State Consumer Disputes Redressal Commission
Smt. Ratna Khobragarde vs Bajaj Alianze General Insurance ... on 26 February, 2015
Daily Order Chhattisgarh State Consumer Disputes Redressal Commission Raipur Final Order First Appeal No. FA/14/558 (Arisen out of Order Dated 21/07/2014 in Case No. CC/12/455 of District Raipur) 1. Smt. Ratna Khobragarde Antagarah Distt. Kanker Kanker Chhattisgarh ...........Appellant(s) Versus 1. Bajaj Alianze General Insurance Co.Ltd. through Leagal Manager Shiv Mohan Building, Pandari, Vidhan Sabha Road Raipur Raipur Chhattisgarh ...........Respondent(s) BEFORE: HONABLE MR. JUSTICE R.S.Sharma PRESIDENT HONABLE MS. Heena Thakkar MEMBER HONABLE MR. Dharmendra Kumar Poddar MEMBER For the Appellant: Shri Dipak Diwan, Advocate For the Respondent: Shri N.K.Thakur, Advocate ORDER CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANDRI, RAIPUR (C.G) Appeal No.FA/14/558 Instituted on : 20.08.2014 Smt. Ratna Khobragade, W/o Shri K. R. Khobragade, R/o : Antagarh, District Kanker (C.G.) ... Appellant Vs. Bajaj Allianz General Insurance Company, Through : Legal Manager, Shivmohan Building, Pandri, Vidhansabha Road, Raipur (C.G.) ... Respondent Appeal No.FA/14/575 Instituted on : 23.08.2014 Bajaj Allianz General Insurance Company Ltd., Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri, Raipur (Chhattisgarh) 492001 .... Appellant Vs. Smt. Ratna Khobragade, S/o Shri K.R. Khobragade, Post : Antagarh, District Kanker (C.G.) ... Respondent PRESENT: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT HON'BLE MISS HEENA THAKKAR, MEMBER COUNSEL FOR THE PARTIES IN BOTH THE APPEALS :- Shri Deepak Diwan, for the complainant Smt. Ratna Khobragade. Shri N.K. Thakur, for the Opposite Party, Bajaj Allianz General Insurance Company Limited. ORDER
Dated : 26/02/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No. FA/14/558 as well as Appeal No. FA/14/575, which have been preferred respectively by the complainant and O.P. of the Complaint Case No.455/2012 against the order dated 21.07.2014 passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum"), whereby the complaint filed by the complainant, has been allowed in part, and learned District Forum has directed the O.P. to pay within a period of one month from the date of order a sum of Rs.7,15,093/- and a sum of Rs.2,000/- as advocate fees & cost of litigation. The District Forum, has also directed the O.P. to settle the claim of the complainant within 30 days from the date of receiving registration certificate, otherwise simple interest @ 9% p.a. would be payable on the said amount from the date of order till realisation.
2. The complainant has filed Appeal No.14/558/2014 for enhancement of the amount of award whereas the O.P. has filed Appeal No.FA/14/575 for setting aside the impugned order of the District Forum. For the purpose of convenience, hereinafter in this order, the parties will be referred as per their original nomenclature in the complaint case. The original of this order be retained in the file of Appeal No.FA/14/558 and its copy be placed in the file of Appeal No.FA/14/575.
3. As per allegations as made in the complaint filed by the complainant that she was the owner of a vehicle Scorpio, which was insured with the O.P. for the period from 25.10.2011 to 24.10.2012 and during the force of the insurance, the vehicle in question was parked in a motor garage for its repairing on 22.02.2011 and it caught fire in the garage causing the vehicle got badly damaged for which a claim was lodged with the O.P. It was also pleaded that incident was intimated to the O.P. and Surveyor was appointed by the O.P. and the Surveyor conducted survey. It was also pleaded that the claim of the complainant was repudiated by the O.P. on 19.03.2012 by mentioning that the vehicle in question was not registered and thus violated and thus the complainant violated the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988 and hence a consumer complaint was filed by the complainant before the District Forum seeking reliefs as mentioned in the relief clause of the complaint.
