State Consumer Disputes Redressal Commission
Mukesh Kapoor vs Bharti Axa General Insurance Co. Ltd., on 22 April, 2013
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 228 of 2012
Date of institution: 24.2.2012
Date of decision : 22.4.2013
Mukesh Kapoor aged 30 years son of Sh. Mohinder Lal Kapoor R/o 809/
12 A Prem Nagar, Civil Lines, Ludhiana, Proprietor M/s Kapson Glass
Industries, 106, Lajpat Nagar, Near Railway Track, Ludhiana-141001
.....Appellant
Versus
1. Bharti AXA General Insurance Co. Ltd., 1st Floor, The Ferry, Icon
Survey No. 28, Next to Bailet, Doddana Kundi off Quter Ring
Road, Banglore-560037 through its M.D./Chairman.
2. Bharti AXA General Insurance Co. Ltd., Ist Floor, SCO 350-351-
352, Sector 34-A, Chandigarh through its Zonal Manager.
3. Bharti AXA General Insurance Co. Ltd., G-454, Ist Floor IC
Towers, BRS Nagar, Near Verka Milk Plant, Ferozepur Road,
Ludhiana through its Branch Manager.
4. Dada Motors Pvt. Ltd., Sawitiri Complex, G.T. Road, Dholewal,
Ludhiana.
.....Respondents
2nd Appeal
First Appeal No. 1685 of 2011
Date of institution: 18.11.2011
1. Bharti AXA General Insurance Co. Ltd., 1st Floor, The Ferry, Icon
Survey No. 28, Next to Bailet, Doddana Kundi Off Quter Ring Road,
Banglore
2. Bharti AXA General Insurance Co. Ltd., Ist Floor, SCO 350-351-352,
Sector 34-A, Chandigarh.
3. Bharti AXA General Insurance Co. Ltd., G-454, Ist Floor IC Towers,
BRS Nagar, Near Verka Milk Plant, Ferozepur Road, Ludhiana.
ALL APPELLANTS THROUGH :
Ms. Deepa Chacko, Area Manager (Legal Claims) Bharti Axa General
Insurance Co. Ltd., Bigjos Tower, 2nd Floor, A-8, Netaji Subhash Place,
Pitampura, New Delhi - 110034
.....Appellants
Versus
1. Mukesh Kapoor aged 30 years son of Sh. Mohinder Lal Kapoor
R/o 809/ 12 A Prem Nagar, Civil Lines, Ludhiana, Proprietor M/s
Kapson Glass Industries, 106, Lajpat Nagar, Near Railway Track,
Ludhiana-141001
2. Dada Motors Pvt. Ltd., Sawitiri Complex, G.T. Road, Dholewal,
Ludhiana.
.....Respondents
First Appeal No. 228 of 2012 2
First Appeal against the order dated 10.8.2011
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present of 228 of 2012:-
For the appellant : Sh. Sourabh Goel, Advocate
For respondents No.1-3 : Sh. R.S. Joshi, Advocate for
Sh. T.K. Joshi, Advocate
For respondent No.4 : Ex.-parte.
PIARE LAL GARG, PRESIDING MEMBER
This order will dispose of two appeals i.e. First Appeal No. 228 of 2012(Mukesh Kapoor Vs. Bharti AXA General Insurance Co. Ltd. & others) and First Appeal No. 1685 of 2011 (Bharti AXA General Insurance Co. Ltd. & others Vs. Mukesh Kapoor and another). Both appeals are filed against the same order dated 10.8.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana(in short the "District Forum") and the same are disposed off in a single order. The facts are taken from 'First Appeal No. 228 of 2012' and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that the appellant insured his TATA Indigo CS Diesel LX Car with respondents No. 1 to 3(hereinafter referred 'as insurer') for the period of 12.1.2010 to 11.1.2011 for an amount of Rs. 4,40,669/-.
3. The car of the appellant was stolen from outside of his house No. 809/12-A, Prem Nagar, Civil Lines, Ludhiana in the intervening night of 5/6.3.2010 and FIR No. 26 dated 7.3.2010 was registered under Section 379 IPC with Police Station Division No. 8/Kailash Chowk, Ludhiana. The claim was also lodged with insurer and submitted all the requisite documents to insurer but the claim of the appellant was repudiated vide First Appeal No. 228 of 2012 3 letter dated 25.8.2010 on technical grounds. Legal notice was served by the appellant upon the insurer on 31.8.2010 but no reply was received from the insurer. Reminder cum final legal notice dated 14.12.2010 was also served by the appellant upon the insurer but no reply of the same was also received. The complaint was filed with the prayer that the respondents may be directed to pay Rs. 4,63,864/- i.e. price of the car alongwith interest @ 18% per annum and Rs. 1 lac as compensation for causing harassment and mental pain as well as Rs. 22,000/- as litigation expenses.
