State Consumer Disputes Redressal Commission
Raga Motors Pvt.Ltd. vs Suman Rani And Another on 29 January, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.276 of 2020
Date of Institution: 05.10.2020
Reserved on : 25.01.2021
Date of Decision : 29.01.2021
Raga Motors Pvt. Ltd. G.T. Road Paragpur, Jalandhar, through H.R.
Manager of Sh. Ashok Kumar son of Sh. Sansar Chand, resident of
House No.60, Badri Colony, Danishmandan-144002, Jalandhar
working as HR Manager with Raga Motors Pvt. Ltd., Jalandhar.
.....Appellant/Opposite Party No.2
Versus
1. Suman Rani wife of Deepak Sareen, resident of VPO
Sheikhpur, Tehsil and District Kapurthala.
.....Respondent No.1/Complainant
2. Reliance General Insurance Company Ltd., Reliance Centre
19, Walchand Hirachand Marg, Ballard Estate, Mumbai-
400001, through its Authorized Officer.
.....Respondent No.2/Opposite Party No.1
First Appeal against order dated
13.03.2020 passed by District
Consumer Disputes Redressal Forum
(now 'Commission'), Kapurthala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the appellant : Sh. Aman Dhir, Advocate For respondent No.1 : Sh. Vivek K. Thakur, Advocate For respondent No.2 : Sh. Sachin Ohri, Advocate ..................................................................................First Appeal No.276 of 2020 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/opposite party No.2 against the order dated 13.03.2020 passed by District Consumer Disputes Redressal Forum, Kapurthala (now in short "District Commission"), whereby the complaint of the complainant under section 12 of the Consumer Protection Act, 1986 (in short 'C.P. Act') against opposite parties (in short "OPs") was partly allowed against OP No.2 only granting the following reliefs:-
"As an upshot of above detailed discussion, complaint of the complainant is partly accepted qua OP No.2 and accordingly OP No.2 is directed to repair the vehicle of the complainant free of cost, without charging any amount and to make it in a proper condition. If the complainant has already got repaired the vehicle in question, or got repaired from any other agencies then the complainant will submit the bill to opposite party No.2, who will make the payment of the said bill. Further opposite party No.2 is directed to pay compensation to the complainant for causing mental tension to the tune of Rs.7,000/- and litigation expenses of Rs.3,000/-. Entire compliance of the order be made within 30 days from receipt of copy of this order."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
Facts of the Complaint
3. The briefs facts for disposal of this appeal are that the complainant is the registered owner of vehicle Supro Mini Truck bearing registration No. PB08-ED-3489 and same was purchased by her from OP No. 2 on 30.04.2018 and it got it insured from OP No.1, First Appeal No.276 of 2020 3 being an authorized agent of OP No.1, vide cover note No.319000006601 (policy No.200221823350000376) w.e.f. 30.04.2018 to 29.04.2019. She paid Rs.15,081/- in advance as premium amount for getting the vehicle insured. At that time OP No.2 assured her that OP No.1 would provide cashless facility in case any claim under the above said policy arises and they would not have to make any payment to OP No.2 for getting the said vehicle repaired. She obtained a loan of Rs.3,78,000/- from Cholamandlam Investment and Finance Co. Limited for purchasing the above said vehicle. The hypothecation has been entered in the name of Cholamandlam Investment and Finance Co. Limited in the registration certificate of the said vehicle. As per the policy of Transport Department Government of Punjab at that time the new vehicle was registered through the authorized dealer who sells the vehicle. Hence, she paid Rs.19,500/- to the dealer for getting the vehicle registered. The complainant again went in the office of OP No.2 on 06.08.2018 for getting his registration certificate and on that date its officials gave her receipt confirming that registration has been applied and she would get the registration certificate very soon. Unfortunately on 20.09.2018, the above said vehicle met with an accident and to this effect Rapat No.16 dated 20.09.2018 U/s 427 IPC was registered at PS Sadar, Kapurthala. The complainant immediately took the vehicle to the workshop of OP No.2 and intimated them about the claim. At that time on 25.09.2018 an First Appeal No.276 of 2020 4 estimate of repair was prepared by OP No.2 amounting to Rs.97,000/- approximately and it further informed OP No.1 regarding the claim in question and all the necessary documents were supplied by the complainant to the OPs for getting the claim. At that time OP No.2 also informed her that vehicle was damaged badly, so it would take two months for getting it repaired. But on 24.10.2018, the complainant received a letter from OP