4. The O.P. filed its written reply and denied all the allegations as made in the complaint by the complainant. It was pleaded that the vehicle in question was being used in contravention of policy conditions as well as the provisions of Section 39 of the Motor Vehicles Act, 1988. It was also pleaded that the vehicle was left unattended and without safeguard and hence violated the condition no.5 of the insurance policy and hence repudiated the claim of the complainant and by doing so, the O.P. had not committed any deficiency in service.
5. Learned District Forum after due appreciation of the material available before it partly allowed the complaint and directed the O.P.to pay compensation to the complainant, as mentioned in para 1 of this judgment.
6. The complainant has filed Appeal No.14/558 for enhancement of the amount of award, whereas the O.P. has filed Appeal No.FA/14/575 for setting aside the impugned order of the District Forum.
7. The complainant filed documents. Document A-1 is temporary registration Certificate, A-2 is bill issued by Silver Automobiles, A-3 is Vehicle Receipt, A-4 is Sale Certificate, A-5 is Motor Vehicle Cover Note, A-6 is Certificate Cum Policy Schedule issued by the O.P., A-7 is Final Report of the Police, A-8 is letter written to the Tahsildar, Tahsil and District Dhamtari, A-9 is letter issued by Station House Officer, A-10 is Nuksani Panchnama, A-11 is letter dated 29.12.2012 sent by Station House Officer, City Kotwani, Dhamtari (C.G.), A-12 is letter dated 05.02.2012 sent by Mukhya Nagar Palika Adhikari, Nagar Palika Parishad, Dhamtari, A-13 is second reminder dated 13.02.2012 sent by the O.P. to the complainant, A-14 is letter dated 19.03.2012 sent by the O.P. to the complainant, A-15 is letter dated 27.03.2012 sent by the O.P. to the complainant, A-16 is Receipt issued by Silverline Automobiles in favour of the complainant, A-17 is Identity Card issued by Election Commission of India in favour of Smt. Ratna Khobragade.
8. The O.P. has also filed documents. Annexure OP-1 is letter dated 27.03.2012 sent by the O.P. to the complainant, Annexure OP-2 is Motor Insurance Claim Form, A-3 is statement of Kumbhraj Khobragade, A-4 is Certificate Cum Policy Schedule.
9. The complainant (appellant of Appeal No.FA/14/558) has filed an application under Order 41 Rule 27 CPC and sought to file a document i.e. letter dated 23.09.201,4 in original, which was sent by the District Transport Officer, North Bastar, Kanker (C.G.) to the complainant Smt. Ratna Khobragade.
10. We have heard learned counsel for both the parties on the application filed under Order 41 Rule 27 CPC.
11. The complainant sought to file document i.e. letter dated 23.09.2014 in original, which was sent by the District Transport Officer, North Bastar, Kanker (C.G.) to the complainant Smt. Ratna Khobragade. The O.P. had taken a plea that the vehicle in question was being used by the complainant without registration, therefore, the document filed sought to be filed by the complainant is relevant and material document for proper adjudication of the case and if the documents are taken on record as additional evidence, the same will not cause any prejudice to the O.P.
12. Therefore, we allow the application filed by the complainant under Order 41 Rule 27 CPC and take the above document on record as additional evidence.
13. Shri Deepak Diwan, learned counsel appearing for the complainant (appellant of Appeal No.FA/14/558) has argued that the learned District Forum has erred in not awarding other reliefs sought by the complainant. He further argued that Certificate of Registration is not required because the vehicle in question was not being used by the complainant at the time of accident. At the time of accident, the vehicle in question was parked in the garage for conducting repairing works Therefore, the finding of the District Forum that Certificate of Registration of the vehicle in question is not required, is just and proper. He prayed that the appeal No.FA/14/558 filed by the complainant be allowed and the impugned order passed by the District Forum be modified and the compensation as prayed for by the complainant, which is mentioned in the prayer clause of the complaint be granted to her and the appeal No.FA/14/575 filed by the O.P. is liable to be dismissed.
