revision, the version of the insurance co. was that the insured was not entitled to reimbursement of loss/damage caused to his vehicle from the insurance co. as the vehicle was plied without "Fitness Certificate", which was violation of the Motor Vehicle's Act, 1988. In support of this contention, reliance was placed upon a decision of the National Commission. Against that, complainant has relied upon some of the judgments of the Hon'ble Apex Court and in order to avoid the confusion on the question involved in the case, it was directed that the matter be placed before the larger Bench vide order dated 10.1.2007. It was held by the larger Bench of the Hon'ble National Commission in paras 7 to 14 as follows:-
"7. At the outset, it is to be stated that that liability of the insurance Company is two-fold:
(i) statutory liability as provided under the Motor Vehicles Act, and
(ii) liability to the insured as per the terms of the contract.
8. From the facts stated above, it is apparent that there is no breach of policy condition, that is to say that there is no breach of the contract of insurance. Hence on the ground of breach of condition of the policy, the claim cannot be repudiated.
9. The alleged breach is with regard to the provisions of Motor Vehicles Act. Therefore, the question would be whether the Insurance Company can repudiate the claim on the alleged ground of breach of First Appeal No. 446 of 2011 12 some provisions of the Motor Vehicles Act or some other Act. It is not the case of the Insurance Company that the policy is a statutory policy.
10. In our view, the Insurance Company cannot repudiate the claim when there is no breach of terms of the policy, because insurance is a matter of contract between the parties.
A. Between the insured and the insurer - parties are governed by the terms of the policy.
11. The insurance is a contract between the parties and the parties are governed by the terms of the contract. The law on the subject is settled and for this purpose, we would refer to some of the decisions of the Apex Court which were referred to at the time of hearing of the matter.
(i) In the case of Oriental Insurance Co. Ltd. v. Sony Cheriyan, 2000(1) CPC 5 S.C. = (1999) 6 SCC 451 (p.455), it was observed as under:
"17. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein".
(ii) In the case of New India Assurance Co. Ltd., Shimla vs. Kamla & Ors. (2001) 4 SCC 342 at page 350, the Supreme Court observed:
"25. The insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence"
(iii) In the case of Jitendra Kumar v. Oriental Insurance Co. Ltd., (2003) 6 SCC 420 (at P.422) the Apex Court observed as under:
"9. We have heard the learned counsel for the respondents who has supported the orders of the State Commission as well as that of the National Commission. So far as the facts of this case are concerned, there is hardly any dispute, therefore, we can safely proceed on the basis that the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of First Appeal No. 446 of 2011 13 argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. The question then is: can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground that the driver of the vehicle who had nothing to do with the accident did not hold a valid licence? The answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where the driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver".
(iv) Even a three Judge Bench of the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 at 327 observed as under:
"55. A contract of insurance also falls within the realm of contract.
Thus, like any other contract, the intention of the parties must be gathered from the expression used therein."
B. Statutory Liability:
12. For the third party, the liability is statutory and that has been clarified by the Apex Court in a number of cases. We would only refer to the case of National Insurance Company Ltd., Chandigarh vs. Nicolletta Rohtagi and Ors. (2002) 7 SCC 456, wherein it was held as under:
"the mere fact that there was violation of the terms and conditions subject to which the insurance policy had been issued, cannot have the effect of exonerating the insurer from the statutory liability cast upon him in this regard to pay the amount to the third party victim."
Further, it is observed that "..........It will, therefore, be open to the insurer appellant to initiate an appropriate proceeding for the refund of the amount paid by it to the claimants and establish the breach of the terms and conditions subject to which the insurance policy had been issued." C. Repudiation in case of fundamental or material breach of policy conditions:
First Appeal No. 446 of 2011 14
13. Further, claim for reimbursement can be repudiated in case where the breach of condition of the policy is fundamental or material. This would be clear from the following pronouncements by the Apex Court:
(i) B.V. Nagaraju v. Oriental Insurance Co. Ltd., Divisional Officer, Hassan, 1996(2) CPC 1 S.C. = (1996) 4 SCC 647, at page 650:
"Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor".
(ii) National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 (at page 337):
"In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence".
Further, (in para 90) it is held as under:
"90. We have construed and determined the scope of sub-clause
(ii) of sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties."