No.1, vide which the claim of the complainant was rejected on the ground that at the time of accident i.e. on 20.09.2018 the vehicle in question was not registered. The complainant immediately went to the office of OP No.2 and told it that he had paid the entire charges of registration of vehicle amounting to Rs.19,500/- to them on 30.04.2018 then why it failed to get the said vehicle registered in time? The officials of OP No.2 told her that due to their negligence the vehicle could not be registered in time, but they would try their best to get the claim of the vehicle. The officials of OP No.2 called the officials of OP No.1 at their office and told them that even if the vehicle was registered after the accident even then they should pay the claim as the vehicle has now been registered and there is no law regarding the repudiation of the vehicle on this ground. She also requested the officials of OP No.1 that she had paid the registration charges to OP No.2 and she was not at fault at any stage and she requested them to pay the claim amount. But the officials of OP No.1 flatly refused to reopen the claim. Repudiation of the claim by OP No.1 is illegal and is First Appeal No.276 of 2020 5 against the settled provisions of the law. She also requested the officials of OP No.2 to repair the vehicle, but they demanded Rs.50,000/- in advance for repairing the said vehicle and the vehicle is still lying in the workshop of OP No.2 in accidental condition. She alleged deficiency in service on the part of OPs and prayed that that OP No.2 be directed to repair the vehicle and further to direct OP No.1 to make the payment of repair directly to OP No.2 as claim amount and to repair the vehicle free of cost. She also prayed for compensation of Rs.10,000/- on account of damages for causing mental tension and harassment, besides Rs.10,000/- as litigation expenses.
Defence of the Opposite Parties
4. Upon notice, OP No.1 failed to appear before the District Commission and it was proceeded exparte, but later on he joined the proceedings when this Commission remanded back the case to the District Commission for taking the written reply and evidence of OP No.2 by setting aside the previous order dated 05.04.2019 of the District Commission in First Appeal No.318 of 2019, vide order dated 20.09.2019.
5. OP No.2 filed its separate written reply by raising preliminary objections that present complaint is not maintainable as the complainant has suppressed the material facts and the same is liable to be dismissed. No cause of action has arisen in favour of complainant to file the present complaint qua OP No.2. On merits, First Appeal No.276 of 2020 6 OP No.2 admitted that complainant purchased Supro Mini Truck and also admitted that said truck met with an accident and came for repair in the workshop of OP No.2. It is also admitted that Rapat No.16 dated 20.09.2018 under Section 427 IPC was registered with PS Sadar, Kapurthala regarding the said accident. As per Government Instructions, authorized dealer can only issue temporary registration certificate of the newly purchased commercial vehicle and no guidelines have been laid for the permanent registration certificate in this respect by the authorized dealer. OP No.2 denied that complainant paid a sum of Rs.19,500/- to OP No.2 for registration charges of the vehicle and also denied that it issued the receipt dated 06.08.2018. She was duly apprised of the cost of the repair of the vehicle, which would have to be borne by her, as she had told the officials of OP No.2 that OP No.1 had rejected her claim, vide letter dated 24.10.2018. OP No.2 denied the other averments of the complainant and prayed for dismissal of the complaint. OP No.1 did not file any reply.
6. The complainant filed rejoinder to the written reply of OP No.2 and denied the averment of OP No.2.
Evidence of the parties and finding of the District Commission
7. In support of her case, the complainant placed on record her affidavit alongwith documents i.e. copy of registration certificate Ex.C-1, copy of cover note Ex.C-2, copy of rough estimate Ex.C-3, copy of receipt dated 06.08.2018, copy of rapat No.16 dated First Appeal No.276 of 2020 7 20.09.2018, copy of repair estimate Ex.C-6, copy of delivery challan Ex.C-6/A, copy of repudiation letter dated 24.10.2018 Ex.C-7 and copy of provisional RC Ex.C-8.
8. OP No.2 placed on record affidavit of Ashok Kumar, authorized signatory alongwith documents i.e. copy of ledger account Ex.OP-2/1, copy of order issued by Transport Department (Govt. of Punjab) Ex.OP-2/2.
9. The District Commission, after going through the record and hearing learned counsel for the parties partly allowed the complaint of the complainant, vide impugned order. Feeling aggrieved against the order, the present appeal has been filed by the appellant/OP No.2.