14. Shri N.K. Thakur, learned counsel appearing for the O.P. (appellant of Appeal No.FA/14/575) has argued that the impugned order passed by the learned District Forum by allowing the complaint of the complaint is perverse and is not sustainable in law. The learned District Forum has failed to appreciate the facts brought on record and has miserably failed to bring home the ingredients of the defining the "deficiency in service" by overlooking the facts of the case. The learned District Forum has committed gross error of law. The learned District Forum has overlooked the documents and objections raised in the written version. The learned District Forum has also observed that the vehicle in question was not registered with the concerned R.T.O. and hence it is violation of provisions of the Motor Vehicles Act, 1988. The vehicle in question which was insured by the O.P. was not registered and was being used in contravention of Motor Vehicles Act, 1988 as well as the policy conditions. According to the provisions of Section 39 of the Motor Vehicles Act, 1988 registration of motor vehicle is a mandatory provision. The learned District Forum has committed gross error by overlooking the relevant documents and version of the O.P. The Court of law can interpret the wordings of the terms and conditions of the policy executed between the parties but not authorized to construct any additional contract. The District Forum has failed to understand the doctrine of "Utmost Good Faith".
15. We have learned counsel for both the parties and have also perused the record of the District Forum.
16. Now we shall examine whether the vehicle in question was being used at public place at the time of accident ?
17. In Oriental Insurance Co. Ltd. V. Abdul Rashid and others, 2015 ACJ 226, Hon'ble High Court of Chhattisgarh at Bilaspur has observed thus :-
20. In order to answer this question, it would be proper to notice the meaning of words 'public place'. The words 'public place' have been defined in Section 2 (34) of the Motor Vehicles Act which reads as follows :
"(34) 'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage."
In United India Insurance Co. Ltd. v Lakshmi, 1997 ACJ 489 (Kerala), after quoting the observations of Barry, J. in R v. Kane, 1965 1 All ER 705, it was held as follows :-
"7. .... In substance, a place is a 'public place' though it is private property when it is shown that the public are in the habit of resorting to it and one is prevented therefrom so resorting to it.
In Stround's Judicial Dictionary, 5th Edn., p. 2094 'public place' has been defined as follows :
"A 'public place' is a place to which the public can and do have access; it does not matter whether they come at the invitation of the occupier or merely with his permission, or whether some payment of the performance of some formality is required before access can be had..."
In black's Law Dictionary, 6th Edn., p. 1230 'public place' has been defined as follows :
" 'Public place' : A place to which the general public has a right to resort; not necessarily a place devoted solely to the uses of the public, but a place which is in point of fact public rather than private, a place visited by many persons and usually accessible to the neighbouring public (e.g., a park or public beach). Also, a place in which the public has an interest as affecting the safety, health, morals, and welfare of the community. A place exposed to the public and where the public gather together or pass to an fro."
21. The first thing with regard to the definition is that it is an inclusive one. Secondly, it in term makes it clear that any road, street, way or other place, whether a thoroughfare or not, is a public place for the purposes of the Act, the only condition being that the public should have a right of access to it. Thirdly, the expression used in the definition is a 'right of access' and 'access as of right'. Lastly, when it states that any place or stand at which passengers are picked up or set down by a stage carriage, is a public place, it shows that it is not so much concerned with the ownership of the place as with its user. Stage carriage is defined in sub-clause (29) of section 2 and it means a motor vehicle which is used to carry or adapted to carry more than six persons excluding the driver and which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey. In short, it means a public passenger carrier. In other words, by virtue of the last part of the definition, the expression would include any place including private, where public passenger carrier picks up or sets down passengers.
27. The contention taken here was that since the vehicle was entrusted with a repairer or a workshop, the owner is not liable and, therefore, the appellant insurance company is also not liable is covered by the decision of the Apex Court rendered in case of Guru Govekar v. Filomena F. Lobo, 1988 ACJ 585 (SC). The Supreme Court held as follows :-
"9. ... When the owner of a motor vehicle entrusts his vehicle to a repairer to carry out repairs he is in fact allowing the repairer to use his vehicle in that connection. It is also implicit in the said transaction that unless there is any contract to the contrary the owner of the vehicle also causes or allows any servant of the repairer who is engaged in the work of repairs to use the motor vehicle for the purpose of or in connection with the work of repairs and when such work of repair is being carried out in a public place if on account of the negligence of either the repairer or his employee, who is engaged in connection with the work of repair, a third party dies or suffers any injury either to his person or property, the insurer becomes liable to pay the compensation under the provisions of the Act..."