In para 145(vi) one of the conclusion is :
(vi). Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability First Appeal No. 446 of 2011 15 towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
14. From the settled law quoted above, it is apparent that the Insurance Company can repudiate the claim of the insured in case where there is a breach of the policy condition/conditions; and, the breach is fundamental or material so as to vitiate the insurance contract."
26. But in the present case, the appellant has miserably failed to prove any fundamental or material breach of the condition of the policy by which the claim of the respondent was repudiated by the appellant.
27. This is also not the case of the appellant that there was any exclusion clause in the terms and conditions of the policy by which the respondent was not entitled for the claim as she had not registered the vehicle within one month as per the provisions contained in the Motor Vehicle Act, 1988.
28. There is also nothing on the record that non-registration of the car has in any way contributed to the accident. Non registration of the Car has got no nexus with the accident.
29. The appellant has repudiated the claim only on the ground that the car in dispute was not registered with the Registering and Licencing Authority. In our view, it is not established that the accident had occurred pursuant to act of commission or omission, which would have made the insurer liable for a penal offence. For instance committing suicide by the life insured is one such act which might be considered as committing the breach of law by the insured and sufficient to dis-entitle the beneficiary from claiming the accidental benefit. We are, therefore, of the opinion that it is not each and every violation of any provision, however, slightest it may be, which can be labeled as committing breach of law. Even there is no terms and conditions produced by the appellant to prove First Appeal No. 446 of 2011 16 that non-registration of the car with the Registering Authority was any violation of conditions of the policy.
30. The question now arises is that: as the vehicle was not registered then whether the appellant can deny the claim?
31. The appellant failed to prove such term and condition of the policy and it is also admitted by the counsel for the appellant at Bar that there is no such term and condition in the policy. It is correct that as per the Motor Vehicle Act, the registration of the vehicle is mandatory one. If the registration is not made within the prescribed period even then registration can be obtained by paying late fees. The Hon'ble Jharkhand State Consumer Disputes Redressal Commission, Ranchi in case "Rajendra Prasad Tiwary Versus New India Assurance Company & Ors.", I(2007)5 CPJ 391 held that even non registration of the vehicle cannot be a ground for repudiation of the just claim under the policy and in para No. 8 it was observed as follows:-
"8. Be that as it may, the question arises as to whether the claim of the complainant can be repudiated on the ground of non-submission of the registration certificate including the driving licence. According to the agreement arrived at between the complainant and the Bank, the vehicle was to be registered within one month from the date of purchase. Admittedly, the same was not registered till the date, the vehicle was robbed. So far as the non-production of the driving licence is concerned, this question is no longer res integra in view of the decision of the Supreme Court in the case of Jitendra Kumar v. Oriental Insurance Co. reported in IV (2003) CPJ 16, wherein it has been held that the accident took place without negligence and/or laches on the part of driver and accordingly the Insurance Company was directed to indemnify the loss. So far as the non-production of the registration certificate is concerned, as stated above, admittedly, the registration was not done and under the Motor Vehicles Act, it is incumbent upon the owner to get the vehicle registered and then ply on the road. The question now arises if the vehicle is not registered, the Insurance Company can deny the claim. It may be mentioned here that no such terms and conditions have been mentioned under the policy, albeit the Motor Vehicles Act envisages that the First Appeal No. 446 of 2011 17 registration of the vehicle is mandatory one and if the registration is not made within the prescribed time even, then registration an be obtained by paying late fee of Rs. 100. In that view of the matter, we are of the view that even non registration of the vehicle cannot be a ground for repudiation of the just claim under the policy. The learned District Forum in our view has failed to exercise its jurisdiction while passing the impugned order. Accordingly, the order dated 7.11.2003 is hereby set aside and consequently this appeal is allowed."