Contentions of the Parties
10. We have heard learned counsel for the parties and have also gone through written arguments submitted by learned counsel for the parties and the record of the case.
11. Learned counsel for the appellant vehemently contended that the District Commission has not dealt with legal objection of the appellant/OP No.2 with regard to maintainability of the complaint. The accident of the vehicle took place at Kapurthala, which cannot be made basis to determine the jurisdiction of the District Commission. The District Commission wrongly observed that Ex.C-3 is a receipt given by the appellant/OP No.2, which shows the appellant received an amount of Rs.19,500/- towards RC charges. First Appeal No.276 of 2020 8 The reading of Ex.C-2 highlights that the insurance amount is Rs.15081/-, which does not match with amount mentioned in Ex.C-3 i.e. Rs.16,532/-. The insurance amount mentioned in Ex.C-2 is similar in Ex.OP-2/1, the ledger statement of the appellant/OP No.2. The District Commission wrongly considered the said document while deciding the complaint. The District Commission further erred in holding that Ex.C-4, the receipt issued by the appellant/OP No.2, which proves that it had charged the amount for getting the RC issued. Perusal of said document shows that it was issued by Secretary, Regional Transport Authority, Jalandhar. The District Commission has also ignored the Government instructions Ex.OP- 2/2, which is to the effect that in case of commercial vehicle the concerned dealer is only entitled to issue temporary RC to the buyer. The complainant purchased the vehicle on 30.04.2018 and the accident of the vehicle took place on 20.09.2018. It is highly improbable that if the complainant had given the alleged amount for registration of the vehicle to OP No.2 then he never tried to ascertain the delay in issuance of the RC from the appellant for such a long period. Learned counsel prayed for acceptance of the appeal and setting aside the order of the District Commission.
12. Learned counsel for respondent No.1/complainant argued to the contrary that appellant/OP No.2 committed a fraud with the complainant by not providing the service i.e. preparation of registration certificate of the vehicle in question for which they First Appeal No.276 of 2020 9 charged Rs.19,500/-, but it failed to apply for registration certificate. The appellant/OP No.2 also charged an amount of Rs.16,532/- for getting the vehicle insured with OP no.1 and provided the insurance cover on the same date i.e. 30.04.2018. Respondent No.1/complainant went to the office of the appellant/OP No.2 on 06.08.2018 for getting his registration certificate, but its officials had given her a receipt confirming that the registration had been applied and she would get the registration certificate very soon. But the said vehicle met with an accident on 20.09.2018 and the complainant had lodged the claim with OP No.1, but it repudiate the same vide communication dated 24.10.2018 on the ground that vehicle in question was not registered at the time of accident on 20.09.2018. The District Commission has rightly held that the appellant against whom the respondent No.1 alleged that registration charges were obtained and no process of the same was initiated by them for getting the vehicle registered. The appellant/dealer was bound to issue temporary registration certificate and charges of the temporary certificate is to be taken by the dealer and obviously the appellant must have taken the charges of temporary registration certificate as well as permanent registration certificate and further that the version of the appellant that receipts Ex.C-3 and C-4 are not issued by the officials of the appellant cannot be accepted. Previously the complaint was decided on 05.04.2019 and the said order was challenged by way of First Appeal No.318 of 2019 and this First Appeal No.276 of 2020 10 Commission set aside order dated 05.04.2019 and complaint was ordered to be restored at its original number for filing the written statement, reply and evidence before the District Commission on the date fixed. Thereafter, the impugned order has been passed by the District Commission after examining the defence of the appellant and there is no scalability or perversity in the impugned order as the same has been passed after perusal of the entire evidence placed before the District Commission. Learned counsel prayed for dismissal of the appeal.
13. On the other hand, learned counsel for respondent No.2/OP No.1 argued that the District Commission has rightly held that appellant/OP No.2 was negligent in applying for the RC, as per policy of the Transport Department (Govt. of Punjab), as per which the new vehicle is registered through the authorized dealer, who sells the vehicle. The complainant had paid the amount of registration charges to the dealer for getting the vehicle registered to OP No.2 wherefrom she purchased the vehicle on 30.04.2018. Even after paying the registration charged, the appellant did not apply for the registration of the vehicle. The District Commission further held that it is not the case of the appellant/dealer that the receipt Ex.C-3 was not signed by its employee Vishal Kumar nor they took a plea that no official in the name of Vishal Kumar is working in its office. The order passed by the District Commission is well reasoned order First Appeal No.276 of 2020 11 in the eyes of law. Learned counsel for respondent No.2 relied upon following judgments:-
"Narinder Singh Vs. New India Insurance Company Limited", Civil Appeal No.8463 of 2014 decided on 04.09.2014 by the Hon'ble Supreme Court "Ramesh Patel Vs. Manager Bajaj Allianz GIC Ltd."