The court further held as under that :
"(13) ... This meant that once the insurer had issued a certificate of insurance in accordance with sub-section (4) of section 95 of the Act, the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy. He was liable to satisfy the decree when he had been served with a notice under sub-section (2) of section 96 of the Act about the proceedings in which the judgment was delivered.
(14) Thus on the facts of the case before us we are of the view that the insurer is liable to pay the compensation found to be due to the claimant as a consequence of the injuries suffered by her in a public place on account of the car colliding with her on account of the negligence of the mechanic who had been engaged by the repairer who had undertaken to repair the vehicle by virtue of the provisions contained in section 94 of the Act which provides that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance, complying with the requirements of Chapter VIII of the Act. Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing the necessary for taking out insurance policy under the Act."
28. In the case of Oriental Insurance Co. Ltd. v. Uttara Devi, 2013 ACJ 1357(Chhattisgarh), the Divisional Bench of this court has held that workshop is a 'public place' as defined in section 2(34) of the Act, 1988. The relevant portion of the said judgment reads thus :
"(9) In the present case also the accident had occurred in a motor workshop where there is no restriction for the entry of any person or vehicle. In the evidence also it has come that the driver had entered in the area, i.e., workshop where the deceased was working under the instruction of his employer. Therefore, in the light of the above, we are of the opinion that the 'motor workshop' comes within the definition of 'public place' as defined in section 2(34) of the Act, 1988 and as such, the first argument advanced by learned counsel for the appellant that the accident had not occurred in a public place has no force."
18. As per Advanced Law Lexicon by P. Ramanatha Aiyar 3rd Edition 2005 "PUBLIC PLACE" means "any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants, public offices, Court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space."
19. As per Bakshi's The Law Lexicon the 'Public Place' means "a Private place to which access is allowed by the public is also comprehended within the definitional meaning of the words, "public place". The fact that the words "public place" refer even to a place which is not a part of thoroughfare also shows that private place also is comprehended by that definition."
"In order to constitute a public place it is not required that the place should be a public property, but if it is a private property it must necessarily be proved that not only the public could have access to it, but it is a place to which members of public in fact resort."
20. The vehicle in question was taken by the complainant to the garage for repairing work where the vehicle was parked by the complainant and the incident occurred during the course of the repairing of the vehicle in the garage, therefore, it can safely be held that the vehicle in question was being used by the complainant in a public place.
21. In view of above discussions, it is established that the vehicle in question was being used by the complainant at the time of accident in public place.
22. Now we shall examine whether the Certificate of Registration of the vehicle in question is required ?
23. Provisions of Section 39 of The Motor Vehicles Act, 1988 runs thus :-
"39. Necessity for registration. - No person shall drive any motor vehicle and no owner or a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle 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."
24. In Narinder Singh vs. New India Assurance Company Ltd. and Others, 2014 ACJ 2421, Hon'ble Supreme Court has observed thus :-
"14. Indisputably, a temporary registration was granted in respect of vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without registration. 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 the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of the policy contract."
15. In the aforesaid premises, we do not find any infirmity in the order passed by the State Commission and the National Commission."
25. In Bhagwat vs. The United India Insurance Company Limited, IV (2014) CPJ 698 (NC), Hon'ble National Commission has observed that petitioner never applied before Regional Transport Officer for getting permanent registration of the vehicle and for failure to meet statutory requirement regarding registration of the vehicle, the complainant was not entitled to get claim even on non-standard basis.
26. In Din Dayal v. National Insurance Company & Anr. I (2013) CPJ 10 (NC) Hon'ble National Commission has observed thus :-
"5. These arguments do not sound very convinced. Section 39 of the Motor Vehicles Act, 1988 lays down that the registration of the vehicle is mandatory requirement of law to drive the vehicle on any place or any other place. In support of his case, the State Commission has placed reliance upon the order of this Commission in the case of Kaushalendra Kumar Mishra v. Oriental Insurance Company Limited, I (2012) CPJ 559. Consequently, there was violation of Section 39 of the Motor Vehicles Act.