It was also held by the Hon'ble National Commission in case "HDFC Chubb General Insurance Co. Ltd. versus ILA Gupta & Ors.", I (2007) CPJ 274 (NC) that "as it was very much within the knowledge of the petitioner Insurance Company that the policy could not continue to be valid due to non-provision of the Permanent Registration Number, they should have cancelled the policy in order to make the respondent take another policy or revalidate the same according to the policy conditions or whatever that was required to be done. This has not been done by the petitioner Insurance Company." It was observed in paras No. 2 & 3 as follows:-
"2. As far as getting a Permanent Registration Number is concerned, admittedly, for want of a good Registration Number, more time was taken and the respondent got it registered later. In the present case, non- registration of the Vehicle did not lead to this accident. It was just a damage arising out of a car falling into the pothole. It is not the case of the petitioner that they were not aware of the car being registered under the Temporary Registration Number while the policy was issued. An amount of Rs. 81,476 was paid as a premium for getting the car comprehensively insured. As it was very much within the knowledge of the petitioner Insurance Company that the policy could not continue to be valid due to non-provision of the Permanent Registration Number, they should have cancelled the policy in order to make the respondent take another policy or revalidate the same according to the policy conditions or whatever that was required to be done. This has not been done by the petitioner Insurance Company.
3. The premium amount is not a meager amount and the services that should have been rendered by the petitioner are not sufficient enough for the respondent to bring it within his knowledge that there is a lapse on his First Appeal No. 446 of 2011 18 part. On such flimsy grounds, the petitioner Insurance Company cannot repudiate the claim. If they were so strict about the said conditions, knowing fully well that the Temporary Registration Number has not been made permanent, they should have brought it into the knowledge of the respondent and cancelled the policy within a reasonable time, which has not been done. Taking hefty premium of Rs. 81,476 from the respondent and thereafter repudiating the claim on flimsy ground is not justifiable."
In that view of the above proposition of law and the matter in hand, we are of the view that even non-registration of the vehicle cannot be a ground for repudiation of the just claim under the policy.
32. The appellant also taken the objection before the District Forum that the District Forum has no territorial jurisdiction to try and decide the complaint as no Branch of the appellant Company exists in the territorial jurisdiction of the District Forum, Ferozepur and the respondent was only temporarily residing at Ferozepur City whereas her permanent residence is at Chandigarh. This objection was not pressed before us. But it is admitted fact denied that the insured car was met with accident in District Ferozepur in the jurisdiction of P.S. Kulgari, District Ferozepur, as such, the part of cause of action accrued in District Ferozepur and the District Forum, Ferozepur was having the territorial jurisdiction to try and decide the complaint as per provisions of Section 11(2)(c) of the Consumer Protection Act 1986. The District Forum has rightly tried and decide the claim having territorial jurisdiction.
33. Miscellaneous application No. 717 of 2011 was also filed by the appellant for permission to place documents on record. Reply of the same was also filed by the respondent but the application was not pressed by the appellant at the time of arguments.
34. We have also perused the documents. All the documents are only the Photostat copies and no application for additional evidence was filed by the appellant for tendering of the same in its evidence. There is no First Appeal No. 446 of 2011 19 law that the documents which were in the custody of party were not produced before the District Forum can be placed on record in appeal. The Hon'ble National Commission in case "Devi Dayal Gupta versus Bajaj Allianz General Insurance Co. Ltd.", 2011 (3) CLT 39, held in para No. 3 as follows:-
"3.........The petitioner sought to place on record before us, certificate of the Kangra Central Co-op Bank Ltd. regarding sanction of loan at 11.75% which was not placed before Fora below. Hence, the petitioner cannot be permitted to place documents relating to loan in the revision."
35. In view of the above proposition of law, this application of the appellant is also dismissed.
36. The written reply on behalf of the appellant/opposite party in the shape of affidavit as Ex. R-1 was filed by Sh. Kapil Chawla as Authorised Signatory of the appellant/opposite party before the District Forum. No power of attorney, resolution, minutes of the meeting was produced by said Kapil Chawla, by which he was authorized by the appellant/opposite party to file the reply of the complaint in the shape of affidavit. He was also not party in the complaint, as such, his affidavit cannot be read into evidence on behalf of the appellant/opposite party.