2017(3)CPJ-335 Learned counsel prayed for dismissal of the appeal. Consideration of Contentions
14. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
15. Admittedly, the said vehicle was purchased by respondent No.1/complainant from the appellant/OP No.2 on 30.04.2018 and OP No.2 get the said vehicle insured from OP No.1, vide Ex.C-2 and respondent No.2/OP No.1 has not denied this fact at this appeal stage also. It is also an admitted fact that the said vehicle was insured with OP No.1 at the time of accident, which took place on 20.09.2018. The plea of the appellant is that it had not received any amount for preparing permanent registration of the said vehicle from the complainant. Perusal of record shows that there is no receipt on the record with regard to receipt of payment by OP No.2 from complainant for preparing the permanent registration certificate. Ex.C-3 is a rough estimate, which cannot be relied upon, as it bears no stamp of OP No.2. This rough estimate cannot be treated as a receipt for receiving the payment of permanent First Appeal No.276 of 2020 12 registration charges from the complainant by OP No.2. As such the District Commission has wrongly relied upon this rough estimate. The District Commission has also ignored the instruction of Transport Department (Govt. of Punjab) Ex.OP-2/2, which is to the effect that in case of commercial vehicle, at the time of sale, dealer will issue temporary registration certificate and the permanent registration certificate is not mandatory on the part of the dealer. Perusal of registration certificate Ex.C-1 shows that the vehicle in question purchased by the complainant for goods carrier i.e. commercial vehicle. Respondent No.1/complainant also failed to produce on record to rebut the evidence of the appellant/OP No.2 i.e. Ex.OP-2/1, wherein no amount for permanent registration charges has been shown in it. In the absence of any cogent evidence proving the receipt of permanent registration charges by OP No.2 from the complainant, the District Commission has wrongly held OP No.2 liable for the payment. As such the finding of the District Commission against the appellant/OP No.2 is not sustainable in the eyes of law, whereas the said vehicle was duly insured with OP No.1, which chose to remain ex-parte before the District Commission.
16. It is an admitted fact that accident took place on 20.09.2018 and the said vehicle was insured with OP No.1, as such the complainant is entitled to the claim from the Insurance Company i.e. OP No.1. The alleged accident took place on 20.09.2018 and First Appeal No.276 of 2020 13 receipt dated 06.08.2018 issued by Secretary, Regional Transport Authority, Jalandhar, Ex.C-4, shows that the permanent registration certificate was applied on 06.08.2018 i.e. prior to the date of accident. As such there is no fault on the part of the complainant that she had no RC of the vehicle at the time of accident. This point has already been discussed by this Commission in case "Bajaj Allianz General Insurance Company Limited Vs. Harvinder Singh" First Appeal No.1220 of 2015, decided on 05.09.2016, as under :-
"In the background, and the issue affecting the public at large, the matter was deliberated at length amongst the GMs (Motor) of the four GIPSA member companies at GIPSA level on 24 February, 2015 for discussing the finer points involved in the issue and arrive at a common understanding on treatment of such claims. It was, inter alia, observed in the said meeting that lack of registration cannot always be attributed to the insured, as there could be circumstances beyond the control of the insured leading to such lack of registration. For example, the insured might have paid the charges towards registration fee either at the RTO or even at the dealers point but the registration certificate could be pending/in process at the time of loss/damage to the vehicle leading to a claim with insurer. In fact, it was noted that even the Hon'ble Supreme Court, in its judgment "Narinder Singh Vs. New India Assurance Company Limited in Civil appeal No.8463 of 2014, arising out of SLP (Civil) No.26303 of 2013, decided on 4th September, 2014, has observed in para 14, as under:-
"Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of vehicle either applied for permanent registration as contemplated under First Appeal No.276 of 2020 14 section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons".