4. The complaint was admitted only against respondent Nos. 2 & 3 vide interim order dated 6.1.2011.
5. Upon notice, reply was filed by respondents No. 2 & 3 taking preliminary objections that the appellant has suppressed material facts, complicated and intricate questions are involved and only Civil Court is competent to decide the dispute. The claim was not payable as per Section 39 of the Motor Vehicle Act. The appellant also violated the terms and conditions of the policy as the vehicle was lying un-attended. On merits, the insurance of the vehicle by the answering respondents and theft of the same was admitted. It was pleaded that at the time of theft the vehicle was not registered with the Registration Authority, as such, the claim of the appellant was rightly repudiated by the answering respondents and dismissal of the complaint was prayed with costs.
6. The District Forum after hearing the learned counsel for the parties and going through the record, accepted the complaint of the appellant. The respondents were directed to pay full insurance amount under the policy alongwith Rs. 3,000/- as compensation and litigation costs within 45 days from the receipt of the order.
7. The appellant has filed F.A. No. 228 of 2012 with the delay of 151 days for the modification of the order on the grounds that no interest was awarded by the District Forum while the appellant was entitled for the First Appeal No. 228 of 2012 4 same at the rate of 18% per annum from the date of filing the complaint till realization of the amount.
8. An application is also filed for condonation of delay of 151 days, which is supported by an affidavit. The grounds taken in the application are that the respondents did not comply with the order of the District Forum and in the month of December, 2011 the appellant received a notice from the State Commission to appear in Appeal No. 1685 of 2011, which was filed by the respondents against the order of the District Forum dated 10.8.2011. On receipt of the notice, the appellant engaged a counsel, who suggested the appellant to file an appeal before the Commission against the order of the District Forum also as no interest was awarded by the District Forum, as such, the appeal is filed with the delay of 151 days.
9. We have perused the application for condonation of delay. There is no sufficient reason given by the applicant/appellant in the application and the appeal is filed by the appellant to asunter-blast the appeal filed by the respondents. There is no merit in the application for the condonation of delay.
10. The Hon'ble Supreme Court in case "Kamlesh Babu and Ors. Vs Lajpat Rai Sharma and Others", 2008(3) The Punjab Law Reporter-455, while interpreting and explaining the scope of Section 3(1) of the Limitation Act, observed as follows:-
"It is well settled that Section 3(1) of the Limitation Act casts a duty upon the court to dismiss a suit or an appeal or an application, if made after the prescribed period, although, limitation is not set up as a defence".
11. Hon'ble National Commission also held in its recent judgment "Oriental Insurance Co. Ltd. Divisional Office - Unjha Gujarat and Ors. Versus Kirankumar Mafatlal Parmar and Ors.", 2013 (1) CPR 97 (NC) in paras No. 14 & 15 as follows:-
First Appeal No. 228 of 2012 5
"14. In R.B. Ramlingam v. R.B. Bhavaneshwari, 2009 (2) Scale 108, Apex Court has observed:
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
15. Hon'ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) laid down that:
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."
12. This law was also followed by the Hon'ble National Commission in First Appeal No. 208 of 2013 "Improvement Trust Ludhiana versus Ajmer Singh and another", decided on 3.4.2013.
13. The applicant/appellant has failed to explain the delay or the sufficient cause for condoning the delay and the reasons given in the application for condonation of delay are vague. Accordingly, the application for condonation of delay is having no merit and the same is dismissed.
14. The respondents also filed appeal against the order of the District Forum on the grounds that the claim of the appellant-Mukesh Kapoor was rightly repudiated by the respondents as the car in dispute was not registered with the Registering Authority at the time of theft dated 6.3.2010. The car was purchased on 12.1.2010 but the same was not registered within one month with the Registration Authority, which was violation of Section 39 of the Motor Vehicle Act, 1988. The order of the District Forum is against the terms and conditions of the policy and against the law laid down by the Hon'ble National Commission in Revision Petition No. 2926 of 2010 titled as "Niranjan Kumar Yadav Vs. National Ins. Co. Ltd.", as such, the order of the District Forum is liable to be set-aside. First Appeal No. 228 of 2012 6
15. There is no dispute between the parties regarding the insurance of the car in dispute with the respondents as well as the theft of the same in the intervening night of 5/6.3.2010. There is also no dispute that the matter was reported by the appellant to the police and an FIR was registered as well as the intimation was also given to the respondents. There is also no dispute that the car was purchased on 12.1.2010 and till the date of theft the same was not registered with the Registration Authority as per Section 39 of the Motor Vehicles Act, 1988.