37. The present appeal is filed by Deepa Chacko(Area Manager, Legal) on behalf of the appellant-company. But no power of attorney, resolution, minutes of the meeting of the Company are produced/annexed by said Deepa Chacko with the appeal, by which he was authorized by the appellant-company to file the appeal on behalf of the appellant company. Even in the grounds of appeal nowhere it is mentioned that he/she was authorized by the appellant-company to file the appeal on behalf of appellant - company - Bharti Axa General Insurance Co. Ltd., as such, Deepa Chacko was not competent to file the present appeal on behalf of the company, so the appeal is not maintainable and liable to be dismissed on this score only. It was held by this Commission in case "Smt. Surjit First Appeal No. 446 of 2011 20 Kaur alias Gurmail Kaur versus Kewal Singh and Ors.", 2001(2) CPC 231 that a simple letter does not make him a person locus-standi/ competent to file the complaint. It was observed in paras No. 6 to 9 as follows:-
"6. Admittedly neither it is written in the complaint nor it comes out from the record as to how Kewal Singh is authorised to file the complaint on behalf of M/s Green Carriers and contractors (Delhi) Pvt. Ltd., Milkh Bazar, Malerkotla, District Sangrur (Punjab). It is not even mentioned in the heading of the complaint that M/s Green Carriers and Contractors (Delhi) Pvt. Ltd., are filing their complaint through Kewal Singh, who is anyway associated with them. No authorization or any other such certificate has been placed on the record, which could show that Kewal Singh was competent to file the complaint on behalf of Green Carriers and Contractors (Delhi) Pvt. Ltd. In view of this factual position, the District Forum should have dismissed the complaint as not filed by a competent person. The District Forum has not properly discussed this point in its order. The District Forum was satisfied about the competency of Kewal Singh for filing the complaint merely by observing as under:-
"We are also of the view that though A-43 the complainant had established that Kewal Singh, complainant is the agent of the Green Carriers. In our view that it is sufficient that the complaint is properly drafted by mentioning the name of Kewal Singh."
7. It will be advisable to reproduce A-43, which reads as under:-
"(TO WHOM IT MAY CONCERN)
-------------------
This is certified that Mr. Kewal Singh, Agent of our Malerkotla Agency and working since 1.4.1991 and he has Full Authority for done any work on behalf of M/s GREEN CARRIERS & CONTRACTORS (DELHI) PVT. LTD. And he had full responsible about any activity of our Malerkotla agency.
FOR GREEN CARRIERS & CONTRACTORS (DELHI) PVT. LTD.First Appeal No. 446 of 2011 21
Sd/- Sd/-
(AUTHORISED SIGNATORY) (AGENT SIGN)"
8. Above said certificate does not authorise Kewal Singh to file the complaint on behalf of M/s Green Carriers & Contractors (Delhi) Pvt. Ltd.. It is further pertinent to note here that even this certificate has been issued on 7.6.97. But the complaint was instituted on 21.1.1996.
9. From the above said factual position, it is, clear that Kewal Singh had no locus standi to file the complaint on behalf of M/s Green Carriers & Contractors (Delhi) Pvt. Ltd. Resultantly order dated 21.7.1997 of the District Forum is set aside and the appeal is allowed with costs, which are qualified as Rs. 1000/-."
38. The above proposition of facts and law is squarely applicable to the facts and circumstances of the present case. In this case also Sh. Deepa Chacko, Area Manager Legal, who file the appeal on behalf of the appellant Company was neither authorized by the competent authority to file the appeal nor any authority letter, power of attorney was executed in his favour by the appellant Company. Even no resolution of the Company has been brought on record by which he/she was authorized to file the present appeal on behalf of the appellant Company, as such, the appeal is not maintainable and is liable to be dismissed on this score only. Even Deepa Chacko also not produced any document by which he/she was duly authorized by the appellant to file the present appeal on behalf of the Company, as such, he/she also not comes under the definition of Agent as given in the Consumer Protection Rules, 1987.
39. The order passed by the learned District Forum is legal and valid and there is no ground to interfere with the same. The appeal being without any merit is dismissed with costs of Rs. 5,000/- and the impugned order of the District Forum is affirmed and upheld.
First Appeal No. 446 of 2011 22
40. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal and Rs. 13,34,309/- in compliance with the order dated 18.3.2011. The amounts with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
41. Remaining amount, if any, shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
42. The arguments in this appeal were heard on 04.08.2011 and the order was reserved. Now the order be communicated to the parties.
(Piare Lal Garg) Presiding Member (Mrs.Amarpreet Sharma) Member August 16, 2011.
As (Gurmeet S) First Appeal No. 446 of 2011 23 First Appeal No. 446 of 2011 24