Following the spirit of the Hon'ble Supreme Court to look into the specific reasons before taking a decision, it was also felt that there could also be instances where, at the time of the accident to the vehicle, even the registration fee and Road Tax might not have been deposited by the insured, either with the RTO or with the dealer, but the facts and circumstances of the case point out that there were genuine reasons for his failure to even deposit the registration fee and Road Tax before the accident taking place, and therefore, penalizing the insured by an outright repudiation of the claim solely on the ground of lack of registration, without going into the reasons for the same, could be too harsh a penalty upon him.
At the same time, requirement of registration of the vehicle before its use at a public place being statutory in nature, it cannot be altogether ignored while considering an insurance claim on such a vehicle.
Keeping in view the totality of situation and striking a fair balance between the interests of various stake-holders, in the spirit of the aforesaid judgment of the Hon'ble Supreme Court, therefore, the GMs (Motor) decided to treat claims on Motor Vehicles meeting with accident at a time when there was no valid registration on the vehicle in the following manner:-
In cases where the material on record available show that the insured had deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer/sub- dealer, from where the vehicle was purchased. Before the vehicle meets with an accident, while the registration is still in process/ pending after such deposit of registration fee and road tax claims arising out of such an accident may be settled on standard basis, subject to submission of the RC Book by the insured. In cases where the insured had not deposited the requisite registration fee and road tax on the vehicle either with the RTO or with the dealer4/sub-dealer, from where the vehicle was purchased, before the vehicle meets with an accident, but the facts and circumstances of the case do point out that there were genuine reasons for his failure to even deposit the registration fee and road tax before the accident taking place, such cases could be settled on non-standard basis (not exceeding 75% of the normally admissible amount of the subject claim) by the Competent Authority as provided under the Financial Standing Orders of the Company for the time being in force, taking into account the overall facts and First Appeal No.276 of 2020 15 circumstance of the case, subject to submission of the RC Book by the insured.
Perusal of Ex.C-4, the receipt, issued by Secretary, Regional Transport Authority, Jalandhar, proves that the requisite papers/documents have been received by the Registering Authority for preparation of permanent registration certificate of the said vehicle, which means that RC of the said vehicle has been applied in the name of the complainant, vide this receipt. It is also pertinent to mention that OPs were proceed exparte, vide order dated 05.04.2019 by the District Commission and OP No.2 filed First Appeal No.318 of 2019 before this Commission and the order of the District Commission dated 05.04.2019 was set aside and OP No.2 was allowed to file written reply and evidence before the District Commission. Whereas OP No.1 had not filed any appeal against the exparte order dated 05.04.2019 and it did not file any reply in its defence and only joined the proceedings before the District Commission. Perusal of record shows that it is not the case of OP No.1 that complainant had not applied for permanent registration certificate before the date of accident nor it has been argued at this appeal stage that complainant applied for permanent registration certificate after the date of alleged accident. In these circumstances and in view of discussion of this Commission in Harvinder Singh's case (supra), OP No.1 is held liable to pay the claim amount as awarded by the District Commission to the complainant, as receipt Ex.C-4 proves the fact that permanent registration certificate of the First Appeal No.276 of 2020 16 vehicle in question was applied before the date of accident i.e. on 06.08.2018 and there is no fault on the part of complainant and OP No.1 wrongly repudiated the claim of the complainant, vide letter dated 24.10.2018, Ex.C-7.
17. As per Rule 33 of The Code of Civil Procedure, 1908, (in short the "CPC") this appellate court has power to modify the order of the District Commission in the absence of any appeal filed by the complainant. Rule 33 of CPC is reproduced as under:-
33. Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection 2[and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:3
[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.]"
In view of above, we modify the order of the District Commission to the extent that OP No.1 is liable to pay the repair charges of the said vehicle and amount of compensation and litigation expenses, as First Appeal No.276 of 2020 17 awarded by the District Commission. The authorities relied upon by respondent No.2/OP No.1 are different from the facts of this case.
18. As a result of our above discussion, we allow the appeal of the appellant/OP No.2 and dismiss the complaint of the complainant qua appellant/OP No.2 and further direct respondent No.2/OP No.1 to pay repair charges of the said vehicle and also to pay Rs.7000/- as compensation for causing mental tension besides Rs.3000/- as litigation expenses. The impugned order of the District Commission is modified to the extent above. The compliance of order be made by OP No.1 within 30 days from the date of receipt of certified copy of this order.
19. The appellant had deposited a sum of Rs.42,333/- at the time of filing of the appeal with this Commission. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the appellant after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER January 29, 2021.
(MM)