27. In Niranjan Kumar Yadav vs. National Insurance Company Limited, II (2011) CPJ 64 (NC), Hon'ble National Commission has observed thus :-
"4................ 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 :
"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, looses all creditability."
28. In Saleena Rani vs. United India Insurance Company Ltd. & Anr. I (2015) CPJ 220 (NC), Hon'ble National Commission has observed thus :-
"12. The State Commission, while dismissing the complaint in its impugned order observed :-
"16................
17................
18. In the instant case, as stated above, temporary registration certificate of the car, in question, expired on 8.7.2011. There is nothing on the record, that immediately thereafter, the complainant applied for registration of the vehicle, with the Registering Authority. As stated above, till date of theft of the car, in question, it had not been registered with Registering Authority. The car, in question, was thus, being used without any valid registration certificate, and had been taken to New Delhi, wherefrom it was stolen. Thus, the car was being used by the complainant, as also her husband, wholly and completely in violation of the mandatory provisions of Section 39 of Motor Vehicles Act, 1988. A similar question fell for decision in Narinder Singh's case (supra). The Hon'ble Apex Court, in the aforesaid case, laid down the principle of law, to the effect that if the vehicle was being used without valid registration certificate, and damage to the same or loss thereof occurred, then the Insurance Company could legally and validly repudiate the claim of the insured, in toto. In Kaushalendra Kumar Mishra's case (supra), it was also held that use of the vehicle, in violation of law itself will take it beyond the protection of the Policy. In Bharti Axa General Insurance Co. Ltd.'s case (supra), it was also held that if the loss of the vehicle occurs, when it was being used, in violation of the mandatory provisions of law, the insurer will be justified, to repudiate the claim of the insured. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. Similarly, the vehicle in question, was being used, by the husband of the complainant, in violation of mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, at the time of theft thereof, the insurer was justified in legally and validly repudiating the claim of the complainant. There was, therefore, no deficiency, in rendering service, on the part of the opposite party No.1 in repudiating the claim of the complainant. The findings of the District Forum, to the contrary, being incorrect are reversed."
29. The learned District Forum has also observed in para 8 & 9 of the impugned order that the vehicle in question was not registered at the time of accident and complainant has not get the vehicle registered. The District Forum has observed the vehicle in question was not being used at a public place, therefore, the certificate of registration is not mandatory. On the basis of above cited judgment Oriental Insurance Co. Ltd. V. Abdul Rashid and others (Supra), it appears that vehicle in question was taken to garage for repairing work and garage is a public place. It appears that the vehicle in question was being used in a public place at the time of accident, therefore, on the basis of judgment in Narinder Singh vs. New India Assurance Company Ltd. and Others, Bhagwat vs. The United India Insurance Company Limited, Din Dayal v. National Insurance Company & Anr., Niranjan Kumar Yadav vs. National Insurance Company Limited, Saleena Rani vs. United India Insurance Company Ltd. & Anr. (Supra), it appears that the Certificate of Registration is mandatory, but the complainant was using the vehicle in question without any valid registration. It amounts breach of fundamental terms and conditions of the policy and provisions of the Motor Vehicles Act,1988, therefore, the O.P. is not liable to compensate the complainant.
30. Therefore, the finding recorded by the learned District Forum, is erroneous and is liable to be set aside and the complainant is not entitled for any enhancement in the award or any further compensation from the O.P.
31. Hence, we allow the appeal No.FA/14/575 filed by the Bajaj Allianz General Insurance Company Ltd. (O.P.) and set aside the impugned order dated 21.07.2014, passed by the District Forum. The appeal No.FA/14/558 filed by the complainant, Smt. Ratna Khobragade, is dismissed. Consequently, the complaint filed by the complaint before the District Forum, also stands dismissed. No order as to the cost of these appeals.
(Justice R.S. Sharma) (Ms. Heena Thakkar) President Member /02/2015 /02/2015 [HONABLE MR. JUSTICE R.S.Sharma] PRESIDENT [HONABLE MS. Heena Thakkar] MEMBER [HONABLE MR. Dharmendra Kumar Poddar] MEMBER