16. The respondents cited R.P. No. 4030 of 2008 "Kaushalendra Kumar Mishra versus The Oriental Insurance Co. Ltd.", decided on 16.2.2012 by the Hon'ble National Commission in which it was held in para No. 8 as follows:-
"8. In our view, these arguments are neither legally correct nor acceptable. Registration of the vehicle is mandatory requirement of the law. The relevant provision, Section 39 of the Motor Vehicles Act 1988, reads -
"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 Certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner;
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government."
Clearly therefore, till the vehicle received this certification of registration from the competent authority, it is not legally useable on roads. Averments in the complaint petition itself show that the Motor Cycle was used by the Complainant for dropping his uncle to the Railway Station Satna and that the incident had happened on its return journey. This use of the motor cycle was in clear violation of the statutory requirement of registration.
17. In the present case the car has not met with an accident but the same was stolen from outside of the house of the appellant. As per Section 39 of the Motor Vehicles Act, 1988, the owner of the Motor Vehicle cannot drive the vehicle in any public place or in any other place unless the vehicle is registered in accordance with this Chapter. At the time of theft of First Appeal No. 228 of 2012 7 the car the same was not being plied by the owner of the vehicle i.e. the appellant in any public place or in any other place, as such, Section 39 of the Motor Vehicles Act, 1988 was not applicable as there was no nexus between the cause of theft and Section 39 of the Motor Vehicles Act 1988.
18. It was held by the Hon'ble National Commission in case "IFFCO TOKIO General Ins. Co. Ltd. Versus Pratima Jha", 2012 (2) cpr 270 (NC) that insurance company cannot repudiate the claim merely on the ground that the vehicle had not been registered and observed in para Nos. 8 & 9 as follows:-
"8. 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 (as in this case) 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 in the above mentioned provisions, the contract or agreement would fail whether there is an express provision in this effect, in the terms and conditions to that effect, or not.
9. 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. V. ILA Gupta and ors. this Commission had held that the Insurance Co. 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. v. Swami Devi Dayal Hi Tech Education Academy."
19. It was also held by the Hon'ble National Commission in case "Divisional Manager, The Oriental Insurance Co. Ltd. Versus Smt. Chandrakant Kisan Khatale", 2012(4) CPR 196 (NC) that "in case of theft of vehicle breach of condition is not germane" and relevant paras of the same i.e. paras No. 5 & 11(relevant part) are reproduced:-
"5. Now we advert to the merits of this case. The case of the complainant, Smt. Chandrakant Kisan Khatale is this. Her Tata Sumo bearing registration No. MH 18D 894 was insured with the Oriental Insurance Company Limited, petitioner in this case. In the course of journey, two unknown persons intoxicated the driver by pouring some intoxicating substances in his tea which led the driver First Appeal No. 228 of 2012 8 of the vehicle to unconsciouness state. Thereafter, the above said two unknown persons stole away the above said vehicle. The claim was preferred before the Insurance Company, which was repudiated by the insurance company on the ground that the vehicle in question was being plied in contravention of terms and conditions of the policy.
11. Above all the authority by the Hon'ble Apex Court reported in National Insurance Co. Ltd. V. Nitin Khandelwal applies to this case on all fours. Its relevant extract is reproduced as follows:-
"13. In the case in hand, the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis. The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft."
20. From the above discussion, it is proved that the appellants have wrongly repudiated the insurance claim of respondent No. 1. The order passed by the District Forum is legal, valid and speaking one, as such, there is no ground to interfere with the same. Both the appeals being without any merit are dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
21. The arguments in these appeals were heard on 2.4.2013 and the orders were reserved. Now the orders be communicated to the parties.
22. The appellants in F.A. No. 1685 of 2011 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1-Mukesh Kumar by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.
23. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
First Appeal No. 228 of 2012 9
24. Copy of this order be placed on First Appeal No. 1685 of 2011 (Bharti AXA General Insurance Co. Ltd. & others Vs. Mukesh Kapoor and another).
(Piare Lal Garg)
Presiding Member
April 22, 2013. (Jasbir Singh Gill)
as Member
First Appeal No. 228 of 2012 10